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2006 DIGILAW 2844 (PNJ)

Maya v. Mohinder Singh

2006-07-18

MAHESH GROVER

body2006
Judgment , J. 1. This is a plaintiffs appeal against the judgment and decree passed by the lower appellate court dated 2.9.2000. The plaintiff-appellant filed a suit for joint possession qua the suit land alleging that she was the owner in possession to the extent of 1/4th share of the suit property and the respondents are cosharers in possession in the remaining suit property and they were intent on grabbing the property of the appellant and, therefore, prepared a forged and false power of attorney bearing Wasika No.774 dated 11.6.1991 and on the strength of this power of attorney a sale deed was got executed and registered by which her share had been alienated. The case of the appellant was that she never appointed Inderpal Singh as his power of attorney and neither had she appeared in the office of the Sub Registrar to get the sale deed registered. It is on the basis of this power attorney that the alleged sale is stated to have been effected. 2. The respondents while responding to the suit had pleaded that both, the power of attorney and the consequent sale on the basis of power of attorney were valid and there was no forgery or fraud committed on their part. 3. On the pleadings of the parties, the trial Court framed the following issues: 1. Whether the sale deed dated 16.11.1992 and mutation No.1365 dated 13.5.1993 are null and void and are liable to be set aside? OPP 2. Whether the plaintiff is entitled to possession of the suit land? OPP 3. Whether the suit is not maintainable in the present form? OPD 4. Whether the plaintiff has no cause of action to file the suit? OPD 5. Whether the plaintiff is estopped to file the suit by her act and conduct? OPD 6. Relief. On 5.5.2000, the learned trial Court also framed additional issue No.1-A which is as follows: I-A. Whether Maya Devi plaintiff executed power of attorney dated 11.6.1991 in favour of Inderpal Singh s/o Bhag Singh? OPD 4. After considering the evidence adduced before it the learned trial court proceeded to decree the suit of the plaintiff-appellant. In appeal filed by Mohinder Singh and Kulwant Kaur the judgment and decree of the learned trial court was set aside. This has resulted in the present appeal having been filed.5. OPD 4. After considering the evidence adduced before it the learned trial court proceeded to decree the suit of the plaintiff-appellant. In appeal filed by Mohinder Singh and Kulwant Kaur the judgment and decree of the learned trial court was set aside. This has resulted in the present appeal having been filed.5. The contention of the learned Counsel for the appellant is that the power of attorney was never executed by the appellant and that it was a result of forgery. It was contended that the whole act was shrouded in suspicious circumstances as the respondent No.1 Mohinder Singh and Inderpal Singh in whose favour power of attorney was executed are her brothers. The appellant resides at Sunam but the power of attorney was executed and registered in Patiala. It was the argument of the learned Counsel for the appellant that had it been a genuine power of attorney then where was the question of going to Patiala to get it registered. Apart from this, the land has been transferred by Inderpal Singh, the power of attorney holder, in favour of Mohinder Singh, who is his brother and further that there is no evidence that any sale consideration had passed. It is also contended that the appellant is an illiterate lady and that her thumb impressions on the power of attorney even if accepted to be true do not reflect her intention to execute the said document.6. The learned Counsel for the respondents, on the other hand, contended that there was sufficient evidence on record to show that the power of attorney was not a result of fraud and was a genuine document having voluntarily been executed by the appellant herself. The thumb impressions on the power of attorney are the same as that of the appellant. 7. I have heard the learned Counsel for the parties and am of the opinion that the appeal deserves to be dismissed. The thumb impressions appearing on the power of attorney of the appellant, which are Mark Q-l to Q-4, were compared with the thumb impressions of the appellant and were found to be correct. There is thus no doubt that the power of attorney bore the thumb impressions of the appellant and it cannot be presumed that the document had been obtained by impersonation or fraud. The report of the finger print expert which extremely elaborate it is Ex. D-2. 8. There is thus no doubt that the power of attorney bore the thumb impressions of the appellant and it cannot be presumed that the document had been obtained by impersonation or fraud. The report of the finger print expert which extremely elaborate it is Ex. D-2. 8. Now the only question that is to be determined is as to whether the appellant had the knowledge of the contents of the power of attorney and that whether it was of her own free volition. There is testimony of Karnail Singh Lambardar DW 3 who is one of the attesting witnesses of the power of attorney He has testified that the appellant had executed the power of attorney a few years ago in favour of Inderpal Singh and that this document was prepared at the instance of the appellant by Gurmail Singh Dhaliwal. Document-Writer of Patiala. The contents of the power of attorney were read over and explained to the appellant and it is thereafter that the thumb impressions were put on the document. Apart from that, the document was registered before the Sub-Registrar where the document was again read over and explained to the appellant by the Sub-Registrar. The signature of the appellant were identified on the endorsement of the office of the Sub-Registrar, a certified copy of which is Ex. D-15. There is thus no ambiguity on the question that the appellant had executed the power of attorney in favour of Inderpal Singh and that it cannot be said that it was a result of fraud, impresonation or misrepresentation. The finding of the lower appellate Court, therefore, on this issue is affirmed. 9. The power of attorney was executed on 11.6.1991 and the sale was executed in favour of the respondent No.1 on 16.11.1992. The contention of the learned Counsel for the appellant that there is no evidence of sale consideration having been passed and, therefore, it should be taken that the sale deed was fictitious, cannot be accepted. The power of attorney which was executed was a valid power of attorney in favour of Inderpal Singh who sold the land after a year of the execution of the power of attorney. As long as the power of attorney was valid and gave the necessary authority to the holder of the power of attorney, the appellant cannot challenge the subsequent sale in favour of the third person. As long as the power of attorney was valid and gave the necessary authority to the holder of the power of attorney, the appellant cannot challenge the subsequent sale in favour of the third person. It is not the case of the appellant that the power of attorney had been cancelled. She has never come forward challenging the sale deed on the basis that the power of attorney was forged. So, if the power of attorney is held to be a valid document and not obtained as a result of fraud or misrepresentation then the subsequent acts committed on the basis of the valid power of attorney are also valid and cannot be questioned. 10. There is thus no reason to differ with the findings of the lower appellate Court on the issue that the power of attorney was a valid document, executed by the appellant of her own free volition and, therefore, the subsequent sale on the basis of the valid power of attorney is also declared to be valid. 11. The appeal being devoid of any merit is dismissed as such. .