Fraud vitiates a gift deed, rendering it void; essential for parties to present original documents.

1. Leave granted.

2. This appeal challenges the judgment and order dated 03-11-2017 passed by the High Court of Judicature at Patna in Second Appeal No. 333/2017.

3. By registered gift deed dated 01.12.1998, one Yadunandan Mistri, who was issueless, gifted an extent of 2.92 acres of land in favour of the second respondent, the wife of his nephew, on the assumption that his nephew i.e. the first respondent would take care of Yadunandan and his wife in their old age.

4. However, finding himself to be victim of fraud and undue influence, said Yadunandan immediately sought to cancel the gift vide cancellation deed dated 12.12.1998.

5. A Bajidawa was later executed by the first respondent relinquishing the claim over the property given vide deed of gift dated 01.12.1998.

6. Since despite said Bajidawa, the land was not made over, Civil Suit No. 41/2001 (renumbered as 148/2001) was filed by said Yadunandan in the Court of Additional Sessions Judge - II, Gaya, for declaration that the gift deed dated 01.12.1998 was obtained by practicing fraud and undue influence and therefore, be declared to be void.

7. During trial, a photocopy of Bajidawa dated 20.03.2001 was produced on record and was marked as Exhibit - 2.

8. The brother of the first respondent was examined by Yadunandan as PW - 5 who deposed to the execution of the Bajidawa dated 20.03.2001.

9. One of the issues framed for consideration by the Trial Court was: -
'8. Is the alleged gift deed dated 01.2.1998 in favour of defendant number 2, void and ineffective and not binding on plaintiff.'

10. Considering the circumstances on record, the Trial Court by its judgment and order dated 04.11.2006 decreed the suit. Insofar as the matter pertaining to Bajidawa was concerned, the observations of the Trial Court were: -
'The plaintiff's counsel also drew attention towards Bazidawa in favor of plaintiff in which he has accepted that the has wickedly with intention of usurping the property of plaintiff serve him to win his trusts and thus got a gift deed executed in the favor of his wife which is completely void and they did have no objection to get it cancelled from the court. The learned counsel for defendants asserts that the original documents have not been written by the defendant and rather a photocopy has been declared as forged by defendant. Therefore this document is invalid and has no importance. He further pleaded that even if the contents of Bazidawa are supposedly true, they are the statements of defendant 1 only while the gift deed is not affected in any manner as it affects the rights of Defendant No. 2 who has acquired rights therein. This is why the rights acquired by Defendant no. 2 in this respect, are not affected in any manner. In their reply the plaintiff has pleaded that the burden of proof lies on defendant to prove the Bazidawa as forged. When the evidence in this regard are observed, it is quite clear that the plaintiff has given evidence that the original Bazidawa is lost and so they have submitted a photocopy. It is remarkable that P.W.S Balram Vishwakarma who is witness to Bazidawa has testified in the court that the Bazidawa has been written on direction of the defendant 01 and he has signed it after understanding the crux of the same. Another important fact is that one of the witness to the Bazidawa is Vishwakarma i.e. Brother of defendant but he never testified in the court in opposition of the facts in the Bazidawa. P.W. 05 Balram Vishwakarma has in Para 23 of his Cross, clearly stated that the Bazidawa was written in front of him and that Mahender said that he will write the Bazidawa as long as he gets a part of the land mentioned in the Kewala. Because of this, even after the cancellation Deed