# RATTAN SINGH & ORS v. NIRMAL GILL & ORS. ETC

- **Citation:** [2020] 12 S.C.R. 422
- **Court:** Supreme Court of India
- **Decided:** 2020-11-16
- **Case number:** Civil Appeal Nos. 3681-3682 of 2020
- **Bench:** A.M. Khanwilkar, Dinesh Maheshwari
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/rattan-singh-ors-v-nirmal-gill-ors-etc-34532
- **Pages:** 44

## Headnote

Deeds and Documents:
Suits for declaring sale-deeds as illegal and void which were
executed by Power of Attorney-holder of plaintiff and also those
executed by the plaintiff herself - Alleging fraud in execution of
the General Power of Attorney (GPA) and the sale deeds by misusing
the trust reposed in defendants - Trial court dismissed both the
suits - First appellate court partly allowed one of the appeals and
dismissed the other appeal - High Court reversed the finding of the
courts below - Appeal to Supreme Court - Held: The disputed
documents were registered and hence are presumed to be genuine -
The initial burden to prove that the subject documents were forged
or product of fraud, was on the plaintiff - Plaintiff failed to prove
the facts of misuse of trust by the defendants - No tangible and
credible evidence was led by the plaintiff to prove that the GPA as
well as the sale deeds were effected by impersonating her - Since
the attesting witness had proved the execution of the sale deeds, the
primary onus upon the plaintiff had not shifted unto the defendants
- The testimony of attesting witness, scribe and other independent
witnesses support the case of defendants - Since the plaintiff could
not establish existence of fraud, the suits were ex-facie barred by
limitation - The views of trial court and appellate court being a
possible view, High Court should not have disturbed the same in
second appeal that too on surmises and conjectures.
Sale deed - Signature of vendee on - Is not mandatory.
Evidence:
Registered document - Evidentiary value - A document is
presumed to be genuine, if it is registered.
 [2020] 12 S.C.R. 422
422
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Standard of proof - In civil disputes - Is preponderance of
probabilities and is not beyond reasonable doubt.
Expert evidence - Nature of - Expert opinions are not a
binding piece of evidence and they need to be corroborated.
Evidence Act, 1872:
s. 90 - 30 years old document - Is presumed to be genuine.
Limitation Act, 1963:
s. 17 - For invoking s. 17, two ingredients have to be pleaded
and duly proved i.e. existence of fraud and discovery of such fraud.
Practice and Procedure:
A hypersensitive approach ought not be taken in cases where
there has been delay in recording evidence.
Words & Phrases:
"attested" - Meaning of, in the context of s. 3 of Transfer of
Property Act, 1882.
Allowing the appeals, the Court
HELD : 1.1 The record reveals that the disputed documents
are registered. It is settled legal principle that a document is
presumed to be genuine if the same is registered. [Para 32][446A-C]
Prem Singh and Ors. v. Birbal and Ors. (2006) 5 SCC
353 : [2006] 1 Suppl. SCR 692 - relied on.
1.2 The trial Court had justly placed the initial burden of
proof upon the plaintiff as it was her case that the subject
documents were forged or product of fraud and moreso because
the documents bore her signature. The first appellate Court did
not elaborate on that aspect. Even assuming that the burden had
shifted upon the defendants, the witness identifying signatures
of the dead attesting witness was examined by the defendants.
Therefore, the documents stood proved and the burden was duly
discharged by the defendants. The High Court, however, went
on to observe that defendants had abused their position of active
RATTAN SINGH & ORS. v. NIRMAL GILL & ORS.
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confidence. For shifting the burden of proof, it would require more
than merely pleading that the relationship is a fiduciary one and
it must be proved by producing tangible evidence. [Paras 40 and
41][448-E-G][449-B-C]
Anil Rishi v. Gurbaksh Singh (2006) 5 SCC 558 : [2006]
1 Suppl. SCR 659 - relied on.
1.3 The defendants enjoyed active confidence of the plaintiff.
It is an admitted position that the plaintiff and defendants always
had cordial relationship and the plaintiff was on visiting terms.
Further, the fact that the defendant Nos. 3 and 4 were cultivating
the joint lands i

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RATTAN SINGH & ORS.
v.
NIRMAL GILL & ORS. ETC.
(Civil Appeal Nos. 3681-3682 of 2020 etc.)
NOVEMBER 16, 2020
[A.M. KHANWILKAR AND DINESH MAHESHWARI, JJ.]
Deeds and Documents:
Suits for declaring sale-deeds as illegal and void which were
executed by Power of Attorney-holder of plaintiff and also those
executed by the plaintiff herself - Alleging fraud in execution of
the General Power of Attorney (GPA) and the sale deeds by misusing
the trust reposed in defendants - Trial court dismissed both the
suits - First appellate court partly allowed one of the appeals and
dismissed the other appeal - High Court reversed the finding of the
courts below - Appeal to Supreme Court - Held: The disputed
documents were registered and hence are presumed to be genuine -
The initial burden to prove that the subject documents were forged
or product of fraud, was on the plaintiff - Plaintiff failed to prove
the facts of misuse of trust by the defendants - No tangible and
credible evidence was led by the plaintiff to prove that the GPA as
well as the sale deeds were effected by impersonating her - Since
the attesting witness had proved the execution of the sale deeds, the
primary onus upon the plaintiff had not shifted unto the defendants
- The testimony of attesting witness, scribe and other independent
witnesses support the case of defendants - Since the plaintiff could
not establish existence of fraud, the suits were ex-facie barred by
limitation - The views of trial court and appellate court being a
possible view, High Court should not have disturbed the same in
second appeal that too on surmises and conjectures.
Sale deed - Signature of vendee on - Is not mandatory.
Evidence:
Registered document - Evidentiary value - A document is
presumed to be genuine, if it is registered.
 [2020] 12 S.C.R. 422
422
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Standard of proof - In civil disputes - Is preponderance of
probabilities and is not beyond reasonable doubt.
Expert evidence - Nature of - Expert opinions are not a
binding piece of evidence and they need to be corroborated.
Evidence Act, 1872:
s. 90 - 30 years old document - Is presumed to be genuine.
Limitation Act, 1963:
s. 17 - For invoking s. 17, two ingredients have to be pleaded
and duly proved i.e. existence of fraud and discovery of such fraud.
Practice and Procedure:
A hypersensitive approach ought not be taken in cases where
there has been delay in recording evidence.
Words & Phrases:
"attested" - Meaning of, in the context of s. 3 of Transfer of
Property Act, 1882.
Allowing the appeals, the Court
HELD : 1.1 The record reveals that the disputed documents
are registered. It is settled legal principle that a document is
presumed to be genuine if the same is registered. [Para 32][446A-C]
Prem Singh and Ors. v. Birbal and Ors. (2006) 5 SCC
353 : [2006] 1 Suppl. SCR 692 - relied on.
1.2 The trial Court had justly placed the initial burden of
proof upon the plaintiff as it was her case that the subject
documents were forged or product of fraud and moreso because
the documents bore her signature. The first appellate Court did
not elaborate on that aspect. Even assuming that the burden had
shifted upon the defendants, the witness identifying signatures
of the dead attesting witness was examined by the defendants.
Therefore, the documents stood proved and the burden was duly
discharged by the defendants. The High Court, however, went
on to observe that defendants had abused their position of active
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confidence. For shifting the burden of proof, it would require more
than merely pleading that the relationship is a fiduciary one and
it must be proved by producing tangible evidence. [Paras 40 and
41][448-E-G][449-B-C]
Anil Rishi v. Gurbaksh Singh (2006) 5 SCC 558 : [2006]
1 Suppl. SCR 659 - relied on.
1.3 The defendants enjoyed active confidence of the plaintiff.
It is an admitted position that the plaintiff and defendants always
had cordial relationship and the plaintiff was on visiting terms.
Further, the fact that the defendant Nos. 3 and 4 were cultivating
the joint lands is also not disputed. Defendant Nos. 3 and 4 were
cultivating the lands along with their father and continued to do
so even after his death. The plaintiff had failed to prove the fact
of misuse of trust by the defendants as such. [Para 42][450-F-H]
1.4 Further, the plaintiff attempted to project the 1990
General Power of Attorney (GPA) as a doubtful document stating
that the same had discrepancies with respect to the address and
the alteration of the date of execution. In absence of the attesting
witness and in view of the evidence of PW4-scribe, it was for the
plaintiff to get PW4 declared hostile and cross-examine him in
order to prove that he had deposed falsely, which the plaintiff
failed to do. [Para 43][450-H; 451-A-B]
1.5 Emphasis was laid on the entries made in the PW4
scribe's register showing the 1990 GPA to have been executed
prior to the sale deed and it was submitted that there is no logic
in first giving GPA and then 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 a portion of the land. [Para 44][451-B-C]
1.6 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. [Para 45][451-C-E]
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1.7 The plea 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. [Para 46][451-E-F]
1.8 The plaintiff's denial of being acquainted with the
attesting witnesses, is, also a ruse and not genuine. For, one of
the attesting witnesses was a lamberdar of the village. A
lamberdar's job is to collect revenue in respect of the lands and
issue receipts and as a practice, the lamberdar is called for
attesting documents. Thus, when the plaintiff admittedly used to
visit village frequently, her denial in knowing him is far-fetched.
This is what two Courts had opined and being a possible view, no
interference by the High Court was warranted in that regard.
That is beyond the scope of second appeal. [Para 47][451-F-H]
Satya Gupta (Smt.) alias Madhu Gupta v. Brijesh Kumar
(1998) 6 SCC 423 : [1998] 3 SCR 1183 - relied on.
2.1 With regard to the sale deed dated 03.07.1990, the
plaintiff had asserted that the same was not executed by her. The
sale deed requires attestation by two witnesses and the same
has to be proved as per procedure laid down under Section 68 of
the Evidence Act. The sale deed of 03.07.1990 had been attested
by Lamberdar and DW3. The attesting witness (DW3) had
deposed that the said sale deed was executed by the plaintiff in
his presence, as well as in presence of Lamberdar and defendant
No. 3. However, defendant No. 4 had deposed that he was present
at the time of execution of the sale deed on 03.07.1990 which
was executed by the plaintiff in favour of defendant No. 3 and
himself. He stated that Lamberdar and 'G' were also present.
The High Court 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 handing over
consideration amount to the plaintiff. Also, defendant No. 4 and
DW3 denied each other's presence. [Paras 48, 52, 53, 54, 56][452D; 453-E-G; 454-G-H; 455-A-B]
RATTAN SINGH & ORS. v. NIRMAL GILL & ORS.
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Jagdish Chand Sharma v. Narain Singh Saini (dead)
through legal representatives & Ors. (2015) 8 SCC 615:
[2015] 6 SCR 397 - relied on.
2.2 A hypersensitive approach ought not be taken in cases
where there has been a delay in recording evidence. 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. The High Court erroneously doubted
the evidence of DW3 merely because he could not identify
photographs of plaintiff and because the defendant No. 4 and DW3
did not mention each other's presence at the time of execution.
[Para 55][453-G-H; 454-F-G]
Damodar v. State of Rajasthan (2004) 12 SCC 336 :
[2003] 3 Suppl. SCR 904 - relied on.
2.3 As per the definition of 'attested' under Section 3 of
the Transfer of Property Act, 1882 "attested", in relation to an
instrument, means and shall be deemed always to have meant
attested by two or more witnesses each of whom has seen the
executant sign or affix his mark to the instrument ....and each of
whom has signed the instrument in the presence of the executant.
The disputed sale deed dated 03.07.1990 was signed by plaintiff
as vendor and defendant No. 3 as vendee and in the presence of
DW3 and the other attesting witness i.e. the Lamberdar. DW3 as
an attesting witness had seen both plaintiff and defendant No. 3
signing the deed and he then attested the sale deed. The High
Court failed to note that the other attesting witness being dead
and his signature having been identified by DW2 and DW4, and
with the testimony of PW4 scribe, the evidence of the DW3 witness
stood corroborated and therefore, the same could not be
disregarded. [Paras 57 and 58][455-B-G]
2.4 Since defendant No. 4 has not signed the sale deed as a
vendee, his evidence cannot be discarded, as signature of the
vendee is not mandatory in a sale deed. In any case, the weight
of evidence of DW3 remains unassailable. Therefore, the
testimony of DW3 satisfies the requirements of the conditions
required for a valid attestation. [Paras 60 and 61][457-A-B; 458F-G]
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Aloka Bose v. Parmatma Devi and Ors. (2009) 2 SCC
582 : [2008] 17 SCR 822 - relied on.
2.5 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 non-receipt of the
consideration amount. [Para 62][459-B-C]
2.6 It is settled that the standard of proof required in a civil
dispute is preponderance of probabilities and not beyond
reasonable doubt. In the present cases, though the discrepancies
in the 1990 GPA are bound to create some doubt, however, in
absence of any tangible evidence produced by the plaintiff to
support the plea of fraud, it does not take the matter further.
Rather, in the present case the testimony of the attesting witness,
scribe and other independent witnesses plainly support the case
of the defendants. That evidence dispels the doubt if any; and tilt
the balance in favour of the defendants. [Para 80][465-C-E]
3.1 The plaintiff got her admitted signatures compared with
the signatures on the disputed documents by a handwriting expert,
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, DW7,
who had determined the disputed signatures to have been signed
by plaintiff herself. [Para 64][459-D-E]
3.2 The expert evidence produced by the plaintiff in
reference to the signature of the plaintiff is of no avail, in view of
divergent opinions. The ground that the documents were a result
of copied forgery cannot be substantiated only on the basis of the
opinion of expert PW10. Even otherwise, the expert opinions
are not a binding piece of evidence and have to be corroborated
with other pieces of evidence. The plaintiff failed to prove that
her signatures on the subject documents are forged. [Para
65][459-F-G]
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4.1 The 1963 GPA is claimed to have been discovered
during the enquiries made by the plaintiff subsequent to attaining
knowledge of the fraud. The trial court accepted that the plaintiff
had executed the 1963 GPA and further she had knowledge of
the sanction of mutation in pursuance of that GPA. [Paras 66 and
67][459-H; 460-B-C]
4.2 The 1963 GPA is a document which is more than 30
years old. Section 90 of the Evidence Act provides for the
presumption in favour of a 30-year old document. The aforesaid
provision employs the words 'may presume'. As per Section 4 of
the Evidence Act, the presumption in favour of a 30-year old
document is, therefore, a rebuttable presumption. Nothing
prevented the plaintiff to rebut the presumption by leading
appropriate evidence in order to disprove the same. Since the
plaintiff failed to do so, the said document would be binding on
the plaintiff. As a matter of fact, the parties had acted upon the
terms of the said document without any demur since 1963 and it
was, therefore, not open to resile therefrom at this distance of
time. Hence, the trial Court was right in holding the 1963 GPA,
to be a genuine document. [Paras 69, 70 and 71][460-E-F; 461B-E]
5.1 Since the plaintiff could not establish the existence of
fraud, it must follow that the suits are ex-facie barred by limitation.
For invoking Section 17 of the Limitation Act, 1963 two
ingredients have to be pleaded and duly proved. One is existence
of a fraud and the other is discovery of such fraud. In the present
case, since the plaintiff failed to establish the existence of fraud,
there is no occasion for its discovery. Thus, the plaintiff cannot
be extended the benefit under the said provision. [Paras 78 and
81][464-F-G; 465-E]
5.2 The concurring findings recorded by the trial Court and
the first appellate Court - that the documents were executed by
the plaintiff - belies and demolishes the case of the plaintiff, as to
having acquired knowledge of alleged fraud in 2001. Therefore,
the High Court committed manifest error in reversing the
concurrent findings of the trial Court and the first appellate Court
in that regard. [Para 79][465-A-C]
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6. As to the title of the subsequent purchasers, since the
1990 GPA had been proved, there is no reason to doubt their
bonafides. The trial Court and the first appellate Court had
appreciated the evidence properly and that view being a possible
view, the High Court ought not to have disturbed the same in the
second appeal and that too on surmises and conjectures. [Paras
82 and 83][465-F-G]
Case Law Reference
[2006] 1 Suppl. SCR 692
relied on
Para 32
[2006] 1 Suppl. SCR 659
relied on
Para 41
[1998] 3 SCR 1183
relied on
Para 47
[2003] 3 Suppl. SCR 904
relied on
Para 55
[2015] 6 SCR 397
relied on
Para 59
[2008] 17 SCR 822
relied on
Para 60
CIVIL APPELLATE JURISDICTION : Civil Appeal Nos. 36813682 of 2020.
From the Judgment and Order dated 27.05.2019 of the High Court
of Punjab and Haryana at Chandigarh in RSA No. 2901 of 2012 (O&M)
and RSA No. 3881 of 2012 (O&M).
With
Civil Appeal Nos. 3683-3684 of 2020.
T.S. Doabia, Sr. Adv., Dinesh Verma, Rajat Verma, Subhasish
Bhowmick, Jagjit Singh Chhabra, Saksham Maheshwari, Advs. for the
appearing parties.
Caveator-in-person
The Judgment of the Court was delivered by
A. M. KHANWILKAR, J. 1. Leave granted.
2. These appeals take exception to the common Judgment and
decree of the High Court of Punjab and Haryana at Chandigarh1, dated
27.05.2019 in R.S.A. Nos. 2901/2012 and 3881/2012, whereby the High
1 for short, "the High Court"
RATTAN SINGH & ORS. v. NIRMAL GILL & ORS.
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Court reversed the concurrent findings of the trial Court and the first
appellate Court and decreed the suits of the plaintiff.
3. For convenience, the parties are referred to as per their status
in Civil Suit No. 11/2001 before the Court of Civil Judge (Senior Division),
Hoshiarpur2. 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 sister-in-law 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) purported to have been executed by the plaintiff on
28.06.19903 in favour of defendant No. 1 and consequently sale deeds
executed by defendant No. 1 as an attorney of the plaintiff. Sale deeds
dated 29.06.1990 and 03.07.1990 purported to have been executed directly
by the plaintiff are also disputed by the plaintiff. The case of the plaintiff
is that the defendants sought her signatures on blank papers in the year
1990 under the guise of preparation and processing of documents for
the purpose of getting the estate left behind by their father mutated in
their names. Reposing complete trust in her step brothers, the plaintiff
signed the papers and handed it over to the person tasked for that purpose
by the step brothers - defendant Nos. 3 to 6. Thereafter, the defendant
No. 3 visited plaintiff's matrimonial home at Delhi asking her to come to
village Kalyanpur in June 1990 for getting the said mutation effected.
Accordingly, the plaintiff visited the village and stayed there for 3 or 4
days.
2 for short, "the trial Court"
3 for short, "the 1990 GPA"
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7. Subsequent to the retirement of her husband in the year 1999,
the plaintiff shifted to Mohali and being closer to her maternal home, the
frequency of her meeting the relatives increased. In a wedding function
of a relative at Jalandhar in February 2001, where the plaintiff and her
step brothers - defendant Nos. 3 to 6 were present, one of her cousins
Rustam Singh had mentioned to her in a conversation that the defendant
Nos. 3 to 6 had sold a part of the property which they jointly held with
the plaintiff.
8. Upon learning about the said fact, the plaintiff made enquiries
in that regard including verified revenue records whence she learnt about
existence of a GPA purported to have been executed in 19634 by all the
legal heirs of Harbans Singh including the plaintiff, in favour of defendant
No. 3 and based on the said GPA, the estate of Harbans Singh had
already been mutated in their joint names in November 1963. The plaintiff
also discovered the existence of aforementioned disputed documents
which were executed without her knowledge, during her visit to the
village in the year 1990. The plaintiff claimed the aforementioned
documents to be a result of fraud perpetrated upon her by her step
brothers - defendant Nos. 3 to 6 and her step sister-in-law - defendant
No. 1, who got those documents 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 sale-deed 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 (3-5), situated in Village Premgarh,
H.B. No. 247, Tehsil and District Hoshiarpur, as per Jamabandi
4 for short, "the 1963 GPA"
RATTAN SINGH & ORS. v. NIRMAL GILL & ORS.
[A. M. KHANWILKAR, J.]
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for the year 1996-97 by defendant no. 1 as Mukhtar of the plaintiff
in favour of defendant no. 2 is illegal, void and ineffective as against
the rights of the plaintiff and that the mutation no. 13795 to the
extent of 1/2 share of 65/68th share i.e. 1/2 share of 7 Marlas 2
Sarsahi is null and void and is liable to be set aside and the plaintiff
is not bound by the same.
ii,That the plaintiff is owner in possession of the land measuring 9
Marla out of the land measuring 4 Kanals 13 Marla bearing
Khewat No. 1400, Khatauni No. 2097, Khasra No. 2773/694 (011), 2774/694 (0-4), 2775/694 (0-1), 2776/694 (0-1), 2777/695 (03), 2778/695 (0-6), 2779/695 (0-8), Khewat No. 1463, Khatauni
No. 2166 to 2168, Khasra No. 689 (2-19) situated in Premgarh,
Hoshiarpur, H.B. No. 247, Tehsil and District Hoshiarpur, as per
Jamabandi for the year 1996-97. And restraining the defendant
no. 1 from alienating or transferring the land in dispute in any
manner on the basis of General power of attorney dt. 28.06.90.
iii, That the sale deed dated 29.05.1990 in respect of the land
measuring 39 Kanals 4 Marlas out of the land measuring 235
Kanals 6 Marlas being 1/6 share out of the land measuring Kahata
No. 46/60 to 67 and 36/56 Khasra Nos. 20R/21 (0-14), 21R/24/1
(3-11), 23R/7 (5-11), 8/1 (2-13), 15/1 (1-6), 106//(0-14), 131 (219), 16-R/17 (1-6), 25 (6-18), 16-R/16 (8-0), 17-R/13/2 (6-4), 14/
1 (1-0), 21 (8-0), 22 (8-0), 23 (8-0), 24/1 (5-0), 24/2 (2-4), 25 (80), 18-R/11/1 (2-8), 23-R/8/2 (2-6), 24-R/1 (2-0), 10 (6-5), 11/1
(1-14), 23-R/3/2 (5-40), 4 (8-0), 5 (8-0), 6 (7-12), 17-R/14/2 (6-4),
15 (8-0), 16 (8-0), 17/1 (4-4), 17-R/17/2 (3-0), 18 (8-0), 19 (8-0),
20 (8-0), 18-R/19 (8-0), 20 (8-0), 21 (8-0), 22 (8-0), 21-R/1/1 (74)m, 4/2 (5-5), 23/2 (4-1), 25 (2-13), 22-R/5 (3-0), 21-R/23/2-min
(1-3), 104/2 (0-2), 23-R/26 (0-14), 53//1 (2-7), situated in Village
Kalyanpur, H.B. No. 144, Tehsil Dasuya, District Hoshiarpur is
illegal, void and has been obtained by way of fraud and the
declaration that the plaintiff is owner in possession of land in dispute.
In the alternative suit of joint possession.
iv, And declaration that the General Power of Attorney 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
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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 Kaur5, 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 61⁄2 Marlas out of land measuring 6 Kanals 4
Marlas bearing Khewat No. 602, Khatauni No. 662, Khasra No.
85/17 (6-14) by defendant no. 11 as attorney of plaintiff in favour
of defendant no. 8 situated in Village Bajwara, H.B. No. 355,
Tehsil and District Hoshiarpur, as per Jamabandi for the year 199596 is illegal, void and that the plaintiff is not bound by the same as
the same has been executed and got sanctioned in absence and
without consent of the plaintiff.
ii. That the sale deed dated 03.07.1990 in respect of the land
measuring 34 Kanals 5 Marlas Khasra Nos. 32-R/13/3 (2-12), 14
(8-0), 15/1 (4-16), 16 (2-10), 17 (3-11), 18/1 (1-9), 12//13/2 (0-9),
14/1 (0-9), 18/2/1 (2-19), 23 (5-3), 24/1/1 (5-9), 24/2/1 (1-2), 25/2/
1(0-8), 12-R/15/2 (4-18), 16 (8-0), 17/1 (7-13), 18/1/1(2-8), 25/1/
1 (5-16), 13//20 (8-0), 21 (8-0), 22 (8-0), 23/1 (4-12), 27/17/2 (019), 18/1 (1-10), 18/2 (0-19), 23/1 (5-10), 23/2 (1-12), 27/24/1 (114), 32//3/2 (5-13), 4/1 (1-3), 4/6 (0-2), 17//13 (less than one Marla),
18//3 (0-5), 4 (2-16), 5/1 (0-1), 17//1/1 (3-10), 2/1 (7-6), 3/1 (412), 8/2/1 (3-3), 9/1 (0-18), 24//6/2/1 (5-15), 7/1/2/1 (2-5), 14/2 (011), 15/1 (4-18), 25//8 (0-10), 9 (5-0), 10-2-1 (5-19), 11/1 (4-18),
12/2 (4-18), 13/1 (0-17), 13//11 (7-11), 12 (7-11), 13/1 (4-7), 13/
18/2 (4-12), 19 (8-0), i.e. 1/6th share of 205 Kanals 9 Marlas
situated in Village Mehandipur, H.B. No. 46, Tehsil Dasuya, District
Hoshiarpur as per Jamabandi for the year 1983-84 and also as
5 for short, "the subsequent purchasers"
RATTAN SINGH & ORS. v. NIRMAL GILL & ORS.
[A. M. KHANWILKAR, J.]
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[2020] 12 S.C.R.
per Jamabandi for the year 1994-95 is illegal, void without
consideration and executed in absence of the plaintiff by producing
other lady by the defendant no. 1 in collusion with defendant no.
11 and his wife and the plaintiff is not bound by the same and is
owner in possession of the said land.
iii. That the sale deed in favour of defendant no. 7 dated 20.05.1996
registered on 22.05.1996 in respect of the land measuring 2 Kanal
10 Marlas out of land measuring 14 Kanals 18 Marlas bearing
Khewat No. 107, Khatauni No. 148, Khasra No. 13//1 (6-18), 14R/5 (8-0), now Khewat No. 123 and Khatauni No. 140 and the
same khasra number as per Jamabandi for the year 1997-98
executed by defendant 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 of defendant 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. 378-Land other side 373-L owned by Mangat
Singh and Avtar Singh and other side is H.No. 372-L 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 on 21.03.1996
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. 378-L;
One side present No. 372-L owned by Mool Chand Bhandari;
One side 373-L owned by Mangat Singh and Avtar Singh;
situated in Model Town, Jalandhar, shown red in the site plan
attached.
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IN THE ALTERNATIVE suit for joint possession of the properties
as detailed in the heading (i) to (iii) and also declaring that the
plaintiff and defendant no. 9 and 10 are in joint possession as cosharers of the property Nos. (iv) and (v)."
12. Both the suits were resisted by defendant No. 1 and defendant
Nos. 3 to 6. The subsequent purchasers also contested the suits by filing
their written statement in C.S. No. 173/2002. On the basis of rival
pleadings, the trial Court framed issues in the aforementioned suits as
follows:
Issues in C.S. No. 11/2001-
"1. Whether the Plaintiff is entitled for a decree of declaration as
prayed for? OPD
2. Whether the suit is not maintainable in the present form? OPD
3. Whether the suit is within limitation? OPP
4. Relief."
Issues in C.S. No. 173/2002-
"1. Whether the plaintiff is entitled to declaration as prayed for?
OPP
2. Whether the sale deeds alleged by the plaintiff are null and
void? OPP
3. Whether the plaintiff is entitled to joint possession as alternative
relief as prayed for? OPP
4. Whether the suit of the plaintiff is not maintainable? OPD
5. Whether the suit of the plaintiff is barred by limitation? OPD
6. Relief."
13. The aforementioned suits came to be clubbed and evidence
was recorded in the leading suit being C.S. No. 11/2001. After analyzing
the evidence on record, the trial Court dismissed both the suits of the
plaintiff vide a common judgment and decree dated 03.01.2009.
14. Aggrieved by this decision, the plaintiff preferred Civil Appeal
Nos. 3 and 4 both of 2009 against C.S. No. 11/2001 and C.S. No. 173/
2002 respectively before the Additional District Judge (Ad-hoc), Fast
RATTAN SINGH & ORS. v. NIRMAL GILL & ORS.
[A. M. KHANWILKAR, J.]
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Track Court - I, Hoshiarpur6. During the pendency of the appeals, the
plaintiff expired and since then came to be represented by her legal
representative Nirmal Gill (respondent No. 1 herein). The first appellate
Court once again appreciated the evidence on record and after elaborate
analysis, whilst upholding the findings of the trial Court on material issues,
vide its judgment and decree dated 30.11.2011, partly 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 co-owner 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 appellant-plaintiff 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 judgment of the trial Court in reference to C.S. No.
172/2002 in toto.
15. Nirmal Gill (respondent No. 1) filed second appeals before
the High Court being R.S.A. No. 2901/2012 and R.S.A. No. 3881/2012
against Civil Appeal No. 3/2009 and Civil Appeal No. 4/2009 respectively.
While admitting the second appeal, the High Court formulated two
questions as substantial questions of law. The same read thus:
"1. Whether the findings of the learned Courts below are
sustainable in view of the fact that the question of fraud was
apparent?
2. Whether the findings of the learned courts below are in
accordance with the settled provisions of law and the questions
6 for short, "the first appellate Court"
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of law and the question of fraud and limitation had been wrongly
decided by the courts below?"
16. After reappreciating the factual matrix and the evidence on
record, the High Court opined that the trial Court as well as the first
appellate Court committed manifest error and misapplied the settled legal
position. On this finding, the High Court went on to reverse the concurrent
opinion of two Courts.
17. Being aggrieved, the defendant Nos. 1, 4 to 6 and the subsequent
purchasers approached this Court by way of present appeals. The former
set of appeals [arising out of SLP(C) Nos. 21326-21327/2019] had been
preferred by defendant Nos. 1, 4 to 6 and the latter [arising out of SLP(C)
Nos. 29775-29776/2019] by the subsequent purchasers.
18. According to the defendant Nos. 1, 4 to 6, interference by the
High Court in the present matter was unwarranted as the same did not
involve any substantial question of law. It was urged that judgments of
the trial Court, as well as, the first appellate Court have been passed
after proper appreciation of evidence, therefore, the High Court ought
not to have interfered with the concurrent findings of facts - as reappreciation of evidence is not permissible in second appeal. It was
then argued that the plea of fraud was not taken in plaint in terms of
Order 6 Rule 4 of the Civil Procedure Code7 and thus, the same cannot
be considered. On merits, the aforesaid defendants contended that the
evidence of the plaintiff was self-contradictory, as she first claimed that
her signatures were taken on blank papers and then denied her signatures
occurring on the 1990 GPA. The plea that the signatures were taken 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
7 For short, "the CPC"
RATTAN SINGH & ORS. v. NIRMAL GILL & ORS.
[A. M. KHANWILKAR, J.]
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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 satisfied about its
correctness. The High Court exceeded its jurisdiction in observing that
PW4 was not declared hostile due to reasons best known to plaintiff's
counsel; and disregarding his evidence merely because he went to school
with the defendant No. 4. The aforesaid defendants then urged that the
payment of consideration received in lieu of sales made through the
attorney was duly passed on to the plaintiff. Regarding the aspect of
payment of Rs.5 lakhs to son of the plaintiff, Charanjit Singh, the same
was not raised before the trial Court. Further, if he had carried the said
cash with him from Delhi to Punjab, then there was no reason why he
could not carry it back. As regards rights of the subsequent purchasers,
it was urged that there was no dispute till 2001 and therefore, the aforesaid
purchasers could not have doubted before purchasing.
19. The subsequent purchasers would submit that before purchasing
the plot at Jalandhar, they duly verified the title deeds as also the
correctness and genuineness of the 1990 GPA. The 1990 GPA is a
registered document and enquiries were made by verifying the same in
the Sub-Registrar's office and only after being satisfied, the said plot
was purchased bonafide for consideration.
20. The argument put forth by Nirmal Gill (respondent No. 1 -
plaintiff) was that the High Court had rightly reversed the decisions of
the trial Court and the first appellate Court, which were contrary to
evidence brought on record and against the settled principles of law. It
was submitted that after the death of Harbans Singh, defendant Nos. 3
and 4 were taking up the cultivation of the joint land with permission of
the plaintiff, which shows that they enjoyed active confidence of the
plaintiff. It was submitted that the plaintiff had never executed any GPA
or sale deed in favour of the defendants. It was urged that the 1990
GPA was laden with many discrepancies which prove it being a product
of fraud and forgery. The address of the plaintiff had wrongly been
mentioned as 775 instead of 875 in the 1990 GPA as well as in the stamp
vendor's record. Further, the scribe (PW4) who claimed to have prepared
it on the instructions of the plaintiff had failed to identify the plaintiff.
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Moreover, the PW4 was admittedly known to the defendant No. 4 since
their school days. There appeared to be an alteration to the date of
execution 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 that the sale deeds were fabricated is that the
consideration of the alleged sales had never been passed on to the plaintiff.
It was pointed out that the defendants had mortgaged the joint lands
several times without plaintiff's consent as they were in need of money,
to highlight the fact that they did not possess the means to purchase the
lands for consideration. It was submitted that the defendants attempted
to show that the consideration was paid out of proceeds received by
sale of their mother's property, however there was no evidence on record
as to existence of any such property. Moreover, the attesting witness of
the sale deeds could not identify the plaintiff. Similarly, the subsequent
purchasers also could not identify the plaintiff. They had also failed to
showcase that attempts were made in order to ascertain the genuineness
of the 1990 GPA or to contact the plaintiff. The consideration of her step
brothers/defendants was paid in their own names while the share of
consideration of plaintiff was paid in the name of defendant No. 1. The
defendant No. 4 also tried to pass off Charanjit Singh's money returned
to him as sale consideration received by him on behalf of the plaintiff in
respect of sales executed by defendant No. 1.