RSA No.1567 of 1980 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH RSA No.1567 of 1980 Date of decision: 4.3.2010 Smt. Satya Devi ............Appellant Versus Sh. Surinder Kumar and others .........Respondents CORAM: HON'BLE MR. JUSTICE ALOK SINGH -.- Present: Mr. Avinesh Chander Jain, Advocate for the appellant. Mr. Amit Jain, Advocate for the respondents. --- 1. Whether Reporters of local papers may be allowed to see the judgment?Yes 2. To be referred to the Reporters or not? Yes 3. Whether the judgment should be reported in the Digest? Yes ALOK SINGH, J. 1. This is a second appeal filed by the plaintiff/appellant, assailing the judgment and decree dated 19.2.1980 passed by the Addl. District Judge, Jalandhar in Civil Appeal No.315 of 1979, setting aside the judgment and decree dated 29.9.1976 passed by the Sub-Judge, Jalandhar, whereby the learned trial Court had decreed the suit of the plaintiff declaring Partnership deed dated 5.7.1965 as null and void, vitiated with fraud, collusion and misrepresentation. 2. The brief facts of the present case are that plaintiff filed RSA No.1567 of 1980 2 the suit for declaration to the effect that the alleged deed of partnership dated 5.7.1965 be declared void and nullity as it is vitiated with fraud, collusion and misrepresentation. As per plaintiff, the following pedigree-table will be useful in narrating the facts:- Jit Mal Naranjan Dass Vidya Sagar Churan ji Lal (Died on 3.7.65) (Defdt. No.3) Widow Savitri Devi Plff. No.1 Ravinder Kumar Surinder Kumar (Defdt. No.2) (Defdt. No.1) Trishla Devi Satya Devi Plaintiff No.3 Plaintiff No.2 3. As per plaintiff, there was a registered partnership known as M/s Jain Iron Works Tanda Road, Jalandhar, with its branches at Delhi and Calcutta, which was constituted under a partnership deed dated 1.4.1962; Naranjan Dass one of the partner and husband of the plaintiff No.1 and father of defendant Nos.2 and 3 died on 3.7.1965 and after his death, the defendants with mutual conspiracy and collusion and fraud got executed the alleged deed of partnership dated 5.7.1965 and got the same signed from the plaintiffs. It is further alleged that the said partnership deed dated 5.7.1965 is not a valid document and is inoperative and not binding on the plaintiffs being void and nullity on the following grounds:- “a. The plaintiffs never executed this document, their signatures were secured by defendants No.1,3 and Charanji Lal father of defendants No.1 and 2 by misrepresentation RSA No.1567 of 1980 3 that some documents had to be submitted to the Income Tax Department and had to be signed by them and the plaintiffs were victimized by this fraud and misrepresentation and signed the document (Deed). b. While in the partnership deed dated 1.4.1962, the good Will was to remain the property of Naranjan Dass, but by the new document the Good will right was transferred or changed fraudulently in favour of the defendants. This was done to cause wrongful loss to the plaintiffs. c. The factory building is owned by Naranjan Dass deceased. In the deed dated 5.7.1965 it was fraudulently incorporated that it belonged to all partners thus fraudulently depriving the plaintiffs of their valuable right in their personal assets. d. In the new deed the widow of deceased Naranjan Dass was given 15 N.P. share while her husband had 30 paise share. This was the result of patent intention of defendants to deprive her of her due share in the partnership. 30 N.P. share of Shri Naranjan Dass should have devolved the natural course of his heirs the plaintiffs. e. At the date of the new deed on 5.7.1965 Ravinder Kumar was in England and could not be a party or privy to the deed, but his signatures had been taken on the document in a forged and fraudulent manner. f. The Income Tax Department has already declared this new document to be most suspicious document and it was not acted upon by the Department. g. Now Surinder Kumar Jain has been allowed salary at the rate of Rs.200/- per RSA No.1567 of 1980 4 month and a Bonus of Rs.200/-. This is arbitrary fixation of salary while before he never got any salary. h. Shri Naranjan Dass died on 3.7.1965. This document was fraudulently framed in hot haste on 5.7.1965 when even the death ceremonies had not been completely performed. The plaintiffs were stricken with grief and were shocked by death. They had hardly recovered mentally from the disaster when by sheer exploitation of their condition the above document was extracted and executed. i) Both Vidya Sagar defendant and Churanji Lal father of defendants No.1 and 2, had fiduciary relations of active confidence with plaintiffs. The plaintiffs were under their thumb, because they were the senior members of the family and their Counsel was sought for on all matters especially after the death of Shri Naranjan Dass. By employment of sheer coercive process, undue influence and representation of false facts and suppression of true facts the document was secured from plaintiffs by defendants No.1, 3 and Churanji Lal, father of defendants No.1 and 2. 4. The further case of the plaintiff is that the defendants were repeatedly asked to admit that partnership deed dated 5.7.1965, is void document and nullity but they refused to accept the same as void. Hence, cause of action arose in favour of the plaintiff to get the declaration declaring partnership deed as null and void. 5. Defendant No.1 contested the suit by taking legal RSA No.1567 of 1980 5 objections that suit was barred under Sections 32 and 33 of the Indian Arbitration Act; that the plaintiffs are estopped from instituting the present suit by their own act, conduct and acquaintance; that the suit is barred by time. It is further alleged by the defendants that the partnership in dispute is a partnership at Will and is terminable by any party by one month’s notice. It is further alleged by the defendants that the particulars of the alleged fraud, conspiracy and collusion are not given in the plaint and hence the plaint is liable to be dismissed. As per defendants, on the death of Shri Naranjan Dass, a new partnership was necessitated and the same was written and that the allegations of fraud, conspiracy and collusion are wrong. It is further alleged that partnership deed dated 5.7.1965 was executed with full consent and agreement of the partners and the plaintiffs were assisted by Shri Goverdhan Lal and Shital Parkash in every part and hence the alleged deed is valid. It is further alleged that after the execution of the partnership deed in dispute the plaintiffs and the defendants were deriving benefit arising out of the said partnership deed; factory building was not the property of Naranjan Dass alone but it was the property of all the partners. 6. From the pleadings of the parties, the following issues were framed by the learned trial Court:- “i) Whether the partnership deed dated 5.7.1965 was executed with fraud, misrepresentation and is null and void?OPP. ii) Whether the suit for merely declaration is not competent?OPP. iii) Whether the suit is barred under Section 32 and 33 of the Indian Arbitration Act?OPD. iv) Whether the Plaintiffs are estopped from filing this suit as alleged in para No.3 of the RSA No.1567 of 1980 6 Preliminary Objection?OPD. v) Whether the suit is time barred?OPD. vi) Whether the suit in the present form is not maintainable?OPD. vii) What is the effect of particulars of fraud etc. if not having given in the plaint?OPD. viii) Whether the suit is properly valued for the purposes of Court fee and jurisdiction?OPP. ix) Whether the plaintiffs have been deriving benefit under the partnership deed in question?If so, its effect?OPD. x) Relief.” 7. Learned trial Court decreed the suit having observed that partnership deed dated 5.7.1965 is a result of fraud and misrepresentation. 8. Defendants preferred first Appeal No.315 of 1979 before the District Judge, Jalandhar which was later on heard and decided by Addl. District Judge, Jalandhar vide impugned judgment dated 19.2.1980. First Appellate Court has reversed the finding of the learned trial Court on the question of fraud, collusion and misrepresentation. Learned first Appellate Court has recorded clear cut finding of fact that deed in question was written on 5.7.1965. Thereafter the plaintiffs did not raise a little finger or did nothing to challenge the validity of the partnership deed in dispute for a period of three years. They rather challenged the validity of the deed for the first time in the instant suit which was filed on 16.7.1968. Not only this, the defendants have brought on the record account opening forms of different Banks Exts.DW6/A, DW6/B, DW17/A and DW17/2 which were signed by the plaintiffs as partners of the new firm. Then there is letter dated 28.9.1967 written by Goverdhan Lal, husband of RSA No.1567 of 1980 7 Trishla Devi-plaintiff, on behalf of the Trishla Devi to the bank pursuant to the new partnership deed. A letter dated 28.9.1967 was also sent to the Income Tax department in the name of Trishla Devi on the basis of deed in question. Learned first Appellate Court has recorded the finding of fact that from the perusal of account Ext. A6 it reveals that balantsheet showing the profits accruing to the parties according to the shares recorded in the partnership deed. 9. Learned first Appellate Court also observed that entire evidence available on record clearly shows and proves beyond any doubt that the plaintiffs have been treating themselves as partners after the execution of the partnership deed Ex.DW2/1 without raising any objection about the terms of the partnership deed; this conduct of the plaintiffs certainly militates against their version that their signatures on the partnership deed in dispute were obtained by fraud and misrepresentation etc. The learned first Appellate Court has observed that although factory building was initially purchased in the name of Naranjan Dass but lateron conduct of Niranjan Dass makes it clear that this was the property of partnership concern Ex.PW8/1 is the personal property tax return of Niranjan Dass submitted to the Municipal Committee, Jalandhar and Ext.PW8/2 is the property tax return of the partnership concern shows that this factory building was always treated as building of partnership firm. Learned first Appellate Court also recorded finding of fact that plaintiff could not prove as to when they actually detected the fraud. The plaintiff had every occasion to detect the fraud at the time of opening the account of the new partnership deed and signing the balance-sheet but they kept mum, hence, factum of fraud and misrepresentation is not proved. 10. From the perusal of finding recorded by the first Appellate RSA No.1567 of 1980 8 Court, I am satisfied that these are the finding of fact based on cogent evidence available on record. Plaintiff/appellant could not point out any perversity in the judgment passed by the first Appellate Court., 11. It is the settled position of law that this Court cannot interfere in the findings of fact recorded by the Courts below until and unless substantial question of law is made out by the appellant. Even if two views are possible, this Court while exercising power under Section 100 C.P.C. cannot substitute its own findings without their being any substantial question of law. As to whether factum of fraud and misrepresentation is proved or not is a question of fact and cannot be said to be a substantial question of law. 12. In my humble opinion, no substantial question of law is arising in the present appeal. The present appeal, being devoid of merit, must fail and the same is dismissed with costs through out. (ALOK SINGH) 4th March, 2010 JUDGE ashish