RSA No.3517 of 2008 - 1 - ****** IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH RSA No.3517 of 2008 Date of decision:25.08.2010. Parkash Kaur ...Appellant Versus Surjit Kaur and others ...Respondents CORAM: HON’BLE MR. JUSTICE RAKESH KUMAR JAIN Present: Mr. B.S.Bedi, Advocate, for the appellant. Mr. Amit Rawal, Advocate, for the respondents. ***** RAKESH KUMAR JAIN, J. The plaintiff is in second appeal against judgment and decree of the Courts below by which her suit for separate possession by way of partition and for permanent injunction, has been dismissed. In brief, Jaswant Kaur was the owner of property in dispute comprising Khata No.428/555, Khasra No.98/2/1, bearing House No.B-XX-1173/1 (New) 1025/2 (Old), situated in Krishna Nagar, Ludhiana. She had two daughters namely Parkash Kaur (plaintiff) and Surjit Kaur (respondent No.1) Defendant Nos.2 and 3 RSA No.3517 of 2008 - 2 - ****** are the sons of defendant No.1. The case set up by the plaintiff for separate possession by way of partition of the property in dispute to the extent of 1/2 share by metes and bounds is on the ground that her mother Jaswant Kaur had died intestate and she being one of the heirs, out of the two heirs left behind by her mother, is entitled to 1/2 share and also prayed for consequential relief of permanent injunction seeking to restrain of the defendants from alienating the suit property in any manner. In reply, the defendants had alleged that Jaswant Kaur had purchased the land in dispute vide registered sale deed dated 09.09.1970 and had sold the property in dispute to defendant Nos.2 and 3 on 23.04.1993 vide Vasika No.2223 registered on 26.04.1993 for a consideration of Rs.50,000/-. Jaswant Kaur admittedly died on 22.04.1995 and the present suit was filed by the plaintiff on 31.05.1995. Due to variance in the pleadings of the parties, issues were struck by the learned Trial Court on 12.08.1997 and on the basis of oral as well as documentary evidence, both the Courts below dismissed the suit of the plaintiff/appellant. In this second appeal, plaintiff has pressed the only question of law to the effect that “whether a transaction entered at the behest of a person having fiduciary relationship can be said to be genuine and valid in the absence of proof of payment of amount of consideration.” He has relied upon two decisions of this Court in the case of Karnail Singh and others v. Dalip Kaur and others, RSA No.3517 of 2008 - 3 - ****** 1995 Haryana Rent Reporter 436 and in the case of Chalti Devi and others v. Rajinder Kumar and another, 2003(3) PLR 463. The sum and substance of the arguments of learned counsel for the appellant is that there was no money transaction in the sale deed dated 23.04.1993 and as such, the said sale deed cannot be set up by defendant Nos.2 and 3 in their favour to deny the plaintiff/appellant 1/2 share in the property of her mother. In reply, learned counsel for the respondents has submitted that there was no fraud, misrepresentation or undue influence exercised by the defendants upon Jaswant Kaur at the time of execution of sale deed dated 23.04.1993 and the amount of consideration of Rs.50,000/- was paid before the Sub Registrar at the time of registration of sale deed as it is indicated in the endorsement on the sale deed. It is also submitted that husband of Jaswant Kaur was even the attesting witness. Learned counsel for the appellant/plaintiff has very fairly admitted the endorsement of the Sub Registrar on the sale deed (Ex.D1) indicating the payment of Rs.50,000/- of the consideration before him. Learned counsel for the respondents has further submitted that certificate of the registering officer under Section 60 of the Registration Act, 1908 [for short “the Act”] is relevant to prove execution of the document (sale deed Ex.D1) and that the plaintiff being stranger to the sale deed cannot challenge the sale on the RSA No.3517 of 2008 - 4 - ****** ground that it is without consideration or a paper transaction. In support of his submission, he relied upon a Division Bench judgment of the Lahore High Court in the case of Piara v. Fattu, AIR 1929 Lahore 711 and a Single Bench judgment of this Court in the case of State of Punjab v. Gurmel Singh, 2003(2) Civil Court Cases 115. I have heard both learned counsel for the parties and have perused the record with their able assistance. The facts are not much in dispute. The property in dispute was exclusively owned by Jaswant Kaur having been purchased by her by way of registered sale deed dated 09.09.1970. The plaintiff and defendant No.1 are the only daughters of deceased Jaswant Kaur who died on 22.04.1995. Defendant Nos.2 and 3 are the sons of defendant No.1. The question involved is whether the plaintiff could succeed to the property of her mother to the extent of 1/2 share if the sale deed dated 23.04.1993 (Ex.D1) set up by the defendant Nos.2 and 3 is not believed. In order to challenge the sale deed (Ex.D1), learned counsel for the appellant has submitted that there was fiduciary relationship of deceased Jaswant Kaur with defendant Nos.2 and 3 being her grandsons who have got the sale deed in their favour of the property in dispute from her without giving any sale consideration. It is thus submitted that the said sale deed dated 23.04.1993 cannot be taken into consideration in order to deny her RSA No.3517 of 2008 - 5 - ****** natural right of succession. It is submitted that in the case of Karnail Singh and others' case (supra) and Chalti Devi and others' case (supra), this Court has held that in the case of fiduciary relationship, the person in position of active confidence and dominating position shall have to prove absence of fraud, misrepresentation or undue influence upon the person who has executed the document. To my mind, the law laid down in the aforesaid two authorities are on its own facts and is not applicable to the facts and circumstances of the present case because in the present case it has been admitted by learned counsel for the plaintiff/appellant that there was an endorsement on the sale deed by the Sub Registrar before whom it was registered that the sale consideration of Rs.50,000/- was paid by the vendees (defendant Nos.2 and 3) to the vendor (deceased Jaswant Kaur). In that situation, Section 60 of the Act would come to the rescue of the defendants. Section 60 of the Act reads as under: - “60. Certificate of registration. --(1) After such of the provisions of section 34, 35, 58 and 59 as apply to any document presented for registration have been complied with, the registering officer shall endorse thereon a certificate containing the word “registered”, together with the number and page of the book in which the document has been copied. (2) Such certificate shall be signed, sealed and dated by the registering officer, and shall then be admissible for the purpose of proving RSA No.3517 of 2008 - 6 - ****** that the document has been duly registered in manner provided by this Act, and that the facts mentioned in the endorsement, referred to in section 59 have occurred as therein mentioned.” In the case of Piara's case (supra), the Division Bench of the Lahore High Court has held that: - “The registration of a document is a solemn act to be performed in the presence of a competent official appointed to act as Registrar, whose duty it is to attend to the parties during the registration and see that the proper persons are present, are competent to act, and are identified to his satisfaction; and all things done before him in his official capacity and verified by his signature will be presumed to be done duly and in order. Therefore, the certificate endorsed on the sale deed by the Registering officer under Section 60 is a relevant piece of evidence for proving its execution.” Since the whole case of the plaintiff/appellant is that there was no consideration or lack of consideration in the sale deed dated 23.04.1993, in the case of State of Punjab (supra) this Court has held that in case of lack of consideration, a stranger to the sale deed cannot challenge the sale on the ground that it is without consideration or a paper transaction. Admittedly, Jaswant Kaur lived for another 1-½ years after the execution of the sale deed RSA No.3517 of 2008 - 7 - ****** (Ex.D1) and never challenged it by herself during her life time. In view of the aforesaid discussion, I do not find that the question of law, which has been tried to be raised by learned counsel for the appellant, involved in this appeal and as such, the appeal is found to be without any merit as the question of facts having been concurrently decided by both the Courts below are not amenable to challenge before this Court under Section 100 of the Code of Civil Procedure, 1908. In view thereof, the present appeal is dismissed, however, without any order as to costs. August 25, 2010 (RAKESH KUMAR JAIN) vinod* JUDGE