Himachal Pradesh High Court
Smt. Mahesha Devi And Others vs Smt. Satya Devi (Since Deceased) ... on 26 July, 2019
Author: Tarlok Singh Chauhan
Bench: Tarlok Singh Chauhan
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA R.S.A. No. 184 of 2003 .
Reserved on : 22.7.2019 Date of decision: 26th July, 2019.
Smt. Mahesha Devi and others ....Appellants/Defendants.
Versus Smt. Satya Devi (since deceased) through her LRs Smt. Chanchala Devi and others ....Respondents/Plaintiffs.
Coram The Hon'ble Mr. Justice Tarlok Singh Chauhan, Judge. Whether approved for reporting ?1 Yes For the Appellants : Mr. G.D. Verma, Senior Advocate, with Mr. B.C. Verma, Advocate, for appellants No.1 to 3(a) & 3(b).
For the Respondents : Mr. Ashok Chaudhary, Advocate.
Tarlok Singh Chauhan, Judge The defendants are the appellants, who after having lost before both the learned Courts below, have filed this Regular Second Appeal.
The parties shall be referred to as the 'plaintiffs' and the 'defendants'.
1Whether reporters of Local Papers may be allowed to see the Judgment ?Yes ::: Downloaded on - 29/09/2019 01:20:06 :::HCHP 2
2. The brief facts of the case are that the plaintiffs filed a suit for declaration claiming themselves to be the owner in possession of .
the suit land. It was averred that the plaintiffs were locked in litigation with Smt. Ranjan Devi and others in Civil Suit No. 165 of 1990 qua the suit land. During the pendency of the suit, defendant No.1 Smt. Mahesha Devi was approached by plaintiff No.1 Smt. Satya Devi to contest that litigation of Civil Suit No. 165 of 1990 on her behalf. Qua it, an agreement dated 13.07.1990 was entered to the effect that if that suit was decided in favour of the plaintiffs, then they would give 32 kanals of land out of the suit land to defendant No.1. Plaintiffs claimed themselves to be illiterate and simpleton and taking advantage of this position, defendant No.1 obtained two general power of attorneys No.110 dated 17.3.1992 and 204 dated 30.8.1994 on the pretext of contesting the aforesaid litigation. But defendant No.1, fraudulently, in the power of attorney, got inserted the powers to alienate the land, though such power of alienation under the power of attorney was never given to defendant No.1, because the plaintiffs had already agreed to give 32 kanals of land to defendant No.1 in case of decision of the suit in their favour. The said suit subsequently was decided in favour of the plaintiffs. It was averred that defendant No.1 on the basis of general power of attorneys, fraudulently transferred the land ::: Downloaded on - 29/09/2019 01:20:06 :::HCHP 3 measuring 2-34-24 hectares, out of the suit land, to her son Tilak Raj, defendant No.2 vide sale deed No. 365 dated 25.9.1995 and land .
measuring 0-23-04 hectares to defendant No.3 vide sale deed No. 382 dated 10.10.1995, for a consideration of Rs.1,02,000/- and Rs.19,000/-
respectively. It was further averred that the plaintiffs had never authorised defendant No.1 to alienate their property nor she paid any sale consideration amount to them. According to the plaintiffs, they came to know about the fraudulent transactions by defendant No.1 in favour of defendants No.2 and 3, when they commenced interference in their peaceful possession in October, 1995. Thereafter, qua fraudulent alienations, defendant No.1 was contacted, who promised to revoke the transactions. But, subsequently, defendant No.1 issued notice dated 01.11.1995 to plaintiff No.1 for implementation of agreement dated 13.7.1990 for transfer of 32 Kanals of land in her favour. Thereafter, she filed suit No. 1239 of 1995 for possession of 32 kanals of land, which she got dismissed on 10.10.1996 by stating that she had already purchased the suit land from the plaintiffs.
Consequently, the plaintiffs claimed that transactions of sale by defendant No.1 made in favour of defendants No.2 and 3 were fraudulent, malafide and claimed that the plaintiffs being co-owners in possession of the suit land and sale deeds affected by defendant No.1 ::: Downloaded on - 29/09/2019 01:20:06 :::HCHP 4 in favour of defendants No.2 and 3 are wrong, void and liable to be set-aside alongwith mutations.
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3. The defendants contested the lis by claiming that the sale deeds virtually executed and registered by defendant No.1 on the basis of general power of attorneys of the plaintiffs. Defendant No.1 was duly authorised to effect the sale deeds of the property of the plaintiffs and the power of attorneys were never revoked by the plaintiffs till execution of the sale deeds. Defendant No.1 was also authorised to look after the litigation of the plaintiffs and the property was sold after instructions of the plaintiffs. No fraud was committed or played. Objections qua maintainability, locus-standi and estoppel were also raised.
4. The learned trial Court on 06.02.1998, framed the following issues:
1. Whether the plaintiffs are co-owners/co-sharers in joint possession of the suit land , as alleged? OPP
2. Whether the sale deeds dated 25.09.1995 and 10.10.1995 are the result of fraud, mis-representation and are null and void as alleged? OPP
3. Whether the suit of the plaintiffs is not maintainable in the present form, as alleged? OPD
4. Whether the plaintiffs are estopped by their acts and conduct to file the present suit, as alleged? OPD ::: Downloaded on - 29/09/2019 01:20:06 :::HCHP 5
5. Whether the General power of attorneys dated 17.03.1992 and dated 30.08.1994 were validly executed by the plaintiffs with their free will and option, as alleged? OPD .
6. Relief.
5. After recording the evidence and evaluating the same, the learned trial Court decreed the suit with costs and the plaintiffs were declared to be co-owner in possession of the suit land and the sale deeds No.365 dated 25.9.1995 and No. 382 dated 10.10.1995 executed on the basis of G.P.As documents No.110 dated 17.3.92 and No.204 dated 30.8.94 were wrong, null and void and mutations sanctioned on the basis of these documents were required to be expunged from the revenue record and the defendants were restrained permanently from claiming any right, title or interest on the basis of the said documents and from alienating the land in any manner.
6. Aggrieved by the judgment and decree passed by the learned trial Court, the defendants filed an appeal before the learned District Judge, Kangra at Dharamshala, which too, came to be dismissed vide judgment and decree dated 17.4.2003, constraining the appellants/defendants to file the instant appeal.
7. On 7.6.2004, the appeal was admitted on the following substantial questions of law:
::: Downloaded on - 29/09/2019 01:20:06 :::HCHP 61. Whether the plea of fraud and mis-representation of facts has not been raised in conformity with the requirement of the law and the two Courts below have .
acted illegally and unlawfully by upholding the claim of the plaintiffs/respondents?
2. Whether in the absence of plea of Parda Nashin lady, the inferences and conclusions drawn by the Courts below are bad and wrong?
3. Whether the plea of Parda Nashin lady is available when the impugned transaction is between the two ladies?
4. Whether the respondents are estopped to assail the validity of the Power of Attorney Ext. PW-1/A and Ext.
PW-1/B after having allowed appellant/ defendant No.1 to act as her General Power of Attorney on the basis of the same in the previous litigation?
5. What is the effect of the failure of the defendants/appellants No.2 and 3 to step into the witness box.
I have heard learned counsel for the parties and have gone through the material placed on record.
8. A perusal of the substantial questions of law would show that the same are intrinsically interlinked and interconnected and verge around the question of perversity in the judgments rendered by the learned Courts below and, therefore, all of these substantial questions ::: Downloaded on - 29/09/2019 01:20:06 :::HCHP 7 of law are taken up together for consideration and are being disposed of by common reasoning.
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9. In order to find out whether there is any perversity in the judgment and decree passed by the learned Courts below, it would be necessary to refer to the pleadings and thereafter relevant evidence.
10. A bare perusal of the plaint would show that in the heading thereof, the plaintiffs have taken a specific plea regarding power of attorneys having been executed fraudulently and under mis-
representation. In addition thereto, in case the entire contents of the plaint are perused, it is manifest that the plea of mis-representation and fraud has specifically been taken.
11. This Court in Smt. Kala Wati vs. Smt. Vidya Devi and others 2009 (3) S.L.C. 306, while dealing with the question of Fraud, held as under:
"13. Section 17 of the Indian Contract Act, 1872, (hereinafter referred to as the `Act')deals with fraud defining it to mean inter alia the suggestion of a fact which is not true by a person who does not believe it to be true, active concealment of a fact by a person having knowledge or belief of the fact.
In Krishna Mohan Kul alias Nani Charan Kul and another vs. Pratima Malty and others, AIR 2003, SC 4251, the Supreme Court while considering the provisions of Section 16 supra held:-::: Downloaded on - 29/09/2019 01:20:06 :::HCHP 8
"13. In judging of the validity of transactions between persons standing in a confidential relation to each other, it is very material to see whether the person conferring .
a benefit on the other had competent and independent advice. The age or capacity of the person conferring the benefit and the nature of the benefit are of very great importance in such cases. It is always obligatory for the donor/beneficiary under a document to prove due execution of the document in accordance with law, even de hors the reasonableness or otherwise of the transaction, to avail of the benefit or claim rights under the document irrespective of the fact whether such party is the defendant or plaintiff before Court.
14. It is now well established that a Court of Equity, when a person obtains any benefit from another imposes upon the grantee the burden, if he wishes to maintain the contract or gift, of proving that in fact he exerted no influence for the purpose of obtaining it. The proposition is very clearly started in Ashburner's principles of Equity, 2nd Ed. , p. 229. thus:
"when the relation between the donor and donee at or shortly before the execution of the gift has been such as to raise a presumption that the donee had influence over the donor, the Court sets aside the gift unless the donee can prove that the gifts was the result of a free exercise of the donor's will. "
15. The corollary to that principle is contained in Clause (3) of Section 16 of the Indian contract Act, 1872 (in short 'contract Act' ).
16. At this juncture, a classic proposition of law by the Privy Council needs to be noted. In Mst. Farid-Un-Nisa v. Munshi Mukhtar ahmad and Anr. (AIR 1925 P. C.
204) it was observed as follows:
::: Downloaded on - 29/09/2019 01:20:06 :::HCHP 9"It is, therefore, manifest that the rule evolved for the protection of pardahnashin ladies not be confused with other doctrines, such as .
fraud,duress and actual undue influence, which apply to all persons whether they be pardahnashin ladies or not".
17. The logic is equally applicable to an old, illiterate, ailing person who is unable to comprehend the nature of the document or the contents thereof. It should be established that there was not mere physical act of the executant involved, but the mental act. Observations of this Court, though in the context of pardahnashin lady in Mst. Kharbuja Kuer v. Jang Bahadur Rai and Ors. (AIR 1963 SC 1203) are logically applicable to the case of the old, invalid, infirm (physically and mentally)and illiterate persons".
14. To similar effect is the judgment of the Supreme Court in State of Andhra Pradesh and another vs. T.Suryachandra Rao, AIR 2005 SC 3110. The Court held:-
"8. By "fraud" is meant an intention to deceive; whether it is from any expectation of advantage to the party himself or from the ill will towards the other is immaterial. The expression "fraud" involves two elements, deceit and injury to the person deceived.
Injury is something other than economic loss, that is, deprivation of property, whether movable or immovable or of money and it will include any harm whatever caused to any person in body, mind, reputation or such others. In short, it is a non-economic or non-pecuniary loss. A benefit or advantage to the deceiver, will almost always cause loss or detriment to the deceived. Even in those rare cases where there is a benefit or ::: Downloaded on - 29/09/2019 01:20:06 :::HCHP 10 advantage to the deceiver, but no corresponding loss to the deceived, the second condition is satisfied. (See Dr. Vimla v. Delhi Administration and Indian Bank v.
.
Satyam Fibres (India) Pvt. Ltd. ).
9. A "fraud" is an act of deliberate deception with the design of securing something by taking unfair advantage of another. It is a deception in order to gain by another's loss. It is a cheating intended to get an advantage. (See S. P. Chengalvaraya Naidu v. Jagannath ).
10. "Fraud" as is well known vitiates every solemn act. Fraud and justice never dwell together. Fraud is a conduct either by letter or words, which includes the other person or authority to take a definite determinative stand as a response to the conduct of the former either by words or letter. It is also well settled that misrepresentation itself amounts to fraud. Indeed, innocent misrepresentation may also give reason to claim relief against fraud. A fraudulent misrepresentation is called deceit and consists in leading a man into damage by willfully or recklessly causing him to believe and act on falsehood. It is a fraud in law if a party makes representations, which he knows to be false, and injury enures therefrom although the motive from which the representations proceeded may not have been bad. An act of fraud on court is always viewed seriously. A collusion or conspiracy with a view to deprive the rights of the others in relation to a property would render the transaction void ab initio. Fraud and deception are synonymous. Although in a given case a deception may not amount to fraud, fraud is anathema to all equitable principles and any affair tainted with fraud ::: Downloaded on - 29/09/2019 01:20:06 :::HCHP 11 cannot be perpetuated or saved by the application of any equitable doctrine including resjudicata. (See Ram Chandra Singh v. Savitri Devi and Ors. )".
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"11. ... ... ... ... ... ... ... In a leading English case i.e. Derry and Ors. v. Peek (1886-90) All ER 1 what constitutes "fraud" was described thus: (All ER p. 22 BC)"fraud" is proved when it is shown that a false representation has been made (i) knowingly, or (ii) without belief in its truth, or (iii) recklessly, careless whether it be true or false". But "fraud" in public law is not the same as "fraud" in private law. Nor can the ingredients, which establish "fraud" in commercial transaction, be of assistance in determining fraud in Administrative Law. It has been aptly observed by Lord Bridge in Khawaja v. Secretary of State for Home deptt. , that it is dangerous to introduce maxims of common law as to effect of fraud while determining fraud in relation of statutory law. "fraud" in relation to statute must be a colourable transaction to evade the provisions of a statute. "if a statute has been passed for some one particular purpose, a court of law will not countenance any attempt which may be made to extend the operation of the Act to something else which is quite foreign to its object and beyond its scope. Present day concept of fraud on statute has veered round abuse of power or mala fide exercise of power. It may arise due to overstepping the limits of power or defeating the provision of statute by adopting subterfuge or the power may be exercised for extraneous or irrelevant considerations. The colour of fraud in public law or administration law, as it is developing, is assuming different shades. It arises from a deception committed by disclosure of incorrect ::: Downloaded on - 29/09/2019 01:20:06 :::HCHP 12 facts knowingly and deliberately to invoke exercise of power and procure an order from an authority or tribunal. It must result in exercise of jurisdiction which .
otherwise would not have been exercised. The misrepresentation must be in relation to the conditions provided in a section on existence or non-existence of which the power can be exercised. But non-disclosure of a fact not required by a statute to be disclosed may not amount to fraud. Even in commercial transactions non-disclosure of every fact does not vitiate the agreement. "in a contract every person must look for himself and ensures that he acquires the information necessary to avoid bad bargain. In public law the duty is not to deceive. (See Shrisht Dhawan (Smt.) v.M/s.Shaw Brothers, 1992(1) SCC 534 )."
12. ... ... ... ... ... ... ... ... ... ... ... ... ...
"13. This aspect of the matter has been considered recently by this Court in Roshan deen v. Preeti Lal Ram Preeti Yadav v. U. P. Board of High School and Intermediate Education, Ram Chandra Singh's case (supra) and Ashok Leyland Ltd. v. State of T.N. and Another [2004(3) SCC 1].
14. Suppression of a material document would also amount to a fraud on the court, (see Gowrishankar v.
Joshi Amba shankar Family Trust and S. P. Chengalvaraya Naidu's case (supra ).
15. "Fraud" is a conduct either by letter or words, which induces the other person or authority to take a definite determinative stand as a response to the conduct of the former either by words or letter. Although negligence is not fraud but it can be evidence on fraud; as observed in Ram Preeti yadav's case (supra )".
::: Downloaded on - 29/09/2019 01:20:06 :::HCHP 1312. In addition, there is sufficient evidence on record which goes to indicate that even as per the admitted case of the defendants .
themselves, the plaintiffs had executed power of attorney only for the purpose of contesting the earlier litigation with Smt. Ranjan Devi. This is so stated by PW-1 Satya Devi in her examination-in-chief and what is more interesting is that a specific suggestion to the plaintiff has been given in cross-examination to the effect that power of attorney was executed only for the purpose of contesting the litigation with Smt. Ranjan Devi, as would be evident from the following:
" Theek hai ki Mahesha Devi ko mukhtiar case ladne ke liya diya tha..."
13. Further while appearing as DW-1 Mahesha Devi has clearly admitted that the power of attorney was executed by Satya Devi only for the purpose of contesting the litigation with Smt. Ranjan Devi.
14. Interestingly, even in the notice issued by defendant No.1 on 1.11.1995 vide Ex.PW-1/G, it has been specifically stated that Special Power of Attorney was executed by the plaintiffs in favour of defendant No.1 solely for the purpose of contesting the litigation against Smt. Ranjan Devi.
::: Downloaded on - 29/09/2019 01:20:06 :::HCHP 1415. In Krishna Mohan Kul alias Nani Charan Kul and another vs. Pratima Maity and others AIR 2003 SC 4351, the .
Hon'ble Supreme Court has held that when fraud, misrepresentation or undue influence is alleged by a party in a suit, normally, the burden is on him to prove such fraud, undue influence or misrepresentation. But when a person is in a fiduciary relationship with another and the latter is in a position of active confidence the burden of proving the absence of fraud, misrepresentation or undue influence is upon the person in the dominating position, therefore, it was incumbent upon the defendants to prove that there was fair play in the transaction and that too, the sale deeds which were executed by defendant No.1 in favour of defendants No.2 and 3 are genuine and bonafide.
16. As regards the substantial questions of law No.2 and 3 with regard to the plaintiff being a Pardanashin lady, it would be necessary to understand the concept of 'Pardanashin lady'.
17. Admittedly, there are no pleadings regarding the plaintiff being a 'Pardanashin lady', but then it has specifically been pleaded by Smt. Satya Devi (PW-1) that she was illiterate and did not know either Hindi, English or Urdu and only knew 'Pahari'.
::: Downloaded on - 29/09/2019 01:20:06 :::HCHP 1518. In Parasnath Rai and others vs. Tileshra Kuar, 1965, Allahabad Law Journal 1080, the Allahabad High Court held that .
"Rules regarding transactions by a Pardanashin lady are equally applicable to an illiterate and ignorant woman though she may not be a Pardanashin. It is not by reason of the Pardah itself that the law throws its protection round a Pardanashin lady but by reason of those disabilities which a life of seclusion lived by a Pardanashin lady gives rise to, and which are consequently presumed to exist in the case of such a lady. But the disabilities which make the protection necessary may arise from other causes as well. Old age, infirmity, ignorance, illiteracy, mental deficiency, inexperience and experience upon others, may by themselves create disabilities that may render the protection equally necessary, if, therefore, it is proved that a woman, although she is not a Pardanashin lady, suffers from the disabilities to which a Pardanashin lady is presumed to be subject, the validity and the binding nature of a deed excuted by her have to be judged in the light of those very principles which are applied to a deed by a Pardanashin lady, where the plaintiff was illiterate and when she executed the deed in question she was not only more than 60 years old but was also hard of hearing and she was described by the defendants themselves as a foolish and rustic woman completely devoid of intelligence, and ::: Downloaded on - 29/09/2019 01:20:06 :::HCHP 16 according to the finding of the lower appellate Court she was correctly described as such, and besides the defendants stood in relation to her .
in a position of active confidence held that there could be no doubt that she was as such entitled to the protection of the law as a Pardanashin lady".
19. The settled position of law holding the field of proof of sale made by Pardanashin ladies, which has the applicability also to illiterate ladies hailing from rural background can be traced from the decision of the Privy Council in Mt.Farid-un-Nisa Vs. Munishi Mukhtar Ahmad and another AIR 1925, P.C. 204, wherein it was held as follows:
"The law throws around her a special cloak of protection. It demands that the burden of proof shall in such a case rest, not with those who attack, but with those who found upon the deed, and the proof must go so far as to show affirmatively and conclusively that the deed was not only executed by, but was explained to, and was really understood by the granter. In such cases, it must also, of course, be established, that the deed was not signed under duress, but arose from the free and independent will of the granter. The law as just stated too well settled to be doubted or upset.
*** *** *** The law of India contains well known principles for the protection of persons, who transfer their property to their own disadvantage when they have not the usual means of fully ::: Downloaded on - 29/09/2019 01:20:06 :::HCHP 17 understanding the nature and effect of what they are doing. In this it has only given the special development, which Indian social usages make necessary, to the general rules of English .
Law, which protect persons, whose disabilities make them dependent upon or subject them to the influence of others, even though nothing in the nature of deception or coercion may have occurred. This is part of law relating to personal capacity to make binding transfers or settlements of property of any kind."
20. The aforesaid case, in turn was followed by the Hon'ble Supreme Court in Mst. Kharbuja Kuer vs. Jangbahadur Rai and others AIR 1963, SC 1203 and Krishna Mohan Kul alias Nani Charan Kul and another (2004) 9 SCC 468. This Court in series of judgments has followed the aforesaid case in Smt. Kala Wati vs. Smt. Vidya Devi and others 2009 (3) SLC 306 = 2009 (2) Latest HLJ 1219 and Sulender Singh and others vs. Pritam and others 2013 (1) Latest HLJ 386.
21. It would be noticed that not only the learned trial Court, but even the appellate Court while affirming the judgment and decree passed by the learned trial Court has taken great pains to discuss not only the pleadings but even the evidence in its entirety. Even though it was not required to do so. Learned Senior Counsel appearing for the ::: Downloaded on - 29/09/2019 01:20:06 :::HCHP 18 appellants has not been able to point out any perversity in the findings rendered by the learned Courts below.
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22. Once the defendants themselves acknowledged and admitted that the power of attorney even though termed as General Power of Attorney was executed with the sole intention and purpose of only defending the litigation instituted by one Smt. Ranjan Devi, then there was no further question of defendant No.1 selling the property in favour of defendants No.2 and 3 on the basis of the said power of attorney. Even if the defendants' case is taken at its best, even then, there is nothing on record to suggest that the sale made by defendant No.1 in favour of her son (defendant No.2) and defendant No.3 and the sale consideration in turn had been paid to the plaintiffs. Where the defendants became greedy and dishonest and tried to grab the entire suit property by hook and crook, this is a classical example where instead of waiting for the hen to lay the golden egg, the defendants tried to kill the hen itself.
23. Therefore, on the basis of the aforesaid discussion, it cannot be held that the respondents/plaintiffs were estopped to assail the validity of the power of attorneys Ext. PW-1/A and Ext. PW-1/B even after having allowed the appellant/defendant No.1 to act as General Power of Attorney in the previous litigation.
::: Downloaded on - 29/09/2019 01:20:06 :::HCHP 1924. Now, adverting to the question as to what would be the effect of failure of defendants/appellants No. 2 and 3 to step into the .
witness box, I really failed to understand as to why the appellants should even press this question as it was incumbent upon defendant No.2 (who is none other than the son of defendant/appellant No.1 herein) and defendant No.3 to have proved a valid sale in their favour.
Having failed to enter into the witness box and offered themselves for cross-examination by other party, obviously the Court is left with no other option, but to draw an adverse inference, more particularly, when there is no other evidence available on the record to prove the valid sale in favour of defendants No.2 and 3 and additionally when the respondent/plaintiff No.1 has duly proved her case.
All the substantial questions of law are answered accordingly.
25. In view of the aforesaid discussion and for the reasons stated, I find no merit in this appeal and the same is accordingly dismissed, so also the pending application(s), if any, leaving the parties to bear their own costs.
26th July, 2019 Tarlok Singh Chauhan)
(GR) Judge
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