Malkiat Singh vs Surjit Kaur and Others

V.K. Jhanji, J.—This is defendant''s second appeal directed against the judgment and decree of the learned District Judge. Sangrur. whereby on appeal preferred by the plaintiffs against the judgment and decree of the trial Court has been set aside and in consequence thereof, suit of the plaintiffs decreed.

In brief, the fats are that property in dispute belonged to one Shiam Kaur, Surjit Kaur and Dalip Kaur (respondent herein) alleging themselves to be daughters of Shiam Kaur. filed suit against defendant, Malkiat Singh (appellant herein) for joint possession alleging that decree dated 25.4.1981 passed in civil suit No. 181 dated 25.3.1981 was without jurisdiction, fraudulent and on account of inducement. Plaintiffs also sought decree for permanent injunction restraining the defendant from alienating the land. On appearance, defendant contended that plaintiffs are not the daughters of Shiam Kaur and thus, not entitled to inherit the property belonging to Shiam Kaur. He also contended that he used to reside with deceased Shiam Kaur and decree dated 25.4.1981 was suffered in his favour being her nephew. In replication, plaintiffs reiterated the stand taken in the plaint. The learned trial Curt on the basis of pleadings between the parties, framed the following issues:

Whether the decree dated 25.4.1981 is collusive, illegal and void? OPP.

Whether the plaintiffs are owners of 1/6 share of the suit land? OPP.

Whether the plaintiff is entitled to possession and injunction as prayed for? OPP.

Relief.

Trial Court dismissed the suit by saying that decree dated 25.4.1981 is not illegal and void inasmuch as Shiam Kaur used to reside with Bant Singh i.e. father of Malkiat Singh and she on her own volition suffered decree in favour of Malkiat Singh son of Bant Singh In appeal, however, the learned District Judge set aside the judgment and decree of the trial Curt and decreed the suit. The learned District Judge held that Shiam Kaur did not suffer decree dated 25.4.1981 and the same is result of impersonation. Hence, the second appeal by the defendant.

After hearing the learned counsel and going through the record, I am of the view that this appeal has no merit. The following circumstances go a long way to prove that.the decree obtained was fraudulent and as a result of impersonation:

(1) The case set up by the defendant, Malkiat Singh in his pleadings as well as in his statement, made in Court is that Shiam Kaur suffered decree in his favour because she as wife of elder brother of his father. The plea that he was her nephew, has been found to be false. In fact, in his cross-examination, defendant even failed to state the name of father of Shiam Kaur and was also unable to state as to whom she was married to.

(2) Defendant has failed to bring any evidence on record to prove that summons of Civil Suit No.181 dated 25.3.1981 were served upon Shiam Kaur or she appeared in response to service of summons. Civil Suit No. 181 was filed on 25.3.1981. Shiam Kaur was ordered to be summoned for 3.4.1981. On that date, none appeared and the suit was dismissed in default. On 4.4.1981, an application was filed for restoration of the suit. File was summoned by the Court for 15.4.1981 and on that date, suit was ordered to be restored. On 15.4.1981 itself, one Sh.Varinder Singh Cheema, Advocate, made appearance for Shiam Kaur and filed Vakalatnama. The case was adjourned to 21.4.1981 for filing written statement and on that date, written statement alleged to have been thumb-marked by Shiam Kaur was filed and the statement of Shiam Kaur admitting the claim of defendant as recorded. Swaran Singh, Lambardar, identified Shiam Kaur. Trial Court decreed the suit on 25.4.1981. Unholy haste in which decree was passed, shows that defendant was out to grab the property of Shiam Kaur.

(3) Swaran Singh, Lambardar. who had identified Shiam Kaur in Civil Suit No. 181 of 1981, while appearing as DW-8 in this case was unable to state the age of Shiam Kaur. He had no idea of her height and also about her complexion.

(4) Plaintiffs in order to prove that in civil suit No. 181 dated 25.3.1981 Shiam Kaur did not make any statement or it did not bear her thumb impression, examined Jagdish Chander Singla. Handwriting and Finger Expert, who in his report and statement made in Court has opined that the disputed thumb-impression do not tally with the standard thumb impression of Shiam Kaur. So much so, Varinder Bhushan Bhatnagar, Handwriting and Finger Expert examined by defendant has also admitted that standard thumb impression i.e. S-1, S-2 and S-3 do not tally with the disputed thumb-impressions Q-1, Q-2,Q-3,Q-4.Q-5.Q-7.

(5) Civil Suit No. 181 dated 25.3.1981 was filed on the ground that on account of family settlement, defendant has become owner of the share of Shiam Kaur in joint land. It is no more in dispute that defendant was not at all related to Shiam Kaur and this being so. how there could be a family settlement between the two.

The contention of Mr.M.L.Sarin. Sr.Advocaie-learned counsel for appellant that decree cannot be declared to be void for want of registration, is devoid of any merit. Defendant had no antecedent title to the property as he was not at all related to Shiam Kaur. decree dated 25.4.1981 tends to create title and interest for the first time, in Malkiai Singh and the value of the suit land being more than Rs.100/-. the decree required registration. In Bhoop Singh Vs. Ram Singh Major and others, it has been held by the Apex Court that if the compromise decree was to create for the fist time right title or interest in immovable property of the value of Rs. 100/- or upwards, decree or order would require registration and if not registered, the same would not confer any right, title or interest in immovable property in favour of a person claiming title under the said decree.

Mr.Sarin, next contended that the plaintiffs haven not stated in their pleadings that the decree was obtained by impersonation and therefore, plaintiffs are not entitled to challenge it on the said ground. This contention is without any merit. Plaintiffs have challenged decree on various grounds and one of the grounds taken is that the same was obtained by fraud. Fraud is difficult to define. However, in Section 17 of the Contract Act ''Fraud'' means and includes any of the following acts committed by a party to a contract, or with his connivance, or by his agent, with intent to deceive another party thereto, or his agent or to induce him to enter into the contract:

(1) The suggestion, as a fact of that which is not true, by one who does not believe it to be true;

(2) The active concealment of a fact by one having knowledge or belief of the fact;

(3) A promise made without any intention of performing it;

(4) Any other act fitted to deceive;

(5) Any such act or omission as the law specifically declared to be fraudulent.

To establish fraud, plaintiff has to prove that the defendant made a false representation of a fact which may be by word and conduct. In this case, defendant when made somebody else appear as Shiam Kaur, knew very well that the person making statement in Court is not Shiam Kaur. This act and conduct of the defendant being fraudulent, would bring within its fold the decree obtained by impersonation.

Mr.Sarin then contended that the learned District Judge has erroneously held that the suit tiled by the plaintiffs is not barred by time. It is contended that in the garb of seeking decree for joint possession, what is being sought is decree declaring decree dated 25.4.1981 as void. According to the counsel, this could have been done only within three years from the date when right to sue first accrued. It is contended that Shiam Kaur suffered decree on 25.4.1981 whereas suit has been filed on 10.4.1989. which on the face of it is barred by time. In this regard, counsel referred to Article 58 of the Limitation Act, 1963. This contention is also without any merit. Under Article 58. Limitation period of 3 years to obtain any declaration commences from the date when right to sue first accrues. The suit in question is not a simpliciter suit for seeking declaration but is based on title. In such a suit. Article 65 of the Limitation Act would apply and Article 58 would have no application. Article-58 applies only to cases where declaration simpliciter is sought i.e. without any further relief. Moreover, where a person enters into possession under a void transfer, a suit for possession on the basis of title against the transferee will not be barred.

Resultantly, the appeal being without any merit shall stand dismissed with costs which are quantified at Rs.5.000/-.