IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA RSA No. 445 of 2000 Reserved on: 28.04.2011 Decided on: 18.08.2011 ________________________________________________ Smt. Nathi alias Nathan & another. .....Appellants. Versus Shri Devnu .....Respondent. Coram The Hon'ble Mr. Justice V.K. Sharma, J. 1 Whether approved for reporting? Yes. For the appellants: Mr. Bhupender Gupta, Sr. Advocate with Ms Charu Gupta, Advocate. For the respondent: Mr. Ajay Chandel, Advocate. V.K. Sharma, J. This is defendants' regular second appeal against concurrent findings of fact rendered by the learned Senior Sub Judge, Kullu, H.P., vide judgment dated 11.01.2000, in Civil Suit No. 84 of 1992/106 of 1996, titled Shri Kewlu vs. Smt. Nathi alias Nathan & another, filed by the respondent herein as plaintiff against the appellants herein being the defendants, as affirmed by the learned District Judge, Kullu, H.P., vide judgment dated 18.08.2000, 1 Whether reporters of Local Papers may be allowed to see the judgment? Yes. 2 in Civil Appeal No. 37/200, Smt. Nathi alias Nathan & another vs. Kewalu. 2. Brief facts of the case as emerge out of the pleadings on behalf of the parties may be stated thus. 3. The dispute between the parties concerns the land detailed below (suit land): (i) 1/6th share of land comprised in Khata/Khatauni No. 659/1176 to 1178, measuring 1-8-10 bighas, kitta-10. (ii) 49/366 share of land in khasra No. 8570/5765, comprised under khata/khatauni No. 659/1, 1178/1, measuring 0-7-0 biswas. (iii) 1/3rd share in khasra No. 5762, comprised under khata khatauni No. 597/1094, measuring 0-10-0 biswas, incorporated in the jamabandi for the year 1985-86, situated in Phati Kais, Kothi Kais, Tehsil and District Kullu. 4. According to the plaintiff he is simpleton and illiterate. Defendant No. 2, Nesu is his real brother, who is very clever and is always in a look out to grab the property of the plaintiff as the latter has no male issue. Defendant No. 1, Smt. Nathi, is daughter of defendant No. 2, Nesu. She is married to Shri Pritam Chand who lives in the house of defendant No. 2 as Ghar Jawain. Earlier, the plaintiff had executed a Will in favour of the said Shri Pritam Chand. It is 3 alleged that on 7.7.1991, he was advised by defendant No. 2 to get the Will in favour of said Shri Pritam Chand, husband of defendant No. 1, revoked on the plea that he may go to his parental house or marry another lady. On his such representation and advise, he (plaintiff) came to Kullu on the next day, i.e. on 08.07.1991. He had been told by defendant No. 2 that he was to revoke the Will executed in favour of the said Pritam Chand and further to execute a Will in favour of defendant No. 1. By making him to sit under a Deodar tree in the court compound, defendant No. 2 left the place and came after half an hour along with a stranger. He was also having a typed paper which was represented to be the deed of revocation of previous Will in favour of the said Pritam Chand and also contained the provisions for further will in favour of defendant No. 1. Considering the typed paper to be a revocation deed and also a Will in favour of defendant No. 1, he thumb marked it. The contents of the above said document/typed paper were never read over and explained to him. He was also not made to understand as to what had been written in that paper. Thereafter, he was taken to a room quite opposite to the office of the Tehsilder, Kullu, where he was asked to thumb mark the said document. At that time also he was not made to understand the contents of the same. After few days, 4 defendant No. 1 and her husband Pritam Chand stopped serving him and visiting his house. In these circumstances, he was again forced to revoke the Will executed in favour of defendant No. 1 and further executed a Will in favour of Smt. Kamla (plaintiff's daughter) vide Will dated 15.1.1992. It was averred that on 1.5.1992, the defendants threatened to forcibly dispossess him from the suit land and claimed the same on the basis of some sale deeds. On having approached the Patwari Halqua, he came to know that on the basis of general power of attorney, allegedly executed by him in favour of defendant No. 2, two sale deeds of different dates had been executed in favour of defendant No. 1. It was further averred that defendant No. 2 had obtained the general power of attorney No. 329, dated 08.07.1991, in his favour by mis-representation and playing fraud on him and as such, the same is illegal, null and void. On the basis of the alleged general power of attorney defendant No.2 had sold the suit land to his daughter, defendant No.1, Smt. Nathi alias Nathan vide sale deeds 2218, dated 27.12.1991 and 285, dated 28.2.1992, respectively. Since he had never executed a general power of attorney in favour of defendant No. 2, the sale deeds aforesaid are also null and void and not binding upon him. Moreover, he is not having any land in Phati Kharahal. In the deed of general power of attorney, his land 5 has been mentioned to be in Phati Kharahal. In these circumstances, such general power of attorney is not in respect of the land situated in Phati Kais. It clearly shows that the recitals in the general power of attorney are wrong and do not reflect the mind of the plaintiff. 5. The suit was contested by the defendants on preliminary objections regarding maintainability and estoppel. On merits, it was stated that the plaintiff was married to one Smt. Poshi, who gave birth to a daughter, namely, Kamla. Since the husband and wife developed strained relations, they started living separately. As a result, Smt. Poshi started deserting and neglecting the plaintiff and consequently their marriage was dissolved as per divorce deed dated 31.7.1991. After the divorce, Smt. Poshi took her minor daughter, Kamla with her. In these circumstances, defendant No. 1 Smt. Nathi and her husband Pritam Chand started looking after and maintaining the plaintiff. They were also managing his household and agricultural affairs. In lieu of their past and future services, plaintiff had executed a Will in favour of Shri Pritam Chand, husband of defendant No. 1. Later on, when plaintiff intended to sell his land, he executed the general power of attorney dated 08.07.1991 in favour of defendant No. 2 of his own free will and on the basis thereof he (defendant No. 2) 6 had sold the suit land in favour of his daughter, defendant No. 1. Now, the plaintiff is bound by the sale deeds in favour of defendant No. 1. Further, plaintiff himself had held negotiations with defendant No. 1 for sale of the suit land and had received the sale consideration from her. Through registered sale deed No. 2218 dated 27.12.1991, land measuring 1-15-10 bighas was sold for a sale consideration of Rs.8000/- and through another sale deed dated 28.02.1992, land measuring 0-10-0 biswas was sold for consideration of Rs. 4000/-. The entire sale consideration amount was received by the plaintiff himself and possession of the suit land was also delivered to the vendee. Further, during the pendency of the suit, the plaintiff executed a compromise deed dated 03.10.1992, in the presence of witnesses, admitting the sales of the suit land in favour of defendant No. 1 to be genuine and that due to mis- understanding, he had to file the suit. On the basis of his admission as per the aforesaid compromise the suit was liable to be dismissed and also for this reason, the plaintiff is estopped from filing the same. Other allegations were denied. 6. Replication, refuting the stand on behalf of the defendants and reiterating the averments set up in the plaint, was filed by the plaintiff. 7 7. On the above pleadings, the following issues were settled: 1. Whether the plaintiff is owner in possession of the suit land? OPP. 2. Whether General power of attorney dated 8.7.1991 on behalf of plaintiff in favour of defendant No. 2 is result of fraud and mis-representation, as alleged? OPP. 3. Whether sale deed dated 27.12.1991 and 28.2.1992 by defendant No. 2 alleged general power of attorney of plaintiff are null and void? OPD. 4. Whether the suit in the present form is not maintainable? OPD. 5. Whether the plaintiff is estopped to file suit by his act and conduct? OPD. 6. Whether the suit stands compromise by the plaintiff with defendants, if so, with what effect? OPD. 7. Relief. 8. It shall be pertinent to notice at this stage that the suit was decreed by the learned trial court vide judgment and decree dated 16.01.1995, which were reversed by the learned Additional District Judge, Kullu, vide judgment dated 29.11.1995 and the case was remitted to the learned trial court for disposal afresh with a direction to record findings on all the issues including issues No. 5 and 6. 9. After remand, an application for leading additional evidence was filed by the defendants which was 8 dismissed on 24.05.1996 which order was set-aside by this Court in revision vide order dated 20.09.1996, permitting the defendants to lead additional evidence. Accordingly, DW-7, Shri Raj Kumar, Advocate, was examined on 12.12.1996. 10. Thereafter the suit was again decreed by holding issues No. 1 to 3 in affirmative and the remaining issues in negative. 11. Being dis-satisfied, the defendants again carried the matter in appeal to the court of the learned District Judge, Kullu, though unsuccessfully. 12. I have heard the learned counsel for the parties and perused the records. 13. The appeal has been admitted on the following substantial questions of law No. 1, 2, 4 and 5 filed along with grounds of appeal:- 1. Whether in the absence of particulars of fraud, both the courts below have relied upon inadmissible evidence regarding the alleged suspicious circumstances, holding Exhibit DW-7/A General Power of Attorney having been obtained by exercise of undue influence and fraud. 2. Whether both the courts below have wrongly held that there existed fiduciary relationship between the 9 plaintiff and defendant No. 2 merely on the ground that they are related as brothers, could such circumstances be alone sufficient to uphold such fact? Are not such findings returned by both the courts below against the provisions of Contract Act? 4. Whether both the courts below have ignored the provisions of Indian Registration Act whereby the endorsement of the certificate made by the Sub Registrar, while registering the document is conclusive, could the courts below on the evidence adduced by the plaintiff-respondent which was shaky and unworthy of credence, hold that the execution and registration of the document was suspicious? 5. Whether both the courts below have ignored Exhibit DW-6/A, the compromise deed executed by the plaintiff-respondent containing the admissions of due execution and registration of Exhibit DW-7/A? Are not the findings rendered to the contrary by both the courts below erroneous, illegal and perverse? 14. It is proposed to take up the substantial questions of law for discussion and decision as follows. 10 Questions No. 1 and 2. 15. Both these questions being inter linked requiring common appreciation of evidence and law, are taken up together for discussion and decision. A bare perusal of the averments set up on behalf of the plaintiff in the plaint, would go to show that the requisite particulars of fraud stand duly incorporated therein vide paras 1 to 8. The plaintiff while appearing as PW-1 has reiterated those averments on oath. He was subjected to quite lengthy and strenuous cross examination and has stood the test. 16. The fraud perpetrated by the defendants upon the plaintiff is writ large on the face of record. The disputed general power of attorney is Ex.DW- 7/A, copy of which is Ex.PX, as stated by DW-7, Shri Raj Kumar Sharma, Advocate, who had drafted the same. Indisputably the suit land is situate in Phati Kais, Kothi Kais, Tehsil and District Kullu. However, in power of attorney Ex.DW-7/A, in para 3, in line 5, the property regarding which the same was purportedly executed by the plaintiff in favour of defendant No.2, Nesu, was initially stated to be situate in Phati Kharahal, Kothi Kais, Tehsil and Distt. Kullu. But, later on the name of Phati has been changed from Kharahal to Kais by 11 resorting to over typewriting. Meaning thereby that whereas the word ‘Kharahal’ has been scored off and instead word ‘Kais’ has been inserted in its place in between lines 4 and 5. However, in contrast in Ex.PX, which is a photocopy of the original power of attorney Ex.DW-7/A, in para 3 in line 5 the name of ‘Phati’ originally incorporated as ‘Kharahal’ remains the same. 17. Thus, it is manifest that general power of attorney, Ex.DW-7/A, which was allegedly executed by the plaintiff in favour of defendant No.2, Nesu, in fact does not relate to the suit land as whereas the suit land is situate in Phati Kais, the power of attorney Ex.DW-7/A, copy of which is Ex.PX, relates to the property situate in Phati Kharahal, albeit the fact that in power of attorney Ex.DW-7/A after scoring of word ‘Kharahal’ word ‘Kais’ has been substituted fraudulently, as is abundantly clear on comparison of the original power of attorney Ex.DW-7/A and copy thereof Ex.PX, for which no explanation what to say of reasonable explanation is coming forth from the side of the defendants. 18. Another important circumstance attending upon execution of general power of attorney Ex.DW-7/A, dated 27.12.1991, allegedly by the plaintiff in favour of 12 defendant No.2, Nesu, is that according to PW-6, Shri Dhani Ram, about two years ago from the day he was making statement before the learned trial court on 14.9.1993, the plaintiff requested him to accompany the former to Kullu, as he had to execute a will in favour of Nathi by revoking the will in favour of Pritam. Accordingly, he along with the plaintiff and defendant No.2, Nesu, had gone to Kullu. However, defendant No.2, Nesu, had told him that as they themselves had arranged for a witness, he was not required. As such, he had returned home from Kullu. It is another suspicious circumstance surrounding general power of attorney Ex.DW-7/A. 19. Still further another aspect of the matter which requires specific mention is that general power of attorney Ex.DW-7/A was allegedly executed by the plaintiff in favour of defendant No.2, Nesu on 8.7.1991, on the basis of which the latter had executed two sale deeds Ex.DW-2/A, dated 27.12.1991 and Ex.DW-4/A, dated 28.2.1992, in favour of defendant No.1, Nathi alias Nathan. According to the defendants the plaintiff had received the amount of sale consideration mentioned in those sale deeds. If it was so, there was no occasion for him to have executed will Ex.PW-4/A in the interregnum 13 on 15.1.1992, in favour of his daughter Kamla, by revoking the earlier will, as aforesaid. This is also a pointer towards the factum that the plaintiff in fact had no knowledge about the alleged general power of attorney Ex.DW-7/A, at that stage. This inference is further fortified as it was nowhere suggested to the plaintiff during cross examination as PW-1 that the amounts of sale consideration mentioned in the aforesaid sale deeds were in fact received by him. Thus, when the very foundation, that is, general power of attorney Ex.DW-7/A, which does not relate to the suit property, falls, the superstructure, that is sale deeds Ex.DW-2/A, dated 27.12.1991 and Ex.DW-4/A, dated 28.2.1992, executed on its strength, can also not stand. 20. It is pleaded by the plaintiff that he is simpleton and illiterate. It is in evidence that his marriage with Smt. Poshi, from whom he had a daughter by name Kamla, had broken down and ended in divorce, pursuant to which, the daughter had gone with the mother. Defendant No. 2, Nesu and his daughter defendant No.1 Smt. Nahti alias Nathan, are elder brother and niece of the plaintiff, respectively. It is in evidence that after divorce the plaintiff was totally dependant upon the defendants and as such he had 14 executed a will in favour of the aforesaid Pritam Chand, husband of defendant No.1, Smt. Nathi alias Nathan, who was living at the house of defendant No.2, Nesu as Ghar Jawain. Thus, in such circumstances, it shall not be unsafe to infer that the inter se relationship between the plaintiff and defendant No.2, Nesu, was in the nature of a fiduciary relationship and the latter being his elder brother, was in a position to dominate the former, who is simpleton and illiterate. However, it appears that when defendant No.1 Smt. Nathi alias Nathan and her husband Pritam Chand stopped rendering services to the plaintiff, he executed a fresh will dated 15.1.1992, Ex.PW-4/A, in favour of his daughter, Kamla aforesaid by revoking the earlier will in favour of Pritam Chand, husband of defendant No.1, Smt. Nathi alias Nathan. 21. In view of the above, it cannot be said by any stretch of imagination that the plaint lacks in material particulars of fraud or that the learned courts below have relied upon inadmissible evidence regarding general power of attorney Ex.DW-7/A being surrounded by suspicious circumstances and having been obtained by exercise of undue influence and fraud. 15 Question No.4. 22. It has already been held that general power of attorney Ex.DW-7/A does not relate to the suit property being a document surrounded by grave suspicious circumstances. It being so, sale deeds Ex.DW-2/A, dated 27.12.1991 and Ex.DW-4/A, dated 28.2.1992, executed on its strength are of no legal consequence and as such endorsements made by the Sub Registrar thereupon are also of no legal value and thus the same do not lend any credence or conclusiveness to these sale deeds. In the peculiar facts and circumstances of the present case, mere registration of the aforesaid sale deeds would not go to validate the same. Thus, the defendants cannot derive any benefit out of the proposition of law propounded by this court in Shri Kripa Ram and others vs. Smt. Maina, 2002 (2) Shim. L.C. 213 and Amar Chand vs. Madan Lal, RSA No. 283 of 1996, decided on 27th December, 2007. Question No.5. 23. Execution of compromise Ex.DW-6/A has been denied by the plaintiff during further cross examination as DW-1 on 6.10.1993. Compromise Ex.DW- 6/A is said to have been executed on 3.10.1992. It is recited therein that the next date of hearing in the suit 16 out of which the present appeal has arisen, was fixed in the learned trial court on 19.10.1992. DW-6 has categorically admitted during cross examination that compromise Ex.DW-6/A could not be produced in the court on 19.10.1992, for the reason that the same was not acceptable to the plaintiff. In compromise Ex.DW- 6/A, there is no mention about general power of attorney Ex.DW-7/A, allegedly executed by the plaintiff in favour of defendant No.2, Nesu. On a bare perusal of the location of thumb impressions of the parties and signatures of the marginal witnesses and the scribe on the reverse side of compromise Ex.DW-6/A, it is manifest that the same is also on the face of it a highly suspicious document. The learned trial court has dealt with compromise Ex.DW- 6/A in paras 13 and 14 of its judgment in quite detail. Such findings have also been affirmed by the learned first appellate court vide paras 3 and 4 of its judgment. In the face of these concurrent findings of fact coupled with the fact that there is no mention about execution and registration of general power of attorney Ex.DW-7/A, in compromise Ex.DW-6/A, the present question cannot at all be said to be a question of law what to say of a substantial question of law. 17 24. The cumulative effect of the above findings on substantial questions of law for determination is that the appeal being devoid of any merit is accordingly dismissed with costs throughout. (V.K. Sharma) Judge 18th August, 2011 (Lsp)