The burden of proof to establish fraud and misrepresentation in executing a gift deed lies with the plaintiff, which was not met in this case.

JUDGMENT :

Ajay Mohan Goel, J.

By way of this Regular Second Appeal, the appellant assails the judgments and decrees passed by the learned Courts below, in terms whereof, the suit for declaration and permanent prohibitory injunction filed by the appellant was dismissed and same was the fate of the appeal.

2. Having heard learned counsel for the parties and having perused the record of the case, which was called for by the Court, this Court does not finds any substantial question of law involved in this appeal. The suit for declaration and permanent prohibitory injunction was filed by the appellant-plaintiff on the plea that the plaintiff was a rustic aged villager and the defendant requested and persuaded the plaintiff to Will his Natour land in his favour in lieu of maintaining the plaintiff and his wife throughout his life. According to the plaintiff, the defendant proved to be a very clever and dishonest person, who besides preparing a Will also got a gift deed prepared and he fraudulently obtained the thumb impression of the plaintiff upon the gift deed by misrepresenting that it was a Will and on account of illiteracy and old age, as the plaintiff could not himself go through the contents of the documents so it was in this backdrop that in connivance with the scribe, witnesses and revenue officials, a false, forged and fictitious gift deed was got registered and accordingly a declaration was sought that the gift deed declared to be illegal void and inoperative against the plaintiff and defendant be restrained from interfering and taking forcible possession of the suit land.

3. The defence of the defendant before the learned trial Court was that the gift deed was executed by the plaintiff out of his own free will and volition and no fraud was played upon the defendant, as alleged. It was further the case of the defendant that the gift deed was prepared at the instance of the plaintiff. Contents thereof were read and explained to the plaintiff and he executed the same voluntarily in favour of the defendant.

4. On the basis of the pleadings of the parties, learned trial Court framed the following issues:-

“1. Whether gift deed dated 29.06.2011 is result of fraud and mis-representation if so, its effect? OPP.

2. Whether the plaintiff is entitled to permanent prohibitory injunction as prayed for?OPP.

3. Whether the suit is not maintainable in the present form?OPD.

4. Whether the plaintiff has not cause of action and locus standi to file this suit?OPD.

5. Whether the plaintiff has not approached the Court with clean hand is so, its effect?OPD.

6. Relief.”

5. On the basis of the evidence led by the parties in support of their respective contentions, the issues were decided as under:-

“Issue No.1: No

Issue No.2: No

Issue No.3: Yes

Issue No.4: Yes

Issue No.5: No

Relief: The suit of plaintiff is dismissed as per operative part of judgment.”

6. Learned trial Court dismissed the suit by holding that the plaintiff had failed to prove that the gift deed was an outcome of fraud and misrepresentation. Learned Appellate Court affirmed these findings by holding that the plaintiff had failed to rebut the statutory presumption that was there in favour of the registered gift deed.

7. In the considered view of this Court, the findings which have been so returned by the learned Courts below cannot be termed to be perverse. Learned trial Court relied upon the statement of four witnesses produced by the defendant. These witnesses, including the defendant, who entered the witness box as DW-1, Jagdish, DW-2, Paras Ram, Deed Writer, DW-3, Gian Chand, who was an marginal witness and DW-4, Paras Ram, who was an independent witness.

8. I have carefully gone through t