TaxTMI 
TaxTMI 
2020 (11) TMI 1088
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....t, "the trial Court"). The admitted factual position in the present cases is that one Harbans Singh had married Gurbachan Kaur and fathered Joginder Kaur (plaintiff - now deceased) in the wedlock. After the demise of Gurbachan Kaur, Harbans Singh married Piar Kaur and in that wedlock, he fathered Gurdial Singh (defendant No. 3), Rattan Singh (defendant No. 4), Narinder Pal Singh (defendant No. 5) and Surjit Singh (defendant No. 6). Harcharan Kaur (defendant No. 1) is the wife of defendant No. 4 and the step sister­in­law of the plaintiff. Nirmal Gill (respondent herein) is daughter and the legal representative of the plaintiff (Joginder Kaur) and Charanjit Singh is her (plaintiff's) son. 4. Harbans Singh was the owner of various stretches of land at Nawanshahr, Jalandhar and Hoshiarpur which, upon his death in the year 1963, devolved upon the plaintiff, her step brothers defendant Nos. 3 to 6 and her step mother in six equal shares. 5. The plaintiff and the defendant Nos. 3 to 6 had cordial relations and the plaintiff used to frequently visit her maternal home. 6. The dispute between the parties pertains to a General Power of Attorney (GPA) purpor....
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.... scribed, forged the plaintiff's signature onto them and got them registered. 9. On the other hand, the defendants denied that defendant No. 3 went to Delhi to call the plaintiff to village Kalyanpur. They claimed that the plaintiff had come there on her own and stayed with the defendant Nos. 3 to 6 for about a month. She had personally instructed the scribe to prepare the aforesaid documents and she had duly executed and got them registered. Therefore, all the transactions made by the plaintiff directly, as well as through her constituted attorney, are valid. 10. In this backdrop, the plaintiff instituted a suit being C.S. No. 11/2001 before the trial Court on 23.04.2001 against the aforementioned defendant Nos. 1, 3 to 6 and 19 others, seeking declaration as hereunder: "i, That the sale­deed dated 05.07.2000 vide document No. 2213 of land measuring 2 Marla 5 Sarsahi being 1/2 share of the land measuring 7 Marlas 2 Sarsahi bearing Khewat No. 1401, Khatauni No. 2098, Khasra No. 6967 (3­5), situated in Village Premgarh, H.B. No. 247, Tehsil and District Hoshiarpur, as per Jamabandi for the year 1996­97 by defendant no. 1 as Mukhtar o....
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....ey dated 28.06.1990 obtained by defendant no. 1 in connivance with her husband Rattan Singh defendant no. 4 is the result of fraud and that the plaintiff is not bound by the same as well as any transaction made by the defendant no. 1 on behalf of the plaintiff are also illegal and void and are liable to be set aside and that the defendant no. 1 has no power to act as General Attorney of the plaintiff." 11. While the said suit was pending, the plaintiff discovered existence of more documents executed by her alleged attorney and thus filed another suit being C.S. No. 173/2002 on 12.06.2002 before the trial Court, wherein the defendant No. 4 was arrayed as defendant No. 1, defendant Nos. 3, 5 and 6 were arrayed as defendant Nos. 2 to 4 respectively and defendant No. 1 was arrayed as defendant No. 11. Inder Pal Singh and Rajinder Kaur for short, ("the subsequent purchasers"), who purchased the plot at Jalandhar through the alleged attorney of the plaintiff, were arrayed as defendant Nos. 9 and 10. The prayer in the said suit was for declaration as hereunder: "i. That the sale deed and mutation no. 11395 regarding the land measuring 1 Kanal 6½ Marlas ou....
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....endant no. 11 situated in Village Sareenpur, H.B. No. 139, is illegal, void and without the consent of the plaintiff and the same is executed in the absence of plaintiff by playing fraud on the plaintiff and the plaintiff is owner of the said property. iv. That the sale deed dated 18.03.1996 in favour ofdefendant no. 9 executed by defendant no. 11 in respect of plot bearing no. 373­R to the extent of 1/12 share in front of which there is a road behind house no. 378­Land other side 373­L owned by Mangat Singh and Avtar Singh and other side is H.No. 372­L owned by Mool Chand Bhandari situated in Model Town, Jalandhar, as per site plan attached with the plaint is illegal, void and without the consent of the plaintiff. v. That the sale deed dated 18.03.1996 registered on21.03.1996 in favour of defendant no. 10 executed by defendant no. 11 in respect of 1/12 share as Mukhtar by defendant no. 11 is illegal and void and without consideration and without the consent of the plaintiff, house bounded as: Front : Road; Behind : Property of H.No. 378­L; One side present No. 372­L owned by Mool Chand Bhandari; One side....
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....rtly modified the decision of the trial Court in C.S. No. 11/2001. The first appellate Court was pleased to reverse the conclusion of the trial Court limited to subject land admeasuring 9 marlas on the finding that the jamabandi reflects plaintiff's name recorded as co­owner in possession of the said property. Finally, the first appellate Court concluded as under: "48. In view of my above discussion the appeal is partly accepted to the extent that the appellant­plaintiff is owner in possession of land measuring 9 marlas out of the land measuring 4 Kanals 13 Mis. As fully detailed in the sub head note (ii) of the plaint. Therefore, the findings of the learned trial Court with regard to this effect only are reversed and set aside. However, there is nothing on record calling interference of this court in the remaining findings arrived at by the Ld. Trial Court which are based on the correct appreciation of facts and evidence on the file. No order as to costs. Decree sheet be prepared. The learned lower court record be returned and appeal file be consigned to the record room." The first appellate Court vide another judgment of even date, however, upheld the ju....
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....aken on blank papers was not substantiated as the 1990 GPA was executed on stamp papers. Further, the High Court observed that there was no need of the 1990 GPA when the 1963 GPA was in existence, without noting that the 1963 GPA was jointly executed by all the legal heirs of Harbans Singh; while the 1990 GPA was exclusively executed by the plaintiff in reference to her share in the suit property. The High Court then noted that the defendant No. 1 did not lead evidence to avoid being cross examined whilst ignoring the fact that she was residing abroad at the relevant time. The signatures of the plaintiff as well as the attesting witness Teja Singh Lamberdar were examined by expert Arvind Sood (DW7) and he had opined that the same are genuine. As regards the address of the plaintiff wrongly mentioned in the 1990 GPA as 775 instead of 875, it was argued that the plaintiff denied her address only to support her case. The defendant No. 4 had categorically deposed in his evidence that the plaintiff had been living at 775 from 1987 to 1995. Further, the plaintiff's witness ­ PW4 had read over the recitals of the 1990 GPA to the plaintiff, who appended her signatures upon being satisf....
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.... of the 1990 GPA and the serial number of the stamp paper, which showed that the same was done to suit the defendants. In regard to the documents registered on 29.06.1990, it was submitted that PW4 in his register had entered the 1990 GPA at Serial No. 390 after entering sale deed at Serial No. 388 and Special Power of Attorney in favour of defendant No. 1 at Serial No. 389, which defies reason that plaintiff first sold land to the defendant Nos. 3 and 4 and then executed GPA in respect of the said land in favour of defendant No. 1. 21. It was then contended that the attesting witnesses were defendants' men and were not known to the plaintiff. The reason for execution of the 1990 GPA stated in its recitals was that the plaintiff was unable to look after the properties being a woman and then it was in turn executed in favour of another woman, defendant No. 1. The plaintiff's photograph and thumb impression were also not affixed on the GPA and the same appears to have been registered by impersonating plaintiff. The handwriting expert Jassy Anand (PW10) had opined that the signatures were a result of copied forgery. With regard to the sale deeds, it was urged that the proof t....
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....by the plaintiff is a result of fraud and forgery or whether the same had been executed by the plaintiff herself? 24. Before venturing into the question of limitation, we deem it appropriate to examine the issue of fraud and its knowledge, which will go to the root of the case. I. FRAUD 25. The fraud in the present lis is allegedly committed in respect of the 1990 GPA executed on 28.06.1990 and registered on 29.06.1990, and the Sale deeds executed and registered on 29.06.1990 and on 03.07.1990 respectively. We may examine the findings in respect of these documents separately. Fraud in respect of the 1990 GPA and sale deed dated 29.06.1990 26. The plaintiff had pleaded that defendant No. 3 had come to Delhi to call her to village for the purpose of mutation of their father's estate and accordingly, she had visited the village whereat the defendants obtained her signatures on blank papers on the pretext of preparing documents for mutation. When she learnt about the existence of the 1990 GPA and the sale deed, she verily believed that the said blank papers had been misused. However, upon production of the original GPA by the defendants duri....
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....ss of the documents had appended her signatures. The trial Court went on to observe that the scribe was plaintiff's own witness and had not been declared hostile. Further, the plaintiff made no attempt to seek explanation from her witness (PW4) as to the sequence of the entries in his register and also as to the discrepancies in the 1990 GPA, in absence whereof, the testimony of PW4 militated against the plaintiff. The trial Court then noted that the signature of Teja Singh was proved to be genuine by DW2, DW4 and DW7 and thus concluded that the 1990 GPA and the sale deed stood proved. The relevant extracts of the judgment of the trial Court are reproduced below: "48. Further, in my opinion, if as per the plaintiff, she gave her signatures on blank papers in the year 1990 for the purposes of sanctioning of mutation of inheritance, then whether she asked from her step brothers about those proceedings afterwards. Plaintiff is an educated lady. She knows the things very well. There is no such thing on the file that after giving her signatures on blank papers as alleged by her, she ever made any effort to ask her step brothers about those mutation proceedings. It does not appe....
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....gh Lambardar was one of the attesting witness of the same. Similarly, Kultar Singh DW.2 who was one of the executants of the sale deed Ex. DW3/A has identified his signature as well as signatures of Teja Singh Lambardar on the sale deed dated Ex. DW3/A and DW.4 Avatar Singh had identified the signatures of Teja Singh Lambardar on the sale deed dated 24.12.1981 Ex. DW2/A in Urdu script. DW.5 Gurdial Singh deposed that he purchased the land measuring 15 Kanals 7 Marlas from Teja Singh son of Bhag Singh and that Teja Singh vendor was Lambardar of Village Kalyanpur and he identified his signatures on the sale deed dated 15.06.1983 Ex. D5 and he further raised the point that DW.7 Arvind Sood the Hand writing Expert of the defendants got compared the signatures of Teja Singh appearing on the power of attorney dated 28.06.1990 with these signatures appearing on the above referred documents and in his report Ex. DW7/A stated that the questioned signatures as well as the disputed signatures are of one of the same person..." 30. The first appellate Court concurred with the trial Court's findings and had held that a bare perusal of the evidence reveals that the 1990 GPA was executed ....
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....attorney by the plaintiff alongwith others, already stood executed, there was no requirement whatsoever for having executed another power of attorney in the year 1990. Address of plaintiff ­ Joginder Kaur was wrongly mentioned in the power of attorney as 775, Vikas Kunj/Vikas Puri, Delhi whereas there is no palpable reason for having mentioned an incorrect address in the power of attorney. There is merit in the argument that a fictitious address was deliberately inserted so that a third person may not be able to even contact the plaintiff. Furthermore, reliance by the learned courts below on the testimony of Balkar Singh PW 4, to accept the veracity of the General Power of Attorney and two of the sale deeds is clearly misplaced. This is so for the reason that it is a matter of record that PW 4 Balkar Singh was well known to the defendant Rattan Singh. PW 4 has testified that he knew Rattan Singh since school. Sequence of the entries in the register of PW 4, do raise a suspicion regarding the execution of the documents in question. PW 4 has testified that whenever he scribes a document, he carries out the necessary entry in his register and the documents are entered in ....
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....Indian Evidence Act, 1872 (For short, "the 1872 Act"). The same is reproduced hereunder: "68.­ Proof of execution of document required by law to be attested.- ­ If a document is required by law to be attested, it shall not be used as evidence until one attesting witness at least has been called for the purpose of proving its execution, if there be an attesting witness alive, and subject to the process of the Court and capable of giving evidence: Provided that it shall not be necessary to call an attesting witness in proof of the execution of any document, not being a will, which has been registered in accordance with the provisions of the Indian Registration Act, 1908 (16 of 1908), unless its execution by the person by whom it purports to have been executed is specifically denied." (emphasis supplied) 34. As the execution of the 1990 GPA and the sale deeds in the present cases is denied by the plaintiff, it became necessary for the plaintiff to examine the attesting witnesses of the disputed documents to establish her allegation about its non­execution. For, the documents had been registered on 29.06.1990 and came to be attested by Teja Sin....
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....k a view which is perverse and tenuous. In that, the ground on which the High Court rejected the evidence of PW4 is that he was known to the defendant No. 4 since his school days. We do not find it to be a correct approach to disregard the credible testimony of the witness examined by the plaintiff herself (without declaring him as a hostile witness) and especially when it had come on record that the said scribe is a regular deed writer at the Tehsil complex, Dasuya. Notably, PW4 had not been declared hostile at the instance of the plaintiff and as such, this part of his testimony would be staring at the plaintiff. 39. The plaintiff had then contended that the burden of proving that there is no involvement of fraud would be on the defendants as they enjoyed active confidence of the plaintiff. To establish the presence of active confidence, the plaintiff relied upon the testimony of DW2 and DW4 whilst pointing out that the defendants were cultivating the joint lands. The plaintiff also contended that the same was with her permission. The fact that she was on visiting terms with the defendants also shows the existence of trust and hunky­dory between the parties. ....
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....g position and there had been a fiduciary relationship between the parties. The appellant in his written statement denied and disputed the said averments made in the plaint. 10. Pleading is not evidence, far less proof. Issues are raised on the basis of the pleadings. The defendant-appellant having not admitted or acknowledged the fiduciary relationship between the parties, indisputably, the relationship between the parties itself would be an issue. The suit will fail if both the parties do not adduce any evidence, in view of Section 102 of the Evidence Act. Thus, ordinarily, the burden of proof would be on the party who asserts the affirmative of the issue and it rests, after evidence is gone into, upon the party against whom, at the time the question arises, judgment would be given, if no further evidence were to be adduced by either side. 11. The fact that the defendant was in a dominant position must, thus, be proved by the plaintiff at the first instance. xxx xxx xxx 14. But before such a finding is arrived at, the averments as regards alleged fiduciary relationship must be established before a presumption of undue influen....
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....executing sale deed if the plaintiff was available to execute the aforesaid documents. However, the same is of no avail to the plaintiff as the 1990 GPA was in respect of all her land holdings, whereas the sale was made only in respect of land situate at Kalyanpur village. 45. The other reason weighed with the High Court that 1990 GPA was allegedly executed by the plaintiff as she being a woman is also of no consequence as the words 'being a lady' were preceded by 'I am old and weak'. Thus, the primary reason for executing the 1990 GPA was that the plaintiff was not residing in Punjab at the relevant point of time and that she was old and weak, and thus unable to look after her property situate at Punjab. The stress laid upon the fact that a woman was appointed in her place is, therefore, a matter of surmises and conjectures. 46. Suffice it to observe that the contention that the registration of the 1990 GPA as well as the sale deeds, had been effected by impersonating the plaintiff has not been proved. No credible and tangible evidence has been led in that regard. It is merely a bald plea set up by the plaintiff. 47. The plaintiff's denial of being acqua....
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....f the sale proceeds received by selling another land belonging to their mother. The defendants placed reliance on the testimonies of the scribe (PW4) and DW3. 50. The trial Court analysed the testimony of DW3 and noted that he had clearly stated the plaintiff was known to him personally. He had deposed that sale deed was executed by the plaintiff in his presence and the same was for a sum of Rs. 86,000/­. It was further held that though the witness failed to identify the photographs of the plaintiff, adverse inference cannot be drawn as the sale deed was executed in the year 1990 whereas the evidence was given in the year 2007. 51. The first appellate Court also agreed with the view taken by the trial Court whilst observing that the plaintiff would not have executed the sale deed had she not received the sale consideration. 52. The High Court yet again deviated from the approach of the trial Court and the first appellate Court and held that testimony of DW3 was of no avail to the defendants to prove the said sale deed. Because, he had no clue regarding passing of consideration to the plaintiff. Further, the defendants had failed to prove the fact of h....
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....of that long passage of time sometimes erases the memory and minute details are lost sight of. In this background, it has been stated that if a case is proved perfectly it is argued that it is artificial. If a case has some flaws inevitably because human beings are prone to err, it is argued that it is too imperfect. While, therefore, assessing the evidence one has to keep realities in view and not adopt a hypersensitive approach. The so­called discrepancies pointed out by the learned counsel for the appellants like the vehicle from which the witness saw the approaching bus or with which part of the offending vehicle the cycle was hit are too trifle to affect the credibility of PW 15's evidence. Filtering out these minor discrepancies, cream of the evidence remains on which the credibility of the evidence lies. That being so, the conclusions arrived at by the two courts below on evaluation of evidence do not need any interference." (emphasis supplied) In the present cases, the disputed documents were executed in the year 1990 and the evidence of DW3 was recorded in the year 2007, after a passage of 17 long years. Thus, as discussed in the preceding paragraphs, t....
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....(dead) through legal representatives & Ors. (2015) 8 SCC 615 , this Court held as under: "57.1. Viewed in premise, Section 71 of the 1872 Act has to be necessarily accorded a strict interpretation. The two contingencies permitting the play of this provision, namely, denial or failure to recollect the execution by the attesting witness produced, thus a fortiori has to be extended a meaning to ensure that the limited liberty granted by Section 71 of the 1872 Act does not in any manner efface or emasculate the essence and efficacy of Section 63 of the Act and Section 68 of the 1872 Act. The distinction between failure on the part of an attesting witness to prove the execution and attestation of a will and his or her denial of the said event or failure to recollect the same, has to be essentially maintained. Any unwarranted indulgence, permitting extra liberal flexibility to these two stipulations, would render the predication of Section 63 of the Act and Section 68 of the 1872 Act, otiose. The propounder can be initiated to the benefit of Section 71 of the 1872 Act only if the attesting witness/witnesses, who is/are alive and is/are produced and in clear terms either denies/d....
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....f both the vendor and purchaser. It is pointed out that the agreement begins as: "Agreement for sale between Kanika Bose and Parmatma Devi" and not an "Agreement of sale executed by Kanika Bose in favour of Parmatma Devi". Our attention is also drawn to the testimonium clause (the provision at the end of the instrument stating when and by whom it was signed) of the agreement, which reads thus: "In witnesses whereof, the parties hereto have hereunto set and subscribed their respective hands and seals on these presents." It is therefore contended that the agreement specifically contemplated execution by both parties; and as it was not so executed, it was incomplete and unenforceable. 20. We have carefully examined the agreement (Ext. 2), a photocopy of which is produced. The testimonium portion in the agreement is in an archaic form which has lost its meaning. Parties no longer "subscribe their respective hands and seals". It is true that the format obviously contemplates signature by both parties. But it is clear that the intention of the parties was that it should be complete on signature by only the vendor. This is evident from the fact th....
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..... 4 had deposed that the sale consideration was paid from the sale proceeds received by selling the land of their mother in the village Ashrafpur. Since the attesting witness had proved the execution of the sale deeds, the primary onus upon the plaintiff had not shifted unto the defendants. Further, the plaintiff was obliged to rebut the positive evidence produced by the defendants regarding payment of consideration amount to the plaintiff; but also ought to have independently proved her case of non­receipt of the consideration amount. 63. A priori, we hold that the diverse grounds urged by the plaintiff in disputing the 1990 GPA and the sale deeds dated 29.06.1990 and 03.07.1990 are, as observed hitherto, unsubstantiated and untenable. Expert Opinion 64. The plaintiff got her admitted signatures compared with the signatures on the disputed documents by a handwriting expert, Jassy Anand (PW10) who had come to a conclusion that the disputed signatures were a result of copied forgery. On the contrary, the defendants had also got the same document examined by their expert, Arvind Sood (DW7), who had determined the disputed signatures to have been signed ....
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....s more than 30 years old, we may advert to Section 90 of the 1872 Act, which provides for the presumption in favour of a 30­year old document. The same is extracted below: "90.­ Presumption as to documents thirty years old.­- Where any document, purporting or proved to be thirty years old, is produced from any custody which the Court in the particular case considers proper, the Court may presume that the signature and every other part of such document, which purports to be in the handwriting of any particular person, is in that persons handwriting, and, in the case of a document executed or attested, that it was duly executed and attested by the persons by whom it purports to be executed and attested. Explanation.-­­ Documents are said to be in proper custody if they are in the place in which, and under the care of the person with whom, they would naturally be; but no custody is improper if it is proved to have had a legitimate origin, or if the circumstances of the particular case are such as to render such an origin probable. This explanation applies also to section 81." (emphasis supplied) 70. The aforesaid provisio....
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....had opined that when the documents were proved to have been executed by the plaintiff in 1990, it ought to have been challenged within 3 years of its execution. It was further observed that when a specific plea is taken that the plaintiff acquired knowledge about fraud recently in a family function, she was obliged to examine such person who disclosed the information and the plaintiff failed to do so. Notably, the date of the family function had been wrongly mentioned by the trial Court as December, 2001. Paragraphs 94 and 98 of the trial Court's judgment are reproduced below: "94. I find merits in these arguments advanced by Learned Defence Counsel because when the plaintiff is taking a specific plea that in some family function in December, 2001 which she as well as her daughter attended, this thing came to their knowledge that the power of attorney has been forged and on the basis of that Harcharan Kaur had executed the sale deeds of the share of plaintiff, then in those circumstances the plaintiff was required to examine that person who disclosed that information to the plaintiff. But the plaintiff has not examined any that person. xxx xxx xxx 98. In ....
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....tted that the plaintiff was present at the said wedding. Testimony of Rustam Singh cements the case of the plaintiff. ..." (emphasis supplied) 77. Before analysing the correctness of the decisions arrived at, let us see the settled legal position as to effect of fraud on limitation as prescribed in Section 17 of the Limitation Act, 1963 (for short, "the 1963 Act"). The said provision reads as under: "17.- Effect of fraud or mistake.­ (1) Where, in the case of any suit or application for which a period of limitation is prescribed by this Act,- (a) the suit or application is based upon the fraud of the defendant or respondent or his agent; or (b) the knowledge of the right or title on which a suit or application is founded is concealed by the fraud of any such person as aforesaid; or (c) the suit or application is for relief from the consequences of a mistake; or (d) where any document necessary to establish the right of the plaintiff or applicant has been fraudulently concealed from him, the period of limitation shall not begin to run until the plaintiff or applicant has discovered the fraud or the mistake or....