High Court of H.P.IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA

R.S.A. No. 266 of 2002

Date of decision: 29. 3. 2014

Murat Ram …Appellant/Defendant

Versus

Bhadar Singh ..Respondent/Plaintiff

Coram

The Hon’ble Mr. Justice Tarlok Singh Chauhan, Judge.

Whether approved for reporting ?

1

Yes

For the Appellant : Mr. S unil Mohan Goel, Advocate.

For the Respondent : Mr. B hupinder Gupta, Senior Advocate,

with Mr. Janesh Gupta, Advocate.

Tarlok Singh Chauhan, Judge (Oral)

This regular second appeal has been preferred by the

appellant/defendant against judgment and decree dated 11.3.2002

passed in Civil Appeal No. 103 of 2000 by learned District Judge, Kullu,

H.P. whereby he reversed the judgment and decree dated 29.9.2001

passed by learned Senior Sub Judge, Kullu, H.P. in Civil Suit No. 36 of

1995.

2. The original plaintiff Smt. Ba ldassi was the real sister of

defendant Keshav Ram and instituted the suit claiming herself to be co-

owner in possession of the suit land as detailed in paras 1 to 4 of the

head note of the plaint and was further mortgagee in possession of the

land as had been mentioned in para No.5 of the head note of the plaint to

1

Whether reporters of Local Papers may be allowed to see the Judgment ?yes

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the extent of her recorded share. She assailed the release deed dated

25.11.1992 qua the suit land as being void, fictitious, illegal and the

mutations No. 4159 and 1137 were also sought to be declared as illegal

and not binding upon her. Smt. Baldassi died during the pendency of the

suit and was succeeded by her son and daughter, who were arrayed as

plaintiffs. Her case was that on 10 Manghar 2049 she as a guest visited

her brother defendant where she fell ill. The defendant on the pretext of

providing medical help, brought her to Kullu for getting her admitted in the

Kullu hospital, but he with ulterior motive to grab her property, took her to

different places and obtained her thumb impressions on papers. He did

not admit her in the hospital, rather took her back to her house on the

ground that admission to the hospital was not advised. The plaintiff

during her life time had never come to Kullu. In September, 1994 the

plaintiff requested the defendant to partition the land, but he dis-owned

her ownership. Then on collection of revenue records, the plaintiff came

to know fraud and deception played by the defendant upon her by

obtaining the release deed in his favour. The so called release deed was

claimed to be an outcome of fraud and termed to be forged and fictitious

and never executed by the plaintiff. It was alleged that the defendant

failed to admit the claim of the plaintiff, therefore, the present suit for

having her declared as co-owner in possession of the land and

mortgagee in possession of the land described in para 5 of the head note

of the plaint. In alternative a plea for possession was also made.

3. The defendant admitted the plai ntiff to be his sister and was

co-owner in possession of the suit land to the extent of her share, but

claimed that she had relinquished her rights by executing release deed

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dated 25.11.1992 in his favour and had delivered the possession to him.

It was alleged that the plaintiff was not in possession of the suit land and

the plaintiff had relinquished her right in the suit land of her free volition

and Will. It was denied that the plaintiff had come to his house and had

fallen ill or had been taken to Kullu for having admitted in the hospital.

The defendant denied the allegations of having obtained the release deed

by way of fraud, misrepresentation or obtaining her thumb impressions

wrongly. Rather it was claimed by the defendant that plaintiff in presence

of the witnesses of her own in a sound disposing mind had executed the

document of relinquishment. Rest of the averments were stated to be

wrong and accordingly denied.

4. On the pleadings of the par ties, the learned trial Court on

27.5.1997 framed the following issues:

1. Whether the release deed dated 25.11.1992 is the result of

fraud or deception and is liable to be set aside as alleged?

OPP

2. If issue No.1 is proved, whether the plaintiffs are owners in

possession of the suit land as alleged? OPP

3. Whether the plaintiffs are entitled to the relief of possession

as prayed? OPP

4. Whether the plaintiffs are entitled to the relief of injunction?

OPP

5. Whether plaintiffs have no cause of action? OPD

6. Whether plaintiffs have no locus standi to file the present

suit? OPD

7. Whether plaintiffs are estopped to file this suit by their act

and conduct? OPD

8. Whether the suit is not maintainable in the present form?

OPD

9. Relief.

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5. After recording the evidence, the learned trial Court

dismissed the suit. Against this judgment and decree, the plaintiff/

respondent preferred an appeal before the learned lower Appellate Court,

who vide his judgment and decree dated 11.3.2002 allowed the appeal

and accordingly the suit filed by the plaintiff was ordered to be decreed. It

is this judgment and decree, against which the defendant/appellant has

preferred the present appeal.

6. On 28.6.2002 this Court admi tted the appeal on the following

substantial questions of law:

1. Whether the Ld. Appellate Court has erred in decreeing the

suit of the plaintiff and not upholding the judgment and

decree of the trial Court by declaring that Ext.DW-2/A was a

result of fraud and mis-representation without the plaintiffs

being able to prove fraud and misrepresentation?

2. Whether a suit of fraud and mis-representation during the life

time of the person executing the document is to be filed by

the concerned person only or other persons can also join the

case as plaintiff and use the name of principle plaintiff as a

shadow to serve their own interest?

3. Whether the learned First Appellate Court has misread and

mis-appreciated the evidence both oral and documentary on

record and the findings are thus based on conjectures and

surmises?

7. I have heard Mr. Sunil Mohan Goel, learned counsel for the

appellant and Mr. Bhupinder Gupta, Senior Advocate assisted by Mr.

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Janesh Gupta, Advocate, learned counsel for the respondent and have

also gone through the records carefully.

8. At the outset, it is fairly conceded by learned counsel for the

appellant that the substantial question of law No.2 as framed does not

arise for consideration and, therefore, he confines his arguments to the

substantial questions of law No. 1 and 3. Since the substantial questions

of law No. 1 and 3 are inter-related and inter-connected, therefore, I

proceed to dispose of the same through common reasoning.

9. Since the original plainti ff Smt. Baldassi had unfortunately

expired before she could enter the witness box. However, one of the

legal representatives i.e. Bhader Singh appeared as PW-1 and stated

that his mother had been residing with him and her last rites had been

performed by him. He thereafter gave detailed version as to how the

plaintiff had visited the house of the defendant where she had fallen ill.

He has further narrated the incident of her having been duped on the

pretext of her being treated in the hospital and her thumb impressions

had been obtained on various blank papers. He has categorically stated

that no relinquishment deed had been executed by his mother of her own

in favour of the defendant and therefore, the mutations to this effect were

wrong and illegal. He further claimed to be in possession of the suit land

to the extent of the share of his mother.

10. PW-2 Mast Ram had claimed the possession of the plaintiff

over the suit land and further stated that land revenue to him was being

paid by the plaintiff. The statement of this witness assumes significance

in view of the fact that he is Chowkidar and collecting the land revenue.

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He has categorically denied that the possession of the suit land is with

the defendant or that he had no knowledge regarding the possession.

11. PW-3 Pritam Singh also st ates that the possession of the

suit land is with the plaintiff and it is he, who is paying the land revenue.

He has further deposed that the mother of the plaintiff had been

remaining ill and was provided medical assistance by the plaintiff. He

denied the suggestion that the plaintiff was not cultivating the suit land.

12. PW-4 Radha Devi, the other pl aintiff in this case has also

deposed that her mother Smt. Baldassi during her life time was

possessing the land herself and thereafter it was plaintiff No.1 Bhader

Singh, who is cultivating the same.

13. On the other hand, the defendant examined himself as DW-1

and claimed that Smt. Baldassi had relinquished her right, title or interest

qua the suit land by executing the document mark-X. This was done

because she was having sour relationship with the plaintiff. According to

this witness, the relinquishment deed had not been obtained by him by

way of fraud, rather the same had been executed by deceased Baldassi

of her free volition. This witness conceded that the plaintiff No.1 was the

only son of Smt. Baldassi and also conceded that Smt. Baldassi had no

quarrel with her son. He further admitted Smt. Baldassi to be an illiterate

woman, who only understood the local language of Kullu. He denied the

suggestion that Smt. Baldassi had fallen ill, though admitted that she had

come to his house as guest in the year 1992. He further denied the

suggestion that he had an intention to grab the property in question and

on the pretext of providing treatment to the deceased, got fraudulently

papers prepared on the basis of which the release deed mark-X

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(DW-2/A) was scribed. He admits that he was present when document

mark-X (Ex.DW-2/A) was scribed. He claimed that he had called

witnesses Ghughru while Baldassi had called Hira Lal as her witness. He

denied that the land of Smt. Baldassi was being cultivated by her son

who was still in possession of the same.

14. DW-2 Chuhru Ram is petition writer and is alleged to have

scribed the release deed Ex.DW-2/A. He states that the contents of the

relinquishment deed were read over to Smt. Baldassi, who appended her

thumb impressions in presence of Ghughru Ram and Hira Lal, who had

witnessed the document. He claimed to have scribed the document on

the asking of Smt. Baldassi and admitted that he did not know her

personally.

15. DW-5 Hira Lal is alleged to be one of the attesting witness of

the deed Ex.DW-2/A. As per his statement, he became the witness of the

document on the asking of Smt. Baldassi, who give her land to the

defendant vide relinquishment deed Ex.DW-2/A. It is stated by this

witness that Ex.DW-2/A was made and scribed at the behest of Smt.

Baldassi and after writing it, the contents thereof were explained to her

and it is thereafter that she appended her thumb impression. He also put

his thumb impression alongwith another witness, who appended his

signature. Thereafter, it was produced before the Tehsildar where again

Smt. Baldassi acknowledged having given the land vide relinquishment

deed in favour of the defendant. This witness admitted that Smt. Baldassi

was in fact a resident of village Buaee. As per him, Smt. Baldassi had not

given the description of the fields and had only stated that she is giving

the land of Kuhu to the defendant. He has further deposed that Smt.

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Baldassi was not carrying any parcha (revenue record) at that time. She

had herself giving the description of land and such description of land

was not given to the scribe by Keshav Ram, defendant. He denied that

the document was never scribed by Smt. Baldassi. This witness

conceded that Smt. Baldassi had not mentioned how many khata

khatauni numbers were given to the defendant nor she had disclosed the

area of the land given.

16. DW-4 Devi Dass is the son of one of the alleged attesting

witness Ghughru and has identified the signature of his father on

Ex.DW-2/A. DW-6 Bihari Lal is the Registration Clerk of Sub Registrar,

Kullu, who speaks about the registration of the document Ex.DW-2/A in

the office of Sub Registrar, Kullu. DW-3 Mohar Singh is the step-son of

Smt. Baldassi and claimed that she had settled in the house of his father

Chet Ram. He claimed that she had given land to the defendant, but

further clarified that he was not present at the time of execution of the

document Ex.DW-2/A. However, he admitted that Smt. Baldassi was

served and looked after by her son Bhader Singh and her land was being

cultivated by Bhader Singh. He further admitted that during her life time,

Smt. Baldassi remained in possession of the land.

17. Thus, what emerges from th e evidence on record is that

though the defendant has produced the scribe, one attesting witness and

son of second attesting witness to prove on record the document Ex.DW-

2/A. However, their testimonies have to be tested alongwith the other

evidence brought on record coupled with the surrounding circumstances

and peculiar facts of the case. At this stage, the testimony of DW-5 Hira

Lal has to be borne in mind as this witness had very categorically and in

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unequivocal terms stated that Smt. Baldassi was not possessed any

parcha (revenue record) at the time of execution of the document. He has

further qualified that no description of the land was provided by Keshav

Ram to Chuhru Ram, petition writer. Chuhru Ram, petition writer in turn

states that Ex.DW-2/A was in fact scribed by him at the instance of Smt.

Baldassi. It has also come on record that Smt. Baldassi was totally

illiterate and could only understand the local language of Kullu.

Therefore, taking into account all the facts and circumstances, it is

mystical as to how the details of the land with khata, khatauni number

and area alongwith proper description has come to be recorded in the

document Ex.DW-2/A. The translated version of Ex.DW-2/A reads thus:

“I, Baldassi d/o Bihu son of Tulsu Rajput, resident of Choil, Phati

Shamshi aged 55 years, land Kitas nine measuring 13-14-0 bighas

land revenue 1.67 paise, khata khatauni No. 120/228 vide

jamabandi for 1986-87 situate in phati Bhumteer, Kothi Tarapur,

Tehsil and District Kullu 1/12 shares, land measuring 1-2-16 bighas

mortgagor possessed by mortgagee and land of khasra Nos. 846,

848 kita 2, land measuring 0-6-0 gairmumkin abadi, khata khatauni

No. 69/92 1/16 share, land measuring 0-0-7 bigha vide entry in

column of possession and land of khasra No. 850 measuring 7-13-0

bighas, khata khatauni No. 69 min/93 1/16 share, land measuring

0-9-1 bigha vide entry of possession and land of khasra No. 1499

measuring 1-1-0 bigha, khata khatauni No. 493/727, 1/5 share, land

measuring 0-5-0 bigha, total land of both khatas, land measuring 0-

15-3 per jamabandi for 1984-85, phati Shamshi, Kothi Khokhan,

Tehsil and District Kullu, land measuring 1-17-19 bighas without

mortgage along with mortgagee rights of nine kitas measuring 13-

14-0 bigha land revenue 1.87 paise, khata khatauni No.120/228,

jamabandi for 1986-87, Phati Bhumteer, Kothi Tarapur, 1/12 share,

land measuring 1-2-16 bighas qua Dharam Chand son of Lot Ram,

son of Poshu mortgagor, owner and possessed as mortgagee

etc……….”

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From the perusal of the above translation, it does not require any great

deal of imagination to conclude that Ex.DW-2/A was in fact result of fraud

and mis-representation. Such deed could not have been scribed at the

instance of an illiterate lady that too in absence of the revenue records

with such meticulous precision.

18. The fraud or misrepresentation can further be gathered from

the fact that Smt. Baldassi during her life time was in possession of the

suit land. In case she had relinquished or released the same in favour of

the defendant, then she would not have possessed the same. DW-3

Mohar Singh has clearly admitted that Smt. Baldassi during her life time

in fact possessed the suit land. Another factor which outweighs the other

evidence on record is the fact that had Smt. Baldassi of her own

executed the relinquishment or release deed, then she probably would

not have assailed the same. But in this case the fact remains that Smt.

Baldassi herself during her life time challenged the document to be void.

She has categorically stated that the existence of this document came to

her notice only after she had approached the Patwari for partition and it is

this time she detected the fraud and came to know that she had been

duped.

19. The learned lower Appellate court has taken the note of

another circumstance which fortifies the claim of the plaintiff qua fraud

which is giving of wrong address of Smt. Baldassi in Ex.DW-2/A. In this

document Smt. Baldassi is mentioned to be a resident of Village Choil,

while as per the evidence on record, Smt. Baldassi was a resident of

Buaee. Buaee is the residential village of her son. According to DW-3

Mohar Singh, Smt. Baldassi was being served and looked after by her

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son i.e. plaintiff No.1 Bhader Singh, who had been cultivating her land.

Similarly, DW-5 Hira Lal has also admitted that Smt. Baldassi was

resident of Buaee. Resultantly when this is the evidence, it has not

understandable as to why the correct address of Smt. Baldassi was not

reflected in Ex.DW-2/A. The findings recorded by learned lower Appellate

Court to the effect that either somebody else was produced by the

defendant for obtaining the document referring her to be Baldassi cannot

be termed to be farfetched or imaginary.

20. Confronted with this situation, the learned counsel for the

appellant would contend that since Ex.DW-2/A was registered document,

therefore, presumption of truth is attached to the certificate appended by

the Registrar under Section 60 (2) of the Registration Act. For this

purpose, he relied upon a decision of this Court in Kirpa Ram and

others vs. Smt. Maina, 2002 (2) Shim. L. C. 213, He further submitted

that the decision of this Court follows the well established principle of law

settled in Sennimalai Goundan and another v. Sellappa Goundan and

others, AIR 1929 Privy Council 81 and Kanwarani Madna Vati and

another v. Raghunath Singh and others, AIR 1976 HP 41.

21. The proposition of law if dissociated with the present facts is

taken into consideration, then there can be no quarrel to the arguments

of the learned counsel for the appellant. However, a principle of law has

to be applied in a particular fact situation and not for a theoretical

purpose. The entire reading of the pleadings and the evidence clearly

indicate that the original plaintiff has been duped. Smt. Baldassi though

cannot be treated as ‘Pardanashi’ lady but still nonetheless it has to be

established on record that she was whereabouts of true nature of

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transaction she was entering into. The High Court of Calcutta in Kartick

Prasad Gorai and others vs. Neami Prasad Gorai and others AIR

1998 Calcutta 278 held:

“21. In our opinion, although the protection given to a ‘Pardanashi’

woman as regards execution of a deed is not available to an

illiterate man who has sufficient experience of dealing with property,

we are of the view that in case of a deed executed by such a

person, the fact that the contents of the deed were read over and

explained to the executant must be proved by the person who wants

to take advantage of such deeds. In this case in view of

contradictory statement made by the alleged witnesses of the deeds

as regards execution and explanation of the contents, the finding of

the learned trial Court cannot be said to be wrong.”

The reasoning given by Calcutta High Court clearly applies to the facts of

the present case as it is established on record that Smt. Baldassi was a

total illiterate and could only understand the local language of Kullu and

there was no reason for her to have executed the relinquishment deed

and above all challenged the same during her life time.

22. To counter the submissions of the learned counsel for the

appellant, learned senior counsel Mr. Bhupinder Gupta, has rightly relied

upon the judgment passed by this Court in Smt. Kala Wati vs. Smt.

Vidya Devi and others 2009 (3) Shim. L.C. 306 wherein the decision

rendered by this Court in Kirpa Ram’s (supra) was also taken into

consideration and it was held as follows:

“15. Learned counsel appearing for the respondent submits that the

document being registered, the presumption of truth is attached to

tine certificate appended by the Registrar under Section 62 of the

Registration Act. He relies upon a decision of this Court in Shri Kirpa

Ram and others vs. Smt. Maina, 2002 (2) Shim. L.C.213. He

submits that this Court this decision follows the well established

principle of law settled in Sennimalai Goundan and another v.

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Sellappa Goundan and others, AIR 1929 Privy Council 81 and

Kanwarani Madna Vati and another v. Raghunath Singh and others,

AIR 1976 HP 41.

16. Learned counsel has also supported the judgment of the Courts

below, in particular that of the learned trial Court, by urging that

merely because the parties to the lis are related that would not

perse attract the principle that the defendant was in fiduciary

relationship which would have influenced the plaintiff. Learned

counsel has also relied upon a decision of the Madras High Court in

P. Saraswathi Ammal v. Lakshmi Ammal alias Lakshmi Kantam,

AIR 1978 Madras 361 to the effect that mere bond of kinship does

not establish undue influence.

17.As a general proposition of law the points urged by learned

counsel appearing for the respondent are taken as an established

principle of law. However, a principle of law is applied in a particular

fact situation and not as a theoretical purpose. In the sequential

narration of facts supported by the evidence of the plaintiff, PW-1

Kamal Kishore and PW-2 Karam Chand, the so called attesting

witnesses, the narration is clear and natural. The plaintiff admits the

putting of a thumb impression on the document but pleads that this

was done out of love and affection to help the defendant to obtain

loan for the purposes of house construction where she was to give

her no objection and consent to such construction so that the

defendant could raise the loan. The plaintiff has nowhere stated that

she had any idea of relinquishing her share in the property.

Registration of the document is of no avail to the plaintiff as the

attesting witnesses themselves have stated that they were not

aware about the contents of the document. They were not

accompanying the defendant. How and under what circumstances

the trial Court says that they being the attesting witnesses are now

deposing in favour of the plaintiff and as such their testimony is not

believable is a clear breach of the rule applicable for appreciation of

evidence. Rejection of the evidence of these two witnesses on the

ground of perversity is writ large in this case. What is the quality of

deposition has not been considered. Both the Courts below have

swept the principles applicable for the appreciation of evidence

under the carpet without realizing its implications. Without

appreciating the evidence it would but be stating the obvious that

the perversity of findings on the evidence on record is writ large in

this case. True that the plaintiff may not be `pardanashi’ lady in the

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traditional sense when this doctrine was used for protection of such

ladies in 19

th and 20th century in India, but little seems to have

changed with the majority of the women still labouring under the

disability of illiteracy and poverty and confined. The concept of

`pardanasi’ women have withered down. But whether illiterate

women are now in a position to understand the true nature of the

transaction they are entering into or are overwhelmed by filial

affection into following their kin blindly is something which requires a

deeper thought.

18. It is true and undisputed that the appellant is an illiterate lady.

Even if she is not treated to be `pardanashin’ lady, what had to be

established on the record was that she was aware about the true

nature of the transaction she was entering into. The High Court of

Calcutta in Kartick Prasad Gorai and others vs. Neami Prasad

Gorai and others, AIR 1998 Calcutta 278 held:-

“21. In our opinion, although the protection given to a

`Pardanashi’ woman as regards execution of a deed is not

available to an illiterate man who has sufficient experience of

dealing with property, we are of the view that in case of a deed

executed by such a person, the fact that the contents of the

deed were read over and explained to the executant must be

proved by the person who wants to take advantage of such

deeds. In this case in view of contradictory statement made by

the alleged witnesses of the deeds as regards execution and

explanation of the contents, the finding of the learned trial Court

cannot be said to be wrong.”

23. The learned counsel further placed reliance upon a judgment

of this Court in Bhoop Ram vs. Dharam Das Latest HLJ 2009 (HP) 560

where Kirpa Ram’s case was again considered by this Court and it was

held:

12. Reliance is placed on decision of this Court in Shri Kripa

Ram and Others vs. Smt.Maina, 2002(2) Shim.L.C. 213. In

that case, this Court relying upon the decision of the Privy

Council in Sennimalai Goundan and another vs. Sellappa

Goundan and others, AIR 1929 Privy Council 81, interpreting the

provisions of Section 60(2) of the Registration Act read with

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Section 115 of the Evidence Act held that where a person

admits execution of an instrument before the Registrar after the

document has been explained to him, he cannot subsequently

plead that he was ignorant to the nature of the transaction. The

decision relied upon also follows the judgment of this Court in

Kanwarani Madna Vati and another vs. Raghunath Singh

and others, AIR 1976 HP 41

. Prima facie, this argument seems

attractive but on consideration of the facts on record, this

submission cannot be accepted. The evidence on record and

proved facts are consistent only with one conclusion and that is

that the plaintiff has been duped. The cumulative effect of the

established facts, namely, illiteracy of the plaintiff, non-payment

of the consideration money and material contradictions in the

statements of the witnesses of the defendant are all sufficient to

rebut the presumption so invoked by the defendant. No sale

consideration was either paid by the defendant or received by

him before the Registrar. In the decision relied upon by the

learned counsel appearing for the appellant, the Court had held

that the endorsement was clear not only regarding the

presentation of the deed before the Registrar but the fact that

payment of the consideration had been admitted and that the

document had infact been read over and explained to the

executant. Moreover, the presumption under Section 60 ibid is

not irrebutable. Old age, illiteracy and backwardness, were facts

which placed a special cloak of protection around the plaintiff.

There is nothing on the record to suggest or show that the

plaintiff had infact understood the nature of the transaction or

that he was ad-idem with what he was transferring. The conduct

of the plaintiff revoking the transaction vide ExPW-3/A within a

period of five days and in the absence of evidence that during

this time he had been prevailed upon by any other person for

extraneous consideration to revoke the transaction, the findings

of both the Courts below that in-fact no consideration had

passed, were all factors which would render the presumption

attached to Ex.DA as having been negatived. All these facts

were consistent with only one conclusion that is, that the mind of

the plaintiff was not ad-idem with the purported transaction.”

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24. Therefore, after taking into consideration the evidence led by

the parties, I find that the plaintiff /respondent has been successfully in

rebutting the presumption as attached to the document Ex.DW-2/A in

terms of the provisions of Section 60 (2) of the Registration Act.

25. Now, I proceed to deal with the contention of the appellant

that the plaintiff has failed to prove the fraud and misrepresentation. The

evidence of the parties has already been discussed in detail, therefore, it

would be relevant to make mention of the pleadings regarding fraud and

misrepresentation. The following averments are contended in paras 2

and 3 of the plaint:

“2. That the plaintiff on 10

th

Maghar (Maghsheer) 2049 visited as a

guest to the house of defendant, as the defendant is her real

brother. There during night hours she fell ill and was not keeping

good health, on pretext of treatment and admission to hospital, the

defendant brought the plaintiff to Kullu. The defendant with a view

to grab the property of the plaintiff took her to different places and

buildings in Kullu town, got some papers thumb impressioned but

was not admitted in hospital and was brought back to village (in his

house) and told that admission is not advised. The defendant gave

some medicine tablets to the plaintiff and told that take the same.

Medicine tablets are with her. The papers were kept by the

defendant in his custody. The plaintiff during her life time never

came to Kullu prior to the aforesaid date.

3.That in the month of September, 1994 (Asoj) the plaintiff

requested the defendant to partition the land according to the family

arrangement, the defendant then openly said that the plaintiff is no

more now the owner of the suit land, then the plaintiff collected the

revenue record and enquired about the matter, thereafter she came

to know the fraud and deception played on her by the defendant.

The defendant has prepared release deed in his favour by playing

fraud and deceiption on the plaintiff, the aforesaid alleged release

deed is forged and fictitious, the plaintiff never executed the same,

hence the same be declared null and void, ab-initio and illegal. And

the mutation Nos. 4159 and 1137 of Phaties Shamshi and Bhumtir

respectively attested on the basis of aforesaid alleged release deed

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are also null and void and the plaintiff is not bound by the same and

the same be declared so.”

26. What is fraud has been dealt with in detail by this Court in

Smt. Kala Wati’s case (supra), wherein it has been held :

.

“13.Section 17 of the Indian Contract Act, 1872, (hereinafter referred

to as the `Act’)deals with fraud defining it to mean inter alia the

suggestion of a fact which is not true by a person who does not

believe it to be true, active concealment of a fact by a person having

knowledge or belief of the fact.

In Krishna Mohan Kul alias Nani Charan Kul and another

vs. Pratima Malty and others, AIR 2003, SC 4251, the Supreme

Court while considering the provisions of Section 16 supra held:-

“13. In judging of the validity of transactions between persons

standing in a confidential relation to each other, it is very

material to see whether the person conferring a benefit on the

other had competent and independent advice. The age or

capacity of the person conferring the benefit and the nature of

the benefit are of very great importance in such cases. It is

always obligatory for the donor/beneficiary under a document

to prove due execution of the document in accordance with

law, even de hors the reasonableness or otherwise of the

transaction, to avail of the benefit or claim rights under the

document irrespective of the fact whether such party is the

defendant or plaintiff before Court.

14. It is now well established that a Court of Equity, when a

person obtains any benefit from another imposes upon the

grantee the burden, if he wishes to maintain the contract or

gift, of proving that in fact he exerted no influence for the

purpose of obtaining it. The proposition is very clearly started

in Ashburner's principles of Equity, 2nd Ed. , p. 229. thus:

"when the relation between the donor and donee at or

shortly before the execution of the gift has been such as to

raise a presumption that the donee had influence over the

donor, the Court sets aside the gift unless the donee can

prove that the gifts was the result of a free exercise of the

donor's will. "

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15. The corollary to that principle is contained in Clause (3) of

Section 16 of the Indian contract Act, 1872 (in short 'contract

Act' ).

16. At this juncture, a classic proposition of law by the Privy

Council needs to be noted. In Mst. Farid-Un-Nisa v. Munshi

Mukhtar ahmad and Anr. (AIR 1925 P. C. 204) it was observed

as follows:

"it is, therefore, manifest that the rule evolved for the protection

of pardahnashin ladies not be confused with other doctrines,

such as fraud,duress and actual undue influence, which apply

to all persons whether they be pardahnashin ladies or not".

17. The logic is equally applicable to an old, illiterate, ailing person

who is unable to comprehend the nature of the document or

the contents thereof. It should be established that there was

not mere physical act of the executant involved, but the mental

act. Observations of this Court, though in the context of

pardahnashin lady in Mst. Kharbuja Kuer v. Jang Bahadur Rai

and Ors. (AIR 1963 SC 1203) are logically applicable to the

case of the old, invalid, infirm (physically and mentally)and

illiterate persons”.

14. To similar effect is the judgment of the Supreme Court in State of

Andhra Pradesh and another vs. T.Suryachandra Rao, AIR 2005 SC

3110. The Court held:-

“8. By "fraud" is meant an intention to deceive; whether it is from

any expectation of advantage to the party himself or from the

ill will towards the other is immaterial. The expression "fraud"

involves two elements, deceit and injury to the person

deceived. Injury is something other than economic loss, that is,

deprivation of property, whether movable or immovable or of

money and it will include any harm whatever caused to any

person in body, mind, reputation or such others. In short, it is a

non-economic or non-pecuniary loss. A benefit or advantage

to the deceiver, will almost always cause loss or detriment to

the deceived. Even in those rare cases where there is a

benefit or advantage to the deceiver, but no corresponding

loss to the deceived, the second condition is satisfied. (See Dr.

Vimla v. Delhi Administration and Indian Bank v. Satyam

Fibres (India) Pvt. Ltd. ).

9. A "fraud" is an act of deliberate deception with the design of

securing something by taking unfair advantage of another. It is

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a deception in order to gain by another's loss. It is a cheating

intended to get an advantage. (See S. P. Chengalvaraya

Naidu v. Jagannath ).

10. "Fraud" as is well known vitiates every solemn act. Fraud and

justice never dwell together. Fraud is a conduct either by letter

or words, which includes the other person or authority to take

a definite determinative stand as a response to the conduct of

the former either by words or letter. It is also well settled that

misrepresentation itself amounts to fraud. Indeed, innocent

misrepresentation may also give reason to claim relief against

fraud. A fraudulent misrepresentation is called deceit and

consists in leading a man into damage by willfully or recklessly

causing him to believe and act on falsehood. It is a fraud in law

if a party makes representations, which he knows to be false,

and injury enures therefrom although the motive from which

the representations proceeded may not have been bad. An act

of fraud on court is always viewed seriously. A collusion or

conspiracy with a view to deprive the rights of the others in

relation to a property would render the transaction void ab

initio. Fraud and deception are synonymous. Although in a

given case a deception may not amount to fraud, fraud is

anathema to all equitable principles and any affair tainted with

fraud cannot be perpetuated or saved by the application of any

equitable doctrine including resjudicata. (See Ram Chandra

Singh v. Savitri Devi and Ors. )”.

“11. … … … … … … … In a leading English case i.e. Derry and

Ors. v. Peek (1886-90) All ER 1 what constitutes "fraud" was

described thus: (All ER p. 22 BC)"fraud" is proved when it is

shown that a false representation has been made (i)

knowingly, or (ii) without belief in its truth, or (iii) recklessly,

careless whether it be true or false". But "fraud" in public law is

not the same as "fraud" in private law. Nor can the ingredients,

which establish "fraud" in commercial transaction, be of

assistance in determining fraud in Administrative Law. It has

been aptly observed by Lord Bridge in Khawaja v. Secretary of

State for Home deptt. , that it is dangerous to introduce

maxims of common law as to effect of fraud while determining

fraud in relation of statutory law. "fraud" in relation to statute

must be a colourable transaction to evade the provisions of a

statute. "if a statute has been passed for some one particular

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purpose, a court of law will not countenance any attempt which

may be made to extend the operation of the Act to something

else which is quite foreign to its object and beyond its scope.

Present day concept of fraud on statute has veered round

abuse of power or mala fide exercise of power. It may arise

due to overstepping the limits of power or defeating the

provision of statute by adopting subterfuge or the power may

be exercised for extraneous or irrelevant considerations. The

colour of fraud in public law or administration law, as it is

developing, is assuming different shades. It arises from a

deception committed by disclosure of incorrect facts knowingly

and deliberately to invoke exercise of power and procure an

order from an authority or tribunal. It must result in exercise of

jurisdiction which otherwise would not have been exercised.

The misrepresentation must be in relation to the conditions

provided in a section on existence or non-existence of which

the power can be exercised. But non-disclosure of a fact not

required by a statute to be disclosed may not amount to fraud.

Even in commercial transactions non-disclosure of every fact

does not vitiate the agreement. "in a contract every person

must look for himself and ensures that he acquires the

information necessary to avoid bad bargain. In public law the

duty is not to deceive. (See Shrisht Dhawan (Smt.)

v.M/s.Shaw Brothers, 1992(1) SCC 534 ).”

12. … … … … … … … … … … … … …

“13. This aspect of the matter has been considered recently by

this Court in Roshan deen v. Preeti Lal Ram Preeti Yadav v.

U. P. Board of High School and Intermediate Education, Ram

Chandra Singh's case (supra) and Ashok Leyland Ltd. v. State

of T.N. and Another [2004(3) SCC 1].

14. Suppression of a material document would also amount to a

fraud on the court, (see Gowrishankar v. Joshi Amba shankar

Family Trust and S. P. Chengalvaraya Naidu's case (supra ).

15. "Fraud" is a conduct either by letter or words, which induces

the other person or authority to take a definite determinative

stand as a response to the conduct of the former either by

words or letter. Although negligence is not fraud but it can be

evidence on fraud; as observed in Ram Preeti yadav's case

(supra )”.

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27. The evidence led by the par ties to the lis has already been

discussed in detail. In the entirety of the facts and circumstances, this

Court is of the firm view that the defendant/appellant played fraud upon

the original plaintiff Smt. Baldassi and got executed the release deed

Ex.DW-2/A. The learned lower Appellate court has given a detailed

judgment wherein not only the pleadings but even the evidence and law

applicable to the given facts have been discussed in detail, calling for no

interference from this Court. Accordingly, the substantial questions of law

No. 1 and 3 are answered against the appellant/defendant.

28. Consequently, there is no me rit in the appeal and the same

is ordered to be dismissed with costs throughout.

( Tarlok Singh Chauhan )

March 29, 2014 Judge.

(

GR)

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