13. That thereafter the plaintiff further came to know that the defendants have used the said forged Will and also converted the title of property owned by the plaintiff‟s father at London i.e. Flat no.3, 55 Portland Place, London...
....
15. That now it has been clear that the above said defendants in conspiracy with each other have made false representation and believing on the representation of the defendants the plaintiff entrusted the defendants with the Relinquishment Deed, but the defendants didn‟t use the deed for which it was entrusted to the defendants and they dishonestly misappropriated the deed entrusted to them with the dishonest intention and committed the offence under Penal Law....
24. That the cause of action to institute the present suit arose in favour of the plaintiff and against the defendant when the plaintiff came to know that one the property i.e. property No.R-1, Nehru Enclave, New Delhi owned by father of the plaintiff has been put on sale by defendant No.1, the cause of action further arose in favour of the plaintiff and against the defendants when upon coming to know about the sale of the aforesaid property the plaintiff got inspected the records of M.C.D. at Lajpat Nagar, New Delhi and during inspection it was found that the aforesaid property got mutated in favour of the defendant No.1 by using the forged Will dated 16 th May, 1993 purportedly executed by the father of the plaintiff, the cause of action further arose in favour of the plaintiff and against the defendants on the very same day when plaintiff discovered the Will purportedly dated 16.05.1993 allegedly executed by the father of plaintiff, the cause of action further arose in favour of the plaintiff and against the defendants when the plaintiff got examined the signatures appended on the Will with admitted signatures of father of plaintiff on the GPA executed in February, 1993 and application addressed by father of the plaintiff to the MTNL and where upon the handwriting expert has given opined that the signatures on the Will dated 16.5.93 are forged and fabricated and does not match with the admitted signatures of the father of plaintiff, the cause of action further arose in favour of the plaintiff and against the defendants when the counsel for the plaintiff i.e. M/s Shams Khwaja and Associates, Advocates had visited London to verify the truthfulness of the Will and appeared before District Courts at London and during proceedings got verified the signatures of the plaintiff‟s father on Will from admitted documents and wherein the handwriting expert in London had concluded that signatures on the alleged Will does not match in all probability with Will dated 16.05.1993, the cause of action further arose in favour of the plaintiff and against the defendants when the defendants breached the trust of the plaintiff and converted the property of the plaintiff father in the name of defendant No.1 and pursuant to which FIR bearing No.119/10 was registered by EOW Cell of Delhi Police, the cause of action further arose in favour of the plaintiff and against the defendants recently when the defendant No.1 put the property for sale, the cause of action is still continue and subsistence as defendants are acting most illegal and unlawful manner thus the present suit."
15. From the aforesaid, the following can be culled out:-
(I) that the respondent / plaintiff immediately after the demise of Mr. S.P. Chibber on 24th July, 2003, was informed of Mr. S.P. Chibber having left a Will bequeathing his entire estate to the appellant / defendant no.1 and particularly to the exclusion of the respondent / plaintiff;
(II) that the respondent / plaintiff was aware of the nature of the deed which the appellants / defendants were asking him to execute i.e. relinquishing his share in the estate of Mr. S.P. Chibber in favour of the appellant / defendant no.1 -- once the respondent / plaintiff admitted of such knowledge, it matters not whether he signed it without reading;
(III) that the respondent / plaintiff claims to have signed the relinquishment deed on the representation of the appellants / defendants that the appellant / defendant no.1 after becoming the sole owner of the estate of Mr. S.P. Chibber, on the basis of relinquishment deeds executed not only by the respondent / plaintiff but also by the appellants / defendants no.2&3, would distribute the same equitably between the respondent / plaintiff and the appellants / defendants no.2&3.
16. We have not been able to decipher as to from where the learned Single Judge in the impugned order has held that it is the case of the respondent / plaintiff that the appellants / defendants no.1 to 3 had obtained his signatures on some papers representing that they were required for proper distribution of the assets of Mr. S.P. Chibber and the respondent / plaintiff only subsequently came to know that his such signatures have been used to his detriment. The same is clearly not the case pleaded neither in the plaint nor in the replication. On the contrary the respondent/plaintiff has expressly pleaded having been informed immediately after the demise of Mr. S.P. Chibber that Mr. S.P. Chibber had left a Will bequeathing his entire estate to the appellant/defendant No.1 and having agreed to otherwise also relinquish his share in the estate in favour of the appellant/defendant no.1, making the appellant/defendant no.1 sole owner thereof. His only case is that he agreed to so relinquish his share on the representation that the appellant/defendant no.1 after becoming sole owner will distribute the same equitably between the respondent/plaintiff and the appellants/defendants No. 2 and 3 and which representation subsequently turned out to be false.
17. Though undoubtedly the consent to an agreement obtained by misrepresentation makes the agreement voidable under Section 19 of the Indian Contract Act, 1872 (Contract Act) and the consent to an agreement caused by undue influence makes the same voidable under Section 19A of the Contract Act but what has to be seen is whether on the pleadings aforesaid, a case of misrepresentation or undue influence is made out.
18. Section 16 of the Contract Act provides that a contract is induced by undue influence where the relationship between the parties is such that one of the parties is in a position to dominate the will of the other and uses that position to obtain an unfair advantage over the other. Section 18 defines misrepresentation as positive assertion of that which is not true, to mislead the other to make a mistake as to the substance of the agreement.
19. We are unable to find any pleading in the plaint, of the respondent / plaintiff having executed the relinquishment deed under undue influence of the appellants / defendants or any of them or, of any of them having executed the relinquishment deed by misrepresenting to the respondent / plaintiff or of the appellants / defendants or any of them having fraudulently induced the respondent / plaintiff to execute the relinquishment deed. On the contrary, the plea of the respondent / plaintiff is of the appellant / defendant no.1 immediately after the demise of Mr. S.P. Chibber having informed the respondent / plaintiff of Mr. S.P. Chibber having left a Will of all his moveable and immoveable properties in favour of the appellant / defendant no.1; the said Will being however not shown to the respondent / plaintiff; of the appellant / defendant no.1 having represented to the respondent /plaintiff that she had asked appellants / defendants no.2&3 to execute a relinquishment deed in her favour so she can distribute wealth of Mr. S.P. Chibber equally and having asked the respondent / plaintiff to execute a relinquishment deed; the said relinquishment deed being got prepared by the appellants / defendants and the respondent / plaintiff having signed it without reading ―under the loving spell‖ of his step mother and step brothers; the appellant / defendant no.1 however not having so distributed the estate of Mr. S.P. Chibber.
20. What has emerged is that there indeed is a Will of Mr. S.P. Chibber bequeathing all his moveable and immoveable properties to the appellant / defendant no.1. The only plea of the respondent / plaintiff is that he saw the said Will just prior to the institution of the suit and realized that the signatures of Mr. S.P. Chibber thereon are forged. The said plea in our view does not amount to a plea of misrepresentation. The respondent / plaintiff immediately after the demise of Mr. S.P. Chibber was told that there was a Will of Mr. S.P. Chibber and under which he had been excluded from any share in the estate. It was open to the respondent / plaintiff at that stage to, if doubted the same, procure the said Will. It has been held in Kamal Kant Paliwal Vs. Smt. Prakash Devi Paliwal AIR 1976 Raj 79 followed by this Court in URI Civil Contractors AB Vs. Pampa Mukherjee 56 (1994) DLT 608 that if a party alleging fraud had the means to know the facts, he cannot claim to have been defrauded even if false statement was made. As far as the plea of undue influence is concerned, the only plea is of the respondent / plaintiff being then in depression and / or ―under the loving spell‖ of his step mother and step brothers. It is however the undisputed position that Mr. S.P. Chibber for 35 years prior to his demise was residing in London with the appellants / defendants while the respondent plaintiff was living in India serving in the Indian Army from which he has retired from the rank of Lieutenant Colonel. The respondent/plaintiff as per the age disclosed in the affidavit filed in the suit, at the time of demise of Mr. S.P. Chibber, was 53 years of age. There is no plea, either express or inferable, of the appellants/defendants in the said circumstances being in the position to dominate the will of or to obtain an unfair advantage over the respondent/plaintiff. Though a parent and / or a sibling may in certain circumstances be said to be in such a position but not in the said facts. The Supreme Court in Subhash Chandra Das Mushib Vs. Ganga Prosad Das Mushib AIR 1967 SC 878 held that merely because the parties were nearly related to each other, no plea of undue influence can arise. Moreover the representation made has not turned out to be false. There indeed was a Will of Mr. S.P. Chibber of which probate was applied for and obtained in a foreign Court soon after the death of Mr. S.P. Chibber. Moreover, the demand, pleaded to have been made by the appellant / defendant no.1 on the respondent / plaintiff, was for execution of relinquishment deed, which is executed by one of the heirs of a deceased giving up his / her share of inheritance, thereby enlarging the others' share. The existence of the Will of the deceased is not a prerequisite for such a relinquishment. The respondent / plaintiff in the relinquishment deed admittedly executed by him also has not referred to any such Will. In fact the said relinquishment deed proceeds on the premise that there is no Will.
21. The other plea, of the respondent / plaintiff having executed the relinquishment deed on the representation of the appellant / defendant no.1 that she will distribute the estate equitably, also fails to meet the test of misrepresentation or fraud. There is no plea of the respondent / plaintiff at the time of having made the said representation having never intended to distribute the said estate. Moreover, the said representation even if any, at best constituted the consideration for execution of the relinquishment deed. The remedy if any of the respondent / plaintiff, for the refusal of the appellant / defendant no.1 to fulfill her part of the contract, of distributing the estate, was to seek specific performance thereof and which the respondent / plaintiff failed to claim. Mere failure of consideration does not amount to fraud. The Supreme Court in Amteshwar Anand Vs. Virender Mohan Singh (2006) 1 SCC 148 held that mere non-payment is certainly not supportive of a ground for setting aside, in that case a decree, on the basis of an allegation of fraud. This Court also, in Vibha Mehta Vs. Hotel Marina MANU/DE/4951/2012 and appeal whereagainst was dismissed by the Division Bench of this Court vide judgment reported in MANU/DE/0994/2014 (SLP(C) No. 20124/2014 arising therefrom was also dismissed on 19th August, 2014) held that a plea of non- payment of compromise amount, did not amount to a plea of fraud.
22. We find the Division Bench of the High Court of Madhya Pradesh in State of Madhya Pradesh Vs. M. Hassonjee AIR 1957 MP 135 to have also held that even if the Government at the time of entering into the contract was contemplating a change in policy and as per which change, the rates payable under the contract would have stood considerably lowered but subsequently gave up the said idea, the same does not amount to misrepresentation about any of the material terms of the contract which were clear and when the contract was entered into voluntarily with full realization about its implications. It was observed that the reasons which impelled the Government to demand higher rates may have become non-existent at a subsequent date but that would not affect any of the terms of the contract. It was accordingly held that the contract could not be said to have become void on account of having been induced by misrepresentation that there was going to be a change in rates. Applying the said principle to the facts of the present case, even if the appellant / defendant no.1 had at the time of or before the respondent / plaintiff executed the Relinquishment Deed informed the respondent / plaintiff of her intention to distribute the property of Mr. S.P. Chibber equally between the appellant / defendants no.2&3 and the respondent / plaintiff, and subsequently changed the said intention, the same would not amount to misrepresentation so as to make the Relinquishment Deed, admittedly executed and got registered by the respondent / plaintiff, void. The Supreme Court in Kuppuswamy Chettiar Vs. A.S.P.A. Arumugam Chettiar AIR 1967 SC 1395 held the plea of misrepresentation to be an afterthought when the plaintiff was well aware of the nature of the document when he executed it and when he himself has acted in consonance therewith.
23. The matter can be looked at from yet another angle. Section 91 of the Indian Evidence Act, 1872 inter alia stipulates that where the terms of a contract, or of a grant, or of any other disposition of property, have been reduced to a form of document, no evidence shall be given in proof of the terms of such contract, grant or other disposition of property, except the document itself. Therefore if there is a Sale Deed executed and registered in respect of an immovable property, the registration whereof is compulsory under the law, neither party can claim that the terms of the sale such as the consideration or the nature of transaction / disposition is in fact different from that contained in the document itself. The Relinquishment Deed in the present case does not contain any term that the same was being executed in consideration of the promise of the appellant / defendant no.1 to subsequently distribute the estate of Mr. S.P. Chibber equally between the respondent / plaintiff and the appellants / defendants no.1&2. On the contrary, the same records the respondent / plaintiff to have voluntarily of his own free will decided to relinquish his rights, title and interest in the entire estate of his father in favour of the appellant / defendant no.1. The terms of the said Relinquishment Deed clearly record that as of the date of execution thereof, the respondent / plaintiff was left with no claims or interest in the movable as well as immovable properties left by his father Mr. S.P. Chibber. The terms on which the share of the respondent / plaintiff in the property was relinquished in favour of the appellant / defendant no.1 having been so set out in the registered Relinquishment Deed, in view of the bar contained in Section 91 of the Indian Evidence Act, it is not open to the respondent / plaintiff to claim that the Relinquishment Deed was executed for the consideration now alleged in the suit. The terms of the Relinquishment Deed completely ruled out the so-called understanding as pleaded by the respondent / plaintiff in the plaint. Section 92 of the Indian Evidence Act inter alia provides that where the terms of a grant or other disposition of property have been proved according to Section 91 (we may note that the execution and registration of the Relinquishment Deed is not disputed by the respondent / plaintiff) no evidence of any oral agreement or statement shall be admitted, as between the parties to such instrument for the purpose of contradicting, varying, adding to, or subtracting from its terms. The respondent / plaintiff by the case made out in the plaint is making a claim which clearly contradicts and varies the terms of the Relinquishment Deed and which is not permissible. It is not the case of the respondent / plaintiff that when he executed the Relinquishment Deed, he did not know that it is a Relinquishment Deed which he is executing. It is not respondent / plaintiff's case that he is uneducated or executed the document under any duress or coercion. The respondent / plaintiff knew that he was executing a Relinquishment Deed and in our opinion, it is now not open to him to claim that the said Relinquishment Deed is hit by fraud on account of the understanding between the respondent / plaintiff and the appellant / defendant no.1 being contrary to the written terms of the said Relinquishment Deed. The spirit and purpose of enacting Sections 91 and 92 of the Indian Evidence Act is to render the written contract, grant or other disposition, the sole repository of the terms contained therein. Reliance if any required in this regard can be placed on Roop Kumar Vs. Mohan Thedani (2003) 6 SCC 595, Sparsh Builders Pvt. Ltd. Vs. Maharishi Ayurveda Products Pvt. Ltd. 163 (2009) DLT 411, Krishi Utpadan Mandi Samiti Sahaswan Vs. Bipin Kumar 2004 (2) SCC 283 and on Abhey Dewan Vs. Manoj Sethi 202 (2013) DLT 392.
24. We therefore hold that no triable issue arises on the pleas of the respondent / plaintiff of the registered Relinquishment Deed being voidable and the suit claiming the said relief is also barred by time.
25. Though in view of the above, the need to examine whether the suit insofar as for the relief of declaration of the Will of Mr. S.P. Chibber is time barred, does not arise but in our view the suit for the said relief also is barred by time. The respondent / plaintiff was admittedly told of the said Will immediately after the death of Mr. S.P. Chibber.
26. Once the appellant / defendant no.1 is admitted to have disclosed to the respondent / plaintiff of the Will of Mr. S.P. Chibber in favour of appellant / defendant no.1 and to the exclusion of the respondent / plaintiff, it matters not whether the Will was shown to the respondent / plaintiff or not. A Single Judge of this Court in Satya Prakash Gupta Vs. Vikas Gupta MANU/DE/2042/2010 held that where the plaintiff was aware of the existence of the document qua which the declaration of forgery was claimed, limitation of 3 years under Article 56 would begin to run and the plea of the plaintiff of not knowing of the exact documents would be of no avail. RFA (OS) No. 23/2010 titled Satya Prakash Gupta Vs. Vikas Gupta preferred thereagainst was dismissed, again emphasizing knowledge of existence of documents and observing that rules of limitation are meant to see that parties do not resort to dilatory tactics but seek their remedy promptly and those who sleep upon their claims should not be assisted by the courts. If the respondent / plaintiff was interested in contesting the said Will, the respondent / plaintiff ought to have taken steps within the prescribed period of limitation for inspection of the said Will. The respondent / plaintiff cannot be permitted in law to so sit pretty and at his whims and fancy at any time choose to challenge the said Will. The same if permitted would lead to titles in immovable property being never perfected at any time. We are therefore of the view that the suit insofar as for declaration of the Will as forged is also barred by time.
27. Once the suit for the said relief is held to be barred by time, the question of the respondent / plaintiff being entitled to the relief of partition or possession of 1/4th share of property No. R-1, Nehru Enclave, New Delhi does not arise.
28. For the sake of completing the record, we may also deal with yet another ground taken for rejection of the plaint, of the suit for declaration of the probated Will as fraud being not maintainable. The appellants / defendants in this regard relied on Section 41 of the Evidence Act.
29. The probate on the basis whereof the said plea has been taken has been granted not by any Court in India but by foreign Court. However for advantage of such a foreign probate to be taken, the provision of Section 228 of the Indian Succession Act, 1925 has to be complied with i.e. of producing a properly authenticated copy of the Will and obtaining letters of administration thereof. The said procedure has admittedly not been followed. The reliance placed on Section 41 of the Indian Evidence Act is misconceived. The title which the Will and the probate confer and which is rendered relevant evidence under Section 41 of the Indian Evidence Act is given effect to by the provision in Section 228 of the Indian Succession Act and on the production of the English probate, what might be termed as ancillary probate is directed to be granted with the Will annexed to enable such executors to assert their rights to the estate of the deceased in India. A very fruitful discussion in this regard is to be found in an old judgment of the High Court of Madras in Blackwood and Sons Ltd. Vs. A.N. Parasuraman AIR 1959 Madras 410. There is thus no merit in the said plea of the appellants / defendants for rejection of the plaint.
30. In view of the discussions hereinabove, the appeal is allowed and the plaint in CS(OS) No.2521/2010 filed by the respondent / plaintiff is rejected under Order VII Rule 11 of the CPC.
RAJIV SAHAI ENDLAW, J CHIEF JUSTICE SEPTEMBER 29, 2014 ‗gsr'