GHULAM BHEEK Versus SALAMAT BIBI

On 28‑1‑1981 respondent No. l filed a suit against the appellants as also respondent No.2. In the plaint it was stated that the suit land was owned by Nizamuddin who appointed respondent No.2'as a general attorney vide registered deed, dated 12‑3‑1975 and authorising him to alienate the suit land; that the said attorney entered into an agreement with respondent No.l on 8‑8‑1979 promising to transfer the suit land to her for a consideration of Rs.60,000; that the entire amount of consideration was paid to the attorney against receipt, dated 8‑8‑1979 who also executed an agreement on the same date; that appellant No.2 claims to be a donee of the suit land from Nizamuddin vide Mutation No.1812 attested on 16‑1‑1980, whereas Niazamuddin was suffering from Marzul Maut since two months before his death and was not in his senses; that respondent No.1 is in possession through tenants; that Nizamuddin died on 3‑1‑1980 and the appellants and respondent No.2 (defendant No.l in the suit) had refused to perform the agreement; that appellant No.2 is a distant kindered of Nizamuddin. With these averments she prayed for grant of a decree for specific performance of the said agreement.

2. Respondent N o.2 admitted the suit of respondent No. 1. The appellants in their written statement stated that Nizamuddin had never appointed any one as his attorney; that the respondents are husband and wife and have collusively fabricated the power of attorney to usurp the suit land. It was also denied that late Nizarriuddin had not received any money from the respondents; that the land is in possession of the appellant; that the land was validly %gifted to appellant No.2 by Nizamuddin. The learned trial Court framed the following issues:

(1) Whether Nizam Din deceased appointed the defendant No. 1 as his general attorney and the defendant No. l entered into a contract of sale in favour of the plaintiff? OPP.

(2) Whether the plaintiff paid Rs.60,000 as sale price to Nizam Din deceased through his special attorney and she is thus, entitled for specific performance of contract of sale? OPP.

(3) Whether the plaintiff is estopped by her words and conduct for filing this suit? OPD .

(4) Whether the general power of attorney is a fictitious, false and collusive document? OPD.

(5) Whether the defendant No.2 got the suit land by way of a valid gift?

(6) Whether the impugned gift in favour of the defendant No.2 was made during the Marzal‑Maut, mutation of gift was attested after the death of the. donor? if so, its effect? OPD 4.

(7) Whether Nizam Din deceased made any will in favour of the defendant NoA? If so, its effect? OPD 4.

(8) Whether the valuation of the suit titled Akbar Ali v. Ghulam Bheek is incorrect and the suit is not maintainable? OPD & P.

(9) Whether the defendants were having notice, and knowledge of agreement of sale in favour of the plaintiff? If so, its effect upon the disputed Hibba and Will? OPP.

(10) Whether the defendants are entitled for special costs? if so, to what extent? OPD.

(11) Relief.

Evidence of the parties was recorded. The learned trial Court found Issues Nos. 1, 2 and 4 against respondent No. L Issues Nos.7 and 8 were found to have become redundant as name of defendant No.4 mentioned therein had been deleted from the suit. Issues Nos.5 and 6 were not decided in view of findings on Issues Nos.l, 2 and 4. Issue No.3 was answered in favour of respondent No. l while it was stated that Issue No.9 need not to be decided in ,view of the findings on the said Issues Nos. l, 2 and 4. The suit was accordingly dismissed vide judgment and decree, dated 17‑12‑1987. Respondent No. l filed a first appeal which was heard by a learned Additional District Judge, Gujrat who allowed the same and decreed the suit of respondent No. l on 20‑2‑1989.

3. Learned counsel for the appellants contends that the learned Additional District Judge has misread the evidence on record while setting aside the judgment and decree. passed by the learned trial Court. According to the learned counsel the theories propounded by the learned Additional District Judge while holding that execution of power of attorney stood proved, are not supported by the provisions of any Statute or any case‑law. It is further contended that the attending circumstances of the case which stood established on record were ignored by the learned Additional District Judge while passing the impugned judgment and decree. Learned counsel for the respondents, on the other hand, has tried to support the impugned judgment and decree of the learned Additional District Judge with reference to proviso to Article 79 of the Qanun‑e‑Shahadat Order, 1984.

4. I have gone through the record of the learned trial Court, with the assistance of the learned counsel for the parties. I have already reproduced above the material contents of the pleadings of the parties. Respondent No. l has herself claimed that it was her husband i.e the attorney who acting under the power of attorney referred in the plaint had proceeded to enter into and to execute the agreement in her favour. This was the burden of Issue No. I. The document is on record as D. W.1/1 The only evidence led in support of its execution by Nizamuddin is Muhammad Sharif, D.W.2. the scribe. He has only stated that the document has been written by him. He does not even specifically stated on whose instructions did he write the same. In his cross-examination he states that whereas he personally knows the marginal witnesses of the document he did not know Nizamuddin whose N.I.C. even ‑was not available at the time when he had written the document. This witness, therefore; does not at all prove the execution of the document by Nizamuddin deceased. It is a matter of record that none of the two Marginal witnesses of the document were produced and no explanation whatsoever is forthcoming on record for the non‑production of the said material evidence. This does lead to drawing of adverse inference that had the witnesses been produced then would; not have supported the case of respondent No.l. This leaves only the statement of respondent No.2 in the field who appeared as D. W .1 and apart from producing the power of attorney and to state that he was the attorney of Nizam Din did not even bother to state that Nizam Din had even executed the power of attorney which had been produced by him. To my mind the learned trial Court rightly held that in view of effective rebuttal of the said bald statement made by D.W.1 by the appellant in their evidence, in the present case no evidence to prove the execution of power of attorney D.W.1/1 was produced by respondent No. 1.

5. The learned Additional District Judge has propounded strange theory in, this judgment as to the proof and disproof of a document and has concluded that the appellants had been unable to disprove the execution of power of attorney. In the state of evidence on record, referred to by me above, I wonder as to what the learned Additional District Judge wanted the appellants to disprove when nothing was proved by the respondents vis‑s‑vis the said power of attorney.

6. Learned Additional District Judge has, however, proceeded to state, in his judgment that under the proviso to Article 79 of Qanun‑e‑Shahadat Order, 1984 absolves production of attesting witnesses of registered document to prove the execution thereof, unless its execution is denied by the very executant of the document. This incidentally is also the sole argument of the learned counsel for the respondents (I may state here that in' the present Civil Revision the respondents have opted to take of the cloak and have. jointly appointed the learned counsel who has argued the case for them).

7. The learned Additional District Judge has certainly misconstrued the said provision of law while making the said observation. I may reproduce here the said proviso:‑‑ .

"Provided that it shall not be necessary to call an attesting witness in proof of the execution of any document, not being a will, which has been registered in accordance with the provisions of Registration Act, 1908 (XVI of 1908), unless its execution by the person by whom it purport to have been executed is specifically denied."

A bare reading of the said proviso would show that it does not restrict the denial of execution by the executant of the document.. On the other hand, a proper reading would show that the proviso could not be applicable where execution of the document is denied in a suit or proceeding involving a registered document. 1 seek support for my said observation from the cases of Mst. Chandra Kali v. Bhabhuti Prasad and another AIR 1943 Oudh 416 and Zaharul Hussain v Mahadeo Ramji Deshmukh and others AIR 1949 Nag. 149.

8. In fact in the present case Article 79 of the said Order would not be relevant since a general power of attorney is not a document required by law to be attested. However, the respondents were bound to prove the documents in terms of Article 78 of the said Order. It is with reference to this provision of law that the respondents have failed to discharge the burden placed thereunder to prove execution of a document being relied by them. 1 may further state here that even under the proviso to the said Article 79 a party relying upon a registered document is only relieved of the duty of calling of an attesting witness and it is not absolved of its duty to prove the document. Reference may be made to the case of Kartar Singh v. Didar Singh and others AIR 1934 Lah.282.

9. Having held that the respondents had failed to prove execution of any power of attorney by Nizam Din in favour of respondent No.2, the entire edifice built on the same by the husband and the wife falls to the ground. It need not be said that the evidence on record as to payment being made by the wife to the husband almost bounds on the ridiculous. I may refer here to the statement of P W.2 Noor Muhammad He states:‑‑‑

There is of course no evidence on record that Abdul Ghaffar passed on the money to Nizam Din. He does not say so even himself while deposing as D.W.1.

10. Learned counsel then tried to argue that respondent, No.1. is in possession and this fact lends support, to the fact that she is so in possession under the sale agreement. Not only is there any evidence on record in support of the said factual contention but I find that the learned counsel while making the said argument has even lost sight of the very application filed by him on behalf of the respondents in this Court. This is C.M. No.3172 of 1991. It is accompanied by an affidavit sworn by respondent. No. 1. In this application a woe has been made on behalf of respondent No. l (para. 5) that she stands deprived of the possession of the land as well as produce thereof and that the stay order be vacated and she be allowed to take possession by executing the decree passed by the learned Additional District Judge. In the alternate it was prayed that the appellants be called upon to furnish security for mesne profit. Needless to state that mesne profits are payable by a person in possession of the land and the possession is alleged to be wrongful. A notice was issued on this application on the asking of the learned counsel. It was pressed and was allowed vide order, dated 20‑4‑1992 by the Honourablc Chief Justice inasmuch as the appellants were directed to furnish security for mesne profits.

11. In view of the above discussion I reverse the findings of the learned Additional District Judge‑on Issues Nos. l, 2 and 4 and restore those of the learned trial Court. I am also in agreement with the learned trial Court that since respondent No. l neither has title in the land nor does she claim to be an heir of deceased Nizam Din, findings on Issues Nos.5 and 6 need not be recorded. To my mind if at all it is only appellant No. l who could have questioned the gift made in favour of appellant No.2. Needless to state that gift being gratuitous transaction, the defence available to a subsequent vendee under section 27(b) of Specific Relief Act, 1877 would not be available to appellant No.2 even in case of proof of a valid gift had a valid agreement been proved by respondent No.l and had she been found to be entitled to the specific performance of the agreement. Issues Nos.7, 8 and 9 have been rightly declared to be redundant by the learned trial Court. Finding on Issues Nos.3 and 10 are affirmed. This R.S..A. is allowed. The judgment and decree, dated 20‑2‑1989 passed by the learned Additional District Judge, Gujrat is set aside and that passed by the learned trial Court on 17‑12‑1987 dismissing the suit of respondent No. l is restored with costs throughout.

H.B.T./G‑66/L Appeal allowed.