Supreme Court of India
Keshav vs Gian Chand on 24 January, 2022Author: Sanjiv Khanna
Bench: M.R. Shah, Sanjiv Khanna
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 364 OF 2022
KESHAV AND OTHERS ….. APPELLANT(S)
GIAN CHAND AND ANOTHER ….. RESPONDENT(S)
SANJIV KHANNA, J.
The judgment under challenge dated 8 th 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
Signature Not Verified
Digitally signed by R
biswas in Mouza Jakharal, and 1.17 bighas being 1/3 rd 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 4 th/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 Sub-
Registrar, 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
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 17 th 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 23 rd 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
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 8 th 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 1 st
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
(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.
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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.
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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.
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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 1 st 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.
JANUARY 24, 2022.
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