R.S.A. No. 786 of 2003 (O&M) -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH R.S.A. No. 786 of 2003 (O&M) Date of decision: 03.02.2009 Smt. Kesar and another ....Appellants Versus Ram Singh and others ....Respondents CORAM: HON'BLE MR. JUSTICE VINOD K. SHARMA Present: Mr. Mani Ram Verma, Advocate, for the appellants. Mr. Hari Om Attri, Advocate, for respondents No. 5 and 6. ***** VINOD K. SHARMA, J (ORAL) This regular second appeal is directed against the judgments and decree dated 30.11.2000 and 20.10.2002 passed by the learned Courts below vide which the suit filed by the plaintiff/appellants stands dismissed. The plaintiff/appellants by way of civil suit challenged the general power of attorney bearing No. 1691 registered on 3.9.1990, executed by the deceased plaintiff Jot Ram and Smt. Kesar in favour of defendant No. 3. The plaintiffs also challenged the decree dated 3.12.1990 passed in civil suit No. 31 of 1990 titled as Ram Singh etc. Vs. Jot Ram etc. and decree dated 30.11.1991 suffered by defendants No. 1 and 2 in R.S.A. No. 786 of 2003 (O&M) -2- favour of defendants No. 5 to 8 in respect of land measuring 64 kanals 18 marlas situated at village Dabra, Tehsil and District Hisar. The general power of attorney was challenged primarily on the ground that the plaintiff/appellants had, in fact, intended to give only special power of attorney which was converted into general power of attorney by mis-representation and fraud. The learned Courts below on appreciation of evidence brought on record, have recorded a concurrent fining of fact that the plaintiff/appellants had failed to prove fraud and thus, not entitled to declaration, as prayed. The learned lower appellate Court affirmed the findings of fact by learned trial Court, by observing as under: - “To prove the fraud and misrepresentation there is solitary statement of PW1 Kesar that she and her husband Jot Ram gave special power of attorney for getting the mutation regarding lease sanctioned and did not authorise any person to sell or alienate the suit land in any manner. She has not categorically stated that no general power attorney was executed by her and her husband in favour of defendant No. 3 and general power of attorney was the result of misrepresentation of facts to them and fraud played upon them. It is settled proposition of law that particulars of fraud must be specifically pleaded and proved beyond reasonable doubt like a charge in a criminal case. In this context reference with advantage may be made to Union of India versus Chaturbhai M. Patel & Co. 1976 CLJ 166. The self serving statement of Smt. Kesar cannot be taken to be the gospel truth and the same is not sufficient to establish that the general power of attorney in favour of defendant No. 3 was the result of fraud and misrepresentation. Khema Ram and Prdan were the attesting witnesses of the general power of attorney. Neither there are pleadings nor any evidence, which may show that they had any enmity with Jot Ram and his wife Kesar. In the pleadings it has not been specifically pleaded that the general power of attorney was got executed and registered by defendant Nos. 1 to 3 in collusion with the attesting witnesses Khema Ram R.S.A. No. 786 of 2003 (O&M) -3- and Pirdhan. DW6 Om Parkash defendant specifically stated that the suit land was purchased from Jot Ram and Kesar, who had appointed Gharsi defendant No. 3 as their general attorney. Not even a single question was put to this witness during the cross examination that the general power of attorney was the result of fraud and misrepresentation. The proposition of law is settled that when a witness has stated a particular fact in examination-in-chief and has not been corss examined regarding that fact, then such fact is deemed to have been admitted by the party having right to cross examine. It is also worth pointing out that even Shankar Lal one of the plaintiffs appeared as DW4 and deposed that his mother and father sold the suit land to defendants No. 1 and 2. he categorically stated that the plaintiffs have no concern whatsoever with the suit land. Under such circumstances, there is nothing on the record from which even an inferenc may be drawn that the general power of attorney in favour of defendant No. 3 was the result of misrepresentation and fraud played upon Jot Ram and his wife Kesar.” The learned counsel for the appellants raised the following substantial questions of law for consideration by this Court: - "1. Whether the burden to prove that the document was validly executed was to be shifted on the defendant/respondents, in view of the fact that the appellant/plaintiff was rustic illiterate village woman thus was in the foot steps of a parda nashi woman? 2. Whether fraud vitiates everything and thus the impugned judgment and decree being outcome of fraud were liable to be set aside in an independent suit filed by the plaintiff/appellants?" In support of the first substantial question of law, the learned counsel for the appellants contends that burden to establish that the document was executed, by parda nashi woman is on the person, who relies upon the said document. In support of the contention, the learned counsel for the appellants placed reliance on the judgment of the Hon'ble Supreme Court R.S.A. No. 786 of 2003 (O&M) -4- in Mst. Kharbuja Kher Vs. Jung Bahadur Rai and others AIR 1963 SC 1203. The learned counsel for the appellants also placed reliance on judgment of the Hon'ble Himachal Pradesh High Court in Smt. Kartari Vs. Kewal Krishan and others AIR 1972 Himachal Pradesh 117, wherein the Hon'ble Himachal Pradesh High Court has been pleased to lay down that the illiterate woman is to be treated as parda nashi lady. The learned counsel for the appellants also contended that by way of general power of attorney, respondent No. 3 was appointed as agent and, therefore, he could not act against the interest of the principal. On consideration of matter, I find no force in the contentions raised by the learned counsel for the appellants. Execution of general power of attorney was not in dispute, as the plainitffs challenged it on the ground of fraud and misrepresentation. The learned Courts below, therefore, were justified in recording a finding that it was for the plaintiff/appellants to prove fraud and misrepresentation so as to succeed in the suit. Even otherwise, it may be noticed that the learned Courts below have not only non-suited the plaintiffs for failure to prove the fraud, but also for the reason that the due execution of the document was proved by the defendant/respondent in his statement made in the Court. The plaintiff/appellants failed to cross-examine him on the point thus, the facts stated were taken to be admitted for want of cross-examination. It was rightly held that the plaintiff/appellants failed to prove the fraud and misrepresentation whereas the defendant/respondents proved the due execution of the general power of attorney. The judgments relied upon by the learned counsel for the appellants would, therefore, have no R.S.A. No. 786 of 2003 (O&M) -5- relevance to the facts of the present case and cannot be read to hold that the power of attorney or impugned judgments and decree suffer from any error of law. The substantial questions of law, as framed, do not arise for consideration, in this appeal. The contention of the learned counsel for the appellants that the agent could not act against the interest of the principal is totally mis- conceived and unwarranted, as no such case was set up before the learned Courts below. The agent on the basis of power of attorney executed in his favour had represented plaintiff/appellants in judicial proceedings which resulted in passing of a decree, by being made rule of the Court. Once the execution of general power of attorney was proved, it did not lie in the mouth of the appellants thereafter to challenge the acts done by the attorney, as the executant is always bound by the acts done by his attorney, as if they have been done by the principal himself, i.e. the very object of executing power of attorney. Dismissed in limine. (Vinod K. Sharma) Judge February 03, 2009 R.S.