Regular Second Appeal No.423 of 1984 1 IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH Regular Second Appeal No.423 of 1984 Date of decision: 07.07.2010 1. Smt. Jasbir Kaur w/o Bikar Singh s/o Ajmer Singh, village Chudda, District Bhatinda. 2. Bikar Singh s/o Ajmer Singh village Chudda, District Bhatinda. ..... Appellants. Versus 1. Smt. Indi wd/o Ram Rakha r/o village Lehra Khanna, Tehsil & District Bhatinda. (since deceased) through Legal Representatives: (i)Suraj Kaur d/o Smt. Indi w/o Ajmer Singh, r/o Chudda, Tehsil and District Bhatinda. (since deceased) (ii)Sukhdev Singh son of Ajmer Singh r/o village Lehra Khana, Tehsil and District Bhatinda. Legal representatives of Suraj Kaur:- (i) Jang Singh and Jagjit Singh sons of Suraj Kaur, rs/o village Chudda, District Bhatinda. ..... Respondents. CORAM: HON'BLE MR. JUSTICE SHAM SUNDER Present:- Mr. C.M. Munjal, Advocate for the appellants. Mr. Harkesh Manuja & Shri Sukhdeep Singh, Advocates for the respondents. -- Regular Second Appeal No.423 of 1984 2 Sham Sunder, J. The unsuccessful defendants(now appellants) have filed this Regular Second Appeal, against the judgment and decree dated 03.01.1984, rendered by the Court of Additional District Judge, Bhatinda, vide which it allowed the appeal by modifying the judgment and decree dated 28.05.1981, passed by the Court of Sub Judge Ist Class, Bhatinda, decreeing the suit partly. 2. Smt. Indi, plaintiff (now deceased), claimed that she was the owner in possession of land measuring 117 kanals 1 marla, situated in village Lehra Khana. It was further claimed by her that one sale deed, relating to 40 kanals of land for Rs.20,000/- in favour of Jasbir Kaur, defendant and the other relating to 77 kanals 1 marla of land, for Rs.38,000/-, in favour of Sukhdev Singh, were without consideration and the result of fraud, played by them (Jasbir Kaur and Sukhdev Singh) upon her. It was further stated that she being an old lady of 90 years of age, often remained ill and was taken by Jasbir Kaur and Sukhdev Singh, to Bhatinda, on the pretext of getting her treated. By taking undue advantage of her illness, and by playing fraud upon her, the aforesaid sale deeds, without payment of any amount, were got executed. The defendants were many a time asked Regular Second Appeal No.423 of 1984 3 to treat the sale deeds as illegal, null and void and not binding upon the rights of the plaintiff, but to no avail. On their final refusal, left with no alternative, a suit for declaration and permanent injunction was filed. 3. Jasbir Kaur, and her husband, put in appearance, and contested the suit, by way of filing written statement, wherein, it was pleaded that the suit was not maintainable. It was further pleaded that it was not properly valued for the purpose of Court fee. It was stated that the complete particulars of fraud had not been given in the plaint. It was further stated that the sale deeds were executed by Indi, of her own free will , without any pressure. It was further stated that the suit was collusive between the plaintiff and Sukhdev Singh. It was further stated that no fraud, whatsoever, at the time of execution of the sale deed, was played by them on Indi. It was further stated that the sale deed in favour of Jasvir Kaur was for valid consideration. The remaining averments, contained in the plaint, were denied, being wrong. 4. Sukhdev Singh, defendant no.2, admitted the averments, contained in the plaint. It was stated by him that the sale deeds aforesaid were not executed by Indi of her own free will, but were the result of fraud. He further stated that the sale deed in his favour was null and void. He further Regular Second Appeal No.423 of 1984 4 stated that he had no objection, if the suit, was decreed in favour of the plaintiff. 5. From the pleadings of the parties, the following issues were framed by the trial Court :- “1- Whether the suit is not maintainable in the present form? 2- Whether the suit is properly valued for the purpose of Court-fees? 3- Whether the sales detailed in the head note of the plaint regarding the property in dispute, are the result of fraud, played by defendant nos. 2 and 3 and whether the sales are without consideration, null and void, as alleged? 4- Whether the complete particulars of alleged fraud have been given, if so its effect? 5- Whether the suit is collusive between defendant no.2 and the plaintiff ? 6- Whether the plaintiffs are entitled to injunction prayed for? 7- Relief.” 6. The parties led evidence, in support of their case. The trial Court, after hearing the Counsel for the parties, and, on going through the evidence and record of the case, decreed the suit declaring the sale deed relating to 77 kanals 1 marla of land, allegedly executed, in favour of Sukhdev Singh, as illegal, null and void and not binding upon the rights of the Regular Second Appeal No.423 of 1984 5 plaintiff, whereas it decreed the suit, qua land measuring 40 kanals, in respect whereof the sale deed was executed in favour of Jasbir Kaur. 7. Feeling aggrieved, two appeals were filed, one by Sukhdev Singh , and the second by Smt. Indi. The appellate Court accepted the appeal of the plaintiff and disposed of the appeal, filed by Sukhdev Singh accordingly and held that Smt. Indi was the owner in possession of the entire land measuring 117 kanals and 1 marla and both the sale deeds were without consideration and were the result of fraud , being played upon Smt. Indi and ultimately modified the judgment and decree of the trial Court and decreed the suit of the plaintiff in entirety. 8. Feeling dis-satisfied, the instant Regular Second Appeal has been filed, by the appellants. 9. During the pendency of appeal, Indi died and her legal representatives were brought, on record. 10. I have heard the Counsel for the parties, and have gone through and perused the evidence and record of the case carefully. 11. The following substantial questions of law, arise in this appeal for determination:- “1. Whether the First Appellate Court on account of mis- reading and mis-appreciation of evidence, recorded Regular Second Appeal No.423 of 1984 6 perverse findings that the sale deed in favour of Jasbir Kaur, was the result of fraud and without considerations, and, as such liable to be set aside? 2. Whether the First Appellate Court could take into consideration the evidence with regard to fraud without any particulars thereof having been specifically mentioned in the plaint.? 12. The Counsel for the appellants, submitted that Smt. Indi, had one daughter Suraj Kaur and Sukhdev Singh and Bikkar Singh, are the sons of Suraj Kaur and grandsons (Dohtas) of Smt. Indi. Jasbir Kaur is the wife of Bikkar Singh. He further submitted that the sale deed, executed in favour of Jasbir Kaur, was for valid consideration. He further submitted that no fraud was played by Jasbir Kaur, upon Smt. Indi, at the time of execution of the sale deed, but the First Appellate Court was wrong in holding otherwise. He further submitted that even the particulars of fraud were not disclosed in the plaint and, as such, any evidence led against the pleadings, could not be taken into consideration. He further submitted that the fraud in a civil case, is required to be proved, in the same manner, as it is required to be proved, in a criminal case. He further submitted that the findings of the First Appellate Court, thus, being illegal, are liable to be set aside. Regular Second Appeal No.423 of 1984 7 13. On the other hand, the Counsel for the respondents, submitted that the First Appellate Court, on correct reading and due appreciation of evidence, was right in coming to the conclusion that the sale deed, in favour of Jasbir Kaur, was without consideration. They further submitted that there was no legal necessity for the execution of sale deed regarding 40 kanals of land, in favour of Jasbir Kaur, especially when Smt. Indi, (now deceased) was 90 years old and her livelihood depended upon the income of the same. They further submitted that whatever particulars of fraud were known to Indi, were stated by her in the plaint. They further submitted that since Smt. Indi was 90 years old, illiterate rustic villager and Parda Nashin lady, the onus lays heavily upon the vendee, to prove that the contents of the document were read over and explained to her. They further submitted that the findings of the First Appellate Court holding that the sale deed, in favour of Jasbir Kaur, was without consideration, and the result of fraud, being legal and valid, are liable to be upheld. 14. After giving my thoughtful consideration, to the rival contentions, advanced by the Counsel for the parties, in my considered opinion,the appeal deserves to be dismissed,for the reasons to be recorded hereinafter. In Regular Second Appeal No.423 of 1984 8 Madvan Nair Vs. Bhaskar Pillai (2005) 10, SCC, 533, Harjeet Singh Vs. Amrik Singh (2005) 12, SCC, 270, H.P. Pyarejan Vs. Dasappa, JT 2006(2), SC, 228, and Gurdev Kaur and others Vs. Kaki and others (JT 2006 (5) SC, 72, while interpreting the scope of Section 100 of the Code of Civil Procedure, the principle of law, laid down, was that the High Court, has no jurisdiction to interfere with the findings of fact, arrived at, by the trial Court, and first Appellate Court, even if, the same are grossly erroneous, as the legislative intention, is very clear that the legislature never wanted second appeal to become a “third trial on facts” or “one more dice in the gamble.” It was further held that the jurisdiction of the High Court, in interfering with the judgments of the Courts below, is confined only to the hearing of substantial questions of law. At the outset, it may be stated here that Sukhdev Singh, admitted that fraud was played upon Indi, and the sale deed executed in his favour was null and void. So that sale deed was set-aside by the trial Court also. Thus, the land covered by that sale deed is not the subject matter of appeal. As is evident from the evidence on record Smt. Indi, was an illiterate rustic old villager. She was , thus, a parda-nashin lady. She remained ill and was taken by Jasbir Kaur and Sukhdev Singh, to Bhatinda on the pretext of getting her Regular Second Appeal No.423 of 1984 9 treated. In the plaint, it was in clear-cut terms stated by her that by taking undue advantage of her illness and old age fraud was played upon her, by obtaining her thumb impressions on the documents, on the pretext of treatment. In these circumstances, a plea was set up that the fraud was played upon her by taking undue advantage of her illness, illiteracy and old age, and the sale deeds were allegedly got executed from her, by mis-representing the facts, and without payment of any consideration. The particulars of fraud and the manner thereof, were, thus, duly reflected by Indi, in the plaint, as stated above. In Thangachi Nachial and another v. Ahmed Hussain Mulumiar and others, AIR 1957 Madras, 194, the principle of law, laid down, was to the effect that it should not be overlooked that in the very nature of things, as has been repeatedly pointed out, fraud is secret in its origin and inception and the means adopted for its success and fraudulent motive or design cannot be proved to the very hilt and that it should be inferred from the circumstances placed before Court. Each circumstance by itself may not mean much, but taking all of them together, they may reveal a fraudulent or dishonest plan. Keeping in view the principle of law, laid down, in the aforesaid case, it is to be seen, as to whether, actually fraud was played upon Indi at the time of Regular Second Appeal No.423 of 1984 10 execution of sale deed or not. As stated above, Indi was 90 years old, rustic villager and an illiterate lady. She was dependent upon her grandsons (sons of her daughter) for the treatment of her illness. It was, under these circumstances, that she was taken to Bhatinda for the purpose of treatment of her illness by Sukhdev Singh and Jasbir Kaur, where they obtained her thumb impressions on the documents by mis- representing the facts to her. These documents were converted into sale deeds. Harbans Singh, Tehsildar, DW-1, stated that Indi was not known to him and the entries were made on the sale deeds by his Clerk, who used to sit by his side. Harbans Singh, Tehsildar, even could not tell the age of Smt. Indi. Kartar Singh, Sidhu, Advocate, scribe, DW-2 gave his address of Bhatinda. He, however, stated that he scribed the sale deed Ex.D-1 at Nathana though no such fact was mentioned in the same, where he gave his address of Bhatinda. Bachan Singh, DW-3 an attesting witness, in clear-cut terms stated that the sale deed, Ex.D-1 was not read over and explained to Smt. Indi. He further stated that the age of Smt. Indi was 100 years and she was hard of hearing and her eye-sight was also very weak. He further stated that she used to be indisposed. She being an illiterate, rustic villager of 90 years of age, did not know the nature of documents, on Regular Second Appeal No.423 of 1984 11 which her thumb impressions were obtained, as contents thereof were not read over and explained to her. All these factors go to prove that sale deed Ex.D-1 was not executed by Smt. Indi of her own accord, but it was got executed from her by playing fraud upon her, on the pretext of getting her treated by taking her at Bhatinda. The First Appellate Court was, thus, right in holding that the sale deed, Ex.D-1 was the result of fraud. 15. Not only this, the sale deeds were also without consideration. Harbans Singh, Tehsildar, DW-1, neither knew the parties, nor any consideration was paid in his presence. In sale deed Ex.D-1, it is recited that a sum of Rs.20,000/- as sale consideration, had already been received by Jasbir Kaur. But no receipt was produced to show that actually the sale consideration was received by Smt. Indi from Jasbir Kaur. Jasbir Kaur, while appearing in the witness box, however, stated that the sale consideration was paid eight days before the execution of the sale deed at village Chudda, which village is at a sufficient distance from village Lehra Khanna , in which the property is situated and where Smt. Indi, who was aged about 90 years old, was residing. No such fact was mentioned in sale deed, Ex.D-1. Maghi Singh, DW-4, is a relative of Jasbir Kaur, belonging to different village, and, as Regular Second Appeal No.423 of 1984 12 such, was interested in her. Maghi Singh, DW-4, stated that the money was paid from the house of Bikkar Singh, who had been saving money to the tune of Rs.1,000/- or 2,000/- annually and who had also sold some ornaments. Even Jasbir Kaur, DW-5, did not support the statement of Maghi Singh, to this extent. On the other hand, she stated that the money was saved by them from the sale proceeds of crops of three years and they had not sold any ornaments for procuring money to pay the consideration. Bikkar Singh, (DW-6) is the husband of Jasbir Kaur. He stated that he did not know where the consideration was paid, but it was paid eight days earlier to the execution of sale deed. He admitted that Maghi Singh is his real brother-in-law. No document was produced, on record, indicating that actually the sale consideration was paid by Jasbir Kaur to Smt. Indi, at the time of the alleged execution of sale deed, Ex.D-1. The evidence of Jasbir Kaur, Maghi Singh and Bikkar Singh, regarding payment of consideration was, thus, rightly held to be unreliable by the First Appellate Court, for the reasons that the same was contradictory and Maghi Singh and Bikkar Singh were highly interested in Jasbir Kaur being closely related to her. In Arjan Singh Vs. Mehar Singh and others (1989 SLJ 978), the principle of law, laid down, was to the effect that the sale Regular Second Appeal No.423 of 1984 13 deed without consideration, is invalid, and does not confer any title on the vendee. The First Appellate Court was , thus, right in holding that in fact, sale deed, Ex.D-1 was without consideration. The First Appellate Court was,thus, right in holding that since the sale deed, Ex.D-1 was without consideration, it did not pass on any title in favour of Jasbir Kaur, vendee and, as such, it was illegal and invalid. 16. In view of the above, it is held that the findings of fact, recorded by the First Appellate Court, on the aforesaid points, being based on the correct reading and due appreciation of evidence, and law, on the point, do not suffer from any illegality or perversity, warranting the interference of this Court. The substantial questions of law, depicted above, are answered against the appellants. The submission of the Counsel for the appellants, being without merit, must fail, and the same stands rejected. 17. For the reasons recorded above, the appeal being devoid of merit, must fail and the same stands dismissed with costs. ( Sham Sunder ) 07.07.2010, Judge dinesh