BALI SINGH Vs. SHER SINGH

JUDGEMENT

(1.) THE second appeal is against decree in the suit filed by the 1st respondent -plaintiff (since deceased). The suit was filed on an averment that he was the owner of half share in lands measuring 143 Kanals 15 Marlas in Village Brahampur, District Ludhiana. The other properties were held under mortgages. He was a bachelor and he had adopted his brother's son Hakam Singh, who was taking care of him. There was a registered adoption deed dated 07.04.1954. The contention was that he had been abducted from his house during the time of absence of his adopted son in the month of June, 1979 by defendants 1 and 2. The latter were brothers and residents in Momanabad village. Their father -in -law Harnam Singh was the 3rd defendant in suit. The plaintiff would contend that he had been kept in confinement in the house of Harnam Singh and some documents had been taken from him against his will and without his knowledge. The plaintiff would state as the cause of action that he had come to know on 11.12.1979 the fraud which had been practiced on him and the suit was for a declaration that he was the owner in possession of the properties. There was no specific prayer relating to the power of attorney, but the averment was that if any document had been taken from him, it should have been the result of fraud and hence, illegal, void, ineffective and not binding on the plaintiff.

(2.) THE defence was that there had been no form of fraud practiced and the plaintiff had voluntarily executed a power of attorney in favour of the 1st defendant on 29.06.1979 and had it duly registered. Subsequently, he had effected a sale through the said power of attorney on 10.12.1979 for a consideration of Rs. 45,000/ - in favour of the wife of the 1st defendant, who was Balbir Kaur, arrayed as 4th defendant and Bali Singh, arrayed as 2nd defendant. There were two other contentions raised in defence that the alleged adoption said to have been made by the plaintiff was not true and that further, the plaintiff was not a bachelor and he had married the mother of the defendants 1 and 2, namely, Nand Kaur in a kareva form of marriage. Issues had been, therefore, not merely with reference to the truth and validity of a power of attorney said to have been executed in favour of the 1st defendant, but also with reference to the validity of the sales in favour of D2 and D4 and also whether there had been a kareva form of marriage between the plaintiff and the mother of defendants 1 and 2.

(3.) DURING the time of trial when the plaintiff's attempt was to show that he had been literally held a captive by defendants and he was not aware of the several documents which the defendants had obtained, the defendants wanted to contend that the plea of kidnapping and illegal detention in the house of the father -in -law of the 1st defendant, namely, 3rd defendant -Harnam Singh, was not true and when the plaintiff's brother Kehar Singh had filed an application under Section 97 Cr.P.C. for production of Sher Singh when he was said to be detained by the 3rd defendant, the plaintiff himself appeared in Court and expressed that he wanted to go to Brahampur his native village and the plaintiff had not given any complaint or made any statement before the magistrate that he had been illegally detained by the 3rd defendant, acting in connivance with other defendants. The trial Court found on an overall consideration of all evidence that the defendants were actually attempting to wrest control of all the properties and they were aggrieved about the adoption of Hakam Singh and they wanted to take control of properties by securing documents in their favour. The Court also made observation that even the sale deed said to have been executed in favour of D2 and D4 had not been produced in Court, although there was an issue struck on the validity of the sale in their favour and when there was a replication filed by the plaintiff denying the sale said to have been executed by the 1st defendant claiming to be a power of attorney for the plaintiff in favour of D2 and D4. The Court found that the examination of the scribe of the power of attorney was not sufficient, for, admittedly, he had not known even the identity of the plaintiff and none of the witnesses mentioned the power of attorney had been examined. The Court also held that there was no proof of kareva marriage with Nand Kaur and that the defendants had fraudulently obtained several documents which were not valid or binding on the plaintiff. In appeal, the trial Court judgment was confirmed and the appellate Court also attempted to identify the several acts of fraud committed by the defendants for securing the documents without his knowledge.