Indrawati vs Virender Singh
2023 Latest Caselaw 11610 P&H

                                                    Neutral Citation No:=2023:PHHC:100134




                   Neutral Citation No.2023:PHHC:100134


      IN THE HIGH COURT OF PUNJAB AND HARYANA
                   AT CHANDIGARH

433

                                          RSA No.4665 of 2009 (O&M)
                                          Date of Decision: 2.8.2023
                                          Reserved on: 27.07.2023


Smt. Indrawati (since deceased)
through her legal heirs                                     ... Appellants


                          Versus


Virender Singh                                              ... Respondent



CORAM: HON'BLE MRS. JUSTICE MANISHA BATRA

Argued by: Mr. Amit Jain, Senior Advocate,
           with Mr. Anupam Mathur, Advocate,
           for the appellants.

             Mr. S.K. Garg Narwana, Senior Advocate,
             with Mr. Vishal Garg Narwana, Advocate and
             Mr. Japjit Singh Johal, Advocate,
             for the respondent.

                   ***

MANISHA BATRA, J.

1. Aggrieved by the concurrent findings as recorded by the

Courts below thereby dismissing the claim of the appellant-plaintiff

seeking declaration of relinquishment deed dated 25.05.2000 (Ex.P1/D2)

as illegal, null and void, the appellant who is now dead and represented

by legal representatives, had preferred the instant appeal.

2. Shorn of unnecessary details, the facts of the case are that

the plaintiff was owner in possession of the agricultural land mentioned

in detail in para No.1 of the plaint (hereinafter to be mentioned as

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"disputed land"). Since she being a married person, was residing in her

matrimonial house at Village Kakroi, District Sonepat and the disputed land

was existing at her native place, therefore, she had given the same to the

defendant who was her first cousin for cultivation on payment of batai tihai

(1/3rd proceeds of the crop). Subsequently, the defendant asked her to

execute some document thereby authorizing him to continue cultivating the

disputed land on batai tihai and acceeding to his request, she had gone with

him to Tehsil Office, Bahadurgarh on 25.05.2000 to execute a document in

this regard where by playing fraud upon her, the defendant instead got

executed and registered a deed qua relinquishment of the disputed land in

his favour. He also got a mutation No.3026 sanctioned on 05.07.2000 on the

basis of the said relinquishment deed in his favour. He had taken over

possession of the disputed land and was threatening to alienate the same

further. The plaintiff challenged the validity of the impugned release deed

on the ground that she was an illiterate, rustic and pardanashin female who

had never visited any Tehsil/Government office earlier and was not

conversant with the working of the same. She prayed for declaring the

impugned release deed and mutation sanctioned on the basis thereof as

illegal, null and void and not binding upon her rights and also for

consequential relief of permanent injunction thereby restraining the

defendant from alienating the disputed land.

3. The defendant in his written statement raised preliminary

objections as to maintainability, locus standi, estoppel, cause of action and

on the ground that the suit had not been properly valued for the purposes of

Court fees. On merits, relationship between the parties was admitted. It was

asserted that the plaintiff had executed different sale deeds in respect of

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some of the land owned by her in the past in favour of his brother and

himself. She also agreed to sell the disputed land to him for a sale

consideration of Rs.5,30,000/-. The defendant had paid the same to her and

she had to execute sale deed in his favour on 25.05.2000. He pleaded that as

he was serving Border Security Forces and had to leave to join his duty at

Jammu & Kashmir on 28.05.2000 and as stamp papers for execution of sale

deed were not available, therefore, on the instructions of the plaintiff

herself, instead of sale deed, the impugned release deed in respect of the

disputed land was got executed and registered on that date and possession of

the disputed property was handed over to him. The pleas taken by the

plaintiff were controverted and dismissal of the suit had been prayed for.

4. The plaintiff filed replication resisting the pleas as taken in the

written statement and re-asserting those of the plaint. The learned trial Court

had framed the following issues:-

1. Whether the plaintiff is owner in possession of the agricultural land comprised in rect. And killa no.38/7-2 (5-2), 7/1 (2-4), 40/14-2 (4-0), 17 (8-0) total kitta 4 Rakba (measuring) 19 Kanals 6 Marlas situated within the revenue estate of village Nuna Majra, Tehsil Bahadurgarh as alleged in para no.1 of the plaint? OPP.

2. Whether the release deed dated 25.5.2000 document no.829 is illegal, null and void and not binding upon the plaintiff, on the grounds as detailed in para no.5 of the plaint? OPD

3. Whether the suit of the plaintiff is not maintainable in the present form? OPD

4. Whether the plaintiff has no locus standi to file the present suit? OPD

5. Whether the plaintiff has no cause of action to file the present suit? OPD 3 of 15

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6. Relief

5. Vide order dated 17.01.2003, the following additional issue

was framed:-

2-A. Whether the plaintiff is entitled to a decree for possession regarding the suit land on the ground as mentioned in the plaint? OPP

6. The parties adduced evidence in support of their respective

assertions. Besides relying on documentary evidence, the plaintiff examined

herself as PW-1 whereas defendant examined six witnesses namely, DW-1

Kamal Kishore, DW-2 Raj Kumar, DW-3 Mange Ram Mehra, Advocate,

DW-4 Ganpat Ram, DW-6 Bhim Singh and himself appeared as DW-5.

7. The learned trial Court dismissed the suit filed by the plaintiff

by holding that she had failed to prove that the impugned release deed was a

result of fraud. The appeal preferred by the plaintiff before learned First

Appellate Court had also been dismissed vide judgment and decree dated

14.09.2009 leading to filing of this appeal.

8. Learned counsel for the appellant strenuously argued that the

findings as given by learned Courts below were not sustainable in the eyes

of law. The respondent being near relative of the appellant was in a

fiduciary relationship with her. He being in a dominating position had

practised fraud upon her and by way of misrepresentation had got the

impugned release deed executed in his favour. The learned Courts below

had ignored the fact that the respondent had failed to bring any evidence

with regard to payment of amount of Rs.5,30,000/- which was alleged to be

sale consideration amount by him. The fact that the impugned release deed

was also insufficiently stamped as ad valorem fee payable on the same had

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not been paid and hence it was inadmissible in evidence, was not taken into

consideration. The Courts below had not applied their judicious mind. With

these broad submissions, it was argued that the impugned judgments passed

by the Courts below were liable to be set aside and the appeal deserved to

be accepted. In support of his contentions, he relied upon Harender Singh

v. State of Haryana and others, 2008 (3) R.C.R. (Civil) 720 & Chalti

Devi and others v. Rajinder Kumar and another, 2003 (4) R.C.R. (Civil)

527.

9. Per contra, learned counsel for the respondent-defendant argued

that the concurrent findings of fact as recorded by learned trial Court and

affirmed by learned First Appellate Court were well reasoned and did not

warrant any interference. The burden of proof of fraud allegedly practised

upon her at the time of execution and registration of the impugned release

deed, could not be discharged by the appellant by producing any cogent and

convincing evidence whereas the respondent has produced overwhelming

evidence on record to prove that he had paid an amount of Rs.5,30,000/- to

the appellant and she had voluntarily executed and registered release deed

in his favour. She had challenged the impugned release deed out of greed to

extract more money and due to mala fide. Hence, it was urged that the

appeal was liable to be dismissed. In support of his argument, learned

counsel for the respondent placed reliance upon authorities cited as Union

of India v. M/s. Chaturbhai M. Patel and Co., AIR 1976 SC 712;

Abdulla Umar Haji Ismail Merchant v. Subai Mura Rabari and others,

1998 (3) CivCC 386; S.P. Changalvaraya Naidu (dead) by L.Rs. v.

Jagannath (dead) by L.Rs., AIR 1994 SC 853; M/s Omprakash Har

Narain and Sons v. Vijaya Bank Ltd., 2003 (1) R.C.R. (Civil) 648 &

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Parveen Kumar v. Shiv Ram alias Sheo Ram, 2000 (1) R.C.R. (Civil)

122.

10. Learned counsel for the parties were heard at considerable

length by this Court and the material placed on record has also been

minutely scrutinized.

11. It was not in dispute that the appellant and respondent were

closely related to each other being cousins. The appellant also did not

dispute the fact that the impugned release deed Ex.P-1 was bearing her

thumb impressions. It was also not her claim that this document was not got

registered before the Sub Registrar, Bahadurgarh. She, however, challenged

the validity of this release deed on the ground that the respondent being in

fiduciary relationship with her and by exercising fraud had got executed and

registered the same on the pretext of getting executed a document

authorising cultivation of the disputed land by him. The allegations of fraud

were required to be proved by the appellant herself by producing reliable

and convincing evidence on record. The case of the appellant rested upon

her own bare oral testimony which has not been corroborated by any

evidence. The plea which had been mainly taken by her was that she was an

illiterate, rustic and pardanashin female and did not understand the

implication and nature of the proceedings which were conducted at the time

of execution and registration of the impugned release deed and that she was

not conversant with the working of any Government office or office of Sub

Registrar. The learned trial Court as well as learned First Appellate Court

had observed that the appellant was not proved to be an illiterate and

pardanashin female. On careful assessment of testimony of the appellant

and the documents produced on record, this Court is of the opinion that the

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findings given by the Courts below on this point deserve to be affirmed. The

respondent-defendant produced Ex.D-1 a certificate shown to be issued by

the Principal of Government Girls Senior Secondary School, Village Noona

Majra which is the native village of the appellant, showing that she had

passed Matriculation examination from that School in the year 1971. DW-1

who was Lecturer of this School had proved this certificate and his

statement on that point remained unrebutted and unchallenged which goes

to falsify that the appellant was an illiterate person. Then, her claim as to

being a pardanashin female also stands belied in view of the fact that she

herself admitted that she had contested for election to the post of Sarpanch

of her village in the year 1998. The respondent produced on record Ex.D-10

copy of an order dated 22.10.2001 passed in Civil Writ Petition No.3952 of

2000 which shows that she had filed petition challenging that election. It

would not have been possible for the appellant to contest the elections if she

was a pardanashin female.

12. So far as the plea that she could not understand the nature of

the proceedings conducted at the time of execution and registration of the

release deed Ex.P-1 is concerned, her claim to this effect also stood falsified

from the fact that she was proved to have executed four sale deeds Exs.D-3

and D-5 to D-7 during the years 1992, 1995 and 1999 respectively in favour

of the brother of the respondent or himself. All these sale deeds are duly

registered documents and there is a reasonable presumption that the

contents of the same were read over to her by the concerned Sub Registrar

and thereafter she had thumb marked/signed the same after understanding

the same. The appellant also did not categorically deny the fact that she had

sold some of her properties previously to the respondent and his brother.

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Meaning thereby that she had the experience of executing and getting

registered at least four registered deeds in the office of Sub Registrar. In

such circumstances, her statement that she had no experience of working of

the office of Sub Registrar or any Government office has no legs to stand.

Therefore, the appellant was proved to have rested her case upon false pleas

and having pleaded false facts and given contrary statement, she had no

right to approach the Court and her statement could certainly not be acted

and relied upon. In this regard, reliance can be placed upon the authorities

reported as S.P. Changalvaraya Naidu (dead) by L.Rs.'s case (Supra) and

M/s Omprakash Har Narain and Sons's case (Supra) wherein also it was

held so.

13. Besides the above, it is also important to mention that the due

execution of the release deed Ex.P-1 by the appellant stood proved from the

testimonies of DW-3 Mange Ram Mehra, Advocate who had drafted and

got typed this document and attesting witness DW-4 Ganpat Ram. Learned

counsel for the appellant had laid much stress on the point that DW-4

Ganpat Ram was none else than a tea vendor having his vend in the office

of Sub Registrar, Bahadurgarh itself and, therefore, it was argued by him

that he was only a stock witness procured by the respondent for the purpose

of execution of the release deed and his statement was not worthy of any

reliance. With regard to DW-3, he argued that this witness was not a regular

scribe and had not maintained any record regarding prepartation of the

impugned release deed and, therefore, his statement also could not be relied

upon. These arguments cannot be accepted at all in view of the fact that the

testimony of DW-4 Ganpat Ram reveals that he was hailing from the village

of the appellant and respondent themselves and knew both the parties. He

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had given details about the manner in which the release deed in question

was executed and got registered by the appellant. Nothing could be

extracted from his cross-examination on the basis of which it could be

stated that he was a stock witness for the purpose of attesting forged

documents or that he did not know the parties or that the document was not

thumb marked and got registered by the appellant in his presence.

Therefore, there can be no reason to disbelieve his statement. Similarly, the

testimony of DW-3 Mange Ram Mehra an Advocate practising in Civil

Court, Bahadurgarh cannot be faulted with. Being an advocate, he was

competent to draft and get typed the impugned release deed and was not

required to maintain any record/register regarding preparation of the same.

He also could not be shattered on the point that this deed was got prepared

by the appellant and she had thumb marked the same after the contents of

the same were read over and accepted by her. Therefore, the due execution

of the impugned release deed by the appellant stands proved from the

statements of both these witnesses.

14. Learned counsel for the appellant had also raised one more

argument to the effect that since no documentary evidence whatsoever had

been produced by the respondent in proof of payment of a sum of

Rs.5,30,000/- to the appellant at the time of execution of the release deed

Ex.P-1, therefore, his claim could not be believed. Undoubtedly, the

respondent-defendant failed to produce any documentary evidence

regarding payment of amount of Rs.5,30,000/- to the appellant before or at

the time of execution of the release deed Ex.P-1 but the statement of DW-6

Bhim Singh a co-villager to the effect that on 22.05.2000, an oral agreement

had been arrived at between the parties with regard to sale of the disputed

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land by the appellant to the respondent for a sum of Rs.5,30,000/- and it was

also agreed that the sale deed will be executed on 25.05.2000, has remained

unrebutted and the same proves that the appellant had agreed to sell the

disputed land to the respondent for a sum of Rs.5,30,000/- and had executed

release deed in his favour. The respondent was in fiduciary relationship with

her but there is nothing on record to show that he was in dominating

position or had made any manipulation or committed fraud with her while

getting the release deed executed in his favour. The Courts below had

appreciated the evidence produced on record and had come to a concurrent

finding of fact to the effect that the appellant had failed to prove that any

fraud or undue influence was exercised upon her or there any

misrepresentation at the time of execution of the impugned release deed by

the respondent.

15. It is also important as well as noteworthy that the release deed

Ex.P-1/D-2 was a document duly registered in the office of Sub Registrar,

Bahadurgarh on 25.05.2000. Section 34 of the Registration Act, 1908 (for

short "Act, 1908") speaks about the enquiry to be made before registration

of a document by registering officer. Section 35 casts a duty on the

registering authority to enquire about the identity of the executant and the

factum of execution and registration of a document is to be treated as

presumption of execution by the person indicated as executant of the

document. Section 58 speaks about particulars to be endorsed on documents

admitted for registration namely, the signature of person admitting the

execution of the document as well as of every person examined in reference

to such document and any payment of money or delivery of goods if made

in the presence of the registering officer in reference to execution of such

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document. The registering officer is required to endorse the signature of

every person admitting the execution of document and such document is

prima facie evidence against the executant. The presumption of correctness

is attached to endorsement made by the Sub Registrar and such presumption

can be rebutted only by strong evidence to the contrary. The well settled

proposition of law is that registration of a document is a solemn act of

parties and the recitals of a registered document are presumed to be valid

unless such a presumption is rebutted by strong evidence to the contrary.

Reliance in this regard can be placed upon Chhotey Lal v. Collector of

Moradabad, AIR 1992 Privy Council 279, wherein the Privy Council was

considering the question as to presumption of validity of a power of

attorney which formed the basis of a registered mortgage deed which was

later challenged. It was noted that since the Sub Registrar had accepted the

document for registration, it was prima facie evidence that the conditions

had been satisfied and after registration of the document, the burden of

proving any infirmity rested on the person who challenged the registration.

Further relied upon is Jugraj Singh and another v. Jaswant Singh and

others, 1970 (2) SCC 386, wherein the Hon'ble Supreme Court had

reiterated the legal position as to presumption of regularity of official acts

and held that it would be presumed that a Sub Registrar registering a

document would have proceeded with the registration only on satisfying

himself as to the fact that the person who was executing the document was a

proper person. Reference can also be made to Prem Singh and others v.

Birbal and others, (2006) 5 SCC 353, wherein it was held by Hon'ble

Supreme Court that there was a presumption that a registered document is

validly executed and prima facie such document would be valid in law. The

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onus of proof, thus, would be on a person who leads evidence to rebut the

presumption. On a perusal of Ex.D-2 which is the original release deed

produced on record by the respondent, it is revealed that on the back of first

page of this document, a specific endorsement had been made by the

concerned Sub Registrar in compliance of provisions of Section 58 of the

Act, 1908 to the effect that the executant of the release deed was present in

the office, that the contents of the same were read to her and that she had

thumb marked the same after accepting the same to be correct. This

endorsement as discussed above carries a presumption of truth and validity

of this document, in view of ratio of law as laid down in above cited

authorities, and therefore, there can be no hesitation to hold that the

appellant had thumb marked the impugned release deed in the presence of

the Sub Registrar who was a public servant after the contents of the same

were read over to her and were accepted by her to be correct and, therefore

also her claim that any fraud was committed upon her stands falsified.

16. The last limb of argument as raised by learned counsel for the

appellant was that the learned Courts below committed a grave error by

ignoring the fact that the respondent was not having any pre-existing right

in the estate of the appellant and, therefore, no release deed could be

executed in his favour and further that the release deed in question was an

insufficiently stamped document. While referring to Article 55 of The

Indian Stamp (Haryana Amendment) Act, 2000, it was submitted that since

the release was not in favour of brother, sister, son, daughter, parents,

spouse, grandchildren, nephew, niece or co-parcener of the appellant,

therefore, stamp duty leviable was same which was to be affixed on a deed

of conveyance of sale of immoveable property. No doubt, as per Article 55

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of the Indian Stamp Act, 1899 (for short "Act, 1899") as amended by virtue

of the The Indian Stamp (Haryana Amendment) Act, 2000, the instrument

of the release of ancestral property in favour of the persons having above

mentioned relations with the renouncer is fifteen rupees and in any other

case, it is ad valorem of the immoveable property and the respondent in this

case does not fall in the category of the persons as mentioned above. As

such, the release deed in question was required to be stamped with same

stamp duty as is required to be affixed on a deed of conveyance. However,

at the same time, it cannot be ignored that the appellant-plaintiff herself had

produced the impugned release deed in evidence on 06.11.2004 and at that

time, no objection had been taken by her to the effect that this release deed

was not sufficiently stamped and could not be exhibited. Further, when the

original release deed Ex.D2 was proved by DW-2 Raj Kumar, Clerk, Office

of Sub Registrar, Bahadurgarh, even at that time, no such objection was

taken. It is well settled proposition of law that when an insufficiently

stamped document is tendered in evidence and marked either by the act of

the parties or by order of the Court, the opponent has the right to raise

objection regarding insufficiency of stamp duty at that time but if such

objection is not raised at the time when the document is marked and

received as evidence, the opponent will be forfeiting his right to challenge

the sufficiency or otherwise of the duty. At this stage, it will also be relevant

to refer to certain provisions of the Act, 1899. Section 33 provides for

examination and impounding of instrument which is not duly stamped.

Once on examination, it is found that the instrument is not duly stamped,

Section 34 comes into operation and places a complete embargo on the

admissibility of such document in evidence. However, Section 35 of the

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Act, 1899 provides that admission of an instrument not duly stamped or

insufficiently stamped, in evidence, rightly or wrongly, shall not be called in

question at any stage of the same suit or proceeding on the ground of

insufficiency of the stamp duty or that no stamp duty is paid on such

instrument. The provisions of Sections 33 to 35 of the Act, 1899 cannot be

read in isolation and are to be read together. (See: Smt. Huchamma and

others v. Sri Chandrashekar alias Hanumantharaju, (2014) 3 KCCR

2088) wherein High Court of Karnataka had observed so. Reference can

also be made to Javer Chand and others v. Pukhraj Surana, AIR 1961

SC 1655 wherein the Hon'ble Supreme Court had held that when the

document tendered is insufficiently stamped, on the other side raising

objection to the marking of the document, the question has to be decided

then and there, when the document is tendered in evidence. Once the Court

decides to admit the document in evidence, the matter is closed so far as the

parties are concerned. The Court has to determine the matter judiciously

since the document is tendered in evidence and before it is marked as an

evidence in the case. Similarly, in Bipin Shantilal Panchal v. State of

Gujarat and others, AIR 2001 SC 1158, the Supreme Court held that if the

objection relates to deficiency of stamp duty of a document, the Court has to

decide the objection before proceeding further. Similar proposition was laid

down in Ram Rattan v. Bajrang Lal and others, AIR 1978 SC 1393 and

Kanhailan Chandak v. R.Mohan, (1980) 2 MLJ 234 (Madras High

Court). On applying the proposition of law as laid down in the above cited

authorities to this case, since the appellant is not proved to have taken any

objection as to the release deed being insufficiently stamped at the time

when the same was tendered into evidence, therefore, the matter regarding

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insufficiency of stamp would be deemed to be closed then and there and the

objection so raised cannot be stated to be sustainable.

17. In view of the discussion as made above, I see no reason to

interfere with the concurrent findings of facts recorded by learned Courts

below. Neither any substantial question of law raised by appellant deserves

to be decided in her favour. Accordingly, affirming the judgments and

decrees passed by the Courts below, this appeal is dismissed with no order

as to costs.

18. Miscellaneous application(s), if any, also stand disposed of.

                                                 (MANISHA BATRA)
2.8.2023                                             JUDGE
manju

Whether speaking/reasoned                   Yes/No
Whether reportable                          Yes/No




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