Judgment:
S.S. Sudhalkar, J.
1. Dharma, father of respondents No. 1 and 2 executed a general power of attorney in favour of Karma son of Jowala on 15.1.1975. Karma, thereafter, executed two sale deeds as attorney of Dharma on 20.1.1975 in favour of the appellants No. 1 to 4. Dharma died on 1.2.1975. On 6.2.1975, respondents No. 1 and 2 filed a civil suit No. 14 of 1977 in the Court of Sub JudgeI Class, Nakodar for declaration to the effect that the said respondents No. 1 and 2 who were plaintiffs in the suit were the owners in possession of the suit land and a house situated thereon by way of inheritance from their father Dharma and in the alternative, they claimed possession on the said suit property. They contend that appellants No. 1 to 4 were threatening to obtain possession and on enquiry they came to know that Dharma deceased had executed a general power of Attorney in favour of Karma respondent No. 3 who subsequently sold the suit property to defendant-appellants No. 1 to 4, they contend that no such mukhtaranama was made by Dharma and the sale deeds were also forged and were not genuine documents. This they came to know because the false statement made by appellants No. 1 to 4 and respondent No. 3 and the said statement is wrong and incorrect and that if any General Power of attorney of the alleged sale deeds are proved they are forged and genuine documents. It is also contended that Dharma had a great love and affection for his two daughters respondents No. 1 and 2. He had also executed a registered will on 29.5.1969 in lieu of rendering all kinds of services to him and in lieu of his love and affection for his daughters and they are the heirs on the basis of this will also. They also contend that the general power of attorney and the two alleged sale deeds do not bear the thumb impressions of said Dharma who remained seriously ill for the last two months and remained unconscious for the last one month, and that some other person must have been produced by respondent No. 3 to execute and present documents that is general power of attorney and that the alleged sale deed do not mention any sale consideration in both.
2. In short respondents No. 1 and 2 denied the execution of power of attorney and the documents and also contend that they are forged. They also contend that there was fraud, misrepresentation, undue influence and pressure and these things must have been done in the following way: that respondent No. 3 made up his mind to deprive the plaintiffs and Dharma of the entire land in dispute and get this land free of any payment. Had he brought some attesting witnesses from this very village Bal Hukmi, the fraud would have come to light but in order to achieve his object, he might have brought Dharma deceased from his village to Nakodar to execute a will in favour of the daughters and instead of will he got executed a general power of attorney in his own favour authorising him to do various acts in the pending cases filed by him and filed against him and also got authority to mortgage and make a sale of his land. It is also contended that the recitals in the power of attorney are not correct and then in order to avoid his coming to the knowledge some other persons must have been produced before the Sub Registrar where some relevant part of the documents is read and the thumb impressions are taken in the Sub Registrar's room where officials sit and take thumb impressions of theexecutant and the witnesses and there it is never read and explained to them. These are the particulars of fraud, misrepresentation, undue influence and undue pressure.
3. The suit was contested by the appellants and respondent No. 3. They contend that Dharma had executed a valid power of attorney in favour of Karma and the said property was sold to appellants No. 1 to 4 vide two sale deeds for Rs. 14,000/- and Rs. 18,000/- respectively. The allegations of fraud as alleged are also denied.
4. The learned Sub Judge, Nakodar dismissed the suit. The appellants thereupon filed civil appeal No. 15 of 1977 which was decided by the Court of Additional District Judge, Jalandhar. The learned Additional District Judge framed additional issues and ordered the case to be sent back to the trial court under Order 41 Rule 25 C.P.C with a direction to record evidence on the additional issues framed and to submit the report within a period of four months. The trial court submitted his report dated 4.4.1979 and both the additional issues were held in favour of respondents No. 1 and 2. The learned Additional District Judge ultimately allowed the appeal and held that the transactions of sale entered into between Karma respondent No. 3 and the appellants were not genuine, and that the appellants could not be said to have become owners of the land in dispute by virtue of the sale deeds and that the respondents No. 1 and 2 who were the rightful heirs of their father Dharma must be held to be the owners of the land in dispute which belonged to Dharma. Consequently he held that the suit must succeed. He passed a decree for possession of the property in dispute in favour of respondents No. 1 and 2. This judgment was pronounced on 8.6.1979. Being aggrieved by the said judgment of the lower appellate court, this appeal has been preferred by the appellants against the original plaintiffs and Karma who has thereafter, died.
5. I have heard learned counsel for the parties and perused the records of the case.
6. The learned counsel for the appellants has vehemently argued that the lower appellate Court has held that the power of attorney was valid but the sale deeds were invalid. The lower appellate Court has held in para 11 of its judgment that 'this evidence of these two witnesses is supported by the evidence of the plaintiffs witness Tara Singh PW4 who stated that the power of attorney Ex. D.1 was executed by Dharma when he was in his senses. Therefore, the evidence produced by the defendant-appellant in proof of the execution of power of the attorney Ex. D.1 by Dharma has to be accepted and it apparently proves that Dharma duly executed the power of attorney Ex. D.1 in favour of Karma defendant. It was, therefore, for the plaintiff respondents No. 1 and 2 to lead some cogent evidence to prove that the power of attorney Ex. D.1 was not genuine document and was the result of fraud, mis-representation or undue influence. 'The lower appellate Court further held that the trial court while holding that the power of attorney Ex. D.1 is a fictitious documents based its decision on conjectures. It also held that it is strange that within seven days from the date of the execution of the power of attorney in his favour, Karma negotiated sales of Dharma's land with his relatives and also obtained the money in advance and did not even wait for the payment of the money before the Sub Registrar and, therefore, the circumstances that no money was paid before the Sub Registrar. and the sale price was alleged to have been received in advance raises suspicion about the genuineness of the sales. It further held that the land was sold at a price lower than its actual value and that this also raised suspicion about the genuiness of the documents. It also held that this sale transaction were without consideration and entered into simply to grab the land of Dharma and to deprive the plaintiffs-respondents No. 1 and 2 of the land. It therefore, allowed the appeal and dismissed the suit.
7. Learned counsel for the appellants argued that all these reasons stated in the judgment of the lower appellate Court were based on surmises only. He vehemently argued that when the power of attorney was held to be valid, the sale deeds could not be said to be invalid. Learned counsel for the appellants had drawn my attention to the deposition of respondent-plaintiff Taro. She has stated in her deposition on 27.1.1977 that Dharma was not in senses for many days before his death. He was living with them (plaintiffs). His younger brother's daughter was to marry and he had gone to Bal Hukmi to attend her marriage because Karma had taken him to Bal Kurmi to attend the marriage. She has further stated that Dharma was not in a condition to execute the power of attorney. In her cross-examination she has stated that Dharma had gone to attend the marriage of the daughter of Nanu. They (plaintiffs) had not gone. The marriage was in the month of Magh and a few days after the marriage, Dharma had died. She has further stated that he had got treated Dharma from Dr. Jaswant Singh of Nanuwal. Dharma used to become breathless due to Asthma and he was suffering from no other disease. The deposition of Taro was again taken up on 24.1.1979. She stated that condition of Dharma was very serious 2/2-1/2 weeks prior to his death and he used to tell them that he had already executed a will in their favour. She further deposed that Karma had taken Dharma from their village to Bal Hukmi because of the marriage of the daughter of his nephew and that Dharma was saying that Karma had said to him that separate land should be got entered in separate khatas in the names of his two daughters. He further deposed that Dharma had asked him to verify the same. In her cross-examination, she has stated that he was suffering from Asthma and not got treated from any Government Hospital and was got treated at Nanuwal. She further stated that 'they were not invited to the marriage.' She further stated in her cross-examination that registry (registration) was effected in their village for Rs. 25,000/- and that Dharma remained at Bal Hukmi for 3-4 days for marriage and they checked him but he was taken by force and that he was not in senses at the time of marriage. She further stated that he was brought in a Rickshaw in unconscious condition.
8. Learned counsel for the appellants has argued that there was no pleading of forcibly taking away Dharma. He has also stated that Taro states three facts
1. Dharma's condition was serious;
2. that Karma had taken Dharma to attend the marriage of the daughter of Nanu at Bal Hukmi:
3. that he was taken 3/4 days before Lohri and that he was in unconscious mental condition and was taken in a rickshaw.
However, if we sec the pleadings, it has been mentioned that Dharma remained seriously ill for the last two months and remained unconscious for the last one month and some other person must have been produced by this clever defendant No. 1 to execute and present the document (general power of attorney). Therefore, the contention of Dharma remaining sick,, it is there in the pleadings. Regarding the reasons of Dharma going there, it has been pleaded that Karma might have brought Dharma from his village to execute a will in favour of his daughters and in-stead of will he got execute a general power of attorney in his own favour. Of course, regarding the statement that Dharma was taken 3/4 days before Lohri, there cannot be any contradiction because the power of attorney was, executed on 15.1.1975.
Learned counsel for the respondents has cited before me two cases of the Supreme Court:
(1) Ramchandra Pandurang Sonat v. Murlidhar Ramchandra Sonar and Ors., 1990 S.C. 1973 ; and
(2) Kehar Singh v. Yash Pal and Ors., A.I.R. 199 S.C. 2212.
In the first case of Ramchandra (supra) is was held by the Supreme Court that the first Appellate Court had given a finding of fact that the suit property was self-acquired properly of the father of the plaintiff and he was well known goldsmith and the suit property was purchased by his income from that business after the death of his father and the High Court would not be justified in interfering with that finding of fact in second appeal and held that thegoldsmithery was ancestral business.
9. In the ease of Kehar Singh (supra) it has been held by the Supreme Court that the only point which was argued on behalf of the respondents before the first Appellate Court which was the last court on facts, was as to whether the respondents 2 and 3 were the sub-tenants of respondent No. 1 or direct tenants of the appellant, and on this point the trial Court as well as the first Appellate Court recorded a concurrent finding that they were subtenants and not direct tenants of the appellant, and that the said finding is essentially a finding of fact based on appraisal of evidence and on that finding no substantial question of law arises which can appropriately be gone into in a second appeal. As against this learned counsel for the appellants has cited before me various cases. He has cited before me the case of Madholal Damlal v. Gajrabi, A.I.R. 1951 Nagpur 194 wherein it was held that the plaintiff must set forth the particulars of the fraud which he alleges against the defendant in the pleading and that a charge of fraud must be substantially proved as laid, and when one kind of fraud is charged, another kind of fraud cannot upon failure of proof, be substituted for it. He has also cited before me the case reported in 1976 RLR 127 but there is no case starting from page 127 of the said citation and the case starts from page 126. It is a case of Tej Kaur v. Chanan Singh. However, that case is on the different point, namely, under order 22 rules 3 and 4 of the Code of Civil Procedure. He has also cited before me the case of Mohan Lal v. Anandibai andOrs., A.I.R. 1971 S.C. 2177 wherein it was held when that there is no pleading in respect of fraud or ante-dating of document and no evidence is led to meet such pleas, the court cannot on the basis of the plea raised for the first time during arguments, record any finding. He has also cited before me the case of Alma Singh v. Jangir Singh, (1959)61 Punjab Law Reporter 40 wherein it has been held that a party relying on fraud must not only allege it but mist give detailed particulars and lead evidence in proof-of each particular. He has also cited before me the case of Hiralal Agarwala y. Bhagirathi Gore andOrs., A.I.R. 1975 Calcutta 445 wherein it. was held by the Calcutta High Court that the plea under section 53A of the Transfer of Property Act cannot be raised for the first time in second appeal.
10. In view of the principles laid down by the Supreme Court and various High Courts, the question now to be seen is whether the findings of the lower appellate Court should be interfered with.
11. Regarding the power of attorney there is a finding of the lower appellate Court that the power of attorney Ex. D1 cannot be rejected as fictitious document. The lower appellate Court has considered the evidence regarding the same. I have quoted earlier the exact words regarding the conclusion on this point. Regarding the say of respondents also, it has been seen that either they have no knowledge, or they had tried to convey something which cannot be accepted. Dharma had already executed a will. When this is so. the allegation in the plaint regarding taking Dharma to Nakodar for executing a will in favour of his daughters and instead got executed a power of attorney in his own favour appears to be ridiculous. Again the doctor who had treated Dharma is Jaswant Singh. He has deposed as P.W. 2 on 24.1.1979 and has stated that he was practising as a doctor. In his cross-examination, he has stated that he is R.M.P. and had got no training in Medical College or School. He has also stated in cross-examination that he has passed Higher Secondary and that he had got training from doctor Harnam Singh Lohian and Mohan Lal Jain of Shahkot. He has further stated that he had maintained the record of patient but had not kept the record of Dharma. He has also stated that Dharma had critical attacks of Asthma and 5/7 days prior to his death, his condition was serious. He has also stated that there used to be no senses at the lime of attack.
12. According to Taro, in her deposition made on 24.1.1979 also, Dharma was suffering from Asthma. According to her, his condition was very serious 2/2- 1/2 weeks prior to his death and that Dharma used to tell them that he had already executed a will in her favour. She has also stated that Dharma was taken from their house to Bal Hukmi because of the marriage of the daughter of his nephew. In her cross-examination, she stated that Dharma was not in his senses at the time of marriage and that he was brought in a rickshaw in unconscious condition. She has stated that she was not invited to the marriage. She has also made a statement in her cross examination that Dharma remained at Bal Hukmi for 3-4 days for marriage and that they checked him but he was taken by force.
13. If Dharma was unconscious or not in his senses, he could not have gone to attend the marriage. The pleadings in this regard also deserve to be seen. According to the plaint, Karma might have brought Dharma from his village to Nakodar to execute a will in favour of his daughters and instead of will, he got executed a general power of attorney in his own favour. If Dharma was in a condition to execute a will, he cannot be said to be in a condition (physical or mental) to execute a power of attorney. The findings of the lower appellate Court regarding the execution of the power of attorney, therefore, deserve to be accepted in view of the above circumstances.
14. The next question is regarding the sale deeds. The question is when the power of attorney is not proved to be genuine or is held to be genuine one, the findings of the lower appellate Court regarding sale transactions cannot be upheld. From the English translated version of power of attorney Ex. D.1, right to sell or mortgage or exchange or get the mutation effected with regard to property of Dharma situated in the area of Bal Hukmi was also given in the power of attorney. The non-passing of the consideration is not the personal knowledge of respondents No. 1 and 2. Moreover if Karma the power of attorney holder, had not given the amount of sale consideration to Dharma, then it was a money matter between Dharma and Karma but the sale transactions executed vide sale deeds in question cannot be said to be illegal or inoperative. The lower appellate Court has given the reasons that respondents No. 1 and 2 were admittedly the daughters of Dharma and Dharma during his life-time executed a will in favour of his daughters i.e. present respondents No. 1 and 2, bequeathing all his property in their favour and the deceased Dharma at the time of his death was living with his daughters. It also given the reason that Dharma apparently did not require money for anything and had no reason to sell his land to appellants No. 1 to 4. The lower appellate Court has also considered the fact that Karma was appointed attorney by Dharma on 13.1.1975 by virtue of the power of attorney and that within seven days of the execution of power of attorney Ex.D.1 Karma executed sale deeds Ex. D2 and Ex. D3 in favour of his wife, son and nephew. The lower appellate Court has also considered the fact that there was close relationship between Karma and Dharma and the haste with which the sale deeds were executed by Karma after the execution of the power of attorney. It has been held that no consideration was paid before the Sub-Registrar and the entire consideration was alleged to have been received by Karma in advance. He has also considered that the price charged was less than actual price. The lower appellate Court has held that the suspicion created by the circumstances about the genuineness of the sales in question persists and he was of the opinion that the conclusion can safely be drawn that the transactions of sale in question are without consideration and are fictitious. However, it is not possible to accept these findings of the lower appellate Court. Of course I have upheld that findings of lower appellate Court regarding the execution of power of attorney, but once the power of attorney is held to be not a fraudulent one, the subsequent transactions entered into on the basis of said power of attorney cannot be challenged. Moreover, as the reading of the plaint suggests, the plaintiffs themselves do not have any knowledge as to how the fraud has taken place.
15. In view of above circumstances, the judgment of the lower appellate Court deserves to be reversed and the decree passed by the trial court deserves to be upheld.
16. In the result, I allow the appeal, set aside the judgment and decree of the lower appellate Court, and restore the judgment and decree passed by the trial court.