( 2026:HHC:16402 ) IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA RSA No. 36 of 2026. Decided on : 8 th May, 2026. Sh. Bhawani Parsad (since deceased) through his LR Smt. Sonam Palzom ...Appellant. Versus Smt. Chander Kala ....Respondent. Coram: The Hon’ble Mr. Justice Romesh Verma, Judge. Whether approved for reporting?1 For the Appellant: Mr. Lokesh Thakur, Advocate, vice Mr. G.R. Palsra, Advocate. For the Respondent: Mr. Panku Chaudhary and Mr. Rakesh Kumar Chaudhary, Advocates. Romesh Verma, Judge (Oral). The present appeal arises out of the judgment and decree, as passed by learned Additional District Judge, Kullu, District Kullu, H.P.. dated 06.01.2026, whereby the appeal filed by the present appellant was dismissed and the judgment and decree, as passed by learned Senior Civil Judge, Kullu, District 1 Whether reporters of the local papers may be allowed to see the judgment? 2 ( 2026:HHC:16402 ) Kullu, H.P., dated 01.08.2024, was afÏrmed, whereby the suit for declaration filed by the appellant/plaintiff was dismissed. 2. The brief facts of the case are that original plaintiff Bhawani Parsad had filed a suit for declaration on the ground that he is owner in possession of land comprised in Khata No. 625, Khatauni No.842, Khasra No.3425, measuring 00-16-06 bigha to the extent of 1/3 share out of total land 02-09-00 bighas, located at Muhal and Phati Kashawari, Kothi Kais, Tehsil Bhuntar, District Kullu, H.P. It has been averred that he is issueless, old and sick person. He has been taking treatment for his ailment since January, 2016. Wife of the plaintiff also left him during his ailment. She had also filed petition under Section 125 of the Cr.P.C. against him. Defendant is the elder sister of the plaintiff. She visited the house of the plaintiff during his illness and inquired about his ailment. She started looking after him in his house. 3. As per the plaintiff, the defendant told him that in case he requires services of the defendant, he should execute a registered Will in favour of her sons. On this understanding, on 16.07.2016, defendant along with her sons took the plaintiff to 3 ( 2026:HHC:16402 ) Bhuntar and had executed a document by saying that it is a registered Will. After execution of the Will, defendant started neglecting him. Thereafter, he was informed by the defendant that he has executed a gift deed in her favour. Plaintiff inquired Patwari Halqua and came to know that the defendant had got executed a gift deed in her favour instead of Will in favour of her sons. Since, the plaintiff was not well and he was suffering from various ailments, therefore, the defendant by taking the undue advantage of his illness, succeeded in executing a forged and fictitious gift deed through illegal means. Therefore, the plaintiff approached the learned trial Court by filing a suit for declaration praying that the gift deed dated 16.07.2016 allegedly executed in favour of the defendant be declared as null and void being the result of fraud and misrepresentation. 4. The suit was contested by the defendant by filing written statement raising various preliminary objections with respect of maintainability and estoppel etc. On merits, it was stated in the written statement that on the basis of gift deed dated 16.07.2016, now the defendant is owner in possession of the suit 4 ( 2026:HHC:16402 ) land being the donee of the gift deed bearing gift deed No. 1047 dated 16.07.2016. On the strength of gift deed, necessary mutation bearing No.3433 was duly attested in favour of the defendant on 23.08.2016. It has been stated in the written statement that the gift deed was executed by the plaintiff out of love and affection in favour of the defendant since she used to render services to the plaintiff while he was suffering from various ailments. The gift deed was executed in favour of the defendant by the plaintiff out of his free will and volition. Therefore, the same is valid and legally enforceable. 5. Learned trial Court on 24.12.2019, framed the following issues:- “1. Whether the plaintiff is entitled for declaration that he is owner and in possession of the suit land, as prayed for? OPP. 2. Whether the gift deed No.1047 dated 16.07.2016 in favour of defendant is result of fraud and misrepresentation and is illegal, null and void, as alleged? OPP. 3. Whether the suit is not maintainable in the present form? OPD. 5 ( 2026:HHC:16402 ) 4. Whether the suit is bad for non-joinder and mis-joinder of necessary parties, as alleged? OPD. 5. Whether the plaintiff is estopped by his own act and conduct to file the present suit, as alleged? OPD. 6. Whether the suit has not been properly valued for the purpose of court fee and jurisdiction, as alleged?OPD. 7. Relief.” 6. Learned trial Court directed the respective parties to adduce evidence in support of their contentions and finally, vide its judgment and decree dated 01.08.2024, the suit filed by the plaintiff was dismissed by holding that the gift deed dated 16.07.2016, Ex.DW1/B was validly executed in favour of the defendant. 7. Feeling dissatisfied, the plaintiff/present appellant preferred an appeal under Order 41, Rule 1 read with Section 96 of the CPC before the Court of learned Addl. District Judge, Kullu, District Kullu H.P. on 13.08.2024. Learned first appellate Court vide its judgment and decree dated 06.01.2026 dismissed the appeal preferred by the appellant/plaintiff. 6 ( 2026:HHC:16402 ) 8. Still feeling aggrieved, the plaintiff/appellant has preferred the present regular second appeal. 9. With the consent of the parties the appeal is finally heard at the admission stage on the substantial question of law, which reads as under:- “1. Whether the judgments and decrees, as passed by the learned Courts below, are the result of misinterpretation and misconstruction of oral and documentary evidence as placed on record? 10. It is contended by Lokesh Thakur, learned vice counsel for the appellant/plaintiff that the judgments and decrees as passed by the learned Courts below are not sustainable in the eyes of law and liable to be quashed and set aside. He submits that gift deed, Ex.DW1/B, is not a legal and valid document, therefore, the declaration as sought by the plaintiff for declaring the said gift deed to be null and void being the result of fraud and misrepresentation ought to have been accepted. He further submits that after accepting the present appeal, the suit as filed by the plaintiff deserves to be decreed and a decree for declaration be passed by declaring the gift deed to be null and void. 7 ( 2026:HHC:16402 ) 11. On the other hand, Mr. Panku Chaudhary, learned counsel for the respondent/defendant has defended the impugned judgments and decrees passed by the learned Courts below by submitting that there are concurrent findings of fact by courts below, which do not call for any interference by this Court. He further submits that the learned Courts below after appreciating the oral and documentary evidence, as placed on record, have rightly come to the conclusion that original plaintiff late Bhawani Prasad executed a legal and valid gift deed as Ext. DW1/B in favour of the defendant. 12. I have heard learned counsel for the parties and have also gone through the entire case file carefully. 13. In the present case, the original plaintiff Shri Bhawani Parsad had filed the suit before the learned trial Court on the ground that defendant Chander Kala, who was his elder sister, used to visit the house of the plaintiff during his illness. She used to say that in case, the plaintiff wants to lookafter him, he should execute a registered Will in favour of her son. It is the case of the plaintiff that defendant along with her son took him to Tehisil 8 ( 2026:HHC:16402 ) Bhuntar and got executed a document by saying that it is a registered Will and subsequently, it came to his notice that instead of executing a Will, a registered gift deed was executed in favour of the defendant. 14. During the pendency of the suit, original plaintiff Bhawani Parsad expired and he was substituted by his wife Smt. Sonam Palzom. She entered into the witness box as PW-1 and has stated in her deposition that she is the sole legal heir of deceased plaintiff being his widow. She used to reside with him till his death. In the cross-examination, she has admitted that she has filed a petition under Section 125 of the Cr.P.C. for maintenance against the deceased plaintiff. She has further admitted that at the relevant time, the plaintiff was residing with the defendant in her house. She has further stated that the plaintiff was seriously ill during the said period, when he was residing in the house of the defendant. She admitted that she did not meet him when he was residing in the house of the defendant. She further admitted that the son of the defendant used to take deceased plaintiff to Chandigarh and other places for treatment in his taxi. 9 ( 2026:HHC:16402 ) 15. In order to corroborate and prove the valid execution of gift deed dated 16.07.2016, Ex.DW1/B, the defendant has examined herself as DW-3, DW-1 Muni Lal, scribe of the gift deed and DW-2 Payar Chand, the marginal witness 16. DW-1 Muni Lal is the scribe of the gift deed and DW-2 Pyar Chand is the marginal witness to the said document. Both, DW-1 and DW-2 in their testimonies have deposed that deceased original plaintiff Bhawani Parasad gifted his entire share in the suit property to the defendant, namely, Chander Kala out of his free will. In order to corroborate the same, DW-2 has stated that the gift deed was duly readover and explained to the parties and the witnesses by DW-1. Both the parties signed the gift deed in their presence. He and second witness Kundal Lal and identifier Mehar Chand also signed the gift deed in the presence of the parties. 17. Perusal of the case file reveals that Ex.DW1/B is a registered document and the same has been attested strictly in consonance with the provisions of Sections 122 and 123 of the Transfer of Property Act. The plaintiff has failed to establish any 10 ( 2026:HHC:16402 ) fraud or misrepresentation in order to declare the said document to be null and void. As per the provisions of Section 60 of the Registration Act, 1908, presumption to a registered document of its being genuine is attached until and unless the same is rebutted by some cogent evidence. In the present case, there is nothing on record to establish and prove that gift deed, Ex.DW1/B was prepared under some misrepresentation or fraud. 18. Smt. Sonam Palzom, the wife of original plaintiff has entered the witness box as PW-1 and she has categorically admitted that the relationship between her and deceased plaintiff Bhawani Parsad were strain. She also admitted that she had filed a petition under Section 125 of the Cr.P.C. for grant of maintenance against deceased plaintiff Bhawani Parsad. She has admitted that at the time of his illness, the deceased plaintiff was residing in the house of the defendant. She has admitted that the son of the defendant used to take the deceased plaintiff to Chandigarh for his treatment. It shows that the defendant and her son were taking care of the deceased plaintiff and out of love 11 ( 2026:HHC:16402 ) and affection, he had executed gift deed, Ex.DW1/B in favour of the defendant being his elder sister. 19. Learned Courts below have concurrently held that the defendant has been able to establish and prove that gift deed, Ex.DW1/B was validly executed and attested as per the provisions of Section 122 and 123 of the Transfer of the Property Act. Once, the gift deed has been executed, it become irrevocable except the circumstances as mentioned under Section 126 of the Transfer of Property Act. Learned counsel for the appellant has failed to show any illegality and perversity in the judgments and decrees as passed by the learned Courts below. 20. The Hon’ble Supreme Court while dealing with scope of interference under Section 100 in Hero Vinoth (minor) vs. Seshammal, (2006) 5 SCC 545 has held as under: “18. It has been noted time and again that without insisting for the statement of such a substantial question of law in the memorandum of appeal and formulating the same at the time of admission, the High Courts have been issuing notices and generally deciding the second appeals without adhering to the procedure prescribed under Section 100 of the CPC. It has further been found in a number of cases that no 12 ( 2026:HHC:16402 ) efforts are made to distinguish between a question of law and a substantial question of law. In exercise of the powers under this section in several cases, the findings of fact of the first appellate court are found to have been disturbed. It has to be kept in mind that the right of appeal is neither a natural nor an inherent right attached to the litigation. Being a substantive statutory right, it has to be regulated in accordance with law in force at the relevant time. The conditions mentioned in the section must be strictly fulfilled before a second appeal can be maintained and no court has the power to add or to enlarge those grounds. The second appeal cannot be decided on merely equitable grounds. The concurrent findings of facts will not be disturbed by the High Court in exercise of the powers under this section. Further, a substantial question of law has to be distinguished from a substantial question of fact. This Court in Sir Chunilal V. Mehta and Sons Ltd. v. Century Spg. & Mfg. Co. Ltd. (AIR 1962 SC 1314) held that : "The proper test for determining whether a question of law raised in the case is substantial would, in our opinion, be whether it is of general public importance or whether it directly and substantially affects the rights of the parties and if so whether it is either an open question in the sense that it is not finally settled by this Court or by the Privy Council or by the Federal Court or is not free from difÏculty or calls for discussion of alternative views. If the question is settled by the highest court or the general principles to be 13 ( 2026:HHC:16402 ) applied in determining the question are well settled and there is a mere question of applying those principles or that the plea raised is palpably absurd the question would not be a substantial question of law. 19. It is not within the domain of the High Court to investigate the grounds on which the findings were arrived at, by the last court of fact, being the first appellate court. It is true that the lower appellate court should not ordinarily reject witnesses accepted by the trial court in respect of credibility but even where it has rejected the witnesses accepted by the trial court, the same is no ground for interference in second appeal when it is found that the appellate court has given satisfactory reasons for doing so. In a case where from a given set of circumstances two inferences of fact are possible, one drawn by the lower appellate court will not be interfered by the High Court in second appeal. Adopting any other approach is not permissible. The High Court will, however, interfere where it is found that the conclusions drawn by the lower appellate court were erroneous being contrary to the mandatory provisions of law applicable or its settled position on the basis of pronouncements made by the Apex Court, or was based upon inadmissible evidence or arrived at by ignoring material evidence. 20. to 22 xx xx xx xx 23. To be "substantial" a question of law must be debatable, not previously settled by law of the land or a binding precedent, and must have a material 14 ( 2026:HHC:16402 ) bearing on the decision of the case, if answered either way, insofar as the rights of the parties before it are concerned. To be a question of law "involving in the case" there must be first a foundation for it laid in the pleadings and the question should emerge from the sustainable findings of fact arrived at by court of facts and it must be necessary to decide that question of law for a just and proper decision of the case. An entirely new point raised for the first time before the High Court is not a question involved in the case unless it goes to the root of the matter. It will, therefore, depend on the facts and circumstance of each case whether a question of law is a substantial one and involved in the case, or not; the paramount overall consideration being the need for striking a judicious balance between the indispensable obligation to do justice at all stages and impelling necessity of avoiding prolongation in the life of any lis.” 21. The Hon’ble Supreme Court in Annamalai vs. Vasanthi, 2025 INSC 1267, has held as follows:- “16. Whether D-1 and D-2 were able to discharge the aforesaid burden is a question of fact which had to be determined by a court of fact after appreciating the evidence available on record. Under CPC, a first appellate court is the final court of fact. No doubt, a second appellate court exercising power(s) under Section 100 CPC can interfere with a finding of fact on limited grounds, such as, (a) where the finding is based on inadmissible evidence; (b) where it is in ignorance of relevant admissible evidence; (c) where it is 15 ( 2026:HHC:16402 ) based on misreading of evidence; and (d) where it is perverse. But that is not the case here. 17. In the case on hand, the first appellate court, in paragraph 29 of its judgment, accepted the endorsement (Exb. A-2) made on the back of a registered document (Exb. A-1) after considering the oral evidence led by the plaintiff- appellant and the circumstance that signature(s)/thumbmark of D-1 and D-2 were not disputed, though claimed as one obtained on a blank paper. The reasoning of the first appellate court in paragraph of its judgment was not addressed by the High Court. In fact, the High Court, in one line, on a flimsy defense of use of a signed blank paper, observed that genuineness of Exb. A-2 is not proved. In our view, the High Court fell in error here. While exercising powers under Section 100 CPC, it ought not to have interfered with the finding of fact returned by the first appellate court on this aspect; more so, when the first appellate court had drawn its conclusion after appreciating the 16 evidence available on record as also the circumstance that signature(s)/thumbmark(s) appearing on the document (Exb.A2) were not disputed. Otherwise also, while disturbing the finding of the first appellate court, the High Court did not hold that the finding returned by the first appellate court is based on a misreading of evidence, or is in ignorance of relevant evidence, or is perverse. Thus, there existed no occasion for the High Court, exercising power under Section 100 CPC, to interfere with the finding of the first appellate court regarding payment of additional Rs. 1,95,000 to D-1 and D-2 over and above the sale consideration fixed for the transaction. 18. Once the finding regarding payment of additional sum of Rs.1,95,000 to D-1 and D-2 recorded by the first appellate court is sustained, there appears no logical reason to hold that the plaintiff (Annamalai) was not ready and willing to perform its part under the contract particularly when Rs. 4,70,000, out of total consideration of Rs. 4,80,000, was already paid and, over and above that, additional sum of Rs.1,95,000 was paid in lieu of demand made by D-1 & D-2. This we say so, because an opinion 16 ( 2026:HHC:16402 ) regarding plaintiff’s readiness and willingness to perform its part under the contract is to be formed on the entirety of proven facts and circumstances of a case including conduct of the parties. The test is that the person claiming performance must satisfy conscience of the court that he has treated the contract subsisting with preparedness to fulfill his obligation and accept performance when the time for performance arrives.” 22. Both the learned Courts below have rightly determined the point in controversy concurrently and there is no infirmity or illegality in the impugned judgments and decrees passed by the learned Courts below. 23. The substantial question of law is answered accordingly. 24. In view of above discussions, the present appeal being devoid of any merit is dismissed. Pending applications, if any, also stand disposed of. (Romesh Verma) Judge 8th May, 2026. (jai)