Rattan Singh and Ors. v. Nirmal Gill and Ors.
Civil Appeal Nos. 3681-3682 of 2020 (Arising out of SLP (C) Nos. 2132621327 of 2019)
With
Inder Pal Singh & Anr. v. Nirmal Gill & Ors. etc.
Civil Appeal Nos. 3683-3684 of 2020 (Arising out of SLP (C) Nos. 2977529776 of 2019)
16 November, 2020.
Counsel for the appellants: learned Senior counsel, Mr. T.S. Doabia, Mr. Jagjit Singh Chhabra, and Mr. Subhashish Bhowmik
Counsel for the respondents: Nirmal Gill
The Hon’ble Supreme Court comprising of Justice A.M. Khanwilkar and Justice Dinesh Maheshwari held in a case that registered document is presumed to be genuine, onus to prove otherwise is on the person who challenges it.
For convenience, the parties are addressed as the same way in the civil case before the trial court. The dispute between the parties pertains to a General Power of Attorney (GPA) purported to have been executed by the original plaintiff(deceased) on 28.06.1990 in favour of original defendant No. 1 and consequently sale deeds executed by original 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.
In a wedding function of a relative at Jalandhar in February 2001, 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. In this backdrop, the plaintiff instituted a suit being C.S. No. 11/2001 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.
The Trial court after perusing the evidence and witnesses on record decreed in favour of the defendant. The same was upheld in the first appeal by the plaintiff. In the second appeal the High Court reversed the orders of the court below and held in favour of the plaintiff. It is against this order that the present appeal is preferred.
The questions of law framed and answered by the court are as follows:
1. Whether the suits filed by the plaintiff were within limitation?
2. Whether the 1990 GPA and sale deeds dated 29.06.1990 and 03.07.1990 purported to have been executed by the plaintiff is a result of fraud and forgery or whether the same had been executed by the plaintiff herself? (para 23)
The Counsel for the appellants, among other things, contended that (i) 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. (ii) 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. (iii) 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
(i) 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. (ii)The 1990 GPA is a registered document and enquiries were made by verifying the same in the SubRegistrar’s office and only after being satisfied, the said plot was purchased bonafide for consideration.
Counsel for the respondents, among other things, submitted that (i) 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. (ii) the scribe (PW4) who claimed to have prepared it on the instructions of the plaintiff had failed to identify the plaintiff. Moreover, the PW4 was admittedly known to the defendant No. 4 since their school days. (iii) 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. (iv) The plaintiff and the defendant Nos. 3 to 6 were on cordial terms and hence they were in a fiduciary relationship with the plaintiff, therefore, the burden of proving that there was no presence of any fraud would lie on the defendants, which they failed to discharge.
Dealing with the second question, the Court referred to its judgment in Prem Singh and Ors. v. Birbal and Ors.(2006) 5 SCC 353 and held that the initial onus was on the plaintiff, who had challenged the stated registered document.
As regards the proof of the execution of the GPA is concerned the court referred to section 68, 69 and 71 of the Evidence Act, 1872 and observed the following:
The fact that the subject documents were executed by plaintiff and attested by Teja Singh has been established from record in the shape of evidence of PW4 as well as defendant No. 4. The signatures of Teja Singh were identified by DW2, who deposed that he was conversant with Urdu language and could identify the signature of Teja Singh, which was in Urdu language. Further, DW4 deposed that he used to pay land revenue to Teja Singh and received receipts from him. Moreover, the handwriting expert (DW7) had also compared the admitted signatures of Teja Singh with those on the disputed documents and opined that it was signed by him, while the expert produced by the plaintiff as PW10 had not examined the admitted signatures of Teja Singh. Therefore, the signatures of Teja Singh stood proved as per the opinion of expert (DW7) and stood corroborated by DW2 and DW4, independent witnesses. (Para 35)
Dismissing the contention of the plaintiff that the burden of proving that there is no involvement of fraud would be on the defendants as they enjoyed active confidence of the plaintiff, the court observed the following:
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. The defendant Nos. 3 and 4 were cultivating the lands along with their father Harbans Singh and continued to do so even after his death. The principle underlying the reported decision must come to the aid of defendants as the plaintiff had failed to prove the fact of misuse of trust by the defendants as such.(Para 42)
Further, the plaintiff attempted to project the 1990 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 had failed to do. (Para 43)
With regard to the sale deed, the Court dismissed the contention of the plaintiff that the statement of DW3 is not valid as he was not able to identify the photo of the plaintiff. In this regard the court referred to its judgment in Damodar v. State of Rajasthan (2004) 12 SCC 336 Aloka Bose v. Parmatma Devi and Ors. (2009) 2 SCC 582 and section 3 of the Transfer of Property Act and noted the following:
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 Teja Singh. 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 also 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. (Para 58)
With the regard to the contradiction between the expert opinions submitted by the plaintiff and the defendant the court observed the following:
The trial Court and the first appellate Court had not considered the contrary opinions of the experts and chose to form their opinion based on other evidence that has come on record. In our opinion, 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. Suffice it to say that the plaintiff failed to prove that her signatures on the subject documents are forged. (Para 65)
Therefore, for invoking Section 17 of the 1963 Act, 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. (Para 78)
With regard to the issue of limitation, the Court referred to section 17 of the Limitation Act and observed the following:
79. It must be noted that the trial Court was in error to hold that the person who has disclosed the information was not examined by the plaintiff, when it had come on record through the testimony of Kultar Singh (DW2), that Rustam Singh expired before the suits came up for trial. If so, the finding of the High Court that the testimony of Rustam Singh strengthened the case of plaintiff is exfacie erroneous and manifestly wrong. In as much as, the said person was never examined before the Court in these proceedings. Further, the trial Court and the first appellate Court had erroneously assumed the date of function in December, 2001 in place of February, 2001. However, that will have no bearing on the finding on the factum of nonexistence of fraud. 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)
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 this 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)
Consequently, the appeal was allowed and the judgment of the High Court was set aside.
View/Download Judgment: Rattan Singh and Ors. v. Nirmal Gill and Ors.
Kalidharun K M
