R.S.A. No. 1423 of 2011 (O&M) [1] IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. Date of Decision: July 25, 2011 1. R.S.A. No. 1423 of 2011 (O&M) Akash Deep …..Appellant Vs. Surinder Dhir …..Respondent 2. R.S.A. No. 1424 of 2011 (O&M) Akash Deep and others …..Appellants Vs. Surinder Dhir …..Respondent CORAM: HON’BLE MR. JUSTICE M.M.S. BEDI. -.- Present:- Mr. Sunil Chadha, Advocate for the appellants. Mr.Arun Jain, Sr. Advocate with Mr.Ankur Soni, Advocate for the respondent. R.S.A. No. 1423 of 2011 (O&M) [2] -.- M.M.S. BEDI, J.(ORAL) Through the instant judgment two RSA one filed by Akash Deep, plaintiff- appellant, bearing RSA No. 1423 of 2011 (arisen out of Civil Suit No.423 of 2001) and another filed by defendant- appellants Akash Deep and others, bearing RSA No. 1424 of 2011 (arisen out of Civil Suit No. 52 of 2002) are being disposed of. The appellants are aggrieved by the judgment of reversal dated December 23, 2010 passed by the lower Appellate Court reversing the judgment and decree dated December 5, 2009 passed by the Civil Court. The main question which is required to be determined in both the appeals is regarding the validity of the sale deed dated July 18, 2001 executed by respondent Surinder Dhir in favour of appellant Akash Deep. The validity of said sale deed had been challenged by Surinder Dhir on the ground that it suffers from fraud, forgery, misrepresentation, impersonation and undue influence. The trial Court vide judgment and decree dated December 5, 2009 upheld the validity of the sale deed dated July 18, 2001, whereas the lower Appellate Court has set aside the judgment and decree of the trial Court vide judgment and decree dated December 23, 2010, on appreciation of entire evidence and circumstances, mainly on the grounds that the sale deed Ex.P3 dated July 18, 2001 has been proved to be without any sale consideration; the original sale deed in favour of Surinder Dhir dated February 10, 1977 was never handed over by her to Akash Deep; and that in view of the nature of the relationship between R.S.A. No. 1423 of 2011 (O&M) [3] appellant Akash Deep with respondent Surinder Dhir, he had taken undue advantage of her unstable mental state by misappropriating money in her bank account and that a fraud had been played by Akash Deep and his parents with vendor respondent Surinder Dhir regarding which a criminal case bearing FIR No. 61 also stands registered against them. The validity of the judgment of reversal passed by the lower Appellate Court has been questioned in the abovesaid two appeals. Since the two appeals are being adjudicated upon simultaneously, a reference to the brief facts appears to be necessary. Briefly the relevant facts in both the suits are as follows:- Suit titled Akash Deep Vs. Surinder Dhir was filed by appellant Akash Deep as Civil Suit No. 423 of 2001 for permanent injunction to restrain the defendant- respondent Surinder Dhir from interfering in his possession on the basis of sale deed dated July 18, 2001 and that he remained in possession till September 14, 2001 on which date the brother of respondent and her other relations had taken her to Chandigarh and a false case was registered against the appellant Akash Deep and his parents by concocting a false and frivolous story that the sale deed dated July 18, 2001 had been got fraudulently executed from the respondent by the plaintiff- appellant Akash Deep. It was claimed that the respondent was an unmarried lady who had brought the appellant as her son and he used to look after her. The respondent being owner of the house in dispute bearing No. 559-C, Urban Estate Phase I, Ludhiana, besides another House in Sector 44 D, Chandigarh, it was claimed that the respondent had to incur lot of R.S.A. No. 1423 of 2011 (O&M) [4] expenditure on her medical treatment and she had intention to sell the house at Ludhiana. The parents of appellant Akash Deep had agreed to purchase the same for a sale consideration of ` 4.90 lacs. The said amount was arranged and paid to respondent. It was after receiving the said amount the respondent had executed the sale deed in favour of appellant Akash Deep and handed over the possession to him and he remained in possession till September 14, 2001. So far as other suit No.52 of 2002 titled Surinder Dhir Vs. Akash Deep and others is concerned, the said civil suit No.52 of March 4, 2002 was filed by the respondent as plaintiff seeking a declaration that she is owner in possession of the house in dispute and the sale deed dated July 18, 2001 executed in favour of appellant Akash Deep is illegal, null and void being the result of fraud and misrepresentation besides seeking a permanent injunction to restrain the appellant Akash Deep and his parents from interfering in her physical possession over the said house and restraining the appellant from alienating the suit property. The said suit had been filed by the respondent pleading therein that the mother of appellant Akash Deep had been working as Hostel Warden in the Blind Institute at Ludhiana whereas the respondent Surinder Dhir was working as Additional Director, Social Security for Women and Child Development, Punjab. She had taken voluntarily retirement in the year 1997 due to ill health. She had purchased the plot underneath the house in dispute from Kulwant Singh Cheema for a sum of ` 6750/- vide registered sale deed dated February 10, 1977. She had constructed a three storied building. At the time of filing of R.S.A. No. 1423 of 2011 (O&M) [5] the suit, ground floor was in the possession of Alok Parkash while first floor was in the possession of Harminder Singh Bhatti and second floor was occupied by plaintiff herself. The defendant appellant No.3- Rani Devi was working as Hostel Warden in the Blind Institute at Ludhiana under plaintiff- respondent Surinder Dhir. Akash Deep, appellant is son of said Rani Devi whereas Bikramjit- defendant No.2 is husband of Rani Devi. The defendants were on visiting terms with the plaintiff- respondent, she being ill. The respondent suffered heart problem in the year 1991. She was operated for Angio Plasty in 1992 in PGI, Chandigarh. In December 1995, she suffered heart attack at Ludhiana and was admitted in Batra Hospital, New Delhi where bypass surgery was conducted on January 2, 1996. Despite the operation, she was not keeping good-health as such the plaintiff- respondent Surinder Dhir was taken to England by her elder sister for treatment and she came back to India on July 9, 2001. The defendant- appellants proposed to the plaintiff- respondent to purchase a new Maruti Zen Car after selling the old Maruti 800 and the plaintiff- respondent gave sufficient amount to the defendant- appellants for purchase of a new Zen Car in her name. She claimed that on July 18, 2001 all the defendant- appellants hatched a conspiracy and they approached the plaintiff with request that her presence was required before the competent authority in District Courts to effect compromise with opposite party, by misrepresenting to her that car had met with an accident. It being hot on that day, the defendants had given a cock to the plaintiff- respondent to quench her thirst. Thereafter taking advantage of her dizziness, her R.S.A. No. 1423 of 2011 (O&M) [6] signatures were obtained on blank papers and was made to appear before the competent authority. The sale deed dated July 18, 2001 was claimed to be illegal, null and void on the ground that it was without consideration and no sale consideration of ` 4.90 lacs was ever paid by defendant No.1- Akash Deep to the plaintiff- respondent Surinder Kaur. Akash Deep- defendant No.1 was not having the said huge amount. Alok Parkash, tenant on the ground floor in the suit property had been paying rent to the plaintiff- respondent. Harminder Singh Bhatti has handed over the possession of first floor to the plaintiff- respondent. The sale deed does not depict correct position existing on the spot. The plaintiff- respondent came to know about the sale deed dated July 18, 2001 in the month of October 2001 from her neighbourers. She immediately contacted the defendants on which they openly declared to have become owners on the basis of sale deed. The plaintiff- respondent also came to know that amount of ` 4 lacs which was given by the her to the defendants for purchase of new Zen Car was also misappropriated by them and that they had stolen her jewellary worth ` 5 lacs from the house in dispute. The plaintiff- respondent came to learn that defendant- appellant had not purchased Maruti Zen Car in her name and that they had actually purchased a new Zen Car in the name of defendant No.1.- Akash Deep and plaintiff had lodged a compliant with the police against the defendants and FIR No. 370 dated October 19, 2001 under Sections 406, 420, 506 IPC was registered against the defendant- appellants. The plaintiff- respondent had specifically pleaded that she had been admitted in PGI, Chandigarh on January 29, 2002 with history of behavioral changes for R.S.A. No. 1423 of 2011 (O&M) [7] the previous two years. The doctors of PGI had observed a large tumor in skull base of the plaintiff for which she had been operated upon. On account of said disease she was not in sound disposing mind at the time of alleged execution of registration of sale deed. The defendant-appellants had threatened the plaintiff to interfere in her peaceful possession, as such she had to file a suit for declaration for challenging the sale deed dated July 18, 2001 being illegal, null and void, being the result of fraud and misrepresentation. The defendant-appellants denied the possession of the plaintiff- respondent on the second floor and claimed that the first and second floor of the property in dispute was in possession of defendant- appellants. Harminder Singh Bhatti had allegedly taken forcible possession of the first floor in absence of Akash Deep-defendant No.1. The facts regarding plaintiff- respondent Surinder Dhir being unmarried employed as Additional Director; mother of appellant No.1 Rani Devi being a hostel warden of Blind Institute; the history of heart attack and treatment were admitted by the defendant- appellants. The allegations of misappropriation of sum of ` 4 lacs on the pretext of purchase of new Maruti Zen Car; any conspiracy of administration of Coke; and the sale deed having not been with free consent were denied, claiming that sale consideration of ` 4.90 lacs had been received by the plaintiff- respondent. The main issue in Civil Suit No.52 of 2002 was issue No.1 to the effect that “whether sale deed dated July 18, 2001 was the result of fraud, forgery, misrepresentation, undue influence and without consideration and hence illegal and void?” and Civil Suit No. 423 of 2001 filed by Akash Deep against Surinder Dhir was R.S.A. No. 1423 of 2011 (O&M) [8] “Whether the plaintiff was owner in possession of the property in question? OPP and issue No.4 “Whether the sale deed was the result of fraud, forgery, undue influence and without consideration and hence illegal and void?” Both the suits were consolidated by the trial Court vide order dated August 4, 2003 and the entire evidence was ordered to be recorded in Civil Suit No. 52 of 2002. The trial Court on the basis of evidence led by both the parties in both suits held that the sale deed dated July 18, 2001 was legal and valid document and that plaintiff- respondent Surinder Dhir has got no locus standi to file the suit whereas the defendant/ appellant Akash Deep was held to be owner in possession of the suit property. The defendant-respondent Surinder Dhir was restrained from interfering in the peaceful possession of plaintiff- Akash Deep except by due course of law. Aggrieved by the judgment and decree of the trial Court dated December 5, 2009, Surinder Dhir filed two appeals. As mentioned herein before, appeals were allowed and the judgment and decree dated December 5, 2009 passed by the Civil Judge, (Junior Division), was set aside. Civil Suit No. 52 of 2002 filed by the defendant- appellant- Surinder Dhir was decreed while suit No.423 of 2001 filed by Akash Deep was dismissed leaving the parties to bear their own costs. Since it is a case of judgment of reversal on the basis of appreciation of evidence, the following substantial questions of law were raised by the counsel for the parties:- “i) WHETHER the judgment of the lower Appellate Court setting aside the judgment and decree of the trial Court was perverse being the result of R.S.A. No. 1423 of 2011 (O&M) [9] misreading and misconstruction of oral as well as documentary evidence? ii) WHETHER the documentary evidence available on the record in the shape of Ex.DW1/1 to Ex.DW1/5 has been ignored by the lower Appellate Court? and iii) WHETHER in view of the fiduciary relationship between the respondent and appellants having been established, the appellants were able to discharge the onus of burden of proving absence of fraud, misrepresentation and undue influence as per Section 16 of the Contract Act that the registered sale deed dated July 18, 2001 was the result of free consent?” With the assistance of counsel for the appellants and respondent, I have gone through the statements of all the witnesses and perused the copies of the documents which form part of the record. The judgments of both the Courts have been minutely scrutinized to answer the abovesaid questions. The main contention of counsel for the appellants is that the lower Appellate Court without judicious application of mind has reversed the finding of the trial Court regarding the sale deed dated July 18, 2001. Mr.Sunil Chadha, has submitted that the documents Ex.DW1/2 is an application submitted by the respondent for getting no objection certificate R.S.A. No. 1423 of 2011 (O&M) [10] for sale of the house to the appellant, Ex.DW1/3 is the affidavit dated December 8, 2000, in which Surinder Dhir has expressed her desire to sell the house to the appellants, Ex.D1/3 was required to be submitted alongwith the application seeking permission to sell from the competent authority- PUDA, Ex.DW1/4 is dated December 13, 2000 by virtue of which No Objection Certificate was granted by PUDA in her favour. Vide Ex.DW1/5 dated August 14, 2001, the house was transferred in the name of appellant Akash Deep. It was submitted by Mr.Chadha that the due execution of the sale deed has been proved by the Sub-Registrar by appearing as DW6. DW2 Balbir Singh Duggal, deed writer, has proved the entries made in his register and Harchand Singh DW3, Lambardar had also proved that deed was scribed by Balbir Singh Duggal at the instance of the respondent who had after scribing the same had read the contents to the respondent and appellant Akash Deep and both of them had signed the sale deed admitting its contents to be correct. DW4 Veena Verma, Senior Assistant from PUDA proved the letters Ex. DW4/2 by which permission was granted to the plaintiff- respondent to sell the property to appellant-Akash Deep. She also proved the letter Ex.DW4/3 by which the authority had transferred the ownership of the property in favour of the appellant. DW6 Joginder Singh, Naib Tehsildar proved that the sale deed had been registered by him. DW8 Rajiv Aggarwal was produced to prove that respondent was in sound disposing mind and that she had signed the sale deed by appearing before the Sub Registrar. He claimed his acquaintance with the parties and also admitted that Rani Devi, mother of appellant Akash Deep, had purchased R.S.A. No. 1423 of 2011 (O&M) [11] House No.213-C, Phase I, Dhandhari Kalan, Ludhiana, prior to the sale deed in dispute. DW9, Brij Mohan has been produced to prove that in his presence Akash Deep handed over ` 2 lacs to her as advance money for purchase of building No.559-C, situated in Urban Estate, Phase I, Ludhiana, out of the total sale consideration of ` 4.90 lacs in the first week of April 2001 but he admitted that no writing was effected in his presence. He claims in cross-examination that his mother Kailash Wati had got the bargain struck in between Surinder Dhir and Akash Deep. DW10 Hardial Singh was produced to prove that vide agreement dated July 11, 2001, he paid a sum of ` 2 lacs to Bikramjit Singh, father of appellant Akash Deep, as advance money as Bikramjit Singh agreed to sell his plot to him for a sum of ` 3.50 lacs. He tried to prove that he accompanied Akash Deep and Bikramjit Singh to the house of Surinder Dhir to pay a sum of ` 2.90 lacs as balance sale consideration and for payment of stamp charges of ` 36000/-. In his cross-examination he, however, admits that no sale deed has been executed in his favour by Bikramjit Singh pursuant to the agreement of sale dated July 11, 2001. The evidence led by the defendants was required to be thoroughly scrutinized as it has been claimed by counsel for the defendant- appellant Akash Deep that the evidence of the defendant has been ignored by the lower Appellate Court while reversing the finding of the trial Court holding the sale deed dated July 18, 2001 to be a validly executed document for consideration. R.S.A. No. 1423 of 2011 (O&M) [12] Counsel for the appellant has submitted that the plaintiff Surinder Dhir had closed her evidence on October 10, 2005 but thereafter she moved an application under Order 6 Rule 17 CPC on September 17,2007 when the case was fixed for the evidence of defendant No.1- Akash Deep to incorporate a plea that she had been admitted in PGI on January 29, 2002 with history of headache and behavioral changes in the last two years; history of forgetfulness sadness. It was argued that the plea of respondent Surinder Dhir that she had been administered something in Coke on the day of execution of the sale deed was changed as there was no force in the same, to take up the plea of medical ailment. The trial Court had decreed the suit of Akash Deep and dismissed the suit of Surinder Dhir disbelieving the medical evidence and placing reliance on the presumption of truthful to the registered document ignoring the fiduciary relationship and the heavy onus which lay upon the defendant- appellant-Akash Deep to prove the absence of fraud, misrepresentation and undue influence. The lower Appellate Court has decreed the suit of Surinder Dhir for declaration on the following grounds:- “i) that she has been able to establish that she has a fiduciary relationship with the appellants as she was a heart patient and was ill till July 2001 and was not in sound disposing mind and that appellant Akash Deep was in a position to dominate her Will as he was being treated by her R.S.A. No. 1423 of 2011 (O&M) [13] as son, she being unmarried and dependent upon him during the period of her ailment; ii) the appellant Akash Deep had no independent source of income in the year 2001 and he had failed to establish the payment of sale consideration and that he was unable to establish that he raised any construction or was handed over the possession of the house in dispute. The original sale deed executed in favour of Surinder Dhir was not even handed over to him; iii) Akash Deep had taken away money from various accounts of respondent Surinder Dhir by taking undue advantage of her unstable mind and an FIR stands registered against him and his parents for having fraudulently got the registered sale deed executed; iv) The appellant being a person in fiduciary relationship with Surinder Dhir- respondent was required to discharge the burden of proving the absence of fraud, misrepresentation and undue influence. He has been established to be in a dominating position to influence the wish of the respondent. Respondent was not in need of money being possessed with sufficient funds.” R.S.A. No. 1423 of 2011 (O&M) [14] Learned Senior counsel for the respondent- Mr.Arun Jain, has argued that the respondent had taken up a specific plea that the sale deed dated July 18, 2001 is the result of fraud and undue influence as the appellant-Akash Deep had enjoyed a dominating position. In view of the provisions of Section 16 (2) (a) of the Contract Act, 1872, a person standing in fiduciary relationship to another has to prove that the transaction was not the result of fraud or undue influence. The plaintiff –Surinder Dhir in the present case had appeared as PW1 to prove that she had constructed three storied house on the plot and that she had been working as Additional Director, Social Security Human and Child Development. During the tenure of her service, Rani Devi, defendant No.3, the mother of defendant- appellant No.1- Akash Deep, was working as hostel warden and she had been visiting her house alongwith other defendants. She suffered heart attack in September 1991. She underwent heart surgery in 1996. She again suffered heart attack and underwent by-pass surgery in Batra Hospital in 1997. She took voluntary retirement and started living in the suit property. She gave money to the defendants in October 2000 to purchase a new Maruti Zen Car in her name. She established that she was not keeping well after heart surgery. She had been taken to the District Courts, Ludhiana in a car on July 18, 2001 on the pretext that her car had met with an accident and she had to appear before some competent authority to effect compromise with opposite party. She consumed cold drink and felt unstable. She had a feeling of fainting. She signed many documents. Few days thereafter the defendant- appellants R.S.A. No. 1423 of 2011 (O&M) [15] started misbehaving with her. She found her jewellery, original FDRs and valuable documents missing. She came to know from her neighbourers that the defendant- appellants had managed to get the sale deed of the suit property executed in their favour. She stated in her affidavit that the actual value of the suit property was ` 35 lacs. She stated that she had paid ` 4 lacs for the purchase of Maruti Zen Car in her name. The said amount had been misappropriated. Her real sister PW2 Kanta Nandvani supported her version and established that a tumor was detected and she was taken to England where she was operated in 2002. On the basis of ill health of Surinder Dhir, her funds had been siphoned off and forged and fabricated sale deed had been executed. PW3 Jeewan Kumar, Clerk, PGI, Chandigarh produced the medical record of Surinder Dhir as Ex.PW3/1 to Ex.PW3/24. PW4 Dr.Rajesh Chabbra, Assistant Professor, Department of Surgery, PGI, Chandigarh, produced the original record pertaining to respondent Surinder Dhir to prove her admission in PGI on January 29, 2002. He proved that on investigation, a large tumor in skull base was detected as such surgery was planned. It was a high risk patient, therefore, the patient had opted for surgery at some other place. She was discharged on February 25, 2002. The document Ex.P39 gives the brief history and clinical findings regarding the behaviour changes in the two years prior to January 29, 2002. Exs.P41 and P42 are the documents indicating that she was admitted in hospital at Bristol on March 22, 2002 and discharged after operation on April 24, 2002, as she was diagnosed as patient of large olfactory groove meningioma. The medical evidence regarding the brain ailment had been discarded by the trial R.S.A. No. 1423 of 2011 (O&M) [16] Court stating that the brief history given by Surinder Dhir while admission in PGI was not a reliable evidence to prove that there was a memory loss or regarding the ill health of Surinder Dhir. The said presumption of the