RATTAN SINGH & ORS. versus NIRMAL GILL & ORS. ETC. on 16 November 2020

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SUPREME COURT REPORTS

[2020] 12 S.C.R.

ARATTAN SINGH & ORS.

v.

NIRMAL GILL & ORS. ETC.

(Civil Appeal Nos. 3681-3682 of 2020 etc.)

BNOVEMBER 16, 2020

[A.M. KHANWILKAR AND DINESH MAHESHWARI, JJ.]

Deeds and Documents:

Suits for declaring sale-deeds as illegal and void which wereCexecuted by Power of Attorney-holder of plaintiff and also thoseexecuted by the plaintiff herself – Alleging fraud in execution ofthe General Power of Attorney (GPA) and the sale deeds by misusingthe trust reposed in defendants – Trial court dismissed both thesuits – First appellate court partly allowed one of the appeals anddismissed the other appeal – High Court reversed the finding of theDcourts below – Appeal to Supreme Court – Held: The disputeddocuments were registered and hence are presumed to be genuine –The initial burden to prove that the subject documents were forgedor product of fraud, was on the plaintiff – Plaintiff failed to provethe facts of misuse of trust by the defendants – No tangible andEcredible evidence was led by the plaintiff to prove that the GPA aswell as the sale deeds were effected by impersonating her – Sincethe attesting witness had proved the execution of the sale deeds, theprimary onus upon the plaintiff had not shifted unto the defendants– The testimony of attesting witness, scribe and other independentwitnesses support the case of defendants – Since the plaintiff couldFnot establish existence of fraud, the suits were ex-facie barred bylimitation – The views of trial court and appellate court being apossible view, High Court should not have disturbed the same insecond appeal that too on surmises and conjectures.

Sale deed – Signature of vendee on – Is not mandatory.GEvidence:

Registered document – Evidentiary value – A document ispresumed to be genuine, if it is registered.

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Standard of proof – In civil disputes – Is preponderance ofprobabilities and is not beyond reasonable doubt.

Expert evidence – Nature of – Expert opinions are not abinding piece of evidence and they need to be corroborated.

Evidence Act, 1872:

s. 90 – 30 years old document – Is presumed to be genuine.

Limitation Act, 1963:

s. 17 – For invoking s. 17, two ingredients have to be pleadedand duly proved i.e. existence of fraud and discovery of such fraud.

Practice and Procedure:

A hypersensitive approach ought not be taken in cases wherethere has been delay in recording evidence.

Words & Phrases:

“attested” – Meaning of, in the context of s. 3 of Transfer ofProperty Act, 1882.

Allowing the appeals, the Court

HELD : 1.1 The record reveals that the disputed documentsare registered. It is settled legal principle that a document ispresumed to be genuine if the same is registered. [Para 32][446-A-C]

Prem Singh and Ors. v. Birbal and Ors. (2006) 5 SCC353 : [2006] 1 Suppl. SCR 692 – relied on.

1.2 The trial Court had justly placed the initial burden ofproof upon the plaintiff as it was her case that the subjectdocuments were forged or product of fraud and moreso becausethe documents bore her signature. The first appellate Court didnot elaborate on that aspect. Even assuming that the burden hadshifted upon the defendants, the witness identifying signaturesof the dead attesting witness was examined by the defendants.Therefore, the documents stood proved and the burden was dulydischarged by the defendants. The High Court, however, wenton to observe that defendants had abused their position of active A

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Aconfidence. For shifting the burden of proof, it would require morethan merely pleading that the relationship is a fiduciary one andit must be proved by producing tangible evidence. [Paras 40 and41][448-E-G][449-B-C]

Anil Rishi v. Gurbaksh Singh (2006) 5 SCC 558 : [2006]B1 Suppl. SCR 659 – relied on.

1.3 The defendants enjoyed active confidence of the plaintiff.It is an admitted position that the plaintiff and defendants alwayshad cordial relationship and the plaintiff was on visiting terms.Further, the fact that the defendant Nos. 3 and 4 were cultivatingCthe joint lands is also not disputed. Defendant Nos. 3 and 4 werecultivating the lands along with their father and continued to doso even after his death. The plaintiff had failed to prove the factof misuse of trust by the defendants as such. [Para 42][450-F-H]

1.4 Further, the plaintiff attempted to project the 1990DGeneral Power of Attorney (GPA) as a doubtful document statingthat the same had discrepancies with respect to the address andthe alteration of the date of execution. In absence of the attestingwitness and in view of the evidence of PW4-scribe, it was for theplaintiff to get PW4 declared hostile and cross-examine him inorder to prove that he had deposed falsely, which the plaintiffEfailed to do. [Para 43][450-H; 451-A-B]

1.5 Emphasis was laid on the entries made in the PW4scribe’s register showing the 1990 GPA to have been executedprior to the sale deed and it was submitted that there is no logicin first giving GPA and then executing sale deed if the plaintiffFwas available to execute the aforesaid documents. However, thesame is of no avail to the plaintiff as the 1990 GPA was in respectof all her land holdings, whereas the sale was made only in respectof a portion of the land. [Para 44][451-B-C]

1.6 The primary reason for executing the 1990 GPA wasGthat the plaintiff was not residing in Punjab at the relevant pointof time and that she was old and weak, and thus unable to lookafter her property situate at Punjab. The stress laid upon the factthat a woman was appointed in her place is, therefore, a matter ofsurmises and conjectures. [Para 45][451-C-E]H

1.7 The plea that the registration of the 1990 GPA as wellas the sale deeds, had been effected by impersonating the plaintiffhas not been proved. No credible and tangible evidence hasbeen led in that regard. [Para 46][451-E-F]

1.8 The plaintiff’s denial of being acquainted with theattesting witnesses, is, also a ruse and not genuine. For, one ofthe attesting witnesses was a lamberdar of the village. Alamberdar’s job is to collect revenue in respect of the lands andissue receipts and as a practice, the lamberdar is called forattesting documents. Thus, when the plaintiff admittedly used tovisit village frequently, her denial in knowing him is far-fetched.This is what two Courts had opined and being a possible view, nointerference by the High Court was warranted in that regard.That is beyond the scope of second appeal. [Para 47][451-F-H]

Satya Gupta (Smt.) alias Madhu Gupta v. Brijesh Kumar(1998) 6 SCC 423 : [1998] 3 SCR 1183 – relied on.

2.1 With regard to the sale deed dated 03.07.1990, theplaintiff had asserted that the same was not executed by her. Thesale deed requires attestation by two witnesses and the samehas to be proved as per procedure laid down under Section 68 ofthe Evidence Act. The sale deed of 03.07.1990 had been attestedby Lamberdar and DW3. The attesting witness (DW3) haddeposed that the said sale deed was executed by the plaintiff inhis presence, as well as in presence of Lamberdar and defendantNo. 3. However, defendant No. 4 had deposed that he was presentat the time of execution of the sale deed on 03.07.1990 whichwas executed by the plaintiff in favour of defendant No. 3 andhimself. He stated that Lamberdar and ‘G’ were also present.The High Court held that testimony of DW3 was of no avail tothe defendants to prove the said sale deed, because he had noclue regarding passing of consideration to the plaintiff. Further,the defendants had failed to prove the fact of handing overconsideration amount to the plaintiff. Also, defendant No. 4 andDW3 denied each other’s presence. [Paras 48, 52, 53, 54, 56][452-D; 453-E-G; 454-G-H; 455-A-B]

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426SUPREME COURT REPORTS

[2020] 12 S.C.R.

AJagdish Chand Sharma v. Narain Singh Saini (dead)through legal representatives & Ors. (2015) 8 SCC 615:[2015] 6 SCR 397 – relied on.

2.2 A hypersensitive approach ought not be taken in caseswhere there has been a delay in recording evidence. In the presentBcases, the disputed documents were executed in the year 1990and the evidence of DW3 was recorded in the year 2007, after apassage of 17 long years. The High Court erroneously doubtedthe evidence of DW3 merely because he could not identifyphotographs of plaintiff and because the defendant No. 4 and DW3did not mention each other’s presence at the time of execution.C[Para 55][453-G-H; 454-F-G]

Damodar v. State of Rajasthan (2004) 12 SCC 336 :

[2003] 3 Suppl. SCR 904 – relied on.

2.3 As per the definition of ‘attested’ under Section 3 ofDthe Transfer of Property Act, 1882 “attested”, in relation to aninstrument, means and shall be deemed always to have meantattested by two or more witnesses each of whom has seen theexecutant sign or affix his mark to the instrument ....and each ofwhom has signed the instrument in the presence of the executant.The disputed sale deed dated 03.07.1990 was signed by plaintiffEas vendor and defendant No. 3 as vendee and in the presence ofDW3 and the other attesting witness i.e. the Lamberdar. DW3 asan attesting witness had seen both plaintiff and defendant No. 3signing the deed and he then attested the sale deed. The HighCourt failed to note that the other attesting witness being deadFand his signature having been identified by DW2 and DW4, andwith the testimony of PW4 scribe, the evidence of the DW3 witnessstood corroborated and therefore, the same could not bedisregarded. [Paras 57 and 58][455-B-G]

2.4 Since defendant No. 4 has not signed the sale deed as aGvendee, his evidence cannot be discarded, as signature of thevendee is not mandatory in a sale deed. In any case, the weightof evidence of DW3 remains unassailable. Therefore, thetestimony of DW3 satisfies the requirements of the conditionsrequired for a valid attestation. [Paras 60 and 61][457-A-B; 458-F-G]H

Aloka Bose v. Parmatma Devi and Ors. (2009) 2 SCC582 : [2008] 17 SCR 822 – relied on.

2.5 Since the attesting witness had proved the executionof the sale deeds, the primary onus upon the plaintiff had notshifted unto the defendants. Further, the plaintiff was obliged torebut the positive evidence produced by the defendants regardingpayment of consideration amount to the plaintiff; but also oughtto have independently proved her case of non-receipt of theconsideration amount. [Para 62][459-B-C]

2.6 It is settled that the standard of proof required in a civildispute is preponderance of probabilities and not beyondreasonable doubt. In the present cases, though the discrepanciesin the 1990 GPA are bound to create some doubt, however, inabsence of any tangible evidence produced by the plaintiff tosupport the plea of fraud, it does not take the matter further.Rather, in the present case the testimony of the attesting witness,scribe and other independent witnesses plainly support the caseof the defendants. That evidence dispels the doubt if any; and tiltthe balance in favour of the defendants. [Para 80][465-C-E]

3.1 The plaintiff got her admitted signatures compared withthe signatures on the disputed documents by a handwriting expert,PW10 who had come to a conclusion that the disputed signatureswere a result of copied forgery. On the contrary, the defendantshad also got the same document examined by their expert, DW7,who had determined the disputed signatures to have been signedby plaintiff herself. [Para 64][459-D-E]

3.2 The expert evidence produced by the plaintiff inreference to the signature of the plaintiff is of no avail, in view ofdivergent opinions. The ground that the documents were a resultof copied forgery cannot be substantiated only on the basis of theopinion of expert PW10. Even otherwise, the expert opinionsare not a binding piece of evidence and have to be corroboratedwith other pieces of evidence. The plaintiff failed to prove thather signatures on the subject documents are forged. [Para65][459-F-G]

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A4.1 The 1963 GPA is claimed to have been discoveredduring the enquiries made by the plaintiff subsequent to attainingknowledge of the fraud. The trial court accepted that the plaintiffhad executed the 1963 GPA and further she had knowledge ofthe sanction of mutation in pursuance of that GPA. [Paras 66 and67][459-H; 460-B-C]B

4.2 The 1963 GPA is a document which is more than 30years old. Section 90 of the Evidence Act provides for thepresumption in favour of a 30-year old document. The aforesaidprovision employs the words ‘may presume’. As per Section 4 ofthe Evidence Act, the presumption in favour of a 30-year oldCdocument is, therefore, a rebuttable presumption. Nothingprevented the plaintiff to rebut the presumption by leadingappropriate evidence in order to disprove the same. Since theplaintiff failed to do so, the said document would be binding onthe plaintiff. As a matter of fact, the parties had acted upon theDterms of the said document without any demur since 1963 and itwas, therefore, not open to resile therefrom at this distance oftime. Hence, the trial Court was right in holding the 1963 GPA,to be a genuine document. [Paras 69, 70 and 71][460-E-F; 461-B-E]

E5.1 Since the plaintiff could not establish the existence offraud, it must follow that the suits are ex-facie barred by limitation.For invoking Section 17 of the Limitation Act, 1963 twoingredients have to be pleaded and duly proved. One is existenceof a fraud and the other is discovery of such fraud. In the presentcase, since the plaintiff failed to establish the existence of fraud,Fthere is no occasion for its discovery. Thus, the plaintiff cannotbe extended the benefit under the said provision. [Paras 78 and81][464-F-G; 465-E]

5.2 The concurring findings recorded by the trial Court andthe first appellate Court - that the documents were executed byGthe plaintiff - belies and demolishes the case of the plaintiff, as tohaving acquired knowledge of alleged fraud in 2001. Therefore,the High Court committed manifest error in reversing theconcurrent findings of the trial Court and the first appellate Courtin that regard. [Para 79][465-A-C]H

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6. As to the title of the subsequent purchasers, since the1990 GPA had been proved, there is no reason to doubt theirbonafides. The trial Court and the first appellate Court hadappreciated the evidence properly and that view being a possibleview, the High Court ought not to have disturbed the same in thesecond appeal and that too on surmises and conjectures. [Paras82 and 83][465-F-G]

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Case Law Reference

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CIVIL APPELLATE JURISDICTION : Civil Appeal Nos. 3681-3682 of 2020.

From the Judgment and Order dated 27.05.2019 of the High Courtof Punjab and Haryana at Chandigarh in RSA No. 2901 of 2012 (O&M)and RSA No. 3881 of 2012 (O&M).

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With

Civil Appeal Nos. 3683-3684 of 2020.

T.S. Doabia, Sr. Adv., Dinesh Verma, Rajat Verma, SubhasishBhowmick, Jagjit Singh Chhabra, Saksham Maheshwari, Advs. for theappearing parties.

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Caveator-in-person

The Judgment of the Court was delivered by

A. M. KHANWILKAR, J. 1. Leave granted.

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2. These appeals take exception to the common Judgment anddecree of the High Court of Punjab and Haryana at Chandigarh[1], dated27.05.2019 in R.S.A. Nos. 2901/2012 and 3881/2012, whereby the High 1 for short, “the High Court”

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ACourt reversed the concurrent findings of the trial Court and the firstappellate Court and decreed the suits of the plaintiff.

3. For convenience, the parties are referred to as per their statusin Civil Suit No. 11/2001 before the Court of Civil Judge (Senior Division),Hoshiarpur[2]. The admitted factual position in the present cases is thatBone Harbans Singh had married Gurbachan Kaur and fathered JoginderKaur (plaintiff – now deceased) in the wedlock. After the demise ofGurbachan Kaur, Harbans Singh married Piar Kaur and in that wedlock,he fathered Gurdial Singh (defendant No. 3), Rattan Singh (defendantNo. 4), Narinder Pal Singh (defendant No. 5) and Surjit Singh (defendantNo. 6). Harcharan Kaur (defendant No. 1) is the wife of defendant No.C4 and the step sister-in-law of the plaintiff. Nirmal Gill (respondentherein) is daughter and the legal representative of the plaintiff (JoginderKaur) and Charanjit Singh is her (plaintiff’s) son.

4. Harbans Singh was the owner of various stretches of land atNawanshahr, Jalandhar and Hoshiarpur which, upon his death in theDyear 1963, devolved upon the plaintiff, her step brothers - defendantNos. 3 to 6 and her step mother in six equal shares.

5. The plaintiff and the defendant Nos. 3 to 6 had cordial relationsand the plaintiff used to frequently visit her maternal home.

E6. The dispute between the parties pertains to a General Powerof Attorney (GPA) purported to have been executed by the plaintiff on28.06.1990[3] in favour of defendant No. 1 and consequently sale deedsexecuted by defendant No. 1 as an attorney of the plaintiff. Sale deedsdated 29.06.1990 and 03.07.1990 purported to have been executed directlyby the plaintiff are also disputed by the plaintiff. The case of the plaintiffFis that the defendants sought her signatures on blank papers in the year1990 under the guise of preparation and processing of documents forthe purpose of getting the estate left behind by their father mutated intheir names. Reposing complete trust in her step brothers, the plaintiffsigned the papers and handed it over to the person tasked for that purposeGby the step brothers - defendant Nos. 3 to 6. Thereafter, the defendantNo. 3 visited plaintiff’s matrimonial home at Delhi asking her to come tovillage Kalyanpur in June 1990 for getting the said mutation effected.Accordingly, the plaintiff visited the village and stayed there for 3 or 4days.

2 for short, “the trial Court”H3 for short, “the 1990 GPA”

2 for short, “the trial Court”H3 for short, “the 1990 GPA”

7. Subsequent to the retirement of her husband in the year 1999,the plaintiff shifted to Mohali and being closer to her maternal home, thefrequency of her meeting the relatives increased. In a wedding functionof a relative at Jalandhar in February 2001, where the plaintiff and herstep brothers - defendant Nos. 3 to 6 were present, one of her cousinsRustam Singh had mentioned to her in a conversation that the defendantNos. 3 to 6 had sold a part of the property which they jointly held withthe plaintiff.

8. Upon learning about the said fact, the plaintiff made enquiriesin that regard including verified revenue records whence she learnt aboutexistence of a GPA purported to have been executed in 1963[4] by all thelegal heirs of Harbans Singh including the plaintiff, in favour of defendantNo. 3 and based on the said GPA, the estate of Harbans Singh hadalready been mutated in their joint names in November 1963. The plaintiffalso discovered the existence of aforementioned disputed documentswhich were executed without her knowledge, during her visit to thevillage in the year 1990. The plaintiff claimed the aforementioneddocuments to be a result of fraud perpetrated upon her by her stepbrothers - defendant Nos. 3 to 6 and her step sister-in-law - defendantNo. 1, who got those documents scribed, forged the plaintiff’s signatureonto them and got them registered.

9. On the other hand, the defendants denied that defendant No. 3went to Delhi to call the plaintiff to village Kalyanpur. They claimed thatthe plaintiff had come there on her own and stayed with the defendantNos. 3 to 6 for about a month. She had personally instructed the scribeto prepare the aforesaid documents and she had duly executed and gotthem registered. Therefore, all the transactions made by the plaintiffdirectly, as well as through her constituted attorney, are valid.

10. In this backdrop, the plaintiff instituted a suit being C.S. No.11/2001 before the trial Court on 23.04.2001 against the aforementioneddefendant Nos. 1, 3 to 6 and 19 others, seeking declaration as hereunder:

“i, That the sale-deed dated 05.07.2000 vide document No. 2213of land measuring 2 Marla 5 Sarsahi being 1/2 share of the landmeasuring 7 Marlas 2 Sarsahi bearing Khewat No. 1401, KhatauniNo. 2098, Khasra No. 6967 (3-5), situated in Village Premgarh,H.B. No. 247, Tehsil and District Hoshiarpur, as per Jamabandi 4 for short, “the 1963 GPA”

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for the year 1996-97 by defendant no. 1 as Mukhtar of the plaintiffin favour of defendant no. 2 is illegal, void and ineffective as againstthe rights of the plaintiff and that the mutation no. 13795 to theextent of 1/2 share of 65/68[th] share i.e. 1/2 share of 7 Marlas 2Sarsahi is null and void and is liable to be set aside and the plaintiffis not bound by the same.

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ii,That the plaintiff is owner in possession of the land measuring 9Marla out of the land measuring 4 Kanals 13 Marla bearingKhewat No. 1400, Khatauni No. 2097, Khasra No. 2773/694 (0-11), 2774/694 (0-4), 2775/694 (0-1), 2776/694 (0-1), 2777/695 (0-3), 2778/695 (0-6), 2779/695 (0-8), Khewat No. 1463, KhatauniNo. 2166 to 2168, Khasra No. 689 (2-19) situated in Premgarh,Hoshiarpur, H.B. No. 247, Tehsil and District Hoshiarpur, as perJamabandi for the year 1996-97. And restraining the defendantno. 1 from alienating or transferring the land in dispute in anymanner on the basis of General power of attorney dt. 28.06.90.

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iii, That the sale deed dated 29.05.1990 in respect of the landmeasuring 39 Kanals 4 Marlas out of the land measuring 235Kanals 6 Marlas being 1/6 share out of the land measuring KahataNo. 46/60 to 67 and 36/56 Khasra Nos. 20R/21 (0-14), 21R/24/1(3-11), 23R/7 (5-11), 8/1 (2-13), 15/1 (1-6), 106//(0-14), 131 (2-E19), 16-R/17 (1-6), 25 (6-18), 16-R/16 (8-0), 17-R/13/2 (6-4), 14/1 (1-0), 21 (8-0), 22 (8-0), 23 (8-0), 24/1 (5-0), 24/2 (2-4), 25 (8-0), 18-R/11/1 (2-8), 23-R/8/2 (2-6), 24-R/1 (2-0), 10 (6-5), 11/1(1-14), 23-R/3/2 (5-40), 4 (8-0), 5 (8-0), 6 (7-12), 17-R/14/2 (6-4),15 (8-0), 16 (8-0), 17/1 (4-4), 17-R/17/2 (3-0), 18 (8-0), 19 (8-0),20 (8-0), 18-R/19 (8-0), 20 (8-0), 21 (8-0), 22 (8-0), 21-R/1/1 (7-F4)m, 4/2 (5-5), 23/2 (4-1), 25 (2-13), 22-R/5 (3-0), 21-R/23/2-min(1-3), 104/2 (0-2), 23-R/26 (0-14), 53//1 (2-7), situated in VillageKalyanpur, H.B. No. 144, Tehsil Dasuya, District Hoshiarpur isillegal, void and has been obtained by way of fraud and thedeclaration that the plaintiff is owner in possession of land in dispute.GIn the alternative suit of joint possession.

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iv, And declaration that the General Power of Attorney dated28.06.1990 obtained by defendant no. 1 in connivance with herhusband Rattan Singh defendant no. 4 is the result of fraud andthat the plaintiff is not bound by the same as well as any transactionmade by the defendant no. 1 on behalf of the plaintiff are also H

illegal and void and are liable to be set aside and that the defendantno. 1 has no power to act as General Attorney of the plaintiff.”

11. While the said suit was pending, the plaintiff discoveredexistence of more documents executed by her alleged attorney and thusfiled another suit being C.S. No. 173/2002 on 12.06.2002 before the trialCourt, wherein the defendant No. 4 was arrayed as defendant No. 1,defendant Nos. 3, 5 and 6 were arrayed as defendant Nos. 2 to 4respectively and defendant No. 1 was arrayed as defendant No. 11.Inder Pal Singh and Rajinder Kaur[5], who purchased the plot at Jalandharthrough the alleged attorney of the plaintiff, were arrayed as defendantNos. 9 and 10. The prayer in the said suit was for declaration ashereunder:

“i. That the sale deed and mutation no. 11395 regarding the landmeasuring 1 Kanal 6½ Marlas out of land measuring 6 Kanals 4Marlas bearing Khewat No. 602, Khatauni No. 662, Khasra No.85/17 (6-14) by defendant no. 11 as attorney of plaintiff in favourof defendant no. 8 situated in Village Bajwara, H.B. No. 355,Tehsil and District Hoshiarpur, as per Jamabandi for the year 1995-96 is illegal, void and that the plaintiff is not bound by the same asthe same has been executed and got sanctioned in absence andwithout consent of the plaintiff.

ii. That the sale deed dated 03.07.1990 in respect of the landmeasuring 34 Kanals 5 Marlas Khasra Nos. 32-R/13/3 (2-12), 14(8-0), 15/1 (4-16), 16 (2-10), 17 (3-11), 18/1 (1-9), 12//13/2 (0-9),14/1 (0-9), 18/2/1 (2-19), 23 (5-3), 24/1/1 (5-9), 24/2/1 (1-2), 25/2/1(0-8), 12-R/15/2 (4-18), 16 (8-0), 17/1 (7-13), 18/1/1(2-8), 25/1/1 (5-16), 13//20 (8-0), 21 (8-0), 22 (8-0), 23/1 (4-12), 27/17/2 (0-19), 18/1 (1-10), 18/2 (0-19), 23/1 (5-10), 23/2 (1-12), 27/24/1 (1-14), 32//3/2 (5-13), 4/1 (1-3), 4/6 (0-2), 17//13 (less than one Marla),18//3 (0-5), 4 (2-16), 5/1 (0-1), 17//1/1 (3-10), 2/1 (7-6), 3/1 (4-12), 8/2/1 (3-3), 9/1 (0-18), 24//6/2/1 (5-15), 7/1/2/1 (2-5), 14/2 (0-11), 15/1 (4-18), 25//8 (0-10), 9 (5-0), 10-2-1 (5-19), 11/1 (4-18),12/2 (4-18), 13/1 (0-17), 13//11 (7-11), 12 (7-11), 13/1 (4-7), 13/18/2 (4-12), 19 (8-0), i.e. 1/6th share of 205 Kanals 9 Marlassituated in Village Mehandipur, H.B. No. 46, Tehsil Dasuya, DistrictHoshiarpur as per Jamabandi for the year 1983-84 and also as 5 for short, “the subsequent purchasers”

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5 for short, “the subsequent purchasers”

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per Jamabandi for the year 1994-95 is illegal, void withoutconsideration and executed in absence of the plaintiff by producingother lady by the defendant no. 1 in collusion with defendant no.11 and his wife and the plaintiff is not bound by the same and isowner in possession of the said land.

iii. That the sale deed in favour of defendant no. 7 dated 20.05.1996registered on 22.05.1996 in respect of the land measuring 2 Kanal10 Marlas out of land measuring 14 Kanals 18 Marlas bearingKhewat No. 107, Khatauni No. 148, Khasra No. 13//1 (6-18), 14-R/5 (8-0), now Khewat No. 123 and Khatauni No. 140 and thesame khasra number as per Jamabandi for the year 1997-98executed by defendant no. 11 situated in Village Sareenpur, H.B.No. 139, is illegal, void and without the consent of the plaintiffand the same is executed in the absence of plaintiff by playingfraud on the plaintiff and the plaintiff is owner of the said property.

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iv. That the sale deed dated 18.03.1996 in favour of defendant no.9 executed by defendant no. 11 in respect of plot bearing no. 373-R to the extent of 1/12 share in front of which there is a roadbehind house no. 378-Land other side 373-L owned by MangatSingh and Avtar Singh and other side is H.No. 372-L owned byMool Chand Bhandari situated in Model Town, Jalandhar, as persite plan attached with the plaint is illegal, void and without theconsent of the plaintiff.

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v. That the sale deed dated 18.03.1996 registered on 21.03.1996in favour of defendant no. 10 executed by defendant no. 11 inrespect of 1/12 share as Mukhtar by defendant no. 11 is illegaland void and without consideration and without the consent of theFplaintiff, house bounded as:

Front : Road;

Behind : Property of H.No. 378-L;

One side present No. 372-L owned by Mool Chand Bhandari; G

One side 373-L owned by Mangat Singh and Avtar Singh; situated in Model Town, Jalandhar, shown red in the site planattached.

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IN THE ALTERNATIVE suit for joint possession of the propertiesas detailed in the heading (i) to (iii) and also declaring that theplaintiff and defendant no. 9 and 10 are in joint possession as co-sharers of the property Nos. (iv) and (v).”

12. Both the suits were resisted by defendant No. 1 and defendantNos. 3 to 6. The subsequent purchasers also contested the suits by filingtheir written statement in C.S. No. 173/2002. On the basis of rivalpleadings, the trial Court framed issues in the aforementioned suits asfollows:

Issues in C.S. No. 11/2001-

“1. Whether the Plaintiff is entitled for a decree of declaration asprayed for? OPD

2. Whether the suit is not maintainable in the present form? OPD

3. Whether the suit is within limitation? OPP

4. Relief.”

Issues in C.S. No. 173/2002-

“1. Whether the plaintiff is entitled to declaration as prayed for?OPP

2. Whether the sale deeds alleged by the plaintiff are null andvoid? OPP

3. Whether the plaintiff is entitled to joint possession as alternativerelief as prayed for? OPP

4. Whether the suit of the plaintiff is not maintainable? OPD

5. Whether the suit of the plaintiff is barred by limitation? OPD

6. Relief.”

13. The aforementioned suits came to be clubbed and evidencewas recorded in the leading suit being C.S. No. 11/2001. After analyzingthe evidence on record, the trial Court dismissed both the suits of theplaintiff vide a common judgment and decree dated 03.01.2009.

14. Aggrieved by this decision, the plaintiff preferred Civil AppealNos. 3 and 4 both of 2009 against C.S. No. 11/2001 and C.S. No. 173/2002 respectively before the Additional District Judge (Ad-hoc), Fast A

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ATrack Court – I, Hoshiarpur[6]. During the pendency of the appeals, theplaintiff expired and since then came to be represented by her legalrepresentative Nirmal Gill (respondent No. 1 herein). The first appellateCourt once again appreciated the evidence on record and after elaborateanalysis, whilst upholding the findings of the trial Court on material issues,vide its judgment and decree dated 30.11.2011, partly modified the decisionBof the trial Court in C.S. No. 11/2001. The first appellate Court waspleased to reverse the conclusion of the trial Court limited to subjectland admeasuring 9 marlas on the finding that the jamabandi reflectsplaintiff’s name recorded as co-owner in possession of the said property.Finally, the first appellate Court concluded as under:C“48. In view of my above discussion the appeal is partly acceptedto the extent that the appellant-plaintiff is owner in possession ofland measuring 9 marlas out of the land measuring 4 Kanals 13Mis. As fully detailed in the sub head note (ii) of the plaint.Therefore, the findings of the learned trial Court with regard toDthis effect only are reversed and set aside. However, there isnothing on record calling interference of this court in the remainingfindings arrived at by the Ld. Trial Court which are based on thecorrect appreciation of facts and evidence on the file. No orderas to costs. Decree sheet be prepared. The learned lower courtrecord be returned and appeal file be consigned to the recordEroom.”The first appellate Court vide another judgment of even date,however, upheld the judgment of the trial Court in reference to C.S. No.172/2002 in toto.F15. Nirmal Gill (respondent No. 1) filed second appeals beforethe High Court being R.S.A. No. 2901/2012 and R.S.A. No. 3881/2012against Civil Appeal No. 3/2009 and Civil Appeal No. 4/2009 respectively.While admitting the second appeal, the High Court formulated twoquestions as substantial questions of law. The same read thus:

G“1. Whether the findings of the learned Courts below aresustainable in view of the fact that the question of fraud wasapparent?

2. Whether the findings of the learned courts below are inaccordance with the settled provisions of law and the questions H6 for short, “the first appellate Court”

of law and the question of fraud and limitation had been wronglydecided by the courts below?”

16. After reappreciating the factual matrix and the evidence onrecord, the High Court opined that the trial Court as well as the firstappellate Court committed manifest error and misapplied the settled legalposition. On this finding, the High Court went on to reverse the concurrentopinion of two Courts.

17. Being aggrieved, the defendant Nos. 1, 4 to 6 and the subsequentpurchasers approached this Court by way of present appeals. The formerset of appeals [arising out of SLP(C) Nos. 21326-21327/2019] had beenpreferred by defendant Nos. 1, 4 to 6 and the latter [arising out of SLP(C)Nos. 29775-29776/2019] by the subsequent purchasers.

18. According to the defendant Nos. 1, 4 to 6, interference by theHigh Court in the present matter was unwarranted as the same did notinvolve any substantial question of law. It was urged that judgments ofthe trial Court, as well as, the first appellate Court have been passedafter proper appreciation of evidence, therefore, the High Court oughtnot to have interfered with the concurrent findings of facts – as re-appreciation of evidence is not permissible in second appeal. It wasthen argued that the plea of fraud was not taken in plaint in terms ofOrder 6 Rule 4 of the Civil Procedure Code[7] and thus, the same cannotbe considered. On merits, the aforesaid defendants contended that theevidence of the plaintiff was self-contradictory, as she first claimed thather signatures were taken on blank papers and then denied her signaturesoccurring on the 1990 GPA. The plea that the signatures were taken onblank papers was not substantiated as the 1990 GPA was executed onstamp papers. Further, the High Court observed that there was no needof the 1990 GPA when the 1963 GPA was in existence, without notingthat the 1963 GPA was jointly executed by all the legal heirs of HarbansSingh; while the 1990 GPA was exclusively executed by the plaintiff inreference to her share in the suit property. The High Court then notedthat the defendant No. 1 did not lead evidence to avoid being crossexamined whilst ignoring the fact that she was residing abroad at therelevant time. The signatures of the plaintiff as well as the attestingwitness Teja Singh Lamberdar were examined by expert Arvind Sood(DW7) and he had opined that the same are genuine. As regards the AB

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Aaddress of the plaintiff wrongly mentioned in the 1990 GPA as 775 insteadof 875, it was argued that the plaintiff denied her address only to supporther case. The defendant No. 4 had categorically deposed in his evidencethat the plaintiff had been living at 775 from 1987 to 1995. Further, theplaintiff’s witness - PW4 had read over the recitals of the 1990 GPA tothe plaintiff, who appended her signatures upon being satisfied about itsBcorrectness. The High Court exceeded its jurisdiction in observing thatPW4 was not declared hostile due to reasons best known to plaintiff’scounsel; and disregarding his evidence merely because he went to schoolwith the defendant No. 4. The aforesaid defendants then urged that thepayment of consideration received in lieu of sales made through theCattorney was duly passed on to the plaintiff. Regarding the aspect ofpayment of Rs.5 lakhs to son of the plaintiff, Charanjit Singh, the samewas not raised before the trial Court. Further, if he had carried the saidcash with him from Delhi to Punjab, then there was no reason why hecould not carry it back. As regards rights of the subsequent purchasers,it was urged that there was no dispute till 2001 and therefore, the aforesaidDpurchasers could not have doubted before purchasing.

19. The subsequent purchasers would submit that before purchasingthe plot at Jalandhar, they duly verified the title deeds as also thecorrectness and genuineness of the 1990 GPA. The 1990 GPA is aregistered document and enquiries were made by verifying the same inEthe Sub-Registrar’s office and only after being satisfied, the said plotwas purchased bonafide for consideration.

20. The argument put forth by Nirmal Gill (respondent No. 1 -plaintiff) was that the High Court had rightly reversed the decisions ofthe trial Court and the first appellate Court, which were contrary toFevidence brought on record and against the settled principles of law. Itwas submitted that after the death of Harbans Singh, defendant Nos. 3and 4 were taking up the cultivation of the joint land with permission ofthe plaintiff, which shows that they enjoyed active confidence of theplaintiff. It was submitted that the plaintiff had never executed any GPAGor sale deed in favour of the defendants. It was urged that the 1990GPA was laden with many discrepancies which prove it being a productof fraud and forgery. The address of the plaintiff had wrongly beenmentioned as 775 instead of 875 in the 1990 GPA as well as in the stampvendor’s record. Further, the scribe (PW4) who claimed to have preparedit on the instructions of the plaintiff had failed to identify the plaintiff.H

Moreover, the PW4 was admittedly known to the defendant No. 4 sincetheir school days. There appeared to be an alteration to the date ofexecution of the 1990 GPA and the serial number of the stamp paper,which showed that the same was done to suit the defendants. In regardto the documents registered on 29.06.1990, it was submitted that PW4in his register had entered the 1990 GPA at Serial No. 390 after enteringsale deed at Serial No. 388 and Special Power of Attorney in favour ofdefendant No. 1 at Serial No. 389, which defies reason that plaintiff firstsold land to the defendant Nos. 3 and 4 and then executed GPA in respectof the said land in favour of defendant No. 1.

21. It was then contended that the attesting witnesses weredefendants’ men and were not known to the plaintiff. The reason forexecution of the 1990 GPA stated in its recitals was that the plaintiffwas unable to look after the properties being a woman and then it was inturn executed in favour of another woman, defendant No. 1. The plaintiff’sphotograph and thumb impression were also not affixed on the GPA andthe same appears to have been registered by impersonating plaintiff.The handwriting expert Jassy Anand (PW10) had opined that thesignatures were a result of copied forgery. With regard to the sale deeds,it was urged that the proof that the sale deeds were fabricated is that theconsideration of the alleged sales had never been passed on to the plaintiff.It was pointed out that the defendants had mortgaged the joint landsseveral times without plaintiff’s consent as they were in need of money,to highlight the fact that they did not possess the means to purchase thelands for consideration. It was submitted that the defendants attemptedto show that the consideration was paid out of proceeds received bysale of their mother’s property, however there was no evidence on recordas to existence of any such property. Moreover, the attesting witness ofthe sale deeds could not identify the plaintiff. Similarly, the subsequentpurchasers also could not identify the plaintiff. They had also failed toshowcase that attempts were made in order to ascertain the genuinenessof the 1990 GPA or to contact the plaintiff. The consideration of her stepbrothers/defendants was paid in their own names while the share ofconsideration of plaintiff was paid in the name of defendant No. 1. Thedefendant No. 4 also tried to pass off Charanjit Singh’s money returnedto him as sale consideration received by him on behalf of the plaintiff inrespect of sales executed by defendant No. 1. Further, it was submittedthat the Special Power of Attorney dated 29.06.1990 could not bechallenged as the same was not available in the Sub-Registrar’s office AB

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Aand was not produced by the defendants on record. The 1963 GPAcould not be challenged, being a document more than thirty years old.The plaintiff and the defendant Nos. 3 to 6 were on cordial terms andhence they were in a fiduciary relationship with the plaintiff, therefore,the burden of proving that there was no presence of any fraud would lieon the defendants, which they failed to discharge.B

22. We have heard Mr. T.S. Doabia, learned Senior counsel andMr. Jagjit Singh Chhabra, learned counsel for defendant Nos. 1 and 3 to6, Mr. Subhashish Bhowmik, learned counsel for the subsequentpurchasers and Nirmal Gill, who appeared in person, as the legalrepresentative of the plaintiff.C23. The questions that arise for our consideration in the presentappeals are:

1. Whether the suits filed by the plaintiff were within limitation?

2. Whether the 1990 GPA and sale deeds dated 29.06.1990 andD03.07.1990 purported to have been executed by the plaintiff is aresult of fraud and forgery or whether the same had been executedby the plaintiff herself?

24. Before venturing into the question of limitation, we deem itappropriate to examine the issue of fraud and its knowledge, which willEgo to the root of the case.

I. FRAUD

25. The fraud in the present lis is allegedly committed in respectof the 1990 GPA executed on 28.06.1990 and registered on 29.06.1990,and the Sale deeds executed and registered on 29.06.1990 and onF03.07.1990 respectively. We may examine the findings in respect ofthese documents separately.

Fraud in respect of the 1990 GPA and sale deed dated29.06.1990

G26. The plaintiff had pleaded that defendant No. 3 had come toDelhi to call her to village for the purpose of mutation of their father’sestate and accordingly, she had visited the village whereat the defendantsobtained her signatures on blank papers on the pretext of preparingdocuments for mutation. When she learnt about the existence of the1990 GPA and the sale deed, she verily believed that the said blankH

papers had been misused. However, upon production of the original GPAby the defendants during trial, she claimed that the said document is notscribed upon the blank signed papers and was instead a product offorgery and that the registration was done by impersonation.

27. In order to prove that the 1990 GPA was not executed by her,the plaintiff pointed out the discrepancies with respect to the addressand alteration of the date of execution. Further, it was contended that ifthe reason for execution was that plaintiff is a woman, it defied logic toexecute the same in favour of another woman. Reliance was placed onthe testimony of the scribe (PW4), wherein he had stated that he wouldenter the documents in his register in order of execution, whereas the1990 GPA which was allegedly executed on 28.09.1990 but had beenentered in his register after the sale deed of 29.09.1990. The plaintiffalso claimed that the attesting witnesses were not known to her.

28. Per contra, the defendants relying upon the testimony of thescribe (plaintiff’s witness - PW4), would urge that he (PW4) had preparedthe aforesaid documents as per the instructions of the plaintiff. Thedefendants got the admitted signatures of Teja Singh Lamberdar, one ofthe attesting witnesses of the aforesaid documents, compared by thehandwriting expert (DW7) and relied upon his opinion. The defendantshad further relied upon the testimonies of Kultar Singh (DW2) and AvtarSingh (DW4), who identified the signatures of Teja Singh Lamberdar.

29. The trial Court while dealing with the aforesaid issue hadfound that the plaintiff was present in the village at the time of executionof the 1990 GPA and the sale deed dated 29.06.1990. Further, the stateddocuments scribed on the stamp papers purchased in name of the plaintiff,bear her signatures and endorsements made by the Sub-Registrar,evidencing its registration. Therefore, it was for the plaintiff to bring onrecord facts and circumstances under which fraud had been played. Itwas observed that had the plaintiff signed on blank papers for mutation,she would have enquired regarding the status thereof. The trial Courtalso noted that the signatures of the attesting witnesses were identifiedand proved. The trial Court then analysed the testimony of the scribe(PW4) that he had prepared the documents upon instructions of theplaintiff and read them over to her, and the plaintiff after admittingcorrectness of the documents had appended her signatures. The trialCourt went on to observe that the scribe was plaintiff’s own witnessand had not been declared hostile. Further, the plaintiff made no attempt A

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Ato seek explanation from her witness (PW4) as to the sequence of theentries in his register and also as to the discrepancies in the 1990 GPA,in absence whereof, the testimony of PW4 militated against the plaintiff.The trial Court then noted that the signature of Teja Singh was proved tobe genuine by DW2, DW4 and DW7 and thus concluded that the 1990GPA and the sale deed stood proved. The relevant extracts of theBjudgment of the trial Court are reproduced below:

“48. Further, in my opinion, if as per the plaintiff, she gave hersignatures on blank papers in the year 1990 for the purposes ofsanctioning of mutation of inheritance, then whether she askedfrom her step brothers about those proceedings afterwards. PlaintiffCis an educated lady. She knows the things very well. There is nosuch thing on the file that after giving her signatures on blankpapers as alleged by her, she ever made any effort to ask her stepbrothers about those mutation proceedings. It does not appeal toreason that plaintiff would remain mum for such long period andDwould not ask anything about those proceedings from thedefendants till as per the contention of the plaintiff, she came toknow about the execution of power of attorney in the year 2001in some family function.

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51. ... The original power of attorney was put to Joginder Kaurduring her cross-examination but she stated that it does not bearher signatures anywhere and she also replied that she need notsee the original for this purpose because her signatures wereobtained on blank papers at the instance of some person who saidFhe would made said writing on it.

52. Here at this juncture I would like to make reference of statementof PW4 Balkar Singh because his reference would clinch thematter in controversy. PW-4 Balkar Singh is a deed writer atTehsil Complex Dasuya. This witness in his examination in chiefGstated that he personally knows Joginder Kaur plaintiff and RattanSingh. ...

53. The cross-examination of this witness is also relevant to bediscussed. In his cross-examination, he has categorically statedthat he scribed the document as the instance of Joginder Kaur,after scribing the power of attorney at his seat, he read over it to H

the parties, and then parties after admitting it to be correct puttheir signatures in the presence of the attesting witnesses. Hecategorically stated that Joginder Kaur plaintiff in his presenceput her signatures in English. ...

64. Further the Learned Counsel for the plaintiff raised the pointthat when the plaintiff had not admitted the execution of power ofattorney dated 28.06.1990 registered on 29.06.1990, then thedefendant was required to examine the attesting witnesses of thisdocument and in case of failure of non-examining of any of theattesting witnesses, the adverse inference should be taken againstthe defendants. Then at this juncture the Learned Defence Counselraised the point that original attorney dated 28.06.90 was witnessedby Teja Singh Lambardar and Gurcharan Singh son of Gian Singhresident of Village Ludiani. He raised the point that Teja SinghLambardar had since died. The defendant examined DW.2 KultarSingh who deposed to this effect that the sale deed dated25.01.1984 Ex. DW3/A was executed and Teja Singh Lambardarwas one of the attesting witness of the same. Similarly, KultarSingh DW.2 who was one of the executants of the sale deed Ex.DW3/A has identified his signature as well as signatures of TejaSingh Lambardar on the sale deed dated Ex. DW3/A and DW.4Avatar Singh had identified the signatures of Teja Singh Lambardaron the sale deed dated 24.12.1981 Ex. DW2/A in Urdu script.DW.5 Gurdial Singh deposed that he purchased the land measuring15 Kanals 7 Marlas from Teja Singh son of Bhag Singh and thatTeja Singh vendor was Lambardar of Village Kalyanpur and heidentified his signatures on the sale deed dated 15.06.1983 Ex.D5 and he further raised the point that DW.7 Arvind Sood theHand writing Expert of the defendants got compared thesignatures of Teja Singh appearing on the power of attorney dated28.06.1990 with these signatures appearing on the above referreddocuments and in his report Ex. DW7/A stated that the questionedsignatures as well as the disputed signatures are of one of thesame person...”

30. The first appellate Court concurred with the trial Court’s findingsand had held that a bare perusal of the evidence reveals that the 1990GPA was executed by the plaintiff. Further, the haphazard entries made A

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Aby the scribe will be of no avail, much less it would not disprove theregistered documents. Further, the defendants cannot be burdened withthe actions of the scribe, who was the plaintiff’s witness.

31. While reversing the findings of the trial Court and the firstappellate Court, the High Court had observed that if the plaintiff couldBbe available for execution of the sale deeds, it is unfathomable that theplaintiff would have ever executed the GPA. It further held that thetestimony of PW4 cannot be believed as he was known to defendantNo. 4 since his school days. It was observed that the 1990 GPA appearsto have been executed by fraud, in the following words:

C“In the present case, it is relevant to note that the General Powerof Attorney dated 28.06.1990 contains a recital that it is beingexecuted by the plaintiff as she is unable to look after the affairsregarding the land being a woman. In such a situation, it is opposedto all probabilities and common sense that the General Power ofAttorney would have been executed in favour of another womanDHarcharan Kaur, who is none other but the wife of Rattan Singh,the step brother of the plaintiff. In case, the power of attorneyhad to be executed, it would have been in favour of the brotherhimself. It is not difficult to appreciate that the plaintiff - JoginderKaur being the child of Harbans Singh from his first marriageEwould have looked to her four step brothers being her parentalfamily. It is natural that she would always look to them to keepalive that link to her father through her step brothers, especiallyas she was treated with love and affection, obviously showeredupon her by them for considerations, which are apparent from therecord. This is particularly understandable keeping in view theFsocietal norms and values especially prevalent at that time. Thedefendants have admitted that the plaintiff maintained contact withher step brothers and would often visit and stay with them. Thefraudulent intention and dishonest plan of the said defendants isapparent and can easily be inferred from the evidence on record.GAt this stage, it is necessary to make a mention of another GeneralPower of Attorney 08.10.1963, purportedly executed by theplaintiff in favour of her brother Gurdial Singh. In case, such powerof attorney by the plaintiff alongwith others, already stood executed,there was no requirement whatsoever for having executed anotherHpower of attorney in the year 1990. Address of plaintiff - Joginder Kaur was wrongly mentioned in the power of attorney as 775,Vikas Kunj/Vikas Puri, Delhi whereas there is no palpable reasonfor having mentioned an incorrect address in the power of attorney.There is merit in the argument that a fictitious address wasdeliberately inserted so that a third person may not be able toeven contact the plaintiff.

Furthermore, reliance by the learned courts below on the testimonyof Balkar Singh PW 4, to accept the veracity of the General Powerof Attorney and two of the sale deeds is clearly misplaced. This isso for the reason that it is a matter of record that PW 4 BalkarSingh was well known to the defendant Rattan Singh. PW 4 hastestified that he knew Rattan Singh since school. Sequence of theentries in the register of PW 4, do raise a suspicion regarding theexecution of the documents in question. PW 4 has testified thatwhenever he scribes a document, he carries out the necessaryentry in his register and the documents are entered in the order inwhich he scribes them. It is a matter of record that the entryregarding sale deed dated 29.06.1990 is scribed at serial No. 388i.e. prior to the entry at No. 390 in respect to the General Powerof Attorney claimed to have been scribed on 28.06.1990. There isanother special power of attorney purported to be executed bythe plaintiff in favour of Harcharan Kaur wife of Rattan Singh.

There is a cutting in date on the power of attorney insofar as thedate ‘28’ is concerned. ... The said witness was not declaredhostile as per the appellant due to reasons best known to theircounsel.

... In case, the plaintiff could be available for execution of the saidsale deeds, it does not stand to reason, as to why she would haveever executed the General Power of Attorney in favour ofHarcharan Kaur. Vide the said sale deeds, land in question wastransferred to her step brothers Gurdial Singh and Rattan Singh.

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… The attesting witnesses of the sale deed dated 29.06.1990were not examined. It bears reiteration that the above said factshave been discussed only to bring out the fraud perpetuated onthe plaintiff - Joginder Kaur. …”

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A32. To appreciate the findings arrived at by the Courts below, wemust first see on whom the onus of proof lies. The record reveals thatthe disputed documents are registered. We are, therefore, guided by thesettled legal principle that a document is presumed to be genuine if thesame is registered, as held by this Court in Prem Singh and Ors. v.Birbal and Ors.[8].The relevant portion of the said decision reads asBbelow:

“27. There is a presumption that a registered document is validlyexecuted. A registered document, therefore, prima facie wouldbe valid in law. The onus of proof, thus, would be on a person wholeads evidence to rebut the presumption. In the instant case,CRespondent 1 has not been able to rebut the said presumption.”

In view thereof, in the present cases, the initial onus was on theplaintiff, who had challenged the stated registered document.D33. Be that as it may, before examining whether the plaintiffdischarged that onus and thus shifted it on the defendants, we may takenote of procedure prescribed for proof of execution of document. In thisregard, we refer to Section 68 of the Indian Evidence Act, 1872[9]. Thesame is reproduced hereunder:E“68.- Proof of execution of document required by law to beattested. - If a document is required by law to be attested, itshall not be used as evidence until one attesting witness at leasthas been called for the purpose of proving its execution, if therebe an attesting witness alive, and subject to the process of theFCourt and capable of giving evidence:

Provided that it shall not be necessary to call an attestingwitness in proof of the execution of any document,not beinga will, which has been registered in accordance with theprovisions of the Indian Registration Act, 1908 (16 of 1908),unless its execution by the person by whom it purports toGhave been executed is specifically denied.”

8 (2006) 5 SCC 353H9 For short, “the 1872 Act”

34. As the execution of the 1990 GPA and the sale deeds in thepresent cases is denied by the plaintiff, it became necessary for theplaintiff to examine the attesting witnesses of the disputed documents toestablish her allegation about its non-execution. For, the documents hadbeen registered on 29.06.1990 and came to be attested by Teja SinghLamberdar and Gurcharan Singh. However, both the attesting witnesseswere not examined. Indeed, Teja Singh had since died but there is nothingon record regarding availability of Gurcharan Singh. Thus, we must nowadvert to Section 69 of the 1872 Act which provides for proof when noattesting witness is found. The same is extracted below:

“69.- Proof where no attesting witness found.- If no suchattesting witness can be found, or if the document purports tohave been executed in the United Kingdom, it must be provedthat the attestation of one attesting witness at least is in hishandwriting, and that the signature of the person executing thedocument is in the hand writing of that person.”

35. The fact that the subject documents were executed by plaintiffand attested by Teja Singh has been established from record in the shapeof evidence of PW4 as well as defendant No. 4. The signatures of TejaSingh were identified by DW2, who deposed that he was conversantwith Urdu language and could identify the signature of Teja Singh, whichwas in Urdu language. Further, DW4 deposed that he used to pay landrevenue to Teja Singh and received receipts from him. Moreover, thehandwriting expert (DW7) had also compared the admitted signaturesof Teja Singh with those on the disputed documents and opined that itwas signed by him, while the expert produced by the plaintiff as PW10had not examined the admitted signatures of Teja Singh. Therefore, thesignatures of Teja Singh stood proved as per the opinion of expert (DW7)and stood corroborated by DW2 and DW4, independent witnesses.

36. We may now usefully advert to Section 71 of the said Act,which reads:

“71.- Proof when attesting witness denies the execution.- Ifthe attesting witness denies or does not recollect the execution ofthe document, its execution may be proved by other evidence.”

37. Here, the evidence of plaintiff’s witness-PW4 comes to aidof the defendants as the same unveils that the stated documents were AB

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Aprepared on the basis of instructions of the plaintiff and had been dulyexecuted by her in the presence of the attesting witnesses.

38. At this stage, it may be noted that the trial Court and the firstappellate Court had relied upon the evidence of PW4. The High Court,however, proceeded on surmises and conjectures and took a view whichBis perverse and tenuous. In that, the ground on which the High Courtrejected the evidence of PW4 is that he was known to the defendantNo. 4 since his school days. We do not find it to be a correct approachto disregard the credible testimony of the witness examined by the plaintiffherself (without declaring him as a hostile witness) and especially whenit had come on record that the said scribe is a regular deed writer at theCTehsil complex, Dasuya. Notably, PW4 had not been declared hostile atthe instance of the plaintiff and as such, this part of his testimony wouldbe staring at the plaintiff.

39. The plaintiff had then contended that the burden of provingthat there is no involvement of fraud would be on the defendants as theyDenjoyed active confidence of the plaintiff. To establish the presence ofactive confidence, the plaintiff relied upon the testimony of DW2 andDW4 whilst pointing out that the defendants were cultivating the jointlands. The plaintiff also contended that the same was with her permission.The fact that she was on visiting terms with the defendants also showsEthe existence of trust and hunky-dory between the parties.

40. The trial Court had justly placed the initial burden of proofupon the plaintiff as it was her case that the subject documents wereforged or product of fraud and moreso because the documents bore hersignature. The first appellate Court did not elaborate on that aspect.FEven assuming that the burden had shifted upon the defendants, thewitness identifying signatures of the dead attesting witness was examinedby the defendants. Therefore, the documents stood proved and the burdenwas duly discharged by the defendants.

41. The High Court, however, went on to observe that defendantsGhad abused their position of active confidence, in the following words:

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The entire exercise indeed smacks of connivance,misrepresentation and fraud. This Court would be failing in itsduty, if the necessary inference is not drawn from the evidenceHon record. Present is a clear-cut case of an unsuspecting sister

being defrauded by her own step brothers/bhabi in whom she hadreposed implicit trust. It is a clear case of misuse and abuse of theposition of confidence held by the step brothers of the plaintiff.…”

The requirement regarding shifting of burden onto the defendantshad been succinctly discussed in Anil Rishi v. Gurbaksh Singh[10],whereinthis Court had held that for shifting the burden of proof, it would requiremore than merely pleading that the relationship is a fiduciary one and itmust be proved by producing tangible evidence. The relevant extract ofthe said decision is reproduced as thus:

“8. The initial burden of proof would be on the plaintiff in view ofSection 101 of the Evidence Act, which reads as under:

“101. Burden of proof.—Whoever desires any court to givejudgment as to any legal right or liability dependent on the existenceof facts which he asserts, must prove that those facts exist.

When a person is bound to prove the existence of any fact, it issaid that the burden of proof lies on that person.”

9. In terms of the said provision, the burden of proving the factrests on the party who substantially asserts the affirmative issuesand not the party who denies it. The said rule may not be universalin its application and there may be an exception thereto. Thelearned trial court and the High Court proceeded on the basis thatthe defendant was in a dominating position and there had been afiduciary relationship between the parties. The appellant in hiswritten statement denied and disputed the said averments madein the plaint.

10. Pleading is not evidence, far less proof. Issues are raised onthe basis of the pleadings. The defendant-appellant having notadmitted or acknowledged the fiduciary relationship between theparties, indisputably, the relationship between the parties itselfwould be an issue. The suit will fail if both the parties do notadduce any evidence, in view of Section 102 of the Evidence Act.Thus, ordinarily, the burden of proof would be on the party whoasserts the affirmative of the issue and it rests, after evidence isgone into, upon the party against whom, at the time the question A

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11. The fact that the defendant was in a dominant positionmust, thus, be proved by the plaintiff at the first instance.

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14. But before such a finding is arrived at, the averments as regardsalleged fiduciary relationship must be established before apresumption of undue influence against a person in position ofactive confidence is drawn. The factum of active confidenceshould also be established.

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15. Section 111 of the Evidence Act will apply when the bonafides of a transaction is in question but not when the real naturethereof is in question. The words “active confidence” indicatethat the relationship between the parties must be such that one isbound to protect the interests of the other.

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16. Thus, point for determination of binding interests or which arethe cases which come within the rule of active confidence wouldvary from case to case. If the plaintiff fails to prove the existenceof the fiduciary relationship or the position of active confidenceheld by the defendant-appellant, the burden would lie on him asEhe had alleged fraud. The trial court and the High Court, therefore,in our opinion, cannot be said to be correct in holding that withoutanything further, the burden of proof would be on the defendant.”

42. Let us now examine if the above requirement is satisfied inFthe fact situation of the present case and if the defendants enjoyed activeconfidence of the plaintiff. It is an admitted position that the plaintiff anddefendants always had cordial relationship and the plaintiff was on visitingterms. Further, the fact that the defendant Nos. 3 and 4 were cultivatingthe joint lands is also not disputed. The defendant Nos. 3 and 4 wereGcultivating the lands along with their father Harbans Singh and continuedto do so even after his death. The principle underlying the reported decisionmust come to the aid of defendants as the plaintiff had failed to provethe fact of misuse of trust by the defendants as such.

43. Further, the plaintiff attempted to project the 1990 GPA as aHdoubtful document stating that the same had discrepancies with respect to the address and the alteration of the date of execution. In absence ofthe attesting witness and in view of the evidence of PW4 scribe, it wasfor the plaintiff to get PW4 declared hostile and cross examine him inorder to prove that he had deposed falsely, which the plaintiff had failedto do.

44. Emphasis was laid on the entries made in the PW4 scribe’sregister showing the 1990 GPA to have been executed prior to the saledeed and it was submitted that there is no logic in first giving GPA andthen executing sale deed if the plaintiff was available to execute theaforesaid documents. However, the same is of no avail to the plaintiff asthe 1990 GPA was in respect of all her land holdings, whereas the salewas made only in respect of land situate at Kalyanpur village.

45. The other reason weighed with the High Court that 1990 GPAwas allegedly executed by the plaintiff as she being a woman is also ofno consequence as the words ‘being a lady’ were preceded by ‘I am oldand weak’. Thus, the primary reason for executing the 1990 GPA wasthat the plaintiff was not residing in Punjab at the relevant point of timeand that she was old and weak, and thus unable to look after her propertysituate at Punjab. The stress laid upon the fact that a woman wasappointed in her place is, therefore, a matter of surmises and conjectures.

46. Suffice it to observe that the contention that the registration ofthe 1990 GPA as well as the sale deeds, had been effected byimpersonating the plaintiff has not been proved. No credible and tangibleevidence has been led in that regard. It is merely a bald plea set up bythe plaintiff.

47. The plaintiff’s denial of being acquainted with the attestingwitnesses, is, also a ruse and not genuine. For, one of the attestingwitnesses Teja Singh was a lamberdar of the village. A lamberdar’s jobis to collect revenue in respect of the lands and issue receipts and as apractice, the lamberdar is called for attesting documents. Thus, whenthe plaintiff admittedly used to visit village frequently, her denial in knowingTeja Singh is far-fetched. This is what two Courts had opined and beinga possible view, no interference by the High Court was warranted inthat regard. That is beyond the scope of second appeal, as held by thisCourt in Satya Gupta (Smt.) alias Madhu Gupta v. Brijesh Kumar[11].The relevant paragraph of the said decision is extracted hereunder:

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A“16. At the outset, we would like to point out that the findings onfacts by the lower appellate court as a final court of facts, arebased on appreciation of evidence and the same cannot be treatedas perverse or based on no evidence. That being the position, weare of the view that the High Court, after reappreciating theevidence and without finding that the conclusions reached by theBlower appellate court were not based on the evidence, reversedthe conclusions on facts on the ground that the view taken by itwas also a possible view on the facts. The High Court, it is wellsettled, while exercising jurisdiction under Section 100 CPC, cannotreverse the findings of the lower appellate court on facts merelyCon the ground that on the facts found by the lower appellate courtanother view was possible.”

Fraud in respect of sale deed dated 03.07.1990

48. Even with regard to the sale deed dated 03.07.1990, the plaintiffhad asserted that the same was not executed by her. It was then contendedDthat the sale consideration had not been passed on to her which makes itevident that the sale deed was never executed by her. The plaintiff reliedupon the testimony of defendant No. 4, wherein he had stated that thedefendants needed money and had taken loans on the joint lands, toprove that the defendants did not possess means to pay the saleEconsideration. Further, it was contended that the testimony of attestingwitness, Anoop Singh (DW3) cannot be considered as he failed to identifythe plaintiff.

49. In contrast, the defendants had claimed that the saleconsideration had been duly paid out of the sale proceeds received byFselling another land belonging to their mother. The defendants placedreliance on the testimonies of the scribe (PW4) and DW3.

50. The trial Court analysed the testimony of DW3 and noted thathe had clearly stated the plaintiff was known to him personally. He haddeposed that sale deed was executed by the plaintiff in his presence andGthe same was for a sum of Rs. 86,000/-. It was further held that thoughthe witness failed to identify the photographs of the plaintiff, adverseinference cannot be drawn as the sale deed was executed in the year1990 whereas the evidence was given in the year 2007.

51. The first appellate Court also agreed with the view taken bythe trial Court whilst observing that the plaintiff would not have executedHthe sale deed had she not received the sale consideration.

52. The High Court yet again deviated from the approach of thetrial Court and the first appellate Court and held that testimony of DW3was of no avail to the defendants to prove the said sale deed. Because,he had no clue regarding passing of consideration to the plaintiff. Further,the defendants had failed to prove the fact of handing over considerationamount to the plaintiff. Also, defendant No. 4 and DW3 denied eachother’s presence. The relevant portion of the High Court’s judgmentreads as under:

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… Testimony of DW 3 Anoop Singh, who is one of the attestingwitnesses of the sale deed dated 03.07.1990, is extremely tellingof the facts of the case. DW 3 though stated that the sale deed inquestion was read over to Joginder Kaur in his presence and inthe presence of other witness Teja Singh, Lambardar, could noteven identify the plaintiff. Therefore, it is apparent that his testimonyis not useful to the defendants for proving sale deed dated03.07.1990. He did not have a clue regarding the passing ofconsideration in this case. DW 6 Rattan Singh has asserted thatGurcharan Singh of Ludhiana was present. DW 3 and DW 6have denied each others presence at the time of execution of thesale deed. …”

53. Before analysing the evidence of DW3, it may be noted thatsince the sale deed requires attestation by two witnesses, as discussedabove, the same has to be proved as per procedure laid down underSection 68 of the 1872 Act.

54. The sale deed of 03.07.1990 had been attested by Teja SinghLamberdar and Anoop Singh (DW3). The attesting witness (DW3) wasexamined and he had deposed that the said sale deed was executed bythe plaintiff in his presence, as well as in presence of Teja Singh anddefendant No. 3. He had denied presence of any other person. He statedthat the sale consideration was paid at home directly and not in hispresence. Indeed, he had failed to identify plaintiff in photographs.

55. We may here refer to a decision of this Court in Damodar v.State of Rajasthan[12],wherein it has been held that a hypersensitiveapproach ought not be taken in cases where there has been a delay in A

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Arecording evidence. The relevant portion of the decision is extractedbelow:

“7. In order to consider the correctness of conclusions arrived atby the two courts below, it has to be seen whether evidence ofPW 15 has been rightly accepted to be truthful and reliable. SoBfar as PW 15 is concerned, it has to be noted that at the time ofoccurrence he was about 13 years of age and was a student.The incident is of October 1990. PW 15 was examined inAugust 1997 i.e. nearly after seven years. It cannot be lostsight of that long passage of time sometimes erases thememory and minute details are lost sight of. In thisCbackground, it has been stated that if a case is provedperfectly it is argued that it is artificial. If a case has someflaws inevitably because human beings are prone to err, itis argued that it is too imperfect. While, therefore, assessingthe evidence one has to keep realities in view and not adoptDa hypersensitive approach. The so-called discrepancies pointedout by the learned counsel for the appellants like the vehicle fromwhich the witness saw the approaching bus or with which part ofthe offending vehicle the cycle was hit are too trifle to affect thecredibility of PW 15’s evidence. Filtering out these minordiscrepancies, cream of the evidence remains on which theEcredibility of the evidence lies. That being so, the conclusionsarrived at by the two courts below on evaluation of evidence donot need any interference.”

FIn the present cases, the disputed documents were executed inthe year 1990 and the evidence of DW3 was recorded in the year 2007,after a passage of 17 long years. Thus, as discussed in the precedingparagraphs, the High Court erroneously doubted the evidence of DW3merely because he could not identify photographs of plaintiff and becausethe defendant No. 4 and DW3 did not mention each other’s presence atGthe time of execution.

56. Be that as it may, with reference to the said sale deed, thedefendant No. 4 deposed that he was present at the time of execution ofthe sale deed on 03.07.1990 which was executed by the plaintiff in favourof defendants No. 3 and himself. He stated that Teja Singh andHGurcharan Singh were also present.

57. To examine the correctness of opinion of the High Court indisregarding the testimony of DW3 (on the ground that he could notidentify the plaintiff and that the defendant No. 4 and DW3 denied eachother’s presence), we may refer to the definition of ‘attested’ underSection 3 of the Transfer of Property Act, 1882 which is reproducedbelow:

“3.- Interpretation Clause.- In this Act, unless there issomething repugnant in the subject or context,- …

“attested”, in relation to aninstrument, means and shall bedeemed always to have meant attested by two or morewitnesses each of whom has seen the executant sign oraffix his mark to the instrument, or has seen some other personsign the instrument in the presence and by the direction of theexecutant, or has received from the executant a personalacknowledgement of his signature or mark, or of the signature ofsuch other person, and each of whom has signed theinstrument in the presence of the executant; but it shall notbe necessary that more than one of such witnesses shall havebeen present at the same time, and no particular form of attestationshall be necessary.”

58. The disputed sale deed dated 03.07.1990 was signed by plaintiffas vendor and defendant No. 3 as vendee and in the presence of DW3and the other attesting witness Teja Singh. DW3 as an attesting witnesshad seen both plaintiff and defendant No. 3 signing the deed and he thenattested the sale deed. The High Court also failed to note that the otherattesting witness being dead and his signature having been identified byDW2 and DW4, and with the testimony of PW4 scribe, the evidence ofthe DW3 witness stood corroborated and therefore, the same could notbe disregarded.

59. In Jagdish Chand Sharma v. Narain Singh Saini (dead)through legal representatives & Ors.[13],this Court held as under:

“57.1. Viewed in premise, Section 71 of the 1872 Act has tobe necessarily accorded a strict interpretation. The two A

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contingencies permitting the play of this provision, namely,denial or failure to recollect the execution by the attestingwitness produced, thus a fortiori has to be extended ameaning to ensure that the limited liberty granted bySection 71 of the 1872 Act does not in any manner efface oremasculate the essence and efficacy of Section 63 of theAct and Section 68 of the 1872 Act. The distinction betweenfailure on the part of an attesting witness to prove the executionand attestation of a will and his or her denial of the said event orfailure to recollect the same, has to be essentially maintained.Any unwarranted indulgence, permitting extra liberal flexibility tothese two stipulations, would render the predication of Section 63of the Act and Section 68 of the 1872 Act, otiose. Thepropounder can be initiated to the benefit of Section 71 ofthe 1872 Act only if the attesting witness/witnesses, whois/are alive and is/are produced and in clear terms eitherdenies/deny the execution of the document or cannotrecollect the said incident. Not only, this witness/witnesses has/have to be credible and impartial, the evidence adduced ought todemonstrate unhesitant denial of the execution of the documentor authenticate real forgetfulness of such fact. If the testimonyevinces a casual account of the execution and attestation of thedocument disregardful of truth, and thereby fails to prove thesetwo essentials as per law, the propounder cannot be permitted toadduce other evidence under cover of Section 71 of the 1872Act. Such a sanction would not only be incompatible with thescheme of Section 63 of the Act read with Section 68 of the 1872Act but also would be extinctive of the paramountcy andsacrosanctity thereof, a consequence, not legislatively intended.If the evidence of the witnesses produced by thepropounder is inherently worthless and lacking in credibility,Section 71 of the 1872 Act cannot be invoked to bail him(the propounder) out of the situation to facilitate a rovingpursuit. In absence of any touch of truthfulness and genuinenessin the overall approach, this provision, which is not a substitute ofSection 63(c) of the Act and Section 68 of the 1872 Act, cannotbe invoked to supplement such failed speculative endeavour.”

60. It is noteworthy that defendant No. 4 had not signed the saledeed despite being a vendee. In Aloka Bose v. Parmatma Devi andOrs.[14], it has been held that signature of the vendee is not mandatory ina sale deed. The relevant portion of the said decision is extractedhereunder:

“18. In any agreement of sale, the terms are always negotiatedand thereafter reduced in the form of an agreement of sale andsigned by both parties or the vendor alone (unless it is by a seriesof offers and counter-offers by letters or other modes of recognisedcommunication). In India, an agreement of sale signed by thevendor alone and delivered to the purchaser, and accepted by thepurchaser, has always been considered to be a valid contract. Inthe event of breach by the vendor, it can be specifically enforcedby the purchaser. There is, however, no practice of purchaseralone signing an agreement of sale.

19. The defendant next contended that the agreement of sale inthis case (Ext. 2) was clearly in a form which required signaturesof both the vendor and purchaser. It is pointed out that theagreement begins as: “Agreement for sale between Kanika Boseand Parmatma Devi” and not an “Agreement of sale executed byKanika Bose in favour of Parmatma Devi”. Our attention is alsodrawn to the testimonium clause (the provision at the end of theinstrument stating when and by whom it was signed) of theagreement, which reads thus:

“In witnesses whereof, the parties hereto have hereunto setand subscribed their respective hands and seals on thesepresents.”

It is therefore contended that the agreement specificallycontemplated execution by both parties; and as it was not soexecuted, it was incomplete and unenforceable.

20. We have carefully examined the agreement (Ext. 2), aphotocopy of which is produced. The testimonium portion in theagreement is in an archaic form which has lost its meaning. Partiesno longer “subscribe their respective hands and seals”. It is truethat the format obviously contemplates signature by both parties.But it is clear that the intention of the parties was that it should be A

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Acomplete on signature by only the vendor. This is evident from thefact that the document is signed by the vendor and duly witnessedby four witnesses and was delivered to the purchaser. Apart froma separate endorsement made on the date of the agreement itself(7-9-1979) by the vendor acknowledging the receipt of Rs 2001as advance, it also contains a second endorsement (which is alsoBduly witnessed) made on 10-10-1979 by the vendor, acknowledgingthe receipt of a further sum of Rs 2000 and confirming that thetotal earnest money received was Rs 4001. This shows that thepurchaser accepted and acted in terms of the agreement whichwas signed, witnessed and delivered to her as a completeCinstrument and that she then obtained an endorsement thereon bythe vendor, in regard to second payment. If the agreement wasnot complete, the vendor would not have received a further amountand endorsed an acknowledgment thereon on 10-10-1979.

21. Apart from the above, the evidence of the witnessesDalso shows that there was a concluded contract. Therefore,even though the draftsman who prepared the agreementmight have used a format intended for execution by bothvendor and purchaser, the manner in which the parties hadproceeded, clearly demonstrated that it was intended to beexecuted only by the vendor alone.

E22. Thus we hold that the agreement of sale (Ext. 2) signedonly by the vendor was valid and enforceable by thepurchaser.”

F61. Since the defendant No. 4 has not signed the sale deed as avendee, his evidence cannot be discarded. In any case, the weight ofevidence of DW3 remains unassailable. Therefore, the testimony of DW3satisfies the requirements of the conditions required for a valid attestation.

62. The plaintiff also asserted that she had not received theGconsideration in relation to the stated transactions and that the defendantshad no means to pay the consideration. It has come on record that thedefendants had mortgaged the joint lands several times as they were inneed of money. Further, the defendant No. 4 after admitting to havemortgaged the land had said that he used that money to install tubewells H

and buy tractors. The said fact does not conclusively prove that they didnot possess funds as the said loans were obtained to make investmentson the joint lands and not on the personal property of the defendant No.4. Further, the defendant No. 4 had deposed that the sale considerationwas paid from the sale proceeds received by selling the land of theirmother in the village Ashrafpur. Since the attesting witness had provedthe execution of the sale deeds, the primary onus upon the plaintiff hadnot shifted unto the defendants. Further, the plaintiff was obliged torebut the positive evidence produced by the defendants regarding paymentof consideration amount to the plaintiff; but also ought to haveindependently proved her case of non-receipt of the consideration amount.

63. A priori, we hold that the diverse grounds urged by the plaintiffin disputing the 1990 GPA and the sale deeds dated 29.06.1990 and03.07.1990 are, as observed hitherto, unsubstantiated and untenable.

Expert Opinion

64. The plaintiff got her admitted signatures compared with thesignatures on the disputed documents by a handwriting expert, JassyAnand (PW10) who had come to a conclusion that the disputed signatureswere a result of copied forgery. On the contrary, the defendants hadalso got the same document examined by their expert, Arvind Sood(DW7), who had determined the disputed signatures to have been signedby plaintiff herself.

65. The trial Court and the first appellate Court had not consideredthe contrary opinions of the experts and chose to form their opinionbased on other evidence that has come on record. In our opinion, theexpert evidence produced by the plaintiff in reference to the signatureof the plaintiff is of no avail, in view of divergent opinions. The groundthat the documents were a result of copied forgery cannot be substantiatedonly on the basis of the opinion of expert (PW10). Even otherwise, theexpert opinions are not a binding piece of evidence and have to becorroborated with other pieces of evidence. Suffice it to say that theplaintiff failed to prove that her signatures on the subject documents areforged.

1963 GPA not challenged

66. Further, the 1963 GPA is claimed to have been discoveredduring the enquiries made by the plaintiff subsequent to attaining A

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Aknowledge of the fraud. However, the said GPA was never challengedby the plaintiff. The reason cited for not challenging the said GPA is thatthe document being a 30-year old document could not be challenged.

67. The trial Court had observed that the plaintiff in her crossexamination, gave evasive replies when confronted with the 1963 GPA,Bwhich bears her signature. She had also admitted that she was taken toTehsil office in 1963 after her father’s death. Therefore, it could besafely accepted that the plaintiff had executed the 1963 GPA and furthershe had knowledge of the sanction of mutation in pursuance of thatGPA. Paragraph 45 of the judgment of the trial Court is extracted below:

C“45. Further, another fact which reveals that plaintiff was havingknowledge regarding sanctioning of mutation of inheritance, isthat, prior to sanctioning of mutation of inheritance of deceasedHarbans Singh, she executed power of attorney along with otherdefendants dated 08.10.1963 Ex. D19 in favour of Gurdial Singhregarding the management of land and she admitted this thing inDher cross-examination that after the death of Harbans Singh, shewas taken to Tehsil Office and when she was shown that powerof attorney which bears her signatures on different points, shegave evasive reply.”

68. The first appellate Court and the High Court had not madeEany observation in that regard.

69. Since the 1963 GPA is a document which is more than 30years old, we may advert to Section 90 of the 1872 Act, which providesfor the presumption in favour of a 30-year old document. The same isextracted below:F

“90.- Presumption as to documents thirty years old.- Whereany document, purporting or proved to be thirty years old, isproduced from any custody which the Court in the particular caseconsiders proper, the Court may presume that the signature andevery other part of such document, which purports to be in theGhandwriting of any particular person, is in that persons handwriting,and, in the case of a document executed or attested, that it wasduly executed and attested by the persons by whom it purports tobe executed and attested.

Explanation.— Documents are said to be in proper custody ifthey are in the place in which, and under the care of the personwith whom, they would naturally be; but no custody is improper ifit is proved to have had a legitimate origin, or if the circumstancesof the particular case are such as to render such an origin probable.

This explanation applies also to section 81.”

70. The aforesaid provision employs the words ‘may presume’.Thus, we may now refer to Section 4 of the 1872 Act in order to see themode of dealing with the said presumption. The same is extractedhereunder:

“4.- “May Presume”.- Whenever it is provided by this Act thatthe Court may presume a fact, it may either regard such fact asproved, unless and until it is disproved, or may call for proof of it.”

71. The presumption in favour of a 30-year old document is,therefore, a rebuttable presumption. Nothing prevented the plaintiff torebut the presumption by leading appropriate evidence in order to disprovethe same. Since the plaintiff failed to do so, the said document would bebinding on the plaintiff. As a matter of fact, the parties had acted uponthe terms of the said document without any demur since 1963 and itwas, therefore, not open to resile therefrom at this distance of time.Hence, the trial Court was right in holding the 1963 GPA, to be a genuinedocument.

II. LIMITATION

72. The plaintiff asserted that she had attended a family functionin February, 2001 and in the said function, while she was interacting withone Rustam Singh, he disclosed that the defendants have sold a portionof the joint lands. Subsequently, she made enquiries in that regard. Assuch, she had inspected the jamabandis of the joint lands and thereupongot knowledge about the existence of the disputed documents. Immediatelyupon discovery of the said documents, she filed the suits. The suits arefiled within 3 years from the date of acquiring knowledge and are thuswithin limitation.

73. To support her case, the plaintiff relied upon the testimoniesof DW3 and defendant No. 4, wherein it had come on record that the A

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Aplaintiff, Nirmal Gill (respondent No. 1) and Rustam Singh were presentin the aforesaid function. Nirmal Gill in her testimony as PW8 had deposedthat there was a family gathering in December, 2000 whereat the plaintiffenquired from defendant Nos. 5 and 6 about the status of mutation, whoinformed that the mutation could not be effected until the encroachmentson the lands at Jalandhar and Premgarh are cleared. Thereafter, inBFebruary 2001, there was another family gathering wherein Rustam Singhhad passed on the said information to the plaintiff in her presence.

74. The trial Court, while examining the issue of limitation, hadopined that when the documents were proved to have been executed bythe plaintiff in 1990, it ought to have been challenged within 3 years of itsCexecution. It was further observed that when a specific plea is takenthat the plaintiff acquired knowledge about fraud recently in a familyfunction, she was obliged to examine such person who disclosed theinformation and the plaintiff failed to do so. Notably, the date of thefamily function had been wrongly mentioned by the trial Court asDDecember, 2001. Paragraphs 94 and 98 of the trial Court’s judgmentare reproduced below:

“94. I find merits in these arguments advanced by LearnedDefence Counsel because when the plaintiff is taking a specificplea that in some family function in December, 2001 which she asEwell as her daughter attended, this thing came to their knowledgethat the power of attorney has been forged and on the basis ofthat Harcharan Kaur had executed the sale deeds of the share ofplaintiff, then in those circumstances the plaintiff was required toexamine that person who disclosed that information to the plaintiff.But the plaintiff has not examined any that person.

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98. In my opinion, when the plaintiff is specifically stating to havereceived the information in some family function, then she wasrequired to examine that person from whom she received theinformation. But no such evidence is coming forward. Moreover,when the Court has come to the conclusion that the disputeddocuments were executed by Harcharan Kaur (JoginderKaur [sic]) on dated 29.06.1990, 28.06.1990, 03.07.1990,then in those circumstances, if any fraud etc. has been playedupon by the plaintiff, the plaintiff was required to file the G

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suit within the period of three years. So apparently the suitfiled by the plaintiff is barred by limitation. Therefore, the saidissues stand decided in favour of the defendants and against theplaintiff.”

75. The first appellate Court in its judgment confirmed the findingsof the trial Court that the suits were barred by limitation. While doing so,the first appellate Court had also proceeded on the wrong premise thatthe family function was held in December, 2001. Finally, the first appellateCourt held that since the 1990 GPA had been proved to have been executedby plaintiff, the question of acquiring knowledge in the family functionloses significance.

76. In contrast, the High Court had noted that the factum of thefamily function and plaintiff’s presence thereat was admitted by defendantNo. 4. The High Court then went on to reverse the findings of the trialCourt and the first appellate Court whilst opining the testimony of RustamSingh cements the case of the plaintiff and it was apparent that theplaintiff had no reason to suspect her brothers at an earlier point of timeand she was not even aware of the acts of the defendants. The saidfacts came to light only after the plaintiff conducted inquiries. The relevantportion of the High Court’s judgment is set out hereunder:

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… Learned courts below have further erred in holding that thesuits are barred by limitation. The plaintiff’s case is that she cameto know about the fraud being perpetuated by her own stepbrothers and sister-in-law after she settled in Punjab, subsequentto the retirement of her husband and consequent increasedfrequency of her interaction with her relatives. Marriage of herpaternal uncle’s son (Taya’s son) is admitted by DW 6 RattanSingh. It is further admitted that the plaintiff was present at thesaid wedding. Testimony of Rustam Singh cements the caseof the plaintiff. ...”

77. Before analysing the correctness of the decisions arrived at,let us see the settled legal position as to effect of fraud on limitation as A

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“17.– Effect of fraud or mistake.- (1) Where, in the case of anysuit or application for which a period of limitation is prescribed bythis Act,—

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(c) the suit or application is for relief from the consequencesof a mistake; or (d) where any document necessary to establish the right of theplaintiff or applicant has been fraudulently concealed from him, Dthe period of limitation shall not begin to run until the plaintiffor applicant has discovered the fraud or the mistake or could,with reasonable diligence, have discovered it; or in the case of aconcealed document, until the plaintiff or the applicant first hadthe means of producing the concealed document or compelling itsproductionE

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78. Therefore, for invoking Section 17 of the 1963 Act, twoingredients have to be pleaded and duly proved. One is existence of aFfraud and the other is discovery of such fraud. In the present case, sincethe plaintiff failed to establish the existence of fraud, there is no occasionfor its discovery. Thus, the plaintiff cannot be extended the benefit underthe said provision.

79. It must be noted that the trial Court was in error to hold thatGthe person who has disclosed the information was not examined by theplaintiff, when it had come on record through the testimony of KultarSingh (DW2), that Rustam Singh expired before the suits came up fortrial. If so, the finding of the High Court that the testimony of Rustam Singh strengthened the case of plaintiff is ex-facie erroneous andmanifestly wrong. In as much as, the said person was never examinedbefore the Court in these proceedings. Further, the trial Court and thefirst appellate Court had erroneously assumed the date of function inDecember, 2001 in place of February, 2001. However, that will have nobearing on the finding on the factum of non-existence of fraud. Theconcurring findings recorded by the trial Court and the first appellateCourt - that the documents were executed by the plaintiff - belies anddemolishes the case of the plaintiff, as to having acquired knowledge ofalleged fraud in 2001. Therefore, the High Court committed manifesterror in reversing the concurrent findings of the trial Court and the firstappellate Court in that regard.

CONCLUSION

80. It is settled that the standard of proof required in a civil disputeis preponderance of probabilities and not beyond reasonable doubt. Inthe present cases, though the discrepancies in the 1990 GPA are boundto create some doubt, however, in absence of any tangible evidenceproduced by the plaintiff to support the plea of fraud, it does not take thematter further. Rather, in this case the testimony of the attesting witness,scribe and other independent witnesses plainly support the case of thedefendants. That evidence dispels the doubt if any; and tilt the balancein favour of the defendants.

81. Suffice it to observe that since the plaintiff could not establishthe existence of fraud, it must follow that the suits are ex-facie barredby limitation.

82. As to the title of the subsequent purchasers, since the 1990GPA had been proved, there is no reason to doubt their bonafides.

83. In view of the foregoing discussion, we hold that the trialCourt and the first appellate Court had appreciated the evidence properlyand that view being a possible view, the High Court ought not to havedisturbed the same in the second appeal and that too on surmises andconjectures.

In the result, the present appeals are allowed and the impugnedjudgment and decree passed by the High Court is set aside. The judgmentand decree passed by the first appellate Court is hereby restored. Noorder as to costs. Pending applications, if any, are disposed of.

Appeals allowed.

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