RSA No. 1380 of 2003 (O&M) 1 IN THE PUNJAB AND HARYANA HIGH COURT AT CHANDIGARH RSA No. 1380 of 2003 (O&M) Date of Decision : 30.1.2009 Balwinder Singh .......... Appellant Versus Smt. Malan (dead through L.Rs.) ...... Respondents CORAM : HON'BLE MR. JUSTICE VINOD K. SHARMA Present : Mr. Vijay Rana, Advocate for the appellant. Mr. G.S. Nagra, Advocate for the respondents. **** VINOD K. SHARMA, J. (ORAL) This regular second appeal is directed against the judgment and decree 22.8.2002 passed by the learned lower appellate Court vide which suit filed by the plaintiff-respondent for declaration, that power of attorney dated 24.5.1994 executed in favour of the appellant-defendant as also the sale deeds executed in pursuance thereto were null and void and not binding on the rights of the plaintiff to inherit the property. Malan Devi grandmother of the appellant-defendant No.1 was said to have executed a power of attorney on 24.5.1994 in favour of the appellant-defendant No.1. On the said date she is also said to have entered into an agreement to sell in favour of defendant No.1/ appellant as also the RSA No. 1380 of 2003 (O&M) 2 deed of cancellation of power of attorney earlier executed in favour of Surjit Singh the son of Smt. Malan Devi. The suit was contested by defendant No.1 on the plea that the power of attorney as well as the sale deed and other documents were validly executed. The power of attorney was in fact for consideration of rupees five lacs, which was paid by him to Smt. Malan Devi at the time of execution of the agreement to sell. The defendant No.1 admitted execution of the sale deed in favour of defendants No. 2 to 4 and 7 to 10. During the pendency of the suit defendants No. 3 & 4 compromised the matter with the plaintiff and paid the sale consideration afresh by taking a positive stand that the sale by defendant No.1 was on the basis of a forged and fabricated document. The suit qua defendants No. 3 & 4 was ordered to be dismissed in view of compromise. The learned trial Court accepted the version of defendant No.1 and dismissed the suit. The learned trial Court was pleased to hold that the execution of the power of attorney stood duly proved by producing the attesting witness to the document and further held that the power of attorney was duly registered. Thus, per se admissible in evidence. The power of attorney was not forged or fabricated document. The learned trial court by upholding the power of attorney, agreement to sell as well as the deed of cancellation dismissed the suit. RSA No. 1380 of 2003 (O&M) 3 The learned lower appellate Court, reversed the findings recorded by the learned trial Court by observing as under :- “The defendants No. 2 and 4 (emphasis supplied ) had paid Rs. 2,48,000/- vide two separate cheques No. 447583 dated 14.12.1995, drawn on Punjab and Sind Bank, Model Town, Branch, Jalandhar City, towards the consideration of compromise. It is clearly mentioned that the said land 16 kanals 10 marlas was fraudulently sold by defendant No.1 Balwinder Singh, on the basis of forged power of attorney. It is surprising that the defendant No.1 is relying upon this document Ex. C1 so heavily in which there is a clear recital about the forgery of the impugned power of attorney. Had the said power of attorney Ex. D1 been validly and duly executed, defendants No. 3 and 4 were not insane to pay heavy amount of Rs. 2,48,000/- for 10 Kanals 10 marlas of the land against vide two separate cheques mentioned above. Compromise Ex. C1 clearly establishes that execution of the power of attorney Ex. D1 and the consequent sale deeds were fraudulents and were the result of forgery. This document has been referred by the trial court without attending to its glaring content regarding the admitted forgery of power of attorney Ex. D1. The defendants No. 3 and 4 had paid heavy price as mentioned above, to wriggle out from the clutches of the shady deal. 18. Although, it had already been discussed the passing of the sale consideration of Rs. 5,00,000/- remained to be proved. Both the witnesses are RSA No. 1380 of 2003 (O&M) 4 giving divergent version about the arrangement of the amount of consideration and both the witnesses, who are father and son inter se, shatter the others oral testimony beyond repair. There can be no hesitation to hold that the said huge amount of Rs. 5,00,000/- was never paid to the appellant Malan, who would never had kept any cash with herself. The natural conduct would have been to get it deposited in the bank or to distribute amongst the off springs or to invest it somewhere. None of these circumstances had been alleged or proved on record which clearly dispels the version of passing of the consideration. 19. In view of the totality of the circumstances and preponderence upon the probabilities, I find no escape from holding that the power of attorney Ex. D1 is the result of forgery and had not been proved to be executed by Malan with her aware and free volition. Consequently, the sale deeds are held to be illegal, null and void being executed by Balwinder Singh, having no authority to do it.” The learned counsel appearing on behalf of the appellant contends that the following substantial questions of law arise for consideration by this Court :- 1. Whether the judgment and decree passed by the learned lower appellate Court is perverse on the face of record being contrary to the positive documentary evidence brought on record ? 2. Whether the learned lower appellate Court was justified in reversing the well reasoned judgment passed by the RSA No. 1380 of 2003 (O&M) 5 learned trial Court ? In support of the first substantial question of law the learned counsel appearing on behalf of the appellant contends that the power of attorney dated 24.5.2004 was duly proved on record by producing the attesting witnesses. There was no evidence brought on record to prove that the document to be a fictitious document, therefore, the learned lower appellate Court was in error in coming to the conclusion that the power of attorney was not validly executed. However, this contention of the learned counsel for the appellant cannot be accepted. The learned lower appellate Court while accepting the thumb impression of Smt. Malan on power of attorney rejected the same in view of the evidence brought on record and keeping in view the relation of appellant with Malan. The learned lower appellate Court came to the conclusion that the document was outcome of misrepresentation as there was no proof of payment of rupees five lacs. The agreement to sell did not bear any date. The learned lower appellate Court therefore rightly held that merely because the document is proved by the witnesses or the scribe would not make it a genuine document if the facts and circumstances show that the same was not executed by free mind and knowledge by the executant. The first substantial question of law as framed deserves to be answered against the appellant-defendant. The learned counsel for the appellant on the second substantial RSA No. 1380 of 2003 (O&M) 6 question of law contended that the finding was recorded by the learned trial Court on appreciation of evidence which could not be said to be perverse, therefore, the learned lower appellate Court could not have interfered with the said finding by taking altogether a different view on the same material. This argument also cannot be accepted. The learned lower appellate Court has given good and valid reason to come to the conclusion that the findings recorded by the learned trial Court were not sustainable in law on the facts and evidence produced on record. The second question of law is also answered against appellant-defendant. The finding of fact recorded by the learned lower appellate Court does not suffer from any perversity so as to be interfered with in exercise of jurisdiction under Section 100 of the Code of Civil Procedure. No merit. Dismissed. 30.1.2009 ( VINOD K. SHARMA ) 'sp' JUDGE