RATTAN SINGH & ORS. versus NIRMAL GILL & ORS. ETC.

42. Let us now examine if the above requirement is satisfied in the fact situation of the present case and if the defendants enjoyed active confidence of the plaintiff. It is an admitted position that the plaintiff and defendants always had cordial relationship and the plaintiff was on visiting terms. Further, the fact that the defendant Nos. 3 and 4 were cultivating the joint lands is also not disputed. The defendant Nos. 3 and 4 were cultivating the lands along with their father Harbans Singh and continued to do so even after his death. The principle underlying the reported decision must come to the aid of defendants as the plaintiff had failed to prove the fact of misuse of trust by the defendants as such.

43. Further, the plaintiff attempted to project the 1990 GPA as a doubtful document stating that the same had discrepancies with respect to the address and the alteration of the date of execution. In absence of the attesting witness and in view of the evidence of PW4 scribe, it was for the plaintiff to get PW4 declared hostile and cross examine him in order to prove that he had deposed falsely, which the plaintiff had failed to do.

44. Emphasis was laid on the entries made in the PW4 scribe’s register showing the 1990 GPA to have been executed prior to the sale deed and it was submitted that there is no logic in first giving GPA and then executing sale deed if the plaintiff was available to execute the aforesaid documents. However, the same is of no avail to the plaintiff as the 1990 GPA was in respect of all her land holdings, whereas the sale was made only in respect of land situate at Kalyanpur village.

45. The other reason weighed with the High Court that 1990 GPA was allegedly executed by the plaintiff as she being a woman is also of no consequence as the words ‘being a lady’ were preceded by ‘I am old and weak’. Thus, the primary reason for executing the 1990 GPA was that the plaintiff was not residing in Punjab at the relevant point of time and that she was old and weak, and thus unable to look after her property situate at Punjab. The stress laid upon the fact that a woman was appointed in her place is, therefore, a matter of surmises and conjectures.

46. Suffice it to observe that the contention that the registration of the 1990 GPA as well as the sale deeds, had been effected by impersonating the plaintiff has not been proved. No credible and tangible evidence has been led in that regard. It is merely a bald plea set up by the plaintiff.

47. The plaintiff’s denial of being acquainted with the attesting witnesses, is, also a ruse and not genuine. For, one of the attesting witnesses Teja Singh was a lamberdar of the village. A lamberdar’s job is to collect revenue in respect of the lands and issue receipts and as a practice, the lamberdar is called for attesting documents. Thus, when the plaintiff admittedly used to visit village frequently, her denial in knowing Teja Singh is far-fetched. This is what two Courts had opined and being a possible view, no interference by the High Court was warranted in that regard. That is beyond the scope of second appeal, as held by this Court in Satya Gupta (Smt.) alias Madhu Gupta v. Brijesh Kumar11. The relevant paragraph of the said decision is extracted hereunder: 11 (1998) 6 SCC 423 RATTAN SINGH & ORS. v. NIRMAL GILL & ORS. [A. M. KHANWILKAR, J.] “16. At the outset, we would like to point out that the findings on facts by the lower appellate court as a final court of facts, are based on appreciation of evidence and the same cannot be treated as perverse or based on no evidence. That being the position, we are of the view that the High Court, after reappreciating the evidence and without finding that the conclusions reached by the lower appellate court were not based on the evidence, reversed the conclusions on facts on the ground that the view taken by it was also a possible view on the facts. The High Court, it is well settled, while exercising jurisdiction under Section 100 CPC, cannot reverse the findings of the lower appellate court on facts merely on the ground that on the facts found by the lower appellate court another view was possible.” Fraud in respect of sale deed dated 03.07.1990

48. Even with regard to the sale deed dated 03.07.1990, the plaintiff had asserted that the same was not executed by her. It was then contended that the sale consideration had not been passed on to her which makes it evident that the sale deed was never executed by her. The plaintiff relied upon the testimony of defendant No. 4, wherein he had stated that the defendants needed money and had taken loans on the joint lands, to prove that the defendants did not possess means to pay the sale consideration. Further, it was contended that the testimony of attesting witness, Anoop Singh (DW3) cannot be considered as he failed to identify the plaintiff.

49. In contrast, the defendants had claimed that the sale consideration had been duly paid out of the sale proceeds received by selling another land belonging to their mother. The defendants placed reliance on the testimonies of the scribe (PW4) and DW3.

50. The trial Court analysed the testimony of DW3 and noted that he had clearly stated the plaintiff was known to him personally. He had deposed that sale deed was executed by the plaintiff in his presence and the same was for a sum of Rs. 86,000/-. It was further held that though the witness failed to identify the photographs of the plaintiff, adverse inference cannot be drawn as the sale deed was executed in the year 1990 whereas the evidence was given in the year 2007.

51. The first appellate Court also agreed with the view taken by the trial Court whilst observing that the plaintiff would not have executed the sale deed had she not received the sale consideration.

52. The High Court yet again deviated from the approach of the trial Court and the first appellate Court and held that testimony of DW3 was of no avail to the defendants to prove the said sale deed. Because, he had no clue regarding passing of consideration to the plaintiff. Further, the defendants had failed to prove the fact of handing over consideration amount to the plaintiff. Also, defendant No. 4 and DW3 denied each other’s presence. The relevant portion of the High Court’s judgment reads as under: “…… … Testimony of DW 3 Anoop Singh, who is one of the attesting witnesses of the sale deed dated 03.07.1990, is extremely telling of the facts of the case. DW 3 though stated that the sale deed in question was read over to Joginder Kaur in his presence and in the presence of other witness Teja Singh, Lambardar, could not even identify the plaintiff. Therefore, it is apparent that his testimony is not useful to the defendants for proving sale deed dated 03.07.1990. He did not have a clue regarding the passing of consideration in this case. DW 6 Rattan Singh has asserted that Gurcharan Singh of Ludhiana was present. DW 3 and DW 6 have denied each others presence at the time of execution of the sale deed. …”

53. Before analysing the evidence of DW3, it may be noted that since the sale deed requires attestation by two witnesses, as discussed above, the same has to be proved as per procedure laid down under Section 68 of the 1872 Act.

54. The sale deed of 03.07.1990 had been attested by Teja Singh Lamberdar and Anoop Singh (DW3). The attesting witness (DW3) was examined and he had deposed that the said sale deed was executed by the plaintiff in his presence, as well as in presence of Teja Singh and defendant No. 3. He had denied presence of any other person. He stated that the sale consideration was paid at home directly and not in his presence. Indeed, he had failed to identify plaintiff in photographs.

55. We may here refer to a decision of this Court in Damodar v. State of Rajasthan12,wherein it has been held that a hypersensitive approach ought not be taken in cases where there has been a delay in 12 (2004) 12 SCC 336 RATTAN SINGH & ORS. v. NIRMAL GILL & ORS. [A. M. KHANWILKAR, J.] recording evidence. The relevant portion of the decision is extracted below: “7. In order to consider the correctness of conclusions arrived at by the two courts below, it has to be seen whether evidence of PW 15 has been rightly accepted to be truthful and reliable. So far as PW 15 is concerned, it has to be noted that at the time of occurrence he was about 13 years of age and was a student. The incident is of October 1990. PW 15 was examined in August 1997 i.e. nearly after seven years. It cannot be lost sight of that long passage of time sometimes erases the memory and minute details are lost sight of. In this background, it has been stated that if a case is proved perfectly it is argued that it is artificial. If a case has some flaws inevitably because human beings are prone to err, it is argued that it is too imperfect. While, therefore, assessing the evidence one has to keep realities in view and not adopt a hypersensitive approach. The so-called discrepancies pointed out by the learned counsel for the appellants like the vehicle from which the witness saw the approaching bus or with which part of the offending vehicle the cycle was hit are too trifle to affect the credibility of PW 15’s evidence. Filtering out these minor discrepancies, cream of the evidence remains on which the credibility of the evidence lies. That being so, the conclusions arrived at by the two courts below on evaluation of evidence do not need any interference.” (emphasis supplied) In the present cases, the disputed documents were executed in the year 1990 and the evidence of DW3 was recorded in the year 2007, after a passage of 17 long years. Thus, as discussed in the preceding paragraphs, the High Court erroneously doubted the evidence of DW3 merely because he could not identify photographs of plaintiff and because the defendant No. 4 and DW3 did not mention each other’s presence at the time of execution.

56. Be that as it may, with reference to the said sale deed, the defendant No. 4 deposed that he was present at the time of execution of the sale deed on 03.07.1990 which was executed by the plaintiff in favour of defendants No. 3 and himself. He stated that Teja Singh and Gurcharan Singh were also present.

57. To examine the correctness of opinion of the High Court in disregarding the testimony of DW3 (on the ground that he could not identify the plaintiff and that the defendant No. 4 and DW3 denied each other’s presence), we may refer to the definition of ‘attested’ under Section 3 of the Transfer of Property Act, 1882 which is reproduced below: “3.- Interpretation Clause.- In this Act, unless there is something repugnant in the subject or context,- “attested”, in relation to aninstrument, means and shall be deemed always to have meant attested by two or more witnesses each of whom has seen the executant sign or affix his mark to the instrument, or has seen some other person sign the instrument in the presence and by the direction of the executant, or has received from the executant a personal acknowledgement of his signature or mark, or of the signature of such other person, and each of whom has signed the instrument in the presence of the executant; but it shall not be necessary that more than one of such witnesses shall have been present at the same time, and no particular form of attestation shall be necessary.” (emphasis supplied)

58. The disputed sale deed dated 03.07.1990 was signed by plaintiff as vendor and defendant No. 3 as vendee and in the presence of DW3 and the other attesting witness Teja Singh. DW3 as an attesting witness had seen both plaintiff and defendant No. 3 signing the deed and he then attested the sale deed. The High Court also failed to note that the other attesting witness being dead and his signature having been identified by DW2 and DW4, and with the testimony of PW4 scribe, the evidence of the DW3 witness stood corroborated and therefore, the same could not be disregarded.

59. In Jagdish Chand Sharma v. Narain Singh Saini (dead) through legal representatives & Ors.13,this Court held as under: “57.1. Viewed in premise, Section 71 of the 1872 Act has to be necessarily accorded a strict interpretation. The two 13 (2015) 8 SCC 615 RATTAN SINGH & ORS. v. NIRMAL GILL & ORS. [A. M. KHANWILKAR, J.] contingencies permitting the play of this provision, namely, denial or failure to recollect the execution by the attesting witness produced, thus a fortiori has to be extended a meaning to ensure that the limited liberty granted by Section 71 of the 1872 Act does not in any manner efface or emasculate the essence and efficacy of Section 63 of the Act and Section 68 of the 1872 Act. The distinction between failure on the part of an attesting witness to prove the execution and attestation of a will and his or her denial of the said event or failure to recollect the same, has to be essentially maintained. Any unwarranted indulgence, permitting extra liberal flexibility to these two stipulations, would render the predication of Section 63 of the Act and Section 68 of the 1872 Act, otiose. The propounder can be initiated to the benefit of Section 71 of the 1872 Act only if the attesting witness/witnesses, who is/are alive and is/are produced and in clear terms either denies/deny the execution of the document or cannot recollect the said incident. Not only, this witness/witnesses has/ have to be credible and impartial, the evidence adduced ought to demonstrate unhesitant denial of the execution of the document or authenticate real forgetfulness of such fact. If the testimony evinces a casual account of the execution and attestation of the document disregardful of truth, and thereby fails to prove these two essentials as per law, the propounder cannot be permitted to adduce other evidence under cover of Section 71 of the 1872 Act. Such a sanction would not only be incompatible with the scheme of Section 63 of the Act read with Section 68 of the 1872 Act but also would be extinctive of the paramountcy and sacrosanctity thereof, a consequence, not legislatively intended. If the evidence of the witnesses produced by the propounder is inherently worthless and lacking in credibility, Section 71 of the 1872 Act cannot be invoked to bail him (the propounder) out of the situation to facilitate a roving pursuit. In absence of any touch of truthfulness and genuineness in the overall approach, this provision, which is not a substitute of Section 63(c) of the Act and Section 68 of the 1872 Act, cannot be invoked to supplement such failed speculative endeavour.” (emphasis supplied)

60. It is noteworthy that defendant No. 4 had not signed the sale deed despite being a vendee. In Aloka Bose v. Parmatma Devi and Ors.14, it has been held that signature of the vendee is not mandatory in a sale deed. The relevant portion of the said decision is extracted hereunder: “18. In any agreement of sale, the terms are always negotiated and thereafter reduced in the form of an agreement of sale and signed by both parties or the vendor alone (unless it is by a series of offers and counter-offers by letters or other modes of recognised communication). In India, an agreement of sale signed by the vendor alone and delivered to the purchaser, and accepted by the purchaser, has always been considered to be a valid contract. In the event of breach by the vendor, it can be specifically enforced by the purchaser. There is, however, no practice of purchaser alone signing an agreement of sale. 19. The defendant next contended that the agreement of sale in this case (Ext. 2) was clearly in a form which required signatures of both the vendor and purchaser. It is pointed out that the agreement begins as: “Agreement for sale between Kanika Bose and Parmatma Devi” and not an “Agreement of sale executed by Kanika Bose in favour of Parmatma Devi”. Our attention is also drawn to the testimonium clause (the provision at the end of the instrument stating when and by whom it was signed) of the agreement, which reads thus: “In witnesses whereof, the parties hereto have hereunto set and subscribed their respective hands and seals on these presents.” It is therefore contended that the agreement specifically contemplated execution by both parties; and as it was not so executed, it was incomplete and unenforceable. 20. We have carefully examined the agreement (Ext. 2), a photocopy of which is produced. The testimonium portion in the agreement is in an archaic form which has lost its meaning. Parties no longer “subscribe their respective hands and seals”. It is true that the format obviously contemplates signature by both parties. But it is clear that the intention of the parties was that it should be 14 (2009) 2 SCC 582 RATTAN SINGH & ORS. v. NIRMAL GILL & ORS. [A. M. KHANWILKAR, J.] complete on signature by only the vendor. This is evident from the fact that the document is signed by the vendor and duly witnessed by four witnesses and was delivered to the purchaser. Apart from a separate endorsement made on the date of the agreement itself (7-9-1979) by the vendor acknowledging the receipt of Rs 2001 as advance, it also contains a second endorsement (which is also duly witnessed) made on 10-10-1979 by the vendor, acknowledging the receipt of a further sum of Rs 2000 and confirming that the total earnest money received was Rs 4001. This shows that the purchaser accepted and acted in terms of the agreement which was signed, witnessed and delivered to her as a complete instrument and that she then obtained an endorsement thereon by the vendor, in regard to second payment. If the agreement was not complete, the vendor would not have received a further amount and endorsed an acknowledgment thereon on 10-10-1979. 21. Apart from the above, the evidence of the witnesses also shows that there was a concluded contract. Therefore, even though the draftsman who prepared the agreement might have used a format intended for execution by both vendor and purchaser, the manner in which the parties had proceeded, clearly demonstrated that it was intended to be executed only by the vendor alone. 22. Thus we hold that the agreement of sale (Ext. 2) signed only by the vendor was valid and enforceable by the purchaser.” (emphasis supplied) 61. Since the defendant No. 4 has not signed the sale deed as a vendee, his evidence cannot be discarded. In any case, the weight of evidence of DW3 remains unassailable. Therefore, the testimony of DW3 satisfies the requirements of the conditions required for a valid attestation. 62. The plaintiff also asserted that she had not received the consideration in relation to the stated transactions and that the defendants had no means to pay the consideration. It has come on record that the defendants had mortgaged the joint lands several times as they were in need of money. Further, the defendant No. 4 after admitting to have mortgaged the land had said that he used that money to install tubewells and buy tractors. The said fact does not conclusively prove that they did not possess funds as the said loans were obtained to make investments on the joint lands and not on the personal property of the defendant No. 4. Further, the defendant No. 4 had deposed that the sale consideration was paid from the sale proceeds received by selling the land of their mother in the village Ashrafpur. Since the attesting witness had proved the execution of the sale deeds, the primary onus upon the plaintiff had not shifted unto the defendants. Further, the plaintiff was obliged to rebut the positive evidence produced by the defendants regarding payment of consideration amount to the plaintiff; but also ought to have independently proved her case of non-receipt of the consideration amount. 63. A priori, we hold that the diverse grounds urged by the plaintiff in disputing the 1990 GPA and the sale deeds dated 29.06.1990 and 03.07.1990 are, as observed hitherto, unsubstantiated and untenable. Expert Opinion 64. The plaintiff got her admitted signatures compared with the signatures on the disputed documents by a handwriting expert, Jassy Anand (PW10) who had come to a conclusion that the disputed signatures were a result of copied forgery. On the contrary, the defendants had also got the same document examined by their expert, Arvind Sood (DW7), who had determined the disputed signatures to have been signed by plaintiff herself. 65. The trial Court and the first appellate Court had not considered the contrary opinions of the experts and chose to form their opinion based on other evidence that has come on record. In our opinion, the expert evidence produced by the plaintiff in reference to the signature of the plaintiff is of no avail, in view of divergent opinions. The ground that the documents were a result of copied forgery cannot be substantiated only on the basis of the opinion of expert (PW10). Even otherwise, the expert opinions are not a binding piece of evidence and have to be corroborated with other pieces of evidence. Suffice it to say that the plaintiff failed to prove that her signatures on the subject documents are forged. 1963 GPA not challenged 66. Further, the 1963 GPA is claimed to have been discovered during the enquiries made by the plaintiff subsequent to attaining RATTAN SINGH & ORS. v. NIRMAL GILL & ORS. [A. M. KHANWILKAR, J.] knowledge of the fraud. However, the said GPA was never challenged by the plaintiff. The reason cited for not challenging the said GPA is that the document being a 30-year old document could not be challenged. 67. The trial Court had observed that the plaintiff in her cross examination, gave evasive replies when confronted with the 1963 GPA, which bears her signature. She had also admitted that she was taken to Tehsil office in 1963 after her father’s death. Therefore, it could be safely accepted that the plaintiff had executed the 1963 GPA and further she had knowledge of the sanction of mutation in pursuance of that GPA. Paragraph 45 of the judgment of the trial Court is extracted below: “45. Further, another fact which reveals that plaintiff was having knowledge regarding sanctioning of mutation of inheritance, is that, prior to sanctioning of mutation of inheritance of deceased Harbans Singh, she executed power of attorney along with other defendants dated 08.10.1963 Ex. D19 in favour of Gurdial Singh regarding the management of land and she admitted this thing in her cross-examination that after the death of Harbans Singh, she was taken to Tehsil Office and when she was shown that power of attorney which bears her signatures on different points, she gave evasive reply.” 68. The first appellate Court and the High Court had not made any observation in that regard. 69. Since the 1963 GPA is a document which is more than 30 years old, we may advert to Section 90 of the 1872 Act, which provides for the presumption in favour of a 30-year old document. The same is extracted below: “90.- Presumption as to documents thirty years old.- Where any document, purporting or proved to be thirty years old, is produced from any custody which the Court in the particular case considers proper, the Court may presume that the signature and every other part of such document, which purports to be in the handwriting of any particular person, is in that persons handwriting, and, in the case of a document executed or attested, that it was duly executed and attested by the persons by whom it purports to be executed and attested. Explanation.— Documents are said to be in proper custody if they are in the place in which, and under the care of the person with whom, they would naturally be; but no custody is improper if it is proved to have had a legitimate origin, or if the circumstances of the particular case are such as to render such an origin probable. This explanation applies also to section 81.” (emphasis supplied) 70. The aforesaid provision employs the words ‘may presume’. Thus, we may now refer to Section 4 of the 1872 Act in order to see the mode of dealing with the said presumption. The same is extracted hereunder: “4.- “May Presume”.- Whenever it is provided by this Act that the Court may presume a fact, it may either regard such fact as proved, unless and until it is disproved, or may call for proof of it.” 71. The presumption in favour of a 30-year old document is, therefore, a rebuttable presumption. Nothing prevented the plaintiff to rebut the presumption by leading appropriate evidence in order to disprove the same. Since the plaintiff failed to do so, the said document would be binding on the plaintiff. As a matter of fact, the parties had acted upon the terms of the said document without any demur since 1963 and it was, therefore, not open to resile therefrom at this distance of time. Hence, the trial Court was right in holding the 1963 GPA, to be a genuine document. II. LIMITATION 72. The plaintiff asserted that she had attended a family function in February, 2001 and in the said function, while she was interacting with one Rustam Singh, he disclosed that the defendants have sold a portion of the joint lands. Subsequently, she made enquiries in that regard. As such, she had inspected the jamabandis of the joint lands and thereupon got knowledge about the existence of the disputed documents. Immediately upon discovery of the said documents, she filed the suits. The suits are filed within 3 years from the date of acquiring knowledge and are thus within limitation. 73. To support her case, the plaintiff relied upon the testimonies of DW3 and defendant No. 4, wherein it had come on record that the RATTAN SINGH & ORS. v. NIRMAL GILL & ORS. [A. M. KHANWILKAR, J.] plaintiff, Nirmal Gill (respondent No. 1) and Rustam Singh were present in the aforesaid function. Nirmal Gill in her testimony as PW8 had deposed that there was a family gathering in December, 2000 whereat the plaintiff enquired from defendant Nos. 5 and 6 about the status of mutation, who informed that the mutation could not be effected until the encroachments on the lands at Jalandhar and Premgarh are cleared. Thereafter, in February 2001, there was another family gathering wherein Rustam Singh had passed on the said information to the plaintiff in her presence. 74. The trial Court, while examining the issue of limitation, had opined that when the documents were proved to have been executed by the plaintiff in 1990, it ought to have been challenged within 3 years of its execution. It was further observed that when a specific plea is taken that the plaintiff acquired knowledge about fraud recently in a family function, she was obliged to examine such person who disclosed the information and the plaintiff failed to do so. Notably, the date of the family function had been wrongly mentioned by the trial Court as December, 2001. Paragraphs 94 and 98 of the trial Court’s judgment are reproduced below: “94. I find merits in these arguments advanced by Learned Defence Counsel because when the plaintiff is taking a specific plea that in some family function in December, 2001 which she as well as her daughter attended, this thing came to their knowledge that the power of attorney has been forged and on the basis of that Harcharan Kaur had executed the sale deeds of the share of plaintiff, then in those circumstances the plaintiff was required to examine that person who disclosed that information to the plaintiff. But the plaintiff has not examined any that person. xxx xxx xxx 98. In my opinion, when the plaintiff is specifically stating to have received the information in some family function, then she was required to examine that person from whom she received the information. But no such evidence is coming forward. Moreover, when the Court has come to the conclusion that the disputed documents were executed by Harcharan Kaur (Joginder Kaur [sic]) on dated 29.06.1990, 28.06.1990, 03.07.1990, then in those circumstances, if any fraud etc. has been played upon by the plaintiff, the plaintiff was required to file the suit within the period of three years. So apparently the suit filed by the plaintiff is barred by limitation. Therefore, the said issues stand decided in favour of the defendants and against the plaintiff.” (emphasis supplied) 75. The first appellate Court in its judgment confirmed the findings of the trial Court that the suits were barred by limitation. While doing so, the first appellate Court had also proceeded on the wrong premise that the family function was held in December, 2001. Finally, the first appellate Court held that since the 1990 GPA had been proved to have been executed by plaintiff, the question of acquiring knowledge in the family function loses significance. 76. In contrast, the High Court had noted that the factum of the family function and plaintiff’s presence thereat was admitted by defendant No. 4. The High Court then went on to reverse the findings of the trial Court and the first appellate Court whilst opining the testimony of Rustam Singh cements the case of the plaintiff and it was apparent that the plaintiff had no reason to suspect her brothers at an earlier point of time and she was not even aware of the acts of the defendants. The said facts came to light only after the plaintiff conducted inquiries. The relevant portion of the High Court’s judgment is set out hereunder: “….. … Learned courts below have further erred in holding that the suits are barred by limitation. The plaintiff’s case is that she came to know about the fraud being perpetuated by her own step brothers and sister-in-law after she settled in Punjab, subsequent to the retirement of her husband and consequent increased frequency of her interaction with her relatives. Marriage of her paternal uncle’s son (Taya’s son) is admitted by DW 6 Rattan Singh. It is further admitted that the plaintiff was present at the said wedding. Testimony of Rustam Singh cements the case of the plaintiff. …” (emphasis supplied) 77. Before analysing the correctness of the decisions arrived at, let us see the settled legal position as to effect of fraud on limitation as RATTAN SINGH & ORS. v. NIRMAL GILL & ORS. [A. M. KHANWILKAR, J.] prescribed in Section 17 of the Limitation Act, 196315. The said provision reads as under: “17.– Effect of fraud or mistake.- (1) Where, in the case of any suit or application for which a period of limitation is prescribed by this Act,— (a) the suit or application is based upon the fraud of the defendant or respondent or his agent; or (b) the knowledge of the right or title on which a suit or application is founded is concealed by the fraud of any such person as aforesaid; or (c) the suit or application is for relief from the consequences of a mistake; or (d) where any document necessary to establish the right of the plaintiff or applicant has been fraudulently concealed from him, the period of limitation shall not begin to run until the plaintiff or applicant has discovered the fraud or the mistake or could, with reasonable diligence, have discovered it; or in the case of a concealed document, until the plaintiff or the applicant first had the means of producing the concealed document or compelling its production …….” (emphasis supplied) 78. Therefore, for invoking Section 17 of the 1963 Act, two ingredients have to be pleaded and duly proved. One is existence of a fraud and the other is discovery of such fraud. In the present case, since the plaintiff failed to establish the existence of fraud, there is no occasion for its discovery. Thus, the plaintiff cannot be extended the benefit under the said provision. 79. It must be noted that the trial Court was in error to hold that the person who has disclosed the information was not examined by the plaintiff, when it had come on record through the testimony of Kultar Singh (DW2), that Rustam Singh expired before the suits came up for trial. If so, the finding of the High Court that the testimony of Rustam 15 for short, “the 1963 Act” Singh strengthened the case of plaintiff is ex-facie erroneous and manifestly wrong. In as much as, the said person was never examined before the Court in these proceedings. Further, the trial Court and the first appellate Court had erroneously assumed the date of function in December, 2001 in place of February, 2001. However, that will have no bearing on the finding on the factum of non-existence of fraud. The concurring findings recorded by the trial Court and the first appellate Court – that the documents were executed by the plaintiff – belies and demolishes the case of the plaintiff, as to having acquired knowledge of alleged fraud in 2001. Therefore, the High Court committed manifest error in reversing the concurrent findings of the trial Court and the first appellate Court in that regard. CONCLUSION 80. It is settled that the standard of proof required in a civil dispute is preponderance of probabilities and not beyond reasonable doubt. In the present cases, though the discrepancies in the 1990 GPA are bound to create some doubt, however, in absence of any tangible evidence produced by the plaintiff to support the plea of fraud, it does not take the matter further. Rather, in this case the testimony of the attesting witness, scribe and other independent witnesses plainly support the case of the defendants. That evidence dispels the doubt if any; and tilt the balance in favour of the defendants. 81. Suffice it to observe that since the plaintiff could not establish the existence of fraud, it must follow that the suits are ex-facie barred by limitation. 82. As to the title of the subsequent purchasers, since the 1990 GPA had been proved, there is no reason to doubt their bonafides. 83. In view of the foregoing discussion, we hold that the trial Court and the first appellate Court had appreciated the evidence properly and that view being a possible view, the High Court ought not to have disturbed the same in the second appeal and that too on surmises and conjectures. In the result, the present appeals are allowed and the impugned judgment and decree passed by the High Court is set aside. The judgment and decree passed by the first appellate Court is hereby restored. No order as to costs. Pending applications, if any, are disposed of. Kalpana K. Tripathy Appeals allowed. RATTAN SINGH & ORS. v. NIRMAL GILL & ORS. [A. M. KHANWILKAR, J.]