Regular Second Appeal No.3174 of 1984(O&M) -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. Regular Second Appeal No.3174 of 1984(O&M) Date of Decision: April 18, 2011 Naib Singh and others .....Appellants v. Gurdev Kaur .....Respondent CORAM: HON'BLE MR.JUSTICE RAM CHAND GUPTA Present: Mr.H.R.Bhardwaj, Advocate for the appellants. Mr.Ashok Singla, Advocate for the respondent. ..... RAM CHAND GUPTA, J. 1. Facts leading to the present Regular Second Appeal are as under:- 2. Sant Singh (deceased) was having one half share in the total land described in the heading of the plaint. He died about 35-36 years before filing of the suit leaving behind two widows, namely, Smt.Santi- plaintiff and Smt. Chotto. Originally the suit was filed by Smt.Santi, widow of deceased Sant Singh on 9.5.1979 as an indigent person. After death of Smt.Santi, Gurdev Kaur was impleaded as her legal representative on the basis of Will dated 6.2.1979, Ex.A-1, executed by Smt.Santi in favour of Gurdev Kaur. Gurdev Kaur was also permitted to sue as an indigent person. Smt.Santi was having 1/4th share in the total land measuring 192 kanals 3 marlas, as mentioned in the heading of the plaint. Smt.Parsin Kaur is the sister of Smt.Chhoto, another widow of Sant Singh. Harcharan Singh is husband of Parsin Kaur. Appellants-defendants Naib Singh, Gurmel Singh and Jagdev Singh are sons of Harcharan Singh and Parsin Kaur. After death of Sant Singh, Harcharan Singh started living with Smt.Santi and Smt.Chhoto, both widows of Sant Singh and started looking after their land and won faith and confidence of both of them. On persuasion of Harcharan Regular Second Appeal No.3174 of 1984(O&M) -2- Singh, Smt.Santi and Smt.Chhoto accompanied him for executing a Will of their property in his favour to Mansa. Wazir Singh, father of Harcharan Singh and Darbara Singh, uncle of Harcharan Singh also accompanied them. 3. As per case set up by Smt.Santi, though she and Smt.Chhoto wanted to execute the Will of their property in favour of Harcharan Singh and in fact, they executed and got registered a Will dated 17.7.1967 in favour of Harcaharn Singh and, however, taking undue advantage of the fact that she was an illiterate lady and was under influence of Harcharan Singh, he got her thumb impression on another document without making clear the contents thereof to her, while she was sitting in a hotel, on the plea that her thumb impression was being taken for the purpose of execution of the Will. Hence, she put her thumb impression by taking the same as Will. However, one year prior to the filing of the present suit, Harcharan Singh started harassing Smt.Santi and he also refused to give proper return of her land and hence, she visited the office of Sub Registrar, Budhlada, on 6.2.1979 and cancelled her Will dated 17.7.1967, executed in favour of Harcharan Singh and executed another Will in favour of Gurdev Kaur, the present plaintiff. However, on 20.3.1979, Smt.Santi came to know from Patwari Halqa that Harcharan Singh got executed a mukhtarnama from her and Smt.Chhoto by committing fraud upon her. It is further pleaded that on the basis of said mukhtarnama, dated 17.7.1967, Harcharan Singh executed sale deed of entire property of Smt.Santi in favour of his sons on 20.2.1979, i.e., after few days of her cancelling the Will in his favour and executed another Will in favour of Gurdev Kaur, who is mother's mother's father's sister of Smt.Santi. The said sale-deed is fictitious one and without any consideration and the same is null and void and not binding upon the rights of Smt.Santi. Mutation No.865, which was sanctioned on the basis of said sale deed dated 20.2.1979 has also been challenged. Plaintiff also claimed possession of the land in dispute on the basis of title, on the plea that mukhtarnama and consequential execution of sale deed by Harcharan Singh in favour of his sons is a result of fraud, illegal and void and a sham transaction. 4. Suit has been contested by appellants-defendants no.1 to 3, inter alia, on the ground that mukhtarnama dated 17.7.1979 was executed by Smt.Santi out of her free Will in favour of Harcharan Singh, their father, Regular Second Appeal No.3174 of 1984(O&M) -3- who was authorised to deal with the property, in any manner, by Smt.Santi and that they are bona fide purchasers for consideration of `36,000/- from Harcharan Singh, general power of attorney of Smt.Santi and hence, it is pleaded that Smt.Santi or Gurdev Kaur is having no right to seek possession of the land in dispute from them. It is denied that power of attorney is a result of fraud and misrepresentation. It is also denied that the sale-deed in their favour by their father Harcharan Singh as attorney of Smt.Sasnti is a sham transaction. 5. From the pleadings of the parties, following issues were settled by learned trial Court for adjudication:- “1. Whether the suit is not maintainable in the present form/ OPD. 2. Whether the plaintiff is estopped from challenging the mukhtiar-nama dated 17.7.1967? OPD. 3. Wherther the suit is bad for non-joinder of Harcharan Singh? OPD. 4. Whether the suit is properly valued for the purposes of court fee and jurisdiction? OPP. 5. Whether the plaint is defective for want of the particulars of alleged fraud? OPD. 6. Whether the defendants are bona fide purchaser for value without notice of anybody else rights in the suit land and the sale in their favour is protected? OPD 7. Whether Mukhtiarnama dated 17.7.1967 purporting to have been executed by Smt.Santi in favour of Harcharan Singh is the result of fraud and mis-representation? OPP 8. Whether the sale-deed dated 20.2.1979 executed by mukhtiar of Smt.Santi in respect of 1/4th share in favour of defendant nos.1 to 3 who are sons of Harcharan Singh, is null void and illegal and is the result of fraud and the same has got no effect on the rights of Smt.Santi in the suit land? OPP. 9. Whether the suit is within time? OPP. 10. Whether the plaintiff is entitled to possession of the suit land? OPP. 11. Relief.” Regular Second Appeal No.3174 of 1984(O&M) -4- 6. Parties led oral as well as documentary evidence in support of their respective contentions before learned trial Court. As Smt.Santi died before she could appear in the witness box, hence, her legal representative, Smt.Gurdev Kaur examined herself as PW1, whereas Naib Singh ,one of the respondents-defendants, examined himself as DW1. DW2 is Gurcharan Singh Sodi, Deed Writer. DW3 is Mansa Singh, Lamberdar, DW4 is Darbara Singh and DW5 is Harcharan Singh, father of defendants. Ex.P1 is copy of jamabandi for the year 1977-78. Ex.D1 is sale deed dated 20.2.1979. Ex. D2 is power of attorney dated 17.7.1967. 7. Learned trial Court after considering oral and documentary evidence and after hearing both the parties decided issue nos.7, 8 and 10 against plaintiff and issue no.9 in her favour, whereas issue nos.2, 4, 5 and 6 were decided in favour of defendants-respondents and issue nos.1 and 3 against them. As a result of findings on various issues, suit filed by respondent-plaintiff was dismissed. 8. Aggrieved against the said judgment, respondent-plaintiff filed appeal before learned Additional District Judge, Bathinda, who accepted the appeal filed by her, while reversing the finding on issue nos.5 to 8 and 10 and as a consequence thereof, respondent-plaintiff was held entitled to possession of the suit land, i.e., 1/4th share of land total measuring 192 kanals 3 marals and, accordingly suit filed by Smt.Santi, now represented by Smt.Gurdev Kaur, respondent-plaintiff was decreed for joint possession of 1/4th share in the land total measuring 192 kanals 3 marlas, fully described in the headnote of the plaint, situated at Village Chak Ali Sher. 9. Aggrieved against the said judgment and decree passed by learned Additional District Judge, Bhatinda, dated 19.10.1984, the present Regular Second Appeal has been filed by appellants-defendants no.1 to 3, which was admitted for hearing by this Court on 11.3.1985, without framing substantial questions of law. 10. A Full Bench of this Court in the case of Ghanpat v. Ram Devi AIR 1978 Punjab and Haryana 137 had taken a view that in view of Section 41 of the Punjab Courts Act, the amended provisions of Section 100 of the Code of Civil Procedure, as amended in 1976, were not applicable to the second appeals filed in this Court and accordingly, no substantial question of law was framed, nor the aforesaid regular second Regular Second Appeal No.3174 of 1984(O&M) -5- appeals were admitted on any such substantial question of law. However, the Hon'ble Apex Court in the case of Kulwant Kaur v. Gurdial Singh Mann (dead) by LRs (2001) 4 JT SC 158 : (AIR 2001 SC 1273) has held that after amendment of Code of Civil Procedure in the year 1976, thereby amending Section 100, Section 41 of the Punjab Courts Act had become redundant and repugnant to the Central Act, i.e., Code of Civil Procedure and therefore was to be ignored and therefore, the second appeal shall only lie to this court under Section 100 of the amended Code of Civil Procedure on a substantial question of law. 11. It may be mentioned here that though question of law was not framed at the time of admission of present appeals, and however, it has been observed by Full Bench of this Court in Dayal Sarup v. Om Parkash (since deceased) through L.Rs and others (2010-4)160 PLR 1, that this Court can formulate question of law as contemplated under Section 100 of the Code of Civil Procedure at any point of time before hearing of the appeal, even without amending the grounds of appeal. It has also been held that it is the duty of the Court to formulate substantial question of law while hearing the appeal under Sections 100(4) and 100(5) of the Code and question of law can be permitted to be raised at any stage of proceedings. 12. Hence, in view of this legal proposition, learned counsel for the appellants was asked to file substantial questions of law, stated to be arising in this appeal. 13. Learned counsel for the appellants has filed the following substantial questions of law, stated to be arising in this appeal:- “a. Whether a sale made by a person duly authorized can be set aside only because it is in favour of a near relative of the attorney/vendor? b. Whether liability for any act unauthorised inter-se between the principal and the attorney would not be limited for action against the attorney himself and sale would not be affected when the power of attorney expressly gives him power of alienation?” 14. I have heard learned counsel for the parties and have gone through the whole record carefully. 15. It has been contended by learned counsel for the appellants that Regular Second Appeal No.3174 of 1984(O&M) -6- they are bona fide purchasers for consideration and that merely on the ground that they are sons of Harcharan Singh, who executed the sale deed in their favour, it cannot be said that the sale deed is a sham transaction. It has further been contended that Harcharan Singh was having duly executed general power of attorney in his favour by Smt.Santi deceased and that power of attorney was a registered one and the same was not withdrawn by Smt.Santi till the date of execution of the sale deed in favour of appellants- defendants by Harcharan Singh. It is further contended that as power of attorney is a registered one and hence, statutory endorsement of sub Registrar on the power of attorney establishes that the same was read over to her and that she affixed her thumb impression after duly understanding the same before the Sub Registrar. Hence, it is contended that learned first appellate Court has committed illegality in coming to the conclusion that the document was got thumb marked from her without apprising her of its contents. It is further contended that if Smt.Santi was having any dispute with her attorney, i.e, Harcharan Singh, she could proceed against him and that on that basis sale deed executed in favour of appellants-defendants by Harcharan Singh cannot be said to be a sham transaction. It is further contended that plea of fraud, like any other charge of criminal offence, whether made in civil or criminal proceedings, has to be established beyond reasonable doubts and that finding as to fraud cannot be based on suspicions and conjectures. It is further contended that Smt.Santi died without appearing in the witness box and hence, it is contended that there is no evidence as to under what circumstances, she executed power of attorney in favour of Harcharan Singh and hence, it is contended that learned first appellate Court has committed illegality in reversing the judgment passed by learned trial Court. 16. He has vehemently contended that if a document is a registered document, registration certificate shall be presumed to be genuine unless an unimpeachable evidence is produced to the contrary and that registered document cannot be ignored on conjectures and surmises. On the point he has placed reliance upon number of judgments rendered in Sant Ram v. Brij Mohan Kaura and another, 2006(2) RCR (Civil) 769, Chanan Singh and others v. Mit Singh and others, 2010(2) HLR 320, Ram Chandra Das v. Farzsand Ali Khan and others, 1912 (34) ILR 253, Regular Second Appeal No.3174 of 1984(O&M) -7- Ishwar Dass Jain (Dead) through LRs v. Sohan Lal (dead) through LRs, 2000(1) RCR (Civil) 168, Voleti Venkata Rama Rao v. Kasapragada Bhaskararao and others, AIR 1962 AP 29, Subhash Chander Kumar v. Prabhu Dayal and another, 1994 PLJ 443, Smt.Rami v. Sohan Singh (deceased) and others, 1991 PLJ 587, Shivdas Loknathsing and others v. Gayabai Shankar Surwase, 1994(1) Civil Court Cases 597 (Bombay), Irudayam Ammal and others v. Salayath Mary, AIR 1973 Madras 421 and Raj Kumar and others v. Hardwari and others, 2007(2) RCR (Civil) 123. 17. He has further contended that it was for the plaintiff to specifically plead and prove the alleged fraud in execution of general power of attorney and the sale deed by the attorney in favour of present appellants- defendants and, however, respondent-plaintiff has failed to prove the same. On the point, he has placed reliance upon ALN Narayanan Chettyar and another v. Official Assignee High Court, Rangoon and another, (28) AIR 1941 Privy Council 93 and Bishundeo Narain and another v. Seogeni Rai and others, AIR (38) 1951 Supreme Court 280. 18. On the other hand, it has been contended by learned counsel for the respondent-plaintiff that in the present case fraud is proved from the admitted circumstances of the case. It has been contended that respondent- plaintiff was an illiterate lady and that Harcharan Singh, father of present appellants-defendants, was having influence upon her as admittedly he used to look after her land after death of her husband and that after winning her confidence, he alongwith her father and uncle brought her to Mansa on the plea that a Will was to be executed by her in favour of him and that taking undue advantage of the same, he got executed a power of attorney, which is surrounded by suspicious circumstances. Further contended that when Smt.Santi lost faith in him and cancelled her Will, a few days thereafter, he got executed sale deed in favour of his sons, two of whom were also minors, without any consideration and that consideration mentioned in the sale deed is also a fictitious one, as none of sons of Harcharan Singh, i.e., present appellants were having any income. It is also contended that nothing was paid to Smt.Santi by Harcharan Singh and hence, it is contended that as there was fiduciary relationship between Smt.Santi and Harcharan Singh, the burden of proving the absence of fraud and misrepresentation is upon Regular Second Appeal No.3174 of 1984(O&M) -8- the present appellants-defendants and their father as their father was in a dominating position. 19. Learned first appellate Court has given cogent reasons in reversing finding of learned trial Court on issues no.5 to 8 and 10 by observing as under:- “9. Patent facts are that Mst.Santi got one-fourth share in 192 kanals 3 marlas of disputed land on the death of her husband Sant Singh, which took place 35/36 years prior to filing of the suit. Mst.Chhoto was another widow of Sant Singh and her brother-in-law Harcharan Singh started living with these co-widows after the death of Sant Singh. For 35/36 years prior to filing of the suit, Harcharan Singh was looking after the land of his sister-in-law and Mst.Santi and he was the only male, who looked after their interest. It was natural for Mst.Santi and Mst.Chhoto to pin all their faith in Harcharan Singh and to take whatever he said, to be true. They could not think that Harcharan Singh could betray their confidence and commit any fraud on them. Darbara Singh (DW4) stated in cross-examination that Mst.Santi used to rely on Harcharan Singh in those days and that Mst.Santi used to act according to the advise and wishes of Harcharan Singh. Harcharan Singh stated that Mst.Santi was an illiterate lady. The plea of Mst.Santi in her plaint was that she and Mst.Chhoto were persuaded by Harcharan Singh to make will of their property to him, and for this purpose she was taken to Mansa by Harcharan Singh alongwith Zora Singh and Mansha Singh and there she was made to sit in a Hotel and her thumb impressions were obtained on a document which was not read over to her and by representing that she was making will of her property to him. Mst. Santi died before she could aver these facts from the witness-box. It is undisputed that on 17.7.67, Mst.Santi made will of her property to Harcharan Singh, and, similarly, Will in his favour was executed by Mst.Chhoto. Even before these wills were executed, statement of Gurcharan Singh scribed proves Regular Second Appeal No.3174 of 1984(O&M) -9- that Harcharan Singh got separate Mukhtar-nama from Mst.Chhoto and Mst.Santi for single purpose of getting mutation of her property sanctioned. It is true that Harcharan Singh being man of confidence of Mst.Santi, she could give Mukhtarnama to him. The fact, however, remains that for 30/35 years, Harcharan Singh had been looking after the land of Mst.Santi without a written Mukhtiarnama in his favour and even after the alleged execution of Ex.D2, he is not proved to have done any act, as Mukhtiar of Mst.Santi by way of transfer of her land in any manner, except when he executed sale-deed Ex.D1 on 20.2.1979 in favour of his sons, i.e., after 18 days of cancellation of her Will by Sant Kaur vide Ex.A-1, dated 6.2.1979. If all that was to be done by Harcharan Singh was to manage the land by giving it on batai or chakota and mostly to himself, something which he had been doing for 30/35 years, there was no necessity to execute a formal Mukhtiarnama in his favour. Relevant entry in scribe's register regarding disputed Mukhtarnama was entered by Gurcharan Singh (DW2) at serial No.672. This mukhtarnama purports to have been executed together by Mst.Chhoto and Mst.Santi. Being real sister of Harcharan Singh, Mst.Chhoto was expected to accept this Mukhtarnama. Column meant for thumb impression/thumb impressions of executant against entry No.672 of the scribe, bears only one thumb impression and that is the statement of Gurcharan Singh Sodhi. Sole thumb impression against entry No.672 aforesaid is not described to be of Mst.Santi or of Mst.Chhoto. Gurcharan Singh (DW2) stated that it is not mentioned in entry No.672 as to whom this thumb impression belongs. No effort was made by defendants-respondents to get the thumb impression of entry No.672 compared with the thumb impression of Mst.Santi on Will Ex.A-1 dated 6.2.1979 or the Will which Mst.Santi had admittedly executed in favour of Harcharan Singh on 17.7.67. Entry No.670 in scribe's register pertaining to will executed by Regular Second Appeal No.3174 of 1984(O&M) -10- Mst.Chhoto on 17.7.67 in favour of Harcharan Singh, but against that entry also the thumb impression of Mst.Santi was obtained by the scribe and then it was scored out. Even prior to the execution of the Wills by the two widows and the execution of the disputed Mukhtiarnama Harcharan Singh got Mukhtarnama from Mst. Santi and Chhoto for the sole purpose of getting mutation of her property sanctioned and entry regarding that Mukhtarnama was made by Gurcharan Singh Sodhi in his register at serial No.669. Unless the will and the Mukhtarnama had been executed, it is not understandable as to how there could have been any Muktharnama for sanctioning of mutation on behalf of the executant. It is thus, clear that Mst.Santi is not proved to have thumb marked entry No.672 in the register of the scribe, whereas, her thumb impressions were indiscriminatory obtained by Gurcharan Singh against entry which pertain to the Will of Mst.Chhoto, entry No.668 and entry No.669 as well. A look at Mukhtarnama Ex.D2 shows to the naked eye that thumb impressions of the executant below certification by Sub-Registrar are with the same black in pad with which their thumb impressions purported to have been obtained by the scribe, and the scribe is not expected to have gone before the Sub-Registrar and he has not stated this fact in his examination. Though citation of the names of the executant and the attesting witnesses on their thumb impressions below the certificate of the Sub-Registrar appear to have been written with fast hand, yet on visual comparison of this citation with the citation of their names by the scribe, I am led to believe that the names of the executant and the attesting witnesses have been cited by the scribe with the same black ink and pen. Relevant fact is also this that certificate purported to have been signed by the Sub-Registrar is in different handwriting, presumably by the Registration Clerk, in light black ink, while the signatures of the Sub-Registrar are in light blue ink. Ink used for citing the names of the Regular Second Appeal No.3174 of 1984(O&M) -11- executant and the witnesses below the certificate of the Sub Registrar is much thicker than the one used for writing the certificate and tallies with the ink used in the body writing of Mukhtarnama Ex.D2. Most probable fact, therefore, is that thumb impressions of executant and witnesses on Mukhtarnama Ex.D2 as well as those below the certificate of Sub-Registrar, were obtained by the scribe before the document was put before the Sub Registrar, and that Sub- Registrar only put his signatures above the stamp, otherwise proceedings of registration were not conducted by him and the whole process of registration was of perfunctory nature. This circumstance naturally gives colour to the version of the plaintiff-appellant that Mst.Santi never executed Mukhtarnama Ex.D2 as she was not conversant with its contents nor she participated in the registration process. This observation, I think finds support from two circumstances, and they are that after getting the thumb impressions of Mst.Santi on Ex.D2, which was not read over to her, Harcharan Singh never performed any act as Mukhtar by effecting any transfer of her land either by way of sale or mortgage or lease, and despite the fact that definite estrangement and parting of ways had taken place between harcharan singh and Mst.Santi, she made no reference or disputed Mukkhtarnama in her Will dated 6.2.1979. When Mst.Santi voluntarily cancelled her Will dated 17.7.67 for the reason that Harcharan Singh had forfeited her confidence, she must have cancelled the disputed Mukhtarnama if she had known that any such Mukhtarnama had been executed by her, consciously and voluntarily. It is true that fraud has to be established beyond doubt and finding thereto cannot be based on suspicions and conjectures, but there are circumstances which speak louder than men and expose the truth beyond doubt. In the present case, Wazir Singh attesting witness of Ex.D2 was no other man than the father of Harcharan Singh, while Darbara Singh admitted