Punjab-Haryana High Court
Chalti Devi And Ors. vs Rajinder Kumar And Anr. on 30 July, 2003
Equivalent citations: (2003)135PLR463
Author: Hemant Gupta
Bench: Hemant Gupta
JUDGMENT Hemant Gupta, J.
1. The plaintiffs are in second appeal against the judgment and decree of the Courts below whereby the suit for declaration to the effect that the judgment and decree dated 30.05.1985 passed in civil suit titled Rajinder v. Chalti and all consequent proceedings in pursuance there of are null and void on the rights of the plaintiffs with consequential relief of permanent injunction restraining the defendants from alienating the suit land and interfering in the possession of the plaintiffs.
2. Plaintiff Chalti Devi is the daughter of Nandan s/o Ayodhya Prashad. Ayadhya Prashad had another son Daulat Ram who had two sons Dina Nath and Sham Lal. The defendants are the sons of Dina Nath.
3. On the death of Nandan Ram on 22.5.1973, Smt. Bhalti Devi inherited 1/2 share in the agricultural land measuring 51 Kanals 7 Marias situated in village Kirmach, Tehsil Thanesar, District Kurukshetra. Rajinder Kumar son of Dina Nath and Jai Karan minor through his brother Rajinder Kumar had filed a civil suit No. 554 of 1985 on 25.5.1985 alleging that six months prior to the institution of the suit, Smt. Chalti Devi, plaintiff No. 1, effected a family settlement in the presence of the family members and they were declared owners of the suit property. The case was fixed for 13.09.1985 but on 30.5.1985 on the purported application of Smt. Chalti Devi the case was taken up as she had filed written statement on the same day admitting the claim of the plaintiffs. The statement of Smt. Chalti Devi and that of her learned counsel was recorded and decree was passed on 30.5.1985.
4. On 17.3.1986, plaintiffs i.e. Smt. Chalti Devi and her sons, instituted the present suit for declaration and permanent injunction seeking declaration that the decree dated 30.5.1985 and all subsequent actions in pursuance of the decree are null and void and not binding on the rights of the plaintiffs. It has been claimed by the plaintiffs that Smt. Chalti Devi suffered a decree in favour of her sons i.e. plaintiffs No. 2 to 4 on 12.06.1985 and when they went to Halqa Patwari in order to give him the copy of the decree for effecting the change in the record, they were informed of the impugned decree in favour of the defendants. The plaintiffs have alleged that Richhpal, son of Smt. Chalti Devi, was admitted in Civil Hospital, Kamal, in the month of May, 1985. Dina Nath, father of the defendants, came to her and fraudulently obtained her thumb-impressions on some plain papers on the allegations that in connection with some pending case concerning their land her thumb-impressions were required. Due to relationship she believed him and put her thumb-impressions. Later on, she came to know that decree dated 30.05.1985 was obtained as a result of fraud and misrepresentation. She alleged that a false story of family settlement has been set up as they are not members of the joint Hindu family and, therefore, there is no question of family settlement.
5. The defendants contested the suit and stated that plaintiff No. 1 had "relinquished her rights" by way of a civil Court decree in favour of the defendants. The father of the defendants had performed the marriages of the children of plaintiff No. 1 and has always stood by her in social functions. The plaintiff was residing in village Sirsal whereas the land is situated in village Kirmich and, thus, family settlement was arrived at between the parties. Plaintiff No. 1 voluntarily and willingly admitted the claim of the defendants in the Court. It is further mentioned that after the death of Nandan Ram, father of Smt. Chalti Devi, a family settlement was arrived at wherein Smt. Chalti Devi relinquished her right in favour of Dina Nath and he became owner to the extent of share of his brother Nandan Ram. A writing to this effect was executed in the panchayat on 5.6.1973. Subsequently, there was another family settlement in the month of January, 1985 on the basis of which impugned decree was passed.
6. The parties have led voluminous evidence in support of their claims including the revenue record. The revenue record till the year 1985 records Smt. Chalti Devi as owner of 1/2 share. It has also come on the record that partition proceedings were initiated by Bhagwan Dass who has purchased a share of the land from other co-sharers. Such partition proceedings were pending in the year 1985. The plaintiffs have also produced Patanama (lease deed) dated 10.7.1974, Exhibit P-26, executed by Smt. Chalti Devi and Dina Nath for a period of 10 years in favour of Ishar Dass etc. The plaintiffs have also produced Sh. Yashpal Chand Jain, Handwriting and Fingerprints Expert, who has examined the disputed thumb-impressions of plaintiff Smt.Chalti Devi on the written statement, Vakalatnama and on the statement made in the Court.
7. On the other hand, the defendants have relied upon writing dated 5.6.1973, Exhibit DW3/A, before the panchayat wherein Smt. Chalti Devi had relinquished her right in favour of Dina Nath apart from producing DW4 Sh. S.K. Gupta, Advocate, who allegedly represented Smt. Chalti Devi in the proceedings leading to the consent decree in the year 1985.
8. The learned trial Court on the basis of oral and documentary evidence found that the transaction of the consent decree is genuine and bona fide. Simply because of the pendency of the partition proceedings and admission of the son of the plaintiff Smt. Chalti Devi in the hospital, it cannot be presumed that plaintiff Chalti Devi was misrepresented and fraud was played upon her. The Court found that although the thumb-impression on the statement is faint and not comparable as per report of the handwriting expert Sh. Yashpal Chand Jain (PW3), but, in view of the statement of Sh. S.K. Gupta (DW4), it is Smt. Chalti Devi who had given her statement in the Court. The trial Court found that there was nothing abnormal in the case if she had relinquished the property in favour of defendants even though the plaintiff and her sons are alive since the property belonged to her father and there is a tendency that the married daughter do not retain the property of her father. The learned trial Court dismissed the suit. The appeal met the same fate.
9. The following substantial questions of law arose for consideration of this Court in the present second appeal:-
"1. Whether the findings recorded by the Courts below suffer from perversity of approach and misreading of evidence to return the finding that the decree was suffered by Smt. Chalti Devi on 30.5.1985?
2. Whether Smt. Chalti Devi could suffer consent decree in favour of defendants even though the said defendants are not members of her family and have no pre-existing rights in the property of Smt. Chalti Devi ?
10. On 22.05.1973, Nandan, father of Smt. Chalti Devi, had died. On 5.6.1973, Smt. Chalti Devi is alleged to have relinquished her rights in the property in favour of Dina Nath vide document Exhibit DW3/A. Such document is not given effect to as the revenue record continues to show Smt. Chalti Devi as owner thereof. On 10.7.1974, Smt. Chalti Devi and Dina Nath had executed a patanama, Exhibit P-26, in favour of Ishwar Dass etc. for a period of 10 years. The execution of Patanama by Smt. Chalti Devi shows that the writing dated 5.6.1973 was a mere paper transaction and not given effect to by the parties nor implemented at any stage. It has also come in evidence that in April, 1985, Bhagwan Dass, one of their co-sharers, had initiated partition proceedings in respect of which notices were issued to other co-sharers including Smt. Chalti Devi who had not put in appearance till the passing of the impugned decree. Still further, Richhpal, son of Smt. Chalti Devi, is stated to be admitted in the hospital in the month of May, 1985. Richhpal Singh is alleged to be a signatory to document Exhibit DW3/A as well. Still further, the suit for declaration in which Smt. Chalti Devi has suffered the consent decree shows that the defendants have relied upon a family function organised about six months back from May, 1985, wherein Smt. Chalti Devi has entered into a family settlement-cum-arrangement declaring the plaintiffs (defendants in the present suit) as owners in equal shares.
11. If the plaintiff Smt. Chalti Devi has already relinquished her right in the property on 5.6.1973 in favour of Dina Nath, there was no question of entering into a family settlement with the defendants six months prior to May, 1985. PW3 Yashpal Chand Jain, Handwriting Expert, has submitted report Exhibit PW3/1 to the effect that the thumb-
impressions of Smt. Chalti Devi on the statement in Court in the file Rajinder v.
Chalti, are faint impressions affixed with dried ink. It is reported that what to speak of the comparison of ridge characteristics, even the pattern of the impression cannot be made out in this impression. However, in respect of the thumb-impressions on the writ ten statement and Vakalatnama, the same were found to be that of plaintiff Smt. Chalti Devi. The said report of the expert corroborates the stand of the plaintiffs. She has alleged that her thumb-impressions were obtained by Dina Nath. A petition for partition was filed against Smt. Chalti Devi and Dina Nath. The Courts below have rejected the story of obtaining the thumb-impressions of Smt. Chalti Devi in the hospital, inter alia, on the ground that she was not yet served in the partition case. It was not necessary for the plaintiff Smt. Chalti Devi to be served in the said case to justify obtaining of thumb-
impressions by Dina Nath. Once the plaintiff was impleaded as a party, which fact is apparent on the record, therefore, the mere fact that the plaintiff was not served cannot be a ground to hold that she had not thumb-marked the papers at the instance of Dina Nath.
12. The Courts below have wrongly relied upon the statement of Sh. S.K. Gupta (DW4) who represented Smt. Chalti Devi in the suit. He has admitted that he is not personally known to Smt. Chalti Devi nor he can describe her appearance. He has not given the name of any person known to him through whom Smt. Chalti Devi contacted him for the purpose of filing of written statement. Since the thumb-impress ions on her statement made in the Court are beyond comparison, statement of the counsel cannot be made the basis of fixing the identity of Smt. Chalti Devi as that of plaintiff. I am of the opinion that the finding recorded by the Courts below that Smt. Chalti Devi appeared in the Court to suffer consent decree on 30.05.1985 is wholly illegal, not based upon proper reading of evidence. In fact, no other conclusion is possible than the one mentioned above.
13. As a matter of fact, more evidence is sought to be appreciated, more belief is formed that the case yet up by the defendants is one based upon manipulation, falsehood and is to deprive a woman of her share in the property on one pretext or the other.
14. The learned counsel tor the appellants has relied upon the decision in the case of Guljan Bibi v. Nazir-ud-din Mia, A.I.R. 1975 Gauhati 30 to contend that when a person (such as an illiterate woman) 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. He has to prove that there was fair play in the transaction and the apparent is the real. In other words, that the transaction is genuine and bona fide.
15. In para No. 14 of the judgment in Guljan Bibi's case (supra), Gauhati High Court has held as under:-
"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 father 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; he has to prove that there was fair play in the transaction and that the apparent is the real; in other words that the transaction is genuine and bona fide. The law presumes prima facie in favour of deeds duly executed. So ordinarily a person who challenges the validity of a transaction on the ground of fraud, undue influence etc. and charges his opponent with bad faith, has the burden of proof on him. But, where on account of the existence of fiduciary relationship of one of them is in a position to exert undue influence or dominion over the other and takes any benefit from him, the burden of proving the good faith of the transaction is thrown upon the dominant party, that is to say, the party who is in a position of active confidence. A person standing in a fiduciary relation to another has a duty to protect the interest given to his care and the Court watches with jealously all transactions between such persons to that the protector may not use his influence or the confidence to his advantage. When the party complaining shows such relation, the law presumes everything against the transaction and the onus is cast upon the person holding the position of confidence or trust to show that the transaction is perfectly fair and reasonable, that no advantage has been taken of his position. This principle has been engrained in Section 111 of the Evidence Act and in my opinion the learned Courts below were right in holding that this section does not apply to the facts of the instant case."
16. I am in respectful agreement with the view expressed by the Gauhati High Court. In the present case, plaintiff Smt. Chalti Devi in an illiterate woman. Dina Nath, who is pivot in the whole case, is father of the defendants. He is none else but brother of deceased husband of plaintiff Smt. Chalti Devi. He stands in a fiduciary capacity to dominate upon plaintiff No. 1 Smt. Chalti Devi. It is apparent that soon after the death of her husband, a family settlement is purported to have been signed by her. The said settlement has not been given effect to by the parties. Therefore, another family settlement is relied upon by the defendants which is six months prior to the filing of this suit. It shows that the defendants were out to grab the property of plaintiff No. 1.
17. Consequently, the first substantial question of law is answered in favour of the plaintiffs. The findings recorded by the Courts below suffer from perversity of approach and misreading of evidence which is not sustainable in law.
18. The other question which arises is whether plaintiff Smt. Chalti Devi could suffer consent decree in favour of defendants. Smt. Chalti Devi has her own family i.e. three sons. The defendants are sons of her brother-in-law. The defendants have no preexisting right in the estate of Smt. Chalti Devi. They do not even had contingent right in the estate of Smt. Chalti Devi. In the presence of sons, the property cannot devolve upon the defendants. Thus, in the absence of any pre-existing right, the decree suffered in favour of the defendants was to avoid the stamp duty and was against the public policy. It has been held by the Supreme Court in the case of Bhoop Singh v. Ram Singh and Ors., (1996-1)112 P.L.R. 559 that a consent decree would require registration unless there is pre-existing right in favour of the decree-holder.
19. In view of the above, I am of the opinion that the defendants had no pre-existing right in the property of Smt. Chalti Devi so as to entitle them to obtain a consent so as to defeat the provisions of law contained in the Registration Act as well as the Stamps Act. In fact, the decree itself contemplates that Smt. Chalti Devi has relinquished her rights in favour of the defendants. Such relinquishment of rights is a transfer of right in immovable property of the value of more than Rs. 100/- and could be effected only by way of registered instrument. 20. In view of the aforesaid, I am of the opinion that the judgment and decree passed by the Courts below is wholly unsustainable. Therefore, the appeal is allowed and the judgment and decree passed by the Courts below is set aside and the suit of the plaintiffs is decreed with costs. The decree dated 30.05.1995 is null and void and not binding on the rights of the plaintiffs.