Swarn Kaur and Others Vs. Jal Kaur and Others
EmailAppeal: Civil Appeal No. 4852 of 1994
Petitioner: Swarn Kaur and Others
Respondent: Jal Kaur and Others
Apeal: Civil Appeal No. 4852 of 1994
Judges: V.N. KHARE & S.N. VARIAVA, JJ.
Date of Judgment: Aug 02, 2001
Head Note:
CIVIL LAW
Civil Procedure Code, 1908
Section 100 – Second appeal – Substantial question of law – Interpretation of Power of Attorney. Held, is a substantial question of law. (Para 2)
Contract Act, 1872
Section 25 with Evidence Act, 1872 – Sections 4, 3 – Consideration – Proof – Sale deed executed by Power of Attorney holder in favour of daughter – She herself denied having received consideration – Daughter did not go to Sub-Registrar’s office – Her father-in-law went, but not examined – No recital in the sale deed that money was paid. Held that there is no evidence of passing of consideration. Sale deed was rightly held to be void by High Court. (Para 5)
JUDGEMENT:
ORDER
1. One Santa Singh executed a registered Power of Attorney dated 3.11.1966 in favour of his wife Smt.Gurnam Kaur. Smt. Gurnam Kaur, on 20.3.1975, executed a registered sale deed in favour of her daughter Smt.Swaran Kaur, who is appellant no. 1 in this appeal. On 20.3.1975, Santa Singh filed a suit for declaration that the sale deed dated 20.3.1975 executed by his wife Gurnam Kaur in favour of Smt. Swaran Kaur is void and illegal. It was also alleged that the sale deed was obtained fraudulently and no consideration was passed on. In the said suit, Gurnam Kaur was arrayed as defendant no. 2. Gurnam Kaur in her statement stated that her signature on the sale deed was obtained under the influence of certain drug administered to her. The trial court decreed the suit filed by Santa Singh. Defendant-appellant no. 1, thereafter, preferred the first appeal before the first Appellate Court. After filing the appeal, appellant no. 1 Smt. Swaran Kaur executed sale deed in respect of property in dispute in favour of defendant-appellant nos. 2 to 8. The first Appellate Court was of the view that the sale deed dated 20.3.1975 was executed for a consideration and was a valid document. Consequently, the appeal filed by appellant no. 1 was allowed. Aggrieved, plaintiff-respondent preferred a second appeal before the High Court. The High Court was of the view that under the deed of Power of Attor-ney, Smt. Gurnam Kaur could alienate the property only when there was a necessity. Since there was no necessity for sale, the sale deed executed by Gurnam Kaur in favour of Swaran Kaur was void and illegal. The High Court also found that no consideration was paid to Smt. Gurnam Kaur or Santa Singh by Smt. Swaran Kaur for alleged sale deed dated 20.3.1975. It is on these findings, the second appeal was allowed and the decree of the trial court was restored. It is against the said judgment, the appellants have preferred this appeal.
2. Learned Counsel appearing for the appellants argued that the High Court, in exercise of jurisdiction under Section 100 CPC, was not justified in interfering with the finding of fact recorded by the first Appellate Court and, therefore, the judg-ment under appeal is liable to be set aside on this ground alone. This argument has no merit. In this case, what we find is the interpretation of document i.e. Power of Attorney dated 3.11.1966 executed by Santa Singh in favour of Smt. Gurnam Kaur. An interpretation of document constitutes a substantial question which was required to be decided by the High Court. Further, it was found that there is no legal evidence to show that considera-tion money was paid to Smt. Gurnam Kaur.
3. It was then urged that the Power of Attorney does not postu-late that it is only on the event of necessity the Power of Attorney holder would alienate the property.
4. We have perused the deed of Power of Attorney and find that the Power of Attorney holder was entitled to alienate the proper-ty in an event of necessity. Since no necessity has been stated either in the written statement or in the evidence before the trial court we, therefore, find that the view taken by the High Court that the sale deed executed by Smt. Gurnam Kaur dated 20.3.1975 in favour of her daughter Smt. Swaran Kaur was illegal is correct.
5. It was also urged that there was substantial evidence on record to show that the consideration money was paid by Smt. Swaran Kaur to her mother Smt. Gurnam Kaur for executing the sale deed dated 20.3.1975. We have gone through the evidence and find that the witness, Bhajan Singh, PW-1, did not say in his state-ment that any consideration money was paid to Smt. Gurnam Kaur in his presence. Even Smt. Gurnam Kaur – defendant no. 2, in her statement before the trial court denied having received any consideration money. Smt. Swaran Kaur – DW 6, in her statement, stated that she had not gone to the Sub-Registrar’s office at the time of execution and registration of the sale deed. In fact, she has sent her father-in-law for getting the sale deed registered. Admittedly, father-in-law has not been examined. Moreover, there is no recital in the sale deed that consideration money was paid to Smt. Gurnam Kaur. Under such circumstances, we do not find any evidence that any consideration money was paid to Smt. Gurnam Kaur or to Santa Singh.
6. Learned Counsel for the appellants then urged that the Will dated 13.10.1972 which has been noted by the High Court shows that Santa Singh executed a Will in favour of Smt. Swaran Kaur in respect of the property in dispute and as such she has become absolute owner of the property in dispute. Under such circum-stances, we may interfere in the appeal and set aside the judg-ment of the High Court. Since this question does not arise in this appeal, we are not inclined to express any opinion in this matter. However, it will be open to the appellants to take such proceedings as they may be advised, before the appropriate court or authority.
7. For the aforesaid reasons, we do not find any merit in the appeal. The appeal fails and is, accordingly, dismissed. There shall be no order as to costs.
1. One Santa Singh executed a registered Power of Attorney dated 3.11.1966 in favour of his wife Smt.Gurnam Kaur. Smt. Gurnam Kaur, on 20.3.1975, executed a registered sale deed in favour of her daughter Smt.Swaran Kaur, who is appellant no. 1 in this appeal. On 20.3.1975, Santa Singh filed a suit for declaration that the sale deed dated 20.3.1975 executed by his wife Gurnam Kaur in favour of Smt. Swaran Kaur is void and illegal. It was also alleged that the sale deed was obtained fraudulently and no consideration was passed on. In the said suit, Gurnam Kaur was arrayed as defendant no. 2. Gurnam Kaur in her statement stated that her signature on the sale deed was obtained under the influence of certain drug administered to her. The trial court decreed the suit filed by Santa Singh. Defendant-appellant no. 1, thereafter, preferred the first appeal before the first Appellate Court. After filing the appeal, appellant no. 1 Smt. Swaran Kaur executed sale deed in respect of property in dispute in favour of defendant-appellant nos. 2 to 8. The first Appellate Court was of the view that the sale deed dated 20.3.1975 was executed for a consideration and was a valid document. Consequently, the appeal filed by appellant no. 1 was allowed. Aggrieved, plaintiff-respondent preferred a second appeal before the High Court. The High Court was of the view that under the deed of Power of Attor-ney, Smt. Gurnam Kaur could alienate the property only when there was a necessity. Since there was no necessity for sale, the sale deed executed by Gurnam Kaur in favour of Swaran Kaur was void and illegal. The High Court also found that no consideration was paid to Smt. Gurnam Kaur or Santa Singh by Smt. Swaran Kaur for alleged sale deed dated 20.3.1975. It is on these findings, the second appeal was allowed and the decree of the trial court was restored. It is against the said judgment, the appellants have preferred this appeal.
2. Learned Counsel appearing for the appellants argued that the High Court, in exercise of jurisdiction under Section 100 CPC, was not justified in interfering with the finding of fact recorded by the first Appellate Court and, therefore, the judg-ment under appeal is liable to be set aside on this ground alone. This argument has no merit. In this case, what we find is the interpretation of document i.e. Power of Attorney dated 3.11.1966 executed by Santa Singh in favour of Smt. Gurnam Kaur. An interpretation of document constitutes a substantial question which was required to be decided by the High Court. Further, it was found that there is no legal evidence to show that considera-tion money was paid to Smt. Gurnam Kaur.
3. It was then urged that the Power of Attorney does not postu-late that it is only on the event of necessity the Power of Attorney holder would alienate the property.
4. We have perused the deed of Power of Attorney and find that the Power of Attorney holder was entitled to alienate the proper-ty in an event of necessity. Since no necessity has been stated either in the written statement or in the evidence before the trial court we, therefore, find that the view taken by the High Court that the sale deed executed by Smt. Gurnam Kaur dated 20.3.1975 in favour of her daughter Smt. Swaran Kaur was illegal is correct.
5. It was also urged that there was substantial evidence on record to show that the consideration money was paid by Smt. Swaran Kaur to her mother Smt. Gurnam Kaur for executing the sale deed dated 20.3.1975. We have gone through the evidence and find that the witness, Bhajan Singh, PW-1, did not say in his state-ment that any consideration money was paid to Smt. Gurnam Kaur in his presence. Even Smt. Gurnam Kaur – defendant no. 2, in her statement before the trial court denied having received any consideration money. Smt. Swaran Kaur – DW 6, in her statement, stated that she had not gone to the Sub-Registrar’s office at the time of execution and registration of the sale deed. In fact, she has sent her father-in-law for getting the sale deed registered. Admittedly, father-in-law has not been examined. Moreover, there is no recital in the sale deed that consideration money was paid to Smt. Gurnam Kaur. Under such circumstances, we do not find any evidence that any consideration money was paid to Smt. Gurnam Kaur or to Santa Singh.
6. Learned Counsel for the appellants then urged that the Will dated 13.10.1972 which has been noted by the High Court shows that Santa Singh executed a Will in favour of Smt. Swaran Kaur in respect of the property in dispute and as such she has become absolute owner of the property in dispute. Under such circum-stances, we may interfere in the appeal and set aside the judg-ment of the High Court. Since this question does not arise in this appeal, we are not inclined to express any opinion in this matter. However, it will be open to the appellants to take such proceedings as they may be advised, before the appropriate court or authority.
7. For the aforesaid reasons, we do not find any merit in the appeal. The appeal fails and is, accordingly, dismissed. There shall be no order as to costs.
