Ajit Singh vs Pawna Thakur and Others

Tarlok Singh Chauhan, J.—The plaintiffs-respondents No. 1 and 2 filed a suit for declaration that they were the sole legal-heirs of deceased Sita Ram and were entitled to 1/3rd share in the land and joint co-owners with the appellant and proforma respondent No. 7(defendants No. 1 and 2 below) and the sale deed No. 1605 dated 22.09.2004 was executed by defendant No. 1 in favour of respondent No. 2 on the basis of an invalid, forged and void General Power of Attorney dated 16.04.1970 and subsequent mutation No. 2503 dated 24.09.2004 attested on the basis of the said sale deed is wrong, illegal, null and void and ''benami'' transaction having no effect on the right, title and interest of the plaintiffs with consequential relief of joint possession. It was further alleged that the plaintiffs had been deprived of the legal right by the defendant No. 1, who fraudulently conveyed the sale deed in favour of his other son i.e. appellant herein after conniving with each other while the husband of the plaintiff-respondent No. 1 was on a death bed.

The suit was contested by the defendants wherein preliminary objections regarding maintainability, locus-standi, cause of action, estoppel, valuation and the suit being hit by the provisions of Section 10 of CPC were raised. On merits, the sale was justified because it was the deceased Sita Ram, who expressed his intention to sell the property because he was in need of money and it was the appellant herein, who agreed to purchase the same. Accordingly, the property was sold for a consideration of Rs. 8,00,000/- on the basis of a valid General Power of Attorney executed by Sita Ram, the husband of respondent No. 1 in favour of his father late Shri Tulsi Ram.

Defendant No. 1 i.e. Tulsi Ram filed written statement wherein he took preliminary objections similar to those as raised by defendant No. 2. On merits, he claimed that there was a General Power of Attorney executed in his favour by Shri Sita Ram on 16.04.1970 and since he was in dire need of money, as per his instructions, the suit land was sold to the defendant No. 2 for a sale consideration of Rs. 8,00,000/-.

No replication was filed by the plaintiffs. On 28.11.2011, the learned trial Court framed the following issues:--

"1. Whether the plaintiff is entitled for the relief of declaration as the plaintiffs being the sole legal-heirs of deceased Sita Ram are entitled to inherit his 1/3rd share out of suit land as joint co-owners with the defendants No. 2 and 3, as alleged? OPP

Whether the sale deed No. 1605 dated 22-9-2004 executed by defendant No. 1 in favour of defendant No. 2 is invalid, forged and void, as alleged? OPP

Whether the mutation No. 2503 dated 24-9-2004 is wrong and illegal, as alleged? OPP

Whether the suit of the plaintiff is not maintainable, as alleged? OPD

Whether plaintiff has no cause of action to file the present suit, as alleged? OPD

Whether the suit is not properly valued for the purpose of court fee and jurisdiction as alleged? OPD

Whether the present suit is hit under Section 10 of CPC, as alleged? OPD

Whether the plaintiff has not come with clean hand to file the present suit, as alleged? OPD

Whether the plaintiff is estopped to file the present suit as alleged? OPD-3 to 7.

Relief."

After recording and evaluating the evidence led by the parties, the learned trial Court decreed the suit of the plaintiffs. Aggrieved by the judgment and decree passed by the learned trial Court, the defendant No. 2 filed an appeal before the learned lower appellate Court, who vide his judgment and decree dated 28.02.2014 has been pleased to uphold the findings recorded by learned trial Court and consequently dismissed the appeal. It is against this judgment and decree passed by the learned lower appellate Court that the appellant-defendant has preferred the present appeal before this Court.

I have heard Shri Navlesh Verma, learned counsel for the appellant and Shri C.N. Singh, learned counsel for respondent No. 1 and gone through the records of the case and carefully and meticulously examined the records.

Shri Navlesh Verma, learned counsel for the appellant has vehemently argued that the judgments and decrees passed by the learned Courts below are absolutely perverse as the Courts have not taken into consideration the relevant material and have considered inadmissible evidence and extraneous material. He further argued that in view of the General Power of Attorney Ex. P.W. 1/D dated 16.04.1970 executed by late Shri Sita Ram in favour of his father (now deceased) late Shri Tulsi Ram on the basis of which the property had been sold to the appellant, the claim of the plaintiffs could not have been decreed. He also argued that the provisions of Section 10 of the Code of Civil Procedure which were not at all attracted to the present case have been wrongly interpreted and applied against the appellant. It is also his contention that Court was required to frame an issue regarding the appellant being a bona fide purchaser for a consideration which was not framed and, therefore, prejudice has been caused to him.

The learned trial Court after noticing the provisions of the Power of Attorney Act, 1882 and also taking into consideration the language used in the Power of Attorney Ex. P.W. 1/D came to a definitive conclusion that the Power of Attorney executed by late Shri Sita Ram only authorized his father Tulsi Ram to manage the affairs of the property pertaining to the litigation, but in no way or manner did it authorize him to sell the property. This finding is so recorded in paragraphs 58 to 61 of the judgment of the learned trial Court which are reproduced hereinbelow:--

"58. Applying these principle to the present facts of the case. The Power of Attorney is placed on record Ex. PW-1/D which is also exhibited as Ex. PW-4/D. This power of attorney is of dated 16-4-1970. As per the recital, it is executed by Ajit Singh defendant No. 2 aged 22 years and late Sita Ram aged 19 years in favour of their father Tulsi Ram. In this power of attorney, the recital are as follows that:

Defendant No. 2 Ajit Singh and late Sita Ram are having landed property and business in place Sarkaghat, Ner Chowk and other areas.

Many suits are filed relating to the same and many Civil Suit has been filed pertaining to those property.

Many time personal hearing inquired in courts, the person is required to appear in person and filed reply/written statement.

Therefore, they authorized their father Tulsi Ram through this General Power of Attorney to appear in person in all those cases filed at the instance of Ajit Singh and Sita Ram and to defend those cases filed against them before Appellate court or Financial Commissioner and High Court and to give evidence and tender witnesses and appear in case Local Commissioner is appointed and also in due execution of decree and to defend the case. Moreover, this General Power of Attorney was only pertaining to the case instituted on behalf of the parties or to defend those cases filed against the parties. The essence of the General Power of Attorney is to only to manage the property and with regard to the litigation and not to sell the property. There is also no reference in the General Power of Attorney regarding the sale of any particular property or how the consideration amount is to be utilized. Certainly there is no reference that Ajit Singh one of the donor of this GPA is himself authorized to but had there been real transaction both brother could have done the needful jointly.

It is specifically mentioned in this General Power of Attorney that Tulsi Ram is also authorized to manage the affairs of the property pertaining to the litigation and for that he was authorized to sell the property, but the essence of this General Power of Attorney or authorization was only pertaining to the cases pending in the court. How they are to be managed and steps to be taken for their management in pursuance to litigation pending. This court is an agreement advanced by the counsel for the plaintiff that Tulsi Ram has not only exceeded his authority but has totally acted contrary to authorization and exercised the power which was not conferred upon Tulsi Ram. When an act purporting to be done under the General Power of Attorney is challenged as in excess or against the authority conferred by the power. It is necessary to show that on a fair construction of the whole instrument the authority in question is to be found within the four corner of the instrument either in express term or by reason by implication. In other words, defendant was required to prove that Tulsi Ram was authorized to sell land of his one son to another.

In this case neither there is another reference in the General Power of Attorney authorizing Tulsi Ram to sell the property of late Sita Ram to one of his brother nor there was any litigation pending between both brothers in which Tulsi Ram authorized powers. There is nothing in this General Power of Attorney that how much land of late Sita Ram is to be disposed off.

Moreover, there are certain facts which certainly cannot be ignored. This General Power of Attorney is of the year 1970. In this General Power of Attorney the age of Sita Ram is 19 years, whereas, the age of his brother Ajit Singh is 22 years. It has come in the statement of Ajit Singh that he was serving in the Army. It could also be presumed that Sita Ram was also student at the age of 19 years. The purpose of authorization is clearly mentioned in the General Power of Attorney is to defend the cases and litigation pending in different courts. This General Power of Attorney certainly does not authorize late Tulsi Ram to dispose of property of his one son in favour of another son. The most important fact which certainly raises question upon the authority of Tulsi Ram to sell is that defendant No. 2 who has purchased the land from his father Tulsi Ram belongs to his brother, late Sita Ram has himself authorized his father to sell his land. Even for the sake of arguments, if this court considered that Tulsi Ram was authorized by both his sons to sell the property, then, certainly this authority does not extend selling or buying the property of each other by both brothers. It is come in the statement of PW-2 Ajit Singh that he got his brother medically checked up. Defendant clearly stated that they were worried for Sita Ram and had taken care. It has also come in the statement of Ajit Singh and their family. Then, what was the necessity to purchase the land of his brother late Sita Ram only 2-3 days prior to his death. It has come in the statement of Ajit Singh that late Sita Ram was admitted in IGMC Shimla on 22-9-2004, how this sale deed was executed in absence of person who is admitted in the Hospital. This conduct is unnatural from a person who claims that he was taking care of his brother or for Tulsi Ram."

The learned lower appellate Court not only discussed the pleadings, but also discussed the evidence led in support thereof threadbare and further held that even the Power of Attorney could not have been executed by Sita Ram because he was born on 04.04.1953 and the Power of Attorney was executed on 16.04.1970 when Shri Sita Ram was admittedly 17 years of age and was minor and, therefore, not competent to contract. The findings so recorded at paragraphs No. 22 to 24 are reproduced hereinbelow:--

"22. On perusal of the cross-examination of the plaintiff Pawna Thakur (PW-1) it is evident that she has stated nothing contrary on the aforesaid point. Such statement of the plaintiff is corroborated/supported by the Matriculation certificate of the deceased Sita Ram Ex. PU placed on record by the plaintiffs, on perusal of which it is established that the date of birth of deceased Sita Ram was 04-04-1953. The copy of the Pariwar Register Ex. PW-1/G also relied upon by the plaintiff further corroborates such plea of the plaintiffs as in the same deceased Sita Ram is shown to have been born in the year 1953.

Be it noted that there is no convincing and satisfactory evidence of the defendants on record to rebut the aforesaid evidence of the plaintiffs and to establish that Sita Ram was major on the date of execution of Power of Attorney i.e. 16.04.1970. Though the defendants have placed on record the birth certificate Ex. D-4 in order to prove their plea that the date of birth of deceased Sita Ram was 06-04-1954, but it is to be noted that there is no satisfactory and convincing evidence of the defendants on record to prove that the said birth certificate is pertaining to deceased Sita Ram. On perusal of Ex. D-4, it is evident that the said birth certificate is pertaining to one Situ inhabitant of Upper Jehmat, Gram Panchayat, Jehmat, Tehsil Sarkaghat, District Mandi (H.P.) and in view of this the said date of birth certificate on the face of it can not be held to be pertaining to deceased Sita Ram and it was for the defendants to establish that the said date of birth certificate is pertaining to deceased Sita Ram. However, there is no satisfactory and convincing evidence of the defendants on record to establish this fact and accordingly Ex. D-4 can not be held to be pertaining to deceased Sita Ram and on the basis of this document the date of birth of deceased Sita Ram can not be held to be 06-04-1954.

Accordingly, in view of the evidence adduced by the plaintiffs as discussed above which has not been rebutted by the defendants by leading convincing and satisfactory evidence to the contrary, the date of birth of the deceased Sita Ram can be safely held to be 04-04-1953 and thus on the date of execution of Power of Attorney i.e., 16-04-1970 he can not be held to have attained the age of majority. Accordingly, the deceased Sita Ram also can not be held to be competent to execute the General Power of Attorney in favour of his father and thus, the sale deed executed by the defendant No. 1 Tulsi Ram (since deceased) in favour of defendant No. 2 on the basis of Power of Attorney so executed in his favour by the deceased Sita Ram can be safely held to be illegal, null and void as the defendant No. 1 Tulsi Ram(since deceased) can not be held to be competent to sell the share of deceased Sita Ram in the suit land in favour of defendant No. 2 on the basis of Power of Attorney dated 16-04-1970. As such the plaintiffs being widow and daughter of deceased Sita Ram can be safely held to have inherited the share of deceased Sita Ram in the suit land after his death."

From what has been stated above, it is absolutely clear that:--

"i) Sita Ram at the time of execution of the so-called Power of Attorney was minor and, therefore, not competent to contract;

ii) That the Power of Attorney even otherwise did not authorize the attorney Tulsi Ram to sell the property of Sita Ram."

After the amendment in Section 100 of the Code of Civil Procedure, the language used in the amended section specifically incorporates the words as ''substantial question of law'' which is indicative of the legislative intention. It must be clearly understood that the legislative intention was very clear that the legislature never wanted second appeal to become ''third trial on facts'' or ''one more dice in the gamble'', Gurdev Kaur and Others Vs. Kaki and Others, .

The law on the subject has been succinctly stated in Smt. Nathan and Another Vs. Nokhu Ram, , wherein it has been held as under:--

"23. So far jurisdiction of this Court in appeal under Section 100, CPC is concerned, the matter was set at rest long ago, as far back as in 1963 by three-Judge Bench in R. Ramachandran Ayyar Vs. Ramalingam Chettiar, , wherein while allowing the appeal it was held as under:

"Held that the High Court was not Justified in interfering with the finding of fact recorded by the lower appellate Court merely because the judgment of the lower appellate Court was not as elaborate as that of the trial Judge, or because some of the reason given by the trial Judge had not been expressly reversed by the lower appellate Court. The findings of the lower appellate Court could not be said to be perverse or not supported by any evidence."

Again while dealing with Section 100 of the CPC another three-Judge Bench of Supreme Court in Mst. Kharbuja Kuer Vs. Jangbahadur Rai, , was of the view, that concurrent findings of fact that there was partition and separation in the joint family and those being based on evidence and such finding having direct impact on main question to be decided in the case were findings of fact based on evidence is thus binding in the second appeal.

In Sri Babu Ram Alias Durga Prasad Vs. Sri Indra Pal Singh (Dead) by Lrs., while dealing with Section 100, CPC it was held as under at Page 3026 of AIR:

"14. In our view, the High Court, while holding that the sale deed dated 15-9-1964 was traceable to a new agreement erred seriously in making out of a new case for which there was neither any issue nor evidence. In fact, the defendant specifically admitted in his evidence as D.W.-1 that there was no fresh agreement between the Official Receiver and the defendant at or before the execution of the sale deed dated 15-9-1964. The defendant, no doubt, came forward with such a statement to negative any fresh agreement of reconveyance entered into by and between the Official Receiver and the defendant. But that evidence equally negatives the theory that the sale deed dated 15-9-1964 was executed pursuant to a fresh or new agreement entered into between the Official Receiver and the defendant. The recitals in the sale deed do not support such a contention. Further, the sale by the Official Receiver was one made pursuant to the Court order dated 21-11-1963 and was not a sale in exercise of his normal powers to sell the insolvent''s property nor was it a sale for distributing the sale proceeds to the creditors. No doubt; the Court''s order permitted the "Interim Receiver" to sell but in view of the subsequent adjudication of the debtor as an insolvent on 29-5-1964, the sale deed had to be executed by the Official Receiver. A reading of the sale deed dated 15-7-1964 which is in Hindi and was read out in Court showed that it was executed in pursuance of the agreement between the creditor and the "insolvent, second party". The sale deed did not refer to any agreement with the "Official Receiver" who was one of the executants of the sale deed. It referred only to the agreement with the "insolvent, second party", which, in our opinion could only be the one entered into on 19-11-1963 between the plaintiff and the defendant before adjudication.

Novation under Section 62 of the Contract Act requires a clear plea, issue and evidence. Such a question cannot be raised or accepted under Section 100, CPC for the first time in second appeal. There was no such issue in the Courts below and the defendant''s evidence was contrary to such a theory.

The High Court, in our view, also erred in thinking that the plaintiff committed breach of the agreement dated 19-11-1963 covered by the joint application when the said aspect covered by Issue 2 was not pressed in the trial Court. Further, the permission for sale dated 22-11-1963 granted by the Court was in favour of the "Interim Receiver" and, therefore, the debtor could not have executed any sale deed. (We are not on the question whether the Insolvency Court could have asked the Interim Receiver to sell the Property.). The defendant admitted in his evidence that after 19-11-1963, he did not issue any notice to the plaintiff to execute a sale deed nor did he move the Insolvency Court to direct the debtor to execute the sale deed.

For the above reasons, we hold that the High Court in second appeal exceeded its jurisdiction under Section 100, CPC in giving a finding on an issue which was not pressed in the trial Court. So far as the finding as to a new contract is concerned, there was no issue or evidence. The evidence was to the contrary. We accordingly set aside these findings. Point 1 is, therefore, held in favour of the plaintiff and against the defendant."

To similar effect are the decisions in cases of Smt. Satya Gupta Alias Madhu Gupta Vs. Brijesh Kumar, ; Sheel Chand Vs. Prakash Chand, and Ram Prasad Rajak Vs. Nand Kumar and BOrs. and Another, .

Again while dealing with the scope of Section 100, CPC after its amendment in the year 1976 in Ellangallur and Others Vs. Gopalan and Others, , it was held as under at page 534 of AIR:

"4. The learned counsel for the respondents submitted that the decision of the Kerala High Court in C.P. Madhavan Nair case does not lay down the correct law and also does not take notice of a Full Bench decision by the High Court of Punjab and Haryana in Ganpat Vs. Ram Devi and Others, , taking the view that in spite of amendment in Section 100, CPC, the local law containing a provision inconsistent with Section 100, CPC shall continue to remain in operation.

In our opinion, the plea which is sought to be raised on behalf of the respondents before us was not raised before the High Court and, therefore, it will be appropriate if the matter is remitted back to the High Court leaving it open to the parties to raise their respective contentions before the High Court and the High Court forming and expressing its opinion on the effect of amendment in Section 100, CPC introduced by the Code of Civil Procedure (Amendment) Act, 1976 (104 of 1976) on the preexisting Section 100(1)(d) as applicable in the State of Kerala in view of local amendment."

In Thimmaiah and Others Vs. Ningamma and Another, while dealing with scope of Section 100, CPC it was held as under at Pages 3532-3533 of AIR:

"15. We have already noted the findings of the trial Court as well as the first appellate Court on the question of consent. These observations clearly show that there was some evidence in support of the findings of the lower Courts. In the circumstances, the High Court was not entitled to re-assess the evidence and arrive at a different conclusion. Besides, the onus was on the respondents to prove the fact of Appellant 1''s consent. When Items 3 to 6 were being claimed by the respondents to be the self-acquired property of Hiri, it could hardly be contended in the same breath that Appellant 1 had consented to the gift of Items 3 to 6 on the basis that it was coparcenary property and Appellant 1 the only other coparcener.

The High Court also erred in its view on the effect of consent on a gift which may otherwise be void. This Court in Ammathayee v. Kumaresan summarised the Hindu law on the question of gifts of ancestral properties in the following words : "Hindu law on the question of gifts of ancestral property is well settled. So far as moveable ancestral property is concerned, a gift out of affection may be made to a wife, to a daughter and even to a son, provided the gift is within reasonable limits. A gift for example of the whole or almost the whole of the ancestral moveable property cannot be upheld as a gift through affection : (see Mulla''s Hindu Law, 13th Edn., P. 252, Para 225). But so far as immovable ancestral property is concerned, the power of gift is much more circumscribed than in the case of movable ancestral property. A Hindu father or any other managing member has power to make a gift of ancestral immovable property within reasonable limits for ''pious purposes'' : (see-Mulla''s Hindu Law, 13th Edn. Para 226, P. 252). Now what is generally understood by ''pious purposes'' is gift for charitable and/or religious purposes. But this Court has extended the meaning of ''pious purposes'' to cases where a Hindu father makes a gift within reasonable limits of immovable ancestral property to his daughter in fulfilment of an antenuptial promise made on the occasion of the settlement of the terms of her marriage, and the same can also be done by the mother in case the father is dead : (See Kamala Devi Vs. Bachu Lal Gupta, .

The karta is competent or has the power to dispose of coparcenary property only if (a) the disposition is of a reasonable portion of the coparcenary property, and (b) the disposition is for a recognised "pious purpose". The High Court has not come to any conclusion as to whether the gift of Items 3 to 6 by Hiri to Respondent No. 2 was within reasonable limits or in fulfilment of an antenuptial promise made on the occasion of the settlement of the terms of Respondent 2''s marriage. It must be taken, therefore, that the findings of the lower Courts on both counts were accepted. That being so, Hiri could not have donated Items 3 to 6 to Respondent 2 and the deed of gift dated 9-6-1971 was impermissible under. Hindu Law. The question is -- could such an alienation be made with the consent of Appellant 1?"

Keeping in view the evidence on the file of this case it cannot be said that the findings regarding the documents having been proved in accordance with law can be said to be either perverse or based on no evidence so as to call for interference in this appeal. Unless such a situation is there, this Court would not interfere. While setting aside the judgment in case Hamida and Others Vs. Md. Kahlil, it was held as under at page 2283:

"6. The High Court has upset the finding of fact recorded by the first appellate Court, taking a different view merely on re-appreciation of evidence in the absence of valid and acceptable reasons to say that the findings recorded by the first appellate Court could not be sustained either they being perverse or unreasonable or could not be supported by any evidence. The High Court neither framed a substantial question of law nor any such question is indicated in the impugned judgment as required under Section 100 of the Code of Civil Procedure. The approach of the High Court, in our view, is clearly and manifestly erroneous and unsustainable in law. Para 10 of the impugned judgment reads:--

"The appellate Court although has decided the issue of personal necessity but from the judgment it appears that the appellate Court has not decided this issue in its correct perspective. Since the trial Court has not recorded any finding on the issue of personal necessity, the finding recorded by the appellate Court cannot be said to a concurrent finding of fact. I am, therefore, of the definite view that in such circumstance, this Court can reappreciate the evidence and scrutinize the findings recorded by the appellate Court under Section 100 CPC when admittedly this issue was not decided by the trial Court.

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The sons of the plaintiff for whose requirement the plaintiff sought eviction, have not been examined. The nephew of the plaintiff was examined as a witness who supported the case of the plaintiff. The plaintiff has also not led any evidence to the effect that the house property where the plaintiff resides, is not sufficient for their own use and occupation. There is also no evidence to the effect that suitable alternative accommodation is not available to the plaintiff for meeting the requirement. I am, therefore of the view that the finding recorded by the appellate Court on the issue of personal necessity cannot be sustained in law for want of sufficient evidence."

As can be seen from the para extracted above, the High Court thought that it could re-appreciate the evidence and scrutinize the findings recorded by the first appellate Court under Section 100 CPC. This approach is plainly erroneous and against law. The High Court was also wrong in saying that the plaintiff did not lead sufficient evidence to establish his bona fide requirement. As observed by the first appellate Court and noted above already, there is evidence of the plaintiff, his nephew and the neighbour. The finding of fact recorded by the first appellate Court based on evidence could not be interfered with by the High Court, that too in the absence of any substantial question of law that arose for consideration between the parties."

Applying the tests laid down by this Court in the above case which have been noted to illustrate the constant view of the Hon''ble Supreme Court, it is clear that the findings recorded by the learned Courts below are pure findings of fact and the same cannot be interfered with, more particularly, when the said findings cannot be said to be perverse, based on misreading either the pleadings or misconstruction, misinterpretation of the evidence led in support thereof or in any manner contrary to law.

Accordingly, I find no merit in the appeal and the same is dismissed, so also the pending application, if any, leaving the parties to bear their own costs.

Caveat Petition No. 5128 of 2014.

Infructuous.