for invoking Section 17 of the 1963 Act, 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.

for   invoking   Section   17   of   the   1963   Act,   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.

“17.– Effect   of   fraud   or  mistake.­ (1) Where, in the case of any suit or application for which a period of limitation is prescribed by this Act,— (a) the   suit   or   application   is   based upon   the   fraud   of   the   defendant  or respondent or his agent; or  (b)  the knowledge of the right or title on which a suit or application is founded is concealed by the fraud of any such person as aforesaid; or (c)  the suit or application is for relief from the consequences of a mistake; or (d)  where   any   document   necessary   to establish   the   right   of   the   plaintiff   or applicant has been fraudulently concealed from him, the period of limitation shall not begin to run until the plaintiff or applicant has discovered the fraud or the mistake or could, with reasonable diligence, have discovered it; or in the case of a concealed document, until the plaintiff or the applicant first had the means of producing  the  concealed  document   or compelling  its production ......." (

The dispute between the parties pertains to a General Power of Attorney (GPA) purported to have been executed by the plaintiff on 28.06.19903   in favour of defendant No. 1 and consequently sale deeds executed by defendant No. 1 as an attorney of the plaintiff. Sale deeds dated 29.06.1990 and 03.07.1990 purported to have been executed directly by the plaintiff are also disputed by the plaintiff. The case of the plaintiff is that the defendants sought her signatures on blank papers in the year 1990 under the guise of preparation and processing of documents for the purpose of getting the estate left behind by their father mutated in their names. Reposing complete trust in her step brothers, the plaintiff  signed the papers and handed it  over to  the  person tasked for that purpose by the step brothers ­ defendant Nos. 3 to   6.   In a wedding function of a relative at Jalandhar in February   2001,   where   the   plaintiff   and   her   step   brothers   ­ defendant Nos. 3 to 6 were present, one of her cousins Rustam Singh had mentioned to her in a conversation that the defendant Nos. 3 to 6 had sold a part of the property which they jointly held with the plaintiff.

The   plaintiff   claimed   the aforementioned documents to be a result of fraud perpetrated upon her by her step brothers ­ defendant Nos. 3 to 6 and her step sister­in­law ­ defendant No. 1, who got those documents scribed, forged the plaintiff’s signature onto them and got them registered. 

CONCLUSION 80. 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 this 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.  81. Suffice   it   to   observe   that   since   the   plaintiff   could   not establish the existence of fraud, it must follow that the suits are ex­facie barred by limitation.  82. As to the title of the subsequent purchasers, since the 1990 GPA   had   been   proved,   there   is   no   reason   to   doubt   their bonafides.  83. In view of the foregoing discussion, we hold that the trial Court and the first appellate Court had appreciated the evidence properly and that view being a possible view, the High Court 58 ought not to have disturbed the same in the second appeal and that too on surmises and conjectures.  84. In   the   result,   the   present   appeals   are   allowed   and   the impugned judgment and decree passed by the High Court is set aside. The judgment and decree passed by the first appellate Court   is   hereby   restored.   No   order   as   to   costs.   Pending applications, if any, are disposed of.

1

REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NOS. 3681­3682  OF 2020

(Arising out of SLP (C) Nos. 21326­21327 OF 2019)

Rattan Singh & Ors.                 … Appellants

Versus

Nirmal Gill & Ors. etc.             …Respondents

WITH

CIVIL APPEAL NOS. 3683­3684 OF 2020

(Arising out of SLP (C) Nos. 29775­29776 OF 2019)

Inder Pal Singh & Anr.      … Appellants

Versus

Nirmal Gill & Ors. etc.            …Respondents

J U D G M E N T

A.M. Khanwilkar, J.

1. Leave granted.

2. These appeals take exception to the common Judgment and

decree of the High Court of Punjab and Haryana at Chandigarh1

,

dated  27.05.2019  in  R.S.A.  Nos.  2901/2012  and  3881/2012,

1

 for short, “the High Court”

2

whereby the High Court reversed the concurrent findings of the

trial Court and the first appellate Court and decreed the suits of

the plaintiff.

3. For convenience, the parties are referred to as per their

status in Civil Suit No. 11/2001 before the Court of Civil Judge

(Senior Division), Hoshiarpur2

. The admitted factual position in

the   present   cases   is   that   one   Harbans   Singh   had   married

Gurbachan   Kaur  and   fathered  Joginder  Kaur  (plaintiff  –  now

deceased) in the wedlock. After the demise of Gurbachan Kaur,

Harbans   Singh   married   Piar   Kaur   and   in   that   wedlock,   he

fathered   Gurdial   Singh   (defendant   No.   3),   Rattan   Singh

(defendant No. 4), Narinder Pal Singh (defendant No. 5) and Surjit

Singh (defendant No. 6). Harcharan Kaur (defendant No. 1) is the

wife of defendant No. 4 and the step sister­in­law of the plaintiff.

Nirmal   Gill   (respondent   herein)   is   daughter   and   the   legal

representative   of   the   plaintiff   (Joginder   Kaur)   and   Charanjit

Singh is her (plaintiff’s) son. 

4. Harbans Singh was the owner of various stretches of land at

Nawanshahr, Jalandhar and Hoshiarpur which, upon his death

2

 for short, “the trial Court”

3

in the year 1963, devolved upon the plaintiff, her step brothers ­

defendant Nos. 3 to 6 and her step mother in six equal shares.

5. The plaintiff and the defendant Nos. 3 to 6 had cordial

relations and the plaintiff used to frequently visit her maternal

home.

6. The dispute between the parties pertains to a General Power

of Attorney (GPA) purported to have been executed by the plaintiff

on 28.06.19903

  in favour of defendant No. 1 and consequently

sale deeds executed by defendant No. 1 as an attorney of the

plaintiff. Sale deeds dated 29.06.1990 and 03.07.1990 purported

to have been executed directly by the plaintiff are also disputed

by the plaintiff. The case of the plaintiff is that the defendants

sought her signatures on blank papers in the year 1990 under

the guise of preparation and processing of documents for the

purpose of getting the estate left behind by their father mutated

in their names. Reposing complete trust in her step brothers, the

plaintiff  signed the papers and handed it  over to  the  person

tasked for that purpose by the step brothers ­ defendant Nos. 3

to   6.     Thereafter,   the   defendant   No.   3   visited   plaintiff’s

matrimonial   home   at   Delhi   asking   her   to   come   to   village

3

 for short, “the 1990 GPA”

4

Kalyanpur in June 1990 for getting the said mutation effected.

Accordingly, the plaintiff visited the village and stayed there for 3

or 4 days.

7. Subsequent to the retirement of her husband in the year

1999,   the   plaintiff   shifted   to   Mohali   and   being   closer   to   her

maternal   home,   the   frequency   of   her   meeting   the   relatives

increased. In a wedding function of a relative at Jalandhar in

February   2001,   where   the   plaintiff   and   her   step   brothers   ­

defendant Nos. 3 to 6 were present, one of her cousins Rustam

Singh had mentioned to her in a conversation that the defendant

Nos. 3 to 6 had sold a part of the property which they jointly held

with the plaintiff.

8. Upon   learning   about   the   said   fact,   the   plaintiff   made

enquiries   in   that   regard   including   verified   revenue   records

whence she learnt about existence of a GPA purported to have

been executed in 19634

 by all the legal heirs of Harbans Singh

including the plaintiff, in favour of defendant No. 3 and based on

the said GPA, the estate of Harbans Singh had already been

mutated in their joint names in November 1963. The plaintiff also

discovered the existence of aforementioned disputed documents

4

 for short, “the 1963 GPA”

5

which were executed without her knowledge, during her visit to

the   village   in   the   year   1990.   The   plaintiff   claimed   the

aforementioned documents to be a result of fraud perpetrated

upon her by her step brothers ­ defendant Nos. 3 to 6 and her

step sister­in­law ­ defendant No. 1, who got those documents

scribed, forged the plaintiff’s signature onto them and got them

registered. 

9. On the other hand, the defendants denied that defendant

No. 3 went to Delhi to call the plaintiff to village Kalyanpur. They

claimed that the plaintiff had come there on her own and stayed

with the defendant Nos. 3 to 6 for about a month. She had

personally   instructed   the   scribe   to   prepare   the   aforesaid

documents and she had duly executed and got them registered.

Therefore, all the transactions made by the plaintiff directly, 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

aforementioned defendant Nos. 1, 3 to 6 and 19 others, seeking

declaration as hereunder:

“i,  That   the   sale­deed   dated   05.07.2000   vide

document   No.   2213   of   land   measuring   2   Marla   5

Sarsahi   being   1/2   share   of   the   land   measuring   7

6

Marlas 2 Sarsahi bearing Khewat No. 1401, Khatauni

No. 2098, Khasra No. 6967 (3­5), situated in Village

Premgarh,   H.B.   No.   247,   Tehsil   and   District

Hoshiarpur, as per Jamabandi for the year 1996­97 by

defendant no. 1 as Mukhtar of the plaintiff in favour of

defendant no. 2 is illegal, void and ineffective as against

the rights of the plaintiff and that the mutation no.

13795 to the extent of 1/2 share of  65/68th share i.e.

1/2 share of 7 Marlas 2 Sarsahi is null and void and is

liable to be set aside and the plaintiff is not bound by

the same.

ii,  That the plaintiff is owner in possession of the

land measuring 9 Marla out of the land measuring 4

Kanals 13 Marla bearing  Khewat No. 1400, Khatauni

No. 2097, Khasra No. 2773/694 (0­11), 2774/694 (0­4),

2775/694   (0­1),   2776/694   (0­1),   2777/695   (0­3),

2778/695   (0­6),   2779/695   (0­8),   Khewat   No.   1463,

Khatauni   No.   2166   to  2168,   Khasra   No.   689   (2­19)

situated in Premgarh, Hoshiarpur, H.B. No. 247, Tehsil

and District Hoshiarpur, as per Jamabandi for the year

1996­97.   And   restraining   the   defendant   no.   1   from

alienating or transferring the land in dispute in any

manner on the basis of General power of attorney dt.

28.06.90.

iii,  That the sale deed dated 29.05.1990 in respect of

the land measuring 39 Kanals 4 Marlas out of the land

measuring 235 Kanals 6 Marlas being 1/6 share out of

the land measuring Kahata No. 46/60 to 67 and 36/56

Khasra Nos. 20R/21 (0­14), 21R/24/1 (3­11), 23R/7

(5­11), 8/1 (2­13), 15/1 (1­6), 106//(0­14), 131 (2­19),

16­R/17 (1­6), 25 (6­18), 16­R/16 (8­0), 17­R/13/2 (6­

4), 14/1 (1­0), 21 (8­0), 22 (8­0), 23 (8­0), 24/1 (5­0),

24/2 (2­4), 25 (8­0), 18­R/11/1 (2­8), 23­R/8/2 (2­6),

24­R/1 (2­0), 10 (6­5), 11/1 (1­14), 23­R/3/2 (5­40), 4

(8­0), 5 (8­0), 6 (7­12), 17­R/14/2 (6­4), 15 (8­0), 16 (8­

0), 17/1 (4­4), 17­R/17/2 (3­0), 18 (8­0), 19 (8­0), 20

(8­0), 18­R/19 (8­0), 20 (8­0), 21 (8­0), 22 (8­0), 21­

R/1/1 (7­4)m, 4/2 (5­5), 23/2 (4­1), 25 (2­13), 22­R/5

(3­0), 21­R/23/2­min (1­3), 104/2 (0­2), 23­R/26 (0­

14), 53//1 (2­7), situated in Village Kalyanpur, H.B. No.

144, Tehsil Dasuya, District Hoshiarpur is illegal,  void

and   has   been   obtained   by   way   of   fraud   and   the

declaration that the plaintiff is owner in possession of

land   in   dispute.   In   the   alternative   suit   of   joint

possession.

iv, And declaration that the General Power of Attorney

dated   28.06.1990   obtained   by   defendant   no.   1   in

7

connivance with her husband Rattan Singh defendant

no. 4 is the result of fraud and that the plaintiff is not

bound by the same as well as any transaction made by

the defendant no. 1 on behalf of the plaintiff are also

illegal and void and are liable to be set aside and that

the defendant no. 1 has no power to act as General

Attorney of the plaintiff.”

11. While the said suit was pending, the plaintiff discovered

existence of more documents executed by her alleged attorney

and   thus   filed   another   suit   being   C.S.   No.   173/2002   on

12.06.2002 before the trial Court, wherein the defendant No. 4

was arrayed as defendant No. 1, defendant Nos. 3, 5 and 6 were

arrayed as defendant Nos. 2 to 4 respectively and defendant No. 1

was arrayed as defendant No. 11. Inder Pal Singh and Rajinder

Kaur5

, who purchased the plot at Jalandhar through the alleged

attorney of the plaintiff, were arrayed as defendant Nos. 9 and

10. The prayer in the said suit was for declaration as hereunder:

“i.   That   the   sale   deed   and   mutation   no.   11395

regarding the land measuring 1 Kanal 6½ Marlas out of

land measuring 6 Kanals 4 Marlas bearing Khewat No.

602, Khatauni No. 662, Khasra No. 85/17 (6­14) by

defendant no. 11 as attorney of plaintiff in favour of

defendant no. 8 situated in Village Bajwara, H.B. No.

355, Tehsil and District Hoshiarpur, as per Jamabandi

for   the   year   1995­96   is   illegal,   void   and   that   the

plaintiff is not bound by the same as the same has been

executed and got sanctioned in absence and without

consent of the plaintiff.

ii. That the sale deed dated 03.07.1990 in respect of the

land measuring 34 Kanals 5 Marlas Khasra Nos. 32­

R/13/3 (2­12), 14 (8­0), 15/1 (4­16), 16 (2­10), 17 (3­

5

 for short, “the subsequent purchasers”

8

11), 18/1 (1­9), 12//13/2 (0­9), 14/1 (0­9), 18/2/1 (2­

19), 23 (5­3), 24/1/1 (5­9), 24/2/1 (1­2), 25/2/1(0­8),

12­R/15/2 (4­18), 16 (8­0), 17/1 (7­13), 18/1/1(2­8),

25/1/1 (5­16), 13//20 (8­0), 21 (8­0), 22 (8­0), 23/1 (4­

12), 27/17/2 (0­19), 18/1 (1­10), 18/2 (0­19), 23/1 (5­

10), 23/2 (1­12), 27/24/1 (1­14), 32//3/2 (5­13), 4/1

(1­3), 4/6 (0­2), 17//13 (less than one Marla), 18//3

(0­5), 4 (2­16), 5/1 (0­1), 17//1/1 (3­10), 2/1 (7­6), 3/1

(4­12),   8/2/1   (3­3),   9/1   (0­18),   24//6/2/1   (5­15),

7/1/2/1 (2­5), 14/2 (0­11), 15/1 (4­18), 25//8 (0­10),

9 (5­0), 10­2­1 (5­19), 11/1 (4­18), 12/2 (4­18), 13/1

(0­17), 13//11 (7­11), 12 (7­11), 13/1 (4­7), 13/18/2

(4­12), 19 (8­0), i.e. 1/6th share of 205 Kanals 9 Marlas

situated   in   Village   Mehandipur,   H.B.   No.   46,   Tehsil

Dasuya, District Hoshiarpur as per Jamabandi for the

year 1983­84 and also as per Jamabandi for the year

1994­95   is   illegal,     void   without   consideration   and

executed in absence of the plaintiff by producing other

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 is owner in possession of the said land.

iii. That the sale deed in favour of defendant no. 7 dated

20.05.1996 registered on 22.05.1996 in respect of the

land   measuring   2   Kanal   10   Marlas   out   of   land

measuring 14 Kanals 18 Marlas bearing Khewat No.

107, Khatauni No. 148, Khasra No. 13//1 (6­18), 14­

R/5 (8­0), now Khewat No. 123 and Khatauni No. 140

and the same khasra number as per Jamabandi for the

year 1997­98 executed by defendant no. 11 situated in

Village Sareenpur, H.B. No. 139, is illegal, void and

without the consent of the plaintiff and the same is

executed in the absence of plaintiff by playing fraud on

the   plaintiff   and   the   plaintiff   is   owner   of   the   said

property.

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. 373­R to the extent of 1/12

share in front of which there is a road behind house no.

378­Land other side 373­L owned by Mangat Singh and

Avtar Singh and other side is H.No. 372­L owned by

Mool   Chand   Bhandari   situated   in   Model   Town,

Jalandhar, as per site plan attached with the plaint is

illegal, void and without the consent of the plaintiff.

v. That the sale deed dated 18.03.1996 registered on

21.03.1996 in favour of defendant no. 10 executed by

defendant no. 11 in respect of 1/12 share as Mukhtar

by defendant no. 11 is illegal and void and without

9

consideration and without the consent of the plaintiff,

house bounded as:

Front : Road;

Behind : Property of H.No. 378­L;

One   side   present   No.   372­L   owned   by   Mool   Chand

Bhandari;

One   side   373­L   owned   by   Mangat   Singh   and   Avtar

Singh;

situated in Model Town, Jalandhar, shown red in the

site plan attached.

IN THE ALTERNATIVE suit for joint possession of the

properties as detailed in the heading (i) to (iii) and also

declaring that the plaintiff and defendant no. 9 and 10

are in joint possession as co­sharers of the property

Nos. (iv) and (v).”

12. Both   the   suits   were   resisted   by   defendant   No.   1   and

defendant Nos. 3 to 6. The subsequent purchasers also contested

the suits by filing their written statement in C.S. No. 173/2002.

On the basis of rival pleadings, the trial Court framed issues in

the aforementioned suits as follows:

Issues in C.S. No. 11/2001­

“1.   Whether   the   Plaintiff   is   entitled   for   a   decree   of

declaration as prayed 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 and void? OPP

10

3. Whether the plaintiff is entitled to joint possession as

alternative relief 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 evidence

was recorded in the leading suit being C.S. No. 11/2001. After

analyzing the evidence on record, the trial Court dismissed both

the suits of the plaintiff vide a common judgment and decree

dated 03.01.2009. 

14. Aggrieved   by   this   decision,   the   plaintiff   preferred   Civil

Appeal Nos. 3 and 4 both of 2009 against C.S. No. 11/2001 and

C.S.   No.   173/2002   respectively   before   the   Additional   District

Judge (Ad­hoc), Fast Track Court – I, Hoshiarpur6

. During the

pendency of the appeals, the plaintiff expired and since then

came to be represented by her legal representative Nirmal Gill

(respondent No. 1 herein). The first appellate Court once again

appreciated the evidence on record and after elaborate analysis,

whilst   upholding   the   findings   of   the   trial   Court   on   material

issues, vide its judgment and decree dated 30.11.2011, partly

modified the decision of the trial Court in C.S. No. 11/2001. The

6

 for short, “the first appellate Court”

11

first appellate Court was pleased to reverse the conclusion of the

trial Court limited to subject land admeasuring 9 marlas on the

finding that the jamabandi reflects plaintiff’s name recorded as

co­owner in possession of the said property. Finally, the first

appellate Court concluded as under:

“48.  In   view   of   my   above   discussion   the   appeal   is

partly accepted to the extent that the appellant­plaintiff

is owner in possession of land measuring 9 marlas out

of the land measuring 4 Kanals 13 Mis. As fully detailed

in the sub head note (ii) of the plaint. Therefore, the

findings of the learned trial Court with regard to this

effect only are reversed and set aside. However, there is

nothing on record calling interference of this court in

the remaining findings arrived at by the Ld. Trial Court

which are based on the correct appreciation of facts

and evidence on the file. No order as to costs. Decree

sheet be prepared. The learned lower court record be

returned and appeal file be consigned to the record

room.”

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.

15. Nirmal Gill (respondent No. 1) filed second appeals before

the   High   Court   being   R.S.A.   No.   2901/2012   and   R.S.A.   No.

3881/2012 against Civil Appeal No. 3/2009 and Civil Appeal No.

4/2009 respectively. While admitting the second appeal, the High

Court formulated two questions as substantial questions of law.

The same read thus:

12

“1.  Whether the findings of the learned Courts below

are sustainable in view of the fact that the question of

fraud was apparent?

2. Whether the findings of the learned courts below

are in accordance with the settled provisions of law and

the questions of law and the question of fraud and

limitation   had   been   wrongly   decided   by   the   courts

below?”

16. After reappreciating the factual matrix and the evidence on

record, the High Court opined that the trial Court as well as the

first appellate Court committed manifest error and misapplied

the settled legal position. On this finding, the High Court went on

to reverse the concurrent opinion of two Courts.

17. Being   aggrieved,   the   defendant   Nos.   1,   4   to   6   and   the

subsequent purchasers approached this Court by way of present

appeals. The former set of appeals [arising out of SLP(C) Nos.

21326­21327/2019] had been preferred by defendant Nos. 1, 4 to

6 and the latter [arising out of SLP(C) Nos. 29775­29776/2019]

by the subsequent purchasers.

18. According to the defendant Nos. 1, 4 to 6, interference by

the High Court in the present matter was unwarranted as the

same did not involve any substantial question of law. It was

urged that judgments of the trial Court, as well as, the first

appellate Court have been passed after proper appreciation of

13

evidence, therefore, the High Court ought not to have interfered

with   the   concurrent   findings   of   facts   –   as   re­appreciation   of

evidence is not permissible in second appeal.  It was then argued

that the plea of fraud was not taken in plaint in terms of Order 6

Rule 4 of the Civil Procedure Code7

 and thus, the same cannot be

considered. On merits, the aforesaid defendants contended that

the evidence of the plaintiff was self­contradictory, as she first

claimed that her signatures were taken on blank papers and then

denied her signatures occurring on the 1990 GPA. The plea that

the signatures were taken on blank papers was not substantiated

as the 1990 GPA was executed on stamp papers. Further, the

High Court observed that there was no need of the 1990 GPA

when the 1963 GPA was in existence, without noting that the

1963 GPA was jointly executed by all the legal heirs of Harbans

Singh;   while   the   1990   GPA   was   exclusively   executed   by   the

plaintiff in reference to her share in the suit property. The High

Court then noted that the defendant No. 1 did not lead evidence

to avoid being cross examined whilst ignoring the fact that she

was residing abroad at the relevant time. The signatures of the

plaintiff as well as the attesting witness Teja Singh Lamberdar

7

 For short, “the CPC”

14

were examined by expert Arvind Sood (DW7) and he had opined

that the same are genuine. As regards the address of the plaintiff

wrongly mentioned in the 1990 GPA as 775 instead of 875, it was

argued that the plaintiff denied her address only to support her

case.   The   defendant   No.   4   had   categorically   deposed   in   his

evidence that the plaintiff had been living at 775 from 1987 to

1995. Further, the plaintiff’s witness ­ PW4 had read over the

recitals   of   the   1990   GPA   to   the   plaintiff,   who   appended   her

signatures upon being satisfied about its correctness. The High

Court exceeded its jurisdiction in observing that PW4 was not

declared hostile due to reasons best known to plaintiff’s counsel;

and disregarding his evidence merely because he went to school

with the defendant No. 4.  The aforesaid defendants then urged

that the payment of consideration received in lieu of sales made

through   the   attorney   was   duly   passed   on   to   the   plaintiff.

Regarding the aspect of payment of Rs.5 lakhs to son of the

plaintiff, Charanjit Singh, the same was not raised before the trial

Court. Further, if he had carried the said cash with him from

Delhi to Punjab, then there was no reason why he could not carry

it back. As regards rights of the subsequent purchasers, it was

15

urged that there was no dispute till 2001 and therefore, the

aforesaid purchasers could not have doubted before purchasing.

19. The   subsequent   purchasers   would   submit   that   before

purchasing  the  plot  at   Jalandhar,  they  duly  verified  the  title

deeds as also the correctness and genuineness of the 1990 GPA.

The 1990 GPA is a registered document and enquiries were made

by verifying the same in the Sub­Registrar’s office and only after

being   satisfied,   the   said   plot   was   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 of the trial Court and the first appellate Court, which

were contrary to evidence brought on record and against the

settled principles of law. It was submitted that after the death of

Harbans   Singh,   defendant   Nos.   3   and   4   were   taking   up   the

cultivation of the joint land with permission of the plaintiff, which

shows that they enjoyed active confidence of the plaintiff. It was

submitted that the plaintiff had never executed any GPA or sale

deed in favour of the defendants. It was urged that the 1990 GPA

was   laden   with   many   discrepancies   which   prove   it   being   a

16

product of fraud and forgery. The address of the plaintiff had

wrongly been mentioned as 775 instead of 875 in the 1990 GPA

as well as in the stamp vendor’s record. Further, the scribe (PW4)

who   claimed   to   have   prepared   it   on   the   instructions   of   the

plaintiff had failed to identify the plaintiff. Moreover, the PW4 was

admittedly known to the defendant No. 4 since their school days.

There appeared to be an alteration to the date of execution of the

1990 GPA and the serial number of the stamp paper, which

showed that the same was done to suit the defendants. In regard

to the documents registered on 29.06.1990, it was submitted

that PW4 in his register had entered the 1990 GPA at Serial No.

390 after entering sale deed at Serial No. 388 and Special Power

of Attorney in favour of defendant No. 1 at Serial No. 389, which

defies reason that plaintiff first sold land to the defendant Nos. 3

and 4 and then executed GPA in respect of the said land in

favour of defendant No. 1. 

21. It was then contended that the attesting witnesses were

defendants’ men and were not known to the plaintiff. The reason

for execution of the 1990 GPA stated in its recitals was that the

plaintiff was unable to look after the properties being a woman

and then it was in turn executed in favour of another woman,

17

defendant   No.   1.   The   plaintiff’s   photograph   and   thumb

impression   were   also   not   affixed   on   the   GPA   and   the   same

appears to have been registered by impersonating plaintiff. The

handwriting   expert  Jassy   Anand  (PW10)   had  opined   that  the

signatures 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 the consideration of the alleged sales had never

been passed on to the plaintiff.   It was pointed out that the

defendants had mortgaged the joint lands several 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 the lands

for   consideration.   It   was   submitted   that   the   defendants

attempted   to   show   that   the   consideration   was   paid   out   of

proceeds received by sale of their mother’s property, however

there was no evidence on record as to existence of any such

property. Moreover, the attesting witness of the sale deeds could

not identify the plaintiff. Similarly, the subsequent purchasers

also   could   not   identify   the   plaintiff.   They   had   also   failed   to

showcase  that  attempts  were  made in   order  to  ascertain  the

genuineness of the 1990 GPA or to contact the plaintiff. The

consideration of her step brothers/defendants was paid in their

18

own names while the share of consideration of plaintiff was paid

in the name of defendant No. 1. The defendant No. 4 also tried to

pass   off   Charanjit   Singh’s   money   returned   to   him   as   sale

consideration received by him on behalf of the plaintiff in respect

of sales executed by defendant No. 1. Further, it was submitted

that the Special Power of Attorney dated 29.06.1990 could not be

challenged as the same was not available in the Sub­Registrar’s

office and was not produced by the defendants on record. The

1963 GPA could not be challenged, being a document more than

thirty years old. The plaintiff and the defendant Nos. 3 to 6 were

on cordial terms and hence they were in a fiduciary relationship

with the plaintiff, therefore, the burden of proving that there was

no presence of any fraud would lie on the defendants, which they

failed to discharge.

22.  We have heard Mr. T.S. Doabia, learned Senior counsel and

Mr. Jagjit Singh Chhabra, learned counsel for defendant Nos. 1

and 3 to 6, Mr. Subhashish Bhowmik, learned counsel for the

subsequent purchasers and Nirmal Gill, who appeared in person,

as the legal representative of the plaintiff.

19

23. The questions that arise for our consideration in the present

appeals are:

1. Whether  the   suits  filed  by  the   plaintiff  were  within

limitation?

2. Whether   the   1990   GPA   and   sale   deeds   dated

29.06.1990   and   03.07.1990   purported   to   have   been

executed by the plaintiff is a result of fraud and forgery or

whether   the   same   had   been   executed   by   the   plaintiff

herself?

24. Before venturing into the question of limitation, we deem it

appropriate to examine the issue of fraud and its knowledge,

which will go to the root of the case.

I. FRAUD

25. The fraud in the present lis is allegedly committed in respect

of   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 on 03.07.1990 respectively. We may examine the

findings in respect of these documents separately.

Fraud   in   respect   of   the   1990   GPA   and   sale   deed   dated

29.06.1990

20

26. The plaintiff had pleaded that defendant No. 3 had come to

Delhi to call her to village for the purpose of mutation of their

father’s   estate   and   accordingly,   she   had   visited   the   village

whereat the defendants obtained her signatures on blank papers

on the pretext of preparing documents for mutation. When she

learnt about the existence of the 1990 GPA and the sale deed,

she verily believed that the said blank papers had been misused.

However, upon production of the original GPA by the defendants

during trial, she claimed that the said document is not scribed

upon the blank signed papers and was instead a product of

forgery 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

address and alteration of the date of execution. Further, it was

contended that if the reason for execution was that plaintiff is a

woman, it defied logic to execute the same in favour of another

woman.   Reliance was placed on the testimony of the scribe

(PW4), wherein he had stated that he would enter the documents

in his register in order of execution, whereas the 1990 GPA which

was allegedly executed on 28.09.1990 but had been entered in

21

his register after the sale deed of 29.09.1990.  The plaintiff also

claimed that the attesting witnesses were not known to her.

28. Per contra, the defendants relying upon the testimony of the

scribe (plaintiff’s witness ­ PW4), would urge that he (PW4) had

prepared the aforesaid documents as per the instructions of the

plaintiff.   The   defendants   got   the   admitted   signatures   of   Teja

Singh Lamberdar, one of the attesting witnesses of the aforesaid

documents,   compared   by   the   handwriting   expert   (DW7)   and

relied upon his opinion. The defendants had further relied upon

the testimonies of Kultar Singh (DW2) and Avtar Singh (DW4),

who identified the signatures of Teja Singh Lamberdar.

29. The trial Court while dealing with the aforesaid issue had

found that the plaintiff was present in the village at the time of

execution of the 1990 GPA and the sale deed dated 29.06.1990.

Further,   the   stated   documents   scribed   on   the   stamp   papers

purchased   in   name   of   the   plaintiff,   bear   her   signatures   and

endorsements   made   by   the   Sub­Registrar,   evidencing   its

registration. Therefore, it was for the plaintiff to bring on record

facts and circumstances under which fraud had been played. It

was observed that had the plaintiff signed on blank papers for

22

mutation, she would have enquired regarding the status thereof.

The trial Court also noted that the signatures of the attesting

witnesses   were   identified   and   proved.   The   trial   Court   then

analysed the testimony of the scribe (PW4) that he had prepared

the documents upon instructions of the plaintiff and read them

over to her, and the plaintiff after admitting correctness of the

documents had appended her signatures.  The trial Court went

on to observe that the scribe was plaintiff’s own witness and had

not been declared hostile.  Further, the plaintiff made no attempt

to seek explanation from her witness (PW4) as to the sequence of

the entries 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 to be genuine by DW2, DW4 and DW7

and thus concluded that the 1990 GPA and the sale deed stood

proved. The relevant extracts of the judgment of the trial Court

are reproduced below:

“48.  Further, in my opinion, if as per the plaintiff, she

gave her signatures on blank papers in the year 1990

for   the   purposes   of   sanctioning   of   mutation   of

inheritance,   then   whether   she   asked   from   her   step

brothers about those proceedings afterwards. Plaintiff is

an   educated   lady.   She   knows   the   things   very   well.

There is no such thing on the file that after giving her

signatures on blank papers as alleged by her, she ever

23

made any effort to ask her step brothers about those

mutation proceedings. It does not appeal to reason that

plaintiff would remain mum for such long period and

would not ask anything about those proceedings from

the defendants till as per the contention of the plaintiff,

she   came   to   know   about   the   execution   of   power   of

attorney in the year 2001 in some family function.

xxx xxx xxx

51.  ...   The   original   power   of   attorney   was   put   to

Joginder Kaur during her cross­examination but she

stated that it does not bear her signatures anywhere

and she also replied that she need not see the original

for this purpose because her signatures were obtained

on blank papers at the instance of some person who

said he would made said writing on it.

52.  Here   at   this   juncture   I   would   like   to   make

reference of statement of PW4 Balkar Singh because his

reference would clinch the matter in controversy. PW­4

Balkar   Singh   is   a   deed   writer   at   Tehsil   Complex

Dasuya. This witness in his examination in chief stated

that he personally knows Joginder Kaur plaintiff and

Rattan Singh. ...

53.  The   cross­examination   of   this   witness   is   also

relevant to be discussed. In his cross­examination, he

has categorically stated that he scribed the document

as  the  instance of Joginder  Kaur,  after scribing  the

power of attorney at his seat, he read over it to the

parties, and then parties after admitting it to be correct

put their signatures in the presence of the attesting

witnesses. He categorically stated that Joginder Kaur

plaintiff   in   his   presence   put   her   signatures   in

English. ...

xxx xxx xxx

64.  Further   the   Learned   Counsel   for   the   plaintiff

raised   the   point   that   when   the   plaintiff   had   not

admitted   the   execution   of   power   of   attorney   dated

28.06.1990   registered   on   29.06.1990,   then   the

defendant   was   required   to   examine   the   attesting

witnesses of this document and in case of failure of

non­examining of any of the attesting witnesses, the

adverse   inference   should   be   taken   against   the

defendants. Then at this juncture the Learned Defence

Counsel raised the point that original attorney dated

28.06.90 was witnessed by Teja Singh Lambardar and

Gurcharan Singh son of Gian Singh resident of Village

Ludiani. He raised the point that Teja Singh Lambardar

24

had since died. The defendant examined DW.2 Kultar

Singh who deposed to this effect that the sale deed

dated 25.01.1984 Ex. DW3/A was executed and Teja

Singh Lambardar was one of the attesting witness of

the same. Similarly, Kultar Singh DW.2 who was one of

the   executants   of   the   sale   deed   Ex.   DW3/A   has

identified his signature as well as signatures of Teja

Singh Lambardar on the sale deed dated Ex. DW3/A

and DW.4 Avatar Singh had identified the signatures of

Teja   Singh   Lambardar   on   the   sale   deed   dated

24.12.1981 Ex. DW2/A in Urdu script. DW.5 Gurdial

Singh deposed that he purchased the land measuring

15 Kanals 7 Marlas from Teja Singh son of Bhag Singh

and that Teja Singh vendor was Lambardar of Village

Kalyanpur and he identified his signatures on the sale

deed dated 15.06.1983 Ex. D5 and he further raised

the   point   that   DW.7   Arvind   Sood   the   Hand   writing

Expert of the defendants got compared the signatures

of Teja Singh appearing on the power of attorney dated

28.06.1990   with   these   signatures   appearing   on   the

above referred documents and in his report Ex. DW7/A

stated that the questioned signatures as well as the

disputed signatures are of one of the same person...”

30. The first appellate Court concurred with the trial Court’s

findings and had held that a bare perusal of the evidence reveals

that the 1990 GPA was executed by the plaintiff. Further, the

haphazard entries made by the scribe will be of no avail, much

less it would not disprove the registered documents. Further, the

defendants cannot be burdened with the actions of the scribe,

who was the plaintiff’s witness. 

31. While reversing the findings of the trial Court and the first

appellate Court, the High Court had observed that if the plaintiff

could   be   available   for   execution   of   the   sale   deeds,   it   is

25

unfathomable that the plaintiff would have ever executed the

GPA. It further held that the testimony of PW4 cannot be believed

as he was known to defendant No. 4 since his school days. It was

observed that the 1990 GPA appears to have been executed by

fraud, in the following words:

“In the present  case,  it  is relevant  to note  that  the

General Power of Attorney dated 28.06.1990 contains a

recital that it is being executed by the plaintiff as she is

unable to look after the affairs regarding the land being

a   woman.   In   such   a   situation,   it   is   opposed   to   all

probabilities and common sense that the General Power

of   Attorney   would   have   been   executed   in   favour   of

another woman Harcharan Kaur, who is none other but

the   wife   of   Rattan   Singh,   the   step   brother   of   the

plaintiff.   In   case,   the   power   of   attorney   had   to   be

executed, it would have been in favour of the brother

himself. It is not difficult to appreciate that the plaintiff

­ Joginder Kaur being the child of Harbans Singh from

his first marriage would have looked to her four step

brothers being her parental family. It is natural that

she would always look to them to keep alive that link to

her father through her step brothers, especially as she

was treated with love and affection, obviously showered

upon   her   by   them   for   considerations,   which   are

apparent   from   the   record.   This   is   particularly

understandable keeping in view the societal norms and

values especially prevalent at that time. The defendants

have   admitted   that   the   plaintiff   maintained   contact

with her step brothers and would often visit and stay

with them. The fraudulent intention and dishonest plan

of the said defendants is apparent and can easily be

inferred from the evidence on record.

At this stage, it is necessary to make a mention of

another   General   Power   of   Attorney   08.10.1963,

purportedly executed by the plaintiff in favour of her

brother Gurdial Singh. In case, such power of attorney

by   the   plaintiff   alongwith   others,   already   stood

executed,   there   was   no   requirement   whatsoever   for

having executed another power of attorney in the year

1990. Address of plaintiff ­ Joginder Kaur was wrongly

26

mentioned   in   the   power   of   attorney   as   775,   Vikas

Kunj/Vikas Puri, Delhi whereas there is no palpable

reason for having mentioned an incorrect address in

the power of attorney. There is merit in the argument

that a fictitious address was deliberately inserted so

that a third person may not be able to even contact the

plaintiff.

Furthermore, reliance by the learned courts below on

the   testimony   of   Balkar   Singh   PW   4,   to   accept   the

veracity of the General Power of Attorney and two of the

sale deeds is clearly misplaced. This is so for the reason

that it is a matter of record that PW 4 Balkar Singh was

well known to the defendant Rattan Singh. PW 4 has

testified   that   he   knew   Rattan   Singh   since   school.

Sequence of the entries in the register of PW 4, do raise

a suspicion regarding the execution of the documents

in question. PW 4 has testified that whenever he scribes

a document, he carries out the necessary entry in his

register and the documents are entered in the order in

which he scribes them. It is a matter of record that the

entry regarding sale deed dated 29.06.1990 is scribed

at serial No. 388 i.e. prior to the entry at No. 390 in

respect to the General Power of Attorney claimed to

have   been   scribed   on   28.06.1990.   There   is   another

special power of attorney purported to be executed by

the plaintiff in favour of Harcharan Kaur wife of Rattan

Singh.   There   is   a   cutting   in   date   on   the   power   of

attorney insofar as the date '28' is concerned. ... The

said   witness   was   not   declared   hostile   as   per   the

appellant due to reasons best known to their counsel.

... In case, the plaintiff could be available for execution

of the said sale deeds, it does not stand to reason, as to

why she would have ever executed the General Power of

Attorney in favour of Harcharan Kaur. Vide the said

sale deeds, land in question was transferred to her step

brothers Gurdial Singh and Rattan Singh.

.....

…     The   attesting   witnesses   of   the   sale   deed   dated

29.06.1990 were not examined. It bears reiteration that

the above said facts have been discussed only to bring

out the fraud perpetuated on the plaintiff ­ Joginder

Kaur. …”

27

32. To appreciate the findings arrived at by the Courts below,

we must first see on whom the onus of proof lies. The record

reveals   that   the   disputed   documents   are   registered.   We   are,

therefore, guided by the settled legal principle that a document is

presumed to be genuine if the same 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 as below:

“27.  There   is   a   presumption   that   a   registered

document is validly executed. A registered document,

therefore, prima facie would be valid in law. The onus of

proof, thus, would be on a person who leads evidence to

rebut the presumption. In the instant case, Respondent

1 has not been able to rebut the said presumption.”

(emphasis supplied)

In view thereof, in the present cases, the initial onus was on the

plaintiff, who had challenged the stated registered document. 

33. Be that as it may, before examining whether the plaintiff

discharged that onus and thus shifted it on the defendants, we

may take note of procedure prescribed for proof of execution of

document. In this regard, we refer to Section 68 of the Indian

Evidence Act, 18729

.  The same is reproduced hereunder:

“68.­ Proof   of   execution   of   document   required   by

law to be attested. ­  If a document is required by law

to be attested, it shall not be used as evidence until one

8 (2006) 5 SCC 353

9

 For short, “the 1872 Act”

28

attesting   witness   at   least   has   been   called   for   the

purpose of proving its execution, if there be an attesting

witness alive, and subject to the process of the Court

and capable of giving evidence:

Provided   that   it   shall  not  be  necessary   to   call   an

attesting  witness   in  proof  of  the  execution  of  any

document, not   being   a   will,  which   has   been

registered in accordance with the provisions of the

Indian  Registration  Act,  1908   (16  of  1908),  unless

its execution by the person by whom it purports to

have been executed is specifically denied.”

(emphasis supplied)

34. As the execution of the 1990 GPA and the sale deeds in the

present cases is denied by the plaintiff, it became necessary for

the plaintiff to examine the attesting witnesses of the disputed

documents to establish her allegation about its non­execution.

For, the documents had been registered on 29.06.1990 and came

to be attested by Teja Singh Lamberdar and Gurcharan Singh.

However,   both   the   attesting   witnesses   were   not   examined.

Indeed, Teja Singh had since died but there is nothing on record

regarding availability of Gurcharan Singh. Thus, we must now

advert to Section 69 of the 1872 Act which provides for proof

when no attesting witness is found. The same is extracted below:

“69.­ Proof where no attesting witness found.­ If no

such attesting witness can be found, or if the document

purports to have been executed in the United Kingdom,

it must be proved that the attestation of one attesting

witness at least is in his handwriting, and that the

signature of the person executing the document is in

the hand writing of that person.”

29

35. The   fact   that   the   subject   documents   were   executed   by

plaintiff and attested by Teja Singh has been established from

record in the shape of evidence of PW4 as well as defendant No.

4. The signatures of Teja Singh were identified by DW2, who

deposed that he was conversant with Urdu language and could

identify the signature of Teja Singh, which was in Urdu language.

Further, DW4 deposed that he used to pay land revenue to Teja

Singh and received receipts from him. Moreover, the handwriting

expert (DW7) had also compared the admitted signatures of Teja

Singh with those on the disputed documents and opined that it

was signed by him, while the expert produced by the plaintiff as

PW10 had not examined the admitted signatures of Teja Singh.

Therefore, the signatures 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.­ If the attesting witness denies or does not

recollect the execution of the document, its execution

may be proved by other evidence.”

30

37. Here, the evidence of plaintiff’s witness­PW4 comes to aid of

the defendants as the same unveils that the stated documents

were prepared on the basis of instructions of the plaintiff and had

been   duly   executed   by   her   in   the   presence   of   the   attesting

witnesses.

38. At this stage, it may be noted that the trial Court and the

first appellate Court had relied upon the evidence of PW4. The

High Court, however, proceeded on surmises and conjectures

and took a view which is perverse and tenuous.   In that, the

ground on which the High Court rejected the evidence of PW4 is

that he was known to the defendant No. 4 since his school days.

We  do not  find it  to  be  a correct  approach  to  disregard  the

credible testimony of the witness examined by the plaintiff herself

(without declaring him as a hostile witness) and especially when

it had come on record that the said scribe is a regular deed writer

at  the  Tehsil  complex,  Dasuya.   Notably,  PW4  had  not  been

declared hostile at the instance of the plaintiff and as such, this

part of his testimony would be staring at the plaintiff. 

39. The plaintiff had then contended that the burden of proving

that there is no involvement of fraud would be on the defendants

31

as they enjoyed active confidence of the plaintiff. To establish the

presence   of   active   confidence,   the   plaintiff   relied   upon   the

testimony   of   DW2   and   DW4   whilst   pointing   out   that   the

defendants  were  cultivating the  joint  lands.  The plaintiff  also

contended that the same was with her permission. The fact that

she was on visiting terms with the defendants also shows the

existence of trust and hunky­dory between the parties. 

40. 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.

41. The   High   Court,   however,   went   on   to   observe   that

defendants had abused their position of active confidence, in the

following words: 

“…..

32

The   entire   exercise   indeed   smacks   of   connivance,

misrepresentation   and   fraud.   This   Court   would   be

failing   in   its   duty,   if   the   necessary   inference   is   not

drawn from the evidence on record. Present is a clearcut case of an unsuspecting sister being defrauded by

her own step brothers/bhabi in whom she had reposed

implicit trust. It is a clear case of misuse and abuse of

the position of confidence held by the step brothers of

the plaintiff. …”

The requirement regarding shifting of burden onto the defendants

had   been   succinctly   discussed   in  Anil   Rishi   v.   Gurbaksh

Singh10

, wherein this Court had held that 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.   The   relevant   extract   of   the   said

decision is reproduced as thus:

“8.  The   initial   burden   of   proof   would   be   on   the

plaintiff in view of Section 101 of the Evidence Act,

which reads as under:

“101. Burden of proof.—Whoever desires any

court to give judgment as to any legal right

or  liability  dependent   on  the  existence  of

facts   which   he   asserts,   must   prove   that

those facts exist.

When   a   person   is   bound   to   prove   the

existence   of   any   fact,   it   is   said   that   the

burden of proof lies on that person.”

9. In   terms   of   the   said   provision,   the   burden   of

proving the fact rests on the party who substantially

asserts the affirmative issues and not the party who

denies it. The said rule may not be universal in its

application and there may be an exception thereto. The

learned trial court and the High Court proceeded on the

basis that the defendant was in a dominating position

10 (2006) 5 SCC 558

33

and there had been a fiduciary relationship between the

parties. The appellant in his written statement denied

and disputed the said averments made in the plaint.

10.  Pleading is not evidence, far less proof. Issues are

raised on the basis of the pleadings. The defendantappellant   having   not   admitted   or   acknowledged   the

fiduciary relationship between the parties, indisputably,

the relationship between the parties itself would be an

issue. The suit will fail if both the parties do not adduce

any evidence, in view of Section 102 of the Evidence

Act. Thus, ordinarily, the burden of proof would be on

the party who asserts the affirmative of the issue and it

rests,   after   evidence   is   gone   into,   upon   the   party

against   whom,   at   the   time   the   question   arises,

judgment would be given, if no further evidence were to

be adduced by either side.

11.  The fact that the defendant was in a dominant

position  must,   thus,   be  proved   by   the  plaintiff   at

the first instance.

       xxx xxx xxx

14.  But   before   such   a   finding   is   arrived   at,   the

averments   as   regards   alleged   fiduciary   relationship

must be established before a presumption of undue

influence   against   a   person   in   position   of   active

confidence is drawn. The factum of active confidence

should also be established.

15.  Section 111 of the Evidence Act will apply when

the bona fides of a transaction is in question but not

when the real nature thereof is in question. The words

“active   confidence”   indicate   that   the   relationship

between the parties must be such that one is bound to

protect the interests of the other.

16.  Thus, point for determination of binding interests

or which are the cases which come within the rule of

active confidence would vary from case to case. If the

plaintiff   fails   to   prove   the   existence   of   the   fiduciary

relationship or the position of active confidence held by

the defendant­appellant, the burden would lie on him

as he had alleged fraud. The trial court and the High

Court, therefore, in our opinion, cannot be said to be

correct in holding that without anything further, the

burden of proof would be on the defendant.”

(emphasis supplied)

34

42. Let us now examine if the above requirement is satisfied in

the   fact   situation   of   the   present   case   and   if   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. The defendant Nos. 3 and 4 were

cultivating the lands along with their father Harbans Singh and

continued to do so even after his death. The principle underlying

the reported decision must come to the aid of defendants as the

plaintiff had failed to prove the fact of misuse of trust by the

defendants as such. 

43. Further, the plaintiff attempted to project the 1990 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 had failed to do.

35

44. 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

land situate at Kalyanpur village. 

45. The other reason weighed with the High Court that 1990

GPA was allegedly executed by the plaintiff as she being a woman

is   also   of   no   consequence   as   the   words   ‘being   a   lady’   were

preceded by ‘I am old and weak’.  Thus, 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.

46. Suffice it to observe that the contention that the registration

of the 1990 GPA as well as the sale deeds, had been effected by

36

impersonating the plaintiff has not been proved.  No credible and

tangible evidence has been led in that regard. It is merely a bald

plea set up by the plaintiff.

47. The plaintiff’s denial of being acquainted with the attesting

witnesses,   is,   also   a   ruse   and   not   genuine.   For,   one   of   the

attesting witnesses Teja Singh 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 Teja Singh is farfetched. 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, as held by this

Court in  Satya  Gupta  (Smt.)  alias  Madhu  Gupta   v.  Brijesh

Kumar11. The relevant paragraph of the said decision is extracted

hereunder: 

“16. At the outset, we would like to point out that the

findings on facts by the lower appellate court as a final

court of facts, are based on appreciation of evidence

and the same cannot be treated as perverse or based on

no evidence. That being the position, we are of the view

that the High Court, after reappreciating the evidence

and without finding that the conclusions reached by

the   lower   appellate   court   were   not   based   on   the

11 (1998) 6 SCC 423

37

evidence,   reversed   the   conclusions   on   facts   on   the

ground that the view taken by it was also a possible

view on the facts. The High Court, it is well settled,

while exercising jurisdiction under Section 100 CPC,

cannot reverse the findings of the lower appellate court

on facts merely on the ground that on the facts found

by the lower appellate court another 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

plaintiff had asserted that the same was not executed by her. It

was then contended that the sale consideration had not been

passed on to her which makes it evident that the sale deed was

never executed by her. The plaintiff relied upon the testimony of

defendant   No.   4,   wherein   he   had   stated   that   the   defendants

needed money and had taken loans on the joint lands, to prove

that   the   defendants   did   not   possess   means   to   pay   the   sale

consideration. Further, it was contended that the testimony of

attesting witness, Anoop Singh (DW3) cannot be considered as he

failed to identify the plaintiff.

49. In   contrast,   the   defendants   had   claimed   that   the   sale

consideration   had   been   duly   paid   out   of   the   sale   proceeds

received by selling another land belonging to their mother. The

38

defendants placed reliance on the testimonies of the scribe (PW4)

and DW3.

50. The trial Court analysed the testimony of DW3 and noted

that   he   had   clearly   stated   the   plaintiff   was   known   to   him

personally. He had deposed that sale deed was executed by the

plaintiff in his presence and the same was for a sum of Rs.

86,000/­. It was further held that though the witness failed to

identify the photographs of the plaintiff, adverse inference cannot

be drawn as the sale deed was executed in the year 1990 whereas

the evidence was given in the year 2007.

51. The first appellate Court also agreed with the view taken by

the trial Court whilst observing that the plaintiff would not have

executed   the   sale   deed   had   she   not   received   the   sale

consideration. 

52. The High Court yet again deviated from the approach of the

trial Court and the first appellate Court and 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,

39

defendant No. 4 and DW3 denied each other’s presence. The

relevant portion of the High Court’s judgment reads as under: 

“...... 

…  Testimony of DW 3 Anoop Singh, who is one of the

attesting witnesses of the sale deed dated 03.07.1990,

is   extremely   telling   of   the   facts   of   the   case.   DW   3

though stated that the sale deed in question was read

over   to   Joginder   Kaur   in   his   presence   and   in   the

presence of other witness Teja Singh, Lambardar, could

not even identify the plaintiff. Therefore, it is apparent

that his testimony is not useful to the defendants for

proving sale deed dated 03.07.1990. He did not have a

clue regarding the passing of consideration in this case.

DW 6 Rattan Singh has asserted that Gurcharan Singh

of Ludhiana was present. DW 3 and DW 6 have denied

each others presence at the time of execution of the

sale deed. …”

53. Before analysing the evidence of DW3, it may be noted that

since the sale deed requires attestation by two witnesses, as

discussed above, the same has to be proved as per procedure laid

down under Section 68 of the 1872 Act. 

54. The   sale   deed   of   03.07.1990   had   been   attested   by   Teja

Singh Lamberdar and Anoop Singh (DW3). The attesting witness

(DW3) was examined and he had deposed that the said sale deed

was   executed   by   the   plaintiff   in   his   presence,   as   well   as   in

presence   of  Teja  Singh   and  defendant   No.  3.  He  had   denied

presence   of   any   other   person.   He   stated   that   the   sale

40

consideration was paid at home directly and not in his presence.

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   Rajasthan12

, wherein   it   has   been   held   that   a

hypersensitive approach ought not be taken in cases where there

has been a delay in recording evidence. The relevant portion of

the decision is extracted below:

“7. In   order   to   consider   the   correctness   of

conclusions arrived at by the two courts below, it has to

be seen whether evidence of PW 15 has been rightly

accepted to be truthful and reliable. So far as PW 15 is

concerned,   it   has   to   be   noted   that   at   the   time   of

occurrence he was about 13 years of age and was a

student. The incident is of October 1990. PW 15 was

examined   in   August   1997   i.e.   nearly   after   seven

years. It cannot be lost sight of that long passage of

time   sometimes   erases   the   memory   and   minute

details are lost sight of. In this background, it has

been  stated  that   if  a  case   is  proved  perfectly  it   is

argued that it is artificial. If a case has some flaws

inevitably because human beings are prone to err, it

is argued that it is too imperfect. While, therefore,

assessing the evidence one has to keep realities in

view and not adopt a hypersensitive approach. The

so­called   discrepancies   pointed   out   by   the   learned

counsel for the appellants like the vehicle from which

the witness saw the approaching bus or with which

part of the offending vehicle the cycle was hit are too

trifle   to   affect   the   credibility   of   PW   15's   evidence.

Filtering out these minor discrepancies, cream of the

evidence   remains   on   which   the   credibility   of   the

evidence lies. That being so, the conclusions arrived at

by the two courts below on evaluation of evidence do

not need any interference.”

(emphasis supplied)

12 (2004) 12 SCC 336

41

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. Thus, as discussed in the

preceding paragraphs, 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.

56. Be that as it may, with reference to the said sale deed, the

defendant No. 4 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 defendants No. 3 and himself. He stated

that Teja Singh and Gurcharan Singh were also present. 

57. To examine the correctness of opinion of the High Court in

disregarding the testimony of DW3 (on the ground that he could

not identify the plaintiff and that the defendant No. 4 and DW3

denied each other’s presence), we may refer to the definition of

‘attested’ under Section 3 of the Transfer of Property Act, 1882

which is reproduced below:

“3.­  Interpretation Clause.­  In this Act, unless there

is something repugnant in the subject or context,­

42

…

"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,

or has seen some other person sign the instrument in

the presence and by the direction of the executant, or

has   received   from   the   executant   a   personal

acknowledgement of his signature or mark, or of the

signature of such other person, and each of whom has

signed   the   instrument   in   the   presence   of   the

executant; but it shall not be necessary that more than

one of such witnesses shall have been present at the

same time, and no particular form of attestation shall

be necessary.”

(emphasis supplied)

58. 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 Teja Singh.

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 also 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. 

43

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   to   be   necessarily   accorded   a   strict

interpretation.   The   two   contingencies   permitting

the play of this provision, namely, denial or failure

to recollect the execution by the attesting witness

produced,   thus   a   fortiori   has   to   be   extended   a

meaning to ensure that the limited liberty granted

by   Section   71   of   the   1872   Act   does   not   in   any

manner   efface   or   emasculate   the   essence   and

efficacy of Section 63 of the Act and Section 68 of

the  1872  Act.  The distinction between failure on the

part of an attesting witness to prove the execution and

attestation of a will and his or her denial of the said

event   or   failure   to   recollect   the   same,   has   to   be

essentially   maintained.   Any  unwarranted   indulgence,

permitting   extra   liberal   flexibility   to   these   two

stipulations, would render the predication of Section 63

of the Act and Section 68 of the 1872 Act, otiose. The

propounder   can   be   initiated   to   the   benefit   of

Section   71   of   the   1872   Act   only   if   the   attesting

witness/witnesses,   who   is/are   alive   and   is/are

produced and in clear terms either denies/deny the

execution  of the document or cannot recollect the

said   incident.  Not   only,   this   witness/witnesses

has/have  to   be   credible   and   impartial,  the   evidence

adduced ought to demonstrate unhesitant denial of the

execution   of   the   document   or   authenticate   real

forgetfulness of such fact. If the testimony evinces a

casual account of the execution and attestation of the

document  disregardful of truth, and thereby  fails to

prove these two essentials as per law, the propounder

cannot be permitted to adduce other evidence under

cover of Section 71 of the 1872 Act. Such a sanction

would  not   only  be   incompatible   with   the  scheme  of

Section 63 of the Act read with Section 68 of the 1872

Act but also would be extinctive of the paramountcy

and   sacrosanctity   thereof,   a   consequence,   not

13 (2015) 8 SCC 615

44

legislatively intended. If the evidence of the witnesses

produced by the propounder 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 roving pursuit. In

absence of any touch of truthfulness and genuineness

in the overall approach, this provision, which is not a

substitute of Section 63(c) of the Act and Section 68 of

the 1872 Act, cannot be invoked to supplement such

failed speculative endeavour.”

(emphasis supplied)

60. It is noteworthy that defendant No. 4 had not signed the

sale deed despite being a vendee. In Aloka Bose v. Parmatma

Devi and Ors.14, it has been held that signature of the vendee is

not mandatory in a sale deed. The relevant portion of the said

decision is extracted hereunder:

“18. In any agreement of sale, the terms are always

negotiated and thereafter reduced in the form of an

agreement of sale and signed by both parties or the

vendor   alone   (unless   it   is   by   a   series   of   offers   and

counter­offers by letters or other modes of recognised

communication). In India, an agreement of sale signed

by the vendor alone and delivered to the purchaser, and

accepted by the purchaser, has always been considered

to be a valid contract. In the event of breach by the

vendor, it can be specifically enforced by the purchaser.

There   is,   however,   no   practice   of   purchaser   alone

signing an agreement of sale.

19. The defendant next contended that the agreement

of sale in this case (Ext. 2) was clearly in a form which

required signatures of both the vendor and purchaser.

It   is   pointed   out   that   the   agreement   begins   as:

“Agreement   for   sale   between   Kanika   Bose   and

Parmatma   Devi”   and   not   an   “Agreement   of   sale

executed by Kanika Bose in favour of Parmatma Devi”.

Our attention is also drawn to the testimonium clause

(the provision at the end of the instrument stating when

14 (2009) 2 SCC 582

45

and by whom it was signed) of the agreement, which

reads thus:

“In   witnesses   whereof,   the   parties   hereto

have   hereunto   set   and   subscribed   their

respective   hands   and   seals   on   these

presents.”

It is therefore contended that the agreement specifically

contemplated execution by both parties; and as it was

not so executed, it was incomplete and unenforceable.

20. We have carefully examined the agreement (Ext.

2), a photocopy of which is produced. The testimonium

portion in the agreement is in an archaic form which

has lost its meaning. Parties no longer “subscribe their

respective hands and seals”. It is true that the format

obviously contemplates signature by both parties. But

it is clear that the intention of the parties was that it

should be complete on signature by only the vendor.

This   is   evident   from   the   fact   that   the   document   is

signed   by   the   vendor   and   duly   witnessed   by   four

witnesses and was delivered to the purchaser. Apart

from a separate endorsement made on the date of the

agreement   itself   (7­9­1979)   by   the   vendor

acknowledging the receipt of Rs 2001 as advance, it

also contains a second endorsement (which is also duly

witnessed)   made   on   10­10­1979   by   the   vendor,

acknowledging the receipt of a further sum of Rs 2000

and confirming that the total earnest money received

was Rs 4001. This shows that the purchaser accepted

and acted in terms of the agreement which was signed,

witnessed   and   delivered   to   her   as   a   complete

instrument and that she then obtained an endorsement

thereon by the vendor, in regard to second payment. If

the agreement was not complete, the vendor would not

have   received   a   further   amount   and   endorsed   an

acknowledgment thereon on 10­10­1979.

21. Apart   from   the   above,   the   evidence   of   the

witnesses   also   shows   that   there   was   a   concluded

contract. Therefore, even though the draftsman who

prepared  the  agreement  might  have  used  a  format

intended   for   execution   by   both   vendor   and

purchaser,   the   manner   in   which   the   parties   had

proceeded,   clearly   demonstrated   that   it   was

intended to be executed only by the vendor alone.

46

22. Thus we hold that the agreement of sale (Ext. 2)

signed only by the vendor was valid and enforceable

by the purchaser.”

(emphasis supplied)

61. Since the defendant No. 4 has not signed the sale deed as a

vendee, his evidence cannot be discarded. 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.

62. The plaintiff also asserted that she had not received the

consideration in relation to the stated transactions and that the

defendants had no means to pay the consideration. It has come

on record that the defendants had mortgaged the joint lands

several   times   as   they   were   in   need   of   money.   Further,   the

defendant No. 4 after admitting to have mortgaged the land had

said   that   he   used   that   money   to   install   tubewells   and   buy

tractors. The said fact does not conclusively prove that they did

not   possess   funds   as   the   said   loans   were   obtained   to   make

investments on the joint lands and not on the personal property

of   the   defendant   No.   4.     Further,   the   defendant   No.   4   had

deposed   that   the   sale   consideration   was   paid   from   the   sale

proceeds received by selling the land of their mother in the village

47

Ashrafpur.  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   non­receipt   of   the

consideration amount. 

63. A priori, we hold that the diverse grounds urged by the

plaintiff in disputing the 1990 GPA and the sale deeds dated

29.06.1990   and   03.07.1990   are,   as   observed   hitherto,

unsubstantiated and untenable. 

Expert Opinion

64. The plaintiff got her admitted signatures compared with the

signatures on the disputed documents by a handwriting expert,

Jassy Anand (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,   Arvind   Sood   (DW7),   who   had

determined   the   disputed   signatures   to   have   been   signed   by

plaintiff herself.

48

65. The   trial   Court   and   the   first   appellate   Court   had   not

considered the contrary opinions of the experts and chose to form

their opinion based on other evidence that has come on record.

In our opinion, 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. Suffice it to say that the plaintiff failed

to prove that her signatures on the subject documents are forged.

1963 GPA not challenged

66. Further, the 1963 GPA is claimed to have been discovered

during   the   enquiries   made   by   the   plaintiff   subsequent   to

attaining knowledge of the fraud. However, the said GPA was

never   challenged   by   the   plaintiff.   The   reason   cited   for   not

challenging the said GPA is that the document being a 30­year

old document could not be challenged. 

49

67. The trial Court had observed that the plaintiff in her cross

examination, gave evasive replies when confronted with the 1963

GPA, which bears her signature. She had also admitted that she

was   taken   to   Tehsil   office   in   1963   after   her   father’s   death.

Therefore,   it   could   be   safely   accepted   that   the   plaintiff   had

executed the 1963 GPA and further she had knowledge of the

sanction of mutation in pursuance of that GPA.  Paragraph 45 of

the judgment of the trial Court is extracted below:

“45. Further, another fact which reveals that plaintiff

was   having   knowledge   regarding   sanctioning   of

mutation of inheritance, is that, prior to sanctioning of

mutation   of   inheritance   of   deceased   Harbans   Singh,

she   executed   power   of   attorney   along   with   other

defendants   dated   08.10.1963   Ex.   D19   in   favour   of

Gurdial Singh regarding the management of land and

she admitted this thing in her cross­examination that

after the death of Harbans Singh, she was taken to

Tehsil Office and when she was shown that power of

attorney which bears her signatures on different points,

she gave evasive reply."

68. The first appellate Court and the High Court had not made

any observation in that regard.

69. Since the 1963 GPA is a document which is more than 30

years old, we may advert to Section 90 of the 1872 Act, which

provides   for   the   presumption   in   favour   of   a   30­year   old

document. The same is extracted below:

50

“90.­ Presumption   as   to   documents   thirty   years

old.­  Where any document, purporting or proved to be

thirty years old, is produced from any custody which

the Court in the particular case considers proper, the

Court may presume that the signature and every other

part of such document, which purports to be in the

handwriting of any particular person, is in that persons

handwriting, and, in the case of a document executed

or attested, that it was duly executed and attested by

the persons by whom it purports to be executed and

attested.

Explanation.­­   Documents   are   said   to   be   in   proper

custody if they are in the place in which, and under the

care of the person with whom, they would naturally be;

but no custody is improper if it is proved to have had a

legitimate   origin,   or   if   the   circumstances   of   the

particular case are such as to render such an origin

probable.

This explanation applies also to section 81.”

(emphasis supplied)

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 the mode of dealing with the said presumption. The same is

extracted hereunder:

“4.­  “May Presume”.­ Whenever it is provided by this

Act that the Court may presume a fact, it may either

regard   such   fact   as   proved,   unless   and   until   it   is

disproved, or may call for proof of it.”

71. The presumption in favour of a 30­year 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

51

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.

II. LIMITATION

72. The   plaintiff   asserted   that   she   had   attended   a   family

function in February, 2001 and in the said function, while she

was interacting with one Rustam Singh, he disclosed that the

defendants have sold a portion of the joint lands. Subsequently,

she made enquiries in that regard.  As such, she had inspected

the jamabandis of the joint lands and thereupon got knowledge

about   the   existence   of   the   disputed   documents.   Immediately

upon discovery of the said documents, she filed the suits. The

suits   are   filed   within   3   years   from   the   date   of   acquiring

knowledge and are thus within limitation. 

73. To support her case, the plaintiff relied upon the testimonies

of DW3 and defendant No. 4, wherein it had come on record that

52

the plaintiff, Nirmal Gill (respondent No. 1) and Rustam Singh

were   present   in   the   aforesaid   function.   Nirmal   Gill   in   her

testimony as PW8 had deposed that there was a family gathering

in December, 2000 whereat the plaintiff enquired from defendant

Nos. 5 and 6 about the status of mutation, who informed that the

mutation could not be effected until the encroachments on the

lands   at   Jalandhar   and   Premgarh   are   cleared.   Thereafter,   in

February   2001,   there   was   another   family   gathering   wherein

Rustam Singh had passed on the said information to the plaintiff

in her presence.

74. The trial Court, while examining the issue of limitation, had

opined   that   when   the   documents   were   proved   to   have   been

executed   by   the   plaintiff   in   1990,   it   ought   to   have   been

challenged within 3 years of its execution. It was further observed

that when a specific plea is taken that the plaintiff acquired

knowledge about fraud recently in a family function, she was

obliged to examine such person who disclosed the information

and the plaintiff failed to do so. Notably, the date of the family

function   had   been   wrongly   mentioned   by   the   trial   Court   as

December, 2001.   Paragraphs 94 and 98 of the trial Court’s

judgment are reproduced below:

53

“94.  I   find   merits   in   these   arguments   advanced   by

Learned Defence Counsel because when the plaintiff is

taking a specific plea that in some family function in

December, 2001 which she as well as her daughter

attended, this thing came to their knowledge that the

power of attorney has been forged and on the basis of

that Harcharan Kaur had executed the sale deeds of

the share of plaintiff, then in those circumstances the

plaintiff   was   required   to   examine   that   person   who

disclosed   that   information   to   the   plaintiff.   But   the

plaintiff has not examined any that person.

xxx xxx xxx

98.  In my opinion, when the plaintiff is specifically

stating to have received the information in some family

function, then she was required to examine that person

from whom she received the information. But no such

evidence   is   coming   forward.  Moreover,   when   the

Court has come to the conclusion that the disputed

documents   were   executed   by   Harcharan   Kaur

(Joginder   Kaur   [sic])   on   dated   29.06.1990,

28.06.1990,   03.07.1990,   then   in   those

circumstances,   if   any   fraud   etc.   has   been   played

upon  by  the  plaintiff,  the  plaintiff  was  required to

file   the   suit   within   the   period   of   three   years.  So

apparently the suit filed by the plaintiff is barred by

limitation. Therefore, the said issues stand decided in

favour of the defendants and against the plaintiff.”

(emphasis supplied)

75. The   first   appellate   Court   in   its   judgment   confirmed   the

findings   of   the   trial   Court   that   the   suits   were   barred   by

limitation.   While  doing  so,  the   first   appellate   Court   had   also

proceeded on the wrong premise that the family function was

held in December, 2001.  Finally, the first appellate Court held

that since the 1990 GPA had been proved to have been executed

by plaintiff, the question of acquiring knowledge in the family

function loses significance.

54

76. In contrast, the High Court had noted that the factum of the

family function and plaintiff’s presence thereat was admitted by

defendant No. 4. The High Court then went on to reverse the

findings of the trial Court and the first appellate Court whilst

opining the testimony of Rustam Singh cements the case of the

plaintiff and it was apparent that the plaintiff had no reason to

suspect her brothers at an earlier point of time and she was not

even aware of the acts of the defendants. The said facts came to

light only after the plaintiff conducted inquiries. The relevant

portion of the High Court’s judgment is set out hereunder:

“.....

… Learned courts below have further erred in holding

that the suits are barred by limitation. The plaintiff's

case is that she came to know about the fraud being

perpetuated by her own step brothers and sister­in­law

after   she   settled   in   Punjab,   subsequent   to   the

retirement of her husband and consequent increased

frequency of her interaction with her relatives. Marriage

of her paternal uncle's son (Taya's son) is admitted by

DW  6  Rattan  Singh.  It  is  further  admitted  that   the

plaintiff was present at the said wedding. Testimony of

Rustam Singh cements the case of the plaintiff. ...”

(emphasis supplied)

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   prescribed   in   Section   17   of   the   Limitation   Act,

196315. The said provision reads as under:

15 for short, “the 1963 Act”

55

“17.– Effect   of   fraud   or  mistake.­ (1) Where, in the

case of any suit or application for which a period of

limitation is prescribed by this Act,—

(a) the   suit   or   application   is   based

upon   the   fraud   of   the   defendant  or

respondent or his agent; or 

(b)  the knowledge of the right or title on

which a suit or application is founded is

concealed by the fraud of any such person

as aforesaid; or

(c)  the suit or application is for relief from

the consequences of a mistake; or

(d)  where   any   document   necessary   to

establish   the   right   of   the   plaintiff   or

applicant has been fraudulently concealed

from him,

the period of limitation shall not begin to run until

the plaintiff or applicant has discovered the fraud or

the mistake or could, with reasonable diligence, have

discovered it; or in the case of a concealed document,

until the plaintiff or the applicant first had the means of

producing  the  concealed  document   or compelling  its

production

......."

(emphasis supplied)

78. Therefore,   for   invoking   Section   17   of   the   1963   Act,   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.

79. It must be noted that the trial Court was in error to hold

that   the   person   who   has   disclosed   the   information   was   not

56

examined by the plaintiff, when it had come on record through

the testimony of Kultar Singh (DW2), that Rustam Singh expired

before the suits came up for trial. If so, the finding of the High

Court that the testimony of Rustam Singh strengthened the case

of   plaintiff   is  ex­facie  erroneous   and   manifestly   wrong.   In   as

much as, the said person was never examined before the Court in

these proceedings.  Further, the trial Court and the first appellate

Court   had   erroneously   assumed   the   date   of   function   in

December, 2001 in place of February, 2001. However, that will

have no bearing on the finding on the factum of non­existence of

fraud.  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.

57

CONCLUSION

80. 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 this 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. 

81. Suffice   it   to   observe   that   since   the   plaintiff   could   not

establish the existence of fraud, it must follow that the suits are

ex­facie barred by limitation. 

82. As to the title of the subsequent purchasers, since the 1990

GPA   had   been   proved,   there   is   no   reason   to   doubt   their

bonafides. 

83. In view of the foregoing discussion, we hold that the trial

Court and the first appellate Court had appreciated the evidence

properly and that view being a possible view, the High Court

58

ought not to have disturbed the same in the second appeal and

that too on surmises and conjectures. 

84. In   the   result,   the   present   appeals   are   allowed   and   the

impugned judgment and decree passed by the High Court is set

aside. The judgment and decree passed by the first appellate

Court   is   hereby   restored.   No   order   as   to   costs.   Pending

applications, if any, are disposed of.

     ...................................., J.

     (A.M. Khanwilkar)      

...................................., J.

    (Dinesh Maheshwari)

New Delhi;       

November 16, 2020.