Smt. Taro v. Balkar Singh

Judgment

2. Balkar Singh s/o Surta Singh; Paramjit Singh s/o S. Balkar Singh;

3. Manjit Kaur wd/o Surjit Singh s/o S. Balkar Singh;

9. Komalpreet Kaur d/o late S. Surjit Kaur (Minor); Ramanpreet Kaur d/o Late S. Surjit Kaur (Minor); Harjinder Kaur wd/o Lakhbir Singh s/o S. Balkar Singh; Sanmdeep Singh s/o Late S. Lakhbir Singh s/o Balkar Singh (Minor), through respondent No. 6, being mother & natural guardian; Balbir Singh s/o Balkar Singh; Baj Singh s/o S. Balkar Singh;

10. Dalbir Singh s/o S. Balkar Singh;

11. Jasbir Singh s/o S. Balkar Singh;

12. Sakattar Singh s/o S. Balkar Singh; all residents of village Radala, Tehsil Ajnala, Distt. Amritsar. ...Respondents

CORAM: HON'BLE MR. JUSTICE SHAM SUNDER Present: Mr. Amit Jain, Advocate, for the appellant. Mr. V.K. Sandhir, Advocate, for the respondents. RSA No. 2794 of 2007 SHAM SUNDER, J. * * * * 2 This appeal, is directed, against the judgement and decree dated 14.06.07, rendered by the Court of Additional District Judge (Adhoc), Amritsar, vide which, it accepted the appeal, against the judgement and decree dated 14.10.03, rendered by the Court of Additional Civil Judge (Senior Division), Ajnala, and dismissed the suit of the plaintiff.

2. The facts, in brief, are that, Taro, plaintiff, was the owner, in possession of the land, to the extent of 1/3rd share, out of the total land, measuring 219 kanals, whereas, the remaining 2/3rd share thereof, was the ownership of Kartar Singh and Ajit Singh. It was stated that the defendants, had no right, title or interest, in the land, in dispute. It was stated that the plaintiff, after the death of her husband, executed the power of attorney, in favour of her son Balkar Singh, only to contest the partition proceedings, but, he in a fraudulent manner, got incorporated the recitals, therein, that he had also been given the power to sell, mortgage, gift, or alienate the land, in dispute. Balkar Singh, defendant No. 1, on the basis of the said power of attorney, executed the sale deeds in favour of his sons defendants No. 2 to 9. It was stated that the sale deeds are illegal, null and void and without consideration. The plaintiff, however, cancelled the power of attorney on 21.12.94. The defendants on the basis of the sale deeds proclaimed themselves to be the owners and threatened to forcibly dispossess the plaintiff from the land, in dispute. On their final refusal to desist from their nefarious RSA No. 2794 of 2007 3 designs left with no alternative, a suit for declaration and permanent injunction was filed.

3. The defendants, put in appearance, and filed written statement, wherein, they took up various objections, and contested the suit. It was pleaded that the suit, was not maintainable, as the plaintiff, was not in possession of any portion of the land, in dispute. It was further pleaded that the suit had not been properly valued, for the purposes of Court fee and jurisdiction, as the plaintiff, was challenging the legality and validity of the sale deeds dated 29.07.93, but, the advalorem Court fee on Rs. 2,22,000/-, had not been paid. It was further pleaded that the plaintiff, was estopped, from filing the suit by her act and conduct. It was further pleaded that the plaintiff, had not come to the Court with clean hands, as she had suppressed the material facts, from the Court. It was further pleaded that suit, was bad for non- joinder of necessary parties. It was further pleaded that, no cause of action, accrued to the plaintiff, to file the suit. It was further pleaded that the suit was barred by time. It was stated that the plaintiff, ceased to be the owner of the land, in dispute, since the day, she sold the same, measuring 26 kanals and 3 marlas, in favour of defendants No. 6 to 9, vide registered sale deeds dated 29.07.93, for valuable consideration of Rs. 1,11,000/- through Balkar Singh, defendant No. 1, her general power of attorney. It was further stated that the plaintiff, executed the power of attorney dated 17.06.93, in favour Balkar Singh, giving him power, to alienate the land, in dispute, on her behalf. It was further stated that the power of attorney, was duly registered, in the office of RSA No. 2794 of 2007 4 Sub Registrar, Ajnala. It was further stated that, as such, defendants No. 6 to 9, became the owners of the land, in dispute, by way of the aforesaid sale deeds. It was further stated that, similarly, the plaintiff, sold the land, measuring 26 kanals and 3 marlas, in favour of defendants No. 2 to 5, through her attorney defendant No. 1, vide registered sale deed dated 29.07.93, for a consideration of Rs. 1,11,000/-. It was further stated that, before execution of both the sale deeds, in respect of the land, in dispute, the plaintiff, herself entered into an agreement to sell dated 16.06.93, with defendant No. 1, and received Rs. 40,000/-, as earnest money. It was further stated that the plaintiff, again received a sum of Rs. 2,50,000/-, from defendant No. 1 at the time of extension of date for execution of the sale deed. It was further stated that the plaintiff, was not residing, in the village, after receiving consideration. It was further stated that defendant No. 1, rightly sold the land, in dispute, in favour of defendants No. 2 to 9. It was further stated that the possession of the land, in dispute, was delivered, in favour of defendants No. 2 to 9. It was further stated that the execution of power of attorney, in question, was the voluntary act of the plaintiff. The same was read over, to her, before she put her thumb impressions thereon, after admitting it to be correct. It was further stated that defendant No. 1, had no knowledge, with regard to the cancellation of the power of attorney. The remaining averments, were denied, being wrong.

4. On the pleadings of the parties, the following issues were struck:- RSA No. 2794 of 2007 5 (i) Whether the plaintiff is entitled to the declaration and injunction as prayed for? OPP (ii) Whether sale deed dated 29.07.93, executed by defendant No. 1, in favour of defendants No. 2 to 9, is illegal, null and void, without consideration? OPP (iii) Whether suit is not maintainable in the present form? OPD (iv) Whether suit is not properly valued for the purpose of Court fees and jurisdiction? OPD (v) Whether plaintiff is estopped from filing the present suit from his own act and conduct? OPD (vi) Whether suit is bad for non-joinder of necessary parties? OPD (vii)Whether plaintiff is bad for non-joinder of necessary party? OPD (viii)Whether the suit is barred by time? OPD (ix) Relief.

5. After hearing the Counsel for the parties, and, on going through the evidence, on record, the trial Court, decreed the suit of the plaintiff.

6. Feeling aggrieved, an appeal, was preferred, by the defendants/respondents, which was accepted, by the Court of Additional District Judge (Adhoc), Amritsar, vide judgment and decree dated 14.06.07.

7. Feeling dissatisfied, the instant Regular Second Appeal, has been filed by the plaintiff/appellant.

8. I have heard the Counsel for the parties, and have gone RSA No. 2794 of 2007 6 through the evidence, and record of the case, carefully.

9. The following substantial questions of law arise, in this appeal, for the determination of this Court:- (i) Whether the first Appellate Court, recorded perverse findings, misreading and misappreciation of evidence, and law, on the point, that the recitals in the power of attorney dated 17.06.93, conferring right upon Balkar Singh to alienate her property, to the extent of 1/3rd share, out of the land, measuring 219 kanals were not the result of fraud? (ii) Whether the first Appellate Court, recorded perverse findings, on account of misreading and misappreciation of evidence, as also law, on the point, that the sale deeds, executed by Balkar Singh, power of attorney of Taro, in favour of his sons i.e. respondents No. 2 to 9, were legal, valid, and for valuable consideration?

10. The Counsel for the appellant, submitted that Taro, appellant, was admittedly an illiterate lady, who was having litigation with her real brothers, relating to the partition of her joint land. He further submitted that, Taro, plaintiff/appellant, had appointed Charan Singh, her husband, as attorney, and after his death, her son Balkar Singh, defendant No. 1, was appointed, as her attorney, only to pursue the partition case, aforesaid, and no power, was given, to him, to alienate her property. He further submitted that, there was no necessity for Taro, plaintiff/appellant, to execute power of attorney, in favour of Balkar Singh, defendant No. 1, her son, giving her power of alienation of her property. He further submitted that taking advantage of the RSA No. 2794 of 2007 7 illiteracy of an old aged rustic Pardha-Nashin lady, Balkar Singh, her son, in whom, she reposed faith, got the recitals incorporated therein fraudulently, that he had also been authorized, to alienate her property. He further submitted that, the plaintiff/appellant, never intended to do so, as is clearly evident, from the power of attorney. He further submitted that the sale deeds, on the basis of the power of attorney, which did not confer any right upon Balkar Singh, to alienate the property, in dispute, belonging to Taro, in favour of his sons, without any consideration, were also illegal and invalid. He further submitted that the trial Court, was right, in holding so, but the first Appellate Court, erred in dismissing the suit. He further submitted that the judgement and decree of the first Appellate Court, being illegal, are liable to be set aside.

11. On the other hand, the Counsel for the respondents, submitted that the first Appellate Court, was right, in coming to the conclusion, that a legal and valid power of attorney dated 17.06.93, was executed by Taro, plaintiff/appellant, in favour of Balkar Singh, her son, conferring right upon him, to alienate her property. He further submitted that, in the first instance, agreement to sell, was executed, by Taro, in favour of Balkar Singh, on 16.06.93. Thereafter, the sale deeds, were executed by Balkar Singh, her attorney, in favour of his sons i.e. respondents No. 2 to 9, for valuable consideration. He further submitted that the first Appellate Court, was right, in reversing the judgement and decree of the trial Court, and dismissing the suit. He further submitted that the judgement and decree of the first Appellate RSA No. 2794 of 2007 8 Court, being legal and valid, are liable to be upheld.

12. After giving my thoughtful consideration, to the rival contentions, advanced by the Counsel for the parties, in my considered opinion, the appeal is liable to be accepted, for the reasons to be recorded, hereinafter. It is, no doubt, true that, this Court, in the Regular Second Appeal, cannot interfere with the findings of fact, recorded by the first Appellate Court, until and unless, it comes to the conclusion, that the same, are perverse, on account of misreading and misappreciation of evidence or law, on the point. In the instant case, as would be demonstrated, hereinafter, there was complete misreading and misappreciation of evidence, as also law, on the point, by the first Appellate Court, leading to the dismissal of the suit. Admittedly, Taro, plaintiff/appellant, is an illiterate old rustic villager. She was having litigation with her real brothers, regarding the partition of joint land. Earlier, she had appointed her husband, as attorney, for pursuing that partition case, and after his death, she could only repose faith and confidence, in her son, to pursue that matter. She did not know the intricacies of law and procedure. The relationship, between Taro and her son Balkar Singh, being fiduciary, in nature, he took advantage thereof, and, at the time of execution of the power of attorney dated

17.06.93, vide which, he was given the power to pursue the partition case, on her behalf also fraudulently got incorporated the recital, that he had been authorized by her, to alienate the property, belonging to her. Malook Singh, Deed Writer, DW3, was well known, to Balkar Singh, and he used to get executed the documents, from him earlier. The RSA No. 2794 of 2007 9 perusal of the power of attorney, exhibit D3, clearly goes to show, that the main recitals therein, are to the effect, that the same, was given, in favour of Balkar Singh, for management of the property; for eviction of the lessees therefrom; for recovery of lease money; for issuance of receipt; and for prosecuting the cases, in respect of the said property, filed by her, and defending the same, filed by others against her, as also for engaging Advocates. The major part of exhibit D3 power of attorney, relates to the management of the land, by Balkar Singh, respondent No. 1, son of Taro, plaintiff/appellant. Only in the two-three lines, the power, was allegedly conferred upon Balkar Singh, for the sale mortgage etc. of the land, in question. The perusal of D3, clearly goes to show, that the intention of Taro, plaintiff/appellant, was to give the power of attorney, for the purpose of management of her land, and pursue the partition case, on her behalf, as she being illiterate old rustic lady, was unable to manage the same, and pursue the partition case after the death of her husband. In the instant case, Balkar Singh, was given specific authority, to contest litigation, on behalf of Taro, and manage the property. These recitals, were only followed by general words, allegedly authorizing him to mortgage, gift, sell or alienate the property. So, when the intention, from the recitals of the power of attorney of Taro, is clear, that it was only given for management of the property, in dispute, and for pursuing the litigation, on her behalf, there was no occasion for her, to give any authority, to Balkar Singh, to sell or gift the land. In Smt. Nand Kaur Vs. Mastan Singh and others, 1990, Civil Court Cases, 501 (P&H), and, Baj Singh and others Vs. RSA No. 2794 of 2007 10 Smt. Gejo 1989(1), All India Land Law Reporter, 131, in the power of attorney executed, power was given, to the attorney, to do particular acts, and there were also general recitals, to the effect, that he could sell or gift the property. In these circumstances, it was held, that the general recitals, would be restricted by the particular acts, authorized to be performed, by the attorney. Balkar Singh, was not given the power to alienate the property. Such recital was got incorporated fraudulently by the attorney. The principle of law, laid down, in Smt. Nand Kaur's and Baj Singh's cases (supra), is, therefore, fully applicable, to the facts of the present case. The first Appellate Court, recorded perverse findings, in holding, that the recitals in the power of attorney, D3, giving power to Balkar Singh, to alienate the property, in any manner, were not the result of fraud. The findings of the first Appellate Court, to the extent aforesaid, being illegal, are liable to be reversed.

13. The next question, that arises for consideration is, as to whether, the sale deeds, executed on the basis of the alleged power of attorney, were legal and valid, or not. The trial Court, in para 21, in clear-cut terms, held that, there was no occasion, on the part of Taro, to execute the power of attorney, giving power to Balkar Singh, to alienate her property, as if she intended to sell the property, in dispute, in that event, she could execute the sale deed herself. The trial Court, was, thus, right in holding, that the sale deeds D1 and D2, executed by Balkar Singh, defendant No. 1 son of Taro, in favour of his sons, on the basis of the aforesaid power of attorney, were illegal and without consideration, and, as such, did not confer any right or title, in favour RSA No. 2794 of 2007 11 of the vendees, in respect of the property, in dispute. The trial Court, was, thus, right in holding, that D1 and D2, sale deeds, being illegal and invalid, were liable to be set aside. The first Appellate court, was wrong, in holding otherwise. The findings of the first Appellate Court, in this regard, being perverse, are liable to be reversed.

14. The agreement D4, was allegedly executed, by Taro, in favour of Balkar Singh. The trial Court, on perusal of D5, the endorsement, regarding extension of time, came to the conclusion, that the same bore the interpolations, in figure '2,50,000/-'. The trial Court, was right, in holding that, it was clear-cut, that digit '1' had been converted into digit '2' by interpolation. Last zero (0) also appeared to have been added later on. The trial Court, was also right, in holding, that it was not clear, as to why, the word 'Hazar', had been put, after the figure '2,50,000/-'. Had word 'lac' been written, after digit 2, there might have been some reason, for putting the word 'Hazar' after putting figure '2,50,000/-'. Even, in the receipt, it was scribed, that balance sale consideration, would be paid, at the time of the execution of the sale deed. This line, was repeated twice, without any explanation. In between these two sentences, name Kartar Kaur, was written, No document, was produced, on the file, which could show, that Taro, was also known, by the name of Kartar Kaur. In each and every other document, as also the revenue record, her name, was written, as Taro. There was also space of 1 ½ x 2 inch, left between the name of Kartar Kaur and thumb impression, alleged to have been affixed by her, in order to cover the space. The trial Court, was, thus, right in holding, RSA No. 2794 of 2007 12 that D4 and D5, two documents, could not be said to have been consciously executed by Taro. The documents, bearing the interpolations, and, being not consciously executed by Taro, were rightly held to be illegal and invalid, by the trial Court. The findings of the first Appellate Court, to the effect that, even if, the agreement to sell, was taken to be a document of no authenticity, on the basis of the power of attorney, the sale deed, could be executed by Balkar Singh, are not correct, as the said power of attorney, conferring powers, on him, to alienate the land, has also been held to be illegal and invalid being the result of fraud. The findings of the first Appellate Court, in this regard, being perverse, are reversed.

15. The judgement and decree of the first Appellate Court, being not based, on the correct reading and due appreciation of evidence, and law, on the point, suffer from illegality, and perversity, warranting the interference of this Court. The judgment and decree of the first Appellate Court, are, thus, liable to be set aside.

16. The substantial questions of law, depicted above, are answered, in favour of the appellant.

17. For the reasons recorded above, the instant Regular Second Appeal, is accepted, with costs. The judgement and decree of the first Appellate Court, are set aside. The judgement and decree of the trial Court, are restored.

08.01.2010 Amodh (SHAM SUNDER) JUDGE