R.S.A. No.428 of 1985 -1- IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH. (1) R.S.A. No.428 of 1985(O&M) Sulakhan Singh APPELLANT VERSUS Smt.Pal Kaur RESPONDENT (2) R.S.A. No.671 of 1986 Ajit Singh APPELLANT VERSUS Jagjit Singh and another RESPONDENTS. DATEOF DECISION : 7.12.2010 CORAM : HON'BLE MR.JUSTICE MAHESH GROVER Present:- Ms.Alka Sarin, Advocate for the appellant. Ms.Harveen Kaur, Advocate for the respondents. MAHESH GROVER, J. I will be disposing of R.S.A. No.428 of 1985 and R.S.A. No.671 of 1986 by this common judgment. For the sake of convenience, facts have been taken separately from R.S.A. No.428 of 1985 and then conjoined with R.S.A. No.671 of 1986 and they appear in the subsequent portion of the judgment. R.S.A. No.428 of 1985 -2- This is an appeal filed by the plaintiff against the judgment of the First Appellate Court dated 7.1.1985, thereby reversing the findings recorded by the learned trial Court vide his judgment dated 31.3.1979 by virtue of which the suit of the plaintiff stood decreed in her favour. A suit was filed by the mother of present appellant pleading that she was the owner in possession of the land measuring 40 kanals and that the mortgage deed dated 16.3.1973 and the sale deed dated 25.2.1974 alleged to have been executed by her with regard to the suit property were a fraudulent transaction and not binding upon her. Along with the suit, a prayer for possession was also made, in the eventuality of the court coming to the conclusion that the respondent was in possession of the property. She primarily alleged that she is the owner in possession of the property and that Sulakhan Singh was his son whose betrothal ceremony was performed in the month of March, 1973 with respondent Pal Kaur and their marriage was also performed in April, 1973. Subsequent to their marriage, Sulakhan Singh and Pal Kaur lived as husband and wife . But in the month of June, 1974, the respondent deserted her husband and went to reside with her parents. On 16.3.1973, the respondent got executed one mortgage deed pertaining to the land in dispute against the alleged consideration of Rs.10,000/- and on 25.3.1974, she got a sale deed executed in her favour with regard to the above said land for a consideration of Rs.12,000/-. The mortgage amount of Rs.10,000/- was adjusted against the sale consideration. She denied taking of any amount and said that she was an old lady aged 80 to 85 years and being illiterate, the respondent played a fraud upon her. She thus, pleaded that the mortgage deed dated 16.3.1973 and the sale deed dated 25.2.1974 be declared null and void and and in the eventuality of the respondent being in possession of the suit property, the same be got retrieved from her. Respondent Pal Kaur contested the suit and pleaded that appellant was not the owner in possession of the suit property. However, she admitted that R.S.A. No.428 of 1985 -3- she is the wife of Sulakhan Singh who is the son of the appellant, but denied the allegation of fraud and protected the sale deed and mortgage deed in her favour. She pleaded that she was actually turned out of the house and that the appellant had incurred a loan of Rs.10,000/- from the respondent and executed a Pronote and receipt in support thereof. She thus pleaded that the suit be dismissed. Apart from taking this plea, she also took the plea that the suit was not property valued as the appellant had prayed for cancellation of the sale deed without fixing advalorum fee, the suit was beyond the pecuniary jurisdiction of the Court. The following issues were framed :- (1) Whether the plaintiff is owner in possession of the suit land? OPP. (2) Whether the mortgage deed dated 16.3.1973 and sale deed dated 25.2.1974 are without consideration and are the result of fraud and misrepresentation and as such, are not binding upon the plaintiff? OPP. (3) Whether the suit has been properly valued for the purpose of court fee and jurisdiction? OPD. (4) Whether the suit is maintainable in the present form? OPD. (5) Whether this Court has got jurisdiction to try the suit? OPD. (5A). Whether the plaintiff, in the alternative, is entitled to the possession of the land in dispute? OPD. (6) Relief. The learned trial Court decreed the suit of the appellant, but in appeal, the findings of the trial Court were reversed, which has resulted in filing of the instant appeal. Learned counsel for the appellant contended that both the documents were a sham transaction and the respondent was her daughter-in-law, who took advantage of this relationship and committed this fraud upon her. A lot of emphasis was placed on the contention that the entire evidence does not reveal passing of any sale consideration and this itself is a factor sufficient to discard the R.S.A. No.428 of 1985 -4- sale deed in favour of the respondent. It was further pleaded that there is discrepancy in the statements of DW-4 and DW-7 and next contended that from the evidence, it is clear that at the time of registration of the sale deed, the respondent was not even present. The contention of the learned counsel for the appellant was sought to be offset by the learned counsel for the respondent who stated that the document being a registered document, there is a presumption of truth in its favour and merely because the factum of consideration having passed to the appellant has not been proved, would not render the document bad in the eyes of law. He further pleaded that in the eventuality of the Court concluding that no sale consideration was passed, the only remedy available with the appellant was to file a suit for recovery, but under no circumstances a registered document could be held to be invalid, unless fraud was proved and which the appellant has failed to do. It was then contended that the Sub Registrar was examined in Court who admitted that the amount was paid in his presence and merely because the respondent was not present at the time of registration of the sale deed, would not make any difference to the nature of transaction for the reason that the executor of the sale deed was present and prayed that the appeal be thus dismissed. R.S.A. No.671 of 1986 In the second appeal, i.e. R.S.A.No.671 of 1986, Jagjit Singh, Mohan Singh sons of Hari Singh were the plaintiffs, while Ajit Singh was the defendant who is now the appellant in the present R.S.A. The respondents filed a suit for permanent injunction seeking to restrain the present appellant from forcibly dispossessing them from the suit property measuring 40 kanals. Pal Kaur wife of Sulakhan Singh had executed an agreement to sell dated 9.9.1979 in favour of the plaintiffs and possession was also delivered to them. It was pleaded that the suit filed by Sant Kaur which was the subject matter of R.S.A. No.428 of 1985 which R.S.A. No.428 of 1985 -5- was dismissed, but the learned Additional District Judge, Ludhiana stayed the operation of the order and that Sant Kaur died during the pendency of the appeal and her son became the legal heir and he illegally sold the land to the defendant/appellant. This is the reason that the defendant wants to take forcible possession of the suit property. Ajit Singh the defendant/appellant pleaded that Sant Kaur was the owner of the suit property and her suit was decreed on 31.3.1979 and an appeal was filed by Pal Kaur against the said judgment and during the pendency of the appeal Sant Kaur died and Sulakhan Singh was impleaded as a party on 29.7.1982. The appeal filed by Pal Kaur was dismissed by the learned Additional District Judge, Ludhiana and Sulakhan Singh applied for execution of the decree vide application 25.9.1982 and on 29.9.1982, possession of the land was delivered to Sulakhan Singh and after taking possession, he sold the same to Ajit Singh vide registered sale deed and possession was also delivered to him and since then, he is in possession of the property. The following issues were framed :- (1) Whether the plaintiffs are entitled to the injunction prayed for? OPP. (2) Whether the suit is not maintainable? OPD. (3) Whether the suit is bad for non-joinder and necessary parties? OPD. (4) Whether the defendant has obtained the possession of the suit land illegal? OPD. (5) Relief. The learned trial Court dismissed the suit, while in appeal, the findings were reversed. I have heard the learned counsel for the parties and perused the impugned judgment and also the record. In support of his contention, learned counsel for the appellant in R.S.A. No.428 of 1985 -6- R.S.A. No.428 of 1985 cited a judgment of the Hon'ble Supreme Court in Mst.Sethani v. Bhanna A.I.R. 1983 S.C.956, wherein in para-4 of the judgment, it was held as follows :- “4. We have heard learned counsel for the parties. The facts are so glaring, still the onus to prove the issue has been over- emphasized. It is true that the initial onus to prove undue influence was on the plaintiff-appellant, but the onus, in the facts and circumstances of the case, was easily discharged. It is the respondent who had obtained the sale deed in his favour way back on 1.4.1963 by a registered sale deed, which saw the light at a late stage of trial. From the certified copy thereof it was evident that no consideration passed at the time of the sale. Nobody from the registration office was examined to explain the sale. No evidence was led by the respondent to discharge the onus that the sale deed was executed under no undue influence, even though the vendor was old, blind, illiterate and tribal woman totally at the mercy of the respondent, with whom she was living till her death. The parties were so situated that Bhanna-respondent was in a position to dominate the will of Putlibai and was in a position to obtain an unfair advantage over her. It is also in evidence that Putlibai was dependent on the respondent. The trial Court had given cogent reasons to come to the finding that the sale deed was vitiated on account of the condition in which Putlibai was put due to her relationship with Bhanna respondent, as well as the manner and nature of the transaction. The High Court, in our view, erroneously took the view that the plaintiff- appellant was unable to discharge the onus that the transaction was as a result of undue influence. There was no cogent reason to come to that view and more so to upset the well reasoned finding recorded by the trial Court. Therefore, opting for the view of the trial Court, we reverse the finding that the sale deed was executed by the mother of the appellant under undue influence of the respondent who took advantage of the helplessness of the old widow of his brother. The R.S.A. No.428 of 1985 -7- advantage thus obtained by him must thus be returned.” From the facts noticed in both the appeals, I now proceed to determine the controversy. The original dispute is between the mother-in-law who is the appellant, and her daughter-in-law who is the respondent. The document whose validity is questioned, are the mortgage deed dated 16.3.1973 and the sale deed dated 25.2.1974. The case of the appellant is that she was defrauded in the execution of both these documents in favour of the respondent, while the respondent pleads the validity of the said documents. It is now a settled proposition of law that presumption of truth lies in favour of the registered documents and which presumption can be offset if the executor of these documents pleads fraud and proves it. It is also a settled proposition of law that a person who pleads fraud, must prove it by cogent evidence and the finding of fraud cannot be left to the vagaries of preponderance of probabilities and conjectures, more so, when the document questioned is a registered document. If the evidence on record is to be seen, the appellant herself was present before the office of the Sub-Registrar, who has been examined and who testified to the correctness of the document. He also admitted that the amount was paid in his presence. Even if this factum of passing of sale consideration is ignored, the fact is that the document is a registered document which lends credibility to it and in the eventuality of a party establishing that the amount of consideration has not been paid, the only remedy available to such a person is to seek recovery of the same, but he cannot plead that the document is fraudulent unless a clear-cut case to that effect is made out. Besides, the contents of the document are always to be read as they exist because they are a manifestation of the intention of the parties and no other meaning can be given to them so as to construe the same in a manner not so intended by the parties. R.S.A. No.428 of 1985 -8- The Hon'ble Supreme Court in Bellachi(dead)by LRs v. Pakeeran (2009) 12 S.C.C. 95 in paras 17 and 19 held as under :- “17. In a given case it is possible to hold that when an illiterate, pardanashin woman executes a deed of sale, the burden would be on the vendee to prove that it was (sic) the deed of sale was a genuine document. It is, however, a registered document. It carries with it a presumption that it was executed in accordance with law. Again a concurrent finding of fact has been arrived at that the appellant was not an illiterate woman or she was incapable of understanding as to what she had done. 19. Furthermore, both the courts below have held that the plaint does not contain any particulars of undue influence, fraud, etc. The law does not envisage raising of a presumption in favour of undue influence. A party alleging the same must prove the same subject of course to just exceptions.” The Hon'ble Supreme Court in Iswar Das v. Muralidhar Rai and others A.I.R. 1992 Orissa 170 observed as under :- “Evidence Act (1 of 1872), S.65. In deciding the intention of the parties as to the time of passing of title, the document under which the properties were intended to be sold if unambiguous, remains the sole criterion. The factum of passing of consideration may be disputed and extraneous evidence may be admissible for determining that issue, but the terms of the contract as to the time of passing of title will be proved from the document alone if the terms are clear and unambiguous. If the terms are indecisive and ambiguous, then only the Courts will take into consideration other extraneous circumstances. Where the recital in the sale deed that the full amount of consideration was paid before execution of the sale deed was not conclusive of the said fact because the plaintiff-purchaser's case was that at the time of execution some advance money was paid and the remaining amount of consideration was paid before Registrar at the time of registration, oral evidence R.S.A. No.428 of 1985 -9- would be permissible to be adducated to prove non-payment of money. However, in such a case, even if it was proved that part of consideration was still to be paid even after the registration, it would not affect the passing of title to the property in favour of the purchaser on the registration of the document. Moreover, where a sale deed expressly stated that from the date of its execution the vendee shall be entitled to all the rights in the property sold and that the entire consideration money also passed on that day, but this portion of the recital (regarding passing of consideration) in the deed was incorrect, from that circumstance alone, it could not be inferred that the intention of the parties was that passing of the consideration was a condition precedent to the transfer of the title.” The Hon'ble Supreme Court in Basanti Mohanty v. Brahmanand Das and others A.I.R. 1996 Orissa 86 observed as under :- “In all types of sale, price is an essential ingredient and where it is neither ascertained nor rendered ascertainable the contract is void for incompleteness, and incapable of enforcement. If the consideration is not money, but some other valuable consideration, it may be an exchange or barter, but not a sale. The payment of price is not necessarily a sine qua non to the completion of the sale. If the intention is that property should pass on registration the sale is complete as soon as the deed is registered, whether the price has been paid or not, and the purchaser is entitled to sue for possession although he has not paid the price. Intention of the parties as to whether title to a particular property would pass only on payment of the consideration amount or it will pass independent of payment of the consideration amount has to be inferred from the recitals of the document itself. When the recitals of the document are clear and unambiguous on the point of passing of title on the execution of the deed, and not dependent upon passing of consideration, sale transaction cannot be invalidated for non-payment of consideration.” R.S.A. No.428 of 1985 -10- The Hon'ble Supreme Court in Kutcherlakota Vijayalakshami v. Radimeti Rajaratnamba and others A.I.R. 1991 Andhra Pradesh 50, observed in Head-Note (B) as under :- “Even if consideration under Registered sale deed is not paid, still the purchaser gets title. The only remedy of the vendor is to claim the consideration and of course he will have a right or lien over the properties sold, for sale consideration or balance of sale consideration as the case may be.” The Hon'ble Supreme Court in Premnarayan and another v. Kunwarji and another A.I.R. 1983 Madhya Pradesh 162 observed as under :- “Where the document on on its face is a deed of sale, duly executed and registered and it is not the plea of the vendor that title in the suit property was not intended to be passed on to the vendee and was postponed to be passed until the consideration was paid, even if the possession was not delivered and the price was not paid, on the contents of the document the title passed to the vendee. If the vendee was deprived of possession he was well justified in asking for the same. The remedy of the vendor lay in asking for payment of price.” The contention of the appellant that an old lady had been duped, does not inspire confidence, since though she seems to be an illiterate woman, yet she is not a Pardanasheen lady and does not seem so helpless, as is sought to be. She appeared before the Sub Registrar, even though the respondent was not present and the fact only suggests that she executed the sale deed and the mortgage deed voluntarily in favour of her daughter-in-law and it is an unfortunate situation that the marriage did not work out and the respondent eventually did not settle in her matrimonial house and the family was deprived of the property, but this itself would not render the execution of document bad in so far as the consideration is concerned. There is clear recital in the sale deed that the amount of mortgage deed is to be adjusted towards the sale. Balwant Singh DW-1 and Mohinder Singh R.S.A. No.428 of 1985 -11- DW-2 who are the scribe and Clerk of Registration in the office of Tehsildar, Jagraon testified to the correctness of the deed. DW-2 has further stated that according to the register, the mortgage deed of 24 kanal 10 marlas for a sum of Rs.10,000/- existed in the register at Sr.No.3547. DW-6 Amar Singh clearly stated and his statement remained unshattered that on 16.3.1973 he was exercising the power of Sub Registrar Jagraon and on that date a mortgage deed was executed by Sant Kaur in favour of the respondent. The contents of the documents were read over to Sant Kaur who appended her signatures to it and that an amount of Rs.2500/- was paid to Sant Kaur in his presence. In this view of the matter, this Court is of the opinion that the document being a registered document and in the absence of any clear evidence regarding fraud, the same cannot be accepted to be incorrect. The plea of passing of consideration again would not make any difference to the validity of the document. For the above said reasons, R.S.A. No.428 of 1985 is dismissed. R.S.A.671/86 In so far as R.S.A.671 of 1986 is concerned, the only question is as to whether the plaintiff/respondents were in possession of the property, or the appellant was in possession thereof. It transpires from the record that when the appeal was filed by Pal Kaur against the judgment and decree dated 7.1.1985, the same was dismissed initially on technical grounds, but was subsequently restored and finally accepted. Sant Kaur died during the pendency of the appeal and pursuant to the decree of the trial Court being in her favour, Sulakhan Singh sold the suit property to Ajit Singh, the present appellant. The respondents in this appeal were the plaintiffs in the suit and they pleaded that on 4.5.1992 the First Appellate Court had granted stay of operation of the order of the learned trial Court, but before the order of stay could be conveyed, the property had been sold R.S.A. No.428 of 1985 -12- and symbolic possession had been handed over to the appellant, which is rightly held by the Appellate Court that actual physical possession had been given. There is no material on record to suggest that the actual physical possession had been given to the present appellant pursuant to the sale deed and the finding on possession being a finding of fact, does not warrant any interference. Therefore, R.S.A. No.671 is also dismissed. Both the appeals are thus, dismissed. ( MAHESH GROVER ) December 7, 2010 JUDGE GD WHETHER TO BE REFERRED TO REPORTER? YES/NO