Sant Ram vs Amar Chand Dhogri and Others

Dharam Chand Chaudhary, J.—Plaintiff Sant Ram in the trial Court is in second appeal, as he is aggrieved by the judgment and decree dated 11.3.2004, passed by learned District Judge, Kangra at Dharamshala in Civil Appeal No. 151-P/XIII-02, allowing thereby the appeal and dismissed the suit on reversal of the judgment and decree passed by learned Sub Judge 1st Class, Baijnath, District Kangra in Civil suit No. 280/99/98.

One Smt. Gangi Devi (since dead), defendant No. 3 in the trial Court, was mother of the parties to the present lis. Her share in the entire land, as entered in Khata No. 40, Khatauni No. 101 to 114, Khasra Kita 23, measuring 1-73-30 hectares, as per Jamabandi for the year 1991-92, was to the extent of 403600/10727688. It is this parcel of land, the subject matter of dispute in the present lis. The plaintiff claims ownership thereof consequent upon a family settlement having taken place on 26.1.1980, as according to him, in terms of the settlement suit land came to him. After taking possession of the suit land he raised the construction of a house thereon to the knowledge and notice of the defendants. He is now in exclusive possession of the suit land. He allegedly acquired title in the suit land by way of adverse possession. According to him, certain disputes arose between the family members and those were settled with the intervention of the respectable persons belonging to the community and the terms whereof were reduced into writing. In that settlement also, the suit land was again given to him. Defendant No. 1 allegedly a shrewd person in connivance with defendant No. 2 pressurized said Smt. Gangi Devi and managed the execution of the General Power of Attorney in favour of defendant No. 2 from her. On the basis of the same, the said defendant has managed the sale of the suit land in his favour through the so called attorney defendant No. 2 without consideration. Said Smt. Gangi Devi was illiterate, rustic, old, sick and mentally feeble lady, having no sense to understand the things. The execution of the General Power of Attorney by her was, therefore, stated to be the result of fraud, misrepresentation and undue influence, hence claims to be illegal and fabricated document. The sale deed executed on the basis of said document is also stated to illegal, null and void, hence the suit for seeking declaration that the General Power of Attorney dated 3.11.1997 obtained by defendant No. 2 from deceased Gangi Devi was the result of fraud, undue influence and the execution of the sale deed dated 15.11.1997 on the basis thereof is also illegal, null and void, was filed. It was also claimed that the plaintiff has become owner of the suit land by way of adverse possession and as such the decree for permanent prohibitory injunction restraining the defendants from taking possession of the suit land from him or alienating or changing the nature thereof in any manner whatsoever was also sought.

Defendants in the written statement, besides the preliminary objections qua maintainability, valuation and jurisdiction of the Court to try and entertain the suit has admitted on merits that deceased defendant Gangi Devi, their mother was the owner of the suit land and that she had sold the same to defendant No. 1 vide registered sale deed dated 15.11.1997. It is denied that the suit land is joint of the parties. It is also denied that the suit land was given to the plaintiff and that he raised the construction of house thereon. He having acquired title in the suit land by way of adverse possession is also denied being wrong. Deceased Gangi Devi had appointed defendant No. 2, her General Power of Attorney. Defendant No. 2, therefore, executed the sale deed being the authorized attorney of the owner, i.e., defendant No. 3, in favour of defendant No. 1. Defendant No. 1 has purchased the suit land for consideration.

In replication, the contents of preliminary objections were denied being wrong and on merits reiterated the entire case as set out in the plaint.

On such pleadings of the parties, the following issues were framed:

"1. Whether the plaintiff is entitled to the relief of declaration, as prayed for? OPP.

Whether the plaintiff has become owner of the suit land by way of family settlement made by the defendant No. 3 in his favour, as alleged? OPP.

Whether the general power of attorney dated 3.11.1997 obtained by the defendant No. 2 from defendant No. 3 is the result of fraud, undue influence and misrepresentation and is liable to be set aside, as alleged? OPP.

Whether the sale deed dated 15.11.1997 made by the defendant No. 2 in favour of defendant No. 1 on the basis of G.P.A. is result of undue influence, fraud and misrepresentation and without consideration, as alleged? OPP.

Whether the plaintiff has become owner of the suit land by way of adverse possession, as alleged? OPP.

Whether the defendants never remained in possession of the suit land, as alleged? OPP.

Whether the plaintiff is entitled to the relief of permanent prohibitory injunction, as prayed for? OPD.

Whether the suit in the present form is not maintainable, as alleged? OPD.

Whether the plaintiff is estopped from filing the present suit, as alleged? OPD.

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

Whether the plaintiff has no locus standi to file the present suit, as alleged? OPD.

Whether the suit has not properly been valued for the purpose of court fee and jurisdiction, as alleged? OPD.

Whether this court has no jurisdiction to try this suit, as alleged? OPD.

Relief."

Learned trial Court after holding full trial has decreed the suit while arriving at a conclusion that the plaintiff is not the owner of the suit land, however, he being a co-sharer is in possession thereof. The General Power of Attorney Ext. P-2 was found to be the result of fraud, misrepresentation and undue influence and as such the sale deed Ext. PW-2/A executed on the basis thereof was also held illegal, null and void.

Defendant No. 1 assailed the judgment and decree passed by the trial Court in the lower appellate Court. Learned lower appellate Court, as pointed out at the out set, has allowed the appeal and dismissed the suit vide judgment and decree under challenge.

The legality and validity of the judgment and decree under challenge has been assailed on the grounds inter alia that the same is against law and facts of the case. The suit land was never sold by Smt. Gangi Devi nor had she any intention to sell the same. Had there been any necessity for her to sell the land, she would have sold the same herself and not through her attorney, defendant No. 2. Since said Smt. Gangi Devi at the relevant time was residing with defendant No. 1, therefore, he managed the execution of the General Power of Attorney by practicing fraud, undue influence and misrepresentation on her. The defendants neither have produced in evidence the witnesses to the execution and attestation of General Power of Attorney nor the sale deed. Even defendant No. 2, the so called General Power of Attorney of said Smt. Gangi Devi, also did not appear in the witness box. The onus was on the defendants to prove that neither the General Power of Attorney nor the sale deed were the result of undue influence, however, he failed to do so.

The appeal has been admitted on the following substantial questions of law:

"1. Whether in the facts of the present case especially the fact that first a General Power of Attorney was got executed from the illiterate mother and then the power of attorney holder executed the sale deed within a few days, it can be presumed that the documents are unconscionable and, therefore, the burden was on the defendant to prove that the same were not influenced by undue influence.

Whether in the facts and circumstances of the case where the defendant failed to produce any witnesses to prove the proper execution of the General Power of Attorney and the sale deed and no evidence was led to prove the payment of the sale price, there is a presumption that the document is unconscionable?"

Shri Kapil Dev Sood, learned Senior Advocate has fairly submitted that the plaintiff has abandoned his claim qua he having become owner of the suit land by way of adverse possession or in terms of the family settlement and that he is a co-sharer in the suit land. It is vehemently argued that deceased Gangi Devi had never sold the suit land to defendant No. 1. It is also pointed out from the record that the General Power of Attorney Ext. P-2 is the result of fraud, misrepresentation and undue influence. The registration of sale deed Ext. PW-2/A by defendant No. 2 in favour of defendant No. 1 on the basis thereof is also not proved.

Shri Bhupender Gupta, learned Senior Advocate has urged that the plaintiff has no locus standi to file the suit, as the suit land was the self acquired property of deceased Gangi Devi and she has sold the same to defendant No. 1 during her life time. The plaintiff, therefore, cannot claim himself to be in possession thereof or a co-sharer and rather it is defendant No. 1 who is owner in possession of the suit land.

Both substantial questions of law pertain to the authenticity and genuineness of the documents Ext. P-2, General Power of Attorney and Ext. PW-2/A, the sale deed executed on the basis thereof.

In terms of provisions contained under Section 16 of the Contract Act the burden to prove that General Power of Attorney, Ext. P-2 has been executed by Smt. Gangi Devi, a "Pardanasheen" lady in her own free volition and being uninfluenced by anyone, i.e., respondent-defendant No. 1 and respondent-defendant No. 2, it has come in own testimony of the plaintiff that at the relevant time when this document was executed Smt. Gangi Devi was residing with defendant No. 1. No doubt, the said defendant has come forward with the version that she was residing with the plaintiff at that time. The plaintiff, no doubt, has admitted that his mother Smt. Gangi Devi was residing with him. Not only this, but he has further stated that she was residing with him on the day when he was in the witness box. In normal course a mother treat all the children equally and there is no question of discrimination. Whether Smt. Gangi Devi would have executed the General Power of Attorney and appointed thereby her daughter Smt. Champa Devi, defendant No. 2 (since dead) as her attorney thereby to do and perform any act or deed on her behalf, is a question to be determined in the present lis.

Smt. Gangi Devi was in the knowledge of execution of this document is doubtful for the reason that no evidence except for self-serving statement of defendant No. 1 has come on record in this regard. As a matter of fact, defendant No. 2 Smt. Champa Devi in whose favour this document was executed has failed to step into the witness box. The marginal witnesses S/Shri Lekh Chand Katoch and Atul Kumar Clerk to Shri Ashok K. Karwal, Advocate, Palampur, have also not been examined. As a matter fact, it was for them to have said something contemporaneous qua the execution of this document at the instance of Smt. Gangi Devi.

No doubt, the present is a registered document, however, neither Sub-Registrar nor any one else from the office of Sub Registrar, Palampur has been examined as a witness. The executant Smt. Gangi Devi though was alive on the day when the defendants'' evidence was examined, however, her statement has also not been recorded and rather learned Counsel representing the defendants including said Smt. Gangi Devi had closed the evidence on behalf of the defendants without examining her. On coming to know that the evidence stands closed she engaged some one else as Counsel and filed an application for seeking permission to appear in the witness box. The said application was allowed by learned trial Court vide order dated 3.9.2001 and the suit was fixed for recording her statement on 5.10.2001. The order passed in the application reads as follows:

"Heard. I have gone through the relevant record on file. The record shows that earlier Shri R.K. Sood was engaged as counsel for all the defendants and on 10.8.2001 when the case was fixed for DWs, the defendant No. 3 Gangi Devi engaged another counsel to pursue her case. On the same day after recording the evidence, the ld. Counsel Shri R.K. Sood, Adv. closed the evidence on behalf of the defendants. On the same day the defendant No. 3 requested that she be allowed to give her statement. An application to this effect was made. The plea has been taken by Shri R.K. Sood, Adv. previous counsel for the defendant No. 3 that the defendant No. 3 has been brought in the court to depose against the defendant No. 1. But it cannot be presumed at this stage that the defendant No. 3 will state against the defendants and in favour of the plaintiff. Since the defendant No. 3 had already engaged another Advocate, she has right to be examined before the court as a party. Therefore, in the interest of justice, this application is allowed and the defendant No. 3 be examined. To come up for statement of defendant No. 3 Gangi Devi for 5.10.2001."

It is seen that Smt. Gangi Devi was not examined intentionally and deliberately by the Counsel, who, as a matter of fact, was engaged by defendant No. 1 on his behalf and on behalf of said Smt. Gangi Devi and also defendant No. 2. She had knowledge of the Counsel engaged on her behalf also is, however, doubtful. It is for this reason she engaged another Counsel and filed an application for her examination. Unfortunately, she died well before the next date, i.e., 5.10.2001 fixed for recording her statement. Though her statement could not be recorded, however, the conduct of defendant No. 1 who perhaps was not interested to get her statement recorded may be being scared of the truth qua the execution of General Power of Attorney, Ext. P-2 to be disclosed by her leads to the only conclusion that she had not executed the document Ext. P-2. In such a situation, the own statement of defendant No. 1 is not sufficient to arrive at a conclusion that the General Power of Attorney has been executed by deceased Gangi Devi alone and none-else.

The deceased was a "Pardanasheen" lady, having no knowledge of English language and no evidence is forth coming that the contents of Ext. P-2 were read over and explained to her in vernacular. This document cannot be believed to be legal, valid and genuine document. No plausible and reasonable explanation is forth coming to suggest that the defendants were prevented from producing the attesting witnesses to this document as a witness in the suit. No plausible and reasonable explanation has come on record to substantiate the failure of defendant No. 2 Champa Devi in whose favour this document is executed to appear in the witness box. Above all, the testimony of the defendant that the General Power of Attorney executed by deceased Gangi Devi was in Hindi demolishes the defendants'' case because this document is in English. On the other hand, the executant Smt. Gangi Devi, as per the evidence available on record, was alive at the relevant time when defendant No. 1 appeared as a witness in the witness box. Therefore, the possibility that the said defendant having dominated her will and exercised undue influence or misrepresented the facts to obtain this document cannot be ruled out.

The plaintiff has pleaded fraud, misrepresentation and undue influence on the part of defendant No. 1 in so many words in the plaint. The same even stands proved also from the given facts and circumstances and also the overall conduct of defendant No. 1 coupled with the factum of he having failed to produce any evidence to show that he never practiced fraud nor exercised undue influence or misrepresented the facts to obtain the General Power of Attorney Ext. P.2. The present, therefore, is a case where the plea of defendant No. 1 having played fraud, exercise undue influence upon his mother deceased Smt. Gangi Devi to obtain General Power of Attorney; Ext. P-2 is duly pleaded and proved. From the perusal of Ext. P-2 it is not proved that she had put her thumb impression in token of the execution of this document. General Power of Attorney Ext. P-2 has been executed on 3.11.1997 and the sale deed Ext. PW-2/A has been executed by defendant No. 2, the so called attorney of deceased Gangi Devi after few days of execution thereof, i.e., on 15.11.1997. The General Power of Attorney Ext. P-2 in the considered opinion of this Court is not a genuine document and rather seems to be manipulated and fabricated by defendant No. 1 intentionally to grab the suit land. Consequently, the sale of the suit land by defendant No. 2 Champa Devi in favour of defendant No. 1 on the strength of Ext. P-2 cannot be termed to be a genuine transaction and rather illegal, null and void particularly when neither attesting witnesses to the sale deed Ext. PW-2/A nor the scribe is examined to prove the same.

No doubt, PW-2 Vikram Chand has been examined by the plaintiff and he on the basis of the record has said that Ext. PW-2/A is true and correct as per the original record. The mere production of the record by some official from the office of Sub-Registrar, however, is not sufficient to discharge the onus to prove that Ext. PW-2/A is a legal and valid document and the transaction of the sale thereby is genuine. Above all, no evidence is forth coming to show that when the sale consideration actually passed on and received by deceased Smt. Gangi Devi irrespective of defendant No. 1 in his own statement has stated that the money was paid by him to Champa Devi, defendant No. 2, who had given the same to his mother deceased Smt. Gangi Devi. For want of corroboration thereto, learned trial Court has rightly declared the General Power of Attorney Ext. P-2 and the sale deed Ext. PW-2/A illegal, null and void, hence not extend any right in favour of defendant No. 1 so far as the suit land is concerned. It being so, the judgment and decree passed by learned trial Court not suffers from any illegality or infirmity and the lower appellate Court should have affirmed the same. Learned lower appellate Court, however, has erred in law and gone wrong in setting aside the same. The judgment and decree passed by learned lower appellate Court is neither legally nor factually sustainable. The same as such is quashed and set aside. Both substantial questions of law are answered accordingly.

In view of what has been said hereinabove, this appeal succeeds and the same is accordingly allowed. Consequently, the judgment and decree passed by learned lower appellate Court is quashed and set aside and that by learned trial Court in Civil Suit No. 280/99/98, affirmed. No order so as to costs.