The main legal point established in the judgment is the requirement for full particulars of undue influence in the pleadings and the burden of proof in cases involving the execution of a gift deed under alleged undue influence.

Kuldip Singh, J The plaintiff and proforma defendant No.2 are aggrieved by the judgment, decree dated 17.1.2001 passed by learned District Judge, Chamba in Civil Appeal No.62 of 2000, affirming judgment, decree dated 24.7.2000 passed by learned Sub Judge, Chamba in Civil Suit No.146 of 1994. In this judgment the parties are referred as plaintiff and defendants.

2. The facts in brief are that Kumheli filed a suit for declaration and possession, pleading that land measuring 91 bighas 1 biswa in Mohal Ghundera, Tehsil Salooni in the jamabandi 1990-91 has been recorded in the name of Lahori and proforma defendants. Kumheli died and she wassubstituted by Himti. It has been pleaded that Kumheli enjoined the conjugal society of her husband Lahori for more than forty five years as his legal wedded wife. Lahori seven or eight years back developed illegal relations with Maya defendant No.l. Kumheli filed maintenance petition under Section 125 Cr.P.C. against Lahori which was allowed. Kumheli filed execution and also civil suit for permanent prohibitory injunction restraining Lahori from alienating immovable property including the suit land.The defendant No.1 dominated the Will of Lahori and succeeded in getting the suit land transferred in her favour by alleged gift, playing fraud and inducement etc.

3. The factum of gift came to the knowledge of Kumheli after the death of Lahori in the year 1994. The defendant No.1 was asked to cancel the gift deed as well as mutation No.133 as she is not the legal heir of Lahori. The gift has been made for immoral purposes against the public policy and is liable to be set aside. The defendant No.1 refused to cancel the gift and therefore, suit was filed by Kumheli for declaring gift dated 15.9.1993 attested on 23.9.1993 alongwith mutation No.133 dated 31.1.1994 null and avoid, in operative against the rights of plaintiff with decree of possession of the suit land.

4.The suit was contested by defendant No.1 by filing written statement. The preliminary objections of maintainability, cause of action, estoppel were taken. On merits, it was pleaded that Lahori contracted second marriage with defendant No.1. Kumheli harassed Lahori till his death. Lahori executed gift deed voluntarily in favour of defendant No.1. The prayer has been made for dismissal of the suit.

5.On the pleadings of the parties the following issues were framed:-

1.Whether the gift deed dated 15.9.1993 attested on 23.9.1993 executed by Shri Lahori in favour of defendant No.1 is liable to be set aside as alleged? ....OPP 2.Whether mutation No.133 attested in favour of defendant No.1 is wrong and illegal as alleged? ...OPP 3. Whether the plaintiff has a cause of action?. .OPP 4. Whether the plaintiff is entitled to a decree for possession of the suit land as alleged?. .OPP 5. Whether the suit is not maintainable in the present form? . .OPD 6. Whether the plaintiff is estopped from filing the present suit by her act and conduct?..OPD 7. Whether defendant No.1 is the wife of Shri Lahori

as alleged, if so, its effect?..OPD8.Relief

6.Issues No.,1 ,2,4,6 and 7 were answered in negative, issues No.3,5 in affirmative and the suit was dismissed on 24.7.2000. In appeal learned District Judge on 17.1.2001 has affirmed the judgment, decree of the trial Court, hence second appeal which has been admitted on following substantial question of law:-

“Whether a presumption can be drawn under the law that the concubine is always in a position to exercise undue influence in the matter of execution of gift in her favour, particularly when the donor has thrown out of the house his legally wedded wife?”

7. Heard and perused the record.On behalf of the appellants, it has been submitted that defendant No.1 was concubine of Lahori. The defendant No.1 dominated the Will of donor Lahori. The donor turned out Kumheli his legally wedded wife from matrimonial home.Lahori was under the influence of donee defendant No.1, who procured gift deed Ex.P-5 from Lahori. The