Second appeal against dismissal of suit seeking declaration that gift deeds were void due to coercion and undue influence. High Court held appellants failed to prove ingredients of fraud under Order VI Rule 4 CPC and dismissed appeal.
Appeal dismissed. Parties to bear own costs.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA
| RSA No. 338 of 2011 |
|---|
| Reserved on: 02.12.2019 |
| Decided on: 10.12.2019 |
| __________________________________________________________ Mehar Chand & others …..Appellants. Versus |
| Paramjeet Singh & another ……Respondents. |
| ____________________________________________________ Coram The Hon'ble Mr. Justice Chander Bhusan Barowalia, Judge. |
| 1 Whether approved for reporting? Yes. |
| ____________________________________________________ For the appellants: Mr. Rajnish K. Lal, Advocate. |
| For the respondents: Mr. Dushyant Dadwal and Mr. Subhash Chander, Advocates. |
| Respondent No. 2_exparte._ |
| Chander Bhusan Barowalia, Judge. |
The present regular second appeal has been maintained by appellants, who were plaintiffs before the learned Trial Court (hereinafter referred to as “the plaintiffs), against judgment and decree passed by learned District Judge, Kangra at Dharamshala, dated 08.04.2011, in Civil Appeal No. 9- B/XIII-2008, whereby the appeal preferred by the plaintiffs was dismissed and the judgment and decree passed by learned Civil Judge (Senior Division), Baijnath, District Kangra, H.P., in Civil Suit No. 48 of 2004, dated 02.01.2008, was afirmed.
1 Whether reporters of Local Papers may be allowed to see the judgment?
as under:
2(a). Shri Ramesh Chand (father of the plaintiffs No. 1(a) and 1(b) and husband of plaintiff No. 1(c)), who was the original plaintiff before the learned Trial Court (hereinafter referred to as “the original plaintiff”), maintained a suit seeking a decree of declaration that gift deeds dated 05.12.2003, qua land comprising in Khata No. 49, Khatauni Nos. 134 to 136, Khasra Kita 5, measuring 1-32-18 hectares to the extent of 46667/381706 share measuring 0-16-16 hectares, situated at Mohal Haar Bahi, Mauza and Tehsil Baijnath, District Kangra and land comprising in Khata No. 53, Khatauni No. 163, Khasra Kita 3, measuring 0-04-16 hectares to the extent of 1/3rd share that is 0-01-38 hectares, situated at Mohal Khuh, Mauza Chadhiar, Tehsil Baijnath, District Kangra, H.P. (hereinafter referred to as “the suit land”), executed by the original plaintiff, Shri Ramesh Chand, in favour of Shri Ram Saran alias Saran Dass (father of defendants No. 1 & 3 and husband of defendant No. 2). As per the plaintiffs, the gift deeds were aftermath of undue pressure, coercion, duress and against the wish of the original plaintiff, so the same were sought to be declared null and void alongwith mutation No. 455, dated 16.12.2003, which was attested pursuant to the gift deeds.
2(b). The original plaintiff sought a decree of permanent prohibitory injunction restraining the defendants/respondents
(hereinafter referred to as “the defendants”) from dispossessing the plaintiffs forcibly from the suit land. The plaintiffs, in the alternative, prayed for a decree of possession.
2(c), As per the original plaintiff, he was owner-inpossession of land comprising in Khata No. 49, Khatauni Nos. 134 to 136, Khasra Kita 5, measuring 1-32-18 hectares to the extent of 115786/381706 share, i.e., 0-40-10 hectares, situated at Mohal Haar Bahi, except land measuring 0-30-00 hectares, gifted in favour of Mehar Chand and the land comprising Khata No. 53, Khatauni No. 163, Khasras No. 902, 903 and 922, measuring 0-04-16 hectares to the extent of 1/3rd share, i.e., 0- 01-38 hectares, situated at Mohal Khuh, Mauza Chadhiar. It is further contended that he purchased the land comprising Khata No. 49, situated in Mohal Haar Bahi from Smt. Kamla Devi widow of Shri Ghanshayam Singh for Rs. 4005/- and to the extent registered sale deed, dated 13.06.1971, was executed. On 20.04.2004 Shri Ram Saran @ Saran Dass died. The original plaintiff used to serve outside and Shri Ram Saran taking advantage of this, behind his back, got mutation attested in his favour qua land comprising in Khata No. 49 at Mohal Haar Bahi to the extent of half share and remaining half share in favour of the original plaintiff in contrast to the contents of the sale deed. It is further averred that Shri Ram Saran subsequently moved an application for partition of land comprising in Khata No. 38, khatauni Nos. 122 to 124, Khasra Kita 5, measuring 1-32-18
hectares situated in Mohal Haar Bahi in the year 1989. The original plaintiff came to know about such proceedings and he objected to it and ultimately the proceedings were dismissed and no appeal was preferred. Subsequently, Shri Ram Saran relinquished his share in land comprising in Khata No. 40, Khatauni Nos. 128 to 130, Khasra Kita 5, measuring 1-32-18 hectares to the extent of 46667/381706 share, i.e., 0-16-16 hectares situated at Mohal Haar Bahi in favour of the original plaintiff, vide registered relinquishment deed dated 12.01.2000 and accordingly mutation No. 392, dated 18.03.2000, was attested in favour of the original plaintiff. It is averred that Shri Ram Saran deliberately recorded his wrong age in the relinquishment deed to blackmail the original plaintiff and he was in a habit of altering his signatures time and again. Shri Ram Saran on 30.10.2003 moved a false application to SHO, Police Station Baijnath, and the police, in presence of the witnesses, threatened the original plaintiff and his son (Shri Mehar Chand) to execute the gift deed qua land comprising in Khata No. 49, situated in Mohal Haar Bahi and Khata No. 53, situated in Mohal Khuh, i.e., suit land in favour of Shri Ram Saran and if they fail to do so, they will be jailed. Consequently, on 05.12.2003 original plaintiff executed gift deeds qua the suit land in favour of Shri Ram Saran unwillingly. Shri Ram Saran impishly procured Special Power of Attorney from the original plaintiff. Later on, when the original plaintiff came to know
about the same, he moved an application before the Revenue Authorities with a prayer not to attest the mutation. As per the original plaintiff, the gifts deeds were the result of undue pressure, coercion, undue influence, duress and not his voluntary act, so the same are not binding upon him. It has been further averred that the physical possession of the suit land was never parted. In view of the above of the above backdrop, the original plaintiff sought the relief of declaration, injunction and possession.
2(d). The defendants by filing the written statement contested the suit and raised preliminary objections, i.e., maintainability, cause of action, estoppel and locus standi. On merits, it is contended that the original plaintiff is not the only owner-in-possession of the suit land and the suit land was recorded in the name of their father, Shri Ram Saran, and the land had been transferred through registered gift deed from the original plaintiff. It is further averred that after the death of Shri Ram Saran, on 24.04.2004, the defendants became owners-in-possession over the suit land. The defendants denied that Shri Ram Saran executed any relinquishment deed dated 12.01.2000 before the Sub Registrar in favour of the plaintiff. As per the defendants relinquishment deed was a false document and qua this they made a complaint to SHO, Police station Baijnath on 30.10.2003, as it does not bear the signatures of their father, Shri Ram Saran. It is contended that
as the said document is false, so there is no point mentioning false age of Shri Ram Saran. The defendants averred that application moved to Police station Baijnath was false and illegal. The defendants denied that the original plaintiff was pressurized by Shri Ram Saran and undue influence was exerted upon him for the execution of the gift deeds. As per the defendants, the original plaintiff executed the gift deeds out of his free will and volition. On 05.12.2003, the original plaintiff, just to save his skin from the case, which was got registered by Shri Ram Saran, executed gift deeds before the Sub Registrar, Baijnath. The defendants averred that no findings were given by AC 1st Grade on the application and it was simply dismissed. Lastly, the defendants prayed for dismissal of the suit.
3. Whether the mutation No. 455 dated 16.12.2003 in respect of the land bearing Khata No. 49, Khatauni Nos. 134 to 136, Khasra Kita 5 to the extent of 46667/381706 on the basis of gift deed dated 05.12.2003 is also illegal, invalid and not binding upon the plaintiff, as alleged? OPP
4. Whether the plaintiff is also entitled for the relief of injunction, as prayed for? OPP
5. Whether in the alternative the plaintiff is also entitled for the relief of possession of the land in dispute, as prayed for? OPP
6. Whether the suit is not maintainable? OPD
7. Whether the suit is without cause of action? OPD
8. Whether the plaintiff is estopped by his act and conduct from filing the present suit? OPD
9. Whether the plaintiff has no locus standi? OPD
10. Whether the father of the defendants never executed any relinquishment deed dated 12.01.2000 and the alleged deed is false and wrong document, as alleged? OPD
11. Relief.”
2. Whether the judgment of the District Judge is vitiated for not critically examining the
oral and documentary evidence, particularly, the evidence recorded in appeal from which a clear case of undue influence, coercion, duress and police pressure in execution of the deeds Ex. DA and Ex. DB was made out and the gifts were liable to be declared null and void and the findings are contrary to the provisions of Order 20, Rule 1 CPC and the judgment of this Hon’ble Court in case Om Paraksh vs. State of H.P. AIR 2001 HP 19?
3. Whether the plaintiff was entitled to decree for injunction in view of his settled possession when it was established that neither the gift was executed nor it was complete by delivery of possession and the appellant was entitled to protection of his settled possession?”
Himachal Law Reported 664.
plaintiff nowhere shows that it is the case of the plaintiffs that the original plaintiff was made to sign on the blank documents. He has further argued that the power of attorney cannot depose the facts which only the principal (original plaintiff herein) knows qua the coercion and when the original plaintiff had not appeared in the witness-box, so adverse inference is to be drawn against the plaintiffs. In order to get lateral support to his arguments, the learned Counsel for the respondents has relied upon the following judicial pronouncements:
1. Janki Vashdeo Bhojwani and another vs. Indusind Bank Ltd. and others, (2005) 2 SCC 217; &
2. S. Kesari Hanuman Goud vs. Anjum Jehan and others, (2013) 12 SCC 64;
to as “CPC”). At the very outset the same is extracted
hereunder:
“Order VI, Rule 4. Particulars to be given where necessary.- In all cases in which the party pleadings relies on any misrepresentation, fraud, breach of trust, willful default, or undue influence, and in all other cases in which particulars may be necessary beyond such as are exemplified in the forms aforesaid, particulars (with dates and items if necessary) shall be stated in the pleading.”
Order VI, Rule 4 CPC is clear that detailed facts are required to be stated in the plaint itself qua undue influence, coercion, duress and pressure. A perusal of the plaint filed in the Court of lowest rung nowhere reflects detailed facts and particulars qua what was the type of coercion, what was the undue influence, what kind of duress and what type of pressure exerted on the original plaintiff, which resulted in execution of gift deeds by the original plaintiff in favour of Shri Saran Dass. In fact, the original plaintiff has baldly asserted coercion, undue influence, duress, pressure etc. without stating facts qua the same in the plaint. The plaint has conspicuously no voice qua the details of alleged coercion, pressure, undue influence and duress.
influence, duress, pressure etc. and he could have to some extent provided force to his assertions by deposing in the Court, but he was not examined in the Court. So, at the first count, the suit of the plaintiff is hit by Order VI, Rule 4 CPC.
and no appeal was preferred. He has stated that Shri Ram Saran executed a relinquishment deed, wherein he disclosed his age as 49 years, in favour of his father, which is mark ‘A’ and to this effect mutation was attested. A criminal complaint was filed against his father by Shri Saran Dass, copy of which is mark ‘B’. As per this witness, relatives of defendants were in police, so he and his father were summoned in the police station and threatened. On his father pressure was exerted to execute a gift deed otherwise they will be implicated in a false case. He stated that execution of gift deed was involuntary act of his father. He was not present when relinquishment deed was written and he has admitted that it was scribed by Shri Pawan Acharya, Advocate. This witness admitted his signature and signatures and photograph of his father and Ram Saran on gift deeds mark ‘DA’ and ‘DB’. He denied that in sound state of mind his father executed the gift deeds.
possession of the suit property in favour of Shri Ram Saran or the defendants and the plaintiffs are in possession over the suit land for the last 35 years. This witness, in his crossexamination, admitted that Shri Ram Saran and Shri Ramesh were real brothers. He feigned ignorance qua the fact that land situated in Haari Bahi is joint amongst the parties. PW-5, Shri Pawan Acharya, Advocate, deposed that he wrote the relinquishment deed, Ex. PW-5/A, at the instance of deceased Ramesh Chand and Ram Saran and also explained the contents of the same to the parties. He has further deposed that the parties admitted the contents of Ex. PW-5/A to be correct and appended their signatures thereon. As per this witness, he did not know personally deceased Ram Saran and he disclosed his age as 49 years. This witness could not identify deceased Ram Saran in the photograph.
blank papers. PW-7, Shri Rakesh Kumar (police official) brought records qua FIR No. 167 of 2004, dated 20.10.2004, registered under Sections 420 and 467 IPC. This witness admitted that he is not Investigating Officer in the matter and as per this witness investigation is in progress and no accused has been arrested till now. He has further deposed that report regarding specimen hand-writing and signatures is awaited. PW-8, Shri Rajesh Verma, Advocate, deposed that on 12.01.2000 relinquishment deed, mark ‘A’ was scribed by Shri Pawan Acharya, Advocate, at the instance of Shri Ram Saran, which bears his signatures, as witness. As per this witness, contents of the relinquishment deed were read over to the parties by Shri Pawan Acharya, Advocate, and after admitting the contents to be correct, Shri Ramesh Chand and Shri Ram Saran signed on it. Subsequently, Shri Uttam Chand also signed the relinquishment deed, as a marginal witness. This witness, in his cross-examination, deposed that he did not know Shri Ram Saran personally. He has admitted that Shri Ram Saran lodged a criminal complaint with the police qua preparation of fabricated relinquishment deed, upon which FIR under Sections 420, 467, 468 and 471 IPC was registered, which is being investigated. As per this witness, Shri Ramesh Chand (original plaintiff) has been impleaded as an accused. He feigned ignorance that Shri Ramesh Chand returned the land through a gift deed in favour of Shri Ram Saran on 05.12.2003.
He denied that Shri Ram Saran did not come to Tehsil Office to execute the relinquishment deed and also denied that relinquishment deed was prepared in forged manner at the instance of Shri Ramesh Chand (original plaintiff).
Ramesh Chand, vide registered sale deed dated 13.06.1971. He feigned ignorance that his father moved an application for partition in 1989-90 before Tehsildar, Baijnath. He also feigned ignorance that his father engaged Shri Pawan Acharya, Advocate. He deposed that he does not know objections were raised by Shri Ramesh Chand in partition proceedings. He has further deposed that he does not know that application for partition was dismissed by Tehsildar on 02.03.1993. This witness denied that on 12.01.2000 his father relinquished the land situated in Haar Bahi in favour of Shri Ramesh Chand. He also denied that relinquishment deed was scribed by Shri Pawan Acharya, Advocate, and marginal witnesses Shri Rajesh Kumar and Shri Uttam Chand, were present. He has denied that his father was identified by Shri Nanak Chand, Lambardar. He has also denied that in 2003 his father got registered a false FIR and on 30.10.2003 he himself guided his father to register a false case. He admitted that Shri Ramesh Chand was called in police station, but he was not threatened by the police, consequent to which on 05.12.2003 Shri Ramesh Chand executed two gift deeds. He denied that his relative, i.e. Havaldar Pathania was posted in Police Station, Baijnath. Lastly, he denied that defendants have an intention to grab the land falling in the share of the plaintiff.
instance of Shri Ramesh Chand in favour of Shri Ram Saran (brother of Shri Ramesh Chand). As per this witness, contents of the deeds were read over and explained to the parties and the parties signed the same. The marginal witness, i.e., Shri Tilak Raj and Shri Mehar Chand also signed the gift deeds. He has further stated that the gift deeds were presented before Sub Registrar for registration. Gift deeds bear the signatures and photographs of the parties and the witnesses and Shri Ramesh Chand admitted the contents of the same to be correct before the Sub Registrar. He deposed that Shri Ramesh Chand was his client and it is not that he was not known to him. He denied that Shri Ramesh Chand was baffled while executing gift deeds Ex. DA and Ex. DB. DW-3, Shri Tilak Raj, deposed that he knows the parties and saw Ex. DA and DB. As per this witness, he is marginal witness to the gift deeds and the same were executed by Shri Ramesh Chand in favour of Shri Ram Saran. Shri anil Kumar scribed the deeds and alongwith him other marginal witness was Shri Mehar Chand. Both donor and donee signed the deeds and the contents of the same were read over and explained to the parties and the parties admitted the same to be correct. When the deeds were presented before the Tehsildar, Tehsildar also inquired and found the documents as correct, so both the deeds were registered. As per this witness no fraud was played while executing the gift deeds and he denied that the deeds are executed in a forged manner. He
deposed that stamp papers were purchased by Shri Ramesh Chand and gift deeds were written in the office of Shri Anil Katoch, Advocate.
was filed against his father by Shri Saran Dass and relatives of defendants were in police, so he and his father were summoned in the police station and threatened to execute the gift deed, otherwise they will be implicated in a false case. He stated that execution of gift deed was involuntary act of his father. PW-2 was not present when relinquishment deed was written and he has admitted that it was scribed by Shri Pawan Acharya, Advocate. This witness admitted his signature and signatures and photograph of his father and Ram Saran on gift deeds mark ‘DA’ and ‘DB’. He denied that in sound state of mind his father executed the gift deeds. No doubt, the testimony of PW-2 (son of the original plaintiff) is very material in the case in hand, but this witness is not witnessed the execution of the gift deeds. So, through the testimony of PW-2, it cannot be inferred that the gift deeds executed by the original plaintiff was his involuntary act and the result of coercion and pressure exerted upon him by the defendants.
plaintiffs. More over PW-2, who is son of the deceased original plaintiff, is also an interested witness.
witness was Shri Mehar Chand. Both donor and donee signed the deeds and the contents of the same were read over and explained to the parties and the parties admitted the same to be correct. When the deeds were presented before the Tehsildar, Tehsildar also inquired and found the documents as correct, so both the deeds were registered. As per this witness no fraud was played while executing the gift deeds and he denied that the deeds are executed in a forged manner. He deposed that stamp papers were purchased by Shri Ramesh Chand and gift deeds were written in the office of Shri Anil Katoch, Advocate. Thus, there is nothing to disbelieve the testimonies of DWs 2 and 3 and the testimonies of key witness of the plaintiffs, i.e., PW-1 and 2 are of no help to the plaintiffs.
allegations of fraud, coercion and undue influence just remain as unproved bald contentions alleged in the plaint with no proof. As discussed above, PW-5, Shri Pawan Acharya, Advocate, only deposed qua the relinquishment deed, Ex. PW5/A, executed on 12.01.2000. Thus, it can be safely and authoritatively held that testimony of PW-5 is not helpful to the case of the plaintiffs.
undue influence upon Shri Ramesh Chand by the defendants. So it cannot be said that the gift deeds are tainted with fraud, coercion and undue influence, as the plaintiffs failed to prove the ingredients of fraud, coercion and undue influence and these allegations merely remain confined to the pleadings with no oral and documentary support. Thus, the plaintiffs, through evidence, fail to prove their case.
Hon’ble Supreme Court has held as under:
"17. On the question of power of attorney, the High Courts have divergent views. In the case of Shambhu Dutt Shastri v. State of Rajasthan2 it was held that a general power-ofattorney holder can appear, plead and act on behalf of the party but he cannot become a witness on behalf of the party. He can only appear in his own capacity. No one can delegate the power to appear in the witness box on behalf of himself. To appear in a witness box is altogether a different act. A general power-of – attorney holder cannot be allowed to appear as a witness on behalf of the plaintiff in the capacity of the plaintiff.”
Like wise, the Hon’ble Supreme Court in S. Kesari Hanuman
Goud vs. Anjum Jehan and others, (2013) 12 SCC 64, has
held as under:
2 (1986) 2 WLN 713 (Raj)
The above judgments are fully applicable to the facts of the present case, as it is settled proposition of law that a witness can only appear in his personal capacity and no one can delegate the power to appear in the witness box on behalf of himself. Similarly, a power of attorney holder cannot depose in place of principal, as the in the present case. In present case the original plaintiff had personal knowledge qua the execution
3 (1999) 3 SCC 573 : AIR 1999 SC 1441
4 (2005) 2 SCC 217
5 (2008) 8 SCC 536 : (2008) 3 SCC (Cri) : AIR 2009 SC 422
6 (2010) 10 SCC 512 : (2010) 4 SCC (Civ) 239
of gift deeds by him in favour of Shri Ram Saran, so he could have been the best person to disclose under what circumstances he executed the gift deeds, but only for the reason, as assigned by PW-2 Shri Mehar Chand (son of the original plaintiff), that the original plaintiff is paralytic unable to walk and speak, PW-2 cannot be allowed to act as principal and depose in the Court of law in place of the original plaintiff. As held in S. Kesari
Hanuman Goud’ case, the word “acts” employed therein is confined only to “acts” done by the power of attorney holder, in exercise of the power granted to him by virtue of the instrument. The term “acts”, would not include deposing in place and instead of the principal. 25. The learned counsel for the appellant has also placed reliance on a judgment rendered by a co-ordinate Bench of this Court in Murat Ram vs. Bhadar Singh, 2014(1) Himachal Law Report 664. As the judgment (supra) pertains to a case, where the pleadings and evidence show that the original plaintiff was depued, whereas in the instant case the facts are different. The plaintiffs failed to prove the ingredients of fraud, coercion and undue influence allegations of otherwise, so virtually it can be held that the plaintiffs have only pleaded that the gift deeds are the result of fraud, coercion and undue influence upon the original plaintiff. In fact the plaintiffs failed to give lateral support to their pleadings. The judgment (supra) is not applicable to the facts of the present case.
(Chander Bhusan Barowalia) Judge
10th December, 2019
(virender)
3 issues framed by the court
Whether the High Court should set aside the lower court's findings because the pleadings failed to comply with Order VI Rule 4 CPC regarding fraud and undue influence?
Whether the High Court erred in not critically examining evidence of coercion and undue influence to invalidate gift deeds?
Whether the appellants were entitled to a permanent injunction given their claimed settled possession despite the executed gift deeds?
Colour shows how this judgement treated each authority
Murat Ram versus Bhadar SinghDistinguished¶109
Murat Ram versus Bhadar Singh, 2014(1) Himachal Law Reported 664
Janki Vashdeo Bhojwani and another vs. Indusind Bank Ltd. and othersRelied on¶94
Janki Vashdeo Bhojwani and another vs. Indusind Bank Ltd. and others, (2005) 2 SCC 217 · Who else cites this
S. Kesari Hanuman Goud vs. Anjum Jehan and othersRelied on¶97
S. Kesari Hanuman Goud vs. Anjum Jehan and others, (2013) 12 SCC 64 · Who else cites this
Shambhu Dutt Shastri v. State of RajasthanRelied on¶95
Shambhu Dutt Shastri v. State of Rajasthan, 2 (1986) 2 WLN 713 (Raj)
Vidhyadhar v. ManikraoRelied on¶102
Vidhyadhar v. Manikrao, 3 (1999) 3 SCC 573 · Who else cites this
Shankar Finance and Investments v. State of A.P.Relied on¶102
shankar Finance and Investments v. State of A.P., 5 (2008) 8 SCC 536 · Who else cites this
Man Kaur v. Hartar Singh SanghaRelied on¶102
Man Kaur v. Hartar Singh Sangha, 6 (2010) 10 SCC 512 · Who else cites this
Om Paraksh vs. State of H.P.Referred¶34
Om Paraksh vs. State of H.P. AIR 2001 HP 19 · Who else cites this
3 provisions across 3 enactments
Mehar Chand & others
Paramjeet Singh
Chander Bhusan Barowalia
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
