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2010 DIGILAW 983 (HP)

Kuldeep v. Dalip singh

2010-07-24

SURJIT SINGH

body2010
JUDGMENT : SURJIT SINGH, J. 1. This appeal by the defendants is directed against the judgment and decree dated 3rd August, 1999 of learned District Judge, whereby accepting plaintiffs- respondents appeal, judgment and decree dated 29th October, 1997 of the trial Court have been partly set aside and a decree, declaring plaintiffs-respondents Brahma Nand and Subhash as owners of a part of the suit property, to the extent of 5 bigha 8 biswas, has been passed. 2. Present appeal was admitted on the following substantial questions of law: "1. Whether self serving admission of Dalip Singh as power of attorney of Chet Ram, donor for execution of gift deed dated 4.2.93 Ext. PF is sufficient proof for the execution of gift deed Ext. PF when there is a dispute of execution of gift deed dated 4.2.93, more particularly, when neither scribe nor any attesting witness of the gift dated 4.2.93 has appeared in the witness box to prove gift and when Dalip Singh has an interest in the gift? 2. Whether gift deed Ext. PF by Dalip Singh as power of attorney of Chet Ram in favour of his own sons, Brahma Nand and Subhash is the result of breach of trust and fiduciary relationship as well as misuse of power of attorney Ext. PE of Chet Ram by Dalip Singh? 3. Whether Dalip Singh author of gift deed Ext. PF on the basis of power of attorney Ext. PE is legally competent to accept the gift on behalf of donee's, Brahma Nand and Subhash and whether donee's were put in possession of the gifted land on the basis of gift Ext. PF?" 3. A suit was filed by the plaintiffs-respondents and their father Dalip Singh (now dead and represented by plaintiffs-respondents No. 2 and 3), for declaration that they were owners in possession of 12 bigha 16 biaswa land, which was earlier owned by Chet Ram, the father of deceased Dalip Singh and grandfather of plaintiffs-respondents Brahma Nand and Subhash. It was pleaded that out of the total 12 bigha 16 biswas land, 5 bigha 8 biswa land had been donated by said Chet Ram in favour of his grandsons, respondents Brahma Nand and Subhash, by executing a gift deed, through his attorney, namely Dalip Singh (deceased plaintiff), who was his son. It was pleaded that out of the total 12 bigha 16 biswas land, 5 bigha 8 biswa land had been donated by said Chet Ram in favour of his grandsons, respondents Brahma Nand and Subhash, by executing a gift deed, through his attorney, namely Dalip Singh (deceased plaintiff), who was his son. With respect to the rest of the property, it was stated that the same had been inherited by Dalip Singh, on the death of Chet Ram, in November, 1993. 4. It was pleaded that the plaintiffs had come to know that the present defendants-appellants got the entire estate of Chet Ram, including 5 bigha 8 biswa land, which had earlier been donated in favour of plaintiffs-respondents No. 2 and 3, mutated in their favour, on the strength of a Will, allegedly executed in their favour by Chet Ram, father of deceased plaintiff Dalip Singh. They sought a declaration that the said mutation order was illegal, void and of no effect upon their rights, title and interest in the suit property. 5. Appellants-defendants contested the suit. They alleged that Chet Ram was unaware of the execution of gift deed by Dalip Singh in favour of his sons defendants-respondents No. 2 and 3, though it was admitted that Dalip Singh had been appointed as attorney by Chet Ram. It was stated that the gift was result of a conspiracy between Dalip Singh and the marginal witnesses of the gift deed. Further, it was stated that Dalip Singh had not rendered any services to his father and displeased with the conduct of Dalip Singh, his father Chet Ram not only cancelled the instrument of power of attorney executed in his favour, in the year 1989, but also appointed Desh Raj, the father of the appellants-defendants, as his attorney and bequeathed his entire property in favour of the defendants-appellants, by means of Will dated 30th March, 1993, Ex. DW-2/A. 6. Various issues were framed by the trial Court, on the pleadings of the parties. It was held that execution of gift deed had not been proved. Will was held to have been validly executed by Chet Ram in favour of the defendants-appellants. Consequently the suit was dismissed. 7. DW-2/A. 6. Various issues were framed by the trial Court, on the pleadings of the parties. It was held that execution of gift deed had not been proved. Will was held to have been validly executed by Chet Ram in favour of the defendants-appellants. Consequently the suit was dismissed. 7. Appeal filed by the plaintiffs-respondents in the Court of District Judge was partly accepted and it was declared that respondents No. 2 and 3 had acquired title to 5 bigha 8 biswa land, described by specific Khasra numbers in the gift deed, on the basis of gift made in their favour by Chet Ram, through his attorney Dalip Singh. 8. Aggrieved by the judgment and decree of learned District Judge, defendants-appellants have filed this appeal. 9. I have heard learned counsel for the parties and gone through the record. 10. Gift deed Ex. PF is dated 4th February, 1993. Dalip Singh appeared as PW-1 and testified that he had executed the gift deed in favour of respondents No. 2 and 3, who are his sons, on the strength of instrument of power of attorney Ex. PE. It is not in dispute that the instrument of power of attorney was subsisting, at the time when the gift deed was executed. No suggestion was put to Dalip Singh that there was any conspiracy between him and the marginal witnesses, as pleaded in the written statement, by the defendants-appellants. 11. Desh Raj, the father of the defendants-appellants, appeared as DW-1. He did not say that transaction of gift was fraudulent, as pleaded in the written statement. Only thing he stated about the gift deed is that it was wrong because it had not been acted upon till date. 12. In view of the above-stated position, it cannot be said that the execution of the gift deed does not stand proved. 13. Learned counsel for the defendants-appellants submits that in the instrument of power of attorney Ex. PE, there is no mention that the attorney (Dalip Singh) had been authorised to make gift in favour of his sons. He says that a general reference in an instrument of power of attorney, giving power of gift to the attorney, is of little consequence and on the strength of such reference, property of the principal cannot be gifted. He relies upon a judgment of Punjab and Haryana High Court, in support of his submission. He says that a general reference in an instrument of power of attorney, giving power of gift to the attorney, is of little consequence and on the strength of such reference, property of the principal cannot be gifted. He relies upon a judgment of Punjab and Haryana High Court, in support of his submission. Citation is Gian Kaur v. Piara Singh and another, 1986-1 PLR 397. 14. No doubt, in the aforesaid judgment it has been held by a Single Judge that if the instrument of power of attorney does not specifically mention as to in whose favour gift is to be made, the attorney will have no authority to gift the property on a general reference in the instrument that he/she is authorised to alienate the property, by way of sale, gift, etc. 15. In the present case, gift has not been executed by Dalip Singh in favour of strangers. It is in favour of his own sons, who in turn are the grandsons of the principal, i.e. Chet Ram. When a father is executing an instrument of power of attorney in favour of his son and gives him the power to make gift, in normal circumstances, the object of conferment of such authority would be presumed that the son (attorney) has been authorised to make gift in favour of close relatives of the principal, who are also supposed to be close relatives of the attorney, as the principal and the attorney are father and son. In the present case, donee's are the grandsons of Chet Ram. 16. In view of the above-stated position, submission made by the learned counsel for the appellants is rejected. Consequently, substantial questions of law No. 1 and 2 are answered against the defendants-appellants. 17. As regards, substantial question of law No. 3, respondents No. 2 and 3 were minor, at the time when the gift deed was executed. Dalip Singh, who executed the gift deed as attorney, was their natural guardian. Gift deed remained with him. That means he accepted the gift on behalf of the donee's, being their natural guardian. This, by itself, cannot be a ground for holding that the gift is not complete. Therefore, substantial question of law No. 3 is also answered against the defendants-appellants. As a result of the aforesaid discussion and answers to substantial questions of law No. 1 to 3, appeal is dismissed. This, by itself, cannot be a ground for holding that the gift is not complete. Therefore, substantial question of law No. 3 is also answered against the defendants-appellants. As a result of the aforesaid discussion and answers to substantial questions of law No. 1 to 3, appeal is dismissed. Pending application (s), if any, also stand disposed of, in view of the dismissal of the main appeal.