IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA RSA No. 97 of 2008 Date of Decision : April 29, 2010 Vinita Sohan Lal Appellant Versus Anup Sohan Lal and another. Respondents Coram: Hon’ble Mr. Justice Sanjay Karol, Judge. Whether approved for reporting?1 No. For the appellant : Mr. Anand Sharma, Advocate, for the appellant. For the respondents : Ms. Lalita Verma, Advocate, Court Guardian of proforma respondent No. 2. Sanjay Karol, J. (Oral) The matter was admitted on 14.3.2008 when the following substantial questions of law were framed: “1. Whether both the Courts below were right in holding that the suit of the plaintiff for recovery of the suit amount as claimed was not maintainable and whether such finding is the result of mis- appreciation and mis-reading of the evidence oral and documentary on the record of the case? 2. Whether the judgment of the Court below can be sustained when it ignores the General Power of Attorney Ext. PB and the recital made therein?” Whether reports of Local Papers may be allowed to see the judgment? 2 2. On 2.6.2009 the Court had directed the matter to be listed for hearing after two weeks. Ms. Lalita Verma, learned counsel was also appointed as Court Guardian of proforma respondent No. 2. The matter came up for hearing on 14.7.2009 when at the request of the learned counsel for the appellant the matter was adjourned by one week. On 22.7.2009 none appeared for the parties and consequently the matter was adjourned by three weeks. On the subsequent dates i.e. 26.8.2009, 7.10.2009 and 20.11.2009 again none appeared on behalf of respondent No. 1 and the matter was adjourned. On 30.12.2009 and 17.3.2010 respondent No. 1 was represented but the matter was simply adjourned by four weeks. Thereafter the matter was listed on 28.4.2010 when, inspite of pass over, none appeared on behalf of the respondents, hence in the interest of justice the matter was adjourned for today. Today again none has appeared on behalf of respondent No. 1 inspite of several calls. Hence the matter is being heard and decided accordingly. 3. The plaintiff is the appellant. Her real brother Sh. Ashish Sohan Lal is the proforma defendant/proforma respondent. Sh. Anup Sohan Lal defendant No. 1/respondent No. 1 is the first cousin of the plaintiff and the proforma defendant. 4. Facts which emerge from the record are as follows. Sh. Samuel Sohan Lal was the father of the plaintiff and defendant No. 2 and the real uncle (Taya) of defendant No. 1. He had certain properties in the State of Himachal Pradesh. On the basis of the power of attorney (Ext. PX) executed by him in favour of defendant 3 No. 1 three sale deeds were executed. All transactions were done by defendant No. 1 alone. The sale consideration of a sum of Rs. 2,48,500/- was received by defendant No. 1 which allegedly was not paid to the owner. Sh. Samuel Sohan Lal executed a Will (Ext. P-1) dated 4.2.2002 in favour of the plaintiff bequeathing his estate to her. After his death, on 23.8.2002 plaintiff filed a suit for recovery of a sum of Rs. 2,48,500/- against the defendant No. 1. The suit was resisted by the said defendant on the ground that the entire sale consideration stood paid by him to Sh. Samuel Sohan Lal. Additionally he set up a Will (Ext. DW 2/A) dated 8.5.2001 executed by Sh. Samuel Sohan Lal in his favour. 5. The trial Court struck the following issues: “1) Whether the plaintiff is entitled to recover the amount of Rs. 2,48,500/- from defendant No. 1 as alleged? OPP 2) Whether the suit is not maintainable as alleged? OPD-1 3) Whether the plaintiff is estopped by his act and conduct to file the suit as alleged? OPD-1 4) Whether the plaintiff has no locus standi and cause of action to file the suit as alleged? OPD-1 5) Whether deceased Samual Sohan Lal executed a general power of attorney in favour of defendant No. 1, as alleged, if so, its effect? OPD-1 6) Whether deceased Samual Sohan Lal executed a valid and legal Will in favour of defendant No. 1 as alleged, if so, its effect? OPD-1 4 6(A) Whether Samual Sohan Lal had executed a valid Will dated 4.2.2002 in favour of the plaintiff as alleged? OPP 7) Relief?” 6. The plaintiff’s suit was dismissed in terms of judgment and decree dated 30.12.2006 passed by the learned Civil Judge (Senior Division), Chamba, District Chamba, H.P. in Civil suit No. 63 of 2005/02, titled as Vinita Sohan Lal versus Anup Sohan Lal and another. 7. The plaintiff could not prove the fact that any amount was due and payable by defendant No. 1 to Sh. Samuel Sohan Lal. Further, Will (Ext. DW2/A) executed by Sh. Samuel Sohan Lal, in favour of defendant No. 1 was disbelieved and the Will executed in favour of the plaintiff was accepted. 8. Only plaintiff filed appeal assailing the aforesaid judgment. The defendant accepted the findings and did not file any cross appeal. 9. Plaintiff’s Civil Appeal No. 33 of 2007, titled as Vinita Sohan Lal versus Anup Sohan Lal and another stands dismissed in terms of judgment and decree dated 27.11.2007 passed by the learned District Judge, Chamba, Division Chamba, H.P. The reasoning given by the trial Court has been adopted by the lower appellate Court. Reasons contain in paragraphs 24 and 25 are reproduced as under:- 5 “24. After the close scrutiny of the record of the case, it is clear that it is not the case of the appellant that her father Samuel Sohan Lal had ever told her that sale proceed was not paid to him by Anup Sohan Lal after the sale nor she was authorised by her father during his life time to demand money of sale proceeds from the defendant no.1/respondent no. 1 who is cousin of the plaintiff. The stand of the defendant is that he had already paid the entire sale proceeds after the sale to Samuel Sohan Lal during his life time and that was why Samuel Sohan Lal never demanded any money of sale proceeds from the defendant no. 1 during his life time nor it is the case of the plaintiff that her father authorised her to demand the money of the sale proceeds from the defendant no. 1. 25. The appellant tried to establish on record that she demanded money of sale proceeds from the defendant no.1 in September, 2001, February, 2002 and after the death of her father, meaning thereby that she demanded the money twice during the life time of her father, but her father never asked the defendant no. 1 to pay the sale proceeds of the sold land. It is significant to note that had the sale proceeds been due to Samuel Sohan Lal, he would have definitely mentioned it in the Will Ext. P-I in favour of the appellant. It is also significant to note that defendant no. 1 in his written statement has categorically stated that the entire sale proceeds of the property in suit had been paid by him to late Samuel Sohan Lal. It is not proved on record that as to how the plaintiff came to know that the amount of sale proceed was not paid to Samuel Sohan Lal as when the sale transaction entered into, the legal representatives of Samuel Sohan Lal were 6 not in picture and moreover, the defendant no. 1 Anup Sohan Lal had been authorised by late Samuel Sohan Lal to sell the land in suit in his favour for specific purposes. Had there been any dispute on the payment of sale proceeds to the real owner Samuel Sohan Lal in the year between 2001-2002 when the three sale transactions were carried out, Samuel Sohan Lal would have definitely objected to the subsequent sales and could have revoked the power of attorney just after the first sale of the land in suit in favour of Sh. Thomas on 15.6.2001 registered on 26.6.2001 for Rs. one lac. It is significant to note that Samuel Sohan Lal died on 25.4.2002 after three months of the third sale deed executed by the defendant no. 1 being general power of attorney of Samuel Sohan Lal, but no such dispute about payment of the sale proceed to the real owner ever arose during his life time and it is not understandable as to why the appellant demanded the amount of sale proceeds from the defendant no. 1 twice during the life time of Samuel Sohan Lal in the years 2001 and 2002, especially when there was no bone of contention between late Samuel Sohan Lal and defendant No. 1 Anup Sohan Lal.” 10. In the instant case it cannot be disputed that defendant No. 1 had executed three sale deeds on the basis of the power of attorney executed by late Sh. Samuel Sohan Lal. The first sale deed was executed on 26.6.2001 (Ext. PE). The second sale deed was executed on 18.8.2001 (Ext. PA) and the third sale deed was executed on 25.2.2002 (Ext. PC). That Sh. Samuel Sohan Lal died on 25.4.2002 also cannot be disputed. 7 11. Plaintiff (PW-2), while stepping into the witness box has categorically deposed that the sale consideration was never paid by defendant No. 1 to Sh. Samuel Sohan Lal. In fact during the life time of her father she had demanded the same. 12. The fact that the entire sale consideration amounting to the suit amount stood received by defendant No. 1 from the purchasers also cannot be disputed. This is also evident from the written statement as also from his statement (DW-1). 13. Plaintiff (PW-2) has categorically deposed that though she had demanded money during the life time of her father but the same was not paid by defendant No. 1. On the strength of the Will executed by her father she filed the instant suit being the beneficiary of his estate. 14 Defendant No. 1 (DW-1) in his affidavit (examination-in-chief) has simply stated that the entire sale consideration was paid to the deceased Samuel Sohan Lal on execution of the sale deeds. Importantly in his cross examination he admits not to have obtained any receipt for the same. He admits not to have paid the amount in the presence of any person. He also does not remember the month or the date when the payment was made. Defendant No. 1 is a resident of Chamba(H.P.) where the property is also situated. The plaintiff and the deceased used to resided in Delhi. Plaintiff used to look after her father. Statement of defendant No. 1 that he had paid money to the deceased does not appear to be true and correct. It does not inspire confidence. He does not even remember the 8 dates and the month when he visited Delhi to pay the amount to the deceased. The sale consideration is not a small amount. It is Rs. 2,48,500/-. Why the sale consideration was received by him in cash has also not been explained by him. He could have conveniently prepared the bank draft and remitted the sale consideration to the deceased in Delhi. The amount was received by him. He must have maintained some accounts. The same were not produced by him. The onus was on him to prove how the payments were made. Except for his bald statement there is nothing to prove the said fact. It is in this background the Courts below have seriously erred in appreciating the material on record. Illegality and perversity are writ large. The evidence on record has been misread and misinterpreted which has resulted into travesty of justice. There is material illegality and irregularity which has been committed by the Courts below. There is also nothing on record to show that the sale deeds in question were ratified by the deceased during his lifetime. In fact there is nothing on record to even prima facie show that the deceased was even aware of the execution of the sale deeds. Therefore the reasoning adopted by the Courts below that had the deceased not received the sale consideration he would have objected to the execution of the subsequent sale deeds dated is perverse. It is too presumptuous. 15. The trial Court also disbelieved the defendant on the question of execution of Will Ext. DW-2/A. The plaintiff has also been maintaining her mentally challenged brother respondent No. 2. 9 Defendant No. 1 was the agent of the deceased. He was liable to account for each and every penny received by him. This onus does not stand discharged. Issuance of legal notice is not a legal necessity. Except for the bald statement of defendant No. 1 there is nothing on record to corroborate his version that the payment was made to the deceased. In the circumstances his statement is not sufficient enough to prove that the amounts were in fact paid to the deceased and nothing was due to the plaintiff. Substantial question of law No. 1 is answered accordingly. In view of decision on question No. 1, question No. 2 does not arise for consideration. 16. For the aforesaid reasons the judgments and decrees passed by the Courts below are reversed and the plaintiff’s suit for a sum of Rs. 2,48,500/- is decreed. The plaintiff shall also be entitled to interest @ 9% per annum from the date of filing of the suit till realisation. 17. Assistance rendered by Ms. Lalita Verma, learned Counsel is highly appreciated. (Sanjay Karol), Judge. April 29, 2010 (PK)