Karnataka High Court
K M Rajendran vs Kamalarani K Sodhi on 11 June, 2010
Bench: Manjula Chellur, Ravi Malimath
IN THE HIGH COURT OF KARNATAKA. ,
PRINCIPAL BENCH AT BANGALo;§;fg;'. i
DATED THIS THE 11?" DAY OF "
PRESENT A % 4'
THE HON' BLE MRS. JUSIICI:
THE HoN*BL1?._ MR. J[.L§'I1CE--. Ravi MAI.,wATH
REFULARV I%*H§isT 105/2005
BETWEEN .
K. M.Raje;1draz1" , ' _V
S/0 M. Ic;~:sh:1-arr1'u::thy---'iT'j---- V V'
Aged 46 years _ "
Forrnieriy at Yeleiikailalli. «V
Village. I_3egi'1r-"HQb1i a1':_c'I" ' __
Now at No.3', CKC "G£:If(§.1éI3;4
IMain,'I3ai1galo're--'?.A7 , ' APPELLANT
(By. S1-3. JaSia1{u1né1r Pétil, Sr. Advocate a/w
N. I~Iarid23;sa_:f;_¢1'£a1nbiar, Advocate}
' all -Smt.' Kam'gaI'aran:E K. Sodhi
' .__4W/o.Lat§: Kasturflal N. Sodhi
Age'd about 75 years
Flat N0. 103/5. 8"' Road
'A : ,Dou'Iatnagar,' Boriville
Mumbai-400 O66
" Died by L.Rs
Represented by her GPA Holder
Kailashchandra K. Sodhi
No.302. Promenade Place
Promenade Road
Bangalore-560 062
Amended as per the Court Order dated 16.4.2002.
1(a) Sri. Kailas Chandra Sodhi
Major
R/ o No.320. Promenade Place . '
Promenade Road 7
Ba11galore--62
1[b) Smt. LataSa1tra, Major
W/o Sri Nadkishore Salh'otra.."
R/0 Ground Floor: Q . . "
Sheetal Park Building
Chandravarkar Lane _ V
DoriVa1e{W_e'st) to _ V _ ~
_, _ "
l(c) Srnt'. 4Sl1amaffDhawan " __
Wfio Lalpad D.h-aVan '' " "
Aged"--55'¥ea1"_s A
.- --R[o 307., A3""'Floor
~ Abhinavad Co:_Qp.eratiVe
Sorciety Building
P V' * Bha.ru_cha Road
erL§a1.1va1~}--._ci..
" Distrf.-ct'o:7I'11ar1a
A Md) P' Narendra Sodhi
8/ 0 Late Kasturilal Nihal Chand Sodhi
Aged about 54 years
R/0 301, 3"' Floor, Akhil Towers
Ratan Nagar, Dalivar East
District Thana, Mumbai
S/0 Late KasturilalNiha1ChandbSGCih«iQ -1' 7
2/?'
He) Sri. Jagadish Kumar Sodhi
S/o Late Kasturi Lal Nihal Chand Sodhi
Aged about 50 years
No. 103/ 5, "Harisamruthi"
8"' Road,
Doulatnagar, Boriville [East]
Mumbai--400 066
1(1) Smt. Harsha Kanotra
W/o Ashini Kanotra
Aged about 39 years I
R/o Ashok Vihar
New Delhi
2. Gulshankumar Sodhi V' »
S/0 Late Kasturilal_S_odhi
Aged about 58 year's~._ 'V
R/o No.18, 8"' Cross _
Behind Oxford School V
Hongasandra -- if
Bangalore-56_V0'_'068_ Z:
3. Smt. Sutna._--n_Gu1sl1anlgumar Sodhi
W/.0 Gulshaiiktimafsodhi
Agelduabout 4.2 grears---..__
Residing at No.,18, 'l83}..'iCross
Behind Oxfo'rd"Sch.ool
3' '~3H0fiSaSandAf'a~ .. ..... .. »
Bangalore-560 068 RESPONDENTS
A {By L;.VishWanath, Advocate for LRs. of R1) '-- (M-Is. Si'-.%Ia.11"& Siva Associates, Advocates for R-2 8: R43) V A a rim RFA is filed under Section 96(1) r/w o 41 R1 cpc w,aga_€nst the Judgment and Decree dated 11.10.2004 passed "gin OS.No.339/2001 on the file of the XIV Add}. City Civil A .:l'l'/'{"Judge, Bangalore [CCH.No.28) allowing the suit for declaration and possession and the appellant herein prays to set aside the above Judgment and Decree or to remand the above suit for future enquiry taking the assistance of handwriting expert in the matter with regar_d"""vthe signatures in GPA dated 9.2.2000 marked as exhibits D4 and P-16 and other connected This appeal being heard and re_served,. novv c'o.{I1.ing:Vson for Pronouncement of Judgrr:.e_nt thisday, MQ.IfiL£ffi Ché'lIur J.',~ up delivered the following:
This ap:pea--l_ the judgment and decree"m._C§;;f:". ass./20.01 ¢n""t1~.--e'° file of the XIV Additionai City iThe appellant was the first defendantrand l1*?fr"espondent was the plaintiff before the i1'he«.2?}d.vrespondent was the 2nd defendant and ' V.vthev3*§_rtespo11dent was the 3"' defendant. Subsequent to the l*tilingVlvofftheh"appeal, respondent No.1/plaintiff and also defendant 4' No.2 died and the legal representatives are if .. it brought on record.
2. The plaintiff through her power of attorney holder got filed the above suit for a declaration that the sale deed dated 2.6.2000 marked as Ex.P.1'7 executed in prev-dt1e"ijef'the 15' defendant by defendant Nos. 2 and 3 power of attorney holders of resp'ondenrt/plaintiffin: respect ' of suit schedule property as null
3. According to the plaintiff, she absolute owner __ of the alienated property measuriitge.l2e,guntas and kharab land of 9 _guntas__ situated at Kodichikkanahlalulihlganld in Sy.No.30/2 measuring 4 lguntlas of Kharab land in the samelivillage, 'e»x;;fer.ell"described as plaint 'A' schedule properties;-. Accordingv to her. she became the absolute owner of propertieS«b_e_atrvlng Sy.No.30/ 1 measuring 4 acres and ' Sy.No.30/2 measuring 1 acre 33 guntas of "%1odichil{}rar1ahalli under different sale deeds in the year she' had sought for conversion of the said lands and all 2 they formalities were also completed: the Deputy [Commissioner concerned directed her to pay necessary fee for conversion and phodi charges but the Divisional Commissioner initiated suo rnoto proceedings cancelling proceedings; therefore, she approached the High Court in W.P.No. 22674/1994 and the orders of the Commissioner was stayed; meanwhile, portioiis 30/ 1 and 30/2 including the land of the eanieftobel ' 2. acquired for the purpose of Cauvery Water Stage; the remaining land after-...acquisition proceedings was 2 1 acre 13 guntas in Sy.No. 12 "g11.nta,a§ in Sy.No. 30/2 remained in possession rand. erijloyrnent of the plaintiff. _
4. She 'i'urt'E--1er icontendsgxione Kailash Chandra K. Sodhi the properties as power of attorrieyresiding at Bombay; when they noticed putting up the compound wall to av_piorti_on of thAe~'la_rid.vin question, on enquiry she learnt that ' ;d'efendantNov.l had purchased the said property on 2.6.2000 H '--fo'r»asum-.of=.VRs.3,80,000/-- under a sale deed said to have been Vexecuted by defendant Nos. 2 and 3, who are none 2' other than another son and daughter~in-law of the plaintiff. lllsllccording to the plaintiff she never executed the power of 22 "ulattorney either in favour of 2*" defendant or the 31'"
defendant; therefore, they had no right whatsoever to __convey the right. title or interest in the suit schedule propert_i,.r_ in favour of the 15' defendant: hence. she declaration that no valid title w_hats_oever"lis"
defendant Nos. 2 and 3 in favour of "a1_1d further sought for restoration or repossessilor§1vv.ofHthe schedule properties costs___and_ other relief.' V}
5. After service aofl 15* defendant interalia cha11eng_e.d on the ground that she of the suit schedule property" registered in her name.
Accor'cl_in'g:_ to executed the general power of attorney: inffavour of defendant Nos. 2 and 3 and. who in turn .1r__1_a_ve executed a registered sale deed in his ' V.efa*JouvrV4'eon§.}eying the right. title and interest in the suit "s.c'hedu1elf'property; therefore. he had every right to put up the H cornpound wall around the two bits of the suit 2 V. if properties; had also constructed a shed for the watchman to after the property and even the khathas are transferred in his name as per the mutation entries by the concerned authorities. With these averments, he sought for dismissal of the suit with costs.
6. So far as defendant Nos. 2 and 3 axe 2, more or less they have also contended that the ' M execute a power of attorney in their favour¢o1§' afigg they were legafly authorised to alietiatefithe if property and accordingly they _exee'utedV a favour of the 1" defendant copve§ing"--.the title and interest in the suit schedifle' Theiefore, they have sought ---- Based on the above pleadings, raised: I V. /1;. vVcL1efe::adant prove to have the 'A' schedule properties 1 plajnfifl through her Power . tittomey hoiders namely, Gulshan Z Kumar Sodhi and Smt. Suman Gulshan Sodhi for valuable consideration?
2. Does the plaintiff prove that the defendant has not acquired arty right, title or interest over the schedule properties by virtue of the sale deed in question executed by her sori'fl"« Gulshan Kumar Sodhi and 0"
in--1aW Suman Gulshan "
reasons urged in n 0
3. Is the pIaintli_1'f..__. entitled declaratory relief of sale deed in
4. What 0 ::.*kadd1.l¢..S§éu§£4*'~w 2 and 3 prove that llV'p.1ai11tii°lf 'eaeecuted General Power of V 1}ttorney.._1'__I1 their favour authorising them
-V suit schedule property?"
of the plaintiff, she not only examined H poiyerélof attorney -- P.W.1--Mr.Kailash Chandra K. Sodhi 00 but also examined herself as P.W.2 on 30.1.2004. She _ 'Attotally got marked 20 documents. So far as defendants are r _4./' .
10 concerned including the 2114 defendant, who was examined as {).W.6 totally ---6~ wimesses were examinۤ1e..__"<inid*"r:"
documents were marked. The trial' Court had it dealt with issue Nos.1, 2 and addit;ionai« issne .é2Qgeti:er*--as I' the? are all inter connected and if and if evidence before the Court for ..issues._was_ ione"~--.,vai"d' the same. So far as issue No.3, it referswtowthe prayer sought by the plaintifl". ilear;;;_edi::J1ide§e.o1:.analysing the entire e»ieeeeat[ee held 3}} the issues in favour ofithe proceeded to declare that the sale deed dated by defendant Nos. 2 and 3 in V' favo1ir5i':ofe_Adefendant'i\Eo:}' did not convey any valid title and was entitled for repossession of the suit 'i_pi;5c)perty and further directed the defendants to hand..oire_r the suit schedule property to the plaintiff within tnorrths from the date of the order. Aggrieved by the said and decree, the 3" defendant has approached this . V A if as the appellant.
8. According to the appellant, the judgment and decree of the trial Court suffers from many deficits and the 11 trial Court totally ignored the fact that the 131 defendant made all the efforts to bring the best possible evidence before the Court but the trial Court did not corisid"er'~V.vvthe applications filed for examination of the disputedfp by an expert and I.A.VI filed by defendant Nod.'1';:§?'.ccor'ding._to » 1 him. much prior to the commencement. of the"~tria1"C'cu1't_on 12.6.2003, this interlocutory appplicatvioln and agfai-of' after the evidence of f3.W.1 to be filed on 15.1o.2oo3ai{d 1,A'.p><:§:ii'.csnroéa;1.2004. He further contends that Sectionsr€l1...::64f,:-A6%, of the Evidence Act are ought to have been consi_€deredA.AV"the appellants, when the plaintiff was 'alleged power of attorney, she deniedp the expecuttiofr,-, hence the best possible evidence to the was not allowed. Therefore, the prejudiced. According to him P.W.1 had no authorityvffytof institute a suit. According to him, the entire pp evidence brought on record by the plaintiff was not reliable P.W.2 kept on changing her stand from time to time. 12
9. So far as respondent Nos. 2 and 3 who are none other than defendant Nos. 2 and 3. they were making persistent attempts to send the document Ex.D.3 - pihoxver of attorney for the hand Writing experts opinion,;butt:rial Court did not allow them to bring on recordppthe.bes_t'~possibleuD evidence. Hence, they are on disadvantageous' po_s'iti0_1i.'
10. In reply. the learned Counsel contended that the experts u"i'evidenceV" is "only piece of evidence like any other evidence'; i'therefore, non examination of the expert or non sending the to the expert is of nov"assistjancefi.;'to'--the appellants. According to him. and so also Section 34 of the Sections " 32,' _ Registration Act -__are if relevant. He also relies upon the 63, 64, 67 and 68. He took us through registratiovn Ru1'es..
' _several'por_ti'ons of the evidence of witnesses in order to "contend the even without sending the relevant doucuzmventVfiEx.D.3 to the hand writing expert. the plaintiff "Was successful in establishing the malafides and the falsity V. the documents relied upon by the defendants. With these 13 arguments at our command, we proceed to con;s§de3:"'t}1eii"
evidence of the parties.
11. The point that arises foi"
"whether the appeal deserves tocbe a.1loWed?".
12. The appellants haveiiiiiplaced on the following decisions: V i i Ii
2. sTATE..t(o,§*;'L.1_~§1 :iaI_)MI.E§I'iSff'R'AT.I,QN) --vs- PAL: RAM (AIR 39?9 SC: 14) 1" V' . .
In this case the srose before Their Lordships was the dispinted h:.§nd..iw1*iti;1g or the signatures have to V. be p1oio'§ed¥int6 sefefence to sections 45, 47 and 73 of the ii}3.yid.ence.v iifvfiegiégion 73 is with reference to evidence of the expert. Section 47 deals with the evidence of a .- wsipexson is acquainted with the hand Writing of the "1-i3erson"p_Who said to have written the Writing in question. So section 73 is concerned, it refers to opinion formed by , ifthe Court on comparison made by itseif. At paras 23, 29 85 30 of the said Judgment, their Loldships have discussed at 14 length with reference to the above sections which ;ie;fid_:a$_ under:
23. "Just as in English Law, the Evidence u Act recognises two direct of handwriting of a person:
(1) By an admission (2) By the evidence of some-».fwitnes'svwhHo§ saw it Written. V _A ._ These are the best These apart, there are three otlzermodzes :1.:1oof~h3t_opinidn. They are:
(5; 55;' can on-ejvaaea,¢g handwriting " ' ~ 45). V of a witness * _ with the handwriting of it person who is said to have A. the written the writing in . b _ questi0I1(S€c. 47) it e:*'C)pi11ion formed by the Court on it comparison made by itseif. (Section V 73) i' these three cognate modes of proof invoive a it process of comparison. In mode (I), the comparison is made by the expert: of the disputed writing with the admitted or proved writing of the person who is said to have written 15 the questioned 'document. In (ii), comparison takes the form of a belief V A' witness entertains upon comparing i in question, with an exemp1a;"""fo1'rned "slits it mind from some previous'-._ knowleilge'-. brl"
repetitive observance of the 1 person concerned. In case of V (iii); tiiielfl comparison is made With_ sample writing or lexleirnpliar ;ehtai_:1ed«,by it from the person concerned. V ' 4' from anofl1ei'_VVarigl}e is no legal barllto' ths}iJud:§gfe'1i'sing eyes to compare disp as the admitted writing, even the evidence of any V efizpeift, "the Judge shonid, as a inattersvof prudence and caution, hesitate to base 'A ghisl with regard to the identity of a it Iigazziiit-.u;fvi"i?i:11g.:~whieh forms the sheet--anchor of the ' _ prosecéiiion case against a person accused of an 'offence; solely on comparison made by himself. it , It isthexefore, not advisable that a Judge should it * upon himself the task of comparing the admitted Writing with the disputed one to find out whether the two agree with each other; and 17 Fakharuddin v. State of Madhya Pradesh {ibi_d.}Vi_i (AIR 1967 so 1326) are opposite and ma§g'**beVVV.__i__: extracted (at pages 1328, 1329):
"Both under ss. 45 and Evidence": is "
an opinion, in the fomier st scie,niific. " 3 comparison and in the"1_att._er on. the b'zisis:._'o£ familiarity resulting from ifiegiuent obseivstioigs and experience. In ~eit11er'oa'se,:' ._&Courit"'1'n1'ist satisijr itself by such ai~siop£en_Vfl1at the opinion maybe acts:i.:.11pon.p& means open, to the --to appiy iis:.VownV.obse1vation to they and to one, not to bezooniei expeii but to verify the V of in one case and to appraise "t3vneiV"'-.I_zi1iii.e" opinion in the other case. The.,eors'pa_f§.son depends on an analyses charaoterEs'i:ics in the admitted or proved wiétings the finding of the same in a large measure in the i ' In this way, the opinion of the eieponent whether expert or other is subjected to is ,n_'sc1"t'1tiny and although reievant to start with * becomes probative. Where an expert's opinion is given, the (301111; must see for itself and with the assistance of the expert come to its own I8 conciusion whether it can safely be held two writings are by the same person. 'i'h1'3._'is not" - to say that the Court must play the role» expert but to say that the 1na}*..v.étccept..tIxz1j it fact proved only when it has itseif on its "
own observation that it'iVj€:._Vsafe"to acceytfthe opinion, whether of the ex1iez:tiior_othe1-w_*im'ess;:f' However, uifimatciy, Ca{2h_..C'afi§~'_'}j1.';3{;5:3P}3r€CiafEd in the facts and ci1t:11mst_ancesA..o:7:.tifaat-.psrttcnIsii1,eéise depending upon the materini In this case, it is not just the of Ex.D-3 itself is denied plgzintifi" contends that even without the evidence, the material brougnt on piiove the contention of the plaintifl"
that genersijjovfier of attorney is a concocted and V i _2. o.""4'.8H;ARAé*HAN -vs. K. SUDHAKARAN (AIR 1996 so s.Iin'-AVti1is=:case also their Lordships with reference to election 'petition have at length discussed why the Court should not 19 take upon itself the role of a hand Writing connection they proceed to say as under:
" Wheze in a Election Ffifiiéififii Court on appreciation of-4__ora} i"e#.{i(ie11cee."t"o3:;.Ii§1:s that wimesses examined""ve«o?fi» the the election petitioner have either." th'at..they have voted two they:f_>I:iiist'~hietdeemed to have voted two i of signatures _t\v(g'A to be related hand proceeded to compare c;_£:si¢ sigfiégrafesi 'band in the coufiteifoiis outi._iiiiiehether both the signatures the same person, witheut' the or the evidence of p=e1fsons'° iconiiersaniti the disputed 'sighetiwges, it ti1e«.....appmach made by the High 'A ' 2 , riot in conformity with the spirit of S. Ezzidence Act.
.18}: On the peculiar facts of this case, the Ieailaied Judge erred in taking upon himself the is to comparing the (iisputed signatures on 'the coimterfoil without the aid of an expert or the evidence of persons conversant with the disputed signatuies. Therefore, the approach made by the learned Judge is not in conformity 20 with the spirit of Section 73 of the Evidence_}_YCt.--«'v:- _ Though the rulings of this Court in Ram. AIR 1979 so :4 and Fakhruddi vg s;at;¢ooos Madhya Pradesh, AIR 19577.._ so» .}§320._' bmaght to his I1GtiC<:,--' __fl:1e Adlsained 1 _ proceeded to compare d by himself and decided _ WhiIe-- doinfi so, the ieamed Judge'-obseerqeddh as'fo1im_,vs:
"So all these witdesses' habit of occasionally « Strangely enough of ..fhe either denied their or inability to idezififf. dfivehé in the case of some -We]1V¥ed'£1C:ated"eVgdersofis when counterfoils contoghmg were shown to them, they stated could not identify the , .s<ign>azturesV;' " =..E'J{CI'y. reasonabie prudent person, Vd'ivoti'fCl 'oe able to identify his signature V V Whe*nevei" signature is shown to him. It is these witaesses denied their '"sig13_atures or failed to identify the signature i' a definite purpose that atleast one vVd"Sig£1afilI'€ should not be taken as the admitted dd siwature so as to make a comparison with the denied signature, it is also yossible that the witnesses who had cast more than one vote pretended that they could not identify any of 21 the signatures to make believe that they had not cast more than one vote. The denia} of the it signatures and failure of these witnessee ider1'Lify their own signatures is to be in it the background of simiiarity oflthe found in the various eounterfoils." A. 3 Again the learned Judge as "It is true that 1zndVe__r_R:Sec'£:ion Evidence Act a s3.ignature«.Acould be compared only with' or signature proved totne ofittxe Court to have '_}i--ee11;eiir:1tten madevibijfiitfiat person. Reiiauceinz-as. ton' tile' "decision reported in State Ram, AIR 1979 so 14 and"conte._nde'd-- "it"is not advisable that a Judge eiaou1dVtake~._ufr'the task of comparing the 'éidrnitted naiidwgjtmg with the disputed one to 'wizether the two agree with each other érruitient course is to obtain the opinion W asfsistance of an expert. This opinion was by the Supreme Court in a cum' 1:)' al AA _ case While considering the question whether the in . _ iiéecused had committed. the offence of forgery and cheating, in Fakhxuddin v. State of Madhya Pradesh AIR 19637 SC 1326, the Supreme Court observed that comparison of the handwriting by 22 the Couit with the other documents not challenged as fabricated, upon its own initiative and Without the guidance of an exeert is hazardous and inconclusive. These. ed 2 ' observations were made in the facts __*and''' circumstances of such case. But, in the case, comparison of the sig3:1ati13:'edfca'u,nd in counterfoil are made to ascertain §{:_'Ahetheie-- _ "
signatures were put by the same hereon." A ' "In the instant caseg' witnesse's who are alleged - } their franchise more than olice' their names h.af;e"been it_1clt1d.ed Velectoral 1'03}. They Cast only one vote. In easesewhere "are entered more than once in, the '.eleeto'ra}. roll these witnesses , eidnlitted oniyeenhj-' and denied the other. The corresponding to the admitted entry V " V in roll must contain" the signature of Even though this signature has i"a}.so.ibe'ej:'i denied by the witness or rather failed j to..hei:'identified by the witness, it can safely be iiitaken as the admitted signature of the Witness. iiTAhat signature could be vexy well compared with the signature appearing in the disputed ee-zmterfoil."
23
"So the standard of strict proof insisted only in the election petition wherein: "ii election is sought to be set aSid€..O_l_'1 the of corrupt practice. In the _ _ only be said that standard of pfewf "shou1d:VhAei'of ' high nature, as an elech'on,::petition is not to he set aside on vague or ifiaceui:'ate.'ei:id:encef; and the Court must ._up1_iolc_¥ : an election when two difl'erent views iireiasoneihly.ipossfiale, from the evidence adducedi iitthe case.' ''As 'me the close simi1§11'it3rf": liihevsignsfere. counterfoils is 31:50 a Asti"on_g §raof~.._'to 'show that the entxy reléLt«ed.toit}1e'ssttnev.};ie1:son. It is also important to nofe__that iizostof witnesses denied their 4s:gn.ati1res'»on"hoth' the counterfoils. They could
-:._1iot,.A'-ei.dez1tiIf,r their" own signature and it is 22230 many of these witnesses changed '-i'..thei1~7é;ign;ittiies and put different signatures in '---..thev_v<ie;g)é3sitio11. In some cases the Witnesses were i. asked to give specimen signatures and ii specimen signatures were taken in open ii and they are marked as exhibits in the case. The specimen signatures in many cases do not tally with the signatures found in the counterfoi} of the voter, who admittedly cast his 24 vote as votes against a particular serial number. With this broad outline in the evidence propose to consider the evidence of each-.."'-- '' witness who allegedly east vote more '- once."
20. The learned Judge'JiAi1iiou:f vienv not right either in brushing aside "
laid down by this Cou:-t"i1§1 AIR. 1979 1.4, (supra) on the ground '£hat'ii'it.:_i>&'as nota case or taking upon of adjudieating tipciii. ithe'i--,i:ge.hui1ieI1ess and autb.ent:icity__of the_.sig.;1at11resp ifivquesfion even of and trained persou w'hosé,j'"{:oi11d have been easily availed_ of.' verdict of popular will this as much a"seric§us matter of glave concern to society 'e13;for<:emeni of laws pertaining to ~ i. Vc1imi:aa.1"oe¢nees, ifnot more. Though it is the ppr(;§}i;3:eeVi.iof"'the expert to act as Judge or jury after. scientific coraparison of the disputed sighanues with admitted signatures, the V " apcaution administered by this Court is to the it '-- Course to be adopted in such situations could not have been ignored unmindfui of the serious repercussions arising out of the decision to the ultimately tendered."
25
3. STATE 0;? UP. --vs~ SI-IANKER (AIR 1981 Se 8§}?')-- I In this case, their Loxdships were of the 0pi:%..i0t._'{_' the falsehood and 1iI'l1"£h were inezftzicetbigf Court should discard such evidence tho§i.gntfie ' Court could separate normal circumstances. VA V t V V __
4. RC. :0URUs§sI€.§fI'HAM;:'-IQs:§;}?E§R%5'M5L 1972 SC 608) The learned order to contend that once admitted the contents of that document' __a"1'e aiso in evidence though those contents may not be conelusive evidence. In the present . V. "case;-- =pI'aintifi' t not admitted the execution of the execution of the document is admitted, theintlze tion is diiferent. Therefore, the above case . "does notvepply to the facts of the present case. 'A "9£fiTATRAYA ----vs- RANGANATH (AIR 1971 so 2543) i in this case their Lordships held as under :
9;} 26 "Now coming to the question whether V the suit properfies fell to the sham of '_ first defendant or the second defenda1_1t,=.it' in was pleaded in the plaint t-h'at-the 5sec_ohdv i defendant had specifically document executed by.*hi_m on" i 1952 that the suit propeifies were of H i exclusive ownership of phisibmther and -t.hat.¢E he had no right otifthe'd__sa;ne." "I_1'1.V'l'.'l'iSn\)li*'I'.i1Zt€IZ1 statement, the seeotidfi had pleaded is a forge_ry tzotfeiceeuted it. The tI1a' .to'~':fhe"<:oz1e.§.usion that the "defied teas "e;¥:ecuted""by the second Vdefenda1it."§';?te 5,:¥sx\:app:e::ate Court aiso did not. accept. the oonitefintion of the second _ . _defehdaiit'that he not execute that deed.
" tthe otIri'er...§:q.sg;1d, the first appellate Court the same Was obtained in N o plea of V mistejpresentation was taken in the Written 2 ppsitatement. No issue as to whether the said deed was obtained by misxepresezltation Was raised. Therefore it was not open to the fxrst appellate Court to consider Whether the deed in quesfion was invalid on the ground that it was obtained by misrepresentation. 27 The only plea put forward by the second defendant was that the deed was a forgery. .V Both the trial Court as well as the '_ appellate Court have rejected that piea5_'M,y_ ' Sanghi, the learned Coj1I§'se*i.¢ for _.t1_1"e~ dd appellant contended that "When execution of a documentjs denied" the seeking to prove that d'ochment mnstt only prove that the a]1ege:d*--e'Xecutant'hasA..'§ signed that deed--,._z§5ut'd.he;Vj_ prove that the executant had.' '_ V flgame with the.-knowledge '§:g,a~' i:s'«..¢_m;;:ee:s. What facts andi: have to be estah]i_sheei_ the egxecufion of a the pleas put forward.
If'=the- oniy._n'Iea_ is that the executant hasnot "document and that the udoeumentajs am forgery, party seeking to the execution of a document need not 3 a. adduee..evidence to Show that the patty who A. document knew the contents of the. cidelzment Ordinarily no one is expected A :sign a document without knowing its V H contents but if it is pleaded that the party A who signed the document did not know the contents of the document then it may in certain circumstances be necessary for the 28 party seeking to prove the document to place zzzatefial before the Court to satisfy it V » that the party who signed the document had the knowiedge of its contents." » IIIIIIIIIIIIIIIIIIIIII!IIlllllIIIIIIIIIu'Illi''nl_§E> The learned counsel appearing the 3.reSpo1:.ider1t A' upon ihe following decisions' on diffeztnt of matter:
1. V.R. KAMATH -vs-- DI:v1s1o_N'A"LV' eoI§*1'R.oLLEié (HIJLR 1997 §<A12v.r;s55);;':;v".' L; 'V _
2. Juoiegae -vs-- JASWANT SINGH AND QTVHQRS 1 79;
o»oddR1t§omr:oN--VV:eAN;<, BANGALORE --vs~ LALITHAN H. 1A V;'HoLL§§~(Az:é"~--:994 KAR. 133);a1j.d
--vs-» NAWAB AFTAB ALI KHAN (AIR 1'"9"3o4 17) The' first case pertains to the procedure to be followed by d the Notaries and Oath Commissioners while administering " the oath. In detail his Lordship has discussed how the f 29 Notaries I or Gath Commissioners have to discharge duties while administering oaths including the of proper registers. The reievant under:
a9. Notaries and Gatti Coim1iissio12eii*.$:.¢: required to follow theifiifies administering oatlsi 'mg: act a should not be done in a _or{,'1nEo@piet¢ manner giving room for 'the'i"afidavit has been attested the.:absefice-- deponent or that on a day othe;f_Vthan::-tiiie_da;;ri_Vo;iA'it%nicii it iwas simed by the dezvoonent has not been ent"e_rfed:_iIi The possibility of a mix up "it; the person signing the aifidavits otjipossibility of an oath or afirniation administered to a wrong person, is a .matter:of"'grave concern. The Rules have been __1iifecise1y, to safeguard against such A ~--..4con_fisge'ncies and to ensure that such mistakes do occur. On account of the Rules not being " * e-folloived sincerely, such mistakes and mix~ups ' continue to occur."
"4.3. Thus, when as affidavit is tendered in Court, it is intended to be acted upon as / 31 things should not happen; these things cannot be permitted to happen; and that these H are required to be reminded tomtlle persoxisf. concerned, is an indication of the said; state_ of 4' --. affairs."
"6. Thus, when ' Notary} Commissioner administers he is mandatorily I'(i'I'f{'.-'.'llI77|'.'.(i",. _ name and particulars as the signature of depozlerit Such entries" to be seriatim by assigning aa for each ll. procedure for it clear that making of endoisemefits_ thelyafidavit and recording the ;peurticula1=sA' the signature in the I'-':,.:3i"6giétt}I',A. islllla;t1""'int€g1"a1 Part of the Act of " 'V 2 attestation or act or administefing It, therefore, follows that necessary endorsements in the atfidavit, the Attesting Oflicer will have to " I ameritioa the reference number of the transactizm V' v entered in the Register) in the endorsement made at the end of the afiidavit. It is also necessary that the Attesting Officer should mention his address to show the place where the 32 affidavit is attested. Judicial notice can be taken to the fact that only some of the Notaries'... and Oath Commissioners note the serial number.. l (reference number) of the attestation as entered"
in their Register in the efiideeit/eeee>umeeAtf 'end 7 state their address _wh11e=, endorsement. In most of'affidav'%.ts; it is that merely the official .._Vthe.lNota1yAVV:§is' atfixed and the end.otsen--ten:t affidavit is sworn to or solemnly in.~..his_'.:pre_sence" is made, giszing only :theV'datc.:o'f:éittestatton and the name of the number of the of attestation a(§.di*es,.g:is not;mentionedl."""Harri11g regard to the neq11irem.en1 Rules, this is insntfficient.'.._ Foratte_station or administration of oath be complete, necessary ~ "hair? be entered and signatures afilsed.' the Register and the endorsement affidavit should contain the serial of the transaction as entered in the Register and also contan2' the place of attestation (address of the Notary] Oath Commissioner). V. _ "Mentioning the serial number of the transaction (as entered in the Register) in the affidavit While making the endorsement of attestation is the only Way of ensuring that a record of attestation 33 is xnaintazn' ed by the Oath i Commissioner] Notary. This requirement jj ~?' evident; from a combined reading of ' provisions governing the matter.'-. «Unle_ss_Ai"Lhe transaction i33I't1'culars are signatures are afixed' ttievh as If/'(l?1.iIf2d, and the number of transaction in the Regis-tee.."L_anct-.cA_the "place./Eof attestation (addtessfi {_ in the endorsement madefV_the_V'actboif zidniifiistiation of oath] and it cannot that vcirenitnstances the afiidasit be a defective . "'f'7.b It isimentionied at the Bar that many tar places and it is dificult;
_;to' secuxetheii ptesence for attestation and in in V"0.f iiiii w1iI'gencY» some times the <VeAna,§mjs:r§ent regarding administration of ,e,'.e_oath}_as'u§'s"éson might be obtained in the absetxceh of parties and consequently the tfainsacfions may not be entered in the Register. it «.Uni"ort1mately, whenever exceptions are 'txequenfly made to the Ruie, by relaxing the appiication of the Rule, the exception tend to replace the Rule, apart from the fact that no i 34 such exception can be made. There is no point it in providing a Rule, if it is to be observed ~Q i"
breach and the breach. is to be i pleading practical difiicu1tie1smhandi_v Observance of any Rule involfres "
efibrtz. So long as the"iR'a1es transactions will have _ente1"edi' i in manner provided, *'th_ey Wilt be conxplied with." " " "
"8.;' 'itqfiias next there are several _ documents which case of some, ta hbeflnecessaly, while in thecase of not be necessary. It is stated' " document is a power of éiatiarnegi a V" Declaration, entering the ' V-iirifaattticulars iofimtransactions and obtaining of ~ in the Notarial Register may be "'i...__absoi1'uteifiif"iinecessary, having regard to the nature?! purpose and intent of the document; Zthat if on the other hand, the document is At 'T iaffidavit to be used in court proceedings or a it i ' 'fine copy of original document, which is attested as such, there is no need to maintain an elaborate record. It is contended that if a Chief Ministerial Officer or a Registrar of a Court 2 ré 3 it law.
35 administers oath/f afiirmation, he is not required to enter the particulars and obtain signatures a Register. It is pointed out that in neighbouring. States afiidavits to be used in j1:_1_¢fii'<':ia$f proceedings can be attested by in i Without the need for Registers-<a'nd-- .ent5jfies.u these are arguments in support atiemot to ' make out a case for abolisbingiior ' Rule and are not «for breach.
Rule."
The second case Vi1;-#it}1e..3.;e§§aztiicvv:to.VLregistration of a power of attonieyfiiand V' "F3:i'eir Lordships at para 7 .:1ave he}d'uas:'' ' A V VI': ii that presentation for ' -- .. xegistration either by the Principa} by at V"d1:1y--«'constituted attorney. It is V vpiain that a proper power of attorney 1 aiitiienticated as required by law had to be before power could be conferred on .. another either to execute the document or to Vvpresent it for registration. That indeed is the 37 "It is well settled that an instrumentilhe which creates a right or interest in the profits, benefits and income is immovable property, is a doeun1ent-- « compulsorily registrable [See _ A Privy Council in V, l Oflicial Assignee-reported iI}A'AlR. 230 amt Eastern Gangesc _IF'ixsl:1'er1;nan C;)~ operative Society Ltd"; "
reported in A1i%""1.97?_olsg: °2:][4S§;= _ Thus a ciocument creatiagan a debt will not Iegist1atiojn;l"bv11t.:a document .;egist1'ation. If _ .t1:Le_ pf Question is to be an _' equitable assignment 'of registration and if not 3 void anti unenforceable.
l 'V The Powef of Attorney in question as already ll ?l;eiii..(;i:>es aotcreate or recognise any right in "--.o_lrs to any immovable property or ll'V'be'11efi'tlllaIising therefrom in favour of the It merely authorises the Bank to act " the Company's Agent to perform the acts stated thezein. That is not an equitable assigmnent."
38
The last case is with reference to sections 32, 33, 34, &. 35 of the Registration Act of 1877. Their Loniships have said that in older to create impediment for perso:1"s_»to commit fzauds by means of registration of a provision under sections 32, 33, 34 «Sr. 35 of it framed.
13. On peruse} of tl1e.,__.enti«ne_v.'evidez;ce judgment of the trial Court, we sevené11'é:1p;i'i§ications came to be filed before "the matter went to the High Court on interloclitoijgr on two or three occasions and. "per 'the dixections of the High Court, the'-t4_m*atte'r. be disposed of Within the stiptiinteci. timef' ~ his not in dispute that P.W.1 @ Kailash , and m also the deceased Gulshan Kumar A of the deceased plaintiff --Kamala Rani K. Sodhi. Ttfhe defendant Snman Gulshan Kumar is the wife es Gulshsn Kumar Sodhi. As aheady stated above, 2nd sidefendant Gulshan Knmar Sodhi died during the pendency ii ofithe appeal and 31*' defendant Suman Guishan being the 01313' legal representative is already on recon}. So far as the 39 1*' respondent] piaintifl", her legal rep1Wesentat1'ar_es*V brought on record as per the direction of this V
14. The case of the appellant/Adefend'._s.Vzlt:s*;' u u trial Court was that by virtue of of attotfiagéf have been executed by the --~ Kéx;:saia_ favour * L' of her second son --« Gulshan W;i,f_eH at§Ex.D.3, they sold the property is'appella11t --~ Mr. Rajendran. V _ V
15. R3112, she is the absolute owlieeof _havi11g purchased the same from one and Mr. Muniyappa in the yea}: 19-S2 utidet diifezentzl sale deeds. She claims to be in . '''possessiEo:1 enjojftnent of the said property since the time ofllthel the khatha transferred to her name. In afiidavit filed before the trial Court in lieu 'of exaniinéation-i11--Chiet", she proceeds to say the proceedings to conversion of the land and appmaching the High Court qtzestionirzg the suo~moto proceedings inifiated u by the Divisional Commissioner. She also pleads the land 40 acquisition proceedings and filing an apphcafiéo enhancement of compensation on the file of . City Civil dudge Bangalore. She... .categoi4i.cally» if defendant No.2 and 3 having any riglJt,1'_Atita'e or also possession of any over A{ns'c.hedule properties. Therefore, according: with the 15' defendant general power of attorney as if she has 'of attorney in respect of 21 and 11 guntas in Sy.No. 30/21 a power of attorney to her file the suit once she learnt tlie illegal Nos. 1 to 3 in creating Power 'of_attoi'ney' aindfialsoi sale deed dated 2.6.2000. She it proceeds that 2114 defendant Gnlshan Kumar company and was addicted to bad habits of drugs, therefore, he was involved mannillegal activities including cxeating false document. of his bad habits, he left the family ddmg the lifetéiaae of her husoand and started living separately along with his wife at Bangalore. He visited the family at Bombay 41 at the time of death of his father and advantage of the documents kept in the H he took away of the ixnportant documents. her,_: "
she never visited Bangalore betWeeu:,A_1993s«aTnr}as .' came to Bangalore only in Vthek year' contends that under the has acquired any right, of the property as such. V Therefore"; with the suit scheduie property of neirher by herself nor through her. to her, she has executefi favour of the elder son ir,'o1.*s.e else. If)un'11g the cross- examiI_1ationL;"she a§i'gnrt.s» that she had given general power of ._vatto1fr§eyE__:to anot]aervv--.son Mr.Na1eI1dra Kumar Sodhi one of
---M/s. Sodhi and Company to act on her behaifl to her respondellt Nos. 2 and 3 are her son [and 4£iau'g;1ta~--iu-law. She further contends that the 2nd Gulshan Kumar was also a partner in M] s. Sodhi
-- Company and his marriage was performed 15 years iéfior to her evidence in the year 2004. She categorically 42 denies purchasing the property at Bangalore out of income from M] s. Sodhi and Comgany. She claims to be an inéome tax assessee in her individual capacity. She V. locker in the name of her husband at Madivala Branch and according to 1:;ei4;' after 'the.; husband, she went along with 8061131 to open the said loekef. denies at 'V Ex.IZ).-4 said to be an bdefoxe. the Small Causes Court. She on the postal acknowledgemevnti' to her, her husband at Agmhara but she does name they are purchased. She again satrdsa. the V purchased in the name of defendant Nos. Sand the other two were purchased in and Manju Sodhi. She also I of the said two sites belonging to de3fAen__c¥ant'l'i,o~sA.d 2 and 3 being in possession of M] s. Sodhi She admits her initials as Ex.D.2 as her S a:.d'sign.a'tEures. She admits her signature at Ex.P.2. She also .; _,f<"¥d:1I1its her initials at Ex.D.2 and Ex.D.2(fl and Ex.P.2. She 43 was confronted with Ex.D.3 the disputed power of attorney. She categorically denies all the signatures at H as Ex.D.3(a3, (b}, (c), (d) and (d). She f:1i*the1'jV'evdeiiiiesk appearing before the Notary Publicibjfi executing power of attorney in favour iideferidant and 3. She also denies three tifitiiesses in it her presence before the, said '-She alsotieiiies the signature of an Advocate 'attorney by name Mr.B.Gangappa inher presence. to her, she never executed faztour ..zof--.."defendarit Nos. 2 and 3 authorising _to3'.sel1.V:VithVe suit schedule properties and utilise 'sale "their family necessities. She further givcsu dgtajis gr lodging a complaint before the i ii andiiaiccording to her, she received notice C§i_u:('t in Bangaiore. When a suggestion was put her did not execute any power of attorney in iii'-«.._,_i'Vfavour :O§{r:i'lEI' son Mr.Kai1ash Chandra to file a suit, she the said suggestion and admits executing a power of attorney in favour of P.W.1 authorising him not only to file a ii suit but also to look after the properties at Bangalore. 44 Several questions Were suggested to her that 23*' defexfdaixts was a black sheep in the family and it was her . brought the deceased Gulshan Kufnar fl '= Bangalore to look after the btlteetll Aslliglgeslsitionee of were denied. She further denies-the si1.gglestior:»t21;atV'she was _ V' ; giving evidence at the instance Sodhi ... P.W.1. She further Alaffomey in favour of P.W.1 addiflofll attorney in favour of ~» ehe year 1977.
Acconding given in favour of Nazendrffil foiee and it is he who was looking M/s Sodhi and Company.
According 'to-. heI,_ eaecefled the previous power of ._vatto1f;jleyE_§lAg:ive;1 ion lfavoz-A1' of P.W.1 in 1972 when FEW. 3. went year 196'? or so. She denies all the to the power of attorney Ex.D.3 in ffavoulr of 'cilefelndant Nos. 2 and 3 to develop the suit schedule V' l..:f"p1;oj;)er&ties, etc. According to her neither herself not other members had given the consent to sell the suit 45 schedule properties. She denies the property Bangalore belonging to M] s. Sodhi and Company; ' " 2-
15. The material fiom irhjfiu" .¢vide:i¢¢'p' V' smt.2<ama1a Rani indicates that this-.deeeaseetesonjlefihéls. name Gulshan Kama}: Sodhi his~ t2vife_ at = l' Bangalore and they were not to. on behalf of her or the the family did not have good Iel;1tioItA.VV--w.;.t};. N0. 2 or defendant No', lie': had fallen to bad habits. pihotlij. eh.tr11sti11g him to do '"!'._tremendous efforts to bring on record this the properties purchased in her V. at V"Bfed1hgalore, especially the suit schedule properties purchased by her them the .\ , Sodhi and Company at Bombay, if the d _ properties to either the Company or the joint other members of the family or the Directors of téempany would have made a claim over these ed .preperties, but the defendants were not able to establish the fact that these properties were purchased from the income of ' .1 46 the Company. Except bare suggestions, nothing e1seVi_iesise on record. Therefore, from the evidence of this _ was examined as P.W.2, she cozisistently 233:? = it " is stated that she has never executed 3.-3powjer_o'f ei¥f:(:)£T}1€fsf it in favour of defendant Nos. 2 am; 3 aueieesineg tojgseli c, any portion of the aiienated vvtlze suit schedule property si;¥:iiated--'_VA ~ at Bangalore .
1'7'. The _orW1ess is on the same iines as._.thai"'QVf A" the existence of pmperty at the absolute property of his mother sfin,_ sodm. According to him, the _ siguattirees at isithat of his mother. He also admits Ex.P.1, the power of attorney executed by §;§ris"'favour. Several questions were put to this Witziess toisuggest that he no authorisation was given to him deal Witii the suit schedule property and also to file suit,
-they were all denied. 011 the other hand, the evidence of h confirms the fact that she had executed the power of V attorney in favour of P.W. 1 and P.W.1 was also authorised to 48 occasions, his another younger brother Nate-ndra iéinnar Sodhi was looking after them. Severa} qaesfions..§é§eVte*iie:'pi1t« V. Iegardiag M] s. Sodhi and Company suggestitlé it properties at Bangalore were §:1}i"ci1ased,& :iit;'riei:
Company in the name of the .7 _ they are all denied.
18. According to" this iiisiiit"'sc}:1e(i111e properties were purchased they are the absoiute pmpeiftiies -of Rani. Certain portionsv 3'€},'w1v 30/ 2 were acquired and heiivlias of his mother in the land acqziisitioai' virtue of a special power of _ attoiraey. He has «even. received compensation amount on When a question was put to him that "§f.;V_t3}'.%lii"\7EiI1.;atjiCI1S with regard to signature of his V _ motiier d:1.ie* age, he pleads ignorance. Regarding the it .e,a{Id;ic'tio1i:i" er drags and bad habits of the 2nd defendant, he 'substantiates and corrdboxates the evidence of his
-mother P.W.2. From the evidence of this Witness as well, the " V defendants were not able to prove that the properties in 49 question were the property of the family business (Company) and therefore, the 2nd defendant aiso had a shape in property being the Dizector of the said such claim made by the 2nd defendant, no':ottie;:A_f.:'f2ii1ijiy*sf members or partner of the firm have approached this Court, _So iszffas question, it being the pro§.:erty"'deceased_i_ is estabiished by the plain'tifi_'s were not able to establish that the said prorxertgfbeiongsv'--to:either joint family or family Theiii"'c*o:1;fiag"t0:"ihe'execution of Ex.D.3 in favour of defendant the evidence of defendants With4j1e'fe;F.ence"'to_itI1is fiiocunlent, we have to analyse the record. According to defendant No.1 ~ KM.
Ad'RajendraiIi;< is the purchaser of the suit schedule propertyg ' to him, plaintiff executed Ex.D.3 at "B;3nga1or.e:on 9.2.2000 before the Notary by name Mr. Arun certified by an advocate Mr. B. Gangappa in nfisence of three witnesses authorising the power of attorney to seli the properties on her behalf. He further 5} he knows the boundaries of the land purchased by did not get the suit properties surveyed _ department though he was aware of existen_c*e*'o.t':
as road A for " V the last 60 years in the said land, etc. he at pleads his ignorance aboutfth__e acxgnisifionet},-fr BWSSB and existence of a shed fie 1i:ileads'iigno;rance of existence of 16 houses 50/ 1 and 30/2 and aiso V expre_sse'sA.__ payment of compensation in the lands.
According V. at the time of execution not know who brought the steamy and: scribe of E:-t.D.3 power of attorney. tiefendahts 3 gave him Ex.I}.3 on 2.6.2000 deed as per Ex.P.17 and at that fitne"; was not registered. He received Ex.D.3 at the sale deed Iegistexed in the afternoon [on He again says R.T.{3. extracts and other Udoeiznients were given to him to be produced before the Sub He pleads ignorance regarding partition of the " siiit schedule land or the properties of the fainiiy between 52 the plamefi and her famiiy members. He did defendant No.2 to give any document indicatingdl V' in the propelty of him. §-Ie further admits of' it it Ex.D.3, plaintifi was not known Swamy and Venkates3'1waral1'jii,'_'wzho are: the T' to = L' Ex.D.3. He was also una3siaie__ the" « T. who administered the oath 'a.1'Ex.D.3. He did not notify his intenfion land in any newspaper it in question.
Similarly, 11.} to the plaintjfi after receiving: did not make any correspondzence or with the revenue officials.' x fie ignorance of executing a power of i V. °atto"Iney3.in. favour 1 on 35.11.1997 and again another Ex.D.2 on 13.12.2000. Be .3130 expresses 'jlreceiving any notice dated 12.11.2000 ii"=-v._ii'add1'essed?by the plaintifi'. Though he admits address as at Ex.P.13 and 17 but denies receiving any notice. According to him, only after receiving the suxnmons, he learnt about the issuance of legal notice and he did not take 53 any action against defendant Nos. 2 and 3. Thisfi further admits being a member of the . Committee in Bangalore for the yea; 'also " ll admits his telephone No. 22937212 address as C.K.C11a1:mappa Games, to ; him, he is running a l_lll1;zsvi§;:1ess at Gandhinagar and is alseA.}_d:ow:--a _i'Raj_e11dran and KM. Rajendra.
20, o.wj2 li}_;»t'¢VneV"ti;.\j*c;:i;<a§~;se;=1:; l lheeording to him, he came to knox1{VI}ll'l$.{. 1 'i;%aj4:é£:§i.:-;§:::"§n month of April 2000 as an dealer.-.. the deceased defendant Gulshan estate dealer and his Wife.
Aceordifig. to :9.2.2000, the plaintiff, mother of
-- defendant No.2 executed a general power A £:j;vo'ur of her son Galshan Kumar and his wife _ authofisigig tticim to adminristxate and sell about 32 guntas of :fiii}mp(iI"{;.',7V'Sl1I11EltCd at Kodichikkanahalli. He attested the said _ l'p.owe1::'of attorney as Witness along with one V.P. Swamy and VA one Venkateshwaxalu.
'¥'he document was notarised by Notaxy M Mr. Amn R. Naik who used to he in front of the 54 Advocates Association in the Court premises during the working hours. One late Gangappa, Advocate identifieziilie paxties. According to him, he identified the ~ V. Kamala Rani. Eating the cross-examination, ' signatures at Ex.I).3 (a), (b), (c), ffd)"
Kamala Rani and his signatnre defendant No.2 Guishan Kuniarjsinee .4 .yea:;fs 'V evidence in the year 20.04. ata Hongasandra. Then he learnt about ' _No.3 as well.
Defendant Nos. Coiony in Hongasfstndfaesldiit didindgiit actuai address. One year prior to.9.V2..fi0i5Q'.,V_he.V_:i;seiV.--defendant No.2. On 5111 or 6*' of Febniaxyi 21300, him to come near the Taiuka ..vOfii=je"'i.to ._act,_as aiiwitness. He does not know who secured pirjesencew Periya Swamy and Venkateshwaraiu on admits the deceased Gulashan Kumar ffwas not to Venkateshwaralu and Periya Swamy. He "..falso"d.._0 not know who typed Ex.D.3. He did not know the who were present at the tzime of typing of Ex.D.3. _ _ Defendant No.2 asked him to attest his signature. 55 Venkateshwaialn and Periya Swamy first signed the tioweiof attorney. He learnt that the Notary Public Mr. _ no more. He did not sign the register "
Notary Public and he does not know the register maintained by seen the land earlier to Iegistiation of deed and execution of Ex.{).3 admits knowing Rajendran since5yea1s. it it it i 2:. we" the c£§:iiie'i}-'ecc------{;f n.w.3~Mr. vs. Swamy to him, he was an employee at of Mysore and he was snmmo1ied..Lhy< iiajendran as his witness. In the ej§cainination:i_n?ehie.f by way of affidavit, he says he is iivawafe execiited on 9.2.2(}()(}'by Seat. Kamala Rani of his son Gulshan Kumar and his wife Suinau Another person accompanied Kasiala Rani "at thatztinie to assist her. More or less his afiidavit is similar i T:.i'to"thar': of D.W.2 Venkatesh. In the cross examination, he it identifies the signature of the plaint'.ifi'«--Kama1a Rani at Ex.D.3 - power of attorney and he admits his signature as 56 }E3x.9.3(g). He knew defendant No.1 Ra§endra11 since half years am?! he knew [).W. 2 Venkatesh since . 4 Venkateshwaralu is known to him sipce the _As: it " = on 9.2.2000, he was in me Head Oifijce,-ané;i £1:
duty on that day. He has notiiseen sctied:-glvie:
or any documents pertaining to piinperties except the general He sot aware of the details likeowho 931351" for the GPA and oxi " papers were purchased. the instructions for typing 11.15 a.m., he came to the Citfil' his signature. He had not asked eitliet to oome near the City Civil "v{',.o1ii?t{'Cioxn1:3le;: D.W.4 asked him to come to saying defendant No.2 was his friend and.__Kama}a was his mother. He do not know the name ifiof the" jierson who was assisting the Kamala Rani on '*1ii9..2.§Q0o. According to him, Kamala Rani signed the documezit first and then D.W.2 had also put his signature it before he put his signature to Ex.D.3. 57
22. D.W.4 Venkateshwarala also flied aflidavit of his examinati<)n~in--chief and more or iess conteii'ts«i _ afiidavit is similar to that of afidavits of D.W_.. 1,» i' the cross examixiation, he identifiesthisi.sig11atu.re'f to the power of attorney. Acs;ordii'i1"g_vito defendant No.2 since two years to eijiiiciienee but he did not know his wife detendaiit canriotiisay who wrote the detaiis of iitaow Where the plaintiff Kamala He knew defendaxit i;)Iior to that day. He did not Veaicatesh was residing but D.W.3 in Bailgalore. He aiso knexvé 'defendaat iIé'.a_«jeI1dIan since two years. He had Noéiiati-Hongasaada in Bangalore. He had .sigI1atures of Kamala Rani in any other doe13,tI1et_1.t Ex.D.3. At the request of defendant No.2, eazzievwto attest Ex.D.3. An advocate had akeady signed eariier to his signature. So also Notary Public had signed Ex.[).3 when he put his signature. Other Witnesses not signed Ex.D.3. He fmther admits in the cross L' 758 examination that about 2 years ago, defendant g.N_o.1 Rajendran came in Search of him and requested his signature. Therefore, he affixed his signatiiie V if also requested him to give evidenee""s--ayi11g started against him. Earlier to had eizeii defendant No. 1.
23. D.W.5 is the and laiso"a Notary Public. According to him,t_1e Power of Attorney Ex.D.3 it exeoutedthy Kamala Rani in favour ofdefetitlaiitiifi-Nos';Q"-and' 'According to him, in his presence-,_go'ne identified the parties and parties put' at City Civil Court, Bangalore.
.--=__§~Ie the""sigft1atures of Kamala Rani at Ex.D.3 on his signature is at Ex.D.3(i). According to "Witxies--s5--: 3 attesting witnesses signed Ex.D.3 in his he saw them only on that day. He further if to say that the details of the 3 witnesses, who
--l Ex.D.3 were not entered in the register maintained i him as a Notary Public. Except his signature at Ex.D.3, if gt: do not have any other document to show that Ex.D.3 was 59 notarised by him on 92.2000. Gaogappa, advocate who identified the parties is also no more as he died in the.1;io;ith of June 2000. Neither the signature of the _ witnesses were taken to this document but wer'e»t2{ke1i'~to«.theVL it register maintained by him as Notary 9.1%, °.I;:'e. verify any other document to ascertaiziA.v;fiiethes1"i§%1+3V persori; who signed Ex.[}.3 was Kamala not,'-.
24. D.W.6 is one He files an affidavit in of according to him, Ex.D.3. 'was izisirsaotiier in favour of him and his;wife;. stiVifixgo_ioiace.si,""she. has put her signatures; three of the fi2itoesses._ document i.e., Mr. E. Venkatesh, Pf and Mr. Venkateshwaraiti; one .iiv'!r.V' advocste identified his mother; Mr. Arun R. __g»Ia:~fak' the said document as Notary; he was authorised the scheduled properties and he contacted 2""".__ii"R§ljCIl(i§'aii, who ofiered to purchase 32 guntas of the ["'e'§;,ch¢{i;11ed land for a value of Rs.3,80,()0O/--. Therefore, he i eiiecuted a registered sale deed on 2.6.2000 by receiving the sale consideration. He further proceeds to say that P.W.1 61 he was addicted to drugs. He was inpatient for 15 days in the said hospital. in the year 1989, his mother Rs.70()/ -- to open a shop at Bombay. He ~ 1990. Ti}! his marriage, he was doing husitiess »Eiombaj.;=_V K"
and his brothers were married mush ea1:'}i.er. him, in the year 1991, he wasii_t'm:§ug1it' father and was first residing later shifted to Hongasandraiaadii about one year.
He shifted to the.Vhouse:,.of His father ""'i;hose houses were demolisfhed Wasmaequired for B.W.S.S.B.
Accordiiig so purchased the Easds in I3a_Ilg€,il91'e it hfi: not know other details like ' zetei 'H'e"Was aware of the acquisition notices According to him, the B.D.A. had He further says he has a document to ie._.shovei that«;_ti1ese {ands belonged to NUS. Sodhi and Company A .,:i_i~{;ti'however, the said document is not produced by him. Aeeoiding to him Kaiiash Chandra Sodhi and Susheel i . A» "/"/iargught some papers for Ex. £13 and at that time, P.W.2 was 62 residing at Bangalore along with RW. 1. However, he did not know the residential address of P.W.1 as on that (lay. Whenever, Karnala Rani came to Bangalore, she was resieiing either with P.W.1 or with Sushil. The address Bangalore is not shown at E}x.9.3, but he it l was not shown. As on divider} between the brothers laclinlitsh not having any document executed. by /83* share in the lands to t Th_el'entife to aniefiétent of 6 acres 19 guntas was available. that in the year l I land in the said survey numberlin However, he is not able to give said land. According to him, " excerni: e§;:écu--~.--:--:---,--a' by his mother, he do not have any _other* to Show that he was given 32 guntas of land him, P.W'.2 got the document Ex.{).3 ijievdoes not know who gave the instructions to draft it He does not know the extent of kharab lands in ' hothlthe lands. He does not know the exact situation of the ' -- A " lands.
63
25. So far as ciefendant No.1, he is known to "for the last 12 years prior to his evidence. He was "
meal estate business and defendant No. 1 was estate business azid therefore, Venkatesh is an electrician by p:ofessioi1'--and hef';k§1owsn ii for the last 12 years. D.W.3 P. 'notifo and so also his avoeat:ioi1.~.__ also a real estate agent and theieforieii for the last 9 years but he knew neither Gangappa, to the execution of Ex.D.{§,{~' 2.6.2000 his mother "goilczhay and he had not sought for compefis-aiio.flxhei'o:e" Land Acquisition Authomty. He V. «_ adiitifis I?.2(}Ha'*11otiee. got issued by him to the p1aiI1tifi'z-md others his advocate Mr. Nambiar. When several s'a1ggestioi1uS*L--We;fei put to this witness that there was no power
--V of aaom eizecutcd by P.W.2 on 9.2.2000, he denies aii the Q' xsugggestion.
64
26. This is the evidence brought on record before the trial Court. The above evidence would go to Ex.D.3 was received by defendant No. 1 only till Ex.D.3 came to be marked in the. I_nont_nof"' was in the custody of the appel1ai'it/defendant'~._/N6.;_1 Rajendran. At Exhibit P-1'7':d'ated 2;-edzoooii'ii:ei._'ad.c1ress doe' defendant No.1 was shown Yellanahalli village, Beguru Hob1i.vThouglJp iifi'the--.Vtel:ephone directory his telephone number along with the'xaddr_es"sfwas very much in existence this address was intentio_nal1y_V~ sale deed. Similarly, his business is also not shown in the sale present suit is filed by Smt. her power of attorney Mr. Kailash .A who is examined as P.W.1 and he is none of Karnala Rani. As already stated above, as'.4"'per----V:Ath'e; evidence of P.W.1 and 2, the suit schedule V 'pzoperty was part of the absolute property of the plaintiff she purchased under three different sale deeds in the T 'far 1982. This is not seriously disputed by the defendants 65 before the trial Court. Though an attempt was made b.j;--___tbe defendants to Show that these properties actually .< to the family business i.e., M/s. Sodhi and 1 "
material is placed before the 'fie.-a;teiie_1A,is'..V placed before the trial Court indica"€jn§§;.A_Af3;)3tii~_31?1.:uje entire property was put in of "No.2.
Therefore, defendant No.2 was :notA'able--._Vto the property belonged to faxnily and he has given' away 4}:;ia_.s11a:e' other hand, the materia}_ ge-.e's ltlgat Rani was the absolute the said fact is not disputed' by V }?};c.P..f1"'F' .i$_____the sale deed executed in favour of dete:1dant'.Noe1v defendant Nos. 2 and 3 by virtue of a said to have been executed by the piaintifl"
--V as goes Both P.Ws. 1 and 2 and the defendants K x V' tiie execution of Ex.D.3 at any point of time in favour .' of defendant Nos. 2 and 3. On the other hand the evidence T "of P.Ws.1 and 2 would indicate that defendant No.2 was 66 addicted to drugs and he even was admitted to hospital for anti addiction treatment. So far as recitals at Ex.P.1?__, it would indicate that defendant No.2 being the A attorney of the plaintiff Kamala Rani was ~ handle 1/sth share of the land in boeisy,'N¢;s.*--i13o)'1 lands-_ "
38/2 out of total extent of 6 acres :39 come iflto existence according 'to_'the detendantsiV_foui~«--;aVottthS --. h' prior to Ex.P.17. As per__ this after the death of husband of V No.2 was allowed to haxidiesl /8thvs'}1aie:'Voi'--the ;"'o.oth the survey numbers} fh'as~ 'categorically stated that she attorney only in favour of P.W.1 and another son Mr. Narendra to the progerties at Bangalore and " the company. She categorically denies executing' jgiower of attorney either in favour of defendant No o;"V"l):is.'ii7ife -~ Suman at any goizit of time. Apparetitly, if V' .,t3{1ef1'ez was no partition of the properties and except the ~ coiiteiits of documents EX.D.3 and 17, there is nothing on if Record to Show that defendaht No.2 was autbozized under 67 law to deal with the said property as his share. The defendant no.1 relies upon the evidence of D.W.2..Vto:"show that Ex.D.3 was executed by P.W.2 Kamala to them, P.W.2 signed this document in their .. thereafter they attested the examination of D.W.2 to 4.'the solcailed v.7i'tnVesses igotthe", document Ex.D.3 indicates were knowing P.W.2 Kamala Rani' the c_1at'e--«._vofA'executionA of Ex.D.3. D.W.2 says, he knew botI1.v.w:e1fe'--V*'doing real estate business. Therefore. he cfiaine into"c'on.t.act with DW. 1. es. evii-.i_enc--e'.'of:VD.V»I.4Hon 4.6.2004 indicates that 2 years7--ag'o,' Rajendran came in search of him and requested a signature. This two years ago. "take us'---»bVa'c__1;«.to 2002 but Ex.D.3 according to the » come into existence on 9.2.2000. Similarly H that he came to give evidence at the request D.W.1 Rajendran. As per the evidence of " defendant No.1, he did not know any of the witnesses and he not present on 9.2.2000. If defendant No.1 did not "know any of these witnesses, then the evidence of D.W. 4 68 that he knows defendant No.1 and at his request, he not only put the signature to the document in the year.20(§2._but also gave evidence would only indicate that _ Rajendran is not speaking the truthmloefore
29. From the lower Couit :'1--<ecords';.,p'it~.vis defendant No.1 filed Xerox of the power"v_of"~--atto1'ney on' ' 19.4.2001 before the Court. only 'the signature of two witnesses -- one another Mr. V.P. Swamy. This page 373 to 377 in the 3. list' Vofuclocuments is filed on behalf 4 documents, viz.:
Z of the General Power of . A plggylwntation extract;
Four R.T.Cs..
.. Tax Paid Receipts.
Frompage Nos. 373 to 377 we find xerox copy of the power '.ofj'attorney. It is referred to as document No.1. We also find document No.2 - Mutation Register. Documents 3 and 4 ~-- 69 R.'I'.C. and Tax paid receipts. These are between page Nos. 380-381 along with written statement filed on 19.4.2001 by defendant No.1. Defendant Nos. 2 and 3 havevgcornegg on record by filing impleading application as dated 12.6.2001. Therefore, as on 19.4...2.0,0':1.,defendant Nos. 2 and 3 were not even parties topthe. defendant No.1 was the party_.
No.1 filed Written statement an1d.:defendarr~t iikand 3 filed their written statemefit.'/on1j.ffonA 'Therefore. the documents as per the Court records dated 19.4.2001;jg..i.s Rajendran. The xerox: cop}; _attorney contains attestation of two vvitne'sses and another V.P. Swarny. Though thuereviiswhtyped «serial numbers 3 and 4, nothing is irn'entiEo31'1ed...g Therfemis another xerox copy of the power of °a:£¢r:§éy¢f.a£f'pa:ge No. 389 to 313. Nothing indicates on what datesgtdocument came to be filed before the Court. So A far asthe original power of attorney, it was produced before Court at a later stage containing three signatures. 3' ___5Therefore, adding the signature of D.W.4 Verakateshwaralu 70 seems to be at a later date subsequent to 19.4.2001. If the signature of Mr. Venkateshwaraiu was not foundli~-irii..the xerox copy of the document produced on 19.4.2Q:0'1<,..' _ be presumed that on 9.2.2000" signatu1*e4.:'::0f Venkateshwaralu who was one of the attesting' witnessies wa.s absent. This would only further strengthens»'th:e .largulinerit.s of the learned Counsel for that a friend of D.W.1, therefore he him twolvvyears back and got his signature_to:'_Ex.l§;d:5 the power of attorney 'suspicious circumstance is establisi1edi§. V .
E3»0;'examination of D.W. 1 Mr. Rajendrargl it on record that after receiving su;i~nmo'ns in he became aware of the legal notice at come on record that defendant No.1 did not '- against defendant Nos. 2 and 3 inspite of the that the plaintiff has denied the execution of " power". of attorney even after an alleged complaint in PCR lib/2002 before the Magistrate Bangalore by the plaintiff. 71
31. Then coming to the evidence of D.Ws. 2. 3 and 4, according to D.W. 2, D.W.3 and D.W.4 signed the power of attorney before D.W.2 Venkatesh attesting his signature.
But according to D.W.3 Sami, D.W.2 had signature earlier to him on Ex.D.3.
D.Ws. 2 and 3 signed before he couldisign the according to him, even the:Notar3r" had alrea-£13,}:Vsign'é;:d"'the=op document. Therefore, the ev1'de,nce of the.seV'witnflesses would only indicate they were_'hroufght_ gbieforethe Courtuonly for the purpose of assisting is yet another deficit so far_"as":;iT§.'W.Ii3., he asked D.Ws. 2 and to the Ciril Court Complex and D.W.4 requested" hin1.oV_.to.?f"<there as D.W.6 was his friend. Accordingatc._i).W.;4, hehtad not seen Smt Kamala Rani prior " '~ ., A t($..'9a.2.,'2000&. nooiso' says, he had not seen defendant Nos. 2 wonder 9.2.2000. This would go to show that the I§.W.3 cannot be believed. According to D.W.2, the "d,e__ceased Gulshan Kumar was taking him often to his and therefore. he knows him. According to him, at the request of defendant No.2, he went near the Taluk Office 72 for putting the signature to GPA Ex.D.3 and after 9.2.2000, he did not meet defendant No.2. He did not knowgvvhere defendant No.2 was residing as on seen the document pertaining to the suit sc1iedii1e'{iroperty.«.. This would only go to show that even Court to give evidence at ._the 0V'reo1u.est Rajendran. Though D.W.6 'says P.W.2"
Kamala Rani was residing P.W.1 in Bangalore, but he 'resiidenfia1 address of P.W.1' as on thai}dategwheri':t1iis:iis:.'the__evidence of defendant No.6, Karnaia Rani was not point of time. In the knowing the address of P.W.1 Kailash Chandra .Sod'hi0as on 9.2.2000, who brought Karnala ' Sodhig to thevlffaluka Office or the Notary Public, is not he says he was not knowing Mr. advocate, who identified the parties as well as Naik, Notary. It only goes to show that he is not the who got this document prepared on 9.2.2000. Defendant No.1 Rajendran has deposed in his evidence that 73 as on the date of Ex.P.17 sale deed, the names of neither defendant No.2 nor defendant No.3 were entered in the RTC. Defendant No.2 had introduced plaintiff Kamala D.W.No.2. D.W.2 E. Venkatesh further adm:ts1.--.£it¢'nai;ag Court at the time of examinationuhof P.W';2"' before the Court. Therefore, it was :1no.t' witness attending the Court~'to*-give e'vidence1h'ut:
interested in the case from the:"be_ginn1ng' friend of Mr. Rajendran. He further..§ays,'A._hei_seen all the documents pertaining to the lands ttollxat «- EX.D.3. The evidence of ""LC_.V:"Vénltateshmon'"comparison with the evidence oflADlviW._6:v'2Gulsha_n Kuxnar would indicate that both of thern were 'not"'the truth before the Court. On careful Lanai}/s:is'of"the evidence of all the witnesses, it would ' V' gnlya g5o*to' show th'at'VD.Ws. 2, 3 and 4 were obliging either :lf§_.\lV;'}.: jfcxrpdet" _ V from the evidence of these witnesses, we have"to__A'ana1yse the evidence of D.W.5 the Notary Public, who ~nQ£arized the so~called power of attorney at Ex.D.3. As per V' éihe evidence of this witness, he has not made entries of any 74 of the witnesses or executants of Ex.D.3 or the persons in whose favour the document came to be executed register maintained by him. The Notary Public Notary ought to have followed the procedure is expected to do when the docuirient .i.nfo1'rnirigl/~aut1'torizing power of attorney to sell the' immovable properties'cai;neitofl be notarized by him.
33. Among the tt'ial.'Co1ir{tV::recordshand several orders of the trial ceutet, erdgefe'[ee;t.A.e;y»--1,A.8,~§=end 10, 21 and 35 are relevant. 0 0 A
34. by defendants under Section 75(e} read' 9 and 10 CPC seeking an appcintmentiof' hand Writing expert as Court Commissioner 'far the 'p.urp0'se"""of examination of the alleged forged "the plaintiff -- Kamala Rani on the general p..oyverV.of:at'torney dated 9.2.2000. This application came to be disposed of by the learned trial Judge on 12.6.2003. The e.Sub--Inspector of Madivala Police Station had filed an application on 3.9.2002 and again on 30.5.2005 seeking 75 custody of the general power of attorney for the purpose of submitting the same for forensic experts examin..at~io'n__ as Crime NO. 878/2002 was registered for_ punishable under Section 420 IPC againstthie:~<:1Vefe:ndants;«..
The trial Judge by the above=__ OI':(l'EV:'1A":. application of the said inspector the * ~' same day I.A.8 filed by Mr. wife to implead them as additional Further it was held at that 2 and 3 were yet to make §§.;:§rd, it was too early to consider! it is for the parties to the suit at any time and dismissed" 'stage to send the document for eXa:.mi.nation had notyedtddarisen. On the other hand, he held ' the Madivaladdljfodlice are entitled for the custody of the attorney for the purpose of investigation so far as is as they came on record when the plaintiff A had no objection for impleading them as defendants . l.As. 9 10 came to be filed by the defendants seeking appointment of a Private handwriting expert for the purpose 76 of examining the power of attorney dated 9.2.2000 after securing the power of attorney from the Madivala Poli::Te';.g The learned Judge having regard to the directionsj Court to decide the suit on priority basis," lthlep 2' Madivala Police to produce the of"._at:torr1ey:V.vfor"
purpose of trial Court and rejected appiieationlv defendants for sending the dlovcgiljinent fcr_lscientific'VVanalysis'V by a handwriting exp.ei1~t/Agreserifingljpliherty to t'he"defendants or any other party to examined at appropriate the defendants to summon the pc§i{:g{1jr_11ng to LAC 181/2001 but the holding, if the specimen signature required, it could be done by surnnioning the plaintififvto the witness box. I.A.35 came to 2 fiileda under Crd'erv26 Rule 10(A) by the plaintiff herself Vseeking.._app*o_in.t1nent of Court Commissioner for scientific ir1y_estiga,ti"on2Vof Ex.D.3 dated 9.2.2000. The defendants filed their vvolinjecfions. The said application also came to be 'disrnissed on the ground that the matter was posted for } __5argurnents after several dates of adjournment for examining ;
77 the witnesses. He also referred to the directions of the High Court to the parties concerned to assist the trial .CouLrt_V_for disposal of the suit as early as possible _ stipulated date. Therefore, holdingflgthat a.pplic:ation: for .. appointment of commissioner carne to-Abfeifiuledf of the proceedings, rejected i:l'1e.___saIne.._'°
35. From the above app'iicatio12s, iseeeni that it is not a case where thellfplahintiff or reluctant to send EX.D.3 attorney in favour of by the scientific expelft: defendants were held as toolearly disposed of those applications with a udirection_fito_ " at appropriate time. The did..V:n_otggbother to file any application at the » of time though they took their own sweet time if 'almost six witnesses on their behalf. It was the who tried to get the document examined by an V " hainidwriting expert and the same was rejected as it was filed ' belated stage. It is the defendgnts case that the said "power of attorney was executed by the plaintiffs and 78 defendant Nos. 2 and 3 were authorised under the said power of attorney to sell the schedule property in.fav.our of defendant No.1. Therefore the burden _ defendants to establish the due eirecutionbf.:the"p:ower_:of». attorney and the genuineness thelA.fsdL,¢.al1e'ddlposverivdof attorney Ex.D.3. The trial Judge referer1c'e'_to<_v ; evidence on record was able 'proceedlvvithlpthe hiatter and ultimately decreed vadlrnitting the contentions of the plaintiffs 1.~;g}ect:/m the defendants. Therefore, aft want of proper evidence, tothe defendants. Inspite of they have not sought for document. Ultimately this Court has to see ._vvhether'- examination of Ex.D.3 by the d if ph'andvv'1*itii1g expertlfhas created any impediment for the the other hand experts evidence can assist the Covurtl' any other piece of evidence. it can only assist the 'CoAi;1rt like any other piece of evidence to decide the _ Vicyoritroversial issues on merits, but it cannot be substantive § __?piece of evidence. Even if hand writing experts evidence was 79 S on record, itwgs ultimately left to the Court to see whether ) V. such experts evidence would corroborate the other ..evidence on record and would assist the Court to decide _ merits in one way or the other. The ora1*"c*.ri§ience of parties and the documentary evidence is 'before- the'-sr._Ce:1.rt and the same has to be appreciatedlwith to controversies raised by the
36. It is the case' that when due execution of .Ex£'D.._3 possible evidence would be According to the appellants, made efforts to bring the best did not happen. Therefore, he must beigiven According to the respondents Cmiinsel, the Ceurt has never said that experts evidence was ~ jVr1--ntV1iecessary,_ On the other hand the Court always said, it H he'd"ene,.at the appropriate time and in the absence of any reason for not seeking such experts evidence at the right "tini_1e,Vvno fault lies with the plaintiff and now by virtue of an flappslication under Order 41 Rule 27, the appellant cannot "seek hand writing expert's evidence at this belated stage as 80 they were always aware of the directions and the liberty reserved to them all along by the trial Court.
37. The evidence of the witnesses show that D.W.5 has only obliged the interestedv notarise the document much later" than C knowing other executants of the docunientforfthei. witnesses of the document. It'v.is"'also clear on :'ijec'oVrVd"thlat the plaintiff never had cor1fiden.c'e" iri':he'rgsonlldefendant No.2. When there was a '¢i»iec1gted in favour of two other Chandra Sodhi, there was plaintiff to execute this defendant No.2 was sent out of " of his bad habbits. In the absence of any ".fIl£1tClTlal indicating that at any point of time, . neither__av.thorized her son Gulshan Kumar nor his to properties like other sons and in the light of 44"his*--V:pco'n.duct right from the beginning, we are of the " opinion, the trial Court was justified in saying Ex.D.3 was a C"-cioricocted document at the instance of defendant Nos. 1 to 3 "land defendant No.1 has played an active role in the entire ~ iVproP€*ft>'i-y 81 process of not only execution of power of attorney but also the sale deed at EX.P.17.
38. Viewed from any angle, in the light of"jtrre"p:'a!5ove discussion, vvcjf are of the opinion the trial a in the suit though the"'le.arne.d Cotmself for the ' appellant referred to several citations of expert evidence with referfc.r:1aCep_to the having' it regard to the primary .evidenc.eiA'brou_ght .on~reco.rd i.e., the oral evidence and evidence establishing existence on 9.2.2000,:_even yexpertfflopinion, the plaintiff was that she hadégat neither executecifplpovxerffloféw nor authorized her second son and his wife to sell a portion of the the defences taken by the defendants at H ~.¢1irrer¢h{i'y~s:ag'efé couid oniy indicate Ex.D.3 is concocted doacurr'rent' and the said power of attorney is an unregistered f 'do.curhent. Therefore no conveyance, which can be termed as 'legal conveyance transferring right, title and interest in "the property, could have been conveyed to the 15' defendant 3? Co'rrt.d"C<9 \"5&L Chambzf QR MLS _& , - dag; 0€5.Os..2.c>Io ..
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