IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA Regular Second Appeal No.221 of 1997. Judgment Reserved on: 27.7.2009. Date of decision: 30.7.2009. Smt.Kala Wati …Appellant Versus Smt.Vidya Devi and Others …Respondents. Coram The Hon’ble Mr.Justice Dev Darshan Sud,J. Whether approved for reporting ?1 Yes For the Appellant: M/s.Bimal Gupta and K.S. Kanwar, Advocates. For the Respondents: Mr.M.L. Chauhan, Advocate. Dev Darshan Sud,J. This appeal has been preferred by the plaintiff against the judgment and decree of the learned District Judge affirming the judgment and decree of the learned trial Court in suit instituted by appellant herein for declaration that the release deed Ex.DA, dated 6th December, 1988, purportedly executed by her, does not bind her as it is not of her own free will and volition, which suit was dismissed. It is undisputed before me that the appellant and the respondent are brother and sister being the 1 Whether the reporters of Local Papers may be allowed to see the judgement? Yes. 2 daughter and son of Shri Gopal. Plaintiff-appellant pleaded that release deed Ex.DA was obtained from her by taking advantage of her illiteracy, misrepresentation and undue influence etc. The case pleaded was that the parties to the suit were joint owners of the suit land. Since her marriage the plaintiff has been residing at village Gaula in Tehsil and District Ambala (Haryana), while the defendant, her real brother, was residing at village Surla Chargan. He was serving as an Office Kanungo in the office of the Tehsildar-cum-Sub Registrar, Nahan for about a period of 4 to 5 years prior to institution of the suit. The plaintiff pleaded that during her visit to village Surla Chargan the respondent informed her that he intended to construct a house over the suit land and he had applied for a loan from the government. The respondent told her that the suit land was to be hypothecated/mortgaged to the Government of Himachal Pradesh, for which purpose her `No Objection’ was required in the form of an affidavit. She trusted him and accordingly thumb marked the documents as furnished to her and accompanied him to the office of the Tehsildar-cum-Sub Registrar, Nahan, where she was made to sit in one room and again made to thumb mark some documents. She never doubted his integrity as they were in close relationship with each other and did exactly as she was told, as she was under the impression that he was her brother would not mislead her. She submits that 3 thereafter visited the village again requesting for partition of the land but was told by the defendant that she has infact relinquished her share. On the issues settled by the learned trial Court as to whether Ex.DA is a result of fraud and forgery and whether the deed was executed in collusion with the marginal witnesses, the trial Court held against the plaintiff by dismissing her suit which findings have been reaffirmed in appeal by the learned District Judge. On the issue as to whether the plaintiff had been duped into signing of the release deed Ex.DA, the learned trial Court holds that this deed is duly registered. The document has been duly witnessed/attested by PW-1 Shri Kamal Kishore Saini and PW-2 Shri Karam Chand, Ahlmad and Peon respectively in the office of Tehsildar-cum-Sub Registrar, Nahan. The learned trial Court holds that, “but having become attesting witnesses to the execution of the release deed they, for unknown reasons, appear to have sided with the plaintiff who examined them in substantiation of her claim.” This is indeed a very strange observation as the trial Court had to consider the evidence in its entirety without expressing its opinion at the initial stage of appreciation of evidence. The learned trial Court also holds, ”there is no gainsaying the fact that she being `pardanashin’ illiterate lady, the burden is on the defendant to prove that the release deed was executed by her by understanding the import thereof and that 4 execution of the document was not only a physical act, but also a mental act. This burden, to my thinking, stands well discharged. … … … …” To reach this conclusion, he refers to the evidence of DW-1 Shri Ajay Kaushik, Advocate and DW-2 Shri Mohan Singh. In appeal, the learned appellate court has affirmed these findings holding that no fault has been proved. Although the Court does notice that both the witnesses, namely, PW-1, Kamal Kishore and PW-2 Karam Chand, had stated in their evidence that they signed the document at the behest of the respondent Sita Ram who was working as Office Kanungo, the Court accepts the fact that the appellant is an illiterate person, but she cannot be admitted to be a `pardanashin’ lady. This appeal was admitted on 3.12.1997, but no question, on which decision was to be given, was framed. This appeal was heard on substantial question of law No.2, which arose for consideration of this Court, namely:- “2. Whether learned District Judge has misconstrued, misinterpreted the pleadings, evidence pertaining to release deed Ext.DA and Affidavit Ext.DW-2/A regarding fraud, misrepresentation and undue influence perpetuated by defendant for obtaining these documents from plaintiff and the view taken by learned Distt. 5 Judge on this point is not possible on the basis of material on record?” This is the primary and fundamental question which arises for determination. There is no dispute before me that the appellant is an illiterate lady and that she is related to defendant Sita Ram being her sister. PW-1 Kamal Kishore states that he knows Sita Ram and that he was posted as Ahlmad in the Tehsil Office in the year 1988. At the relevant point of time the respondent was posted as Office Kanungo and PW-2 Karam Chand was posted as peon. On 6.12.1988, the respondent approached him and asked him to sign on one document. He complied with the request in good faith. At that time he was alone. He says that he does not know the appellant Kalawati. He has been subjected to cross-examine where he admits his signatures Ex.DA-1 but denied the suggestion that Kalalwati had infact brought this document. PW-2, Karam Chand, corroborates this evidence when he states that he has been working as peon in the Tehsil Office. Sita Ram, respondent, approached him and asked to sign the document which he did without reading. He states in his cross-examination that at the relevant time Kalawati was not accompanying the respondent. The deposition of the plaintiff-appellant Kalawati, PW-3, is replete in detail. She states that she was taken and made to sit in a room in the office of the Tehsildar where she 6 was made to thumb mark the document which she did. The reasons for doing so was, “Prativadi ne mujhse kaha ki maine makan banana ke liye loan lena hai tatha jamin mushtarka hone ki bajeh se teri sehmati jaruri hai tatha meri sehmati ke liye kagaz banwane mughe Tehsildar ke daftar mein laya tha”, that is to say that, “defendant- respondent was seeking the concurrence of the plaintiff in granting `No Objection’ to the respondent for raising a loan for construction of house on his share on the land”. There is no dispute to the fact that she is illiterate and that both PW-1 Kamal Kishore and PW-2 Karam Chand are clear in their testimony/deposition when they say that she was not presented before the Registration Officer nor was she accompanying the respondent at that time when they were made to sign the document. Learned counsel appearing for the respondent submits that the Courts were correct in holding that the due execution of the document which is proved by DW-1 Shri Ajay Kaushik, who states that he has been practicing as an Advocate. I do not find that that his testimony does not in any manner show that the document had been executed on the instructions of the plaintiff Kalawati. DW-2 Shri Hari Ram Sharma is the Office Kanungo, who has tried to prove the signatures of Mohan Singh, Statistical Assistant, on the affidavit Ex.DW-2/A. Mohan Singh did not appear as a witness in this case. The statement of 7 DW-3 Sita Ram is of-course self-serving trying to prove the case of free consent on independent advise. Both the learned Courts below are in grave error in denying the protection of law to the plaintiff who is an illiterate lady. The very fact that PW-1 Kamal Kishore and PW-2 Karam Chand have stated that she was not accompanying the respondent at the time when he brought Ex.DA for their signatures as witnesses and that they have not read the document, coupled with the fact that the plaintiff is an illiterate lady should have put the Courts on guard. The pleadings of the plaintiff are:- “2. That the plaintiff is the real younger sister of the defendant and after her marriage she is residing at village Goula Tehsil Ambala, Distt.Ambala, Haryana, whereas the defendant is residing at village Surla Charjan, Tehsil Nahan and working in the office of Tehsildar/Sub-Registrar, Nahan as an Office Kanungo for the last four years approximately. 3. That in the month of December, 1988 the plaintiff had visited the village Surla Charajan them she was told by the defendant that he has applied to his department for securing a loan for the construction of house over a part of suit land and since the property is to be 8 hypothecated with the Govt. of H.P. therefore, no objection of other co-owner in shape of an affidavit is required by the department and further requested the plaintiff to give an affidavit to the above stated purposes. The Plaintiff who is a poor, illiterate, village Rustic women and a simpleton lady could not realize the wickedness of the defendant as the defendant is her real brother and accompanied the defendant to the office of Tehsildar/Sub Registrar, Nahan on 6.12.1988. The Plaintiff was made to sit in the office room of the defendant and after sometime the defendant came and asked the plaintiff to append her thumb impression over some papers stated to be an affidavit. The plaintiff being the real sister of the defendant reposed full faith in the defendant and has appended her thumb impressions over the said papers. The plaintiff never went to any Advocate to scribe any document nor she had appeared before the Sub Registrar, Nahan. The contents of the documents were never read over and explained to the plaintiff by any one. Certified 9 copy of the release deed is attached. 4. That the plaintiff recently visited Nahan and village Surla Gharajan and requested the defendant to get the suit land partitioned as she is in need of the land, but the defendant made mockery of the plaintiff and disclosed that the plaintiff had left no share in the aforesaid property as she had released her entire share in favour of the defendant vide a Registered Release deed and further disclosed that the papers signed/thumb impressed by her in the office of Tehsildar/Sub ?Registrar Nahan some one and a half years back was a Release deed. The Plaintiff on this disclosure made by the defendant became stunned and did not believe it and applied for the certified Copies of the document dated 6.12.1988 and on the receipt of the certified copy of 2.6.90 it transpired to the plaintiff that the defendant had committed a fraud on her by getting the release deed signed/thumb impressed by misrepresentation of facts, in connivance with the writer of the deed and marginal witnesses who are the subordinates of the 10 defendant working in his office took undue advantage of relations, illiteracy and simplicitorness of the plaintiff. The plaintiff never Released her share in the landed property to the defendant or there was any occasion for the plaintiff to release her share in favour of the defendant. There was no necessity for the plaintiff to release her share in favour of the defendant as she herself is leading her life in poverty whereas the defendant is a well placed person having properties of lacs of Rs. beside a good Govt.job. The defendant being the real elder brother of the plaintiff was in a position to dominate the plaintiff. 5. That the plaintiff was never summoned or appeared before the A.C.First Grade/Teshildar, Nahan at the time of Attestation of mutation No.266, dated 19.12.1988. The plaintiff had never given any affidavit for the purposes of attestation of ownership mutation on the basis of aforesaid release deed in her absence. The said affidavit is also a result of fraud, misrepresentation, collusion like the alleged release deed. The said mutation No.265, dated 11 19.12.1988 is also liable to be declared null and void. The copy of mutation will be filed.” In-fact the sequence of events as pleaded is that reposing full faith on the respondent the plaintiff was assisting him in getting his sanction for building house on the suit land on which he admittedly was the co- owner but he had no intention of relinquishing her share. She being an illiterate lady had never executed a release deed, but, in-fact had been duped by the plaintiff into relinquishing her share running into lacs of rupees, while she was living in poverty. Though the plaintiff cannot be classed as a `pardanashin lady’, yet it cannot be said that she has signed the document of her own free will. What must be noticed is that the defendant is himself employed in the Tehsil Office as an Office Kanungo. It was not difficult for him to procure the document in a manner in which it has been pleaded. Section 17 of the Indian Contract Act, 1872, (hereinafter referred to as the `Act’)deals with fraud defining it to mean inter alia the suggestion of a fact which is not true by a person who does not believe it to be true, active concealment of a fact by a person having knowledge or belief of the fact. In Krishna Mohan Kul alias Nani Charan Kul and another vs. Pratima Malty and others, AIR 2003, SC 4251, 12 the Supreme Court while considering the provisions of Section 16 supra held:- “13. In judging of the validity of transactions between persons standing in a confidential relation to each other, it is very material to see whether the person conferring a benefit on the other had competent and independent advice. The age or capacity of the person conferring the benefit and the nature of the benefit are of very great importance in such cases. It is always obligatory for the donor/beneficiary under a document to prove due execution of the document in accordance with law, even de hors the reasonableness or otherwise of the transaction, to avail of the benefit or claim rights under the document irrespective of the fact whether such party is the defendant or plaintiff before Court. 14. It is now well established that a Court of Equity, when a person obtains any benefit from another imposes upon the grantee the burden, if he wishes to maintain the contract or gift, of proving that in fact he exerted no influence for the purpose of obtaining it. The proposition is 13 very clearly started in Ashburner's principles of Equity, 2nd Ed. , p. 229. thus: "when the relation between the donor and donee at or shortly before the execution of the gift has been such as to raise a presumption that the donee had influence over the donor, the Court sets aside the gift unless the donee can prove that the gifts was the result of a free exercise of the donor's will. " 15. The corollary to that principle is contained in Clause (3) of Section 16 of the Indian contract Act, 1872 (in short 'contract Act' ). 16. At this juncture, a classic proposition of law by the Privy Council needs to be noted. In Mst. Farid-Un-Nisa v. Munshi Mukhtar ahmad and Anr. (AIR 1925 P. C. 204) it was observed as follows: "it is, therefore, manifest that the rule evolved for the protection of pardahnashin ladies not be confused with other 14 doctrines, such as fraud, duress and actual undue influence, which apply to all persons whether they be pardahnashin ladies or not". 17. The logic is equally applicable to an old, illiterate, ailing person who is unable to comprehend the nature of the document or the contents thereof. It should be established that there was not mere physical act of the executant involved, but the mental act. Observations of this Court, though in the context of pardahnashin lady in Mst. Kharbuja Kuer v. Jang Bahadur Rai and Ors. (AIR 1963 SC 1203) are logically applicable to the case of the old, invalid, infirm (physically and mentally)and illiterate persons”. To similar effect is the judgment of the Supreme Court in State of Andhra Pradesh and another vs. T.Suryachandra Rao, AIR 2005 SC 3110. The Court held:- “8. By "fraud" is meant an intention to deceive; whether it is from any expectation of advantage to the party himself or from the ill will towards the other is immaterial. The expression 15 "fraud" involves two elements, deceit and injury to the person deceived. Injury is something other than economic loss, that is, deprivation of property, whether movable or immovable or of money and it will include any harm whatever caused to any person in body, mind, reputation or such others. In short, it is a non-economic or non-pecuniary loss. A benefit or advantage to the deceiver, will almost always cause loss or detriment to the deceived. Even in those rare cases where there is a benefit or advantage to the deceiver, but no corresponding loss to the deceived, the second condition is satisfied. (See Dr. Vimla v. Delhi Administration and Indian Bank v. Satyam Fibres (India) Pvt. Ltd. ). 9. A "fraud" is an act of deliberate deception with the design of securing something by taking unfair advantage of another. It is a deception in order to gain by another's loss. It is a cheating intended to get an advantage. (See S. P. Chengalvaraya Naidu v. Jagannath ). 10. "Fraud" as is well known vitiates every solemn act. Fraud 16 and justice never dwell together. Fraud is a conduct either by letter or words, which includes the other person or authority to take a definite determinative stand as a response to the conduct of the former either by words or letter. It is also well settled that misrepresentation itself amounts to fraud. Indeed, innocent misrepresentation may also give reason to claim relief against fraud. A fraudulent misrepresentation is called deceit and consists in leading a man into damage by willfully or recklessly causing him to believe and act on falsehood. It is a fraud in law if a party makes representations, which he knows to be false, and injury enures therefrom although the motive from which the representations proceeded may not have been bad. An act of fraud on court is always viewed seriously. A collusion or conspiracy with a view to deprive the rights of the others in relation to a property would render the transaction void ab initio. Fraud and deception are synonymous. Although in a given case a deception may not amount to fraud, fraud is anathema to all equitable principles and any 17 affair tainted with fraud cannot be perpetuated or saved by the application of any equitable doctrine including resjudicata. (See Ram Chandra Singh v. Savitri Devi and Ors. )”. “11. … … … … … … … In a leading English case i.e. Derry and Ors. v. Peek (1886-90) All ER 1 what constitutes "fraud" was described thus: (All ER p. 22 B- C)"fraud" is proved when it is shown that a false representation has been made (i) knowingly, or (ii) without belief in its truth, or (iii) recklessly, careless whether it be true or false". But "fraud" in public law is not the same as "fraud" in private law. Nor can the ingredients, which establish "fraud" in commercial transaction, be of assistance in determining fraud in Administrative Law. It has been aptly observed by Lord Bridge in Khawaja v. Secretary of State for Home deptt. , that it is dangerous to introduce maxims of common law as to effect of fraud while determining fraud in relation of statutory law. "fraud" in relation to statute must be a colourable transaction to evade the provisions of a statute. "if a statute has been 18 passed for some one particular purpose, a court of law will not countenance any attempt which may be made to extend the operation of the Act to something else which is quite foreign to its object and beyond its scope. Present day concept of fraud on statute has veered round abuse of power or mala fide exercise of power. It may arise due to overstepping the limits of power or defeating the provision of statute by adopting subterfuge or the power may be exercised for extraneous or irrelevant considerations. The colour of fraud in public law or administration law, as it is developing, is assuming different shades. It arises from a deception committed by disclosure of incorrect facts knowingly and deliberately to invoke exercise of power and procure an order from an authority or tribunal. It must result in exercise of jurisdiction which otherwise would not have been exercised. The misrepresentation must be in relation to the conditions provided in a section on existence or non-existence of which the power can be exercised. But non-disclosure of a fact not required by a statute 19 to be disclosed may not amount to fraud. Even in commercial transactions non-disclosure of every fact does not vitiate the agreement. "in a contract every person must look for himself and ensures that he acquires the information necessary to avoid bad bargain. In public law the duty is not to deceive. (See Shrisht Dhawan (Smt.) v.M/s.Shaw Brothers, 1992(1) SCC 534 ).” 12. … … … … … … … … … … … … … “13. This aspect of the matter has been considered recently by this Court in Roshan deen v. Preeti Lal Ram Preeti Yadav v. U. P. Board of High School and Intermediate Education, Ram Chandra Singh's case (supra) and Ashok Leyland Ltd. v. State of T.N. and Another [2004(3) SCC 1]. 14. Suppression of a material document would also amount to a fraud on the court, (see Gowrishankar v. Joshi Amba shankar Family Trust and S. P. Chengalvaraya Naidu's case (supra ). 15. "Fraud" is a conduct either by letter or words, which induces the other person or authority to 20 take a definite determinative stand as a response to the conduct of the former either by words or letter. Although negligence is not fraud but it can be evidence on fraud; as observed in Ram Preeti yadav's case (supra )”. Learned counsel appearing for the respondent submits that the document being registered, the presumption of truth is attached to the certificate appended by the Registrar under Section 62 of the Registration Act. He relies upon a decision of this Court in Shri Kirpa Ram and Others vs. Smt.Maina, 2002(2) Shim.L.C. 213. He submits that this Court in this decision follows the well established principle of law settled in Sennimalai Goundan and another vs. Sellappa Goundan and others, AIR 1929 Privy Council 81 and Kanwarani Madna Vati and another vs. Raghunath Singh and others, AIR 1976 HP 41. Learned counsel has also supported the judgment of the Courts below, in particular that of the learned trial Court, by urging that merely because the parties to the lis are related that would not perse attract the principle that the defendant was in fiduciary relationship which would have influenced the plaintiff. Learned counsel has also relied upon a decision of the Madras High Court in P. Saraswathi Ammal vs. Lakshmi Ammal alias Lakshmi Kantam, AIR 1978 Madras 361 to the 21 effect that mere bond of kinship does not establish undue influence. As a general