In RSA No.5057 of 2017-PUNJ HC- Securing old lady’s right in suit property where her nephew fraudulently got relinquishment deed in his favour, P&H HC says it seems ‘highly improbable’ that she would do so when she has her own children Justice Meenakshi I. Mehta [05-05-2022]

Read Order: Satbir v. Lakhmiri (since deceased) represented through her LRs

Monika Rahar

Chandigarh, May 06,2022: While dealing with a second appeal wherein the nephew of the illiterate and aged respondent-plaintiff fraudulently got a relinquishment deed in his favour in respect of the suit property belonging to the plaintiff, the Punjab and Haryana High Court has come to the rescue of the lady by upholding the judgment and decree of declaration passed in favour of the plaintiff by the lower Courts.

The Bench of Justice Meenakshi I. Mehta opined, “In the normal course of events, it seems highly improbable that the plaintiff would have relinquished all her rights in the suit land in favour of only one of the children of her brothers, i.e the defendant, while depriving her own children as well as the children of her other brothers from having any right in the same and that too, specially in the circumstances when she was not residing with him and thus, he was not having any occasion to serve her.”

Also, while rejecting the defendant’s application before the High Court for leading additional evidence, the Court observed that the defendant filed a similar application before the Trial Court in respect of another set of evidence, and thus the defendant did not come up with a “fair, candid and plausible explanation” for such omission. 

In this case, the respondent-plaintiff (since deceased and now represented through her LRs) filed a Civil Suit against the appellant-defendant (nephew) for seeking the decree for a declaration to the effect that she was the owner in possession of the suit land. 

The Trial Court decreed the Suit. Aggrieved, the defendant filed an appeal, which was also dismissed. Thus, the defendant preferred the instant appeal before the High Court. 

The plaintiff filed the afore-said suit while averring that the defendant was her nephew and he fraudulently got the above-mentioned relinquishment deed executed by her in his favour in respect of the suit land, on the pretext of facilitating the grant of old-age pension to her.

The defendant filed his written statement contesting the claim of the plaintiff therein, inter-alia, on the ground that she (plaintiff) had voluntarily executed the said relinquishment deed in his favour qua her share in the land inherited by her from her father. 

The defendant also moved an application under Order 18 Rule 17-A CPC for seeking permission to lead additional evidence by way of producing the copies of the relinquishment deed of 2008, General Power of Attorney (2008), civil suit of September 2010, a written statement of March 2011 and written statement of January 2011. 

Before proceeding on the merits of the case, the Court dealt with the application under Order 18 Rule 17-A. At the very outset, the Court opined that this provision of Order 18 was no more a part of the Statute Book as the same was deleted w.e.f. July 01, 2002. Even otherwise, the Court observed that all the afore-mentioned documents were, explicitly, in existence even at the time of the filing of the said civil suit in August 2011.

In his defence, the defendant pleaded that though these documents were handed over to the counsel engaged for representing him before the trial Court but inadvertently, the same could not be tendered in the evidence. 

Regarding this submission, the Court observed that this plea did not hold much water in view of the fact that it was specifically mentioned by the lower appellate Court in the impugned judgment of 2017 that the defendant moved an application there also for seeking permission to lead additional evidence by producing the sale deed of September 1993, sale deed of November 2002, complaint addressed to the SHO, the application under RTI Act and reply to the same, mutation No.451, copies of the School Certificates, death certificate of Phool Singh, missing certificate and copy of the relinquishment deed of September 2013, on the record.

Thus, from this, the Court inferred that the documents, as now sought to be produced by the defendant in his additional evidence, had not been included in that application.

Therefore, the Court held that the defendant did not come forward with any fair, candid and plausible explanation for the above- -said omission on his part and rather, in the present application, he did not even disclose the factum of his having moved the afore-mentioned application before the said Court. Resultantly, this application was dismissed accordingly.

Now coming to the merits of the appeal, the counsel for the defendant contended that the plaintiff executed the said relinquishment deed in respect of the suit land, in favour of the defendant out of her own sweet will and volition and moreover, she did not lead any cogent evidence to prove the factum of fraud allegedly committed by the defendant in getting the said deed executed. 

The Counsel placed reliance on the Supreme Court in Union of India and others Vs. Vasavi Co-op. Housing Society Ltd. and others to contend that the plaintiff has to succeed only on the strength of his own case and not on the weakness of the case set up by the defendant.

Addressing this contention, the Court observed that at the time of execution of the relinquishment deed in question, the defendant was the only person who accompanied the plaintiff (An illiterate lady) to the office of the competent authority. Further, the Court observed that it was highly improbable for the plaintiff to relinquish all her rights in the suit land in favour of only one of the children of her brother i.e the defendant while depriving her own children as well as the children of her other brothers of having any right in the same and that too, especially in the circumstances when she was not residing with him and thus, he was not having any occasion to serve her.

Further, referring to the decision cited by the defendant in form of the Union of India (Supra), the Court opined that the above-stated facts in themselves sufficiently substantiated the averments of the plaintiff even without looking into and considering any weakness in the case of the defendant. 

Resultantly, the appeal in hand was dismissed.