9911796707
TMI Blog2009 (7) TMI 1362X X X X Extracts X X X X X X X X Extracts X X X X ..... Krishan, Rajinder Krishan sons of Dwarka Dass and Smt. Kaushalya Devi widow of Dwarka Dass, for a period of 20 years i.e. from Rabi 1967 to Kharif 1987 and the possession was delivered to the defendant No.1 as lessee. Similarly, plaintiff No.1, Prem Nath and Kaushalya Devi his mother also purchased 5/25 share out of the land measuring 206 kanals 3 marlas as fully detailed in the plaint. Accordingly, defendant No.1 started paying lease money to Kaushalya Devi as well as the plaintiff No.1 and paid lease amount up to Rabi, 1980 against receipts. Kaushalya Devi died on 9.6.1980 leaving behind the plaintiffs as her legal heirs. Thereafter, the defendant No.1 stopped paying the lease money to the plaintiffs. Later on, taking undue advantage of the absence of the plaintiffs from the village, started claiming ownership over the suit land and filed civil suit No.655 dated 6.3.1987 against Kewal Krishan and Rajinder Krishan, claiming ownership over the suit land by way of adverse possession, and obtained an ex-parte decree dated 10.2.1988 on wrong pleadings, as such the same is not binding upon the proprietary rights of the plaintiffs and does not confer any right or title upon the defendan ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... certified copy of the general power of attorney Ex.PW8/A, certified copy of the judgment dated 10.2.1988 Ex.PW8/B, copy of the jamabandi for the year 1965-66 Ex.P9, copy of the plaint filed in civil suit titled Narinder Nath vs. Kewal Krishan etc. Ex.P10, copy of the jamabandi for the year 1985-86 Ex.P11 and copy of the death certificate Ex.P12, the plaintiffs closed the evidence. In order to rebut the evidence, the defendant examined Kartar Singh (DW1), Narinder Nath Kapoor himself (DW2), Jagdamba Prasad Clerk (DW3), Sunhera Ram (DW4) and Mihan Singh (DW5). After tendering into evidence documents i.e. copy of the special power of attorney Ex.D1, copy of power of attorney Ex.D1A, copy of sale deed Ex.D2, certified copy of the judgment dated 10.2.1988 Ex.D2/A, copy of decree sheet dated 10.2.1988 Ex.D3, copy of the agreement Mark-A, the defendant closed the evidence. Learned trial court decided issues No.1, 2 and 3 against the plaintiffs while issues No.4, 6 and 8 were decided against the defendant No.1 and issues No.5 and 7 were answered against the defendant No.1. Consequently, the suit of the plaintiff was dismissed with costs. However, during appeal while holding that t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ter of Surinder Nath Kapoor and Narinder Nath Kapoor and the plaintiff Prem Nath Khanna and Pran Nath Khanna are the sons of Kaushalya Rani, so the defendant Surinder Nath Kapoor and Narinder Nath Kapoor are the brothers. Surinder Nath Kapoor has been residing at Singapore and has attained the citizenship of that country. The plaintiffs have pleaded that they do not know about the whereabouts of Surinder Nath Kapoor. The relationship of the plaintiffs and the defendants is so close that they could utilize or insert the name of anybody in the transactions. Kaushalya Rani was the daughter of that house. In those days and even to-day, daughters use to relinquish their rights in the property and offer their names to be used for the welfare of the family. The plaintiffs in order to seek possession or joint possession over the suit land had to stand on their own legs to prove their case while leading best evidence in their possession. The proof of title was sine qua non to seek possession. The original sale deeds (basis of their claim) ordinarily should have been in their possession and power which were never produced. The sale deeds did not see the light of the day for about 24-25 ye ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... her held that it must be shown that there is a clear and unambiguous statement by the opponent, then it would be conclusive unless explained. While examining, the contents of the written statement I am led to see whether there was admission regarding sale deed and payment of lease money. The contents of the reply, if read as a whole, do not amount to admissions at all by the respondents regarding the execution of the sale deeds and the payment of the lease money. As explained above, it has been duly observed that the defendant has explained that these sale deeds were sham transactions which were never acted upon and were never intended to confer title upon the plaintiff. As regards the payment of lease money, it has come in the plaint that the lease money was being paid to the deceased Kaushalya Rani against proper receipts. In the natural course in such circumstances, the plaintiffs should have been in possession of the receipts with regard to payment of lease money, but no such receipts were brought on record. To the contrary, while appearing in the witness box Narinder Nath Kapoor has categorically stated that he never paid lease money to Kaushalya Rani or to any of her he ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a), the court dealt with the method to prove the execution of the document, secondary evidence of which was permitted to be led, and observed that mere permission to lead secondary evidence would not dispense the appellant to prove the contents thereof, its existence and execution. It is further to be shown that copy has come from proper custody. The question of drawing presumption from a copy, as such, can arise only if it is proved to be executed by the executant. It was further observed that even if presumption is drawn, it would not amount to proving the contents of the document to be true. Again, the court in para No.28 of the judgment observed as under :- The proof of contents of a document may either be proved by primary or secondary evidence. The primary evidence means the document itself produced for inspection of the court whereas secondary evidence is defined under Section 63 of the Evidence Act. Concededly the document in original has not been produced and as such the primary evidence is not forthcoming to prove the contents of the adoption deed. Even mere marking of a document as an exhibit, which is even not the case in hand, does not dispense with its proof. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sub-section (5) of Section 57 was incorporated not to enact law of the kind which permitted the giving in evidence of a certified copy of the original, as envisaged by clause (f) of Section 65 of the Act, but to overcome the difficulty of non-reception in evidence of a certified copy of a true copy, the same not being certified copy of the original, which alone qualified to be called secondary evidence in terms of Section 63 of the Act. 8. Still further, while examining the argument that each of the clauses of Section 65 of the Evidence Act has to be read disjunctively and one is not to see as to whether the requirement of any other clause or the rest of the clause is complied with or not before the secondary evidence of the kind permitted by the explanatory paragraph of Section 65 can be let in. It was held that if the other party pleads that the document is forged one, the Court could summon the original and in case the original is not forthcoming on the ground of its loss etc., then unless such a fact is proved the Court would be entitled to draw adverse inference against such a party despite the fact that there is present on the record a certified copy of the original docu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ectively are sham transactions and these were neither acted upon nor produced before the revenue authority for attestation of the mutations or carrying out the entries in the revenue record. These were kept secret and were concealed for ulterior motive, rather these were never intended to be acted upon and as such, these documents have become useless and waste papers with the lapse of time and are not binding upon them. It was also pleaded that these documents were brought into existence in the name of the plaintiff No.1 and Kaushalya Rani in order to save the land from being declared as surplus area and to avoid the implication of the land ceiling laws, as such, these are the sham transactions. Notwithstanding the fact that no issue with regard to sale deeds being sham transactions was framed, yet the same could be covered under issue No.2 because proof of ownership was dependant upon proof of a genuine and valid document and ownership was a condition precedent for granting relief of joint possession. The trial court rightly discussed that the sale deeds were a sham transactions but the Lower Appellate Court dismissed this specific plea set up by the defendant No.1 without recordi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that also goes to show that the plaintiff never claimed ownership over the land on the basis of the said sale deeds and never asked for possession. The inference of the document being sham could be drawn from the fact that they did not take any step to claim lease money for ten years as according to them the defendant No.1 did not pay them the lease money after 1980. The evidence further shows that earlier Kartar Singh and his sons tried to dispossess the defendant No.1 from the suit land and failing to do so, they under the garb of the power of attorney, which was actually not given to him by Surinder Nath Kapoor for filing the suit are using the same against defendant No.1. Similarly, Malook Singh also preferred to keep the plaintiffs behind the curtain and for any false bargain, speculation, fictitious transaction or mis-representation continued to contest himself and he blatantly stated that he would not examine the plaintiffs. To the contrary, in order to prove that these were sham transactions, the defendant No.1 himself appeared in the witness box and fully explained about the nature of the transactions as sham stating that Surinder Nath Kapoor had appointed him as power ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h is treated to be an attorney authorised to file the suit and act on their behalf, even then he could not take place of the principal and make the statement of the facts about which he was not in the knowledge. The alleged sale deeds took place in the year 1966, whereas, Malook Singh was appointed attorney in the year 1990, what transpired in the year 1966 between the parties and how the sale deeds came into existence and from which source Surinder Nath Kapoor or the plaintiffs received the money and when he handed over the same and to whom he handed over the same for making purchase of the property, could only be answered by the plaintiffs and not by mere holder of the power of attorney from them. The power of attorney holder does not have the personal knowledge of the matter of the plaintiffs so as the defendants, therefore, he could neither depose from his personal knowledge nor could he be cross examined on those facts which are to the knowledge of the principal. Similar observations were made in case Janki Vashdeo Bhojwani and another vs. Indusind Bank Limited and others AIR 2005 SC 439. In the aforesaid Indusind Bank's case (supra), the Apex Court observed that Order ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y (Malook Singh) appears to be false at the face of it and is not sufficient to discharge the onus. Barring the statement of Malook Singh whose testimony is of no consequence and whose statement cannot be taken as the statement of the principal, there is no other evidence which may be treated as sufficient to shift the onus. The fact remains that there is no other evidence on the file to prove the ownership of the plaintiff over the suit land and that the sale transactions though could not be recorded as benami transaction in view of the specific bar created under the Benami Transaction Prohibition Act, yet, the same could be treated as sham one. As such the transactions of sale dated 17.10.1966 and 7.1.1967 allegedly executed by Rajinder Krishan and Kewal Krishan in favour of the plaintiffs as well as Kaushalya Rani, could be termed as sham transactions. Admittedly, Surinder Nath Kapoor was a Singapore resident. Nothing has been shown if he had any source of income in India to come in possession of Indian Rupee, therefore, in order to establish that the transactions in his name were genuine one and he had made the payment of consideration, he could establish regarding bringing ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d be gathered and determined from the recitals of the sale deed, but, it also observed that when the recitals are insufficient and ambiguous, the surrounding circumstances and conduct of the parties can be looked into for ascertaining the intention subject to the limitations placed by Section 92 of Evidence Act. Thus, in other words, the court observed that proving of document to be sham transaction could be gone into while invoking Section 92 of the Evidence Act. It has been further observed in Rajagopal's case (supra) that there is yet another circumstance to show that title was intended to pass only after payment of full price. Though the sale deed recites that the purchaser is entitled to hold, possess and enjoy the scheduled properties from the date of sale, neither the possession of the properties nor the title deeds were delivered to the purchaser either on the date of sale or thereafter. It is admitted that possession of the suit properties purported to have been sold under the sale deed was never delivered to the appellant and continued to be with the respondents. In fact, the appellant, therefore, sought a decree for possession of the suit properties from the respo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ever visited the land. To be precise, the crucial issue before me is about the nature of the transactions. A distinction must be borne in mind in regard to nominal and fictitious nature of transactions which is no transaction in the eyes of law at all and the nature and the character of the transaction as reflected in the deed of conveyance. The plaintiffs and the defendant No.1 were having fiduciary relationship, the later could get the benefit of his brother's, father's sister and her son's name and utilize their names particularly in the situation that they were cordial in their relations at that time and in order to avoid the implication of a surplus laws. As such mere insertion of their names in the sale deeds do not confer any title upon the plaintiffs to seek possession of the land. As regards the right to challenge the transactions as sham, the defendant being the lessee and got inserted the name of the plaintiff in order to avoid the surplus laws, and also having civil court decree in his favour had every right to challenge the said transactions as sham and fictitious transactions. It was observed in case Kashmiri Kumar vs. Durga Chaan Deb, AIR 1923 Cal. ..... X X X X Extracts X X X X X X X X Extracts X X X X
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