Dismissed

Gurmail Singh v. Raswinder Kaur and Anr.

Punjab & Haryana HC18 Sept 2024RSA/1466/2023

Case brief

AI extract

What is this about?

Plaintiff, beneficiary of a Will by Pritam Singh, challenged two sale deeds as fraudulent; courts below upheld the sale deeds and dismissed the suit. The High Court held fraud must be proved to a criminal standard, PW3's evidence failed, and registered non-Will documents need no attesting witness unless execution is denied. Appeal dismissed.

What the court decided

AI extract

Gurmail Singh Vs Raswinder Kaur and Anr. — Property and Title | Punjab & Haryana HC (2024)

¶1

RSA-1466 of 2023

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IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH

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Reserved on: September 16, 2024 Date of Decision: September 18, 2024

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CM No.5416-C of 2023 in/and RSA-1466 of 2023(O&M)

Gurmail Singh

… Appellant

Versus

Raswinder Kaur and another …Respondents

¶9

CORAM: HON'BLE MR. JUSTICE DEEPAK GUPTA

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Present: - Mr. Gagandeep S. Virk, Advocate for the appellant.

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DEEPAK GUPTA, J.

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CM-5416-C-2023

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This is an applica!on under Sec!on 5 of the Limita!on Act to condone the delay of 24 days in filing the appeal.

¶14

Heard.

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For the reasons as men!oned in the applica!on, supported by an affidavit of Sh. Jaswinder Singh, Clerk of the counsel for the appellant, the delay of 24 days in filing the appeal is hereby condoned. The applica!on stands disposed of.

¶16

R SA-1466-2023

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Plain!ff of the suit is before this Court in the present regular second appeal against the concurrent findings of the Courts below.

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2.1 Pritam Singh was admi2edly the owner in possession of the suit land situated at Village Dharaur, Tehsil and District Ludhiana. Said Pritam Singh expired on 08.08.2009 unmarried & issue less.

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Page no.1 out of 6 pages

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Sarita Rani 2024.09.18 05:50 I attest to the accuracy of this document/order

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RSA-1466 of 2023

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2.2 The case of the plain!ff (now appellant) is that during his life !me, Pritam Singh had executed a Will dated 15.11.2007 in his favour bequeathing his en!re property to him being pleased by the services rendered by him. He challenged the two sale deeds bearing Vasika Nos.518 and 519 dated 23.06.2008 purported to have been executed by Pritam Singh in favour of defendant No.1. These sale deeds are alleged to be null and void being the result of fraud and misrepresenta!on.

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2.3 As per the case of the plain!ff, Pritam Singh never intended to sell the suit land. Rather, defendant No.1 alongwith her husband had approached Pritam Singh to lease out the land. Pritam Singh had agreed to lease out the same in case lease deed was got registered. It is further alleged by the plain!ff that defendant No.1 alongwith her husband took Pritam Singh to the Sub Registrar Officer, Dehlon, where on the pretext of geAng the lease deed executed and registered and taking the benefit of illiteracy of Pritam Singh, defendant No.1 got executed the impugned sale deeds in connivance with the marginal witnesses and Deed Writer. The thumb impressions of Pritam Singh were hurriedly taken without disclosing the contents of the documents. He was also produced in the office of Sub Registrar, where also the contents of the documents were not disclosed to him. It was further alleged that during pendency of the suit, defendant No.1 had further sold the suit land to defendant No.2 by virtue of a sale deed dated 07.12.2011, which was also null, illegal and void being hit by the principle of lis pendens.

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3 . Both the defendants contested the suit. Defendant No.1 did not deny the !tle of Pritam Singh or the fact that he had executed a Will dated 15.11.2007 in favour of the plain!ff. However, defendant No.1 claimed that she had purchased the suit land by way of the impugned sale deeds dated 23.06.2008 by making payment of the sale considera!on and that muta!on was also sanc!oned in her favour. She

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Page no.2 out of 6 pages

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Sarita Rani 2024.09.18 05:50 I attest to the accuracy of this document/order

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RSA-1466 of 2023

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denied the allega!ons of fraud or misrepresenta!on as made by the plain!ff. Prayer was made for dismissal of the suit.

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Necessary issues were framed. Evidence produced by the par!es was taken on record. Learned trial Court came to the conclusion that though a legal and valid Will dated 15.11.2007 in favour of the plain!ff had been executed by Pritam Singh bequeathing the suit land in favour of the plain!ff, but the said Will did not have any effect because during his life !me, Pritam Singh had sold the suit property in favour of defendant No.1 by way of sale deeds No.518 and 519 dated 23.06.2008. It was held that in view of these documents, plain!ff was not en!tled for the declara!on or the possession as prayed by him. Accordingly, suit was dismissed by way of judgment dated 15.02.2016. The appeal filed by the plain!ff has been dismissed by the First Appellate Court by way of judgment dated 26.10.2022.

¶30

Assailing the findings of the Courts below, it is contended by learned counsel for the appellant that once the plain!ff had set up his case on basis of fraud and misrepresenta!on by which the sale deeds were executed by Pritam Singh in favour of defendant No.1, the onus had shiEed upon the defendant, so as to prove the legality and validity of the sale deeds in her favour, but defendant No.1 did not examine any marginal witnesses or scribe to the Will, so as to prove the same and as such, the issue regarding the validity of the sale deeds has been wrongly decided by the Courts below. He prayed for seAng aside the judgments passed by the Courts below and to decree the suit of the plain!ff.

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I have considered submissions of learned counsel for the appellant and have appraised the record carefully.

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Page no.3 out of 6 pages

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Sarita Rani 2024.09.18 05:50 I attest to the accuracy of this document/order

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RSA-1466 of 2023

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As no!ced earlier that it is undisputed that Pritam Singh was the owner of the suit property. The Will in favour of the plain!ff is prior in !me comparing to the impugned sale deeds, which were executed in 2008. Plain!ff has challenged the sale deeds to be the result of fraud and misrepresenta!on and that no considera!on amount was paid. It is se2led proposi!on of law that plea of fraud, whether taken in civil or criminal proceedings, is required to be proved by the person alleging the fraud on the standard of ‘proof beyond doubt’ as is required in any criminal ma2er.

¶36

In present case, in order to prove the allega!on of fraud, the only witness examined by the plain!ff is one Santokh Singh as PW3, who in his examina!on-in-chief tendered in the form of affidavit, supported the stand taken in the wri2en statement, but during cross-examina!on, he candidly admi2ed that he did not know that on 23.06.2008, which document was executed by Pritam Singh in favour of defendant No.1 – Raswinder Kaur. He also admi2ed that he had not accompanied Pritam Singh or defendant No.1 – Raswinder Kaur on 23.06.2008 to the office of the Tehsildar and therefore, he did not know on which document defendant No.1 and Pritam Singh had put their signatures/thumb impressions. He further admi2ed that he did not know as to whether defendant No.1 had paid the full sale considera!on so as to purchase the suit land from Pritam and simply showed ignorance in this regard. He did not specifically state that Pritam Singh had not executed the sale deed in favour of defendant No.1 and rather, in his further cross-examina!on, he admi2ed that Pritam Singh used to read the documents. It is, thus, clear that statement of PW3 – Santokh Singh failed to prove the plea of fraud as taken by the plain!ff.

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Page no.4 out of 6 pages

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Sarita Rani 2024.09.18 05:50 I attest to the accuracy of this document/order

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RSA-1466 of 2023

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As far as the conten!on raised by counsel for the appellant to the effect that marginal witnesses and scribe to the sale deeds have not been examined by the defendant is concerned, it has no merit.

¶41

Sec!on 68 of the Indian Evidence Act, 1872 reads as under:-

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“68. Proof of execu?on of document required by law to be aCested .––If a document is required by law to be a2ested, it shall not be used as evidence un!l one a2es!ng witness at least has been called for the purpose of proving its execu!on, if there be an a2es!ng witness alive, and subject to the process of the Court and capable of giving evidence:

¶43

Provided that it shall not be necessary to call an a2es!ng witness in proof of the execu!on of any document, not being a will, which has been registered in accordance with the provisions of the Indian Registra!on Act, 1908 (16 of 1908), unless its execu!on by the person by whom it purports to have been executed is specifically denied.”

¶44

It is clear from the aforesaid provisions that though ordinarily, at least one a2es!ng witness is required to be examined so as to prove the execu!on of a document, which by law is required to be a2ested, but in case the document is a registered document and it is not a Will, then if the registered document is produced in evidence, it is not necessary to prove it by producing any a2es!ng witness, unless the execu!on thereof is denied by the executant himself.

¶45

In the present case, the executant of the impugned sale deeds was Pritam Singh. The sale deeds in ques!on were executed on 23.06.2008. Pritam Singh remained alive !ll 08.08.2009, i.e. for a period of more than 01 year from the date of execu!on of the sale deeds. It is conceded by learned counsel for the appellant that during his life !me, Pritam Singh never challenged the impugned sale deed on any ground whatsoever, i.e. on the ground of fraud/misrepresenta!on or nonpayment of sale considera!on etc.

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Page no.5 out of 6 pages

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Sarita Rani 2024.09.18 05:50 I attest to the accuracy of this document/order

¶48

RSA-1466 of 2023

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In the light of the aforesaid facts and circumstances, it was not required for the defendants to examine any marginal witness so as to prove the sale deeds, which are the registered documents.

¶50

On account of the en!re discussion as above, this Court does not find any reason to interfere in the concurrent findings of facts as recorded by the Courts below, which are based upon proper apprecia!on of facts. No substan!al ques!on of law is found to be involved in the present appeal. Appeal is found to be devoid of any merits. As such, the same is hereby dismissed.

¶51

September 18, 2024 (DEEPAK GUPTA) Sarita JUDGE Whether reasoned/speaking: Yes/No Whether reportable: Yes/No

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Page no.6 out of 6 pages

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Sarita Rani 2024.09.18 05:50 I attest to the accuracy of this document/order

Gurmail Singh v. Raswinder Kaur and Anr.

Case brief

What is this about?

What the court decided

Gurmail Singh v. Raswinder Kaur and Anr.

Case brief

What is this about?

What the court decided

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