High Court of Judicature at Allahabad
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Mahesh Dutt & Others v. Smt. Ram Pyari Devi - SECOND APPEAL No. 1755 of 1979  RD-AH 391 (8 January 2007)
Court No. 30.
Second Appeal No. 1755 of 1979.
Mahesh Dutt and others ... Defendants-Appellants
Sm. Ram Pyari Devi & others ... Plaintiffs-Respondents.
Hon. Sunil Ambwani, J.
1. Sri A.K. Misra appears for the appellants. Sri R.S. Misra represents the respondents.
2. The cause shown is sufficient. The delay condonation application is allowed. The order dated 6.12.2006 dismissing the appeal for want of prosecution is recalled. The appeal is restored to its original number and was heard.
3. The application filed by the respondents to abate the second appeal on the ground that the consolidation operations have intervened does not merit consideration as the gift deed dated 6.6.1970 sought to be cancelled is a voidable document. The application is rejected.
4. The application filed by Sri A.K. Misra under Order 47 Rule 21, C.P.C. to lead additional evidence after 37 years of the filing of the suit and 28 years of filing of this second appeal seeking to bring on record certain facts namely that Sri Capildeo, the husband of Smt. Jasodra Devi, the executant of the gift deed, at the age of 90 years, had migrated to West Indies and that Noble Laureate Sri V.S. Naipaul belongs from the family of Sri Capildeo, may be very attractive but does not merit consideration at this stage. The book "Lotus and the Dagger" a Compilation of Capildeo's speeches and the lineage given in the book is not a new discovery. The name of late Jasodra Devi is no where in the family tree. Admittedly additional evidence at this stage filed by defendant-appellants, the Pujaries and strangers to the family, will need to remand the matter to trial court, after thirty seven years. The application for additional evidence is, as such, rejected.
5. The O.S. No. 162 of 1978 was filed by Tapsi Dubey the uncle's son of the husband of Jasodra Devi for cancellation of gift deed dated 6.6.1970, in favour of he Pujari's (the defendant) on the allegation of fraud and misrepresention. The suit was decreed on 27.3.1978. A Civil Appeal No. 162 of 1978 was dismissed on 23.5.1979 with concurrent findings.
6. Both the courts below have held that Smt. Jasodra Devi did not execute the gift deed in her sound and indisposing mind inasmuch as she was 90 years old and infirm. The Registrar made a record on the gift deed that she was brought by the beneficiaries with support . She was not in a position to understand her affairs. Sri A.K. Misra has made an attempt to argue that once the Registrar was willing to allow the document to be registered on the ground that she is in good senses and that there was some evidence on record that her daughter used to visit her from abroad, the suit for cancelltion of gift deed could not be decreed. These circumstances, in my opinion, could not vitiate the findings of fact recorded by both the courts. The defendants could not discharge the burden shifted on them by the evidence of the plaintiff of due execution of gift deed by late Jasodra Devi, an old illiterate and ill lady of ninety years. Voluntarily in her sound and disposing mind. There is no substantial question of law worth consideration in the second appeal.
The second appeal is dismissed with costs throughout.
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