Bombay High Court
M/S. M.J.Builders vs Aziz Moosa & Ors. ...Defenda Nt S on 12 February, 2009
Author: Roshan Dalvi
Bench: Roshan Dalvi
1
IN THE HIGH COURT OF JUDICATURE
AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
SUIT NO. 105 6 OF 198 7
M/s. M.J.Builders ...Plaintiffs
Vs.
Aziz Moosa & Ors. ...Defenda nt s
Mr. Rajiv Kumar with Ms. Neeta Solanki
with Kiran Jain i/b. Kiran Jain & Co., for Plaintiffs
Mr. M.U.Pandey for Defendant s 6A to 6F
Mr.Samir Vaidya with Mr. S.P.Dalal
i/b. Dalal & Co., for Defenda nt No.9
AND
SUIT NO. 320 2 OF 198 9
Moham me d Ju m m a n Haji Abdul Sattar ...Plaintiff
Vs.
M/s. M.J. Builders & 2 Ors. ...Defenda nt s
Mr. Samir Vaidya with Mr. S.P. Dalal
i/b. Dalal & Co., for Plaintiff
Mr. Rajiv Kumar with Ms. Neeta Solanki
i/b. Kiran Jain & Co., for Defenda nt No.1
Mr. A.J. Almeida for Defenda nt No.3
CORAM: SMT.ROSHAN DALVI, J.
DATED: 12 TH FEBRUARY, 200 9
J U D G M E N T:
1. Several parties have been claiming in several capacities the land which initially stood admittedly in the name of one ::: Downloaded on - 09/06/2013 14:20:46 ::: 2 Haji Abdul Sattar Ali Mohamme d Cham a dia (in short Haji) since 5 th November 1960 under the Conveyance executed in his favour on that date. There have been 3 suits filed by 3 such parties claiming the said property. The above 2 suits are 2 of them. The 3 rd suit was filed by one Aziz Moosa being Suit No.1035 / 1 9 9 0 , which has been dismissed for default of his appeara n ce upon non- prosecution of his claim.
2. The above 2 suits have been filed against various parties also claiming diverse rights in the suit property.
ig Several
Defenda nt s have since given up their defence. The main 3
contesting parties are the Plaintiff in Suit No.1056 / 1 9 8 7 one is a Builder and Developer and who claims interest in the suit property initially from an Agreement for Sale dated 20 th December 1978, which culminated in a Consent Decree with the successors in title of the aforesaid Haji under a Consent Decree passed by this Court on 10 th Ju ne 1982. The other claima nt is Defenda nt No.6 in the aforesaid Suit No.1056 / 1 9 8 7 who initially claimed fishing rights in the suit property followed by an option to purcha se the said property, which he claims to have exercised during the life time of the Haji. The 3 rd claimant is the Plaintiff in Suit No.3202 / 1 9 8 9 who claims to be the only son left by the Haji as his sole heir and legal represent ative. He is also Defendant No.9 in Suit No.1056 / 1 9 8 7 .
::: Downloaded on - 09/06/2013 14:20:46 ::: 33. There are several Defendan t s in Suit No.1056 / 1 9 8 7 , who have not defended the suit and who need not be considered, save and except Defendant Nos.6 and 9 aforesaid. The successor in title of the aforesaid Haji who was his second wife is the Defenda nt in both the Suits. She has expired pending the suits. She as well as her daughter are made party Defenda nt s in Suit No.3202 / 1 9 8 9 .
4. The suit property is an open land admeas u ri ng about 53 acres 30 guntha s under Survey No.44 of village Darauli near Malwani at Malad, Mumbai described in the aforesaid Conveyance and the later docume nt s as being a land in Taluka Borivali, Bombay Subur b a n Division as also in Taluka:
Satara, Dist: Thane. The bounda ries of the suit land are admittedly the bound aries of Survey No.15, Survey No.45, Survey No.51 and Malwani village to the East,West,North and Sout h respectively of the suit property. All the claimant s of the suit land have no issue with regard to the identification of the suit land and claim the same land from the same common predecessor in title, the aforesaid Haji Abdul Sattar Ali Moham med Cham adia.
5. The Plaintiff in Suit No.1056 / 1 9 8 7 shall be referred to as the Builder. The Plaintiff in Suit No.3202 / 1 9 8 9 , who is also ::: Downloaded on - 09/06/2013 14:20:46 ::: 4 Defenda nt No.9 in the other suit, shall be referred to by his name Jum m a n . The Defendant No.6 in the suit of the Builder (and who has not filed any suit himself) shall be referred to by his name Koli.
6. Each of the aforesaid parties have challenged the right claimed by the others. The successors in title of the Haji have accepted and admitted the claim of the Builder with whom they have entered into the agreement for sale and later the Conveyance by way of the Consent Decree.
ig Based upon the
respective claims of the aforesaid parties Ju stice R.G.
Vaidyanat h a framed separate issues in the aforesaid 2 suits which are answered as follows:-
ISSUES IN SUIT NO.105 6 / 1 9 8 2 FINDINGS
1. Whether Plaintiff is a registered firm. Yes
2. Whether Plaintiffs firm is the owner of suit property having acquired it from the 4 th Defenda nt under an agreement of sale dated 20.12.1978 followed by decree in suit No.1093 of 1982. Yes
3. Whether Plaintiff's Vendor Hazarab ai (4 th Defendan t) was the wife of the original owner Haji Abdul Sattar Ali Moham me d as alleged in the Plaint. Yes
4. Whether the said original owner Haji Abdul Sattar Ali Moham med gifted the suit property in favour of Hazarab ai on ::: Downloaded on - 09/06/2013 14:20:46 ::: 5 15.4.1968 as alleged in para 7 of the Plaint. Yes
5. Whether Haji Abdul Sattar Ali Mohammed executed a Will dated 18.4.1968 as alleged in paragrap h 7 of the plaint. Yes
6. Whether the Will dated 18.4.1968 is a forged and got up document as alleged in the written stateme nt. No
7. Whether the Plaintiff proves that he was put in possession of suit property and continue d to be in possession of the suit property as alleged in the plaint. Yes
8. Whether the consent decree in suit No.1093 / 1 9 8 2 was a collusive and fraud ulent as alleged in the written stateme nt. No
9. Whether the consent decree in Suit No.1093 / 1 9 8 2 is void being in contr-
-avention of Urban Land Ceiling Act and the Contract Act as alleged in paragrap h 3 of the written stateme nt of 6 th Defendan t. No
10. Whether Plaintiff proves that Haji Abdul Sattar Ali Moham me d died in 1968. Yes
11. Whether Haji Abdul Sattar Ali Moham med died in 1986 as alleged in the written stateme nt. No
12. Whether the 6 th Defendant has been in possession of the suit property since 1968. No ::: Downloaded on - 09/06/2013 14:20:46 ::: 6
13. Whether 6 th Defenda nt is a licencee of suit property for fishing purposes under an agreement dated 30.9.1968 executed by Haji Abdul Sattar Ali Moham med with an option to purcha se the land as alleged in paragrap h 27 of the written stateme nt of 6 th Defendan t. No
14. Whether 6 th Defenda nt exercised option to purcha se the land and paid consid-
-eration amou nt to Haji Abdul Satar Ali Moham med as alleged. No
15. Whether 9 th Defenda nt is the son of Haji Abdul Sattar Ali Moham med and is the sole heir of the original owner as alleged in his written statemen t. No
16. What relief ?
ISSUES IN SUIT NO.320 2 / 1 9 8 9 FINDINGS
1. Whether the real name of the Plaintiff is Moham med Ju m m a n Abdul Satar as alleged by him. No
2. Whether the Plaintiff is the only son or sole heir or legal represent a tive of the deceased Haji Abdul Sattar Ali Moham med as alleged in paragrap h 1 of the plaint . No
3. Whether Haji Abdul Sattar Ali Moham med expired on or about 2 nd May 1968 as alleged in paragrap h 1 of the plaint. No ::: Downloaded on - 09/06/2013 14:20:46 ::: 7 Or Whether Haji Abdul Sattar Ali Mohammed died on 2 nd May 1986 No Or Whether Haji Abdul Sattar Ali Mohammed died on 15 th May 1968 as alleged in the written stateme nt. Yes
4. Whether the docume nt annexed as Ex.'A' 'B' and 'C' to the plaint are genuine docume nt s as sought to be represented in paragrap h 1 of the plaint. No
5. Whether the docume nt s marked as Exhs.
'A','B' & 'C' to the plaint are fabricated or caused to be made by the Plaintiffs with the full knowledge of their falsely as alleged in paragrap h 5 of the written stateme nt. Yes
6. Whether the Plaintiff's father was owner Need not be of the suit land as alleged in paragrap h answered 2 of the plaint. excep t that the Haji was not the Plaintiff's father
7. Whether the Plaintiff's father during his No life time or after his death the Plaintiff Except has been in continuo u s or uninterr u p te d that the occupation, possession or enjoyment of posse s s i o n the suit property as alleged in para 5 of of the Haji the plaint. is admitt ed
8. Whether the father of the Plaintiff had entru s ted those defenda n t with the original conveyance of the suit land as ::: Downloaded on - 09/06/2013 14:20:46 ::: 8 'Amanat' as alleged in paragrap h 6 of the plaint. No
9. Whether these Defenda nt s administered or caused to be administered any threats to the Plaintiff as alleged in paragrap h 11 of the plaint. No 10 .Whether 1 st Defenda nt s have misused the title deeds in collusion with Defendant No.2 and 3 as alleged in paragrap h 21 of the plaint. No 11 .Whether Plaintiff is the owner of the suit property or entitled to declaration to that effect as alleged in paragrap h s 24 & 25 of the plaint. No 12 .Whether Plaintiff is in possession of the suit property as alleged in paragrap h 25 of the plaint. No 13 .Whether the Defenda n t No.1 was at all material times in possession of the suit property till they handed over possession to Shri A.P. Yagnik, the Private Receiver appointed by this Hon'ble Court as alleged in paragrap h 19 of the written stateme nt of Defendant No.1. Yes 14 .Whether the claim of the Plaintiff is barred by Law of Limitation as alleged in paragrap 21 of the written stateme nt. No 15 .Whether Plaintiff has not valued the subject matter of the suit property for payment of the Court fees as alleged in paragraph 22 ::: Downloaded on - 09/06/2013 14:20:46 ::: 9 of the written statemen t. Yes 16 .Whether Defenda nt No.2 is widow of the original owner of the suit property viz.
Haji Abdul Sattar Ali Moham me d. Yes 17 .Whether the original owner Haji Abdul Sattar Ali Moham med gifted the suit property by oral gift in favour of Defen-
-dant No.2 on 15 th April 1968 as alleged. Yes 18 .Whether the first Defendant acquired the suit property by entering into agre-
-ement of sale with Defenda nt No.2 followed by a Consent Decree in Suit No.1092 / 1 9 8 2 as alleged. Yes 19 .Whether the first Defendant was put in possession of the suit property and contin ued in possession till the Receiver was appointed by the Court. Yes 20 .What relief ?
7. The Builder has led extensive evidence not only to prove his right, title and interest in the suit property, but also to disprove the right claimed by Ju m m a n . He has accordingly examined 9 witnesses. He has got produced documen t s of the Haji with regard to the suit property by himself and through the Tahasildar of the Urban Land Ceiling Depart me n t and one Architect and licenced Surveyor. He has got produced further docume nt s from the Trustee of the Cemetery where the Haji ::: Downloaded on - 09/06/2013 14:20:46 ::: 10 was stated to have been buried, the Officer of Tata Memorial Hospital where the Haji was admitted for treatme nt of Cancer which he suffered, a Police Inspector who investigated the private complaint filed by the Builder against the Jum m a n with regard to the alleged fraud and fabrication of the docume nt s made by Ju m m a n and one independen t witness from the native village of the Haji, being village Dhoraji in Gujarat.
8. He has been extensively cross examined on behalf of Koli as well as Ju m m a n . The other witnesses also have been similarly cross examined though they have essentially only produced the docume nt s and gave direct evidence to prove them, save and except the independen t witness from the village of the Haji who has deposed with regard to his knowledge about the family of the Haji and the execution of certain documen t s by the Haji during his life time.
9. The Koli has led evidence essentially to prove the execution of the licence for fishing granted by the Haji to him and the option to purch ase exercised by him. He has also relied upon the Revenue records as also the Revenue proceedings.
10. Jum m a n has not examined himself. He has not produced ::: Downloaded on - 09/06/2013 14:20:46 ::: 11 or tendered any docume nt s. He has essentially sought to rely upon the docume n t s got produced by the Builder to show the alleged fraud practiced by him in fabricating docume n t s to show him to be the son of the Haji.
11. Aside from challenging the claim of the Builder, Koli has also sought to challenge the right claimed by the Builder upon his transaction with the successors in title of the Haji under the Urban Land (Ceiling and Regulation) Act, 1976 (ULCRA). He has contended that the decree sought to be obtained by the Builder with the predecessor s in title of the Haji (his wife one Hazarabai and her daughter Kulsu mb ai who are both Defenda nt s in the aforesaid Suits) is a collusive decree. He has contended that the Builder could not obtain possession of the suit property under such a collusive decree and his trans action is void under ULCRA. The Builder has denied any fishing rights having been granted by the Haji to Koli or Koli having accepted the same and exercised his option to purcha se the suit property from the Haji. The Builder has also challenged Ju m m a n' s claim as the son of the Haji.
12. Since common evidence has been led, the issues from the aforesaid 2 suits would also be required to be answered in common, since several of the issues are common to both the Suits. These are with regard to the owners hip of the suit ::: Downloaded on - 09/06/2013 14:20:46 ::: 12 property claimed by each of these parties, the possession of the Suit property also claimed by each of them, the execution of the Consent Decree in collusion or otherwise, the execution of a Gift and later a Will by the said Haji, whether the successors in title of the Haji who claim to be his widow and daughter were indeed his wife and daughter and whether Ju m m a n is the son of the said Haji by that name under the docume nt s which he claims. Aside from these main issues the issue relating to the bar of limitation as well as the inadequate valuation of Ju m m a n' s Suit would also have to be decided.
13. The admitted fact in this Suit is the title of the Haji under the aforesaid Conveyance dated 5 th November 1960. The partner s hip firm of the Builders is also not in issue. The aforesaid issues shall, therefore, be answered accordingly.
14. ISSUE NO.1 IN SUIT NO.105 6 / 1 9 8 7 : RE: Partners hip Firm : Upon the undisp u t ed extract of the Firm Exhibit- A, the issue is answered in the Affirmative .
15. ISSUE NOS.4, 5 & 6 IN SUIT NO.105 6 / 1 9 8 7 AND ISSUE O.17 IN SUIT NO.320 2 / 1 9 8 9 : RE : Gift and Will of Haji:-
Originally the property belonged to the Haji, since 1960, who is stated to have gifted it to his wife, Hazarabai. He later executed a Will reciting the fact of the execution of the Gift ::: Downloaded on - 09/06/2013 14:20:46 ::: 13 thereu n de r. Accordingly Hazarabai came to be the owner of the suit property. The Haji is stated to have expired in 1968. Hazarabai sought to sell the Suit property a decade thereafter.
It would, therefore, be material to consider the title of the Hazarabai.
16. The Builders have sought to prove the Will through one Haji Ismail Haji Ibrahim Pothiawala as P.W. No.9. The Will is in Gujarati language. It is registered. It is executed by the Haji on 18 th April 1968. It is witnessed by 2 witnesses, both of whom have died. The Will is, therefore, required to be proved as any other docume nt as per the provisions of Section 69 of the Evidence Act. The P.W. 9 knew the Haji as well as his family. He has identified the signat ure of the Haji on the Will. He has been shown the signat ue of the Haji on the earlier admitted docume n t s which are Agreement for Sale and the Conveyance in favour of the Haji. He has deposed that both these signat ur es are of the same person. He was not present at the time of the execution of the Will. However, he was present at the time of registration when the execution of the Will was admitted. He has seen the Haji sign on the first page of the Will before the Registrar at Dhoraji. He has identified that signat u re on the original Will. P.W. 9 has also identified the signat u re s of the attesting witnesses. He has also given the relations hip of the attesting witnesses whom he knew. They were the brother and nephew of the Haji. Accordingly ::: Downloaded on - 09/06/2013 14:20:47 ::: 14 the Will of the Haji dated 18 th April 1968 has been proved.
17. The Will mentions about the family of the Haji - he had 2 wives, both named Hazarab ai. He has stated the names of his children from both the wives and what they were then doing. He has specified 2 properties owned by him, one in Dhoraji and one in Mumbai being the suit property. The property has been described as open land in Mumbai, Thane District Satara, Tal: Borivali bearing Survey No.44 admeas u ri ng 53 acres and 30 gunth a s ig purcha sed by him under the Conveyance dated 5 th November 1960 for Rs.1,063 / - and which was then of the market value of Rs.32,000 / - . It is further recited in the Will that on 15 th April 1968 he has gifted both those properties to his 2 nd wife Hazarabai Abu Fazal and which has been accepted by her. He has given her the possession (KABJO) of the property and she has accepted the same. The Will further recites that there is no other immovable property owned by the Haji. The Will deals with certain furniture, cash, obsequial ceremonies etc., with which we are not concerned. Consequen tly it is seen that the Suit property, then owned by the Haji was gifted by him to his 2nd wife Hazarab ai Abu Fazal, Defenda nt No.4 in Suit No.1056 / 1 9 8 7 and Defenda nt No.2 in Suit No.3202 / 1 9 8 9 . It will have to be seen whether such a gift is a valid gift under the Muslim Personal Law.
::: Downloaded on - 09/06/2013 14:20:47 ::: 1518. Section 135 in Chapter XI of Mulla's Principles of Mahomeda n Law sets out the definition of a Gift or Hiba thus:-
"A Hiba or Gift is "a transfer of property, made immediately, and without an exchange, by one person to another and accepted by or on behalf of the latter. "
19. Under Section 149 of Mahomeda n Law the 3 essentials of a Gift are (1) a declaration of gift by the donor, (2) an accepta nce of the gift, express or implied, by or on behalf of the donee, and (3) delivery of possession of the subject of the gift by the donor to the donee. Upon these 3 conditions being complied, the Gift would be complete. Under Section 150 thereof it is essential that there should be a delivery of possession of a subject of the Gift. This has been held also in the case of Abdul Sattar Vs. The Vth Additional District Judge, Lucknow, 19 7 8 ALL. L.J.54 3 .
20. In the case of Fatimabibi Vs. Abdul Rehman Abdul Karim, AIR 200 1 Gujarat 175 upon considering the aforesaid 3 essentials of a valid Gift it has been held that after an oral Gift by the husba n d in favour of his wife, the execution of a Deed of Declaration and mutation in the name of the wife followed by delivery of possession would make the Gift complete. The fact that the acceptance of the Gift by the wife was mentioned in the Deed of Declaration, it would not ::: Downloaded on - 09/06/2013 14:20:47 ::: 16 require further evidence as to accepta nce by the Donee in view of the relations hip of the parties. It is further held that after the Deed was registered all the ingredients of a valid gift are established. In this case the Haji made an oral Gift in favour of his wife prior to the execution of his Will. He recited that fact in his Will followed by the fact of accepta nce of the Gift as also the possession of the property by the wife. The Will has been registered. The Gift is complete.
21. In the case of Hayatuddin Haji Shujauddin Vs. Abdul Gani Abdul Hafiz 19 7 5 Mh. L. J 345 a Gift of an undivided share in the property by reciting that it was so made together with an intention to divest the property being made clear was held to be a valid gift. In that case the property was held by 2 wives and a sister of one deceased Lalmiya who succeeded to his estate. 2 of the persons gifted their share in favour of the Plaintiff. The 3 rd co- sharer continued in the property. The Gift Deed of the undivided share showed the possession being given to the Donee, after separation from the 3 rd owner. That was the value of 14 anna s share in the property. The Donee sued for declaration of his ownership in the property and in the alternative for partition and separate possession of his share. It was held that the Gift was validly made under Sections 159 and 160 of Mahomeda n Law.
::: Downloaded on - 09/06/2013 14:20:47 ::: 1722. In the case of Canton m e n t Board Vs. G. Venkatram Reddy (199 5) 4 SCC 561 the essentials of the valid gift under Moham med a n law are set out in Paragraph 5. All it requires is the delivery of possession of the subject of the gift and taking of possession of the gift by the Donee, actu ally or constr uctively, for completion of the gift. Hence, the execution of the Power of Attorney by Hazarab ai shows the constr uctive accepta nce of the gift by her. No further act is necess ary.
23. Mr. Pandey argued that no overt acts are shown by Hazarabai by way of mutation entries or otherwise constitute accepta nce of the gift for a period of as long as 10 years. However, since accepta nce of a gift can be made even constr uctively, a single act showing dominion over the property gifted such as to deal with the property would suffice.
24. In this case the entire suit property has been gifted to Hazarabai as aforesaid. The Will has been marked Exhibit- U21 in evidence upon it having been proved under Section 69 of the Evidence Act. Hence Issue Nos.4 & 5 in Suit No.1056 / 1 9 8 7 & Issue No.17 in Suit No.3202 / 1 9 8 9 are answered in the Affirmative and Issue No.6 in Suit No.1056 / 1 9 8 7 is answered in the Negative .
::: Downloaded on - 09/06/2013 14:20:47 ::: 1825. ISSUE NOS.2, 8 & 9 IN SUIT NO.105 6 / 1 9 8 7 & ISSUE NOS.1 0 &18 IN SUIT NO.320 2 / 1 9 8 9 : Re: Ownership and Acquisition of the Suit property : The Builders have led evidence through their Partner P.W.1 to show how the Suit property came to be acquired by them. In October 1978 he met one Fida Hussainb hoy who was a Broker. He knew the suit plot as well as its owners. The Builders approac hed him. He showed them the suit site. The Builders approved the plot.
They were informed that the owner was from Dhoraji, Sauras h t r a, Gujarat. ig They were also informed that the owner was one Hazarabai. She had given her Power of Attorney to her daughter Kulsum b ai. Kulsu mb ai met the Partner of the Builders along with her husba n d Yunusb hoy. The deal was settled for Rs.1,50,000 / - . They were taken to the Advocate of Kulsu mb ai, one Abbas Talim. He prepared the draft agreement between the parties. That agreement was signed by the parties. The P.W. 1 has identified his own signat ure as well as the signat ure of Kulsumb ai, who was the Constituted Attorney of Hazarabai , but who has signed the Agreement not showing that she was such Constituted Attorney. She has signed in her personal capacity. The Agreement dated 20 th December 1978 has been accordingly proved. The Builders gave to Kulsum b ai a cheque of Rs.10,000 / - towards earnest. He requested for the Power of Attorney in favour of the Builders, which came to be executed on the next day by ::: Downloaded on - 09/06/2013 14:20:47 ::: 19 Kulsu mb ai. Kulsum b ai is a party Defendan t in Suit No.3202 / 1 9 8 9 . She has accordingly been represented. She has admitted execution of these docume nt s. Conseque ntly the agreement for Sale dated 20 th December 1978 and the Power of Attorney dated 21 st December 1978 have come to be proved.
26. Hazarabai has executed a Power of Attorney in favour of her daughter Kulsum b ai. The Power of Attorney has been executed at Dhoraji before the Executive Magistrate on 4th Ju ne 1976. The Power of Attorney has been executed on a Stamp paper issued in the name of Hazarabai Abu Fazal, herself on 3 rd Ju ne 1976. The stamp paper of the Power of Attorney appears to have been purch ased by the son of Hazarabai one Haji Basheer Sattar whose name has been mentioned on all the pages of Power of Attorney below the stamp. It is the General Power of Attorney including the power of sale of the property. The Power of Attorney has been marked Exhibit- U23 in the evidence.
27. Under these circum st a nces the execution of the agreement for sale dated 20 th December 1978 shall have to be considered.
The Suit property belonged to the Haji. It was gifted to Hazarabai. She executed a Power of Attorney in favour of Kulsu mb ai.
::: Downloaded on - 09/06/2013 14:20:47 ::: 2028. Kulsum b ai negotiated the sale of the property with the Builders. She signed the Agreement for Sale on behalf of Hazarabai. However, the execution clause of the Agreement for Sale does not show her execution as such Constituted Attorney. The execution clause shows Hazarabai to be the Vendor. Kulsum b ai has signed against the said clause. She accepts her signat u re. She has not challenged the execution of the Agreement for Sale at any time. She has received the earnest amou nt of Rs.10,000 / - by cheque paid by the Builders. She has executed a further Power of Attorney in favour of the Builders, the next day. The execution of the Power of Attorney has been deposed by the P.W. 1 in paragrap h 38 of his evidence.
29. The Agreement for Sale shows the earnest of Rs.10,000 / -
paid by the Builders to Kulsumb ai. Kulsum b ai has not challenged the receipt of the entire consideration mentioned in the Agreement for Sale. The Bank stateme nt of th Builders showing the payments made, more specially of the balance amou nt, would essentially determine the bonafides of the trans action. In fact in the cross examination of P.W. 1 by Ju m m a n , P.W.1 was called upon to produce his bank stateme nt and other evidence relating to the payment. Thereafter he was not asked questions upon it. Upon the Court's quarry, Mr. Kumar tendered to Court the bank ::: Downloaded on - 09/06/2013 14:20:47 ::: 21 stateme nt s of Development Co- operative Bank and the Ismalia Co- operative Bank Ltd., and Union Bank of India showing the said Earnest debited in December 1978 as well as the payment of the balance consideration of Rs.1,30,000 / - debited on 28 th August 1982 Exhibit- RRR (colly) . The Bank stateme nt with regard to the first payment of Rs.10,000 / - has been issued under the Bankers Book Evidence Act duly certified by his Bank. The entry relating to the payment of Rs.1,30,000 / - is in a genuine old Bank documen t s issued in the normal course of the conduct of the Bank.
ig The last payment of the balance amou nt of Rs.10,000 / - which was to be paid after the Income Tax Clearance Certificate was obtained by the Builders from Kulsu mb ai is shown to have been paid under another Banker's statement of Union Bank of India of the Builders in April 1983. Strangely Ju m m a n' s Advocate, though having called upon the Plaintiff to produce this evidence has objected to its production.
30. It is argued on behalf of Koli that the trans action of sale between Kulsum bai and the Builders becomes tainted in view of the fact the Kulsu mb ai was only the Constit uted Attorney of Hazarabai, who was the then owner of the suit property, even if the Will of the Haji is taken to be proved. She having signed an Agreement for Sale in her person al capacity, could not have agreed to convey the title to the Builders.
::: Downloaded on - 09/06/2013 14:20:47 ::: 2231. It would have to be seen as to how the Builders sought to deal with and develop the Suit property agreed to be purcha se d by them and for which they were given the power inter alia to put up constr uction work under sanctioned plan and utilise the entire FSI of the said property under Clause 11 thereof. Mr.Rajiv Kumar has meticulou sly taken the Court through the labyrinth of material showing the direct oral evidence of P.W.1 with regard to the acts of the Builders through their then Attorney Taher Kadiani & Co.,by proving the corresponde nce between the parties.
32. The Solicitors of the Builders gave public notice in "Bomba y Samach ar " and "Free Press ". They entered into corresponde nce with a certain 3 rd party, who claimed certain rights in the Suit property as also with the Vendors of the Suit property as follows:
a) By their letter dated 29 th November 1980 addressed to Hazarabai at Dhoraji, they called upon Hazarab ai to make out marketable title.
b) By their letter dated 14 th December 1979 addressed to Hazarabai they called upon her to answer 72 requisitions in respect of the suit property.::: Downloaded on - 09/06/2013 14:20:47 ::: 23
c) Under their letter dated 13 th December 1979 to the Builders they annexed the draft of the proposed Conveyance and sent the same by registered post to Hazarabai in Dhoraji for approval. This was stated to be without prejudice to Hazarabai making out a marketa ble title and obtaining the Income Tax Clearance Certificate under Section 230(A) of the Income Tax Act.
d) They obtained appoint me nt for joint inspection of the suit property from the Mumbai Municipal Corporation as shown in the Mumbai Municipal Corporation's letter dated 12 th December 1979.
e) They sent their letter dated 19 th Jan u a ry 1980 by registered post to Hazarabai at Dhoraji regarding not having received the draft Conveyance duly approved by her and requisitions answered by her or permission of the Competent Authority under Section 27 of the ULCRA obtained by her. It shows that they had made inquiry from Governme n t and Municipal Depart me n t s for investigation of title of Hazarabai, but could not obtain the relevant records.
f) They called upon Hazarabai to produce any agreement entered into by her with the party who had filed ::: Downloaded on - 09/06/2013 14:20:47 ::: 24 objections upon the public notice being given by them.
All these show the usual detailed legal work of a purcha ser's Attorney.
g) An Architect and licenced Surveyor one Samoon Rassiwala has been examined as P.W.7 . He has deposed about his appoint me nt and the corresponde nce that he carried out with the DILR in respect of the meas ure me n t of the land and its survey. He has initially written a letter dated 23 rd May 1979 for carrying out survey of suit plot of land annexing the required docume n t s. The letter has been proved by his direct evidence. He has been issued several letters by the DILR, being letter dated 17 th December 1982, 7 th Febru ary 1983 and 1 st March 1983.
He thereafter called upon the DILR to carry out the survey and demarcate the suit land by his letter dated 14 th September 1983. The DILR has responded under its letter dated 2 nd Jan u a ry 1984. These letters have been proved by his direct evidence and marked Exhibit- AA (colly) . He has similarly obtained the plan of the suit land from the DILR's office and the names of the plot holders surrou n di ng the suit plot, so as to locate and identify the suit plot. It may be remembered that the Plaintiff's Attorneys had made a grievance under their letter dated 19 th Jan u a ry 1980 that the ::: Downloaded on - 09/06/2013 14:20:47 ::: 25 land could not be located ), an aspect which came to be professionally determined by the said Architect.
h) P.W.7 attended the Survey to be carried out by the DILR along with his represent ative, the Building Contractor as well as the Maintena nce Surveyor. He has taken photograph s of the suit property which have been identified by him by identifying the persons in the photograph s as well as the suit property and upon such direct evidence marked Exhibit- Q (colly). His cross examination shows that the survey was held for num ber of days and the demarcation of the land was made by the DILR. He has described the mode of carrying out the plane table survey and the putting of the survey marks on the land to be surveyed. He has deposed about the BUND on one bound ary of the suit property. In his cross examination he has referred to the triangle prepared on the survey plan Exhibit- Q in evidence showing the location of each table installed at the time of survey. Though he has not stood the test of memory in his cross examination with regard to the poles fixed, and which is not even required, the triangles prepared or the exact location of the bund, a reading of his evidence shows his presence as well as his professional input at the time of the survey.
33. It appears that Kulsum b ai was irked by the various ::: Downloaded on - 09/06/2013 14:20:47 ::: 26 requisitions and queries raised by the Builder's Attorneys purs u a n t to the Agreement for Sale. She had addressed a letter in Gujarati dated 24 th December 1979 to the Broker Fida Hussain Bhoy making a grievance about the irrelevant queries of the Builder's Attorneys and insisted that it was the purcha se r who had to obtain the ULCRA permission under the Power of Attorney executed in their favour. She sought only the payment of the balance consideration which was sought to be delayed by the Builders. It was in reply to that letter that the Builder's Attorneys had addressed a final notice dated 19 th Jan u a ry 1980 to Hazarabai.
34. It can be seen that the draft Conveyance remained to be approved. Permission under the ULCRA was not obtained.
The requisitions were not answered. The title could not be investigated and market able title was not made out. Under these circum st a n ces the Builders filed Suit No.1093 / 1 9 8 2 against the Hazarabai and Kulsum bai. This is stated to have been filed in Ju ne 1982. The suit came to be decreed by consent of the parties under the Consent Decree dated 17 th August 1982. Under the consent terms the execution of the Agreement for Sale dated 20 th December 1978 was admitted. The Hazarabai and Kulsu mb ai agreed to convey the suit property upon the consideration agreed between the parties the receipt of which was admitted. Hazarab ai and Kulsum b ai ::: Downloaded on - 09/06/2013 14:20:47 ::: 27 handed over the Title Deeds of the suit property to the Builders. They agreed that the Decree would operate as a Conveyance and stated that prior to that date possession of the suit plot was handed over to the Builders. These consent terms have also been signed only by Kulsumb ai against the names of both the Defenda n t s.
35. It is contended on behalf of Koli that the Consent Terms is collusive and hence, the title of the Builders is stated to tainted by such collusion.
ig Mr. Pandey on behalf of Koli has drawn this Court's attention to the fact that though Hazarab ai is shown to be the Vendor in the Agreement for Sale, the docume nt is signed by Kulsu mb ai not as her Constituted Attorney but in her individual capacity. It is also shown that the Power of Attorney executed the day after the execution of the Agreement for Sale does not bear any reference to the Agreement for Sale and that it further shows that tena nt s and / o r occupa nt s, licencees or trespas sers, who pay rents and compens ation who were required to be ejected from the suit property, which shows the admission of the possession and occupation of Koli who has been the only occupan t / licencee on the suit property. Though Mr. Pandey fairly conceded that Taher Kadiani & Company acted professionally as the Attorneys of the Purchasers, he contended that the execution of the Consent Terms a couple of mont hs after the filing of suit ::: Downloaded on - 09/06/2013 14:20:47 ::: 28 for specific performa nce of the Agreement for Sale shows the collusion between the parties.
36. The Dictionary meaning of " Collusion " is required to be seen. Oxford English Dictionary shows the meaning of " Collusion " to be a secret or illegal cooperation in order to cheat or deceive others. Hence the meaning of "Collude" is shown to be to come to a secret agreement in order to deceive others; conspire.
37. It is not shown whom Kulsum bai and the Builders sought to be deceive. Koli, until then, had claimed only a licence for fishing on the suit property as shall be seen presently. Ju m m a n , much later came on the scene to claim to be the only son of the Haji, as shall be seen presently. There were no parties who were sought to be deceived by Kulsumb ai and / o r the Builders.
38. The Advanced Law Lexicon by P. Ramanat ha Aiyar shows at page 86 4 the meaning and concept of "Collusion" thus:-
"Collusion. A secret agreem e n t for a fraudulen t purpose; a secret or dishon e s t arrangem e n t in fraud of the rights of anoth er; a secret agree m e n t by two or more persons to obtain an unlawful object. An ::: Downloaded on - 09/06/2013 14:20:47 ::: 29 agree m e n t betwee n person s to obtain an object forbidden by law, or to obtain a lawful object by illegal means. Collusion is a decei tful agreem e n t or contract between two or more persons; for the one to bring an action against the other, to some evil purpose, as to defraud a third person of high right, etc. This collusion is either app a r e n t , when it shews itself on the face of the act; or, which is more com m o n , it is secre t , where done in the dark, or covered over with a show of hones t y. And it is a thing the law abhors: wherefore, when found, it makes void all things dependan t upon the same, though otherwise in them s e l v e s good (Co.Lit.1 0 9 , 36 0; Tomlin). The word 'collusion' when used in conne c t i o n with judicial proceedi ngs means a secret agree m e n t betwee n two person s that the one should institu t e a suit against the other in order to obtain the decisi o n of a judicial tribunal for some sinist er purpose or even in the wider sens e of a decei tful agree m e n t or contract between two or more persons to do some act in order to prejudice a third person or for some improper purpose."
39. The concept of collusion must be understood by the effect of the act of a party which legally affects another party such that by that act itself a party is aggrieved. Such act could be challenged as collusive. Any agreement between 2 parties with which a 3 rd party is not concerned cannot be challenged as collusive, of course the 3 rd party can challenge the agreement itself having been entered into which may affect his rights.
40. Though Koli as well as Ju m m a n may challenge the ::: Downloaded on - 09/06/2013 14:20:47 ::: 30 Consent Decree obtained by the Builders with Hazarabai and Kulsu mb ai on merits and upon establishing their claim that they had acquired a legal right prior thereto, the Consent Decree itself cannot be challenged on the ground that it is collusive as the Consent Decree is not seen to have been entered into to effect the vested rights of Koli or Jum m a n .
Each of their rights, if any, shall be considered on its own merits. The mere passing of a Consent Decree, or for that matter a Decree upon contest, cannot divest Koli or Ju m m a n of their vested rights, if any. That however, would not make the Consent Decree collusive or vitiated on that ground. Their challenge to the transfer from Hazarab ai or Kulsum b ai to the Builders shall be otherwise seen upon each of their respective cases separately.
41. Mr. Pandey argued that the Consent Decree passed in 1982 when the ULCRA was in force is a nullity and since it is a nullity he can merely rely upon its invalidity when it is set up against him although he has not taken steps to set it aside. (Abdullami ya n Abdulreh man Vs. Governm e n t of Bombay, AIR (29) 19 4 2 Bombay 257 FB).
42. The invalidity, if any, of the Consent Decree shall have to be seen upon reading ULCRA as a whole. The decree would come into effect only upon all the compliances with the ::: Downloaded on - 09/06/2013 14:20:47 ::: 31 provisions of ULCRA. If however, the provisions of ULCRA are complied and the Suit property is exempted from ULCRA or if ULCRA does not apply to the Suit property at all, the Consent Decree would be operative and the case of its invalidity would then fail.
43. Mr. Pandey relied upon the judgment in the case of Bai Dosabai Vs. Mathurdas Govinddas AIR 198 0 SC 133 4 at 13 3 9 to show that in that case the effect of ULCRA on a decree passed by the High Court before the Act came into force was considered. The Supreme Court held that the decree could be moulded to provide relief in accordance with that law.
44. In this case it will have to be seen whether ULCRA, applied to the Suit property and whether it enabled the Suit property to be ultimately developed and transferred within the parameters of that law.
45. It is argued by Mr. Pandey that the Consent Decree was obtained in the Suit filed by the Builders to circumvent the provisions of ULCRA and is, therefore, a void contract under Section 23 of the Indian Contract Act and that the Decree is, therefore a nullity.
46. In the case of Nagubai Ammal Vs. B. Shama Rao AIR ::: Downloaded on - 09/06/2013 14:20:47 ::: 32 19 5 6 S.C. 59 3 a collusive proceeding in a mortgage Suit came to be considered by the Apex Court. The Court was concerned with the distinction between the collusive and fraud ulent proceedings. It considered a fraud ulent proceeding distinct from a collusive proceeding. The Court observed thus:-
"Collusion in judicial proceedi ngs is a secret arrangem e n t betwee n two persons that the one should institu t e a suit against the other in order to obtain the decision of a judicial tribunal for some sinist er purpose". (Wharton's Law Lexicon, 1 4 th Edn., p.21 2).
In such a proceedin g, the claim put forward is fictiti ou s , the cont e s t over it is unreal, and the decree passed therei n is a mere mask having the similitude of a judicial determinati on and worn by the parties with the object of confoun ding third parties.".
(Eviden c e led)
47. Similarly in the case of Subhas Chandra Das Mushib, Vs. Ganga Prosad Das Mushib AIR 196 7 SC 878 (V 54 C187) it has been held that collusion is a secret agreement for illegal purpose or a conspiracy and implies that a man does something with evil design. In that case a brother and sister were stated to have colluded secretly or fraud ulently to execute a Deed of Gift with the object of depriving the Plaintiff.
48. It has to be seen whether in this case the parameters set ::: Downloaded on - 09/06/2013 14:20:47 ::: 33 out by the Apex Court are satisfied to conclude that the Suit between the Builders' and Hazarabai and Kulsu mb ai was collusive so that the decree obtained by them also became collusive. The Builders' claim is not fictitious. They have seriously prosecuted their claim from day one. They have paid consideration for the suit property. They have called upon the Vendors to do all the acts and things that Vendors in their position were required to do. That having not been done, they had sued the Vendors. Hence, the contest in that Suit was not unreal. The Builders obtained what they were seeking - the Conveyance of the property and the Title Deeds. The Builders paid consideration for the same. Hence, the decree was not a mere mask to confound 3 rd parties. Since the Builders wanted the conveyance in their name, which Kulsum b ai need not have objected and Kulsu mb ai wanted only the consideration for the property to be transferred which the Builders were prepared to pay, and since the other terms could be complied by the Builders under the Power of Attorney as required by Kulsu mb ai in her aforesaid Gujarati letter to the Broker, this was indeed a case for settlement. No other party could be deceived by such settlement.
49. It is argued that this was to confound the ULC Depart me n t since the property could not be conveyed or transferred to the Builders under the restrictive mandate ::: Downloaded on - 09/06/2013 14:20:47 ::: 34 contained in ULCRA. Indeed at the relevant time the Urban Land (Ceiling and Regulation) Act, 1976 was in force; it has since been repealed. Hazarab ai / K ul s u m b ai had filed retur n s as required under Section 6 of the ULCRA. However, the inquiry contemplated under Section 8 of the Act by the Competent Authority for preparing the draft statemen t of the land held in excess of the ceiling limit was not made. Conseque n tly the final stateme nt under Section 9 of the Act was also not made and the land was not acquired under Section 10 by the Government, or the amoun t paid under Section 11 to the holders of the land.
50. It need hardly be mentioned that as in the case of all such other lands the power to exempt under Section 20 of the ULCRA remains with the Governmen t and could be availed of by the Builders purs u a n t to the Consent Decree by the Hazarabai and Kulsum b ai themselves. Similarly the power to declare that the excess land was not to be treated as excess further remained with the Governme n t upon an application being made by the holder of the land under Section 21 of the Act. Just such an application under Section 21 of the ULCRA was made by Kulsum b ai in the name of Hazarab ai on 3 rd August 1979, after the execution of the Agreement for the Sale and before the Conveyance to be entered into under the letter, Exhibit- CC in evidence.
::: Downloaded on - 09/06/2013 14:20:47 ::: 3551. In fact the Tahasildar attached to the Urban Land Ceiling Depart me n t produced the relevant record kept by the public authority in the ordinary course of its conduct upon he having been issued the letter of request in that behalf. These are the applications dated 30 th March 1979 made by Hazarabai through her daughter Kulsum b ai and the reply dated 30 th April 1979 of the Competent Authority under ULCRA. The letter is an application for an exemption under Section 21 of the ULCRA together with the form of the Scheme under the said Act and the Declaration under Section 21(1) of the Act.
The reply calls upon the Hazarab ai to produce certain further docume nt s. These letters have been marked Exhibits- NN (colly) in evidence. They having been produced from the proper custody are required to be read in evidence.
52. After the execution of the Conveyance the Builders have sought to apply for permission under Section 20 of the Act for constr uction under the Scheme for Weaker Section and have received the letter of the Urban Land Ceiling Authority dated 29 th Jan u a ry 1987, Exhibit- FF in evidence stating that their application was pending in view of the challenge to the said Act pending before the High Court. Much later on 8th April 1987 the Urban Land Ceiling Authority under their further letter part of Exhibit- FF (colly) required the documen t s with ::: Downloaded on - 09/06/2013 14:20:47 ::: 36 regard to the suit property from the Builders including the Poperty Register Card, City Survey Plan, Copy of Returns under Section 6(i) of the Act, copy of Order under Section 8(3) of the Act, Consent of persons having interest in the land, revised Development plan remarks, certificates from the Architect, location of the buildings and teneme nt s to be constr ucted, the required undertaking, Indemnity Bond, appoint me nt letter of the Architect, power to represent and the approved layout plan.
53. It can be seen that until the permissions under Section 20 or 21 of the Act were applied for and granted, the land cannot be exempted from the rigours of the Act. Until that time the Consent Decree would not in law operate as Conveyance, notwithst a n di ng the fact that the parties to the Suit agreed personally to convey the property to the Builders. Once the permission is obtained, it matters not whether there was a traditional Conveyance executed or the Consent Decree took its place, only if the mandatory requireme nt s of Registration and stamp were satisfied.
54. The Consent Decree as drafted by the Prothonot ary and Sr. Master of the Court came to be sent for registration and the payment of the stamp duty. Upon the payment of deficit stamp duty on 24 th March 1987 it came to be returned to the ::: Downloaded on - 09/06/2013 14:20:47 ::: 37 Court on 2 nd December 1987 as is evident from the Consent Decree filed on 23 rd December 1987, Exhibit- OO in evidence. It is only thereafter that the Index II came to be issued for entering the name of the Builders as the claiming party and the Governme nt as also Hazarabai and Kulsumb ai as the executing party. The date of the registration of the Index- II is, therefore, shown to be 2 nd December 1987 in the Index- II, Exhibit- O in evidence.
55. It may be mentioned that therefore, reliance upon Section 27 of ULCRA to contend that any transfer by way of sale, mortgage, gift, lease or otherwise was prohibited is misconceived. Under the said Section the transfer is excepted, if made, with the previous permission in writing of the Competent Authority. The mode of obtaining such permission in writing is set out under Section 27(2) of the Act - it has to be made by an application in writing to the Competent Authority. The Competent Authority has the power to grant or refuse the permission under Section 27(3) of the Act. In fact under Section 27(4) of the Act, if the Competent Authority does not refuse to grant the permission within 60 days it would have to be deemed to have been granted. The permission is applied for both under Section 20 by the Builders as well as under Section 21 by Hazarab ai and Kulsu mb ai themselves. Further under Section 28(a) of the Act ::: Downloaded on - 09/06/2013 14:20:47 ::: 38 the transfer by sale mortgage, gift, lease or otherwise could be registered only upon the notice of the intended transfer being given to the Competent Authority and under Section 28(b) of the Act after the permission of the Competent Authority is given.
56. The Scheme of the Act is, therefore, not to prohibit, transfer altogether, but to allow transfer only under certain conditions and upon following the procedure prescribed by that legislation. Until that procedure is complied, no transfer would be made. Consequen tly until the procedure is complied, the Registering Authority would not register such a transfer and would not issue Index- II in respect of the transfer. Once that procedure is followed the Conveyance as such executed by and between the parties or a Consent Decree, if any, passed by the Court, which would be agreed to be treated as such Conveyance, would be effectuated.
57. Mr. Pandey relied upon the case of Nathulal Vs. Phoolcha nd AIR 19 7 0 SC 546 which is required to be read in this context. It has been held that the agreement conditional upon the permission of an Authority under a prescribed stat ute is deemed to be subject to the implied condition of obtaining that permission. Hence, if the property was not transferable without the permission of the Authority, the ::: Downloaded on - 09/06/2013 14:20:47 ::: 39 agreement to transfer would be deemed to be subject to the condition that the sanction of the Authority would be obtained.
58. In this case the transfer itself would be subject to the permission of the authority as in all such other cases where Urban properties are developed.
59. The Consent Terms, therefore would not result in circumventing the provisions of ULCRA. The contract between the parties can, therefore, not be taken to be vitiated under Section 23 of the Indian Contract Act. In fact it took between August 1982 and December 1987 to comply with the provisions of ULCRA by the Builders, the agreement between the parties notwithst a n di ng. Index II was issued only in December 1987.
60. Mr. Pandey has made much about the fact that part of the suit land was stated to be in the development zone and the other part in the non- development zone. He has extensively cross examined P.W.1 with regard to the NOC required to be obtained. The fact remains, as is evident from the docume nt s that the permission was applied for and the rigours of the Act were not sought to be circumvented.
::: Downloaded on - 09/06/2013 14:20:47 ::: 4061. Mr. Kumar contended that al this is academic because the Act has since been repealed. The Urban Land (Ceiling and Regulation) Repeal Act 1979 came into force in the State of Maharas h t r a in 2007. The ULCRA stood repealed under Section 2 of the Act. All the proceedings under the Principal Act, pending before the commence me nt of the Repeal Act abated under Section 4 of the Repeal Act. The Suit land has not been covered by the Repeal Act. The clock has turned full circle. The contention with regard to collusion that never was goes thus far.
62. In the case of Gajraj Singh & Ors. Vs. State Transport Appellate Tribunal & Ors. (199 7) 1 SCC 650 the effect of a Repeal Act is considered. It is held that the effect of repeal is to obliterate that Act as if it had never been passed and never existed except for trans actions which were commenced, prosecuted and concluded while it was an existing law.
The development of the Suit property, upon the Consent Decree in this case, though commenced has not been concluded. Hence, the Repeal Act would apply to the suit trans action which has not yet been " closed " under the Act.
The Builders would not now require ULCRA permission for developing the property. The applications under Sections 20 or 21 of the Act would not be considered by the ULC authorities. Mr. Pandey's submission that the Repeal Act ::: Downloaded on - 09/06/2013 14:20:47 ::: 41 cannot legalise illegalities purported prior to Repeal would not apply to an act stated to be an illegality merely becau se of the provisions of the Act, since repealed. Of course, if there are other illegalities they would subsist. Only the illegality, if any, conseque nt upon the mand ate under the Act, since repealed would be wiped off. Hence, even if there could have been no conveyance under a validly executed docume nt or equally under the Consent Decree, if the ULCRA was in force, the ULCRA having now been repealed the conveyance would remain in effect. The illegality of the trans action or the nullity of the decree, if at all, would be only purs u a n t to the ULCRA which has now been obliterated from the record. Hence, the act of the Builders and Hazarabai / K ul s u m b ai must be taken never to have been illegal and the decree which is passed must be taken never to have been the nullity.
63. Mr. Pandey contended that the Consent Decree is void also on the ground that the Suit land is agricultur al and hence cannot be transferred to anyone other than an agricultu rist under Section 63 of the Bombay Tenancy & Agricultur al Lands Act, 1948 (BTALA) and hence the transfer by conveyance contemplated under the Consent Decree is void under Section 23 of the Indian Contract Act. Such transfer is subject to the permission of the Collector under the proviso to Section 63 of BTALA. It is for the Builders to obtain such permission or ::: Downloaded on - 09/06/2013 14:20:47 ::: 42 suffer the conseque nces.
64. From the aforesaid evidence it can be seen that the Builders have acquired the Suit property from Hazarabai through her daughter Kulsu mb ai under the Agreement for Sale dated 20 th December 1978 followed by the Consent Decree dated 17 th August 1982 in Suit No.1093 / 1 9 8 2 filed by them. Hence Issue No.2 in Suit No.1056 / 1 9 8 7 and Issue No.1 8 in Suit No.3202 / 1 9 8 9 are answered in the Affirmative and Issue Nos.8 & 9 in Suit No.1056 / 1 9 8 7 and Issue No.10 in Suit No.3202 / 1 9 8 9 are answered in the Negative .
65. ISSUE NO.7 IN SUIT NO.105 6 / 1 9 8 7 AND ISSUE NOS.13 & 19 IN SUIT NO.320 2 / 1 9 8 9 : RE: Possession of the Suit property : The Builders having been put in possession of the Suit property has not been disputed by Hazarab ai or Kulsu mb ai. It is they who put the Builders in possession. The Builders acted upon such possession. The various acts of the Builders more specially the act of conducting the Survey of the suit land and having it demarcated by the DILRs office shows that they were put in possession. That fact has been recited in Clause 5 of the Consent Terms signed by Kulsum b ai and the Builders.
66. Possession follows title in respect of open land. From the ::: Downloaded on - 09/06/2013 14:20:47 ::: 43 evidence relating to the trans action between Hazarabai / Kulsu mb ai and the Builders, and the acts of the Attorneys and the parties to the trans action thereafter, juridical as well as actual possession of the Suit property is seen to be with the Builders since the execution of the Agreement dated 20 th December 1978.
67. P.W. 1 has produced the Report of Mr.A.P.Yagnik, retired Prothonotary & Sr. Master of this Court, Private Receiver appointed in Appeal No.658 / 1 9 9 2 filed by Jum m a n which has been marked Exhibit- P in evidence as a copy of the judicial proceedings. The Report shows possession having been taken by the Private Receiver from the Builders as per order in the Appeal dated 9 th July 1992. It further shows a barbed wire fencing on the 3 sides of the property together with RCC poles affixed therein. It also shows two iron gates to protect the property from trespas ser s. It shows one side of the property having a creek. It also shows one pakka struct u re with 4 cabins were also handed over by the Builders to the Receiver. The Report also shows that there were no squatters on the suit land. There were 4 boards of the Builders, out of which 3 were removed. These Minutes have been signed by Koli, the Advocate for Ju m m a n as well as the Advocate for Hazarabai and Kulsum b ai. The report shows the possession of the property which was vacant land without squatters with one ::: Downloaded on - 09/06/2013 14:20:47 ::: 44 board of the Builders and one pakka struct u re duly fenced with 2 iron gates as on 30 th April 1994. Koli has later sought to feebly question this vital evidence containing his admitted signat u re. Possession having been taken from the Builders, the fact that they had such possession is clear despite the claims of Koli and Ju m m a n to the contrary. Hence, Issue No.7 in Suit No.1056 / 1 9 8 7 as well as Issue Nos.1 3 & 19 in Suit No.3202 / 1 9 8 9 are answered in the Affirmative .
68. ISSUE NOS.7 & 12 IN SUIT NO.32 0 2 / 1 9 8 9 :
Re: Possession of Jum m a n :
ig Ju m m a n claims to be in
possession of the suit property. He has not examined himself.
It is not even clear whether he claims to be in juridical or in actual possession of the Suit property. His juridical possession may be seen upon proof of he being the owner of the Suit property, which shall be dealt with presently. That would be upon the premise that possession follows title in respect of open land. His actual possession is not shown in the suit property by any overt act. He has not examined himself. He has, therefore, not even deposed about his possession. He has not produced or proved any docume nt evidencing his possession. The private Receiver, got appointed in his Appeal being Appeal No.658 / 1 9 9 2 shows vacant possession being taken by the Receiver from the Builders and not from him. The Report of the Private Receiver dated 30 th April 1994 shows the entire land being vacant with ::: Downloaded on - 09/06/2013 14:20:47 ::: 45 only one struct u re thereon. Ju m m a n has not shown to him to be in possession of that struct ur e also. The land had one board of the Builders. Ju m m a n's Advocate has signed the report showing possession taken from the Builder. There is, therefore, nothing to show the actual possession of Ju m m a n in any part of the suit land. However, the title of the Haji has been admitted. Conseque ntly possession which follows the title of the Haji has also been admitted by the parties. Issue No.7 refers to Haji as " the Plaintiff's father " . The question whether Haji was Ju m m a n's ig father shall be dealt with presently. However, it is clarified that the Haji was admittedly in possession of the Suit property during his life time. Save and except this clarification Issue Nos.7 and 12 in Suit No.3202 / 1 9 8 9 are answered in the Negative .
69. ISSUE NO.3 IN SUIT NO.105 6 / 1 9 8 7 & ISSUE NO.16 IN SUIT NO.32 0 2 / 1 9 8 9 . RE : Hazarab ai being the wife of the Haji : The Plaintiff has examined Haji Ismail Haji Ibrahim Pothiawala, P.W.9 to show the family backgrou n d, relations as well as the properties and dealings of the Haji. His evidence inter alia shows that he was distantly related to the Haji on his matern al side. He knew Haji since his childhood. The Haji resided near Siddiqui Masjid at Dhoraji and at Hasam Building, Mohamad ali Road, Mumbai- 400 003. The Haji was doing business in cotton at Pydhou ni, Mumbai. His evidence ::: Downloaded on - 09/06/2013 14:20:48 ::: 46 further shows that he was married twice. It shows the number of children he had begotten from his two wives. Both his wives were named Hazarab ai. Hazarabai referred to in these Suits was his second wife. She was the daughter of Abu Fazal. In his cross examination there is nothing produced to show even remotely that Hazarabai was not the wife of the Haji. He has refuted the case put to him (though no case can be put to any independe n t witness as no independe nt witness ever has a case ! ) that Hazarabai who was the daughter of Abu Fazal was not married to the Haji, or that Kulsum bai was not the daughter of the Haji and Hazarabai or that he had no proof that Kulsum b ai was the daughter of the Haji .
70. The earliest reference to Hazarabai is in the Will of the Haji, Exhibit- U 21 in evidence which has been proved under Section 69 of the Evidence Act through the evidence of P.W.9. The original Will which has been registered with the Registrar at Dhoraji shows the entire family of the Haji. Hazarabai is shown as his second wife. She is referred to as Hazarabai Abu Fazal. Abu Fazal is her father's name. The evidence of P.W. 9 shows that as per the custom in the Muslim Commu nity women are referred to showing their name followed by their father's name. She has been gifted the 2 immovable properties owned by the Haji including the Suit property. The Plaintiff has got produced through P.W. 8, the Police Officer the ::: Downloaded on - 09/06/2013 14:20:48 ::: 47 certified copy of the Death Certificate of the Haji issued by the Municipality of Dhoraji Town, Exhibit- U 22 in the evidence. It being a certified copy of public records issued in the normal course of the conduct of the public authority carries the presu m p tion as to its correctnes s. The death certificate shows the name of Hazarabai as the wife of the deceased.
71. Hazarabai has executed the Power of Attorney in favour of her daughter Kulsum bai on 4 th Ju ne 1976, Exhibit- U 23 in the evidence. She is described there as Hazarabai Abu Fazal.
The Power of Attorney has been executed before the Executive Magistrate at Dhoraji. She has been identified before the Magistrate by Advocate Mr. R.K. Hadiawala. She is described as the wife of the Haji. The Power of Attorney is in respect of the suit property which has been gifted to her by the Haji. The Haji Basheer Sattar who has been stated and described as one of the sons of Haji in the Will, has signed on each page of the Power of Attorney under the stamp showing that he purcha se d the stamp in the name of Hazarab ai Abu Fazal on 3 rd Ju ne 1976, a day before the execution of the Power of Attorney. The fact that he was the son of the Haji is not denied. His signat u re shows his tacit admission to the fact of Hazarabai, the principal in the Power of Attorney, was the owner of the Suit property who appointed her daughter Kulsum b ai as her Constit uted Attorney.
::: Downloaded on - 09/06/2013 14:20:48 ::: 4872. Kulsum b ai is the daughter of the Hazarabai. That fact has not been denied by any party. The agreement signed by Kulsu mb ai is made out in the name of Hazarabai Abu Fazal who is described as the owner of the suit property, earlier admittedly owned by the Haji.
73. The entire corresponde nce made by the Attorneys of the Builders in respect of the purch a se of the suit land by the Builders has been made with Hazarabai Abu Fazal at Dhoraji.
In the letter dated 14 th December 1979 part of Exhibit-
(colly) which has been sent by registered post to Hazarab ai at Dhoraji, she is shown as the widow of the Haji. In the letter of the Builders' Attorneys to Hazarabai, part of Exhibit- J(colly) in evidence she has been shown to be residing C/o.Kuls u m b ai Haji Abdul Sattar Cham a dia at Dhoraji since Kulsu mb ai is shown to be the daughter of the Haji and her relations hip with her mother is not denied. Hazarabai is seen to be addressed as the wife of the Haji. Even the letter in Gujarati of Kulsum b ai dated 24 th October 1979 addressed to the Broker Fida Hussainb hoy and which has been replied by the Builders' Attorneys shows the reply having been sent to Hazarabai at Dhoraji. Hence, Hazarabai has been sent the reply to the letter addressed by Kulsum b ai. None of these documen t s has been challenged at least as regards the addresses by either ::: Downloaded on - 09/06/2013 14:20:48 ::: 49 Koli or Ju m m a n . No part of the extensive cross examination of P.W.1 has been directed to this end.
74. The retur n s Under Section 6 of the ULCRA as well as the application under Section 21(i) of the Act made by Kulsum bai in respect of the Suit property is made in the name of Hazarabai Abu Fazal as her Constituted Attorney. Even this aspect has not been challenged by any party.
75. The Builders have examined inter alia the Officer of Tata Memorial Hospital where the Haji was taking treat men t for Cancer. He has got produced the hospital records kept in the ordinary course of the conduct of the hospital. The hospital records accordingly proved through that witness have been marked Exhibit- SS (colly) in evidence. The hospital record of the Haji shows inter alia as his nearest relative and friend Mrs. H.A. Ali Moham med (Hazarabai Abdul Ali Moham med ).
76. Such docume nt a ry evidence corroborates the oral evidence of P.W.9 Haji Ibrahim Pothiawala.
77. It would be too much to impute that Hazarabai Abu Fazal who is shown as the wife as well as the widow of the Haji from the obscure village of Dhoraji and who has executed several docume nt s showing her as such from time to time could be ::: Downloaded on - 09/06/2013 14:20:48 ::: 50 any one other than the wife of Haji to whom he gifted inter alia the Suit land. Hence Issue No.3 in Suit No.1056 / 1 9 8 7 and Issue No.1 6 in Suit No.3202 / 1 9 8 9 are answered in the Affirmativ e .
78. ISSUE NOS.1 0 & 11 IN SUIT NO.105 6 / 1 9 8 7 & ISSUE NO.3 IN SUIT NO.32 0 2 / 1 9 8 9 : RE: The Date of the death of the Haji: It is admitted that the Haji owned the Suit property under the Conveyance dated 5 th November 1960. The aforesaid evidence has shown that he had two wives and several children; one of them was his daughter Kulsum b ai and the other was his son Basheer. Koli as well as Jum m a n have denied this relations hip. Koli has just denied without more. He claims that he only knew the Haji and the Haji had no family. Jum m a n claims that he was the only son of the Haji.
79. The Builders contend that the Haji expired at Dhoraji on 15 th May 1968 at the age of 65 years. Ju m m a n and Koli contend that the Haji expired at Bombay on 2nd May 1986 at the age of 65 years.
80. The oral evidence led by the Builders, with regard to the death of the Haji has been given by P.W.9 who was his relative and knew him since his childhood. He has inter alia deposed that he was buried at Memon Jam at Kabrast h a n at Dhoraji.
::: Downloaded on - 09/06/2013 14:20:48 ::: 51He had visited the graveyard 5 years prior to the deposition and had seen his tombstone. He, however, did not remember the name written on the tombstone.
81. Since the death is shown to have taken place at Dhoraji the Haji could have been buried at Dhoraji and the oral evidence to that extent can be accepted, subject to its corroboration by public records.
82. The death can only be proved by the Death Certificate issued by the relevant Municipal Authority where the death took place. The certified extract of the Municipal records are required to be produced in evidence as they bare a presu m p tion as to their correctness being certified extracts of public docume n t s. This presu m p tion holds until it is rebutted.
83. The Builders have got produced the certified extracts of the Municipal records of Dhoraji Town from the death noting register. The certified copy of the death register is marked Exhibit- U 22 . It shows the extract from the General Register No.138. It shows that death having taken place on 15 th May 1968 at 12.30 a.m. The entry has been notified on 17 th May 1968 at 4.45 p.m. The name of the deceased person is shown to be Haji Sattar. His father's name is shown to be Ali ::: Downloaded on - 09/06/2013 14:20:48 ::: 52 Moham med Vali Moham me d Chamadia. His wife's name is shown to be Hazarabai. His age is shown to be 65 years. The information is given by Basheer Haji Sattar, his son. This certificate has not been challenged. The presu m p tion that it carries as a certified copy of public records under Section 79 of the Evidence Act is not rebutted. The certificate shows the date of his death and all the other material particular s which must be taken to be correct.
84. The extract of the register ig of deaths has also been produced by the Builders. This is also an extract of the public records being Dhoraji Municipality. This extract shows the same particular s. It is a certified true copy of the register under the seal of the Municipality. It goes the same way.
85. The Haji was buried in a cemetery at Dhoraji. The Builders have sought to produce a letter of the President of the Memon Jam at showing the factum of the burial on 16 th May 1968. That witness has not been examined and hence, that docume nt, though got produced amongst other docume nt s through a Police Inspector who got produced those docume nt s during the course of an investigation of a criminal complaint filed by the Builders against Ju m m a n for fabrication of records, cannot be stated to be proved in this Suit and cannot be relied upon.
::: Downloaded on - 09/06/2013 14:20:48 ::: 5386. Jum m a n has relied upon a death certificate of the Haji as Exhibit- A to his plaint. He has not examined himself. He has not tendered a certified copy on record of the Court in the evidence. He has only relied upon a copy of the death certificate annexed to the Plaint. It is contended by the Builder that the death certificate relied upon by Ju m m a n is a false and fabricated record. The Builders have sought to rebut the presu m p tion that would arise from such certificate of death. Koli has accepted the Certificate.
ig The Certificate may be looked into to consider the truth of its content s as a certified copy of a public records. The presu m ption would hold until it is rebutted.
87. The certificate shows the Haji having expired on 2nd May 1986 and his death having been registered on 20 th May 1986 under Registration No.843. He is shown to have expired " at home " . The certificate is issued on 28 th November 1986 under No.75298 by the Sub Registrar of Public Health Departme nt of the Mumbai Municipal Corporation.
88. The Builders have got produced docume n t s which were sought to be produced in the criminal trial during investigation of their criminal complaint through the Investigating Officer in that case. That Officer has been ::: Downloaded on - 09/06/2013 14:20:48 ::: 54 examined as P.W.8. He has deposed about the steps taken by him to investigate into the death and the birth certificate records of Jum m a n relied upon by him to prove his claim as the only son of the Haji who was stated to have expired on 2nd May 1986. It would be unnecess a ry to deal with the heap of docume nt s of P.W.8 who has written various letters to various authorities to obtain various docume nt s from those authorities under cover of their letters. It would be material only to see and consider the docume nt s of public records uneart hed by him from the relevant public offices during the investigation.
89. The Municipal records, showing the aforesaid death certificate got produced by Ju m m a n and also relied upon by Koli, would have to be looked into. The death certificate is issued by the Mumbai Municipal Corporation upon an application made in that behalf by Ju m m a n giving information of the death of the Haji. Such information is given in the application form prescribed under Section 44 of the M.M.C.Act . P.W.8 has got produced the said application from the Municipal records being public records. Hence, the said application has been produced from proper custody. It is verified to be a true copy and produced as such. It carries the same presu m p tion as the death certificate itself. It is interesting to see the content s of this application.
::: Downloaded on - 09/06/2013 14:20:48 ::: 5590. The application is in the prescribed printed form. It is dated 27 th November 1986 part of Exhibit- EEE(colly) made from " Hasam Building, Bombay- 400 003 ". That is the address shown below the date at the top of the application. It is an application for 3 copies of the death certificate. It shows the full name of the Haji. It shows the address of the Haji. It shows that the death took place at home(Bombay). The date of death is shown to be 2 nd May 1986. The applicant is Ju m m a n .
His full name is shown as "MohMod Jum a n Haji Abdul Sat t a" . It shows the place of disposal of dead body to be at Chand a nw a di. It is signed by Ju m m a n in Hindi as "Mohma d Haji Abdu Sat t a" (son). The application is seen to be handwritten by a person of an extremely low educational backgrou n d, in the English as well as Hindi language. The name of the applicant as well as his deceased father are not correctly written. At two places the name Sattar is incorrectly spelt. The name of the building is also incorrectly spelt. Since Ju m m a n has not examined himself he could not be cross examined upon the handwriting. Even if he has not written the application in English, (presu m a bly becau se he may not know even element ary English) his surna m e is conspicuou s by the absence of his first name Ju m a n therein. The word Satta in Hindi is also incorrectly spelt in the signat ure. Since he claims to be the son of the Haji and has relied upon the death certificate containing identical particulars he alone must ::: Downloaded on - 09/06/2013 14:20:48 ::: 56 be taken to have made the application as such son.
Conseque n tly his signat ur e on the application must be looked into for all its faults - being the incorrect spelling of Sattar as well as the absence of his first name Ju m m a n .
91. It may be mentioned that another such similar application has been made by one Aziz Moosa who claims to be the nephew of the deceased Haji and who made a claim upon the properties of the deceased Haji in the suit filed by him being Suit No.1035 / 1 9 9 0 in this Court, which has since been left unprosecuted and dismissed. P.W.8 got produced from the same Municipal records his application also. That application similarly verified as a true copy and produced from the public records bears the same registration number in the register of Municipal records. It is dated 28 th May 1986. It gives similar particular s. The only difference in that application is that the place of disposal of the dead body is neither shown in the printed form nor is it filled in. Aziz Moosa seems to have been issued a death certificate under No.27154 which is issued on 28 th May 1986, the date of his application itself. Ju m m a n is shown to have been issued the death certificate bearing No.75298 which is issued on 28 th November 1986 a day after his application was made to the Mumbai Municipal Corporation on 27 th November 1986. P.W.8 has produced yet another death certificate having the same particulars under ::: Downloaded on - 09/06/2013 14:20:48 ::: 57 No.75296 which is marked Exhibit- L and which is the certificate shown to have been issued on 28 th November 1986, a day after the application made by Ju m m a n .
92. The issue of the death certificate upon the application for the death certificate would be depende nt upon the extract of the Municipal register and the death report. P.W.9 has taken the effort of getting these public docume nt s also produced.
Exhibit- LL 1 is the copy of the extract of the municipal register itself. The relevant entry is under Registration No.843 which is reflected in each of the aforesaid death certificates.
The date of the death is shown to be 2 nd May 1986. The registration of the death is on 20 th May 1986. The place of death is shown to be at home (Bombay). The Haji is shown to be 65 years old. The cause of death is shown to be Asthama, cough and old age. In the column "Wheth er medically certified or not" the word, "Pancha ma" is mentioned. The name of the person informing about the death is shown to be Aziz Moosa. His residential address is shown to be "as above"
(there is no residential address mentioned above). In the remarks column it is shown that the burial was done at Nariyalwadi, Muslim Cemetery No.82, Mumbai. It must be remembered that in the application of Aziz Moosa the place of disposal of the dead body has not been mentioned and in the application of Jum m a n the place of disposal of the dead body ::: Downloaded on - 09/06/2013 14:20:48 ::: 58 has been mentioned to be Chanda nw a di. It may also be mentioned that the word " Chanda nw a di " is in the handwriting other than that of the rest of the application signed by Ju m m a n as the son.
93. This extract of the register must be read along with the copy of the death report also got produced through P.W.9 as part of Exhibit- FFF (colly) . The death report is dated 2 nd May 1986. It shows the name of the Haji and his father. It shows that the Haji expired at home.
ig His age is shown to be 65 years. The cause of death is shown to be Astham a, cough and old age. The kind of medical attention received in the last illness which requires Allopathy, Homeopat hy, Ayurvedic, Unani etc., to be mentioned shows the word "Pancha n a m a"
against the said colum n. The name of the informa nt is shown to be Aziz Moosa. Against the address of the informa nt is shows that burial was done at 1.00 a.m. in Cemetery No.82. The application is not signed by the Applicant, but is dated 3rd May 1986. It bears the rubber stamp of Nariyalwadi Muslim Cemetery in which No.82 is circled. The oral evidence shows that upon death, one of the relevant Cemeteries is allotted to each corpse. The circling of No.82 shows the Cemetery No.82 was allotted to the Haji.
94. The Haji was a man of means. Pothiawala's (P.W.9) ::: Downloaded on - 09/06/2013 14:20:48 ::: 59 evidence shows that he was a cotton mercha n t at Pydhouni.
The Passport of the Haji Exhibit- LLL shows that he was a Broker. He admittedly was the owner of the suit property, which is a large piece of valuable land. It would have to be seen how he passed his last days in the twilight of his life given that the death report as well as the entry No.842 in the Municipal register does not show any Doctor having issued a death certificate, but a panch a n a m a having been made instead.
95. The Haji is shown to be 65 years old in the death certificate produced by the Builders as well as the death certificates produced by Ju m m a n as also Aziz Moosa. As per the death certificate issued by Dhoraji Municipality, his death took place on 15 th May 1968. If he was 65 years old then, he would have been born in 1903. His passport Exhibit- LLL shows his date of birth to be 30 th August 1903. Ju m m a n , and for that matter Aziz Moosa, have not produced any evidence of the Haji's birth. The cause of his death is shown to be Astham a, cough and old age. There is no corroborating evidence of the illness suffered by the father of Jum m a n or the uncle of Aziz Moosa produced by them.
96. The Builders have instead got produced evidence of Cancer having been suffered by the Haji. P.W.6 the Assista nt ::: Downloaded on - 09/06/2013 14:20:48 ::: 60 Administration Officer of Tata Memorial Hospital who has produced the records of the hospital as Exhibit- SS1 . These records show the Haji having suffered from advanced Cancer of the right base and center of the tongue. He was under
treatme nt in Tata Memorial Hospital from 21 st Februa ry 1968 to 6 th March 1968. The hospital records show his address at Siddiqui Masjid, Dhoraji, Post: Sauras h t r a as well as his address at 107, Moham med Ali Road, Hasan Building, 3rd Floor, Bombay. The records further show inter alia an application made by way of pre- printed post card addressed to the hospital for availing of railway concession, on the reverse of which the intimation of his death on 15 th May 1968 has been given to the hospital. Hence, though the Haji has not claimed railway concession his death has been informed to the hospital. The records of the hospital got produced and accordingly proved through its Assista nt Administration Officer show that the Haji suffered from Cancer in Februa ry - March 1968. He expired in May 1968. The date of the death of the Haji as shown in the records of Dhoraji, is therefore, corroborated by the independe nt hospital record. Neither the date of the death, nor the cause of the death shown in the death report as well as the extract of Entry No.842 in the register of the Mumbai Municipal Corporation relied upon by Ju m m a n is corroborated. The Haji, who admittedly was a man of means, would have been treated by a Doctor, no ::: Downloaded on - 09/06/2013 14:20:48 ::: 61 matter what he suffered from. He was, therefore, expected to obtain a death certificate under the provisions of Section 450 of the Mumbai Municipal Corporation Act. The requireme nt of a pancha n a m a in the place of a death certificate or in the place of any medical treatme nt, be it Allopathy, Homeopat hy, Ayrvedic or Unani, may be accepted by the Municipality for the corpses of a vagrant, a beggar or such other person who may not have received any medical treatme nt or been under the care of any Medical Practioner as per their Rules in their G.Rs. It is inconceivable that the Pancha n a m a alone can be made of the dead body of the Haji. In any event no pancha n a m a is produced by Ju m m a n and no panch has been examined by him.
97. The reference to cemetery No.82 which is itself a fictitious record rather than being proved by Ju m m a n as corroborative evidence has been sought to be disproved by the Builders by examination of the Managing Trustee of the said Cemetery as a fictitious record made in the death report Exhibit- FF (colly) . Professor Sayyed Moham m a d A.Hussaini who is the Managing Trustee of a Irania Shiya Asna Isna Cemetery has been examined. He as P.W. 5 has produced records of the cemetery to show that no burial of the Haji took place therein. His oral evidence shows that only Shiya Muslims are buried in Cemetery No.82. The Haji by his name is shown to be a Sunni ::: Downloaded on - 09/06/2013 14:20:48 ::: 62 Muslim. The Haji was indeed a Kuchhi Memon, who is a Sun ni Muslim. He hailed from Kutch in Saura s h t r a District.
98. P.W.5 has produced the Calender of 2 nd May 1986 showing that no dead body was brought to his Cemetery on that day, the page of Friday 2 nd May 1986 having been left blank. His evidence shows that that was the record kept by his Cemetery in the ordinary course of the conduct of the said Cemetery.
99. Mr.Pandey contended that the record is a page of an account book and hence is unn at u r al evidence. The witness has been examined on 16 th November 1998. His oral evidence shows that Haji could not have been buried at his Cemetery. Nevertheless, prior to his deposition he was contacted by the Police Officer who investigated the criminal complaint, P.W.8.
He made inquiries and brought out the record maintained by the Cemetery. The Cemetery is not expected to keep immaculate records. It is however, expected to keep some records of the various burials that took place therein. It may use an account book or even a diary for making its entries. There is no reason to reject the record brought by an independen t witness. The Builders have produced this evidence to rebut the presu m p tion. Neither Ju m m a n nor Koli have produced any Corroborative evidence of the contents of the death certificate relied upon by them.
::: Downloaded on - 09/06/2013 14:20:48 ::: 63100. On reading of each of the aforesaid docume nt s which culminated in the death certificate of the Haji who is stated to have expired in 1986 alongside the independe nt record of the Cemetery as well as TATA Memorial Hospital got produced by the Builders seen alongside the birth of the Haji in his passport makes it abu nd a n tly clear that the death certificate relied upon by Ju m m a n and Koli is a fabricated record and cannot be relied upon to prove the date of the death of the Haji.
101. Koli has not produced any evidence of the death of the Haji except his oral testimony that he attended the funeral of Haji in May 1986. It is contended by Mr.Pandey that though all the parties admit that the Haji owned the Suit property under the Conveyance dated 5 th November 1960, the parties are at variance as to who was the person who died as contended by each of them. He has contended that the Haji as described in the Conveyance was one Haji Abdul Sattar Ali Moham med and person who is stated to have expired at Dhoraji is one Haji Sattar Chamadia (or Haji Sattar Ali Moham med Chama dia). Mr. Pandey would contend that, that person was Sattar and not Abdul Sattar. The person who expired in Bombay in 1986 was Abdul Sattar and these are two different persons. He argued that all the docume n t s of the ::: Downloaded on - 09/06/2013 14:20:48 ::: 64 person who expired in Bombay and who owned the Suit property was Abdul Sattar and the person who expired in Dhoraji was Sattar Chamadia.
102. It may be mentioned that Abdul is one of the words amongst Muslims that mean and denote a reference to God / Prophet. That word is usually used as a prefix to the real name of Muslims. Such prefixes or suffixes are Abdul, Moham med, Ali etc., this is a matter of common knowledge. It is a fact of which judicial notice is required to be taken. Facts for which judicial notice is required to be taken need not be proved under Section 56 of the Evidence Act. Interestingly the judgment s under Mahommeda n Law relating to Hiba cited earlier in respect of issues relating to the execution of the Gift and the Will by the Haji show by the very name of the parties in the case, this aspect. The case of Hayatuddin Haji Shujauddin Vs. Abdul Gani Abdul Hafiz (Supra) is a illustration on the point. Incidentally the name of the Responde nt in that case shows precisely the prefix Abdul to the name Gani and the father's name Hafiz. There is no sur na m e shown when these prefixes are used as commonly understood. Similarly the case of Fatimabibi Vs. Abdul Rehma n Abdul Karim (supra) shows the same prefix and the same style of writing the name without the surn a m e with the prefix as used. Interestingly the other case is that of Abdul ::: Downloaded on - 09/06/2013 14:20:48 ::: 65 Sattar Vs. The Vth Additional District Judge, Lucknow (Supra), in which also the surn a m e is not used. It may, therefore, be seen that when such prefixes or suffixes are used with the first name, the Surna me is not used. In official docume nt s where surn a m e s may be required to be used the prefixes or suffixes may be dispensed with. The person is nonetheless the same.
103. Even otherwise Mr. Pandey is incorrect. In this case all the documen t s showing the surn a me are not without the prefix Abdul having been described to show two different persons, one being Haji Sattar Cham adia and the other being Haji Abdul Sattar Moham med. A look at the docume nt s in this case would make this aspect clear. For easy reference the references to the name of the Haji as well as his wife and daughter differently described in various docume nt s is set out as follows:-
Sr.No. Particul a r s of Name Exhibi t
docu m e n t and dat e
Conveyance Deed Haji Abdul Sattar U-3
1 -5.11.1960 Ali Moham med
2 7x12 Extracts - do - U-20
Last Will and Haji Sattar Ali U-21
Testame nt -18.4.1968 Moham med
3 Cham adia
::: Downloaded on - 09/06/2013 14:20:48 :::
66
Sr.No. Particul a r s of Name Exhibi t
docu m e n t and dat e
Death Certificate - do - U-22
4 -15.5.1968
General Power of Hazarabai Abu U-23
Attorney - 4.6.1976 Fazal w/o Haji
Sattar Ali
5 Moham med
Agreement for Sale - Hazarabai Abu
20.12.1978 Fazal w/o Haji
6 Sattar Cham adia
General Power of Kulsu mb ai Abdul
7 Attorney 21.12.1978
ig Sattar Cham adia
Public Notices - Haji Sattar D(colly)
13.12.1979 & Cham adia
8 15.12.1979
Letter - 14.12.1979 Hazarabai Abu H(colly)
Fazal w/o Haji
Abdul Sattar
9 Cham adia
Purcha sers requisition Haji Abdul Sattar H (colly)
10 on Vendor's title Chamadia
Letter sending the Kulsu mb ai Haji J (colly)
draft of the Abdul Sattar
Conveyance to Cham adia
11 Kulsum b ai
Letter - 12.12.197 9 Hazarabai D/o Abu K (colly)
Fazal & w/o Abdul
12 Sattar Cham adia
Title of the Suit Hazarabai Abu N (colly)
No.1093 / 1 9 8 2 Fazal w/o Haji
13 Sattar Cham adia
::: Downloaded on - 09/06/2013 14:20:49 :::
67
Sr.No. Particul a r s of Name Exhibi t
docu m e n t and dat e
Index- II (Hazarabai O
wd /o.Haji Abdul
14 Sattar Cham adia)
Letter of the Kulsu mb ai (Abdul FF (colly)
Competent Authority - Sattar Cham adia)
15 29.1.87 (ULC)
Letter of ULC Authority - do - FF (colly)
dated 8.4.1987 to
16 Kulsum b ai
Notice issued by Haji Abdul Sattar HH (colly)
17 Tahasildar Borivali,
ig Ali Moham med
Entry No.843 in the Haji Abdul Sattar LL-1
Municipal Death Ali Moham m a d
18 Register.
Supplemen t ary form of Hazarabai Abu NN (colly)
scheme under Section Fazal
19 21(1) (ULCRA)
Post card sent to Tata A. S. Ali Mohammed SS (colly)
Memorial Hospital
20 dated 28 th May 1968
Record of Tata Abdul Sattar Ali SS
21 Memorial Hospital Moham m a d
Death Certificate Haji Abdul Sattar EEE
22 produced by Ju m m a n Ali Moham med (colly)
Municipal Records for Haji Abdul Sattar EEE
Death Certificate of Ali Moham m a d (colly)
23 Jum m a n & Aziz Musa
Passport - 12.4.1957 Abdul Sattar Ali LLL
24 Moham m a d
::: Downloaded on - 09/06/2013 14:20:49 :::
68
104. It must be noted that in several of the above docume n t s the prefix Abdul appears even with the Surn a m e Chama dia. These include the docume nt s of Mumbai.
105. It is importa nt to remember that several of these docume nt s bear reference to the Haji's address at Hasan Building, Moham m a d Ali Road Mumbai as well as at Dhoraji being the case paper of the Haji as the patient of Tata Memorial Hospital Exhibit- SS (colly) as well as his passport Exhibit- LLL. It would be too much to conclude that the person born in Dhoraji having the current address at Hasan Building, Moham m a d Ali Road, Mumbai and who had given both such addresse s in his case papers and passport and who is known variously as Abdul Sattar, Haji Sattar, Haji Abdul Sattar Ali Mohmmed, Haji Sattar Chama dia and Haji Sattar Ali Moham med Chamadia and the like is not one and the same person with or without his prefixes and surn a me.
106. One intrinsic evidence that lends credence to the date of the death of the Haji is the Death Certificate of the Haji Exhibit- U-22 shows that the information of the death was given by Bashir Haji Sattar who is shown to be one of the sons of the Haji. Incident ally, his name is also shown on each page of the Power of Attorney executed by Hazarabai, the widow of the Haji; Exhibit- C. ::: Downloaded on - 09/06/2013 14:20:49 ::: 69
107. Aside from the years of the death there have been various dates given by various parties of the death of the Haji. Each of them have mistakenly stated other dates which are not corroborated by any document a ry evidence. The two dates relied upon by the two parties for their specific claims are 15 th May 1968 as contended by the Builders and 2 nd May 1986 as contended by Ju m m a n and Koli.
108. The Haji is seen to have expired on 15 th May 1968 as reflected in the certified copy of the public records maintained by Dhoraji Municipality of his death, which have not been challenged by any docume n t a ry evidence. Hence, the Builders have proved that the Haji died in 1968. Ju m m a n has not proved that the Haji died in 1986. Consequen tly issue No.10 in Suit No.1056 / 1 9 8 7 is answered in the Affirmative and Issue No.1 1 in Suit No.1056 / 1 9 8 7 is answered in the Negative , and Issue No.3 in Suit No.3202 / 1 9 8 9 is answered to show that the Haji died on 15 th May 1968.
109. ISSUE NO.15 IN SUIT NO.105 6 / 1 9 8 7 AND ISSUE NOS.1,2 , 4 & 5 IN SUIT NO.32 0 2 / 1 9 8 9 : RE : Jum m a n' s Identity and Legal Right :- Ju m m a n has filed Suit No.3202 / 1 9 8 9 claiming to be the only son and the sole heir of the Haji. His belated action, 21 years after the death of the ::: Downloaded on - 09/06/2013 14:20:49 ::: 70 Haji is based upon the false and fabricated death certificate of the Haji showing his death on 2 nd May 1986 under registration No.843 Exhibit- A to his plaint. His suit is filed on 23 rd October 1989 more than 3 years after the claimed death of the Haji and after much water had flown over the Haji's estate.
110. As such, after obtaining the death certificate Ju m m a n has produced a false and fabricated birth certificate to show his birth as the son of the Haji. Though he has not examined himself these docume nt s required to be considered, if only for their total lack of worth.
111. Mr.Almeida on behalf of Kulsum b ai pointed out how Ju m m a n is a rank stranger. The last Will and Testament of the Haji shows his 2 wives and their children. It bears no mention of Ju m m a n or Moham m a d Ju m m a n with the customary prefix, as he has chosen to call himself in the title of the plaint and as he is shown in the birth certificate Exhibit- B to the plaint relied upon by him.
112. The evidence of P.W.9 the only witness who has been examined by any of the parties to the Suit knowing the family history, linage and Succession of the Haji, also shows the family member s of the Haji and specifies that Ju m m a n is not his son.
::: Downloaded on - 09/06/2013 14:20:49 ::: 71113. Mr. Almeida drew my attention specifically to the Death and the Birth Certificates Exhibits- A & B to the plaint in Suit No.3202 / 1 9 8 9 . The Death Certificate is issued on 28 th November 1986. The application for its issue was made on 27 th November 1986. The Birth Certificate shows the birth of Ju m m a n registered on 26 th November 1986, after the death of his alleged father and a day prior to his application for the death certificate of his father. Hence, though his birth is in 1964, it is registered in 1986 ! The Birth Certificate shows his father's name to be Haji Abdul Sattar S/o. Ali Mohamm a d and his mother's name to be " Mrs.Haji Abdul Sattar " . It is not known how the name of a female who was his wife was in such short supply that she was known by her husb a n d' s name.
114. Though his father is shown to have his perma ne n t address at Hasan Building, Bombay- 400 003, Ju m m a n' s perma ne n t address is shown to be Isaq Estate, Kismat Nagar, Marole Pipe Line Road, Andheri (East), Mumbai- 400 059. One wonders why the only son did not live at the same address as that of his father even when he registered his own birth.
115. His birth certificate is issued upon the birth report got produced by P.W.8 from the records of the Mumbai Municipal Corporation certified to be a true copy by Executive Health ::: Downloaded on - 09/06/2013 14:20:49 ::: 72 Officer. The application for the birth report is made on 26 th November 1986 (a day prior to Ju m m a n' s application for the death certificate of his father ). The particulars in the application is signed by him as Moham med Jum m a n in Hindi (as against his signat ure as Moham m a d Haji Abdul Sattar in Hindi on the application for the death certificate.). He has shown the names of his parent s as Haji Abdul Sattar S/o. Ali Moham m a d and Smt. Haji Abdul Sattar. His mother's name has otherwise never been revealed.
116. Upon such record, though outlandish on the face of it, the Builders have taken the effort to get produced other docume nt s of Ju m m a n . These are inter alia his ration card and his 2 passports. The ration card is particularly and peculiarly intrinsic. P.W.8 has got the ration card produced during his investigation of the criminal complaint. The ration card shows Ju m m a n ' s name to be Shaikh Ahmad Ju m m a n after which the words "Abdul Sattar" are added by way of correction. The ration card itself is issued on 7 th October 1986 (a month prior to the applications for birth and death certificates). It shows his address at Nizam Chawl, Pipe Line Road, Marol, Mumbai. One wonders why the only son of a wealthy father was constrai ned to live in a chawl. The ration card of Ju m m a n showing his name as Shaikh Ahmad Ju m m a n b h ai without the addition of the words "Abdul Sattar"
::: Downloaded on - 09/06/2013 14:20:49 ::: 73has also been produced by P.W.9 as a part of the record of the Tahasildar's office. Hence it is seen that these words have been added by way of corrections after the ration card was initially issued. The corrected ration card is not shown to be issued under the stamp of the relevant rationing office as the original ration card.
117. The birth certificate came to be issued upon the affidavit of Ju m m a n stating those facts. Based upon that affidavit the Tahasildar has simplicitor issued the Heirship Certificate. The affidavit of a party to the proceedings cannot be used as evidence on record. The party must examine himself and be available for cross examination. In the absence of that party his affidavit must fail. In the absence of his affidavit the Heirship Certificate issued by the Tahasildar must also fail.
Conseque n tly his claim as the sole heir of the Haji must fail.
118. Incidentally he has been issued 2 passports containing different information as to his name and ancestry, which need not be dissected.
119. Based upon the docume n t s relied upon by Ju m m a n , which are not tendered by him in evidence, his case of he being the only son of the Haji and the sole heir is not made out. In fact it is seen to be otherwise. Even the presu m p tion ::: Downloaded on - 09/06/2013 14:20:49 ::: 74 under Section 79 of the Evidence Act is rebutted. Hence, Issue No.1 5 in Suit No.10 5 6 / 1 9 8 7 and Issue Nos,1, 2 & 4 in Suit No.3202 / 1 9 8 9 are answered in the Negative . Issue No.5 in Suit No.3202 / 1 9 8 9 is answered in the Affirmative .
120. ISSUE NOS.12, 13 & 14 IN SUIT NO.105 6 / 1 9 8 7 . RE:
Possession, licence and the option to purcha se the Suit property by Koli:- Koli is Defenda nt No.6 in Suit No.1056 / 1 9 8 7 . He has sought to challenge the Plaintiff's title and accordingly the reliefs claimed by the Plaintiff.
121. His claim is that he is a fisherm a n. He claims to have been fishing on the Suit property since 1966 initially without the permission of the Haji at times when the sea water came upon the Suit land during monsoons and / o r at high tides. He claims fishing rights in the Suit property purs u a n t to a licence granted by the Haji to him on 30 th September 1968 under a writing executed by the Haji on that date. He further claims that he had an option to purcha se the said land as mentioned in the licence, which he exercised on 1 st September 1983 upon payment of part of the consideration for exercising the option on that date and upon payment of further installment s thereafter. He accordingly claims to be in actu al possession of the Suit property since 1966 when he intermittently started fishing thereon and in juridical possession of the Suit property ::: Downloaded on - 09/06/2013 14:20:49 ::: 75 from the date of the licence on 13 th September 1968.
122. His oral evidence is that he is Koli by birth and profession. His parents were in business of fishing and selling fish. He carried on the same business. He had 2 acres agricultu ral lands in Malwani adjacent to the Suit land on which he grew vegetables for a certain period of time. He has produced the 7 / 12 Extract of the said land as Exhibit- 24 . His mother had a licence of Mumbai Municipal Corporation for selling fish in Malad Fish Market. Hence he claims to be an agriculturist upon cultivating the said Guruc h a r a n land close to the Suit property. His oral evidence is that the Suit land was adjacent to a creek and half of the land was under water through out the year and in the Monsoon almost the entire land was under
the Sea water during high tides. When the fishing boats cannot go into the open Sea during the monsoon he used to fish in the suit land which was a kilometer away from his own agricult ur al land, which he cultivated. He started fishing since 1966- 67 upon which he claims possession of the Suit property since that time, which was prior to the licence when he obtained from the Haji to fish on the suit property.
123. He claims to have known the Haji upon the premise that he used to come to the Suit land once or twice a year and ::: Downloaded on - 09/06/2013 14:20:49 ::: 76 came to know about his fishing activity thereon. The Haji met him one day "while he was going to his land got down from the bus at Malwani and came to him" . After his personal knowledge of the Haji having got down from the bus to meet him, he has deposed that the Haji told him how he regretted purcha sing that land which was for investment without inspecting it and expecting it to be an agricultu ral land.
124. His further evidence is upon the Haji expressing his innermost thought s about the ownership of his property to him. He thought that he should legally do fishing on the land (which until then he did illegally and clandestinely without the permission of the owner of the land ) and so he approached the Haji and requested him to grant him licence to carry on fishing on the suit land. He approac hed the Haji in the middle of September 1968. He mentioned to the Haji the advantages of giving him the licence - that if the Haji agreed he could do fishing on the land, the land would be in his possession throughou t the year, he could carry on activities on the land and there would be no encroachm e n t on the land; (he alone would encroach upon the land). The Haji agreed to give him the said land and asked him to come after a week.
125. His further evidence shows how the Haji conversed with ::: Downloaded on - 09/06/2013 14:20:49 ::: 77 him after he agreed to give Koli the suit land and called him ........... He again went to him after a week and the Haji "opened up the topic with him that he was trapped in purcha sing the said land...". The Haji offered to sell him the land. However, he did not agree to purch a se the same immediately. He exercised caution. Ostensibly he only wanted to be in possession of the property, but did not want the ownership rights. He told the Haji that he would do business on the land for some years and thereafter, discus s with him about the purcha se.
ig But he was ready to take the land for fishing. Haji granted the licence to fish for 20 years at the rate of Rs.44 / - per mont h, the licence fees to be paid for 10 years in advance and after the expiry of 10 years also the licence fees of Rs.80 / - per month or more was to be paid in advance. He was permitted to catch fish, dry fish and keep fish net and fishing vessels on the land. The Haji allowed him to erect bunds , dig ditches and ponds and erect a shelter for fishing activities at his cost with an option to purcha se at the rate of Rs.2500 / - per acre.
126. His further evidence shows that he had not carried the money on the date of that meeting when the Haji had called him (when he "opened up the topic" of the regrettable purcha se ). The Haji called him once again after about one week during which time he would keep the agreement ready to ::: Downloaded on - 09/06/2013 14:20:49 ::: 78 be executed between them on the lines discus sed by the parties. He went to Haji's residence on 30 th September 1968.
He signed the agreement prepared by the Haji. He paid the Haji Rs.5280 / - in cash being the advance licence fees for 10 years. Haji signed the agreement in his presence and gave it to him. The Haji asked him to sign on a copy, which he gave the Haji. This is the pictorial, floral, vivid account of what is contained in the docume nt sought to be produced by direct oral evidence. Alas the docume n t does not bear the signat ure of Koli himself, though there is a provision for the same.
ig The
signatory of the docume nt has not deposed about the
aforesaid account of how the Haji got down from the bus, called him twice and prepared the agreement. Koli has sought to push into the evidence a docume nt signed by the party who has not deposed about the trut h of its contents. His evidence about the trut h of the content s of the docume nt executed by another party, therefore, remains at that. This documen t is, therefore, marked part of Y-1 (colly) for identification and remains unproved and unidentified by its maker / a u t h o r .
127. The signat u re of the Haji on this document has, however, been admitted and is marked part of Exhibit- 6 (colly) in evidence.
128. It must be appreciated that the agreement relied upon by ::: Downloaded on - 09/06/2013 14:20:49 ::: 79 Koli is of 30 th September 1968. The Haji is already seen to have expired by then. The Haji was undergoing treatme n t for Cancer month s prior to his demise. The Haji was not expected to travel by bus and otherwise to an admittedly regrettable land on that one day, the date of which is not mentioned. Mr. Pandey on behalf of Koli, has advisedly accepted that death certificate produced by Ju m m a n without demur though he has not accepted the claim of Ju m m a n at all. It is only thank s to the death certificate of Jum m a n that Koli has put forward has case of licence ig under the stamp paper dated 24 th September 1968, otherwise issued well after the death of the Haji.
129. Koli claims to have exercised the option to purcha se the suit land on 1 st September 1983. The option to purcha se is on a plain ledger paper stated to be signed by the Haji as well as him. Even that docume nt is marked part of Y-1 (colly) for identification; only the Haji's signat ur e is marked part of Exhibit- 6(colly) . Both these docume n t s have since not been identified and are accordingly not proved. The document s, therefore, cannot be read in evidence. The reliance upon the case of Om Prakash Berlia & Anr. Vs. Unit Trust of India & Ors. 198 3 Bombay 1 relied upon by Mr. Pandey himself shows that the trut h of the content s of the docume nt s not having been proved by the maker of the docume nt s, the ::: Downloaded on - 09/06/2013 14:20:49 ::: 80 docume nt cannot be stated to be proved and cannot be read in evidence.
130. Mr. Pandey contend s that the oral evidence of Koli by way of affidavit of examination- in- chief recited above proves the content s of the documen t. The contention is incorrect. The Haji could not have signed any document in September 1968, he having expired in May 1968. The stamp paper of the docume nt is not purcha sed by the Haji. It is purcha se d by Koli. Hence, the signat u re, though appearing to be very similar to that of the Haji's signat u re, and so admitted by P.W.1 in his cross examination also, could not have been put by the Haji. The contents of the docume nt executed by the Haji cannot be taken to have been proved by the life-like graphic portrayal of Koli. The licence to fish and the option to purcha se remain at that.
131. Koli has relied upon two receipts dated 1 st September 1984 and 1 st September 1985 also stated to be signed by the Haji showing payment of Rs.10,000 / - thereu n d er towards payment of some installment s upon exercising the option to purcha se. He claims that further amou n t s were not paid by him as the Haji expired in 1986. The right to receive amou n t is the heritable right. It survives to his heirs and legal represent atives. Further payment s, if any, could have been ::: Downloaded on - 09/06/2013 14:20:49 ::: 81 made to the heirs of Haji. However, he does not admit that Haji left any heirs. He challenges the claim by Hazarabai as well as Kulsum b ai or for that matter of Ju m m a n to the estate of Haji. It is argued on behalf of the Builders that at the rate of Rs.2500 / - per acre, Koli would be required to pay Rs.1,18,000 / - to the Haji as per the agreement set up by him.
Koli has paid only Rs.30,000 / - instead. Upon payment of Rs.30,000 / - therefore, he could not even otherwise claim to have purcha sed the suit land. Besides the Haji had gifted the land to Hazarabai well before and had divested himself of its title.
132. The oral evidence of Koli is therefore required to be appreciated in view of the agreement dated 30 th September 1986 part of Y-1(colly) in evidence. The agreement is on a stamp paper dated 24 th September 1986. The paper is issued in the name of one E.G.Koli from an Exchange at Malad, Bombay. If the evidence of Koli is to be tested for its credibility, it must be seen how it runs. The deposition shows that the Haji would rarely come to his land which was close to that of Koli. When he came on that day, deposed in paragrap h 7 of his evidence " after getting down from the bus at Malwani " and introd ucing himself, he had already lamented about the unprod uctive land. Somehow Koli had approached him. How he found out his address is not shown in the elaborate description of the meetings between the two. Koli ::: Downloaded on - 09/06/2013 14:20:49 ::: 82 had requested for the licence in the middle of September 1968.
The Haji had agreed to give the land to him. He had told him to come after a week. For some reason, it cannot be understood why, he again "opened the topic" about being trapped, which was not required. The Haji offered to sell him the land. The Haji granted the licence to him. Because he was not carrying the money, he was called again after one week. The Haji "would keep the agreement ready to be executed" on the lines discus sed between them. He went back to the Haji's residence on the date of the agreement.
ig The Haji had kept the agreement ready. Both signed.
133. There is no need or opportu nity for the agreement to be signed on a stamp paper issued in Malad in the name of Koli, if the Haji was to do everything and keep the agreement ready.
There is nothing in the elaborate story, complete with all details of the step by step incidents that happened which even remotely suggests that Koli was to bring the stamp paper and the Haji was to type the docume nt. It was only the Haji who was to do everything to get the documen t ready; he did all that. He is expected to have purcha sed the stamp paper himself. He would not purch a se the stamp paper from Malad where he would go to see his land on those rare occasions. He would not know any Exchange at Malad or any Stamp Vendor there. He would not purch ase the docume nt in the ::: Downloaded on - 09/06/2013 14:20:49 ::: 83 name of one E.G.Koli. Aside from the fact that this docume nt is now seen to be executed month s after the death of the Haji, it is the most importa n t evidence that gives a lie to the story spun by Koli. The docume nt is distinctly got up and fabricated by Koli on an stamp paper earlier purcha se d by one Koli who may have been his family member. This explains why Koli accepts the death certificate produced by Ju m m a n while he does not accept his claim or any other documen t.
Having got only the stamp paper issued on 24 th September, 1986, he has to accept Haji's death in 1986 and not before.
134. Such is the result of the appreciation of such a document which is not even proved by direct oral evidence and which remains to be identified and yet remains Y-1 for identification.
135. Mr. Pandey argued that the documen t s marked Y-1 (colly) in evidence are proved by direct evidence led by Koli of the circumst a n ce s under which the docume nt s came to be executed by the Haji. It may be mentioned that the length of the evidence, with all its embellishme n t s, cannot prove a docume nt. The circum s t a n ce s which made a party execute the documen t also cannot prove a docume nt. The evidence relating to the actual execution of the docume nt by its signatory is the only mode of proving a private documen t signed by a party. Documen t s such as Y-1(colly) marked for ::: Downloaded on - 09/06/2013 14:20:49 ::: 84 identification can only be identified by the author of the docume nt. It cannot be identified by a party putting up that docume nt against the author or his assignees or successors.
136. Mr. Pandey argued that it is only an error that Koli has not signed the agreement dated 30 th September 1968. A copy of the agreement has been signed by him and given to the Haji. Mr. Almeida drew my attention to the cross examination of Mr. Pandey calling upon the Builders to produce a copy of the agreement dated 30 th September ig 1968 and option to purcha se dated 1 st September 1983 being the docume nt s from amongst the docume nt s stated to have been handed over by Hazarabai or Kulsum bai to the Builders. He rightly argued that that gives away the case of Koli that Hazarabai was not his wife and Kulsumb ai was not the daughter of the Haji. It reflects on the non- admission of the other docume nt s of the Haji. Whatever that be, a copy of the agreement dated 30 th September 1968 signed by Koli would make no difference in considering the proof of the trut h of the contents of the docume nt dated 30 th September 1968 of which Koli is not the author. In fact even if it is signed by Koli in confirmation, the docume nt dated 30 th September 1968 could only have been proved in evidence as the document executed by the Haji. The reliance by Mr. Pandey upon the case of Omprakash Berlia & Anr. Vs. Unit Trust of India & Ors. 198 3 Bombay 1 makes ::: Downloaded on - 09/06/2013 14:20:49 ::: 85 this position absolutely clear.
137. In the case of Rajendra Pratap Singh Vs. Rames hwar Prasad AIR 19 9 9 SC 37, the effect of signing of a documen t by one or both the parties to an agreement came to be considered. That was a case of a lease. It was required to be a bilateral endeavour of a Lessor and a Lessee. It may be signed by one of them or by both. It has been observed in that judgment that:-
"Whet h e r both par t i e s have execu te d an instru m e n t will be a ques t ion of fact to be deter m i n e d on evidence if such a det er m i n a t i o n is warr a n t e d from the plea d i n g s of the part i c u l a r suit. Merely becau s e the docum e n t show s only the sign a t u r e of one of the par t ie s it is not enough to conclu de tha t the non- signing par t y has not joined in the execut ion of the instru m e n t .
138. The evidence in this case shows how the Haji executed the docume nt. The fact that Koli may have parrot like - reprod uced its contents from memory would make no difference. It is only for the Haji to state before the Court that he had executed the docume nt s marked Y-1(colly) for identification and to identify his signat ure. Mere signing the docume nt s by Koli who has relied upon them cannot prove the execution of the docume nt s by the Haji.
139. In view of the seminal documen t itself not standing the ::: Downloaded on - 09/06/2013 14:20:49 ::: 86 test of credibility, the later docume nt which is on a ledger paper upon which Koli claims to have exercised his option to purcha se by making payment of the first three installment s only hardly comes up for consideration.
140. This leaves the aspect of the two signat ure s of the Haji which have been identified by P.W.1 . P.W.1 is the partner of the Builders Firm. He had never met or seen the Haji. He could identify the signat ur e of Haji only upon he having seen the Haji's signat u re s on earlier docume nt s.
ig He has identified
the signat u re s in paragrap h 83 of his evidence. It would be
apt to consider how that evidence came to be recorded. The
witness was shown the Court Receiver's report Exhibit- P in evidence in paragrap h 81 of the evidence. He was asked questions on a letter addressed by Koli to the Court Receiver which was marked Y for identification and which has not been identified. Thereafter he was put questions with regard to poles and fencing put on the suit property in paragrap h 82 of the evidence. Immediately thereafter he was " shown a docume nt ". In fact those are the docume n t s marked Y-1 (colly) in evidence. Without reference to the content s of either of these docume nt s or any foundation for them, he was asked only to identify the signat u re s on the docume nt. He identified the signat ure s to be of the Haji. The signat u re s on the two docume nt s are similar and both are made with blue fountain ::: Downloaded on - 09/06/2013 14:20:49 ::: 87 pen. It would be worth seeing these docume nt s with the two additional receipts of Rs.10,000 / - each on two pieces of ledger paper. The signat ur es on all these docume nt s more specially the second documen t in Y-1(colly) being the option to purcha se and the two receipts of 1 st September 1984 and 1 st September 1985 are with the same pen.
141. These signat ures require to be compared with the admitted signat ure s of the Haji on the Conveyance dated 5th November 1960. A comparison of the two signat ures shows that the admitted signat ure of the Haji marked Exhibit- 9 on the first page of the Conveyance is rather different from these signat u re s. The signat u re s are made showing the name Haji Abdul Sattar Ali Moham me d. Hence upon a signat ure being shown in "a docume nt" the witness would consider the general getup of the signat ur e and not its analytical comparison (which a Court is required to do by placing two signat u re s side by side under Section 73 of the Evidence Act). The identification by P.W.1 of the Haji's signat u re " on a docume nt "
thru st upon him in the midst of evidence with regard to a completely different matter, therefore, hardly enures for the benefit of Koli. The witness who has never witnessed the signat u re of a signatory identifying the signat u re can only show broadly that he has not simplicitor denied the signat ure without applying his mind.::: Downloaded on - 09/06/2013 14:20:49 ::: 88
142. It is the circumst a n ti al evidence which is required to be considered. It is such circum st a n tial evidence which calls the bluff of Koli. Four signat ures similarly signed, two of which are shown at a time to the witness has resulted in the witness being beguiled by calligraphy. Even marking the said two signat u re s as Exhibit- 6 (colly) in evidence, therefore, does not go far. The entire docume nt remains to be marked and exhibited for want of proof. These signat ure s have only to be analysed to bring the latent fraud on surface. The agreement dated 30 th September 1968 is unmista k a bly a forged and fabricated documen t. It cannot give any rights to Koli. The same holds for his offer to purcha se the land dated 1st September 1983, 15 years after the death of the Haji. Similar are the two receipts executed in the two succeeding years.
143. What is important to note is that though Koli claims juridical possession under the agreement dated 30 th September 1968 and claims to have been fishing on the suit land even prior to that agreement, there is not a single overt act shown by Koli even remotely suggesting his possession over the entire land. There are no entries in the record to rights with regard to the use of the Suit land as sought to be shown in respect of his neighbouring guruch a r a n land where he is shown to be growing vegetables though in the year 1964- ::: Downloaded on - 09/06/2013 14:20:49 ::: 89 65 only which has been entered into Revenue records by a pencil entry. and marked Exhibit- 24 in evidence. Mr. Pandey took pains to explain the pencil entries in the 7 / 1 2 Extract of the neighbouring land standing in the name of Koli. He explained that in the year 1964- 65 Koli cultivated the said land by growing vegetables. This is in addition to the land being shown as guruch a r a n land in that year also. When Koli started fishing on the Suit land, he discontin ued growing vegetables on the adjacent land. Mr. Pandey would have the Court believe that each of those 2 mighty activities, would cons u me the entire time of Koli that it would have been impossible for Koli to carry on both these activities at the same time, so that the intrinsic evidence shows vegetable cultivation in the year 1964- 65 which was discontin ue d when fishing started on the Suit land ! What work did Koli do before 1964 ? A single pencil entry for a single year in the adjacent land has nothing to do with the Suit land.
144. Similar evidence, which is conspicuou s by its absence, is the 7 / 12 extract of the Suit land showing the possession of Koli. If Koli had the explainable record of one land, he would be expected to obtain such record of the other land too. He would be expected to have similar entries made showing the non- agricult ur al fishing activities in respect of his possession of the Suit land also. There are no documen t s whatsoever ::: Downloaded on - 09/06/2013 14:20:49 ::: 90 produced by Koli in respect of the suit land from 1960s until the filing of the Suit or making his claim before the Tahasildar. In fact, the 7 / 12 extract of the Suit land is amongst the docume nt s got produced by the builders as Exhibit- U 20 in evidence amongst the docume nt s handed over by Kulsum bai to them at the time of the execution of the Agreement for Sale.
Though all those docume nt s cannot be and are not read in evidence, without proof of their execution by direct oral evidence, the 7/ 1 2 extract of the land agreed to be sold can be read in evidence as a certified copy of public record carrying the presu m p tion of its correctness. The 7 / 1 2 Extract, marked Exhibit- U 20 does not show any reference of Koli. The spurious documen t s fabricated and sought to be pushed into evidence upon the tall claim by a long story remain at that.
They are unproved. No claim can be based thereon as is sought to be made by Koli. The possession of Koli in the Suit land is not shown. The licence is not proved. The option to purcha se is also not proved. Hence, Issue Nos.12, 1 3 & 14 in Suit No.1056 / 1 9 8 7 are answered in the Negative .
145. ISSUE NO.6 IN SUIT NO.320 2 / 1 9 8 9 :
RE : Ownership of the suit land : It is the admitted position that the Haji was the owner of the suit land. The issue need not be answered and except for clarifying that the Haji was not the Plaintiff's father in Suit No.3202 / 1 9 8 9 .::: Downloaded on - 09/06/2013 14:20:49 ::: 91
146. ISSUE NO.8 IN SUIT NO.320 2 / 1 9 8 9 . :
RE :- The Conveyance as "Amanat" : It is Jum m a n' s case that the Haji entru s ted Hazarabai and Kulsu mb ai with the original Conveyance as "Amanat". This is a matter of oral evidence. How, where and when the custody was given would be required to be seen. Since Ju m m a n has not examined himself this issue is not proved. Hence, issue No.8 is answered in the Negative .
147. ISSUE NO.9 IN SUIT NO.320 2 / 1 9 8 9 :
RE :-Threats.
The Jum m a n has alleged that the Defenda nt s administered threats to him. That is also not proved by direct oral evidence.
Hence, issue No.9 is answered in the Negative .
148. ISSUE NO.11 IN SUIT NO.320 2 / 1 9 8 9 : RE : Jum m a n' s ownership on the Suit land. Ju m m a n has not led any oral evidence. Ju m m a n' s docume nt of birth is seen to be false and fabricated. He has not shown that he is the heir of the Haji.
He has not been conveyed the suit property. Hence, issue No.1 1 is answered in the Negative .
149. ISSUE NO.14 IN SUIT NO.320 2 / 1 9 8 9 :
::: Downloaded on - 09/06/2013 14:20:49 ::: 92RE :- Limitation : Ju m m a n claims to be the only son of the Haji. He has himself claimed that the Haji expired on 2 nd May 1986. He claims as the sole heir of the Haji. He, therefore, claims the Haji's estate. He has made no claim to obtain the estate within 3 years of the death of the Haji as known to him. However, he claims his rights in the Suit property upon the challenge thereto purs u a n t to the Consent Decree dated 17 th August 1982 in Suit No.1093 / 1 9 8 2 . His Suit is not filed within 3 years of the Consent Decree also. There is no averment in the plaint regarding the suit not being barred by the law of limitation. Though Jum m a n claims to have known about the challenge to his claim upon the filing of the Suit No.1056 / 1 9 8 7 when he was served in September 1988, his claim relating to the threats administered upon him show his knowledge of the suit prior to the service of sum mon s upon him.
150. However his claim in the Suit is upon Aziz Moosa claiming to be the nephew of the Haji in about April 1987. He claims to have obtained knowledge of the Consent Decree passed in Suit No.1093 / 1 9 8 2 only in and after April 1987. Hence, Issue No.1 4 in Suit No.3202 / 1 9 8 9 is answered in the Negative .
151. ISSUE NO.15 IN SUIT NO.320 2 / 1 9 8 9 :
RE : Valuation of the Suit : Ju m m a n has valued the Suit at ::: Downloaded on - 09/06/2013 14:20:49 ::: 93 Rs.50,100 / - upon the premise that the Suit property is under " No Development Zone " . The said claim is wholly arbitrary and not under any rules relating to payment of Court Fees.
Ju m m a n has failed to show that Suit property is under " No Development Zone " or that it can be valued as such.
The Suit property is required to be valued at the market rate of the property as in 1989. That having not been done, the plaint itself would deserve rejection under Order VII Rule 11 of the C.P.C . Issue ig No.15 in Suit No.3202 / 1 9 8 9 is answered in the Affirmative .
152. ISSUE NO.16 IN SUIT NO.105 6 / 1 9 8 7 AND ISSUE NO.20 IN SUIT NO.32 0 2 / 1 9 8 9 : RE : Reliefs : The Builders have proved their title to the suit property. They have shown their juridical possession and are entitled to continue in possession of the suit property. They are entitled to develop the suit property.
153. Koli has not shown grant of fishing rights in respect of the suit property or the exercise of option to purcha se the Suit property by him for consideration. Koli is not entitled to enter into or remain upon the suit property or use or occupy the suit property for any purpose and in any man ner.
::: Downloaded on - 09/06/2013 14:20:50 ::: 94154. Jum m a n has only shown a frivolous suit filed by him without showing any relationship with the Haji. Jum m a n has not valued his suit correctly. His plaint itself deserves to be rejected for want of proper valuation. He is not entitled to obtain any reliefs in respect of the suit property. Hence, the following order:
ORDER
1. The Suit No.1056 / 1 9 8 7 is decreed in terms of prayers (a) and (b).
2. M.J. Builders are declared to be the sole and absolute owners of the suit property being land on CTS No.2, Survey No.44, situated at Dhara uli Village, Malwani, Malad, Mumbai admea s u ri ng 53 acres and 30 gunth a s described in Exhibit- A to the Plaint.
3. It is further declared that none of the Defenda nt s has any right, title or interest in respect of the suit property.
4. The Defenda nt s in Suit No.1056 / 1 9 8 7 are restrained from interfering with the possession of M.J. Builders or disturb their possession or entering upon the suit property or any part thereof.::: Downloaded on - 09/06/2013 14:20:50 ::: 95
5. The Plaint in Suit No.3202 / 1 9 8 9 deserves to be rejected under the provisions of Order VII Rule 11 of the C.P.C for want of proper valuation. However, since the entire evidence is led, the suit itself is dismissed with costs fixed at Rs.25,000 / - .
6. The Plaintiff in Suit No.3202 / 1 9 8 9 shall pay the Court Fees based upon the valuation of the suit property put by the Builders being M.J. Builders as Plaintiffs in Suit No.1056 / 1 9 8 7 .
(SMT. ROSHAN DALVI, J.) ::: Downloaded on - 09/06/2013 14:20:50 :::