Keshav vs Gian Chand, SC 2022

FACTSGian Chand and Dhanbir in 1991, instituted Civil Suit for declaration that late Hardei had gifted the land to them during her lifetime vide gift deed in1985 which was registered with the Sub- Registrar, Salooni, on 1st January 1986. Gian Chand and Dhanbir were put in possession of the land by Hardei. Keshav in connivance with defendants No. 2 to 6 had got mutation recorded in his favour, which mutation was wrong and illegal and did not affect their rights under the gift deed. Gian Chand and Dhanbir had prayed for: (i) decree of declaration that they were owners in possession of the land; (ii) a decree of permanent injunction restraining Keshav and others from interfering with their possession of the land; and (iii) in case they are disposed from the land by the defendants during the pendency of the suit, a decree for possession.

Keshav and other defendants contested the suit on several grounds including validity of the relied upon gift deed. Keshav claimed that he was a tenant in occupancy of the land for over 15 years, a fact admitted by Hardei before the revenue authorities. Keshav had therefore acquired rights over the land. Hardei, during her lifetime, had denied execution of the gift deed and opposed the request of mutation of the land in favour of Gian Chand.

The Sub-Judge 1st Class, Chamba, Himachal Pradesh, in 1997 by a judgment and decree while accepting that the gift deed was a registered document, held that the document was of decrepit origin. The gift deed was not signed by Gian Chand. There was contradiction and lack of clarity whether post the execution and before registration, the gift deed was handed over to Hardei, the first plaintiff or to the other plaintiff. Hardei used to reside with Keshav, who would look after and take care of her. Keshav also performed her last rites. Given these facts, execution of a gift deed by Hardei in favour of Gian Chand and Dhanbir would not arise.On the question of possession of the land, the trial court agreed with Keshav that he was in possession of the land as a tenant of Hardei for the last 15 years. The suit preferred by the plaintiffs was, accordingly, dismissed.

Appeal in 1998, preferred by the plaintiffs before the District Judge, Chamba Division, was also dismissed with the first appellate court evaluating the evidence on record to affirm that the execution of the gift deed by Hardei in favour of the plaintiffs was a delusion.


The second appeal, in 1999, preferred by the plaintiffs was allowed by the High Court vide its decision in June 2010, reversing the concurrent findings on the ground that the trial court and the first appellate court had misread and misinterpreted the documentary and oral evidence.

Sc vide order in August 2017 set aside the judgment and remitted the matter to the High Court for fresh hearing after framing of an appropriate substantial question of law. This Court observed that the substantial question of law so framed by the High Court was vague and not proper.

By the impugned judgment dated in August 2018, the High Court has allowed second appeal of 1999, primarily for the reasons that interms of execution, the gift deed satisfies the legal mandates of Sections 122 and 123 of the Transfer of Property Act, 1882 and being a registered document. The fact that Hardei was residing and living with Keshav was not a good ground to doubt the execution of the gift deed. The findings as recorded by the trial court and the first appellate court were not based on a proper and mature appreciation of evidence on record. Answering the substantial questions of law in favour of the plaintiffs, the second appeal was allowed and the suit was decreed.

CAUSEJudgment passed by the Single Judge of the High Court of Himachal Pradesh at Shimla which allowed the second appeal and decrees the suit filed by the plaintiffs Gian Chand and Dhanbir, setting aside concurrent findings of the trial court and the first appellate court.

ISSUE -1) whether the gift was validly executed 2) The voluntariness and animus necessary for the execution of a valid gift deed.


JUDGEMENT – The fact in issue in the present case is the voluntariness and animus necessary for the execution of a valid gift deed, which is to be examined on the basis of evidence led by the parties who could depose for the truth of this fact in issue. Decision and determination of the fact in issue is by examination of the oral evidence of those persons who can vouchsafe for the truth of the facts in issue. The impugned judgment in the second appeal by the High Court, unfortunately, chose to ignore and not deal with the fact in issue in the background of the case, but was completely influenced by the evidence led to support execution and registration of the document, and not whether execution was voluntary and in exercise of unfettered will to effect gratuitous transfer of land in favour of the plaintiffs. When a person obtains any benefit from another, the court would call upon the person who wishes to maintain the right to gift to discharge the burden of proving that he exerted no influence for the purpose of obtaining the document.

Corollary to this principle finds recognition in sub-section (3) to Section 16 of the Indian Contract Act, 1872 which relates to pardanashin ladies. The courts can apply this principle to old, illiterate, ailing or infirm persons who may be unable to comprehend the nature of document or contents thereof. Equally, one who bargains in the matter of advantage with a person who places confidence in him is bound to show that a proper and reasonable use has been made of that confidence. The burden of establishing perfect fairness, adequacy and equity is cast upon the person in whom the confidence has been reposed. Therefore, in cases of fiduciary relationships when validity of the transaction is in question it is relevant to see whether the person conferring the benefit on the other had competent and independent advice.


The question whether a person was in a position to dominate the will of the other and procure a certain deed by undue influence is a question of fact, and a finding thereon is a finding of fact, and if arrived at fairly in accordance with the procedure prescribed, it is not liable to be reopened in second appeal. In the present case, the plea as to invalidity of the gift deed is not to be decided on general presumption and assertion.

Concurrent findings of facts arrived at in the present case were based upon a holistic examination of the entire evidence relating to execution and validity of the gift deed. The lower courts did not adopt a legalistic approach but took into account not one but several factual facets to accept the version given by Keshav that the gift deed was not a valid document. These concurrent findings are not perverse but rather good findings based upon cogent and relevant material and evidence on record. These findings of the facts can be interfered in the second appeal only if they are perverse or some gross illegalities have been committed in arriving at such findings. To reverse the findings is not only to assess errors but also deal with the reasons given by the court below and record findings and grounds for upsetting the conclusion.

Hardei, an illiterate and aged woman, who during her lifetime in 1989, had staunchly refuted having executed any gift deed transferring the property to the plaintiffs. Hardei was residing with Keshav, who was looking after her and providing for all her needs. Further, the plaintiffs did not take any steps to get the mutation of the land records for about four years from 1st January 1986 till 1989. The rejection by the revenue authority in 1989 remained unchallenged till Hardei died in 1991. The views and findings recorded by the lower courts are well reasoned and have taken into account several factors that repel and contradict the claim of a valid execution of the gift deed by Hardei favouring the plaintiffs.


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