TMI Blog2020 (11) TMI 1088X X X X Extracts X X X X X X X X Extracts X X X X ..... g 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. The trial Court had justly placed the initial burden of proof upon the plaintiff as it was her case that the subject documents were forged or product of fraud and moreso because the documents bore her signature. The first appellate Court did not elaborate on that aspect. Even assuming that the burden had shifted upon the defendants, the witness identifying signatures of the dead attesting witness was examined by the defendants. Therefore, the documents stood proved and the burden was duly discharged by the defendants - The requirement regarding shifting of burden onto the defendants had been succinctly discussed in ANIL RISHI VERSUS GURBAKSH SINGH [ 2006 (5) TMI 515 - SUPREME COURT ], wherein this Court had held that for shifting the burden of proof, it would require more than me ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at the sale consideration was paid at home directly and not in his presence. Indeed, he had failed to identify plaintiff in photographs - 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, 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. 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 - Since the attesting witness had proved the execution of the sale deeds, the primary onus upon the plaintiff had not shifted unto the defendants. Further, the plaintiff was obliged to rebut the positive evidence produced by the defendants regarding payment of consideration amount to the plaintiff; but also ought to have independently proved her case of non receipt of the consideration a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... efendants - As to the title of the subsequent purchasers, since the 1990 GPA had been proved, there is no reason to doubt their bonafides. The trial Court and the first appellate Court had appreciated the evidence properly and that view being a possible view, the High Court ought not to have disturbed the same in the second appeal and that too on surmises and conjectures - Appeal allowed. - CIVIL APPEAL NOS. 3681-3682,3683-3684 OF 2020 (Arising out of SLP (C) Nos. 21326-21327 OF 2019) (Arising out of SLP (C) Nos. 29775-29776 OF 2019) - - - Dated:- 16-11-2020 - A.M. Khanwilkar and Dinesh Maheshwari JJ. For the Petitioner : Mr. Subhasish Bhowmick, AOR Mr. Jagjit Singh Chhabra, AOR For the Respondent : Caveator-in-person, AOR Mr. Jagjit Singh Chhabra, AOR JUDGMENT 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 Chandigarh (for short, the High Court ), dated 27.05.2019 in R.S.A. Nos. 2901/2012 and 3881/2012, whereby the High Court reversed the concurrent findings of the trial Court and the first appellate Court and decreed the suits of the plaint ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 1963 (for short, the 1963 GPA )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 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 perpetr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... arlas being 1/6 share out of the land measuring Kahata No. 46/60 to 67 and 36/56 Khasra Nos. 20R/21 (0 14), 21R/24/1 (3 11), 23R/7 (5 11), 8/1 (2 13), 15/1 (1 6), 106//(0 14), 131 (2 19), 16 R/17 (1 6), 25 (6 18), 16 R/16 (8 0), 17 R/13/2 (64), 14/1 (1 0), 21 (8 0), 22 (8 0), 23 (8 0), 24/1 (5 0), 24/2 (2 4), 25 (8 0), 18 R/11/1 (2 8), 23 R/8/2 (2 6), 24 R/1 (2 0), 10 (6 5), 11/1 (1 14), 23 R/3/2 (5 40), 4 (8 0), 5 (8 0), 6 (7 12), 17 R/14/2 (6 4), 15 (8 0), 16 (80), 17/1 (4 4), 17 R/17/2 (3 0), 18 (8 0), 19 (8 0), 20 (8 0), 18 R/19 (8 0), 20 (8 0), 21 (8 0), 22 (8 0), 21R/1/1 (7 4)m, 4/2 (5 5), 23/2 (4 1), 25 (2 13), 22 R/5 (3 0), 21 R/23/2 min (1 3), 104/2 (0 2), 23 R/26 (014), 53//1 (2 7), 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 connivance with her husband Rattan Singh defendant no. 4 is the result of fraud and that the plaintiff is not bound by the sam ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... District Hoshiarpur as per Jamabandi for the year 1983 84 and also as per Jamabandi for the year 1994 95 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 dated20.05.1996 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 (6 18), 14R/5 (8 0), now Khewat No. 123 and Khatauni No. 140 and the same khasra number as per Jamabandi for the year 1997 98 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 ofdefendant no. 9 executed by defendant no. 11 in respect of plot bearing no. 373 R to the extent of 1/12 share in front of whic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 (Ad hoc), Fast Track Court I, Hoshiarpur (for short, the first appellate Court ). 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 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 co owner 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 appellant plaintiff is owner in possession of land measuring 9 marlas out of the land measur ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h Court ought not to have interfered with the concurrent findings of facts as re appreciation 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 Code (For short, the CPC ) and thus, the same cannot be considered. On merits, the aforesaid defendants contended that the evidence of the plaintiff was self contradictory, 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 pl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y 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 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2. We have heard Mr. T.S. Doabia, learned Senior counsel andMr. 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. 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 a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 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: ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 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 t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ts 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 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 misp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e 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, 1872 (For short, the 1872 Act ). 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 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 hav ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s 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 as they enjoyed active confidence of the plaintiff. To est ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 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 defendant-appellant 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ss examine him in order to prove that he had deposed falsely, which the plaintiff had failed to do. 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 c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s 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 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hful 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. T he 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 so called 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 nee ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ving 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. 59. In Jagdish Chand Sharma v. Narain Singh Saini (dead) through legal representatives Ors. (2015) 8 SCC 615 , 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... haser. 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 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 t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rove 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 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 non receipt 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 30 year old document. The same is extracted below: 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... intiff 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: 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. B ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aya'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, 1963 (for short, the 1963 Act ). The said provision reads as under: 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
