Rattan Singh & Ors. vs Nirmal Gill & Ors. etc.

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

Prem Singh and Ors. v. Birbal and Ors. (2006) 5 SCC

353 : [2006] 1 Suppl. SCR 692 – relied on.

1.2 The trial Court had justly placed the initial burden of proof upon the plaintiff as it was her case that the subject documents were forged or product of fraud and moreso because the documents bore her signature. The first appellate Court did not elaborate on that aspect. Even assuming that the burden had shifted upon the defendants, the witness identifying signatures of the dead attesting witness was examined by the defendants. Therefore, the documents stood proved and the burden was duly discharged by the defendants. The High Court, however, went on to observe that defendants had abused their position of active confidence. For shifting the burden of proof, it would require more than merely pleading that the relationship is a fiduciary one and it must be proved by producing tangible evidence. [Paras 40 and 41][448-E-G][449-B-C]

Anil Rishi v. Gurbaksh Singh (2006) 5 SCC 558 : [2006]

1 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 always had cordial relationship and the plaintiff was on visiting terms. Further, the fact that the defendant Nos. 3 and 4 were cultivating the joint lands is also not disputed. Defendant Nos. 3 and 4 were cultivating the lands along with their father and continued to do so even after his death. The plaintiff had failed to prove the fact of misuse of trust by the defendants as such. [Para 42][450-F-H]

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

1.5 Emphasis was laid on the entries made in the PW4 scribe’s register showing the 1990 GPA to have been executed prior to the sale deed and it was submitted that there is no logic in first giving GPA and then executing sale deed if the plaintiff was available to execute the aforesaid documents. However, the same is of no avail to the plaintiff as the 1990 GPA was in respect of all her land holdings, whereas the sale was made only in respect of a portion of the land. [Para 44][451-B-C]

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

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

1.8 The plaintiff’s denial of being acquainted with the attesting witnesses, is, also a ruse and not genuine. For, one of the attesting witnesses was a lamberdar of the village. A lamberdar’s job is to collect revenue in respect of the lands and issue receipts and as a practice, the lamberdar is called for attesting documents. Thus, when the plaintiff admittedly used to visit village frequently, her denial in knowing him is far-fetched. This is what two Courts had opined and being a possible view, no interference 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, the plaintiff had asserted that the same was not executed by her. The sale deed requires attestation by two witnesses and the same has to be proved as per procedure laid down under Section 68 of the Evidence Act. The sale deed of 03.07.1990 had been attested by Lamberdar and DW3. The attesting witness (DW3) had deposed that the said sale deed was executed by the plaintiff in his presence, as well as in presence of Lamberdar and defendant No. 3. However, defendant No. 4 had deposed that he was present at the time of execution of the sale deed on 03.07.1990 which was executed by the plaintiff in favour of defendant No. 3 and himself. He stated that Lamberdar and ‘G’ were also present. The High Court held that testimony of DW3 was 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 consideration amount to the plaintiff. Also, defendant No. 4 and DW3 denied each other’s presence. [Paras 48, 52, 53, 54, 56][452D; 453-E-G; 454-G-H; 455-A-B] Jagdish 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 cases where there has been a delay in recording evidence. In the present cases, the disputed documents were executed in the year 1990 and the evidence of DW3 was recorded in the year 2007, after a passage of 17 long years. The High Court erroneously doubted the evidence of DW3 merely because he could not identify photographs of plaintiff and because the defendant No. 4 and DW3 did not mention each other’s presence at the time of execution. [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 of the Transfer of Property Act, 1882 “attested”, in relation to an instrument, means and shall be deemed always to have meant attested by two or more witnesses each of whom has seen the executant sign or affix his mark to the instrument ....and each of whom has signed the instrument in the presence of the executant. The disputed sale deed dated 03.07.1990 was signed by plaintiff as vendor and defendant No. 3 as vendee and in the presence of DW3 and the other attesting witness i.e. the Lamberdar. DW3 as an attesting witness had seen both plaintiff and defendant No. 3 signing the deed and he then attested the sale deed. The High Court failed to note that the other attesting witness being dead and his signature having been identified by DW2 and DW4, and with the testimony of PW4 scribe, the evidence of the DW3 witness stood corroborated and therefore, the same could not be disregarded. [Paras 57 and 58][455-B-G]

2.4 Since defendant No. 4 has not signed the sale deed as a vendee, his evidence cannot be discarded, as signature of the vendee is not mandatory in a sale deed. In any case, the weight of evidence of DW3 remains unassailable. Therefore, the testimony of DW3 satisfies the requirements of the conditions required for a valid attestation. [Paras 60 and 61][457-A-B; 458F-G] Aloka Bose v. Parmatma Devi and Ors. (2009) 2 SCC

582 : [2008] 17 SCR 822 – relied on.

2.5 Since the attesting witness had proved the execution of the sale deeds, the primary onus upon the plaintiff had not shifted unto the defendants. Further, the plaintiff was obliged to rebut the positive evidence produced by the defendants regarding payment of consideration amount to the plaintiff; but also ought to have independently proved her case of non-receipt of the consideration amount. [Para 62][459-B-C]

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

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

3.2 The expert evidence produced by the plaintiff in reference to the signature of the plaintiff is of no avail, in view of divergent opinions. The ground that the documents were a result of copied forgery cannot be substantiated only on the basis of the opinion of expert PW10. Even otherwise, the expert opinions are not a binding piece of evidence and have to be corroborated with other pieces of evidence. The plaintiff failed to prove that her signatures on the subject documents are forged. [Para 65][459-F-G]

4.1 The 1963 GPA is claimed to have been discovered during the enquiries made by the plaintiff subsequent to attaining knowledge of the fraud. The trial court accepted that the plaintiff had executed the 1963 GPA and further she had knowledge of the sanction of mutation in pursuance of that GPA. [Paras 66 and 67][459-H; 460-B-C]

4.2 The 1963 GPA is a document which is more than 30 years old. Section 90 of the Evidence Act provides for the presumption in favour of a 30-year old document. The aforesaid provision employs the words ‘may presume’. As per Section 4 of the Evidence Act, the presumption in favour of a 30-year old document is, therefore, a rebuttable presumption. Nothing prevented the plaintiff to rebut the presumption by leading appropriate evidence in order to disprove the same. Since the plaintiff failed to do so, the said document would be binding on the plaintiff. As a matter of fact, the parties had acted upon the terms of the said document without any demur since 1963 and it was, 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 genuine document. [Paras 69, 70 and 71][460-E-F; 461B-E]

5.1 Since the plaintiff could not establish the existence of fraud, it must follow that the suits are ex-facie barred by limitation. For invoking Section 17 of the Limitation Act, 1963 two ingredients have to be pleaded and duly proved. One is existence of a fraud and the other is discovery of such fraud. In the present case, since the plaintiff failed to establish the existence of fraud, there is no occasion for its discovery. Thus, the plaintiff cannot be extended the benefit under the said provision. [Paras 78 and 81][464-F-G; 465-E]

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

6. As to the title of the subsequent purchasers, since the 1990 GPA had been proved, there is no reason to doubt their bonafides. The trial Court and the first appellate Court had appreciated the evidence properly and that view being a possible view, the High Court ought not to have disturbed the same in the second appeal and that too on surmises and conjectures. [Paras

82 and 83][465-F-G]