JUDGMENT Prakash Krishna, J.
1. This is defendant's second appeal. It arises out of original suit No. 171 of 1974 filed by Smt. Triveni Devi, for declaration and cancellation of a gift deed dated 15-12-1962 executed by her in favour of the present defendant appellant, who is the nephew of her husband.
2. The suit was instituted on the allegations that the plaintiff is the exclusive owner and in possession of two houses Nos. 1711 and 1722 situate in Mohalla Anta Para. She has been residing over a portion of the house and the rest is in possession of the tenants. She is an illiterate old and Pardanasheen lady and is not aware about the legal formalities. The defendant-appellant used to visit the plaintiff off and on and served her about 10 years ago when she was ill. The defendant provided medicine etc. After gaining her confidence he one day suggested that to save her property and to exclude the other brothers of the defendant who would be otherwise legal heirs after the death of the plaintiff execute some document so that he alone be exclusive owner of the property to be left by her. She agreed to the suggestion of the defendant and went to District Court. There the defendant got prepared some document and obtained her signature on few papers on the pretext that after her death he would become the exclusive owner of the property and till her death she will continue to be owner of the property. The plaintiff believing the statements made by the defendant put her thumb mark on the document which was got prepared by the defendant blindly. About 15 days prior to the filing of the suit she came to know that the defendant is making negotiations to sell her two houses and she became suspicious thereof and then got the document read over. It then transpired that the defendant has become the owner of the property during her lifetime and as such the defendant played fraud on her. The plaintiff claimed that she is still in possession of the property in question in her own right.
3. The suit was contested on number of pleas but the fact that the plaintiff is related to him and she is an illiterate, old and Pardanasheen lady has not been controverted in the written statement. It has been pleaded that the plaintiff after fully understanding the contents of the document voluntarily executed the gift deed. The gift deed was executed as he had been residing with the plaintiff since his childhood and the plaintiff had great love and affection for him. In that circumstance the deed in question was executed. She is in occupation of the house in question not as an owner. On the other hand after execution of the document in question (gift deed) the defendant is in possession of the disputed house as owner and it is defendant who has let out the portion of it to the tenants. Plea of estoppel and acquiescence was also raised.
4. Parties led the evidence in support of their respective cases. Eight issues were framed by the trial Court. The trial Court dismissed the suit on the finding that the execution of the deed in question dated 15-12-62 is fully established. In view of this finding it. was further held under issue No. 5 that the suit is lime barred as the gift deed was executed on 15-12-62 and, the suit for its cancellation was filed on 23rd February, 1973. This decree has been set aside in Civil Appeal No. 146 of 1978 by the District Judge Mathura by its judgment and decree dated 22-12-1979.
5. The appeal was admitted on the substantial questions of law which read as follows:--
"(A) Whether in view of the plaintiff, own admission that the only fraud committed by the appellant was that he was trying to sell the house and was not caring for her and her food, the suit could be dismissed?
(B) Whether the nature of document was such which did carry out the intention of the plaintiff and as such there was no fraud?
6. Heard the counsel for the parties and perused the record. The learned counsel for the appellant submitted that the findings recorded by the Court below are perverse and against the material on the record. The burden to prove that fraud was committed lay on the plaintiff. The case of the plaintiff was that she wanted to give the property in dispute to the defendant after her death. She has now expired. The cause of action for filing the suit was that the defendant appellant refused to take care of the plaintiff and failed to provide her food. She having been died the cause of action does not survive and the suit should be dismissed. On the other hand the learned counsel for the respondent submitted that the appeal is concluded by finding of fact and has placed reliance upon the judgment of the Supreme Court given in the case of Veerayee Ammal v. Seeni Ammal, (2001) 9 JT (SC) 145 : (AIR 2001 SC 2920). The learned counsel for the appellant in support of the appeal placed reliance upon certain portions of the statement of the plaintiff PW/1 recorded by the Court in forma pauperis proceedings. The plaintiff in her statement for permission to sue as an indigent person has stated that she has no means to pay the Court-fees. Her statement was also recorded touching the merit of the case though it was not at all required at that time. She has stated that she has come to know that the defendant is trying to sell the house about 5 years back and one of the tenants was let in by the by the defendant. An attempt was made by the learned counsel for the appellant to show that from this evidence it is clear that it is defendant who is in possession of the house in question as he lets out the portion to a tenant and has also paid municipal taxes.
7. From the undisputed fact which emerges from the record, it is that the plaintiff was living all alone in her house which she got from her mother's side. The defendant used to visit her. He is also closely related to the plaintiff being nephew of plaintiffs husband. The plaintiff was ill for certain duration of Lime and taking advantage of her illness the defendant gained the confidence of the plaintiff. The defendant has pleaded in para 4 of the written statement that he resided with the plaintiff since his childhood as his mother expired during his childhood. The plaintiff had great love and affection towards him. In the written statement the allegation made in the plaint that the plaintiff is an old aged week and illiterate lady has not been denied. On the other hand in the para 2 of the written statement there is specific admission that the plaintiff is old and illiterate lady. But she is clever. Law is well settled that in such circumstances when the parties are in fiduciary relationship and a person is in position to dominate the will of another person, the burden to prove that the transaction in question is a genuine transaction lies upon a person in whose favour the document has been executed. The first appellate Court has considered this aspect in a great detail. It has concluded that she agreed to execute some document so that after her death her property may be inherited by the defendant alone and not by his two other brothers. This statement of the plaintiff shows that she had no intention of giving the property outright to the defendant so that she was deprived of the property in her life time. The appellate Court has rightly appreciated the evidence on the record and placed the burden, to prove that the transaction in question is genuine transaction on the defendant. The defendant has to establish that the deed in question was executed by the plaintiff voluntarlly, out of her own free will and she really intended the deed in question.
8. The appellate Court after taking into consideration the attending circumstances and subsequent conduct of the parties that the defendant wanted to keep the matter secret as long as possible also goes to show that the defendant has obtained this deed by practising fraud. The most important feature of the case is that the defendant has admitted that it was the plaintiff who continued to realize the rent from the tenants. This part of the judgment was not challenged and could not be challenged by the learned counsel during the course of hearing of the second appeal. It does not stand to reason as to why the plaintiff will deprive herself from the property in question by executing the gift deed as by doing so she would be losing the only source of her livelihood.
9. The plaintiff who is an old and illiterate widow had some soft corner with the defendant and for that purpose she wanted to give the disputed property to the defendant after her death. The defendant taking the advantage of the situation got executed the document in question. I have also perused the document in question. In the document in question it is mentioned that the plaintiff shall continue to reside in the disputed house. It is drafted in such manner, it is difficult so as to distinguish it from will from the point of view of an illiterate old and widow lady. In the earlier part of the document it has been mentioned that the defendant has been looking after her and she is fully satisfied from his service. His behaviour has been just like a good son and she has much love and affection than a son. Her internal desire is that she may give him her two houses during her life time and she has delivered the possession of the same. The findings recorded by the Court below are findings of fact. Except making a general comment, the learned counsel for the appellant could not point out any perversity in the judgment or misreading of evidence by the Court below.
10. In the result there is no merit in the appeal. The appeal is dismissed.