JUDGMENT
N.K. Kapoor, J.
1. This is unsuccessful plaintiffs first appeal against the judgment and decree of Sub Judge 1st Class, Samrala, dated 12.4.1979 dismissing her suit.
2. Plaintiff filed a suit for declaration to the effect that sale deeds dated 15.2.1967, 16.2.1967 and 17.2.1967 executed by defendant No. 6 in favour of defendants No. 1 to 5 are illegal, void, based on fraud and collusion besides being for insufficient consideration with consequent relief for possession of land in dispute and in the alternative for rendition of accounts and for recovery of amount found due against the defendants on the allegations that defendants No. 1 to 6 are very close and near relations of each other and are members of the joint Hindu Family.
3. Pursuant to the notice issued by the court, defendants put in appearance. Defendants No. 1 to 5; defendants No. 6; and defendants No. 7 to 11 filed separate written statements controverting the material averments made by the plaintiff in her plaint. By way of defence it was set up that defendant No. 6 was duly authorised by Kabul Singh (now dead) to manage the land as well as to sell or mortgage or alienate the same. General Power of Attorney was executed by Kabul Singh in favour of Rakha Singh defendant No. 6. Thus the sale deeds executed by Rakha Singh had implicit consent of Kabul Singh and were effected for valuable consideration as reflected in the sale deeds. Rakha Singh too in his written statement defended the sale transactions. Defendants No. 7 to 11 in their written statement raised few preliminary objections i.e. suit in the present form is not maintainable; it is barred by limitation; and that the property has been sold by defendants No. 1 to 5 to the answering defendants for valuable consideration. Earlier to the execution of the sale deeds, answering defendants were in cultivating, possession of the suit land as tenants at will. As Rakha Singh bad been managing the lands of Kabul Singh over a number of years, they had no doubt that he lacks authority to dispose of the property or that the power of attorney in his favour was in any manner defective. The answering defendants being bona fide purchasers for value, the sale executed by defendants No. 1 to 5 needs to be considered valid and binding upon the plaintiff. In any case, plaintiffs claim for recovery of the amount, if any, on account of sale price of the sale deed is, in fact, a dispute between plaintiff and defendant No. 6 for which the answering defendants cannot be held responsible.
4. On the pleadings of the parties, following issues were framed:-
1) Whether the suit is not maintainable in the present form? OPD.
2) Whether the suit is within limitation? OPP.
3) Whether the property stands sold to the defendants 1 to 5 by defendant No. 6 vide valid sale deeds? OPD
4) Whether the defendants 1 to 5 are bona fide purchasers? OPD
5) Whether the suit is bad for non-joinder of necessary parties? OPD
6) Whether the plaintiff is entitled to the rendition of accounts against defendant No. 6, if so, what effect? OPP
7) Whether the defendant No. 7 purchased the property in good faith? OPD
8) Relief
5. Following additional issues were also framed by the Sub Judge on 19.1.1977: –
7A) Whether the defendants 1 to 6 are members of the Joint Hindu Family? OPP
7B) Whether the plaintiff is widow of Kabul Singh and the sole executrix of the estate of Kabul Singh? OPP
7C) Whether the sale deeds in dispute are benami transactions for the benefit of defendant No. 6 and its effect? OPP
7D) Whether the civil court has jurisdiction to try the suit in respect of the profits of the land? OPP
7E) Whether defendant No. 6 is the trustee of the deceased Kabul Singh’s land? OPD
7F) Whether the land was leased out by Kabul Singh for a sum of Rs. 50/- per killa and its effect? OPD
7G) Whether the plaintiff is entitled to a sum of Rs. 75,000/- as sale price of land and Rs. one lac as damages? OPP
7H) Whether the defendants 7 to 11 have purchased the land in dispute in good faith, and for consideration? OPD.
The parties were permitted to adduce evidence in support of their respective contentions.
7. Issue No. 1 was decided against the defendants. The trial court took up issues No. 2 and 7-E together. On considering toe evidence adduced and in the light of the provisions of the Indian Trust Act and the Limitation Act, the court came to the conclusion that there is no evidence to support that defendant No. 6 is trustee of Kabul Singh deceased. With regard to bar of limitation, the court held that as the sale deeds have not been challenged within a period of three years as prescribed under Article 58 of the Limitation Act, the suit is barred by limitation. Under Issue Nos. 3 and 4, the court held that the sale effected in favour of defendants No. 1 to 5 by defendant No. 6 was valid, thus holding that defendants No. 1 to 5 are bona fide purchasers of the suit property. Issues No. 5 and 7B were taken up together. On considering the material evidence on record, the court came to the conclusion that the plaintiff being the executrix of the estate left by Kabul Singh had a right to challenge the transactions effected by defendant No. 6. The court further held that though Kabul Singh left behind three Sons and one daughter besides the plaintiff as heirs, their non-impleading is not fatal to the present suit. Accordingly, both these issues were decided against the defendants and in favour of the plaintiff.
8. Under issue No. 6 the court held that plaintiff is entitled to rendition of accounts from defendant No. 6 provided such a claim is within limitation.
9. Taking up the material issues No. 7 and 7H, the trial court after considering oral as well as documentary evidence reached to a conclusion that sale deeds Exhibit D2/A, Exhibit D-3 and Exhibit D-5 were executed for consideration. For this reliance was placed upon the fact that whole of the payment was shown to have been made before the Sub Registrar at the time of registration of sale deeds. Similarly, examining the point as to whether defendants No. 7 to 11 had purchased the land in good faith, the court came to the conclusion that since these defendants were in actual cultivating possession of the property as tenants which earlier was being managed by Rakha Singh as attorney of Kabul Singh, the transaction entered into by them could be termed to be a bonafide and in good faith. Accordingly, both these issues were decided in favour of defendants.
10. Under Issues No. 7-A and 7-C, the court held that there is no basis to hold that defendants No. 1 to 6 are members of Joint Hindu Family or that they are benamidars of defendant No. 6. Issue No. 7-D was decided against the plaintiff holding that to, recover mesne profits of the land the plaintiff could seek relief before the revenue court. Issue No. 7-F was not pressed before the court and so was decided against the defendants. Under issue No. 7-G, the court held that plaintiff is not entitled to a sum of Rs. 75,000/- sale price of the land and Rs. one lac as damages.
11. Resultantly, the suit of the plaintiff was dismissed.
12. Challenging, the findings recorded by the trial court on various issues, learned counsel for the appellants has termed these to be wholly unwarranted and thus unsustainable on facts as well as on law. According to learned counsel for the appellants, trial court has erred in law in not properly perusing the basic document i.e. power of attorney which alledgedly authorises Rakha Singh defendant to act on behalf of Kabul Singh and has -approved all his acts on his behalf as his general attorney. According to the counsel, a perusal of power of attorney dated 15.12.1966 reveals that Rakha Singh was only authorised to look after, manage, rent out land in the village of Khamano Melai Wali, Tehsil Samrala, District Ludhiana, Punjab. This fact finds further clarification in Clause 9 of this document wherein again it has been reiterated that the authorisation is in respect of the property situated at village Khamano Melai Wali. A bare perusal of sale deeds dated 15.2.1967, 16.2.1967 and 17.2.1967 in favour of defendants No. 1 to 5 clearly bring out that the land sold vide these sale deeds is situate in village Khamano Kamli, Tehsil Samrala, Thus, there being no valid authorisation by Kabul Singh in favour of Rakha Singh, the sale deeds executed by him in favour of his near relations, namely, heirs of Bir Singh, his real brother, conferred no right upon them and so any subsequent transaction effected by them i.e. execution of sale deed in favour of defendants No. 7 to 11. also does not clothe any one of these with any right or title.
The trial court ought to have declared the sale deeds executed by Rakha Singh in favour of defendants No. 1 to 5 as non. est and without any authority, resultantly conferring no right upon defendants No. 7 to 11 also. The findings recorded by the court below are thus unsustainable in law and thus deserves to be reversed. The trial court further erred in coming to the conclusion that the defendants are bona fide purchasers for value. Such a conclusion is legally not permissible as per evidence on record. Firstly, sale deeds have been executed in favour of Rakha Singh’s own near relation, namely, his brother’s heirs. It is worth noticing that the property is alleged to have been transferred on the basis of three sale deeds dated 15.2.1967, 16.2.1967 and 17.2.1967 for a total consideration of Rs. 75,000/-. On a minute examination it could be seen that with a bare amount of Rs. 25,000/- and that too to be shown to have been paid before the Sub Registrar, sales have been effected. The trial court has simply glossed over this aspect of the matter. Otherwise too, there is ample evidence on record to infer that the status of Rakha Singh was that of a trustee who managed as per law enjoined upon him to protect the property. The trial court has further erred in law in holding the suit be barred by limitation. Concededly, according to the counsel, Rakha Singh kept concealed the sale transactions during the life time of Kabul Singh. There is no proof on record that Rakha Singh informed Kabul Singh about these sale transactions. Thus, it is a case of fraud which was only detected when the plaintiff visited India in the year 1974. Under Section 17 of the time of Kabul Singh. There is no proof on record that Rakha Singh informed Kabul Singh about these sale transactions. Thus, it is a case of fraud which was only detected when the plaintiff visited India in the year 1974. Under Section 17 of the Limitation Act, the period prescribed for challenging the same commences within one year from the date of discovery of fraud. This way the court erred in holding that the suit is barred by limitation. It is the case of the defendants that the sale deeds were executed for consideration and the amount of consideration was paid to Rakha Singh; and there being no evidence that Rakha Singh had any claim to withhold this amount, the trial court, at least, ought to have decreed the claim for a sum of Rs. 75,000/-. Accordingly, the appeal deserves to be accepted.
13. Mr. G.S. Punia, Advocate, learned counsel for respondents No. 1 to 6, argued that well reasoned judgment of the trial court deserves to be affirmed. According to the counsel, Kabul Singh had been residing at Kuala Lumpur, Malaysia, whose property was being managed by Rakha Singh defendant No. 6. Earlier Rakha Singh has been authorised to look after the land and take all effective steps against the defaulting tenants as can be initiated by an owner. Subsequently, Kabul Singh decided to appoint Rakha Singh as general attorney thereby authorising him to sell, manage or create any charge upon the property. It is on the basis of this authorisation that Rakha Singh sold the land in dispute vide three different sale deeds for a total consideration of Rs. 75,000/-. This amount was paid to Kabul Singh during his life time. So the contention of the plaintiff that Rakha Singh had no valid authority of sale deeds have been executed without any consideration has no legal foundation. Similarly, the plea now sought to be raised by the counsel for the appellant that the power of attorney authorises Rakha Singh to sell the land situate in village Khamano Melai Wali is, indeed, an after thought. No such plea was raised by the plaintiff before the trial Court. Moreover, there is only a change in nomenclature. May be the village has been divided into two or three parts giving a separate nomenclature. There is no proof on record that Kabul Singh deceased had land other than which is subject matter of present adjudication. Otherwise too, general power of attorney gives unbribled power to Rakha Singh to manage or dispose of the property and so the transactions effected cannot now be challenged by the plaintiff. As regards return of money i.e Rs. 75,000/-, for that the plaintiff ought to have instituted a suit for rendition of accounts and that too within a period of limitation. This way the court below rightly disallowed the claim set up by the plaintiff holding that the same is barred by limitation. Learned counsel further argued that the plea of fraud now set up so as to bring the suit within limitation is not based on facts. There is no specific assertion in the plaint with regard to it. Since the sales were effected in the year 1967; whereas the suit was instituted in the year 1974; the trial court held the suit to be barred by limitation.
14. Learned counsel representing defendants No. 7 to 11 argued that they are bona fide purchasers for value. As has come on record, Rakha Singh, general attorney of Kabul Singh, sold the suit land to defendants No. 1 to 5 who have subsequently sold the same to the present defendants. The present defendants were in occupation of the land as tenants at will. Rakha Singh had been managing the property and so they entertained no doubt that Rakha Singh lacked any valid authorisation. Thus bona fidely believing that Rakha Singh had right to sell the property and also feeling fortified by the execution of sale deeds in favour of the defendants No. 1 to 5, defendants No. 7 to 11 purchased the suit land for consideration. Thus the court rightly held the transaction to be bona fide and for consideration. So even if there is any defect in the power of attorney, sale in their favour deserves to be upheld treating the same to be an act of bona fide on their behalf.
15. Facts have been noticed above. Kabul Singh, erstwhile owner, was resident of Kuala Lumpur, Malaysia. He had his land in village Khamano, Tehsil Samrala, District Ludhiana, only. Earlier Kabul Singh, authorised Rakha Singh s/o Jaimal Singh -defendant No. 6 – to manage his land and initiate all such steps as he may deem proper, like initiation of civil or criminal proceedings. This document is dated 22,6.1959 – Exhibit D-1. A perusal of this document shows that Kabul Singh had trust in Rakha Singh. Subsequently, Kabul Singh executed a general power of attorney in favour of Rakha Singh, as resident of village Brodie, Tehsil and District Kharar, Mark PA dated 15.12.1966. It is on the basis of this document that Rakha Singh executed three sale deeds dated 15.2.1967,16.2.1967 and 17.2.1967 in favour of defendants No. 1 to 5. Sale consideration in respect of each one of the sale deeds was Rs. 25,000/-. The sale deeds are in favour of sons and other near relations of his brother Bir Singh. Precisely on this ground the appellant has argued that these are sham transactions effected with the sole aim to deprieve the plaintiff of her legitimate right to the property left by Kabul Singh. Kabul Singh died in the year 1967. There is no documentary evidence on record on the basis of which it could be inferred that Rakha Singh had appraised him of these sale transactions. Similarly, there is no evidence on record on the basis of which it could be inferred that the amount of Rs. 75,000/- already stands adjusted or even paid by brother of Rakha Singh to Kabul Singh at Kaula Lumpur as was argued by the counsel. On reappraising evidence, I have come to the conclusion that the sale consideration had been retained by Rakha Singh.
16. Whether Rakha Singh had authority to dispose of the property on the basis of document Mark PA dated 15.12.1966, in fact, goes to the root of various questions raised in the present appeal. This document has been proved according to law. This document authorises the holder to exercise any of the powers which vested in Kabul Singh. By way of elaboration, it has also been mentioned that holder is entitled to look after, manage and rent out the land in village Khamano Melai Wali and is also entitled to sign as executant of all such necessary documents. Similarly, holder is authorised to sell to any person all or any of his lands, leases and charges whether now belonging to him or which shall hereafter belong to him and for that purpose to sign and execute all transfers and other instruments necessary. Clauses 5, 5-A and 9 of the document Mark PA reads as under :-
“5. To exercise any of the powers vested in me by virtue of any charge or Bill of Sale; to apply for orders to sell, to transfer any such charges or Bills of Sale; and to sign and execute any discharges or releases in connection with such charges or Bills of Sale.
5-A. To look after, manage, rent out by lands in the village of Khamano Melai Wali, Tehsil Samrala, District Ludhiana, Punjab) India to anyone at pleasure remove and re-appoint at pleasure and for such purposes to sign, seal and execute all documents necessary for the aforesaid purpose.
9. To sell to any person all or any of my lands, leases and charges whether now belonging to me or which shall hereafter belong to me and for that purpose to sign and execute all transfers and other instruments necessary. The said lands at present are pending litigation in Punjab India of my property in the village of Khamano Melai Wali.”
17. No doubt, in Clause 5-A reference is to the land situate in village Khamano Melai Wali, but perusal of Clause 9 of the document, in fact, enlarges the powers of holder of this document i.e. permitting him to sell all or any of his lands whether now belonging to him or which shall hereafter belong to him. This being the import of the document, it can be safely held that Rakha Singh had been given full powers by Kabul Singh to deal with his property whether situate at Khamano Melai Wali or else where. Thus, I find no merit in the contention of the counsel for the appellant that as the lands, subject matter of the present suit, are stated to be situate at village Khamano Kambli, the holder of general power of attorney was not authorised to deal with the same. In fast, the present objection regarding the villages known as Khamano Kambli or Khamano Melai Wali is an after-thought. May be, at any subsequent time, the village had been given a different nomenculature or that the original, village has been bifurcated into two or three separate villages/gram panchayats. In any case, this will be a matter of conjecture. Leaving if as it is, the objection raised by the appellant has no substance as unbridled powers have been given to the holder of the instrument as per Clause 9 of the document. Despite the fact that the sales were effected by Rakha Singh on the basis of authorisation given by Kabul Singh, the transactions effected by him create a suspicion especially when vendees being none other than sons/heirs of his real brother and each one of these transactions having been effected one after the other i.e. on 15.2.1967,16.2.1967 and 17.2.1967. These transactions though appear suspicious, yet cannot be brushed aside merely on this ground unless it is proved beyond doubt that these were effected benami and with the sole aim to deprive Kabul Singh of his valuable right in the property. Sufficient evidence has not been led by the plaintiff to hold so. Merely for the reason that the sales are in favour of near relations of Rakha Singh is hardly a ground to hold that the purchasers are benami or that the sales were without any consideration. Subsequent sale deeds are in favour of Mewa Singh and others. All these persons were in cultivating possession of the suit land. They have purchased the suit land as per sale deed Exhibits D-3, D-4 and D-5. Interestingly, there is marginal increase in the sale price though there is a gap of 6 to 7 years between the first sale and the present sale transactions. According to the counsel representing defendants No. 7 to 11, these lands were of very inferior quality-Bhud. Precisely for this reason and also for the reason that tenants could not be evicted except in due course of law, defendants No. 1 to 5 chose to sell the same. I find merit in this submission of the learned counsel for the respondent-defendants. The finding recorded by the court below that defendants No. 7 to 11 are bona fide purchasers for value is accordingly affirmed.
18. The crux of the matter which remains to be determined is whether Rakha Singh is liable to pay back the sale consideration of Rs. 75,000/- as well as to compensate the plaintiff for withholding this money for such a long time and also whether such a claim is within limitation. There is no proof on record that Rakha Singh paid this amount to Kabul Singh during his life time or to any of his heirs including the plaintiff subsequently. Rakha Singh’s explanation that his brother had adjusted this amount with Kabul Singh also does not inspire confidence. Thus, it can be safely held that Rakha Singh retained this amount till today. Rakha Singh to ward off this liability has taken plea that dispute between plaintiff and defendant No. 6 can be termed to be a case of rendition of accounts and since no such claim has been made within the period prescribed, the plaintiff is not entitled to this relief as well. The plaintiff has laid claim on the basis of Section 17 of the Limitation Act. As per Section 17 of the Act, in case suit or application is based upon the fraud of the defendant or respondent or his agent or the knowledge of such a right or title on which a suit or application is founded is concealed by fraud of such a person then the period of limitation is to commence when such fraud is discovered. Here in the instant, case, sales were effected by Rakha Singh on three consecutive dates i.e. 15.2.1967, 16.2.1967 and 17.2.1967. Kabul Singh unfortunately expired in 1967 at Kuala Lumpur. None of the, family members visited India and so possibly could not have the knowledge of these sale transactions. The matter came to light only when Chand Kaur-plaintiff came to India some time in the year 1973. The suit was instituted on 24.7.1994. Thus, from the date of knowledge the suit is within limitation. Fading of the court below in this regard is accordingly reversed.
19. The plaintiff in the instant case has sought declaration to the effect that the sate deeds executed by defendant No. 6 be declared as illegal and void, being based on fraud and in the alternative have claimed for rendition of accounts and for recovery of the amount found due from the defendants. There is no proof on record that this amount of Rs. 75,000/- has been paid by Rakha Singh to Kabul Singh or his heirs. Rakha Singh has not led any evidence to the effect that he incurred some expenses on behalf of Kabul Singh. In the absence of any such proof, it can be held that Rakha Singh had retained this money for and on behalf of Kabul Singh. An attorney in law as well as in equity is duty bound to pay the money recovered by him to the rightful claimant without any unjust delay. Rakha Singh, indeed, had betrayed the confidence which had been reposed by Kabul Singh. An amount of Rs. 75,000/-had been retained by him since the year 1967. Such an amount if deposited in a Nationalised Bank would have yielded interest manifold of the original amount of Rs. 75,000/-. In the present case, the plaintiff has only claimed the return of sale consideration of Rs. 75,000/- plus Rs. 1 lac by way of damages. Accordingly, I hold that Rakha Singh defendant is liable to pay the amount of sale consideration of Rs. 75,000/- and another sum of Rs. 1 lac as damages – towards interest to the plaintiff. Appeal is consequently accepted to the extent indicated above. The claim of the appellants qua other defendants is dismissed. No costs.