NAND KAUR Vs. MASTAN SINGH AND OTHERS

JUDGEMENT

(1.) This second appeal arises in the following circumstances. Property owned by Haryana, the last male-holder, was inherited by his widow Smt. Khemi. She died some seven years before the filing of the suit, out of which the present appeal has arisen, leaving her surviving two daughters, Smt. Kauri and Smt. Nand Kaur plaintiff. Both of the daughters were married. Smt. Kauri the elder, was married to Mastan Singh defendant, whereas Smt. Nand Kaur, the younger, was married to Sucha Singh. On the demise of Smt. Khemi, the property left by her was taken possession of by the collaterals of her husband. Smt. Kaur and Smt. Nand Kaur had consequently to fight litigation against the collaterals as well as against the tenants for getting possession of the land and they executed a general power of attorney in favour of Mastan Singh defendant (he being the eldest in the family), giving him full authority to do things that were necessary in connection with the litigation and the consequential proceedings, etc. He was also given power to manage the property as well as to power to sell, mortgage or gift the land after obtaining possession thereof. A suit was filed on 4th of June, 1958 by Mastan Singh on behalf of Smt. Kaur and Smt. Nand Kaur and the same was decreed on 2nd of June, 1959. Actual possession of the land was taken by Mastan Singh on 15 of October, 1959. Within a year of this, i.e. on the 14th of September, 1960, Mastan Singh acting as mukhtar of Smt. Nand Kaur under the aforesaid mukhtarnama sold one-half share in the land left by Smt. Khemi to his own five sons, two of whom were major and the remaining three minor. The sale consideration was aid to be Rs. 10,000/- out of which Rs. 5,000/- were said to have already been taken from the vendees (who were his own sons) and paid towards litigation expenses. Regarding the remaining of Rs. 5,000/- it was said that the same will be received at the time of registration. Before the Sub-Registrar, Ujagar Singh, one of the major sons of Mastan Singh, is purported to have paid Rs. 5,000/- to Mastan Singh acting as mukhtar of Smt. Kauri and Smt. Nand Kaur. Thereafter Smt. Kauri died on in 1st January, 1961. It is not disputed that suits were filed against the collaterals for mesne profits and a total amount of Rs. 5,000/- was recovered by Mastan Singh. Not obtaining any share of the income from Mastan Singh, notice was given by Smt. Nand Kaur to Mastan Singh in July 1962 and on 12th of July, 1962 the above mentioned power of attorney in his favour was cancelled by a registered deed (Exhibit P.1) and four days thereafter i.e. on 16th of July, 1962, the suit, out of which the present appeal has arisen, was filed seeking a declaration that the aforesaid sale was not binding and effective on the plaintiff and had been entered into by Mastan Singh without consideration and as a breach of trust and confidence reposed in him. Inter alia it was averred that the mukhtarnama was executed with the object of giving Mastan singh authority to fifth out the litigation for the benefit of both the sisters (Smt. Kauri and Smt. Nand Kaur), that no power was consciously given by the plaintiff to Mastan Singh to sell away the property, and that the power authorising him to alienate the property was got entered as a result of fraud. Furthermore, it was averred that Mastan Singh acting on the one hand as the mukhtar of the plaintiff and on the other being the natural guardian of his minor sons, the interests clashed and the sale-deed was only a fictitious document and not dining on the plaintiff in law and equity and that the price mentioned in the sale-deed was far less than the market-value of the land. The suit was resisted by Mastan Singh and the vendees from mastan Singh and separate written statements were filed one by Mastan Singh and the other by the vendees, though the two were practically the same. The plea taken in the paragraph 10 of the written statements was that the land was sold on the express desire of the plaintiff inasmuch as he had no male issue and was old and wanted to turn the land into cash and she expressly asked the defendants, who were owners of one-half of the land, to purchase the other half and pay cash to her, so that she may live in comfort. It was further stated that the sale-money as well as the share in the produce had already been received by the plaintiff. As a result of these pleadings the following issues were settled :-

(2.) On appeal filed by Mastan Singh and the vendees, the appellate Court came to the conclusion that out of Rs. 2,750/- realized, Mastan Singh must have spent Rs. 1,000/- for effecting realization and consequently reduced the money decree to Rs. 1,750/-, and there is no appeal against this part of the decree and we need not refer to it any further. So far as sale is concerned, the lower appellate Court filed that inasmuch as in the power of attorney, authority to sell, mortgage or gift was specifically given and as it was admitted by the plaintiff herself that this power of attorney was read over to her before she signed it. Mastan Singh was entitled to alienate the property and other matters did not arise and consequently the sale was binding on the plaintiff, but that Mastan Singh was bound to pay Rs. 5,000/- to the plaintiff as the balance of the sale-proceeds. The decree of the trial Court was accordingly modified, decree for possession being set aside and in its place decree for recovery of Rs. 5,000/- being passed. Smt. Nand Kaur has come up in second appeal.

(3.) The facts admitted or found concurrently by the Courts below are as follows :-