KESHAV vs GIAN CHAND - Supreme Court Case 2022

KESHAV vs GIAN CHAND - Supreme Court Judgement 2022 - 

NON-REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. 364 OF 2022

KESHAV AND OTHERS ..... APPELLANT(S)

VERSUS

GIAN CHAND AND ANOTHER ..... RESPONDENT(S)

J U D G M E N T

`

SANJIV KHANNA, J.

The judgment under challenge dated 8th August 2018

passed by the Single Judge of the High Court of Himachal

Pradesh at Shimla allows the second appeal and decrees the suit

filed by the plaintiffs Gian Chand and Dhanbir, setting aside

concurrent findings of the trial court and the first appellate court.

Aggrieved, Keshav and five other defendants have preferred this

appeal. The dispute relates to land admeasuring 13 bighas 8

biswas being 7/20th share of total land measuring 38 bighas 6

biswas in Mouza Jakharal, and 1.17 bighas being 1/3rd share in

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5.12 bighas in Mohalo Talai, which land was owned by Hardei,

who died issueless in 1991. Gian Chand is the son of Hardei’s

brother, whereas Keshav is her sister’s son.

2. Gian Chand and Dhanbir, on 4th/6th December 1991, instituted

Civil Suit No. 149 of 1991 for declaration that late Hardei had

gifted the land to them during her lifetime vide gift deed dated 23rd

December 1985 (Ex. PW-3/A), which was registered with the SubRegistrar, Salooni, on 1st January 1986. Gian Chand and Dhanbir

were put in possession of the land by Hardei. Keshav in

connivance with defendants No. 2 to 6 had got mutation recorded

in his favour, which mutation was wrong and illegal and did not

affect their rights under the gift deed. Gian Chand and Dhanbir

had prayed for: (i) decree of declaration that they were owners in

possession of the land; (ii) a decree of permanent injunction

restraining Keshav and others from interfering with their

possession of the land; and (iii) in case they are disposed from the

land by the defendants during the pendency of the suit, a decree

for possession.

3. Keshav and other defendants contested the suit on several

grounds including validity of the relied upon gift deed. Keshav

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claimed that he was a tenant in occupancy of the land for over 15

years, a fact admitted by Hardei before the revenue authorities.

Keshav had therefore acquired rights over the land. Hardei, during

her lifetime, had denied execution of the gift deed and opposed

the request of mutation of the land in favour of Gian Chand and

Dhanbir, which request for mutation was rejected in 1989.

4. The Sub-Judge 1st Class, Chamba, Himachal Pradesh, vide

judgment and decree dated 17th December 1997, while accepting

that the gift deed was a registered document, held that the

document was of decrepit origin. The gift deed was not signed by

Gian Chand. There was contradiction and lack of clarity whether

post the execution and before registration, the gift deed was

handed over to Hardei, the first plaintiff or to the other plaintiff.

Hardei used to reside with Keshav, who would look after and take

care of her. Keshav also performed her last rites. Given these

facts, execution of a gift deed by Hardei in favour of Gian Chand

and Dhanbir would not arise. Hardei in her life time had opposed

and objected to the request for mutation of the land in dispute

made by the plaintiffs. Ex. PA, Mutation No. 193 of Mouza

Jakharal recites the statement of Hardei before the revenue

authority, wherein she had admitted that it was Keshav who was

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looking after her and cultivating her land for the last 15 years. She

had denied having executed the gift deed in favour of the plaintiffs.

The plaintiffs’ version that Keshav took possession of the land in

dispute sometime in the early 1990s was false as Raghu (DW-2)

and Kanth Ram (DW-3), who had land adjoining to the disputed

land, had categorically deposed that Keshav was in possession of

land for the last 18 to 20 years. On the question of possession of

the land, the trial court agreed with Keshav that he was in

possession of the land as a tenant of Hardei for the last 15 years.

The suit preferred by the plaintiffs was, accordingly, dismissed.

5. Civil Appeal No. 18 of 1998, preferred by the plaintiffs before the

District Judge, Chamba Division, was also dismissed with the first

appellate court evaluating the evidence on record to affirm that the

execution of the gift deed by Hardei in favour of the plaintiffs was

a delusion. The gift deed statedly executed on 23rd December

1985 and registered on 1st January 1986, was not produced for

mutation till 1989, where also, Hardei had opposed the mutation

and denied execution of gift deed in favour of the plaintiffs. She

had stated before the revenue authority that Keshav was in

possession of the land in dispute for about the last 15 years.

Further, there was ample evidence to show that Keshav was

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looking after Hardei and taking care of her needs. Therefore, there

was no reason for Hardei to execute a gift deed favouring the

plaintiffs. The plaintiffs were never in possession of the suit land

even for the period after execution of gift deed in 1986, and till the

institution of the suit in 1991. The revenue entries for the said

period did not support the plaintiffs. As a result, the appeal was

dismissed.

6. The second appeal, RSA No. 236 of 1999, preferred by the

plaintiffs was allowed by the High Court vide its decision dated

14th June 2010, reversing the concurrent findings on the ground

that the trial court and the first appellate court had misread and

misinterpreted the documentary and oral evidence. We need not

refer to the reasoning of the High Court, as this Court in Civil

Appeal No. 11059 of 2017 vide order dated 28th August 2017 set

aside the judgment and remitted the matter to the High Court for

fresh hearing after framing of an appropriate substantial question

of law. This Court observed that the substantial question of law so

framed by the High Court was vague and not proper.

7. By the impugned judgment dated 8th August 2018, the High Court

has allowed RSA No. 236 of 1999, primarily for the reasons that in

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terms of execution, the gift deed satisfies the legal mandates of

Sections 122 and 123 of the Transfer of Property Act, 1882 and

being a registered document, it enjoys presumption of truth.

Reliance has been placed on the depositions by Devia (PW-4), an

attesting witness and by Ratan Chand (PW-3), a witness who was

present during the proceedings at the time of the registration.

Devia had accepted that Hardei was suffering from auditory

impairment, but no credence should be given to that portion of the

cross-examination, as at the time of registration Hardei was

explained and made to understand the contents of the document

and she had then appended her thumb impression. The fact that

Hardei was residing and living with Keshav was not a good ground

to doubt the execution of the gift deed. The findings as recorded

by the trial court and the first appellate court were not based on a

proper and mature appreciation of evidence on record. Answering

the substantial questions of law in favour of the plaintiffs, the

second appeal was allowed and the suit was decreed.

8. Devia (PW-4), the witness to the gift deed at the time of its

execution on 23rd December 1985, Ratan Chand (PW-3), who had

signed the deed before the Sub-Registrar, Salooni, at the time of

registration on 1st January 1986, as well as Gian Chand (PW-1),

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have deposed as to the execution of this gift deed. Yet, there are

several circumstances and supporting facts relied by the trial court

and first appellate court on absence of voluntariness and animus

and thus, the gift deed was held to be an invalid and spurious

document. The facts highlighted by the trial court and the first

appellate court are as under:

(i) Hardei was an old illiterate lady who used to live in a village

with her sister’s son Keshav. She did not have any children

and Keshav used to take care of her daily needs and

requirements. No reason is forthcoming as to why Hardei

would execute the gift deed in her lifetime in favour of the

plaintiffs, when she was living with and was dependant on

Keshav for her day-to-day necessities. The land was her

source of income and comfort.

(ii) Devia (PW-4) has deposed that he knew Hardei, who was

suffering from auditory impairment. Further, as per Devia,

Hardei had taken him with her to Chamba to get the gift

deed written from a scribe in favour of the plaintiffs. Gian

Chand (PW-2) while admitting that he was present when the

gift deed was executed by Hardei, did not sign the same as

token of acceptance. The gift deed was registered with the

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Sub-Registrar, Salooni, after about seven days on 1st

January 1986. If the gift deed was to be registered at

Salooni, there was no need for Hardei, an old illiterate

woman who had ailments, to go to Chamba for drafting of

the gift deed. The scribe at Chamba was not known to her.

The trial court has rightly referred to the discrepancy in the

statements of witnesses as to the person who had the gift

deed between 23rd December 1985 and 1st January 1986.

Admittedly, Keshav was not present at the time of execution

of the gift deed nor at the time of its registration.

(iii) The plaintiffs did not take any steps post the execution of the

gift deed for mutation of the land in their favour from 1986 till

1989.

(iv) Hardei had denied execution of the gift deed before the

revenue authority in 1989, when the plaintiffs had moved an

application for mutation of the land in their favour.

Application filed by the plaintiffs for mutation was rejected on

13th May 1989 in view of the contest and objection raised by

Hardei. The plaintiffs did not challenge and question the

rejection during the lifetime of Hardei.

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(v) Hardei had accepted before the revenue authority that

Keshav was looking after her and was cultivating her land

for the last 15 years.

(vi) The plaintiffs filed the suit in question in December 1991

after Hardei had died, and two and a half years after their

application for mutation was rejected on 13th May 1989.

9. The concurrent findings of the lower courts delve into the context

and factual aspects surrounding the primary evidence viz., gift

deed, to conclude that the plaintiffs case lacks base for a bona

fide claim for decree of declaration. Appreciation of evidence is an

exercise based on facts and circumstances where the

preponderance of probability can take varying form and

configurations. What facts and circumstances have to be

established to prove the execution of a document depends on the

pleas put forward. Ordinarily, no one is expected to sign or

execute a document without knowing its contents, but if it is

pleaded that the party executing the document did not know the

contents thereof then it may, in certain circumstances, be

necessary for the party seeking to prove the document to place

material before the court to satisfy it that the party who executed

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the document had the knowledge of its contents.1

 Considering that

the very origin of the gift deed was disputed by the executant

during her lifetime, the lower courts were right in weighing the

evidence of the gift deed on the touchstone of its validity first,

rather than its form and content. The fact in issue in the present

case is the voluntariness and animus necessary for the execution

of a valid gift deed, which is to be examined on the basis of

evidence led by the parties who could depose for the truth of this

fact in issue. Decision and determination of the fact in issue is by

examination of the oral evidence of those persons who can

vouchsafe for the truth of the facts in issue. The impugned

judgment in the second appeal by the High Court, unfortunately,

chose to ignore and not deal with the fact in issue in the

background of the case, but was completely influenced by the

evidence led to support execution and registration of the

document, and not whether execution was voluntary and in

exercise of unfettered will to effect gratuitous transfer of land in

favour of the plaintiffs. When a person obtains any benefit from

another, the court would call upon the person who wishes to

maintain the right to gift to discharge the burden of proving that he

exerted no influence for the purpose of obtaining the document.

1 Rao Saheb v. Rangnath Gopalrao Kawathekar (Dead By LRs) and Others, (1972) 4 SCC 181.

Civil Appeal No. 364/2022 Page 10 of 13

Corollary to this principle finds recognition in sub-section (3) to

Section 16 of the Indian Contract Act, 1872 which relates to

pardanashin ladies. The courts can apply this principle to old,

illiterate, ailing or infirm persons who may be unable to

comprehend the nature of document or contents thereof. Equally,

one who bargains in the matter of advantage with a person who

places confidence in him is bound to show that a proper and

reasonable use has been made of that confidence. The burden of

establishing perfect fairness, adequacy and equity is cast upon

the person in whom the confidence has been reposed. Therefore,

in cases of fiduciary relationships when validity of the transaction

is in question it is relevant to see whether the person conferring

the benefit on the other had competent and independent advice.2

10. The question whether a person was in a position to dominate the

will of the other and procure a certain deed by undue influence is

a question of fact, and a finding thereon is a finding of fact, and if

arrived at fairly in accordance with the procedure prescribed, it is

not liable to be reopened in second appeal.3

 In the present case,

the plea as to invalidity of the gift deed is not to be decided on

general presumption and assertion. Concurrent findings of facts

2 Krishna Mohan Kul alias Nani Charan Kul and Anr. v. Pratima Maity and Ors., (2004) 9 SCC 468.

3 Ladli Parshad Jaiswal v. The Karnal Distillery Co. Ltd., Karnal and Others, AIR 1963 SC 1279; and

Bellachi (D) by LRs. v. Pakeeran, (2009) 12 SCC 95.

Civil Appeal No. 364/2022 Page 11 of 13

arrived at in the present case were based upon a holistic

examination of the entire evidence relating to execution and

validity of the gift deed. The lower courts did not adopt a legalistic

approach but took into account not one but several factual facets

to accept the version given by Keshav that the gift deed was not a

valid document. These concurrent findings are not perverse but

rather good findings based upon cogent and relevant material and

evidence on record. These findings of the facts can be interfered

in the second appeal only if they are perverse or some gross

illegalities have been committed in arriving at such findings. To

reverse the findings is not only to assess errors but also deal with

the reasons given by the court below and record findings and

grounds for upsetting the conclusion.4

11. We have elaborately referred to the reasoning given by the trial

court, which the first appellate court had independently examined

and affirmed. The findings were recorded after in-depth

consideration of the factual matrix, including the statement of

Hardei, an illiterate and aged woman, who during her lifetime in

1989, had staunchly refuted having executed any gift deed

transferring the property to the plaintiffs. Hardei was residing with

4 See Nazir Mohamed v. J. Kamala and Others, 2020 SCC OnLine SC 676; Hero Vinoth (Minor) v.

Seshammal, (2006) 5 SCC 545.

Civil Appeal No. 364/2022 Page 12 of 13

Keshav, who was looking after her and providing for all her needs.

Further, the plaintiffs did not take any steps to get the mutation of

the land records for about four years from 1st January 1986 till

1989. The rejection by the revenue authority in 1989 remained

unchallenged till Hardei died in 1991. The views and findings

recorded by the lower courts are well reasoned and have taken

into account several factors that repel and contradict the claim of a

valid execution of the gift deed by Hardei favouring the plaintiffs.

12. Recording the aforesaid, we allow the present appeal.

Consequently, we set aside the impugned judgment and uphold

the decision and decree passed by the trial court and affirmed by

the first appellate court. There will be no order as to costs.

......................................J.

(M.R. SHAH)

......................................J.

(SANJIV KHANNA)

NEW DELHI;

JANUARY 24, 2022.

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