The voluntary execution of a gift deed, acceptance of the gift by the donee, and proper appreciation of evidence are crucial in property disputes.

Surjit Singh, J(Oral) The present appeal against the judgment and decree, dated 7th April, 1999, of learned District Judge, was admitted on the following substantial question of law: “Whether the courts below have mis-read and mis-interpreted the documentary as well as oral evidence resulting in gross mis-carriage of justice?”

2. By the aforesaid judgment and decree dated 7thApril, 1999, learned District Judge dismissed the appeal against the judgment and decree dated 17th December, 1997 of learned Sub Judge 1st Class, Chamba, whereby plaintiffs’ suit for declaration, with alternative relief of possession, was dismissed.

3. Plaintiffs filed a suit for declaration that they were owners in possession of 13 bighas 8 biswas land, being 7/20th share of 38 bighas 6 biswas land, which was owned and possessed by late Smt. Hardei. They pleaded that said Smt. Hardei was their father’s sister and that she executed a gift deed, in respect of her share in the suit land, in their favour on 23rd December, 1985 and got that deed registered with the Registrar of Documents, on 1st January, 1986. It was stated that said Hardei died in the year 1991 and after her death, the defendants, without any right, title or interest in the suit land, started interfering in their possession. Besides seeking a decree of declaration, in the aforesaid terms, they sought issuance of permanent prohibitory injunction, restraining the respondents-defendants from interfering in their possession over the above-described land. They further pleaded that in case they were dispossessed by the defendants, decree for possession be passed in their favour.

4. Defendants contested the suit. They claimed that defendant No.1 Keshav had been inducted as tenant on the suit land by Hardei some 15-16 years prior to her death and that ever since he had been in possession as tenant and was paying rent, in kind, by sharing the produce of the land with said Hardei, to the extent of 1/4th.

5. Learned Sub Judge held that gift deed had not been voluntarily executed by Hardei. It was also held that the conduct of the plaintiffs also indicated that no gift had been made in their favour. Further, it was held that gift was invalid, on account of the possession of the gifted property having not been delivered to the plaintiffs by Hardei. Consequently, the suit was dismissed.

6. In appeal, learned District Judge endorsed the findings of the learned trial Court that gift deed had not been executed voluntarily and that the conduct of the plaintiffs also indicated that gift deed was not genuine.

7. I have heard the learned counsel for the parties and gone through the record.

8. Gift deed is Ex. PW-3/A. It purports to have been executed by Hardei on 23rd December, 1985, in the presence of Dhian Singh and Devia. Scribe of the gift deed was Henry Mathews. By the time the recording of evidence commenced, Henry Mathews (the scribe) and Dhian Singh, one of the attesting witnesses, were no more. Anand Sagar, an apprentice of Henry Mathews, was examined as PW-1, who stated that gift deed was written in the hand of Henry Mathews and was also signed by him as scribe.

9. One of the plaintiffs, namely Gian Chand, appeared as PW-2 and testified about the execution of gift deed Ex. PW-3/A, by deceased Hardei, in favour of the plaintiffs. He stated that Hardei died in the year 1991. He also stated that mutation was entered, on the basis of gift deed, but the defendants, in connivance with the revenue

officials, got the mutation entry rejected. He stated that gift deed was presented for registration to the Sub Registrar, Salooni and it was attested in the presence of Rattan Chand, whom the plaintiffs examined as PW-3, and one Prithvi Raj, who had, by that time, died.

10.One of the attesting witnesses of the gift deed, namely Devia, was examined on commission. He is PW-4. According to him, Hardei herself had got the gift deed scribed from a Deed Writer at Chamba in favour of the plaintiffs.

11.O