Gujarat High Court
Akbarbhai Kesarbhai Sipai vs Mohanbhai Ambabhai Patel Since Decd. ... on 12 July, 2019
Equivalent citations: AIRONLINE 2019 GUJ 786
Author: J. B. Pardiwala
Bench: J.B.Pardiwala
C/SA/183/2014 CAV JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SECOND APPEAL NO. 183 of 2014
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE J.B.PARDIWALA Sd/-
==========================================================
1 Whether Reporters of Local Papers may be allowed to Yes
see the judgment ?
2 To be referred to the Reporter or not ? Yes
3 Whether their Lordships wish to see the fair copy of the No
judgment ?
4 Whether this case involves a substantial question of law No
as to the interpretation of the Constitution of India or any
order made thereunder ?
Circulate this judgment in the subordinate judiciary.
==========================================================
AKBARBHAI KESARBHAI SIPAI & 2 other(s)
Versus
MOHANBHAI AMBABHAI PATEL SINCE DECD. THRO HIS HEIRS & 4
other(s)
==========================================================
Appearance:
MR HRIDAY BUCH LD. COUNSEL with MR. ANSHIN DESAI, LD. SR.
COUNSEL for the Appellant(s) No. 1,2,3
MR. D.C. DAVE, LD. SR. COUNSEL with MR. DHRUVIN P BHUPTANI(8295)
for the Respondent(s) No. 1.1,1.2,1.3,1.4,1.5,1.6,1.7
MR. YOGESH LAKHANI, LD. SR. COUNSEL with MR K S
CHANDRANI(6674) for the Respondent(s) No. 2,2.1,2.2
RULE SERVED(64) for the Respondent(s) No. 3,4,5
==========================================================
CORAM: HONOURABLE MR.JUSTICE J.B.PARDIWALA
Date : 12/07/2019
CAV JUDGMENT
Page 1 of 160
Downloaded on : Sat Jul 13 03:18:56 IST 2019
C/SA/183/2014 CAV JUDGMENT
1. This second appeal under section 100 of the CPC, 1908 (for short "the CPC") is at the instance of the original plaintiffs and is directed against the judgment and order dated 31st May, 2014 passed by the 11th Addl. District Judge, Rajkot in the Regular Civil Appeal No.100 of 2011 by which the lower appellate court dismissed the appeal preferred by the appellants herein thereby affirming the judgment and decree passed by the 7th Addl. Senior Civil Judge, Rajkot dated 19th November, 2011 in the Regular Civil Suit No.665 of 1994, dismissing the suit filed by the appellants herein for declaration and permanent injunction.
2. For the sake of convenience, the appellants herein shall be referred to as the original plaintiffs and the respondents herein shall be referred to as the original defendants.
3. One important aspect that needs to be noted is that the present second appeal has been filed by the original plaintiffs through their power of attorney holder, namely, Shri Naranbhai Jadavbhai Lalakiya.
4. The case of the plaintiffs:-
4.1 The dispute pertains to the immovable property bearing Survey No.11 Paiki, situated at village Vavdi, District: Rajkot, admeasuring 8 Acres. One Kesar Sultan Sipai was the owner of the suit property. The plaintiffs claim to be the heirs and legal representatives of late Kesar Sultan Sipai. It is their case that they inherited the suit land and have been carrying on agricultural activity and are in possession of the suit land.
Their names came to be mutated in the revenue records vide Page 2 of 160 Downloaded on : Sat Jul 13 03:18:56 IST 2019 C/SA/183/2014 CAV JUDGMENT Entry No.817 dated 2nd January, 1984.
4.2 The plaintiffs instituted the Regular Civil Suit No.665/1994 for declaration and permanent injunction as they came to know that the defendants Nos.1 and 2 had put forward their claim to be the lawful owners of the suit land by virtue of a sale deed executed by the predecessor in title of the plaintiffs dated 25th February, 1965. The plaintiffs came to know that the sale deed was presented for registration after a period of about 11 months, i.e., on 25th January, 1966 in the office of the Sub-Registrar. It is the case of the plaintiffs that the sale deed dated 25th February, 1965, purported to have been executed by the predecessor in title of the plaintiffs in favour of the defendants Nos.1 and 2 and which came to be registered in the office of the Sub-Registrar on 25th January, 1966, is sham and bogus. According to the case of the plaintiffs, no such sale deed was ever executed by Kesar Sultan Sipai in favour of the defendants Nos.1 and 2. The plaintiffs disputed the contents of the sale deed as well as the valid execution of the same in the suit instituted by them in the Civil Court.
4.3 It is also the case of the plaintiffs that a deed of rectification allegedly executed by late Kesar Sultan Sipai for and on behalf of the plaintiffs is also illegal as the plaintiffs were minor at the relevant point of time. The purported deed of rectification is dated 16th September, 1967. Both these deeds, i.e, the sale deed as well as the rectification deed are on record as exhibits-140 and 141 respectively.
4.4 It is also the case of the plaintiffs that although the sale Page 3 of 160 Downloaded on : Sat Jul 13 03:18:56 IST 2019 C/SA/183/2014 CAV JUDGMENT deed and the rectification deed might have been executed by late Kesar Sultan Sipai in favour of the defendants Nos.1 and 2, yet, the sale deed never came to be acted upon or implemented. The plaintiffs have been in possession of the suit land all through out. According to the plaintiffs, for the first time, the defendants Nos.1 and 2 asserted their right, title and interest over the land on 26th April, 1991, i.e, after a period of 26 years from the date of execution of the sale deed.
4.5 It is the case of the plaintiffs that Kesar Sultan Sipai passed away on 17th December, 1983. The names of the plaintiffs came to be mutated in the revenue records vide revenue entry No.817 dated 2nd January, 1984. For the period between 1963-64 and 1983-84, the name of Kesar Sultan Sipai continued to figure in the revenue records, and at no point of time, the two documents, i.e, Exh.140 and the rectification deed, Exh.141, came on the revenue record. It is also the case of the plaintiffs that a notice under section 8(1) of the Urban Land Ceiling Act was served upon them in the name of Kesar Sultan Sipai. The notice is dated 9th October, 1988. The plaintiffs lodged their objections to the said notice, and on 28 th November, 1988, an opportunity of hearing was also given to the plaintiffs by the authorities under the provisions of the Urban Land Ceiling Act.
4.6 It is the case of the plaintiffs that on the same date, i.e., 28th November, 1988, upon the information conveyed to the competent authority under the Land Ceiling Act as regards the death of Kesar Sultan Sipai, a further notice under section 8(3) of the Act came to be issued to the plaintiffs, to which, the plaintiffs replied in accordance with law.
Page 4 of 160 Downloaded on : Sat Jul 13 03:18:56 IST 2019 C/SA/183/2014 CAV JUDGMENT4.7 The plaintiffs also preferred an application under section 20 of the Urban Land Ceiling Act to the State Government claiming exemption from the provisions of the Act.
4.8 According to the case of the plaintiffs, the defendants Nos.1 and 2, for the first time, approached the revenue authorities for mutation of their names on the strength of the sale deed Exh.140 dated 25th February, 1965 and the rectification deed Exh.141 dated 16th September, 1967, i.e. almost after a period of 26 years.
4.9 It is the case of the plaintiffs that such developments and events came as a shock to them, more particularly, when they received the notice under section 135(D) of the Bombay Land Revenue Code. The plaintiffs appeared before the revenue authority and lodged their objections dated 10th June, 1991. The lodging of the objections culminated in the Disputed Case No.3 of 1991 in the office of the Mamlatdar, Rajkot.
4.10 The Mamlatdar, Rajkot, vide order dated 25th May, 1992, rejected the objections of the plaintiffs and certified the Entry No.1229 in favour of the defendants Nos.1 and 2.
4.11 The plaintiffs, thereafter, preferred an appeal before the Assistant Collector, Rajkot under the provisions of the Bombay Land Revenue Code, challenging the order passed by the Mamlatdar, Rajkot dated 25th May, 1992. The appeal preferred by the plaintiffs came to be partly allowed. The order, certifying the entry No.1229, came to be quashed by the Assistant Collector, Rajkot with a direction that part of the land Page 5 of 160 Downloaded on : Sat Jul 13 03:18:56 IST 2019 C/SA/183/2014 CAV JUDGMENT in question had been declared as excess under the provision of the Urban Land Ceiling Act and the same was liable to be forfeited to the State Government.
4.12 Ultimately, the plaintiffs thought fit to institute the Regular Civil Suit No. 665 of 1994 with a prayer to declare the sale deed, Exh.140 dated 25th February, 1965 and the rectification deed Exh.141 dated 16th September, 1967 as sham and bogus and not binding to the plaintiffs in any manner. The plaintiffs prayed for permanent injunction on the ground that they were in possession of the land from day one.
5. The case of the defendants Nos.1 and 2:-
5.1 The defendants Nos.1 and 2, on receipt of the summons issued by the Civil Court appeared and filed their written statement, Exh.12, opposing the regular civil suit filed by the plaintiffs. The defendants Nos.1 and 2 denied all the allegations levelled by the plaintiffs in the plaint and asserted that they are the lawful owners of the suit land by virtue of the sale deed dated 25th February, 1965, Exh.140. It is the case of the defendants that the plaintiffs had no cause of action to institute the suit. The defendants also took the plea that the suit was barred by the period of limitation. According to the defendants, the plaintiffs could not have preferred the suit in the year 1994 for cancellation of a sale deed of the year 1965.
The defendants also denied that the plaintiffs were in possession of the suit land. It is the case of the defendants that the suit land is not ancestral and, therefore, the plaintiffs cannot claim any right, title or interest through Kesar Sultan Sipai. It is also the case of the defendants that the father of the Page 6 of 160 Downloaded on : Sat Jul 13 03:18:56 IST 2019 C/SA/183/2014 CAV JUDGMENT defendants Nos.1 and 1/2 namely Bhikhalal Ramjibhai Patel had purchased the land in question from the father of the plaintiffs, namely, Kesar Sultan Sipai vide registered sale deed dated 25th February, 1965 by paying the full consideration, and since then, they are in possession of the land in question and carrying on agricultural work on the same. It is further the case of the defendants that said Bhikhalal Ramjibhai passed away in the year 1982. The defendants Nos. 2/1 and 2/2 are the legal heirs of said Bhikhalal Ramjibhai. It is the case of the defendants that over and above the defendants Nos.2/1 and 2/2, there are other legal heirs too of Bhikhalal Ramji. Although, they are the necessary parties, yet, they have not been joined as the defendants in the suit and, therefore, they prayed before the Civil Court that the suit is liable to be dismissed on the ground of nonjoinder of necessary parties. The defendants also took the plea that they purchased the land in question in the year 1965 and at that time, the procedure for change in tenure of the said land into residential purpose was pending before the office of the competent authority. Therefore, Sipai Kesar Suatan made the measurement of the land on 25/02/65 and he executed the agreement on the Stamp Paper of Rs.3.50/- by affixing his thumb impression stating that, if the land size would vary, the amount of Rs.2265/- per acre shall be paid towards the variation. It is the case of the defendants that as the land in question was in their possession since 25/02/65, an application was made for registering the land in the revenue record. Late Kesar Sultan Sipai had put his thumb impression for deleting his name from the land and the defendant No.1 and Bhikhalal Ramjibhai had also put their signatures. According to the defendants Nos.1 and 2, after Kesar Sultan Sipai & others Page 7 of 160 Downloaded on : Sat Jul 13 03:18:56 IST 2019 C/SA/183/2014 CAV JUDGMENT executed the deed in their favour on 25/02/65, they also made rectifications through the registered deed No.1201 dated:
10/04/67 for completing the process of the change of tenure of this land. Moreover, one of the defendants, namely, Mohan Ambabhai made declaration of 8-acre-00-guntha land in total 6(1) 1217 and 1976 in Form No.11 in respect of holding of his urban land under the Land Ceiling Act. It is the case of the defendants that the procedure under the Land Ceiling Act is still pending in respect of the land in question. It is their case that after the defendants purchased this land on 25/2/1965, one of the sellers, namely, Kesar Sultan Sipai had, by putting his thumb impression, made an application to the Mamlatdar, Rajkot Taluka, praying to delete his name in respect of the said land and to transfer it in their name. Thereafter, they did not initiate any procedure for mutation in the revenue records relating to change in the name as they trusted and relied upon the words of Kesar Sultan Sipai.. It is the case of the defendants that by taking disadvantage of the same, after the death of Kesar Sultan Sipai, his heirs objected to the mutation of names in the revenue record and strongly asserted that the suit land had never been sold to the defendants.. The defendants took the plea that the names of the plaintiffs in the revenue record, by itself, would not confer any valid title over the property. According to the defendants even if at the relevant point of time, their names were not mutated in the revenue record, that by itself, would not extinguish their title based on a valid sale deed.
5.2 It is also the case of the defendants that upon inquiry with the concerned Revenue Office, it was revealed that in the year 1991, vide application dated 26/4/1991, they got Entry Page 8 of 160 Downloaded on : Sat Jul 13 03:18:56 IST 2019 C/SA/183/2014 CAV JUDGMENT No. 1229 mutated in the record of rights of Vavdi village, against which, the plaintiffs raised bogus objections which led to registration of the Disputed Case No. 3/1991 at the Office of the Mamlatdar, Rajkot Taluka. The Mamlatdar rejected the objections raised by the plaintiffs and passed an order to mutate a revenue entry in respect of the said land in their favour. The plaintiffs preferred Appeal No.50/92 against the same before the Assistant Collector, Rajkot, and after hearing the parties, the Assistant Collector, by an order dated 28th March, 1994, confirmed the revenue entry of the land in their favour. It is the case of the defendants Nos.1 and 2 that as the said land was converted into non-agricultural purpose in the year 1966, an order was passed as regards recovery of the agriculture cess from the year 1967 onwards and also to confirm the entry of the said land in the revenue records.. The appeal was dismissed by the Asst. Collector by rejecting the other contentions of the plaintiffs. The plaintiffs, thereafter, preferred the revision application against the said order before the District Collector, which is pending. It is further the case of the defendants Nos.1 and 2 that they have also preferred the revision before the District Collector on 13/04/1994 against several directions issued by the Assistant Collector in Appeal No.50/92, which is also pending. Thus, the revenue record, on which, the plaintiffs are relying upon, does not exist as per law.
It is also the case of the defendants that the land bearing Survey No.11 of Vavdi was handed over to them by the plaintiffs by a Registered Sale Deed dated 25/01/1966 and the said land has been converted into non-agricultural use for residential purpose by the Rajkot District Panchayat vide Revenue Binkheti No.200, dated 11/07/1965 and the plaintiffs have sold the said land admeasuring Acre-08, Gunthas-00 to Page 9 of 160 Downloaded on : Sat Jul 13 03:18:56 IST 2019 C/SA/183/2014 CAV JUDGMENT them. The said sale was confirmed by the Taluka Mamlatdar, Rajkot and the same was further affirmed by the Assistant Collector, Rajkot in the revenue appeal. The said land has been converted into non-agricultural land, but, as the said land falls within the provisions of the Ceiling Act and such cases are not yet disposed of, they are cultivating this non-agricultural land and particulars of the agricultural land are mentioned therein. As previous entry is not recorded in the revenue office in their names, the names of the plaintiffs are reflecting falsely in the revenue records. It was prayed that as the suit of the plaintiffs is false, frivolous and vexatious, the same may be dismissed with costs in favour of the defendants.
6. Having regard to the pleadings of the parties, the Civil Court framed the following issues vide Exh. 30:
"(1) Whether the plaintiffs proved that the suit property is of their ownership and they are in possession of the same?
(2) Whether the plaintiffs proved that the document executed in favour of the defendants Nos.1 and 2 is illegal, bogus and forged?
(3) Whether the plaintiffs proved that on the basis of the adverse possession,they are the owner of the suit property?
(4) Whether the plaintiffs proved that the suit property does not fall within the ULC Act?
(5) Whether the defendants Nos.1 and 2 proved that the suit of the plaintiffs is barred by limitation?
(6) Whether the plaintiffs are entitled to get the relief sought for by them?
(7) What order and decree?"Page 10 of 160 Downloaded on : Sat Jul 13 03:18:56 IST 2019 C/SA/183/2014 CAV JUDGMENT
7. The aforesaid issues framed by the Civil Court vide Exh.30, came to be answered accordingly:
"(1) In the negative
(2) in the negative
(3) In the negative
(4) In the affirmative
(5) In the affirmative
(6) In the negative
(7) As per the final order"
8. The Civil Court, upon appreciation of the oral as well as the documentary evidence led by both the sides, ultimately, dismissed the suit preferred by the plaintiffs holding that the defendants Nos.1 and 2 are the lawful owners of the suit land and the defendants have been able to prove the valid execution of the sale deed in question in their favour in accordance with law.
9. The concluding observations made by the Civil Court in its judgment read thus:
"Considering the documentary evidences produced before the court, depositions on oath and different statements submitted by both the parties, the facts appear clear that Kesar Sultan Sipahi, father of the plaintiffs and his sons have executed a Sale Deed at Sr. no. 364, on 25/01/1966, in favour of the defendants which is legally registered at the Sub-registrar office on 20/08/1966. Thereafter, the amendment deed, Sr. no. 1201, had been produced on 10/04/1967. Both these documents are signed by Kesar Sultan Sipahi, the father of the plaintiffs and his adult sons. After signing, they had given their thumb impressions in the thumb-impression book. In his deposition at Exhibit No. 152, the clerk at the Sub-registrar office has corroborated these facts. Therefore, the plaintiff have failed in proving that these documents are bogus. The claim is even barred by Page 11 of 160 Downloaded on : Sat Jul 13 03:18:56 IST 2019 C/SA/183/2014 CAV JUDGMENT limitation. The plaintiffs and the witness of the plaintiff do not have legal possession on this disputed land and probably, even if there is possession over some part, it is clearly assumed that it is illegal and done forcibly. Considering all documentary evidences, cross examinations of the plaintiffs and their witnesses and examinations in chief and cross examinations of the defendants, the entry no. 817 recorded in the name of the plaintiffs for succession, was made keeping the defendants in dark. On the basis of that entry, it is clearly evident that the plaintiffs in collusion with the witness Naranbhai Jadhavbhai Lalkiya have conspired to take the land back though it has been sold off once. The legal proceedings resorted by plaintiffs and their witness, Shri Lalkiya to acquire back the disputed land once sold, are liable to be deprecated. It is not proper that people go to this level for money and property in the present era. Such illegal occupants and their attempts for wrongfully acquiring lands of others resorting to the ways of law are to be condemned. Hence, looking at the whole documentary evidence, plaintiffs are not entitled to any relief. This court humbly accepts the principles established in the judgments of superior courts. But comparing the documentary and oral evidences with the law produced before this court. The fact that plaintiffs' father Kesar Sultan have sold this land to defendants, is clearly proved. As regards the fact, that the documents are forged, concocted and prepared by obtaining signatures of other person, is not proved at all. The plaintiffs are not entitled to any relief. Therefore, I answer point number 6 in negative and hold that, the suit of the plaintiffs is liable to be rejected. Moreover, the Learned Advocate of the respondent Shri Budhhdev has demanded punishment to the plaintiffs under contempt of court. But considering all the documentary evidences, the plaintiffs have given possession in written to their witness Naranbhai Jadavbhai Lalakiya through power of attorney at Exh. 124 but, this kind of transfer of the possession can not be considered as a legal transaction, unless the sale deed has been executed and registered. It is merely a part of the transaction. Moreover, no evidence with respect to contempt is produced. Therefore, it is considered, not to punish the plaintiffs under the contempt. Therefore, as it is not found just and proper to take any action under the contempt act, below order is passed in respect of issue no-7 in the interest of Page 12 of 160 Downloaded on : Sat Jul 13 03:18:56 IST 2019 C/SA/183/2014 CAV JUDGMENT justice."
10. The plaintiffs, being dissatisfied with the judgment and decree passed by the Civil Court, dismissing the suit, preferred the Regular Civil Appeal No.100 of 2011 in the Court of the District Judge at Rajkot. The Lower Appellate Court, upon re-appreciation of the oral as well as the documentary evidence, dismissed the appeal preferred by the plaintiffs and thereby affirmed the judgment and decree passed by the Civil Court, dismissing the suit. The Lower Appellate Court, in its judgment, observed as under:
"23) As per the above stated discussion from the documentary as well as oral evidence before the Trial Court, the Respondents were successful in proving the execution of the Sale Deed. The Appellants have failed to prove possession over the disputed property as the execution of the Sale Deed has proved the transfer of possession to the Respondents. The Appellants were not successful in proving that the Sale Deed was illegal and bogus. On the contrary, the Respondents had proved the execution of the sale deed by producing secondary evidence. The Appellants had also not proved the adverse possession over the suit property because asper the discussion made herein before and according to the evidence produced before the Trial Court, it was proved that the possession was handed over to the Respondents.
Therefore, the Trial Court had not erred in arriving at the conclusion that the Appellants had no possession and therefore, the Issues No.1 to 3 were not proved by the Appellants. Therefore, the judgment and decree passed by the Trial Court cannot be interfered with by this Court. In view of the above said discussion, the detailed arguments advanced by the Ld. Advocate Mr. J.N. Doshi are dealt with substantially and some points of the arguments are not required to be dealt in detail because they are required to be dealt with in detailed only if this Court had believed that the Trial Court had falsely placed the burden of proving issue No.2 or other issues on the Appellants and also that the secondary evidence Page 13 of 160 Downloaded on : Sat Jul 13 03:18:56 IST 2019 C/SA/183/2014 CAV JUDGMENT was falsely permitted by the Trial Court.
24. As per the above stated discussion, this Court is of the view that the Trial Court had rightly placed the burden of proof on the Plaintiffs-Appellants and the Trial Court had also rightly permitted Ex.140, 141, 154 and 155 as secondary evidence. The Trial Court had not erred in treating Exh.154 and 155 because, the execution was legally proved by the employee of the Sub-Registrar office, Rajkot by producing the Government record and the said employee has no bias against any party. The Trial Court had rightly relied upon Ex.157 and 158 and has not overlooked any provisions of Law and the facts. Original Sale-Deed was proved by the secondary evidence and by oral evidence of Akbarbhai and Respondents also. Therefore, this Court is of the view that the Trial Court had not erred in passing the judgment and decree and Trial Court has passed the same in accordance with law and facts. The Judgment and Decree passed by the Trial Court is not suffering from any infirmity. It is not against the settled principle of Law. It is also not against the natural justice. Judgment and decree of the Trial Court cannot be interfered with, as per above stated discussion because, the Trial Court has rightly appreciated Law as well as the facts on the basis of oral as well as documentary evidence produced before the Trial Court. Therefore, reply to Issue No.1 and 2 are in the negative."
11. Being dissatisfied with the judgment and order passed by the Lower Appellate Court, dismissing the appeal, the original plaintiffs, through their power of attorney holder, are here before this Court with the present second appeal under section 100 of the CPC.
12. This second appeal has been admitted on the following substantial questions of law:
"(A) Whether the documents at Exhibit-140 dated 25.02.1965 and Exh. 141 dated 16.09.1967 can be said to be proved at all under the provisions of the Indian Page 14 of 160 Downloaded on : Sat Jul 13 03:18:56 IST 2019 C/SA/183/2014 CAV JUDGMENT Evidence Act?
(B) Whether the documents at Exh. 140 dated 25.02.1965 and Exh. 141 dated 16.09.1967 can be relied upon as Secondary Evidence under Section 63 of the Indian Evidence Act?
(C ) Whether the documents at Exh.140 dated 25.021965 and Exh.141 dated 16.09.1967 can be said to be document of transfer in absence of contents and considerations having been proved?
(D) Whether the learned Courts below have materially erred in law in not appreciating the legal contention that mere registration of document is not a proof of its execution?
(E) Whether the learned Courts below have materially erred in law in not deciding the issue of possessionn in favour of the plaintiffs-appellants despite voluminouss documentary evidence on record and none produced much less proved by the respondents defendants by any documentary or oral evidence?
(F) Whether the learned Courts below have materially erred in law and in facts in not accepting the contention of appellants original plaintiffs that documents Exh.140 and Exh. 141 cannot be said to have been proved in the facts of the case in view of the glaring infirmities, in view of Sections 71 and 101 of the Evidence Act?
(G) Whether under the provisions of Section-23 of the Registration Act, a document of sale, transfer can be registered after a period of four months from the date of execution?
(H) Whether the property could have been sold in absence of consent of two minors and without consent and approval of the learned District Court?"
13. It appears that a Civil Application No.9234 of 2014 was also filed by the plaintiffs, seeking interim relief pending the final disposal of the second appeal. The civil application came to be disposed of by a Coordinate Bench vide order dated 25th Page 15 of 160 Downloaded on : Sat Jul 13 03:18:56 IST 2019 C/SA/183/2014 CAV JUDGMENT March, 2015. The order reads thus:
"1 Rule. Mr. Rutivij Oza, learned APP, waives service of notice of Rule on behalf of the respondent State.
2 By way of filing the present application, the applicants/appellants have prayed the following relief which reads as under:
7 (A) Your Lordship may be pleased to admit/allow the present Civil Application;
(B) Pending Admission, hearing and final disposal of the Second Appeal, Your Lordship may be pleased to stay the execution, implementation and operation of the judgment and decree dated 19.11.2011 delivered by the learned 7th Additional Senior Civil Judge, Rajkot, in Regular Civil Suit No. 665 of 1994 and Order dated 31.5.2014 passed by the learned 11th Additional District Judge, Rajkot, in Regular Civil Appeal No.100 of 1991, in the interest of justice;
C. Pending admission, hearing and final disposal of the Second Appeal, Your Lordship may be pleased to direct the respondents, their agents, employees, servants, attorneys not to in any way transfer, alienate, mortgage, encumber and/or create charge over the land in question bearing Survey No.11/p/9 admeasuring about acre 8-0 gunthas situated at Village-Vavdi, Taluka & District:
Rajkot in any manner, till the final disposal of the Second Appeal, in the interest of justice;
D. Your Lordship may be pleased to pass such other and further orders as may be deemed fit, just and proper in the facts and circumstances of the case.
3 I have heard learned Advocates appearing for the respective parties at length. I have also perused the judgments of the Courts below as well as the documentary evidence placed before the court and the depositions of the witnesses.
4 The brief facts arise from the record that the appellants received a notice under Section 135(d) of the Bombay Page 16 of 160 Downloaded on : Sat Jul 13 03:18:56 IST 2019 C/SA/183/2014 CAV JUDGMENT Land Revenue Code in the year 1991 with regard to the disputed property since the respondents have requested the authority to mutate their names in the revenue record pursuant to a sale deed executed by the father of applicants/appellants as well as one of the appellants.
The request made by the respondent was opposed by the appellants. However, the Mamlatdar mutated the names of respondents. The said decision was challenged by the present applicants/appellants by way of filing an appeal before the concerned Deputy Collector. The Deputy Collector allowed the appeal preferred by the present applicants/appellants and entered their names. This order in favour of applicants has become final.
5 Having come to know, the appellants/plaintiffs filed a suit, being Civil Suit No 665 of 1994, before the learned Senior Civil Judge at Rajkot and prayed to pass a decree to declare that sale deed dated 25.2.1965 is not a valid one. It was further prayed that the possession of the appellants shall not be disturbed. The said suit was dismissed. During the pendency of the suit, the parties were directed to maintain status quo. The said decision came to be challenged by the original plaintiffs by way of filing an appeal, being Regular Civil Appeal No.100 of 2011, before the learned Additional District Judge, Rajkot, which came to dismissed.
6 I have also considered that the sale deed in question is of 25.2.1965, which is registered on 25.1.1966 i.e. after a period of 11 months. However, neither the defendants nor the office of the Registrar has produced the original copy of the sale deed before the trial court. I have also considered the fact that the appellants have participated in the proceedings issued under the provisions of the Urban Land Ceiling Act, 1977. I have also considered the fact that the respondents came for mutating their names in revenue record after 26 years from the execution of the disputed sale deed, and after seven years from the date of death of their father who expired in 1984. I have also gone through the sale deed of 1965, which does not find any thumb impression or signatures of the executors. Considering this aspect, I am of the opinion that the present application requires consideration. Hence, the following order is passed.
Application is accepted. The parties are hereby direct to Page 17 of 160 Downloaded on : Sat Jul 13 03:18:56 IST 2019 C/SA/183/2014 CAV JUDGMENT maintain status quo till the final hearing of the appeal. Rule made absolute accordingly 7 Request made by Mr. Kavina to permit the respondents to develop the property/transfer the property subject to decision of Appeal is hereby rejected. "
14. The developments that took place pending the second appeal:-
14.1 While this second appeal was pending for final hearing, few major developments took place. It appears that the plaintiffs moved the Civil Application No.8249 of 2015 and sought permission to withdraw the second appeal on the ground that the settlement had been arrived at between them and the defendants. The plaintiffs requested that the judgment and decree challenged in the second appeal be confirmed. Along with such application, they also produced a withdrawal pursis duly signed by them, which according to them, was arrived through amicable settlement between the parties.
14.2 However, the power of attorney holder opposed the prayer of the plaintiffs by filing the Civil Application No.8169 of 2015. The power of attorney holder, by filing the Civil Application No.8169 of 2015, prayed that he may be permitted to be impleaded as one of the appellants in the appeal or he may be shown as a sole appellant. In the application preferred by him, he placed strong reliance on the power of attorney executed by him in his favour. The power of attorney holder contended before the Coordinate Bench of this Court that the plaintiffs had executed an irrevocable power of attorney in his favour coupled with interest and, therefore, the plaintiffs Page 18 of 160 Downloaded on : Sat Jul 13 03:18:56 IST 2019 C/SA/183/2014 CAV JUDGMENT should not be permitted to withdraw the second appeal. The power of attorney holder also contended before this Court that the plaintiffs have not questioned the validity of such power nor the same had been declared invalid or illegal by any Competent Authority or the Court. It was pointed out to this Court that the power was executed by the plaintiffs after accepting full consideration. Such a power of attorney could not have been cancelled by the plaintiffs. The power of attorney holder also pointed out to this Court that on the basis of the irrevocable power, he had prosecuted the proceedings before various judicial forums such as the civil courts, revenue authorities and police authorities.
14.3 The civil application preferred by the power of attorney holder, seeking impleadment as an appellant in the second appeal was opposed on behalf of the plaintiffs. It was argued on behalf of the plaintiffs that the civil application preferred by the power of attorney was not maintainable. The prayer for being impleaded as a party or being shown as a sole appellant could not have been granted . It was also pointed out that the power of attorney was the brother of the advocate, who was representing the plaintiffs in the civil suit. The agreement is, therefore champertous and not enforceable in law. The plaintiffs also questioned having received the consideration at the time of the execution of the power of attorney. According to the plaintiffs, they had a right to compromise the dispute between the defendants which they had legitimately done and, therefore, they requested this Court to permit them to withdraw the second appeal.
14.4 A learned Single Judge of this Court adjudicated the Page 19 of 160 Downloaded on : Sat Jul 13 03:18:56 IST 2019 C/SA/183/2014 CAV JUDGMENT application filed by the power of attorney holder and by an order dated 10th August, 2015, the same came to be disposed of in the following terms:-
"9. Having thus heard learned Counsels for the parties and having perused the documents on record, the short question is in face of the execution of the PoA in favour of said Shri Naranbhai Jadavbhai Lalakiya, was it open for the Plaintiffs to act independently, compromise disputes between the Defendants and seek withdrawal of Second Appeal. Answer to this question must be had from the terms of the PoA itself. In this context, we may notice certain terms and conditions of the PoA at length. Under such document, which was admittedly executed by the Plaintiffs, the attorney was given right to represent the Plaintiffs before different fora such as courts, tribunals and revenue authorities. He was authorised to file proceedings before such different fora and to defend the Plaintiffs if need so arises. He was authorised to engage an Advocate, file affidavits, execute documents, give evidence, compromise disputes and even to withdraw the suits. He was also authorised to execute agreement to sale and sale deeds with respect to such lands. He had authority to represent the Plaintiffs before the Urban Land Ceiling authorities, he was authorised to lease the suit land and accept the lease rent.
10. Paragraph 8 of the PoA record that he was in possession of the land which he could cultivate and appropriate the proceeds thereof. Under paragraph 9 it was his duty to pay government taxes and land revenues and other government taxes. Paragraph 10 recorded that the current market value of the land was Rs.1,20,000/-
which entire amount the Plaintiffs had received from the attorney. It was therefore recorded that if the attorney sold, transferred, leased or gifted the land, the Plaintiffs would have no further claim to receive any consideration. In paragraph 11 it was recorded that the Plaintiffs had become owner - possessor of the suit land. Paragraph 12 in unequivocal terms declared that the PoA was irrevocable and that the Plaintiffs would not revoke such power in future. Paragraph 14 recorded that the document contains stamp of Rs.9,600/-.
Page 20 of 160 Downloaded on : Sat Jul 13 03:18:56 IST 2019 C/SA/183/2014 CAV JUDGMENT11. In clear therms thus the PoA was meant to be irrevocable and that it was coupled with consideration. As noted earlier even the Plaintiffs did not dispute either the execution or the validity of such document till the present proceedings arose in these Civil Applications. Before the trial court the Plaintiffs as well as the attorney gave their depositions. Their depositions were in tune with each other. The Plaintiffs' witnesses did not dispute the contents of the PoA or the stand that the sale deed of the year 1965 was according to the Plaintiffs and the attorney illegal and fraudulent. First Appeal was filed by the attorney for and on behalf of the Plaintiffs so was the Second Appeal. It appears that there were other parallel proceedings filed before the revenue authorities and even before the police authorities where it was the PoA who had appeared for and on behalf of the Plaintiffs.
12. The fact that the Plaintiffs in absence of any such PoA were always entitled to compromise the disputes between the Defendants, and in terms of any such compromise, seek withdrawal of the Second Appeal, and consequential confirmation of the judgment and decree of the court below is undeniable. However, when the Plaintiffs had given the irrevocable PoA coupled with consideration, in my opinion they had no independent right thereafter to compromise the disputes with the Defendants. As noted the power was focused with respect to the suit lands. It was coupled with consideration and it authorised the attorney to take all steps needed to prosecute the suit and all actions needed in connection with the suit lands.
13. Section 201 of the Contract Act pertains to termination of agency and provides inter alia that an agency can be terminated by the principal revoking his authority. Section 202 of the Contract Act however provides that where the agent has himself an interest in the property which forms the subject-matter of the agency, the agency cannot, in the absence of an express contract, be terminated to the prejudice of such interest. It is in this context it is held that if a PoA is irrevocable and is coupled with consideration, it cannot be revoked. It was in this context that the Division Bench of this Court in case of Her Highness Maharani Shantadevi v. Savjibhai H. Patel and ors. (supra) held that the principal cannot revoke the authority given to his agent Page 21 of 160 Downloaded on : Sat Jul 13 03:18:56 IST 2019 C/SA/183/2014 CAV JUDGMENT after the authority has been partly exercised, so far as regards such action / obligation as arise from acts already done. Likewise in case of Seth Loon Karan Sethiya v. Ivan E. John and ors. (supra) the Supreme Court held that the PoA was coupled with the interest and that therefore the same was not revocable. It was further held that the transaction entered into under the document amounts to an equitable assignment of the decree in favour of the Bank to the extent necessary to discharge appellant's debts to the Bank and that therefore it was open for the Bank to execute the decree in its own right.
14. The decision cited by Shri Sunit Shah in case of Dev Ratan Biswas & Ors. v. Most. Anand Moyi Devi & Ors. as noted earlier was not rendered in the background of the revocable PoA. It was therefore held that execution of general PoA would not divest the principal of his rights to consult his attorney before signing a compromise petition. Likewise in case of Suraj Lamp and Industries Private Limited v. State of Haryana and anr. (supra) the issue was entirely different. It was held that a transfer of immovable property by way of sale can only be by a deed of conveyance (sale deed). In the absence of a deed of conveyance duly stamped and registered as required by law, no right, title or interest in an immovable property can be transferred. The court was commenting on the trend of transferring title in immovable properties through PoA and wills without payment of full stamp duties. The question of cancellation of PoA by the principal which was coupled with consideration was not an issue.
15. In view of such discussion, I am of the opinion that it is not open for the Plaintiffs to seek withdrawal of Second Appeal on the ground that the disputes have resolved between the Plaintiffs and the Defendants. Any such permission would amount to allowing the Plaintiffs to withdraw the PoA which as noted is irrevocable. If the Plaintiffs were of the opinion that such PoA was not valid it was for them to take out appropriate legal proceedings. Having not raised any dispute about the legality and validity or acceptance of consideration under the PoA right from the date of its execution in the year 1995, they cannot simply wish away the document by raising a stand nearly 30 years later contending that they had in Page 22 of 160 Downloaded on : Sat Jul 13 03:18:56 IST 2019 C/SA/183/2014 CAV JUDGMENT fact not received any consideration or that in any case the PoA was not valid in law.
16. Having said that I cannot accept the request of the Applicant to be either impleaded in his own independent capacity or to be shown as a sole Appellant. It would amount to recognizing his locus in the litigation in his individual capacity. In my opinion he derives his right and interest only through the Plaintiffs. His interest cannot travel beyond those of the Plaintiffs. The Second Appeal can succeed only if the Plaintiffs had any right and his attorney. The attorney can prosecute the cause on behalf of the Plaintiffs but only to the extent the Plaintiffs themselves could. Nothing more, nothing less. His prayer in the present Civil Applications in the present form cannot be granted. However, as noted earlier, since I am not inclined to allow the Plaintiffs to withdraw the Second Appeal, this issue would become one of academic interest. In the result, both the Civil Applications are dismissed. "
14.5 It further appears that, thereafter, one Civil Application No.9272 of 2015 was filed by the plaintiffs under Order 23 Rule 1 of the CPC, seeking permission of this Court to withdraw the plaint being the Regular Civil Suit No.665 of 1994 and dispose of the present second appeal on the grounds stated in the said application. The Civil Application No.9272 of 2015 preferred by the plaintiffs came to be rejected by a learned Single Judge of this Court vide order dated 19th December, 2016 in the following terms:-
"15. The submissions which have been made that the appeal is continuation of suit and, therefore, suit may be permitted to be withdrawn, cannot be readily accepted. The appeal is considered as continuation of the suit or original proceedings for the purpose of considering an issue on the basis of the evidence before the trial court is one thing but withdrawal of the suit after it has been adjudicated by a judgment of the trial court is another aspect. Reference made on the Order 23, Rule 1 of the Civil Procedure Code provides for withdrawal and Page 23 of 160 Downloaded on : Sat Jul 13 03:18:56 IST 2019 C/SA/183/2014 CAV JUDGMENT adjustment of suits. A close look at the provision of the Order 23, Rule 1(3) r/w Order 39 Rule 1(4), requires a close scrutiny. The provision of Order 23, Rule 1(3) provides for a withdrawal of the suit, where the Court is satisfied as stated on the grounds or reasons The Order 39, Rule 1(4) provides, (4) Where the plaintiff--
(a) abandons any suit or part of claim under sub-
rule(1), or
(b) withdraws from a suit or part of a claim without the permission referred to in sub-rule (3), he shall be liable for such costs as the Court may award and shall be precluded from instituting any fresh suit in respect of such subject-matter or such part of the claim.
16. Thus, clause (b) of sub-rule (4) of Rule 1 of Order 39 provides that when the suit is withdrawn without the permission, it will be subject to the cost and may not be permitted to institute. The provision of Order 23, Rule 1(4) provides that even the Court may not permit one of the plaintiffs to withdraw without the consent of other plaintiffs. Thus the provision of Order 23, Rule 1 of the Code are based on public policy that it does not give an opportunity to a litigant to abuse the process of the Court. The consideration for grant of permission to withdraw the suit at the appellate stage are totally different than considerations, which are available to the trial court. In other words, while withdrawing the suit with a liberty to file fresh suit as referred to in Order 23, Rule 1 of the Code stands on a different footing than seeking permission for withdrawal of the suit, which has been adjudicated by a judgment at the appellate stage. If it is permitted, it would amount to recalling of the order adjudicating the issues between the parties in the appeal. If the appellate court in exercise of appellate jurisdiction is satisfied then, it can set aside the judgment but permitting withdrawal of the suit amount to recalling of the order adjudicating the suit by the trial court, which stands on a different footing. This is not envisaged or provided in the Code of Civil Procedure and while providing for withdrawal of the suit under Order 23, Rule 1 of the Code of Civil Procedure, the provisions have Page 24 of 160 Downloaded on : Sat Jul 13 03:18:56 IST 2019 C/SA/183/2014 CAV JUDGMENT been made with detailed procedure and subject to the permission by the Court. If such permission is granted, it would amount to reading in the statute or adding to statute like Civil Procedure Code, which is not contemplated or provided by the Legislature.
17. A useful reference can be made to the judgment of the Hon'ble Apex Court in case of Byram Pestonji Gariwala Vs. Union Bank of India & Ors., reported in AIR 1991 SC 2234, wherein referring to the provision of the Order 3, Rule 1, the Hon'ble Apex Court provides that it includes Counsel or agent of party, who can compromise and it is binding to the party. Thus in our judicial system, when there is an irrevocable power of attorney granted in favour of a person like Power of Attorney Holder, it is required to be considered whether he will have an interest and right or not. Again specific provision of the Indian Contract Act in the form of Sections 202 and 203 are required to be considered. The provision of Section 202 of the Indian Contract Act provides,
202. Termination of agency where agent has ank interest in subject matter.- Where the agent has himself an interest in the property which forms the subject-matter of the agency, the agency cannot, in the absence of an express contract, be terminated to the prejudice of such interest.
18. Thus it clearly provides that when an agent has an interest in the property, which forms the subject matter of the agency, the agency cannot be terminated to prejudice of such interest. Section 203 of the Contract Act refers to the revocation of such authority but it is provided that it is subject to the preceding Section ie. Section 202 of the Contract Act. Reference can also be made to the provision of Order 23, Rule 3, which referred to the compromise of the suit. Again in this provision, such a compromise has to be to the satisfaction of the Court and Explanation refers to the provision of the Indian Contract Act. It is in this background, when the suit has been filed by the appellants themselves but irrevocable power of attorney has been given with regard to the same property or the subject matter, the power of attorney holder in exercise of such authority having pursued the litigation claiming an interest in the subject Page 25 of 160 Downloaded on : Sat Jul 13 03:18:56 IST 2019 C/SA/183/2014 CAV JUDGMENT matter, cannot be prejudiced by the principal altering the position or disregarding such authority or the rule of agency. It is well accepted that as per the Contract Act and law of agency, mutual rights and obligation cannot be avoided and irrevocable power of attorney given by the principal, cannot be set at naught at a later stage when the agent has created an interest in the subject matter. No doubt, the principal has right to terminate the agency but it will be subject to the facts of the case. Meaning thereby, when on the basis of such power and authority given by the principle, agent has taken further steps and has altered his position or has created an interest qua third party or otherwise, it cannot be brushed aside or cancelled by the principal as the law of agency is based on the concept of contractual obligation and the mutuality. It is in this background, the permission, which is sought in the present Civil Application for withdrawal of the suit at the stage of appeal after it has been adjudicated upon by the trial court, cannot be permitted. It appears that as contended, the appellants having arrived at some settlement with third party or subsequent purchaser, it would not affect the steps taken pursuant to the relationship of agency between the principal and the agent like in the present case by the appellant and the Power of Attorney Holder. Moreover, it would also raise an issue of estoppel when parties have altered position whether either party can be allowed to back out causing prejudice to other side.
19. Moreover in the present case, earlier Civil Application No.8169/2015 with Civil Application No.8249/2015 was considered and same issue was addressed before the High Court and the High Court (Coram : Akil Kureshi, J.) vide order dated 10.08.2015 declined the permission. It has been specifically observed, However, when the Plaintiffs has given the irrevocable PoA coupled with consideration, in my opinion they had no independent right thereafter to compromise the disputes with the Defendants. Reference has been made to earlier judgment and pronouncement of the Hon'ble Apex Court including the observations made referring to the background of the case. It has been clearly reflected that the plaintiff is seeking withdrawal of the Second Appeal on the ground that the disputes have resolved between the plaintiffs and the defendants and it has been observed, Page 26 of 160 Downloaded on : Sat Jul 13 03:18:56 IST 2019 C/SA/183/2014 CAV JUDGMENT In view of such discussion, I am of the opinion that it is not open for the Plaintiffs to seek withdrawal of Second Appeal on the ground that the disputes have resolved between the Plaintiffs and the Defendants. Any such permission would amount to allowing the Plaintiffs to withdraw the PoA which as noted is irrevocable. If the Plaintiffs were of the opinion that such PoA was not valid it was for them to take out appropriate legal proceedings. Having not raised any dispute about the legality and validity or acceptance of consideration under the PoA right from the date of its execution in the year 1995, they cannot simply wish away the document by raising a stand nearly 30 years later contending that they had in fact not received any consideration or that in any case the PoA was not valid in law.
20. Therefore, the submissions made by learned advocate, Shri Parikh that the agent cannot have any individual right or authority and would be subject to the authority of the principal, requires consideration in background of the facts as discussed above, particularly when the agent is said to have interest in the subject matter of the suit or the property.
Civil Application No.3035 of 2016
21. Further the submissions which have been made by learned advocate, Shri Asim Pandya referring to the provision of the Order 39, Rule 4 of the Civil Procedure Code on the ground of change of the circumstances, is devoid of any merits. The provision of Order 39, Rule 4 provides for modification or variation in the order subject to proviso which clearly provides that where an order for injunction has been passed after giving to a party an opportunity of being heard, the order shall not be discharged, varied or set aside on the application of that party except where such discharge, variation or setting aside has been necessitated by a change in the circumstances, or unless the Court is satisfied that the order has caused undue hardship to the party. Thus the modification or variation in the interim relief or injunction is also subject to the ground specify like change of the circumstances or undue hardship, which has to be Page 27 of 160 Downloaded on : Sat Jul 13 03:18:56 IST 2019 C/SA/183/2014 CAV JUDGMENT established by the party seeking such modification in the injunction or the interim orders.
22. In the facts of the case, the applicant of Civil Application No.3035/2016 has not made out any such change of the circumstances particularly has not been able to point out as to how the circumstances have changed after the order has been passed in Civil Application No.8249/2015 by the High Court (Coram : Akil Kureshi, J.) dated 10.08.2015. Similarly, there is no hardship or undue hardship shown for such modification. The order of injunction or interim relief would naturally have some bearing on the rights of other side and such injunction is granted only for the purpose of maintaining the equilibrium or balance between the plaintiffs and the defendants till final hearing and adjudication of the matter like Second Appeal No.183/2014. Therefore, the submissions which have been made by learned advocate, Shri Asim Pandya with much emphasis on the Order 39, Rule 4 of the Code of Civil Procedure cannot be accepted. Similarly, his submissions that if the power of attorney holder is permitted in such a manner to pursue then, it would be against the public policy, also could be considered at the time of final hearing inasmuch the grant of irrevocable power of attorney is legally accepted and valid and, therefore, the submission made with regard to public policy cannot be readily accepted.
23. Another facet of submission made by learned advocate, Shri Pandya that the plaintiffs are having dominus litis as he is entitled to withdraw the suit at any stage, has to be considered with reference to the rival claims of other side. It is required to be considered as to whether the plaintiffs have dominus litis and can have privilege to withdraw the suit after it has been adjudicated and culminated into a judgment. The concept of dominus litis would not be attracted in the facts of the case inasmuch as dominus litis has a reference to the right of a party to decide against whom he would like to contest and join as party and what could be the relief and nature of claim, he can restrict or claim. However, the concept of dominus litis cannot come to rescue to avoid right of other person by ignoring the concept of agency which depends on mutuality and obligation. Therefore the understanding or the compromise between the plaintiffs and the defendants with regard to the Page 28 of 160 Downloaded on : Sat Jul 13 03:18:56 IST 2019 C/SA/183/2014 CAV JUDGMENT transaction of the property which again required to be examined with reference to other submissions regarding the genuineness of the transaction and the sale deed particularly with regard to the aspect of registration and execution. However as it is not required at this stage to dwell upon the same, the submission made by learned advocate, Shri Pandya for vacating the interim relief cannot be accepted.
24. A useful reference can be made to the observations made by the Hon'ble Apex Court in case of Sneh Gupta Vs. Devi Sarup & Ors., reported in (2009) 6 SCC 194 referring to the scope of Order 23 of the Code of Civil Procedure and it has been clearly observed that while entering into a comprehensive agreement, the parties are bound to see that terms of one agreement do not come in conflict with the terms and conditions of the other. The Hon'ble Apex Court has observed in this judgment referring to earlier judgment in case of R. Rathinavel Chettiar & Anr. Vs. V. Sivaraman & Ors., (1999) 4 SCC 89 has observed, "22. In view of the above discussion, it comes out that where a decree passed by the trial court is challenged in appeal, it would not be open to the plaintiff, at that stage, to withdraw the suit so as to destroy that decree. The rights which have come to be vested in the parties to the suit under the decree cannot be taken away by withdrawal of the suit at that stage unless very strong reasons are shown that the withdrawal would not affect or prejudice anybody's vested rights. The impugned judgment of the High Court in which a contrary view has been expressed cannot be sustained."
25. Therefore both the aforesaid civil applications deserve to be dismissed and accordingly stand dismissed."
14.6 Ultimately, the plaintiffs carried the matter to the Supreme Court. The Supreme Court disposed of the Special Leave Petitions Nos.17507-17508 of 2017 respectively by an order dated 20th November, 2017 in the following terms:-
Page 29 of 160 Downloaded on : Sat Jul 13 03:18:56 IST 2019 C/SA/183/2014 CAV JUDGMENT"Delay Condoned We have heard learned counsel for the parties and perused the impugned order passed by the High Court.
Without going into the merits of the matter we deem it fit and proper to request the High Court to decide the Second Appeal No.183/2014 expeditiously and in accordance with law preferably within a period of three months.
It is made clear that any observations made in the impugned order will not come in the way of deciding the appeal on merits.
The Special Leave Petitions are disposed of in terms of the above.
Pending applications stand disposed of."
15. Thus, it appears that the Supreme Court, without going into the merits of the matter, declined to interfere with the two orders passed by this Court referred to above and thought fit to request this Court to decide the present second appeal expeditiously in accordance with law. The Supreme Court further observed that all contentions were kept open. It also clarified that any observations made in the impugned order would not come in the way of deciding the present appeal on merits.
16. In such circumstances, referred to above, Mr. Dhaval Dave, the learned senior counsel appearing for the plaintiffs submitted that he would still like to persuade this Court to permit the original plaintiffs to withdraw this appeal in the wake of the settlement arrived at between his clients and the original defendants Nos.1 and 2.
Page 30 of 160 Downloaded on : Sat Jul 13 03:18:56 IST 2019 C/SA/183/2014 CAV JUDGMENT17. Mr. Desai, the learned senior counsel appearing for the power of attorney holder vehemently opposed such a plea and submitted that the issue with regard to the right of the power of attorney holder to continue with the present second appeal stood concluded with the special leave petitions, preferred by the original plaintiffs, being rejected. According to Mr. Desai, there is no further scope for this Court to adjudicate whether the plaintiffs should be permitted to withdraw the second appeal. Mr. Desai submitted that his client has an interest in the litigation. His client holds an irrevocable power of attorney coupled with interest. According to Mr. Desai, the plaintiffs had received full consideration from the power of attorney holder at the time of the execution of the irrevocable power of attorney. In such circumstances, according to Mr. Desai, the settlement between the plaintiffs and the defendants could hardly be of any consequence and it is now the power of attorney holder who could be said to have stepped into the shoes of the plaintiffs and would like to proceed further with this second appeal.
ANALYSIS
18. The factual position that emerges from the materials on record is that there are two orders passed by this Court, referred to above, taking the view that the power of attorney is irrevocable coupled with interest and, therefore, the plaintiffs cannot be permitted to withdraw the present second appeal. At the same time, even while rejecting the special leave petitions preferred by the plaintiffs, the Supreme Court clarified that all contentions were kept open. The plain reading of the order passed by the Supreme Court would also indicate Page 31 of 160 Downloaded on : Sat Jul 13 03:18:56 IST 2019 C/SA/183/2014 CAV JUDGMENT that the Supreme Court did not deem fit to go into the merits of the two special leave petitions and left it to the High Court to consider all the relevant issues including the main issue which was before the Supreme Court in accordance with law while hearing the second appeal finally.
19. In such circumstances, I have thought fit to once again look into the issue whether the plaintiffs should be permitted to withdraw the present second appeal or not.
20. Mr. Dave, the learned senior counsel appearing for the plaintiffs vehemently submitted that the power of attorney holder has no locus in the present litigation as the power of attorney holder cannot be said to have any interest in the subject matter. The second contention canvassed by Mr. Dave is with regard to the legality and validity of the irrevocable power of attorney sought to be relied upon by the power of attorney holder. The submissions in this regard of Mr. Dave, the learned senior counsel are two fold. Mr. Dave first invited the attention of this Court to section 202 of the Contract Act and, thereafter, he invited the attention of this Court to sections 17 and 49 respectively of the Registration Act, 1908. Mr. Dave submitted that even if the agent has himself an interest in the property, the same should form the subject matter of the agency. Mr. Dave, while elaborating his submission, argued that having regard to the nature of the litigation, it cannot be said that the suit property forms the subject matter of the agency. In such circumstances, it cannot be said that the agent has an interest in the property. Mr. Dave submitted that the suit property is of the ownership of the defendants Nos.1 and 2. They had purchased the suit property Page 32 of 160 Downloaded on : Sat Jul 13 03:18:56 IST 2019 C/SA/183/2014 CAV JUDGMENT way back in the year 1965 vide sale deed, Exh.140. The plaintiffs cannot be said to be the lawful owners of the suit property and, in such circumstances, could not have executed a power of attorney much less an irrevocable power of attorney without any right, title or interest over the subject land. Mr. Dave submitted that the power of attorney, if minutely perused, is almost in the nature of a sale, which is not recognized by law.
21. The second submission of Mr. Dave is that assuming for the moment that the document, i.e, the power of attorney is treated to be an irrevocable power coupled with interest, then in the absence of such document not being registered in accordance with the provisions of the Registration Act, the same has no legal force in the eye of law.
22. Mr. Dave submitted that the power of attorney in question figures at Exhibit-124. A power of attorney, being a contract of agency, has to fall in line with section 202 of the Contract Act, 1872 in order to qualify as irrevocable. As per the same, a power of attorney, in the absence of an express provision therein paving way for its revocation, is irrevocable if an interest in the property forming the subject matter thereof is created in favour of the holder thereof. Thus, to be very precise, when the purpose of power of attorney is to safeguard the interest of the holder thereof in the property which forms the subject matter thereof, the power of attorney qualifies as irrevocable. It means that it is sine qua non to have some property in the hands of the executants of power of attorney so as to create an interest therein in favour of the person to be appointed thereunder as holder thereof. However, in the Page 33 of 160 Downloaded on : Sat Jul 13 03:18:56 IST 2019 C/SA/183/2014 CAV JUDGMENT present case, when the power of attorney was executed by the Appellants pending the suit, the property forming the subject matter thereof, being the suit land, was not the property of the Appellants. Because, when the suit filed by the Appellants is for setting aside the sale deed executed in favour of the Respondents in respect of the suit land, the question of the Appellants having any transferable interest in the suit land till such sale deed is set aside as prayed for by the Appellants in the suit does not arise at all. A registered sale deed holds the field and operates in rem till it is set aside. As such, if the contents of the power of attorney in question are taken note of in juxtaposition to this aspect of the matter, it becomes ex- facie evident that the power of attorney was executed by the Appellants after filing of the suit for the purpose of proceeding with the suit and other connected matters as they were unable to pursue the suit and other proceedings effectively due to their illiteracy and other factors and at that point of time, the consideration in respect of the suit land was paid to the Appellants by the power of attorney holder and in lieu thereof, the Appellants agreed that they would not have any right over the consideration which the holder of the power of attorney would receive by causing transfer of the suit land by either sale, mortgage, lease or gift. Mr. Dave laid emphasis on clauses 1, 2 & 10 of the power of attorney at Exhibit-124. It is submitted that in substance, what can be said to have been assured to the holder of the power of attorney pursuant thereto by the Appellants as the executants thereof was the right to pursue the suit against the Respondents and to deal with the suit land subject to the outcome of the suit. It means that if at all anything is to be construed as having been transferred to the holder of the power of attorney, it is nothing Page 34 of 160 Downloaded on : Sat Jul 13 03:18:56 IST 2019 C/SA/183/2014 CAV JUDGMENT but a mere right to sue the respondents and to savor the fruits thereof if the outcome thereof was positive. However, as per section 6 (e) of the Transfer of Property Act, 1882, a mere right to sue is not the property which can be transferred. Further, section 6 (a) of the Transfer of Property Act, 1882 also prohibits transfer of a possibility to receive the property.
23. Mr. Dave further submitted that Section 17(1)(b) of the Registration Act, 1908 makes it mandatory to have registration of a document falling thereunder. The consequence of non- compliance thereof is provided in section 49 of the Registration Act, 1908. It is submitted that an irrevocable power of attorney under section 202 of the Contract Act, 1872 finds its place in section 17(1)(b) of the Registration Act, 1908 on the plain reading thereof. Consequently, the power of attorney in question ought to have been registered. However, admittedly it was not registered. Hence, even if the power of attorney in question is to be construed as irrevocable, it is unenforceable for the purpose of permitting the holder thereof to claim any right thereunder as per section 49 of the Registration Act, 1908. Mr. Dave placed reliance on the decision of the Allahabad High Court in the matter of Chandrama Singh V. Mirza Anis Ahmad reported in 2011 SCC Online All 528 (Paragraphs 10 & 17). In this case, the power of attorney, though revocable in nature on account of a stipulation therein in that regard, was registered as it created an interest in immovable property. However, the revocation thereof was without a registered document. Hence, dealing with the same, it was ruled that since the revocation would result in extinguishment of a right in respect of an immovable property, it would warrant registration. Mr. Dave submitted that the Page 35 of 160 Downloaded on : Sat Jul 13 03:18:56 IST 2019 C/SA/183/2014 CAV JUDGMENT submission of the power of attorney holder of the Appellants to the effect that if the irrevocable power of attorney was to fall under section 17(1)(b) of the Registration Act, there would not have been amendment of the said section 17 for the State of Gujarat by insertion of clause (1) with effect from 21st July, 2008 is without any merit. According to Mr. Dave, in the first place, the applicability or otherwise of section 17 (1) (b) would depend upon the plain reading thereof and not what legislature did by way of an amendment to section 17. In the second place, the question of resorting to subsequent amendment to section 17 (1) by insertion of clause (f) thereto as an aid to interpret clause (b) thereof would arise if there is ambiguity in the language deployed for clause (b) by the legislature. However, the clause (b) of section 17(1) of the Registration Act is abundantly unequivocal in conveying its import. In the third place, a proper reading of clause (1) reveals that it is aimed at covering the power of attorney which is not per se creating any right or interest in the property so as to attract the application of clause (b), but at the same time it records transfer of possession. Thus, according to Mr. Dave, the purpose of clause (1) is to prevent a mischief aimed at excluding the application of clause (b).
24. Mr. Dave placed reliance on the decision of the Madras High Court in the matter of Mutharasu Thevar V. Mayaandi Thevar reported in 1967 SSC Online Mad 40 to fortify his submission that it is the prerogative of the principal and not the agent to decide as to who should conduct the litigation regardless of the nature of power of attorney.
25. Mr. Dave, in the last, submitted that if at all the Page 36 of 160 Downloaded on : Sat Jul 13 03:18:56 IST 2019 C/SA/183/2014 CAV JUDGMENT contention of the power of attorney holder is to be accepted, the observations made by the Coordinate Bench in paras-15 and 16 of the order dated 10th August, 2015 passed in the Civil Applications Nos.8249 and 8169 of 2015 respectively would preclude him from claiming or asserting any independent right to pursue the present second appeal.
26. On the other hand, Mr. Desai, the learned senior counsel appearing for the power of attorney holder submitted that there is no merit in the contentions canvassed on behalf of the plaintiffs. According to Mr. Desai, it cannot be argued that his client has no interest in the suit property which forms the subject matter of the agency. Mr. Desai submitted that the issue with regard to the applicability of the provisions of the Registration Act would come into play provided there is a litigation between the parties as regards the legality and validity of the irrevocable power of attorney. Mr. Desai submitted that as this issue stood concluded, this Court may not go into the same once again.
27. I deem fit and appropriate to quote few relevant clauses of the irrevocable power of attorney:-
"As we are unable to run to government and semi government offices pursuant to the above stated land and e have to frequently go out of town besides, we are uneducated and as we are unable to perform all the procedure and activities by remaining present personally in respect of our above mentioned immovable property hence, in order to perform all the below mentioned works we hereby appoint our most faithful and trustworthy Shri Naranbhai Jadavbhai Lalakiya, resident of Rajkot as our power of attorney holder and we also declare the same and in order to perform the below mentioned works we give him all authorities and powers by way of this power Page 37 of 160 Downloaded on : Sat Jul 13 03:18:56 IST 2019 C/SA/183/2014 CAV JUDGMENT of attorney and all the works done by him and activities and procedure followed by him will be considered equivalent to have been done and performed by us and the same will be abiding to us, our parents, guardians, heirs and all concerns, which also we declare by way of this power of attorney.
2) With regard to the above mentioned immovable property in order to get the entries executed in the village form No.6, 7/12, 8-A or in any other revenue records whatever procedures are likely to be followed before the Talati cum Mantri, Mamlatdar, Deputy Collector, Collector or for giving application, report, revision application, review application, affidavit, declaration etc. whatever is required to be done and whatever procedure is required to be followed for all such works and procedure and for placing signatures for and on behalf of us for engaging advocate, for filing affidavit, for giving depositions etc. for performing all such works and procedures, which are likely to be done and performed by us by personally we have authorized our above named power of attorney holder to perform all such works and procedures for and on behalf of us and the same will be considered equivalent to have been done and performed by us besides, we also authorize and give power of attorney to our above named power of attorney holder for withdrawing any procedures, for demanding copies, for depositing amounts or withdrawing the same for performing all such revenue record related procedures for remaining present before the Revenue Officers, we hereby authorize our above named power of attorney holder to perform all such procedures for and on behalf of us, which we declare by way of this power of attorney deed.
3) With regard to the above mentioned immovable property, Civil Suit No.665/1994 is pending below the Honourable Civil Judge (S.D.) Rajkot pursuant to this Civil suit in future if it is required to file any case with regad to our above stated land property before any court of law, we hereby declare that we authorize our above named power of attorney holder to perform all such procedures for and on behalf or us of if it is required for us to file any criminal proceedings against anyone then for all such Page 38 of 160 Downloaded on : Sat Jul 13 03:18:56 IST 2019 C/SA/183/2014 CAV JUDGMENT court cases by way of executing this power of attorney we have authorized our above named power of attorney holder to perform the same for and on behalf of us besides, in order to perform all such court process other relevant procedures such as engaging of advocate, placing signatures on Vakilatnama, plaint application, for signing the appeal memo and other applications, for executing affirmations, affidavits, acceptance or for giving depositions for setting compromises in the litigation for withdrawing the cases for deposition or withdrawing the amounts etc. for all kind of works and procedures related to courts as mentioned herein above we have authorized our above named power of attorney holder for performing the same for and on behalf of us.
4) With regard to aforesaid land, whichever proceedings are to be followed or performed with the government or semi government offices, gram panchayat, district pachayat, Taluka panchayat, AUDA, office of the Urban Land Ceiling, town planning office, office of the Town Planner and before other semi government and government offices for filing any kind of application or reports, for filing affidavits, for filing declaration, for approval of the plans, for conversion of land from agricultural to non agricultural, for getting the work of sub-plotting done in the said land, for depositing or withdrawing the amounts whatever procedure are required to be followed or performed for all such works and procedure we hereby authorize and give power to our above named power of attorney holder for performing all such works and procedure for and on behalf of us and the same will be considered equivalent to have been done by us and the same is abiding to us which we declare by way of this power of attorney.
5) In order to sell any part of the said land or the whole land for deciding the price thereof, for executing earnest deed or sale deed pursuant to the said land, for registration of the sale deed or earnest deed, for accepting the consideration amount of the said land or part thereof, for execution of the sale deed of the aforesaid land or part thereof, for registering the sale deed with the office of the sub registrar, for executing declaration of affidavits as required to be executed from Page 39 of 160 Downloaded on : Sat Jul 13 03:18:56 IST 2019 C/SA/183/2014 CAV JUDGMENT time to time as required, for handing over the possession of the land, for issuing receipt of the consideration and for placing signatures in the earnest deed or sale deed and for performing all procedures that are required to be followed we hereby authorize and give power to our above named power of attorney holder for performing all such works and procedures for and on behalf of us and the same will be considered equivalent to have been done by us and the same is abiding to us which we declare by way of this power of attorney.
6) In order to sell the aforesaid land for obtaining permission under Sec. 26 of the Urban Land Ceiling Act for obtaining permission from the Competent Authority or from any other officers or authorities which ever procedures are required to be followed or perform for all such works and procedures we hereby authorized our above named power of attorney holder to perform the same for and on behalf of us, besides, in order to get approval of the scheme under Sec. 26 whatever procedure are required to be followed for all such works and procedures we are hereby giving authority and power to our above named power of attorney holder besides, in order to commenced the procedure for agriculture exemption under the provisions of Urban Land Ceiling Act 1976 and for conducting process the case under Sec. 6 of the Land Ceiling Act and for making statement s in that case and for filing affidavits, producing reply statements in that case for producing replies, for submitting documents, for obtaining copies of the order, besides, for filing appeal or revision against any of the order under the Urban Land Ceiling Act and before the Secretary and for carrying out any procedures under the said act, for filing writ before the Honourable High Court of Gujarat, besides, for getting the approval of the scheme under sec. 21(1) of the Urban Land Ceiling Act as well as for placing plans, maps, sketch etc. for approval, for filing declarations and affidavit, etc. in order to carry out any works or procedures in under the Urban Land Ceiling Act under its different provisions we hereby authorize and give power to our above named power of attorney holder to perform all such works and procedures for and on behalf of us and the same will be considered equivalent to have been performed and done by us, for all above stated works we Page 40 of 160 Downloaded on : Sat Jul 13 03:18:56 IST 2019 C/SA/183/2014 CAV JUDGMENT have given power to our above named power of attorney holder.
7) We hereby given authority and power to our above named power of attorney to given this land on rent by way of lease or by any other manner or for mortgaging the same or for getting the mortgaged deed register for receiving the rental amount thereof for issuing rent receipts etc. for performing all such kind of works and procedures we are giving power and authority to our above named power of attorney holder.
8) By way of this deed power of attorney, we have handed over the possession of this land to our above named power of attorney holder and hence, the right to cultivate the aforesaid land and to have the income of crop or any other income of the said land, the right to carry out any kind of amendment in the said land, to construct the walls, to dig out well, to installed pipe lines, besides, for taking loan on the said land, to incur encumbrance on the said land, to give the said land in any kind of guarantee we hereby give power and authority to our above named power of attorney holder by way of this power of attorney deed, our above named power of attorney holder can himself cultivate this land or can get it cultivated by the labour or contract and can obtained income thereof.
9) The government tax, revenue etc. pursuant to this land to be paid with government or semi government officers shall all be paid by our above named power of attorney holder, our above named power of attorney holder will have all right to do so.
10) The present market price of this land i.e. the market price of the land admeasuring Acres 8 and 0 Guntha out of the land bearing Survey No.11 of village Vavdi amounts to approximately Rs.1,20,000/- (Rupees One Lakh and Twenty Thousand Only). The said amount of Rs.1,20,000/- (Rupees One Lakh and Twenty Thousand Only) is received from you by us today. Hence, we are accepting the receipt thereof and in this way we have Page 41 of 160 Downloaded on : Sat Jul 13 03:18:56 IST 2019 C/SA/183/2014 CAV JUDGMENT received the full consideration amount of this land hence, on the basis of this power of attorney you can mortgage, sell or transfer this land in any way, manner or kind and while doing so whatever amount is received by you towards its consideration pertaining to that we do not have any right or authority in any way, manner or kind.
11) We have received the full consideration amount towards this land from you, hence, peaceful, vacant, silent and direct possession of the said land is handed over to you by us hence now onward you i.e. our power of attorney holder i.e., Naranbhai Jadavbhai Lalakiya Residing at Rajkot is the legal occupant and possessor of the aforesaid land.
12) As we have received the full consideration amount towards this land from you, now we do not have any dispute with regard to the consideration price of the said land, we shall not revoke this power of attorney in future at any point of time hence, it means that this power of attorney is irrevocable power of attorney.
13) In above mentioned paragraphs of this deed of power of attorney whichever authorities and powers that we have given and entrusted to our above named power of attorney holder, over and above that if any procedure is required to be followed at any point of time then we hereby give power and authority to our above named power of attorney holder to carry out the same for and on behalf of us and the same will be considered to have been performed and done by us.
14) Stamp papers amounting to Rs.9,600/- (Rupees Nine Thousand and Six Hundred Only) under article 45(1) of the Bombay Stamp Act is used towards the stamp duty of this deed of power of attorney.
Our power of Attorney holder will do all kind of works and undertake procedures as mentioned in this Power of Attorney which are liable to be done and performed by us by remaining present personally as the owner of the Page 42 of 160 Downloaded on : Sat Jul 13 03:18:56 IST 2019 C/SA/183/2014 CAV JUDGMENT aforesaid land for and on behalf of me besides, our Power of Attorney holder will also place signatures and deeds for and on behalf of me and accordingly whichever procedures are followed by our Power of Attorney Holder and works done by us for all such works, procedures and proceedings etc. will be considered to be as abiding to us and the same will be abiding to our parents, heirs, guardians and all concerns."
28. I propose to deal with both the submissions canvassed by Mr. Dave. I shall first deal with the first submission as regards section 202 of the Contact Act. Section 202 of the Contract Act reads thus:-
"Section 202:- Termination of agency where agent has an interest in subject matter.- Where the agent has himself an interest in the property which forms the subject-matter of the agency, the agency cannot, in the absence of an express contract, be terminated to the prejudice of such interest."
29. I may quote a passage from Cunningham & Shephard's Contract Act, 11th Edition, 2007-08 on the subject of section 202 of the Contract Act:-
"Section 201 declares generally that an agent's authority is terminated in certain manners detailed therein. The present section and secs 204 and 208 lay down exceptions, to the general rule embodied in Sec.201. The exceptional case dealt in the present section is that in which the authority or power is coupled with an interest in the thing on which the power is to be exercised. The section is defective in that it omits to state under what circumstances an agent can be said to have an interest in the subject matter of agency.
The words, "an interest in the property which forms the subject-matter of the agency", occurring in Sec.202 of the Contract Act, are of wide amplitude than the words "interest in or charge on, such property" in Sec. 54 of the Page 43 of 160 Downloaded on : Sat Jul 13 03:18:56 IST 2019 C/SA/183/2014 CAV JUDGMENT Transfer of Property Act.
On a conjoint reading of Sec.53-A of the Transfer of Property Act, 1882 and Sec.202 of the Contract Act, 1872, the effect is that transferor of a property who has executed an agreement to sell and a power of attorney, though continued to be the legal owner of the property as per title deed yet all his powers were taken away and such powers were vested in the person in whose favour the agreement to sell and power of attorney was executed."
30. In Bowstead on Agency, 14th Edition, page 423 it is stated as follows:-
"(i) Where the authority of an agent is given by deed or for valuable consideration, for the purpose of effectuating any security, or of protecting or securing any interest of the agent, it is irrevocable during the subsistence of such security or interest. But it is not irrevocable merely because the agent has an interest in the exercise of it or has a special property in, or lien for advances upon, the subject matter of it, the authority not being given expressly for the purpose of securing such interest or advances;
(ii) Where a power of attorney, whenever created is expressed to be irrevocable and is given to secure a proprietary interest of the donee of the power, or the performance of an obligation owed to the donee, then, so long as the donee has that interest, or the obligation remains undischarged, the power is irrevocable;
(iii) Authority expressed by this article to be irrevocable is not determined by the death, insanity or bankruptcy of the principal, nor ......where the principal is an incorporated company, but its winding up or dissolution, and cannot be revoked by the principal without the consent of the agent." (Emphasis..................)"Page 44 of 160 Downloaded on : Sat Jul 13 03:18:56 IST 2019 C/SA/183/2014 CAV JUDGMENT
31. The author thereafter points out that the mere fact that a power is declared in the instrument granting it to be irrevocable does not make it so. Irrevocability requires something further. It must satisfy the requirements mentioned above and it is then called a power coupled with an interest.
32. If the agent himself had an interest in the property which formed the subject-matter of the agency, then in the absence of an express contract to the contrary these powers of attorney could not be terminated by the plaintiffs to the prejudice of such interest. First, let us consider the meaning of the expression "interest" in section 202. The word has not been defined in the Contract Act. It has, therefore, to be construed in the light of the situations which arise under the various provisions of the Contract Act. The Act deals with all kinds of property, movable and immovable, corporeal and incorporeal. It also deals with all kinds of rights, proprietary, non- proprietary personal and corporate. The word "interest" is to be applied to a wide variety of cases under the Contract Act and must, therefore, be given a wide meaning to serve these wide purposes of the Act. It is not a term of art or a technical word. In jurisprudence, the word "interest" simply means an advantage or a benefit. "Interests are things which are to a man's advantage : he has an interest in his freedom or his reputation. His rights to these, if he has such rights,. protect the interests, which accordingly form the subject of his rights but are different from them. To say he has an interest in his reputation means that it is to his advantage to enjoy a good name. "However, every interest of a person may not become a right. It is only those interests which are legally recognised Page 45 of 160 Downloaded on : Sat Jul 13 03:18:56 IST 2019 C/SA/183/2014 CAV JUDGMENT and/or are legally protected or enforced which amount to legal rights. (Salmond on Jurisprudence, 12th Edition, pages 217-
218). The German jurist jhoring viewed law as a reconciler of conflicting interests. Roscoe found as regards human disorders and claims as interests which exist independently of the law and which are constantly "pressing for recognition and security." (Philosophy of Law, Revised ' Edition, 1954). In the American Restatement of the Law of torts (Second Edition, 1965) the word "interest" is used to denote the object of any human desire.
33. For the purposes of the Law of Contract, therefore, it would not be appropriate to restrict the meaning of the word "interest" by the narrow compass in which this word is used at times in relation to immovable property. For instance, the last sentence of section 54 of the Transfer of Property Act states that a contract for sale of itself does not create any interest in or charge on immovable property. Similarly, section 17(1)(b) of the Registration Act makes only those documents compulsorily registerable which create, declare, assign, limit or extinguish any right, title or interest, whether vested or contingent, of the value of one hundred rupees and upwards to or in immovable property. Since an agreement for sale does not create such a right, title or interest, it may not be compulsorily registerable. But in the context of the Contract Act, it cannot be said that a person who is the beneficiary of an agreement of sale has no right or interest in the subject-matter of the sale. He has a legally enforceable right and interest in enforcing the contract of sale by the execution of a sale deed and in getting possession of the property agreed to be sold under the Page 46 of 160 Downloaded on : Sat Jul 13 03:18:56 IST 2019 C/SA/183/2014 CAV JUDGMENT provisions of the Specific Relief Act. In the English Common Law, the specific performance of contracts was a part of the law of contract. This is why Chapter IV of the Contract Act deals with the performance of contracts which includes the performance of contracts relating to immovable property also. In fact, section 4 of the Transfer of Property Act says that the chapters and sections of that Act which relate to contracts shall be taken as part of the Indian Contract Act, 1872. Therefore, the power of attorney holder, in whose favour the plaintiffs had executed the irrevocable power with respect to the suit property, could be said to have an interest in the subject matter of the contract for the purposes of section 202 of the Contract Act if not for the purposes of the Transfer of Property Act and the Registration Act, 1908. (see Harbans Singh vs. Shanti Devi (1977) ILR 2 Delhi 649).
34. In Loonkaran Sethiya v. State Bank of Jaipur,, (1969) 1 SCR 122, the respondent bank was given an irrevocable power of attorney by the appellant. For, the appellant had borrowed money from the bank. He had empowered the bank to recover money due to him from his debtor by executing a decree in which he was the decree- holder. The word "interest" under section 202 of the Contract Act was construed as follows at page 126 of the report :- .
"THERE is hardly any doubt that the power given by the appellant in favor of the Bank is a power coupled with interest. That is clear both from the tenor of the document as well as from its terms.. ...... .It is settled law that where the agency is created for valuable consideration and authority is given to effectuate a security or to secure interest of the agent, the authority cannot be revoked."Page 47 of 160 Downloaded on : Sat Jul 13 03:18:56 IST 2019 C/SA/183/2014 CAV JUDGMENT
35. The aforesaid statement of law reproduces the English Common Law as would be evident from a reference to Article 135 in Bowstead on Agency, Fourteenth Edition, the relevant part of which is as follows :-
"WHERE the authority of an agent is given by deed, or for valuable consideration, for the purpose of effectuating any security, or of protecting or securing any interest of the agent, it is irrevocable during the subsistence of such security or interest. But it is not irrevocable merely because the agent has? an interest in the exercise of it, or has a special property in, or lien for advances upon, the sub)'ect-inatler of it, the authority not being given expressly for the purpose of securing such interest or advances.
(2)Where a power of attorney, whenever created is expressed to be irrevocable and is given to secure a proprietary interest of the donee of the power, or the performance of an obligation owed to the donee, then, so long as the donee has that interest, or the obligation remains undischarged, the power is irrevocable." (See Harbas Singh vs. Shanti Devi, (1977) ILR 2 Delhi 649)
36. At this stage, I deem it fit to take note of Sections 17 and 49 of the Registration Act, 1908, which is reproduced hereinbelow:-
"17. Documents of which registration is compulsory.--
(l) The following documents shall be registered, if the property to which they relate is situate in a district in which, and if they have been executed on or after the date on which, Act No. XVI of 1864, or the Indian Registration Act, 1866, or the Indian Registration Act, 1871, or the Indian Registration Act, 1877, or this Act came or comes into force, namely:--
(a) instruments of gift of immovable property;
(b) other non-testamentary instruments which purport Page 48 of 160 Downloaded on : Sat Jul 13 03:18:56 IST 2019 C/SA/183/2014 CAV JUDGMENT or operate to create, declare, assign, limit or extinguish, whether in present or in future, any right, title or interest, whether vested or contingent, of the value of one hundred rupees and upwards, to or in immovable property;
(c) non-testamentary instruments which acknowledge the receipt or payment of any consideration on account of the creation, declaration, assignment, limitation or extinction of any such right, title or interest; and
(d) leases of immovable property from year to year, or for any term exceeding one year, or reserving a yearly rent;
(e) non-testamentary instruments transferring or assigning any decree or order of a Court or any award when such decree or order or award purports or operates to create, declare, assign, limit or extinguish, whether in present or in future, any right, title or interest, whether vested or contingent, of the value of one hundred rupees and upwards, to or in immovable property:
Provided that the 2[State Government] may, by order published in the 3[Official Gazette], exempt from the operation of this sub-section any lease executed in any district, or part of a district, the terms granted by which do not exceed five years and the annual rents reserved by which do not exceed fifty rupees.
(1A) The documents containing contracts to transfer for consideration, any immovable property for the purpose of section 53A of the Transfer of Property Act, 1882 (4 of 1882) shall be registered if they have been executed on or after the commencement of the Registration and Other Related laws (Amendment) Act, 2001 and if such documents are not registered on or after such commencement, then, they shall have no effect for the purposes of the said section 53A.
(2) Nothing in clauses (b) and (c) of sub-section (l) applies to--
(i) any composition deed; or Page 49 of 160 Downloaded on : Sat Jul 13 03:18:56 IST 2019 C/SA/183/2014 CAV JUDGMENT
(ii) any instrument relating to shares in a joint stock Company, notwithstanding that the assets of such Company consist in whole or in part of immovable property; or
(iii) any debenture issued by any such Company and not creating, declaring, assigning, limiting or extinguishing any right, title or interest, to or in immovable property except in so far as it entitles the holder to the security afforded by a registered instrument whereby the Company has mortgaged, conveyed or otherwise transferred the whole or part of its immovable property or any interest therein to trustees upon trust for the benefit of the holders of such debentures; or
(iv) any endorsement upon or transfer of any debenture issued by any such Company; or
(v) any document other than the documents specified in sub-section (1A) not itself creating, declaring, assigning, limiting or extinguishing any right, title or interest of the value of one hundred rupees and upwards to or in immovable property, but merely creating a right to obtain another document which will, when executed, create, declare, assign, limit or extinguish any such right, title or interest; or
(vi) any decree or order of a Court [except a decree or order expressed to be made on a compromise and comprising immovable property other than that which is the subject-matter r of the suit or proceeding]; or
(vii) any grant of immovable property by [Government]; or
(viii) any instrument of partition made by a Revenue-Officer; or
(ix) any order granting a loan or instrument of collateral security granted under the Land Improvement Act, 1871, or the Land Improvement Loans Act, 1883; or
(x) any order granting a loan under the Agriculturists, Loans Act, 1884, or instrument for securing the repayment of a loan made under that Page 50 of 160 Downloaded on : Sat Jul 13 03:18:56 IST 2019 C/SA/183/2014 CAV JUDGMENT Act; or (xa) any order made under the Charitable Endowments Act, 1890, (6 of 1890) vesting any property in a Treasurer of Charitable Endowments or divesting any such Treasurer of any property; or
(xi) any endorsement on a mortgage-deed acknowledging the payment of the whole or any part of the mortgage-money, and any other receipt for payment of money due under a mortgage when the receipt does not purport to extinguish the mortgage; or
(xii) any certificate of sale granted to the purchaser of any property sold by public auction by a Civil or Revenue- Officer. 4[Explanation.--A document purporting or operating to effect a contract for the sale of immovable property shall not be deemed to require or ever to have required registration by reason only of the fact that such document contains a recital of the payment of any earnest money or of the whole or any part of the purchase money.
(3) Authorities to adopt a son, executed after the 1st day of January, 1872, and not conferred by a will, shall also be registered. ... ... ... ... ..."
37. Section 49 of the Registration Act, 1908 reads as under:-
"49. Effect of non-registration of documents required to be registered.--No document required by section 17 1[or by any provision of the Transfer of Property Act, 1882 (4 of 1882)], to be registered shall--
(a) affect any immovable property
comprised therein, or
(b) confer any power to adopt, or
(c) be received as evidence of any transaction
affecting such property or conferring such power, unless it has been registered: 1[Provided that an unregistered document affecting immovable Page 51 of 160 Downloaded on : Sat Jul 13 03:18:56 IST 2019 C/SA/183/2014 CAV JUDGMENT property and required by this Act or the Transfer of Property Act, 1882 (4 of 1882), to be registered may be received as evidence of a contract in a suit for specific performance under Chapter II of the Specific Relief Act, 1877 (3 of 1877) 2,3 [***] or as evidence of any collateral transaction not required to be effected by registered instrument.... ... ... ..."
38. The Perusal of aforesaid Section 17 clearly suggests that the document/instrument, which intends/purports to create right/title to an immovable property having value of Rs.100/- should be registered. Similarly, the perusal of Section 49 of the Act suggests that the documents, which are required to be registered under Section 17 shall not affect any immovable property; comprised therein or confer any power to adopt or to receive any evidence to any transaction affecting the said property or conferring power unless it has been registered.
39. Indisputably, the so called irrevocable power of attorney coupled with interest is not a registered document. I am at one with Mr. Dave that the power of attorney is in substance in the form of a sale. In the last part of the document, it is clearly stated that full sale consideration of the property is being paid to the power of attorney by the plaintiffs. There is no doubt that law does not recognize such a sale.
40. As per Section 17 of the Registration Act, any document or instrument, which purports or intends to create title should be registered and in case the same is not registered, it would not affect any immovable property comprised therein or moreover it could not be allowed as evidence of any transaction affecting such property.
Page 52 of 160 Downloaded on : Sat Jul 13 03:18:56 IST 2019 C/SA/183/2014 CAV JUDGMENT41. In the aforesaid context, I deem fit to rely upon the judgment passed by the Apex Court in Suraj Lamp and Industries Private Limited Through Director vs. State of Haryana and Another, (2009)7 SCC 363, wherein the Apex Court has held as under:-
"15. The Registration Act, 1908, was enacted with the intention of providing ::: Downloaded on - 09/05/2017 23:57:20 :::HCHP 21 orderliness, discipline and public notice in regard to transactions relating to immovable property and protection from fraud and forgery of documents of transfer. This is achieved by requiring compulsory registration of certain types of documents and providing for consequences of non-registration.
16. Section 17 of the Registration Act clearly provides that any document (other than testamentary instruments) which purports or operates to create, declare, assign, limit or extinguish whether in present or in future "any right, title or interest" whether vested or contingent of the value of Rs.100 and upwards to or in immovable property.
17. Section 49 of the said Act provides that no document required by Section 17 to be registered shall, affect any immovable property comprised therein or received as evidence of any transaction affected such property, unless it has been registered. Registration of a document gives notice to the world that such a document has been executed.
18. Registration provides safety and security to transactions relating to immovable property, even if the document is lost or destroyed. It gives publicity and public exposure to documents thereby preventing forgeries and frauds in regard to transactions and execution of documents. Registration provides information to people who may deal with a property, as to the nature and extent of the rights which persons may have, affecting that property. In other words, it enables people to find out whether any particular property with which they are concerned, has been subjected to any legal obligation or liability and who is or are the person/s presently having right, title, and interest in the property.Page 53 of 160 Downloaded on : Sat Jul 13 03:18:56 IST 2019 C/SA/183/2014 CAV JUDGMENT
It gives solemnity of form and perpetuate documents which are of legal importance or relevance by recording them, where people may see the record and enquire and ascertain what the particulars are and as far as land is concerned what obligations exist with regard to them. It ensures that every person dealing with immovable property can rely with confidence upon the statements contained in the registers (maintained under the said Act) as a full and complete account of all transactions by which the title to the property may be affected and secure extracts/copies duly certified. "
42. The Perusal of the aforesaid law, having been laid by the Apex Court, clearly suggests that the title of immovable property, having value of more than Rs.100/-, can only be transferred by registered documents, as provided under Section 17 of the Registration Act, 1908. Similarly, it also emerge from the aforesaid judgment that no document as required by Section 17 to be registered shall, affect any immovable property comprised therein or received as evidence of any transaction affected such property unless it is registered.
43. In SMS Tea Estates Private Limited vs. Chandmari Tea Company Private Limited, (2011)14 SCC 66, the Apex Court has held as under:
"11. Section 49 makes it clear that a document which is compulsorily registrable, if not registered, will not affect the immovable property comprised therein in any manner. It will also not be received as evidence of any transaction affecting such property, except for two limited purposes. First is as evidence of a contract in a suit for specific performance. Second is as evidence of any collateral transaction which by itself is not required to be effected by registered instrument. A collateral transaction is not the transaction affecting the immovable property, but a transaction which is incidentally connected with that Page 54 of 160 Downloaded on : Sat Jul 13 03:18:56 IST 2019 C/SA/183/2014 CAV JUDGMENT transaction. The question is whether a provision for arbitration in an unregistered document (which is compulsorily registrable) is a collateral transaction, in respect of which such unregistered document can be received as evidence under the proviso to section 49 of the Registration Act."
44. However, the aforesaid principles would be applicable if ultimately the rights of the parties are to be determined vis-a- vis the document of power of attorney. I find it difficult to take the view that in view of the provisions of sections 17 and 49 of the Registration Act, 1908, the power of attorney holder cannot assert any right for the purpose of proceeding further with the present second appeal. He could be said to have some interest in terms of section 202 of the Contract Act and, therefore, I hold that he can legitimately submit before this Court that the plaintiffs should not be permitted to withdraw the second appeal.
45. In the aforesaid context, I may refer to and rely upon a decision rendered by a learned Single Judge of the Punjab & Haryana High Court in the case of Jeet Kumari vs. Girdhari Lal, 2003 (3) RCR (Civ) 391, wherein identical issue has been discussed and the position of law has been succinctly explained. The observations are as under:-
"11. I have considered the argument raised by learned counsel for the parties on the issue as to whether in absence of the registered sale deed, the plaintiff has become owner of the disputed house on the basis of agreement to sell (Ex. P2), Affidavit (Ex. P3), General Power of Attorney (Ex. P4) and Will (Ex. P5) executed by the defendant. I am of the view that the findings recorded by the fist appellate court on this issue are correct. Even though the execution of agreement to sell (Ex. P4), receipt of sale consideration by the defendant and handing over of possession of the disputed house Page 55 of 160 Downloaded on : Sat Jul 13 03:18:56 IST 2019 C/SA/183/2014 CAV JUDGMENT have been proved on record, yet these documents do not transfer the title or ownership of the disputed house in favour of the plaintiff. The provision of Section 54 of the Act of 1882 provides that sale of immovable property of the value of Rs. 100/- or more can be made only by a registered instrument. Nobody can call himself as owner by purchase on the basis of agreement to sell and the power of attorney executed by the alleged vendor in favour of the prospective purchaser/attorney in absence of a registered sale deed. Though the plaintiff has not acquired the ownership right on the disputed house as the registered sale deed has not been executed in her favour, yet it cannot be said that she has no interest in the disputed house. Since in the instant case, the plaintiff was put into possession of the disputed house as prospective vendee by the defendant after receiving the entire sale consideration; and further the defendant also executed irrecoverable power of attorney in favour of the plaintiff, an interest in the disputed house has definitely been created by the aforesaid transaction in favour of the plaintiff. Though Section 54 of the Act of 1882 provides that a contract of sale of immovable property 'does not, of itself create any interest in or charge on such property' but where a contract of sale was not a mere agreement to sell but more than that because practically the transaction was complete in all respects except the execution of the regular sale deed and registration thereof, such contract of sale definitely creates an interest in the property under the said agreement. Such an interest has been protected under Section 53-A of the Act of 1882 as well as under Section 202 of the Act of 1872. In the present case, the power of the attorney (Ex.P4) was irrecoverable. Firstly because in this document it has been mentioned that it is irrecoverable; and secondly in view of the provisions of Section 202 of the Act of 1872, this power of attorney cannot be revoked by the defendant. In the instant case, execution of the agreement to sell the disputed house in favour of the plaintiff and receipt of entire sale consideration and delivery of possession have definitely created an interest on the plaintiff in the disputed house. The provisions of Section 202 of the Act of 1872 will be applicable in the present case and the defendant cannot revoke the power of attorney executed hi favour of the plaintiff. The plaintiff is also legally entitled to protect her possession as a prospective vendee in view of the provisions of Page 56 of 160 Downloaded on : Sat Jul 13 03:18:56 IST 2019 C/SA/183/2014 CAV JUDGMENT Section 53A of the Act of 1882. Moreover, it is always to be borne in mind that while administering justice, equity always plays an important part and Courts cannot lose sight of the equities and, thus, help a wrong-doer on mere technalities. Thus, I am of the opinion that though the plaintiff has not become owner of the disputed house, but she is definitely entitled to protect her possession which was handed over to her by the defendant after receiving the entire sale consideration under the agreement to sell (Ex.P2) under the provision of Section 53-A of the Act of 1882 which clearly provides that 'Notwithstanding that the contract, though required to be registered, has not been registered, or, where there is an instrument of transfer, that the transfer has not been completed in the manner prescribed therefore by the law for the time being in force, the transferor or any person claiming under him shall be debarred from enforcing against the transferee and persons claiming under him any right in respect of the property of which the transferee has taken or continued in possession, other than a right expressly provided by the terms of the contract."
46. Thus, having regard to the position of law, as discussed above, I am at one with Mr. Dave, the learned counsel appearing for the plaintiffs that the extent no valid title could be said to have passed in favour of the power of attorney holder by virtue of the so called irrecoverable power of attorney. As discussed above, there cannot be a valid transfer of immovable property by way of power of attorney. I am also at one with Mr. Dave that the power of attorney holder cannot claim to be the lawful owner of the suit property as on date. However, at the same time, as discussed above, it is difficult for me to take the view that he cannot be said to have any interest in the litigation. If, at all, the plaintiffs succeed in this second appeal, then probably, thereafter, the power of attorney may have to ask the plaintiffs to execute a valid sale deed in his favour with respect to the suit property in Page 57 of 160 Downloaded on : Sat Jul 13 03:18:56 IST 2019 C/SA/183/2014 CAV JUDGMENT accordance with law. That would, altogether, be a different issue, with which, I am not concerned at this stage in the present litigation.
47. Before I close this issue, I may refer to the observations made by the Supreme Court in the case of Rama Vidya Bhushan Singh vs. Ratiram, reported in 1969 (1) UJ 86 SC that a document required by law to be registered, if unregistered, is inadmissible as evidence of a transaction affecting the immovable property, but it may be admitted as evidence of collateral facts, or for any collateral purpose, that is for any purpose other than that of creating, declaring, assigning, limiting or extinguishing a right to immovable property. As stated by Mulla in his Indian Registration Act, 7th En., at p. 189:
"The High Courts of Calcutta, Bombay, Allahabad, Madras, Patna, Lahore, Assam, Nagpur, Pepsu, Rajasthan, Orissa, Rangoon and Jammu & Kashmir; the former Chief Court of Oudh; the Judicial Commissioner's Court of Peshawar, Ajmer and Himachal Pradesh and the Supreme Court have held that a document which requires registration under Section 17 and which is not admissible for want of registration to prove a gift or mortgage or sale or lease is nevertheless admissible to prove the character of the possession of the person who holds under it."
48. In view of the aforesaid discussion, I now proceed to consider the second appeal on its own merits.
49. Submissions on behalf of the power of attorney holder:-
49.1 Mr. Desai, the learned senior counsel appearing for the Page 58 of 160 Downloaded on : Sat Jul 13 03:18:56 IST 2019 C/SA/183/2014 CAV JUDGMENT power of attorney holder vehemently submitted that the original sale deed dated 25th February, 1965 (Exh.140) has not been produced by the defendants and in the absence of the original sale deed, the courts below could not have admitted the certified copy of the sale deed as the secondary evidence.
He further submitted that the sale deed, Exh.140, was never produced before the office of the Registrar in accordance with section 23 of the Registration Act. He pointed out that the sale deed, Exh.140, was produced, for the first time, after a period of 11 months, i.e, on 21st January, 1966 for the purpose of registration.
49.2 According to Mr. Desai, the possession of the property, at no point of time, changed hands. The sale consideration of Rs.2000/- in cash has not been proved in accordance with law by the defendants. In such circumstances, it cannot be said to be a transfer of property in accordance with the provisions of section 54 of the Transfer of Property Act. Mr. Desai submitted that the photocopy of the sale deed, Exh.140 came to be produced after a period of 26 years before the Registering Authority for the purpose of mutation of revenue entry. He submitted that the attesting witnesses have also not been examined by the defendants. Even the scribe of the sale deed has not been examined though he was a minor. In the written statement, there is no pleading/assertion that the original sale deed is lost. Mr. Desai submitted that one Pareshbhai Kishorchandra Shukal, serving in the office of the Sub-Registrar appeared before the Civil Court and entered the box. His evidence is at Exh.152. The officer produced the photocopy of the Registered Book Extract, Exhs.157 and 158 to establish the Page 59 of 160 Downloaded on : Sat Jul 13 03:18:56 IST 2019 C/SA/183/2014 CAV JUDGMENT registration of the sale deed in favour of the defendants. Mr. Desai submitted that in his cross-examination, the officer has admitted that there is no identification of Kesar Sultan Sipai and even in Exh.140, i.e, the photocopy of the sale deed produced by the officer, there is no thumb impression of Kesarbhai or any other seller. In short, according to Mr. Desai, Exhs.157 and 158 could not have been admitted in evidence as a substitute to a photocopy of the alleged sale deed. He submitted that the Trial Court, vide order dated 29th March, 2011 passed below Exh.135, had allowed exhibiting all these documents, more particularly, Exh.140 subject to proving the same in accordance with law. According to him, at the most, Exhs.157 and 158 could be termed only as corroborative piece of evidence. Mr. Desai submitted that even if Exhs.157 and 158 are treated as the corroborative piece of evidence without the original sale deed on record, Exhs.157 and 158 have no evidenciary value.
49.3 Mr. Desai submitted that a certified copy of the sale deed cannot be termed as a public document under section 74 of the Evidence Act. He submitted that the issue of possession has been completely overlooked by both the courts below. Mr. Desai invited the attention of the Court to the following aspects:-
"(a) The possession remained with the Plaintiffs till 1995 and thereafter that of the Power of Attorney Holder.
(b) Entry No.817 till date is undisputed and not cancelled.
(c ) ULC proceedings were conducted by the Plaintiffs.
(d) Other Revenue Entries from 1965 till 1991 (Exh. 88 Page 60 of 160 Downloaded on : Sat Jul 13 03:18:56 IST 2019 C/SA/183/2014 CAV JUDGMENT to 92).
(e) No action by the Defendants till the year 1991.
(f) 11.04.1994 and 16.04.1994 Order of Status Quo granted against the Defendants.
(g) 25.02.1995 transfer of possession in favour of the Power of Attorney Holder.
(h) Exh. 21, order dated 15.07.1997 joint purshis to maintain status quo by all parties. POA in Possession.
(I) Exh.23 application claimed to be under Order 6 Rule 17 praying for adding issue of possession in the written statement was filed by defendant no.1 purchaser after a period of 10 years of institution of suit. The said application was rejected on 14.9.2005 by the trial Court and confirmed the said rejection by order passed in the Special Civil Application No.1339 of 2006 in which not only this Court dismissed the petition of defendant no.1- purchaser but also observed that the possession was not with the purchaser and therefore also, on this ground, transfer under Section 54 of the Transfer of Property Act cannot be said to have been established.
(j) Exh. 60 contempt application by the Defendants- clarified that no contempt as the Power of Attorney deed dated 25.02.1995 before the Order dated 15.07.1997.
(k) Exh. 76 Cross of Akbar Kesar Sipai specifically states possession is with the Plaintiffs.
(l) Exh. 109 Chief of Power of Attorney Holder.
(m) Exh. 116 to 122 documentary evidence to show possession of the Plaintiffs.
(n) Exh. 132 both Chief and Cross independent witness Chaturbhai Bhagwanjibhai Korat.
(o) Directions to GEB to give electricity connection.
(p) Only claim of the Defendants for possession is in their Written Statement and no other documentary proof Page 61 of 160 Downloaded on : Sat Jul 13 03:18:56 IST 2019 C/SA/183/2014 CAV JUDGMENT is produced.
(q) Sale Deed showing possession cannot be considered as proof of possession as the validity of the said sale deed is in question before the Courts. (No proof of the same produced by the Defendants).
(r ) Prayer of Adverse Possession, only has an alternative prayer and not a substantial prayer.
(s) After the order passed by the Trial Court, Possession grabbed by the Defendants.
I. Police Complaint not entertained.
ii. In the contempt application preferred before this Hon'ble Court being Misc. Civil Application No.3005 of 2011, notice was issued by the Hon'ble Division Bench (Coram: Hon'ble Mr. Chief Justice Bhaskar Bhattacharya and Hon'ble Mr. Justice J.B. Pardiwala), but later on vide order dated 29.11.2011, the said application was not heard further on merits on the ground that First Appeal under Section 96 of the CPC being First Appeal No.100 of 2011 was already preferred by the plaintiff.
iii. Application for Mandatory Injunction filed along with First Appeal-rejected- Therefore they approached the High Court-rejected-therefore approached the Supreme Court of India-not entertained, however, directed to hear the First Appeal in Three Months.
iv. Application under Order 41, Rule 27 for production of documents.
v. Suit under Section 6 of the Specific Performance Act."
49.4 Mr. Desai also brought to the notice of this Court the following attending circumstances, which according to him, have been overlooked by the two courts below:-
"(a) Sale deed was produced for registration after a period of 11 months before the office of Sub Registrar;Page 62 of 160 Downloaded on : Sat Jul 13 03:18:56 IST 2019 C/SA/183/2014 CAV JUDGMENT
(b) After the death of Kesarbhai on 17.12.1983, the heirship entries were mutated and certified being Entry No.817 in the names of heirs and legal representatives of Kesarbhai.
(c ) Village Form No.7/12 and Village Form No.6 were all in the names of original owners.
(d) On 19.10.1988, the ULC proceedings were initiated, notice was issued in the name of Kesarbhai, reply was given that Kesarbhai had died, and therefore, the notice was issued in the name of heirs and legal representatives of Kesarbhai and hence, it is an undisputed position of law as regards the possession of land in question on the basis of revenue records also
(e) Electricity bills, revenue receipts produced on record vide Exh. 88 to 92, Exh. 115 to 124 were produced on record showing the names of Naranbhai Jadavbhai Lalakiya and heirs and legal representatives of Kesarbhai and Kesarbhai respectively.
(f) Neighbouring land owner Chaturbhai Bhagwanbhai Korat vide Exh.:132 has deposed that Naranbhai Jadavbhai Lalakiya is in possession of the land in question since long.
(g) Akbar Kesarbhai Sipai has not been crossed examined on the issue of affixation of thumb impression or signature.
(h) The second purchaser being defendant no.2 has not entered in the witness box. Defendant no.2-purchaser has also not filed written statement as there is no signature of defendant no.2 in the written statement.
(I) Defendant no.1-purchaser has not mentioned in the written statement that original sale deed is lost or misplaced.
(j) Defendant no.1 loosely mentioned in the examination in chief that the document is 'lost'.
(k) It is an undisputed fact that no foundational fact is even mentioned as per Section 65 of the Evidence Act regarding the document being lost, destroyed, Page 63 of 160 Downloaded on : Sat Jul 13 03:18:56 IST 2019 C/SA/183/2014 CAV JUDGMENT misplaced, etc. It is the fact that Kesarbhai was illiterate.
(l) There is no Identification of Kesarbhai or other- sellers in the sale deed.
(m) Ingredients of Section 54 of passing of possession and consideration are not proved.
(n) Cash transaction of Rs.2000/- is not proved.
(o) As regards Section 90 of the Evidence Act, 30 years old document also cannot be considered as a public document in the facts of the present case."
49.5 Mr. Desai submitted that the defendants failed to prove the execution of the sale deed having regard to the following:-
"(a) Contents of the document not proved, consideration not proved, signature/thumb not proved.
(b) Witness not examined including the scribe of the document.
(c ) No primary Evidence produced by the Defendants.
(d) No reliance could have placed on Exhs.157 and 158 (Photocopies of the register of the Sub-Registrar) as at best it is Corroborative in nature. However, the same cannot be relied upon in absence of primary evidence.
(e) Section 54 of the Transfer of Property Act not satisfied.
(f) Adverse inference is required to be drawn as no party with a validly executed sale deed would not get it implemented for over 26 years. More so, when there was allegedly a correction deed to suggest conversion of the land in question to NA and that too not having been acted upon for equally long period of time.
(g) Registration of the document is no proof of contents of the document."
49.6 In such circumstances, referred to above, Mr. Desai prays that there being merit in this second appeal, the same be Page 64 of 160 Downloaded on : Sat Jul 13 03:18:56 IST 2019 C/SA/183/2014 CAV JUDGMENT allowed by quashing and setting aside the judgments of the lower courts and the suit of the plaintiffs be allowed.
49.7 Mr. Desai prays that this Court may allow the suit and issue a declaration that the sale deed Exh.140 does not confer the defendants with any right, title and interest over the suit property as the defendants have failed to establish that they are the lawful owners of the suit property by virtue of the sale deed Exh.140.
50. Submissions on behalf of the original plaintiffs:-
50.1 Mr. K.S. Chandrani, the learned counsel appearing for the defendants vehemently submitted that no error, not to speak of any error of law, could be said to have been committed by the two courts below in holding that the plaintiffs have no right, title and interest over the suit property and that the defendants have been able to establish by leading cogent evidence that a valid sale deed was executed in their favour by late Kesar Sultan Sipai, Exh.140. Mr. Chandrani submitted that in view of the concurrent findings recorded by the two courts below, this Court, in exercise of its power under section 100 of the CPC may not take a different view. He would submit that the plain reading of the various provisions of the Evidence Act would indicate that a certified copy of a registered document is permissible as a secondary evidence for proving the existence and contents of the document in question in the absence of primary evidence in the form of original registered document.
The learned counsel submitted that the burden of proof is on the plaintiffs to establish that the sale deed is sham and bogus. The defendants have been able to prove the execution and contents of the sale deed, Exh.140 in their favour. This initial Page 65 of 160 Downloaded on : Sat Jul 13 03:18:56 IST 2019 C/SA/183/2014 CAV JUDGMENT burden of proof upon the plaintiffs could not be said to have been discharged in any manner. The learned counsel would submit that it is not just sufficient to assert that the sale deed is sham and bogus or no such transaction had taken place at the relevant point of time. He would submit that the plaintiffs ought to have led cogent evidence in this regard. It is submitted that the attempt on the part of the plaintiffs is to shift the burden upon the defendants to establish that a valid sale deed was executed in their favour by the then owner of the suit land.
50.2 The learned counsel submitted that the foundation for relying upon the certified copy of the sale deed as the secondary evidence was led by the defendants by stating on oath that the original was lost. It is submitted that both the courts below have believed that a valid sale deed was executed, Exh.140, in favour of the defendants. The learned counsel submitted that upon appreciation of oral as well as the documentary evidence on record, the courts below have recorded a concurrent finding leading to the construction that the execution and the contents of the sale deed in question has been duly proved. The said finding cannot be made a subject matter of challenge in a second appeal unless the plaintiffs are able to point out any perversity in such finding.
50.3 The learned counsel submitted that section 71 of the Evidence Act has no application to the case on hand. According to the learned counsel, section 71 of the Evidence Act would come into play if the attesting witness to the concerned document is examined and such attesting witness neither denies or is unable to recollect the execution of the document.
Page 66 of 160 Downloaded on : Sat Jul 13 03:18:56 IST 2019 C/SA/183/2014 CAV JUDGMENTIn the case on hand, no attesting witness to the registered sale deed was examined and, therefore, there is no question of applying section 71 of the Evidence Act. He submitted that the sale deed does not require compulsory attestation. The proof of its execution is governed by section 72 of the Evidence Act.
50.4 In such circumstances, referred to above, the learned counsel prays that there being no merit in this second appeal, the same be dismissed.
ANALYSIS
51. There is no doubt that the defendants have been able to produce, in evidence, the certified copy of the sale deed as secondary evidence on the premise that the original has been lost. There is also no doubt that in the course of the trial of the civil suit, one Pareshbhai Kishorchandra Shukal, serving in the office of the Sub-Registrar entered the box and produced the photocopy of the Registered Book Extract, Exhs.157 and 158 to establish the registration of the sale deed in favour of the defendants. This has been the basis of the defendants while opposing the suit filed by the plaintiffs and the courts below believed the valid execution of the sale deed in favour of the defendants way back in the year 1965.
52. A registered document and the registration of the sale deed no doubt reinforces the valid execution of the sale deed. A registered document carries with it a presumption that it was validly executed. It is for the party challenging the genuineness of the transaction to show that the transaction is not valid in law. In Prem Singh and Others v. Birbal and Others, (2006) 5 SCC 353, it was held as under:-
Page 67 of 160 Downloaded on : Sat Jul 13 03:18:56 IST 2019 C/SA/183/2014 CAV JUDGMENT"27. There is a presumption that a registered document is validly executed. A registered document, therefore, prima facie would be valid in law. The onus of proof, thus, would be on a person who leads evidence to rebut the presumption. In the instant case, Respondent 1 has not been able to rebut the said presumption."
53. The above judgment in Prem Singh's case has been referred to in Vishwanath Bapurao Sabale v. Shalinibai Nagappa Sabale and Others (2009) 12 SCC 101.
54. In Rangammal vs. Kuppuswami & Ors., reported in AIR 2011 SC 2344, the Supreme Court observed thus:-
" It may be relevant at this stage to cite the ratio of the decision of this Court delivered in the matter of Subhra Mukherjee vs. Bharat Coaking Coal Ltd, AIR 2000 SC 1203, whether the document in question was genuine or sham or bogus, the party who alleged it to be bogus had to prove nothing until the party relying upon the document established its genuineness.
Application of Section 101 of the Evidence Act, 1872 thus came up for discussion in this matter and while discussing the law on the burden of proof in the context of dealing with the allegation of sham and bogus transaction, it was held that party which makes allegation must prove it. But the court was further pleased to hold wherein the question before the court was "whether the transaction in question was a bona fide and genuine one" so that the party/plaintiff relying on the transaction had to first of all prove its genuineness and only thereafter would the defendant be required to discharge the burden in order to dislodge such proof and establish that the transaction was sham and fictitious."
55. In Ningawwa vs. Byrappa Shiddappa Hireknrabar, 1968 AIR (SC) 956, the Supreme Court held as under:-
"27. There is a presumption that a registered document is validly executed. A Registered document, therefore, Page 68 of 160 Downloaded on : Sat Jul 13 03:18:56 IST 2019 C/SA/183/2014 CAV JUDGMENT prima-facie would be valid in law. The onus of proof, thus, would be on a person who leads evidence to rebut the presumption."
56. In Vimal Chand Chevarchand Jain & Ors. vs. Ramakant Eknath Jadoo, (2009) 5 SCC 713, the Supreme Court held that the registered sale deed is presumed to be valid unless the contrary is proved. The onus is on the person who challenges the same to show that it is either not acted upon or is a sham transaction.
57. On the submissions urged by both the sides, the following points should be looked into and decided first:-
(i) Whether a sale deed (duly registered) is a public document ?
(ii) Whether a certified copy of a sale-deed issued by the Registering Officer is a public document ?
58. The aforesaid points have been discussed and explained exhaustively by Hon'ble Justice R.V. Raveendran (as his Lordship then was) in Smt. Rekha Rana & Ors. vs. Smt. Ratnashree Jain, reported in AIR 2006 M.P., 107.
Re : Points (i) and (ii)
59. The answer to these two questions can be found in the Evidence Act.
59.1 Chapter V of the Act deals with Documentary Evidence. Section 61 provides that contents of documents may be proved either by primary or by secondary evidence. Section 62 Page 69 of 160 Downloaded on : Sat Jul 13 03:18:56 IST 2019 C/SA/183/2014 CAV JUDGMENT defines primary evidence as meaning the document itself produced for inspection of the Court. Section 63 defines Secondary evidence as meaning and including among others certified copies given under the provisions of the Evidence Act. Section 64 provides that documents must be proved by primary evidence except in the cases mentioned in the subsequent sections.
59.2 Section 65 deals with cases in which secondary evidence relating to documents may be given. The relevant portion of Section 65 is extracted below:
"Secondary evidence may be given of the existence, condition or contents of a document in the following cases:
(a) when the original is shown or appears to be in the possession or power of the person against whom the document is sought to be proved, or of any person out of reach of, or not subject to, the process of the Court, or of any person legally bound to produce it, and when, after the notice mentioned in Section 66, such person does not produce it;
(b) when the existence, condition or contents of the original have been proved to be admitted in writing by the person against whom it is proved or by his representative in interest;
(c) when the original has been destroyed or lost, or when the party offering evidence of its contents cannot, for any other reason not arising from his own default or neglect, produce it in reasonable time;
(d) when the original is of such nature as not to be easily movable;
(e) when the original is a public document within the meaning of Section 74;
(f) when the original is a document of which a certified copy is permitted by this Act, or by any other law in force is, to be given in evidence....Page 70 of 160 Downloaded on : Sat Jul 13 03:18:56 IST 2019 C/SA/183/2014 CAV JUDGMENT
(g) XXXX"
59.3 Section 65 further provides that in cases (a), (c) and (d), any secondary evidence of the contents of document is admissible; in case (b), the written admission is admissible; in case (e) and (f), a certified copy of the document, but no other kind of secondary evidence, is admissible.
59.4 Section 67 relates to proof of signature/handwriting. It is extracted below:
"67. Proof of signature and handwriting of persons alleged to have signed or written document produced : If a document is alleged to be signed or to have been written wholly or in part by any person, the signature or the handwriting of so much of the document as is alleged to be in that person's handwriting must be proved to be in his handwriting. "
59.5 Sections 74 and 75 define public documents and private documents respectively. They are extracted below:
"74. Public documents - The following documents are public documents -
(1) documents forming the acts or records of the acts -
(i) of the sovereign authority,
(ii) of official bodies and tribunals, and
(iii) of public officers, legislative, judicial and executive of any part of India or of the Common Wealth or of a foreign country;
(2) public records kept in any State of private documents.
75. Private documents - All other documents are private. "
Page 71 of 160 Downloaded on : Sat Jul 13 03:18:56 IST 2019 C/SA/183/2014 CAV JUDGMENT60. A deed of sale is a conveyance. A deed of conveyance or other document executed by any person is not an act nor record of an act of any sovereign authority or of any official body or tribunal, or of any public officer, legislative, judicial and executive. Nor is it a public record kept in a State of any private documents. A sale deed (or any other deed of conveyance) when presented for registration under the Registration Act, is not retained or kept in any public office of a State after registration, but is returned to the person who presented such document for registration, on completion of the process of registration, An original registered document Is not therefore a public record kept in a state of a private document, Consequently, a deed of sale or other registered document will not fall under either of the two classes of documents described in Section 74, as 'public documents'. Any document which is not a public document is a private document. I, therefore, have no hesitation in holding that a registered sale deed (or any other registered document) is not a public document but a private document.
61. This position is made abundantly clear in Gopal Das v. Shri Thakurji AIR 1943 Privy Council 83, wherein the Privy Council considering the question whether a registered receipt is a public document observed thus:
"It was contended by Sir Thomas Strongman for the respondents that the receipt comes within para 2 of Section 74, Evidence Act, and was a "public document"; hence under Section 65(e) no such foundation is required as In cases coming within Clauses (a), (b) and (c) of that section. Their Lordships cannot accept this argument since the original receipt, of 1881 is not "a public record of a private document". The original has to be returned to the party. A similar argument would appear at one time Page 72 of 160 Downloaded on : Sat Jul 13 03:18:56 IST 2019 C/SA/183/2014 CAV JUDGMENT to have had some acceptance in India but it Involves a misconstruction of the Evidence Act and Registration Act and later decisions have abandoned it."
62. I may also refer to the following passage from Ratanlal's Law of Evidence' (19th Edition page 237):
"Public document, (clause (e)] - This clause is intended to protect the originals of public records from the danger to which they would be exposed by constant production in evidence. Secondary evidence is admissible in the case of public documents mentioned in Section 74. What Section 74 provides is that public records kept in any state of private documents are public documents, but private documents of which public records are kept are not in themselves public documents. A registered document, therefore, does not fall under either Clause (e) or (f). The entry in the register book is a public document, but the original is a private document."
63. What then is a "public record, kept in any state of private documents" referred to in Clause (2) of Section 74? The answer may be found in the Registration Act, 1908.
63.1 When a document is presented for registration and the person executing it appears and admits execution, Section 35 of the Registration Act, requires the Registering Officer to register the document as directed in Sections 58 to 61 of the said Act.
63.2 Section 51 relates to Register Books to be kept in the registration offices. Relevant portions thereof extracted below:
"51. Register-books to be kept in the several offices:
(1) The following books shall be kept in the several offices hereinafter named, namely:
A. In all registration offices -Page 73 of 160 Downloaded on : Sat Jul 13 03:18:56 IST 2019 C/SA/183/2014 CAV JUDGMENT
Book 1, "Register of non-testamentary documents relating to immovable property".
Book 2, "Record of reasons for refusal to register". Book 3, "Register of wills and authorities to adopt", and Book 4, "Miscellaneous Register".
B. In the offices of Registrars -
Book 5, "Register of deposits of wills".
(2) In Book 1 shall be entered or filed all documents or memoranda registered under Sections 17, 18 and 89 which relate to immovable property, and are not wills. "
63.3 It is clear from Section 51 that all deeds relating to immovable property of which registration is compulsory under Section 17 or of which registration is optional under Section 18 (and the orders/certificates/instruments enumerated in Section
89) are entered or filed in Book 1 kept by the Registering Officers. The word "entered or filed" in Book I means the verbatim copying of the deed in the book or filing of a complete copy of the deed, with all endorsements and certificates in, Book 1. In fact, Section 52 requires that every document admitted to registration shall be copied in the Book appropriated therefor.
63.4 Section 57 requires the Registering Officers to allow inspection of Books No, 1 and 2 and indexes relating to Book No. 1 and to give certified copies thereof. The relevant portion of the said Section is extracted below:
"(1) Subject to the previous payment of the fees payable in that behalf, the Books Nos. 1 and 2 and the Indexes relating to Book No. 1 shall be at all time open to inspection by any person applying to inspect the same;
and, subject to the provisions of Section 62, copies of entries in such books shall be given to all persons applying for such copies.
Page 74 of 160 Downloaded on : Sat Jul 13 03:18:56 IST 2019 C/SA/183/2014 CAV JUDGMENT (2) XXXX (3) XXXX (4) XXXX
(5) All copies given under this section shall be signed and sealed by the registering-Officer, and shall be admissible for the purpose of proving the contents of the original documents. "
63.5 Section 60 requires the Registering Officer to endorse on the document presented for registration, on completion of the formalities of registration, a certificate containing the word 'registered'. Sub-section (2) of Section 60 provides thus:
"60(2) Such certificate shall be signed, sealed and dated by the registering officer, and shall then be admissible for the purpose of proving that the document has been duly registered in manner provided by this Act, and that the facts mentioned in the endorsement, referred to in Section 59 have occurred as therein mentioned. "
63.6 Section 61 deals with copying of endorsements and certificate and return of document. It is extracted below:
"(1) The endorsements and certificate referred to and mentioned in Sections 59 and 60 shall thereupon be copied into the margin of the Register Book, and the copy of the map or plan (if any) mentioned in Section 21 shall be filed in Book No. 1.
(2) The registration of the documents shall thereupon be deemed complete, and the document shall then be returned to the person who presented the same for registration, or to such other person (if any) as he has nominated in writing in that behalf on the receipt mentioned in Section 52. " (Emphasis supplied)
64. It is clear from the above that Book 1 maintained in the Registration Offices (a Register where all non-testamentary documents relating to immovable property are copied, entered Page 75 of 160 Downloaded on : Sat Jul 13 03:18:56 IST 2019 C/SA/183/2014 CAV JUDGMENT or filed) is a public record kept in a State of private documents and therefore a public document. When any person applies for the certified copy of document registered in the office which is entered/filed in Book 1, a certified copy of the document as copies/filed in Book 1 is furnished to the applicant. Such certified copy of any entries in that public record (Book 1) is a certified copy of a public document. But such certified copy of the registered document extracted from Book 1 is not itself a public document. It is really a true copy of a copy (copy of original deed entered in Book 1).
65. I, therefore, answer points (i) and (ii) as follows:
(i) A Registered document (Deed of sale etc.) is not a public document. It is a private document.
(ii) Book 1 kept in the Registration Offices under the Registration Act, where the Registered documents (private documents) are copied, entered or filed, is a public document.
(iii) A certified copy of a registered document, copied from Book 1 and issued by the Registering Officer, is neither a pubic document, nor a certified copy of a private document, but is a certified copy of a public document.
66. In the case of Jagdishchandra Chandulal Shah, 1989 (1) GLH 82, a learned Single Judge of this Court on considering the provisions of section 65 and 74 of the Indian Evidence Act as also section 57 of the Registration Act, has held and observed in paragraph 6, 7 and 11, as under:
"6. It may be stated that so far as the proving of the contents of the documents is concerned, it is provided in Page 76 of 160 Downloaded on : Sat Jul 13 03:18:56 IST 2019 C/SA/183/2014 CAV JUDGMENT Chapter V of the Evidence Act, section 61 of the Evidence Act provides that contents of the documents may be proved either by primary or secondary evidence. Section 62 of the Evidence Act defines what is primary evidence. Primary Evidence means the document itself produced for the inspection of the court. The definition of secondary evidence inter alia includes the certified copies given under the provisions contained in the said Act. Section 63 of the said Act also provides that secondary evidence may be given of the existing condition or contents of document in the cases enumerated therein inter alia when the original document is a public document within the meaning of section 74 of the said Act and when the original is a document of which a certified copy is permitted by this Act or by any other law in force in India to be given in evidence. So, secondary evidence in respect of a document can be given by certified copy of the document inter alia in cases enumerated in clause (e) and (f) of section 65 of the Act the certified copy of the document and no other kind of secondary evidence is permissible. Section 74 of the said Act specifies the documents which are public documents and sub section (2) of section 74 provides that public records kept in the State of private documents are public documents. Private documents are defined as those documents which are not falling within the category of public documents. Section 77 of the said Act provides that such certified copies may be produced in proof of the contents of the public documents or parts of public documents or which they purport to be copies.
7. From the above provisions of the Evidence Act, it is clear that there might be private documents but if public records thereof are kept in any State then such public records of the private documents would be public documents and, therefore, certified copies of such documents can also be produced in proof of the contents of the private documents of which public records are kept. Initially, such documents might be private documents and such private documents never change the character as private documents but if public records are kept then such public records of such private documents kept by the State would be public documents and therefore, though they might be copies of private documents, kept in the public record, they would be public documents and hence the contents thereof can be Page 77 of 160 Downloaded on : Sat Jul 13 03:18:56 IST 2019 C/SA/183/2014 CAV JUDGMENT proved by producing certified copies thereof.
11. Further, it may be mentioned that section 17 of the Registration Act inter alia provides that when there is any document of sale of immoveable property for the value of more than Rs.100.00 it requires compulsory registration. Section 51 of the Registration Act provides that the following shall be kept in the several offices:
A- In all registration offices-
Book 1, Register of non testamentary documents relating to immovable property Book 2, Record of reasons for refusal to register Book 3, Register of wills and authorities to adopt and Book 4, Miscellaneous Register Section 52 of the Registration Act provides for duties of the registering officer when the document is presented for registration. Section 52 also inter alia provides that subject to the provisions of section 62 every document admitted to registration shall without unnecessary delay be copied in the book appropriated therefor according to the order of its admission. Section 57 of the Registration Act provides that the books no.1 and 2 and the index relating thereto relating to Book No.1 shall be not at all times open to inspection by any person applying to inspect the same and subject to provisions of section 62 copies of entries in such books shall be given to all persons applying for such copies. Sub section (5) of section 57 provides that all copies given under this section shall be signed and sealed by the registering officer and shall be admissible for the purpose of proving the contents of the original documents. When that is the legal position, the document at Sr. NO.6 which is the certified copy of the sale deed in respect of the disputed land would be a public document and therefore admissible for the purpose of proving the contents of the original document. However, it is clarified that whenever the question of execution of same arises it will be required to be proved according to law."Page 78 of 160 Downloaded on : Sat Jul 13 03:18:56 IST 2019 C/SA/183/2014 CAV JUDGMENT
67. The dictum as laid in Jagdishchandra (supra) is that the certified copy of the sale deed would be a public document and, therefore, would be admissible for the purpose of proving the contents of the original document. However, whenever the question of execution of the same arises, it will have to be proved according to law. What is sought to be conveyed in the said decision is that by merely admitting the certified copy of the sale deed in evidence, the execution of the same will not automatically stand proved.
68. A Full Bench of the Andhra Pradesh High Court in the case of The Land Acquisition Officer, Vijayawada Thermal Station vs. Nutalapati Venkana Rao, reported in AIR 1991 AP 31 had the occasion to examine the question whether the "contents" of a certified copy of the sale deed should be treated as evidence although none connected with the deed had been examined in the context of Sections 60, 67, 63, 65 of the Evidence Act and 57(5) of the Registration Act. The Full Bench held as under:
"16. We shall first deal with the question as to the admissibility of 'secondary evidence' which has been allowed to be marked without objection and without proving the conditions for adducing such secondary evidence. We shall thereafter discuss the question whether a certified copy granted by a Sub-Registrar can at all be treated as 'secondary evidence' even though it is only a copy of a copy.
17. We shall deal with the first aspect initially. In the Evidence Act, 1877, Part II deal with 'proof. We are concerned with Chapter IV (Ss. 61 to 90) dealing with 'documentary evidence'. Section 61 states :
"S.61 : The contents of documents may be proved either Page 79 of 160 Downloaded on : Sat Jul 13 03:18:56 IST 2019 C/SA/183/2014 CAV JUDGMENT by primary evidence or by secondary evidence."
'Primary evidence' of documents is defined in S. 62 as 'the document itself produced for inspection of the Court; 'Secondary evidence' of documents is defined in S. 63 as : (1) certified copies under the provisions 'hereinafter' contained, (2) copies made from the original by mechanical process, (3) copies made from or compared with original, (4) counter parts and (5) oral accounts of the contents of a document given by some person who has himself seen it. Illustration (c) to S. 63 states that 'a copy of a copy' is not secondary evidence unless it has been compared with the original. Sec. 64 enjoins that a document must be 'proved' by primary 'evidence except in cases 'hereinafter' mentioned and S. 65 refers to the conditions to be satisfied before secondary evidence relating to document can be given.
18. Now, it cannot be disputed that a certified copy granted by the Sub-Registrar is a copy of a copy. Therefore, it becomes necessary to decide incidentally whether such a copy given by a public authority in respect of acopy entered in his records, can be treated as 'secondary evidence'. As will be presently* noted, the Privy Council and the Supreme Court have treated certified copies so granted as 'secondary evidence'. We shall now refer to these aspects. First, we shall deal with the question of the effect of not raising objection to the adduction of secondary evidence.
19. The concepts of primary evidence and secondary evidence are fundamental to the consideration of the above question. As in the case of marking of documents under O. 13, R. 4, C.P.C. the principle of waiver has been applied whenever secondary evidence is adduced without objection. If no objection is raised at the stage when secondary evidence is adduced, no objection can be permitted at any later stage as held in Williams v. Wilcox, (1838) 8 Ad & El. 314 : 112 ER 857. There a copy which was secondary evidence was filed as evidence and as no objection was raised, Lord Denman held that no objection can be raised later. Objections as to sufficiency of search cannol be permitted later. See Hals-bury's Laws of England (4th Ed. Vol. 17, para 140). The position in Canada is the same as stated in Guerin v. Fox,(1898) QB 15 SC 199 : 22 Emp Dig p. 211 fn. k. It was there held that the "rule of law, that the evidence offered must be Page 80 of 160 Downloaded on : Sat Jul 13 03:18:56 IST 2019 C/SA/183/2014 CAV JUDGMENT the best evidence and that secondary evidence can be received only when the impossibility of producing the best has been established, is enacted in the interests of the parties and is not founded upon considerations of public policy, and that the objection to such evidence may be considered to be waived by the party interested in opposing it when it is not made at the time the evidence is offered". Likewise, in Canadian Bank of Commerce v. Bellamy, (1915) 33 WLR 8 : 9 WWR 587 :
25 DLR 133 (Sask), the Canadian Court has held that when secondary evidence is admitted without objection, it may be acted upon.
20. "The rule", says Sarkar on Evidence (13th Ed. p. 646) (S. 65), "excluding secondary evidence, when that which is primary is attainable, is not so rigid as to be enforced if no objection is made by the party against whom the inferior evidence is offered. It frequently happens that secondary evidence is admitted, and thus becomes primary, when it might have been excluded if proper objection had been taken (Greenleaf S. 88; Jones S. 20). If secondary evidence is sought to be put in instead of the original, the objection must be taken at the earliest point of time and not at the time of argument or at the appellate stage. Dolgobind v. Maqbul, AIR 1936 Cal 164;
Rama Ch. v. Ranganayaki, AIR 1941 Madras 612; Bacharabhai v. Mohanlal, AIR 1956 Bom 196; Subbarao v. Venkata Rama Rao, . In P. C. Purusho-tham Reddiar v. S. Perumal, , already referred to under Point No, 1, it is further laid down by the Supreme Court in regard to proof of 'contents' of a document, as follows :
"It was next urged that even if the reports in question are admissible, we cannot look into the contents of the document. This contention is again unacceptable, once a document is properly admitted, the contents of that document are also admitted in evidence though those contents may not be conclusive evidence."
21. Therefore, the marking of secondary evidence, if not objected to at the trial cannot be objected to later, and the 'contents' can also be looked into.
22. We shall next consider the second aspect whether a certified copy granted by a Sub-Registrar, can be 'secondary evidence', even though it is copy of a copy as stated in illustration (c) to S. 63.
23. In this context reference has to be made to S. 57(3) Page 81 of 160 Downloaded on : Sat Jul 13 03:18:56 IST 2019 C/SA/183/2014 CAV JUDGMENT of the Registration Act, 1908, It clearly states that 'All copies given under this section shall be signed and sealed by the registering officers and "shall be admissible for the purpose of proving the contents of the original document".
Obviously, this provision takes certified copies out of the purview of illustration (c) to S. 63, and therefore certified copies can be treated as secondary evidence provided conditions in S. 65 are satisfied for adducing secondary evidence.
24. We have also noticed that certified copies of registered documents marked without objection at the trial have been accepted by the Privy Council in Gopal Das v. Sri Thakurji, AIR 1943 PC 83 as 'some evidence' of execution of such a document. Our Supreme Court has held in Nani Bai v. Gita Bai, , that in the absence of a registered sale deed 'for any reason', its certified coy may be adduced as 'secondary evidence'. In another case in Bhinka v. Charan, the Supreme Court again held that a rebuttable presumption of genuineness of a certified copy arises under S. 79 of the Evidence Act provided that, (as stated in the proviso thereto), the document was executed substantially in the form and manner provided by law. Again in Kalyan Singh v. Chhoti, , the Supreme Court has held, while dealing with 'secondary evidence' under S. 63 of the Evidence Act, that in view of S. 63(1) read with S. 79 of the Evidence Act, 'a certified copy of a registered sale deed' may be produced as 'secondary evidence' in the absence of the original.
25. Further, under S. 60(2) of the Registration Act, 1908 a certificate of registration shall be some evidence of the document having been duly registered. In fact, the Privy Council has held in Gangamoyi Debi v. Trailukhya Nath, (1906) ILR 33 Cal 537 :
33 Ind App 60 (PC), that evidence of due registration is itself some evidence of execution against the person by whom the deed purports to be executed. Sir Ford North observed therein :
"The registration is a solemn act to be performed in the absence of a competent official appointed to act as Registrar whose duty it is to attend to parties during the registration and see that proper persons present are competent to act, and are identified to his satisfaction, Page 82 of 160 Downloaded on : Sat Jul 13 03:18:56 IST 2019 C/SA/183/2014 CAV JUDGMENT and all things done before his signature will be presumed to be done duly and in order. Of course, it may be stated that deliberate fraud upon him has been successfully committed, but this can only be by very much stronger evidence than is forthcoming".
The above observations are obviously referable to illustration (e) in S. 114 of the Evidence Act, 1877 dealing with the presumption of regularity of official act.
26. There is also a close parallel between the above legal position obtaining in India and the corresponding position under the English law.
27. Halsbury's laws of England (4th Ed. Vol. 17) states that secondary evidence of public documents or entries from public registers, is admissible (paras 145, 150, 168, 169, 176), Para 168 states that entries in registers of births, marriages or deaths, certified copies of those entries or registers are prima facie evidence though not conclusive evidence. Para 169 says entries in other public registers are evidence of facts recorded provided the registers are required by law to be kept for public reference and the entries are made promptly and by the proper officer. Para 176 states that other registers including the land Registration Registers fall in this category. (See also Phipson on Evidence, 13th Ed. 1982, Para 36.11 and Cross on Evidence, 6th Ed. 1985, p.
604)."
69. What is discernible from the aforesaid Full Bench decision of the Andhra Pradesh High Court is that a certified copy granted by the Sub-Registrar is a copy of a copy. In view of section 63(1) read with section 79 of the Evidence Act, a certified copy of a registered sale deed may be produced as "secondary evidence" in the absence of the original.
70. A Learned Single Judge of the Orissa High Court, S.C. Mohapatra, J., (as his Lordship then was), in the case of Rama Chandra Majhi vs. Hambai Majhi, reported in AIR 1989 Orissa 27, has explained the position of law on the subject as under:
Page 83 of 160 Downloaded on : Sat Jul 13 03:18:56 IST 2019 C/SA/183/2014 CAV JUDGMENT"8. Under Section 64 of the Evidence Act, 1872, documents are to be proved by primary evidence. Section 65, however, permits secondary evidence to be given of the existence, condition or contents of a document under the circumstances mentioned. Under Section 65(c) secondary evidence of the contents of the documents is admissible where the original is lost. Under Section 65(f) secondary evidence is also admissible where the original of a public document within the meaning of Section 74 which provides amongst others that public records kept in any State of private documents are public documents. Section 52(1)(c) of the Registration Act, 1908 requires every document admitted to Registration shall be copied in the book appropriated therefor. Section 51(2) thereof provides for sale deed to be entered in Book I. Thus, the Book in the registration office where copies of sale deeds admitted to registration are made is a public document. Under Section 57 of the said Act, authority is given to give certified copy of an entry in the register. When the original sale deed whose copy is maintained in the registration office is lost, secondary evidence can be given in respect of the contents thereof by proving the entry in the Register in the registration office. Instead of proving the entry in the register in original, certified copy of entry of the sale deed in such register can be proved. Therefore, no objection can be taken for admitting certified copy of entry in a Book maintained in the registration office as secondary evidence of the contents of a sale deed in case ground for admitting secondary evidence is made out.
9. A registered document is not a currency note that with loss of the same the right to property therein is lost. Object of Section 65 of the Evidence Act is to protect persons who in spite of best efforts are unable on account of circumstances beyond their control to place before the Court primary evidence as required under Section 64. Equally it is not intended to render assistance to persons to be benefited who deliberately or without any endeavour to get at the primary evidence or with sinister motives do not produce in Court a document which they could have produced if attempted. When such secondary evidence is admitted, the contents thereof are Page 84 of 160 Downloaded on : Sat Jul 13 03:18:56 IST 2019 C/SA/183/2014 CAV JUDGMENT also proved. The mode of proof of secondary evidence of the contents of a sale deed is by making out the ground for the same by proving the circumstances. See (1959) 25 Cut LT 66 : (AIR 1959 Orissa 126), Brahmananda Panda v. Kanduri Charan Das, (1970) 36 Cut LT 1211, Paramananda Sahu v. Babu Sahu, whether ground has been made out is a matter of evidence.
Once secondary evidence is given under Section 65(c) the contents of the document are also admissible. Relevant portion of Section 65 reads as follows : --
"65. Cases in which secondary evidence relating to documents may be given --Secondary evidence may be given of the existence, condition or contents of a document in the following cases --
(a) & (b) xx xx xx xx
(c) When the original has been destroyed or lost, or when the party offering evidence of its contents cannot, for any other reason not arising from his own default or neglect, produce it in reasonable time;
(d) to (g) xxx xxx xxx "
In cases (a), (c) and (d) any secondary evidence of the contents of the document is admissible. xxxx xxxx xxxx xxxx xxxx "
71. The ratio of the aforesaid decision of the Orissa High Court is that under section 65(c), the secondary evidence of the contents of the documents is admissible where the original is lost. When the original sale deed, whose copy is maintained in the Registration Office, is lost, the secondary evidence can be given in respect of the contents thereof by proving the entry in the Registration Office.
72. Mr. Desai, the learned counsel appearing for the power of attorney holder vehemently submitted that the certified copy of a sale deed may be admissible as a secondary evidence in Page 85 of 160 Downloaded on : Sat Jul 13 03:18:56 IST 2019 C/SA/183/2014 CAV JUDGMENT the absence of the original sale deed on record. However, Mr. Desai laid much stress on the fact that before tendering or producing the certified copy of the sale deed in evidence, it was obligatory on the part of the defendants to lay a foundation for the same. To put it in other words, according to Mr. Desai, it was not just sufficient for the defendants to say that the original has been lost. To substantiate such submission, Mr. Desai has placed strong reliance on a decision of the Supreme Court in the case of Benga Behera & Anr. vs. Braja Kishore Nanda & Ors., reported in AIR 2007 SC 1975, wherein the issue before the Supreme Court was with regard to loss of the original will and production of a certified copy of the will given in terms of the provisions of the Indian Registration Act. Mr. Desai placed reliance on the following observations made by the Supreme Court;
"29. Another vital aspect of the matter cannot also be ignored. Respondent No.1 in his evidence accepted that he had obtained the registered Will from the office of the Sub-Registrar upon presenting 'the ticket' on 30.1.1982. After receipt of the Will, he had shown it to Sarajumani Dasi. He did not say how the Will was lost, particularly when he had not only shown the original Will to the testatrix but also had consulted a lawyer in relation thereto. No information was lodged about the missing of the document before any authority. Even approximate point of time the Will was lost, was not stated. In his cross-examination, he stated: "I cannot say where and how the original will was lost."
30. Loss of the original Will was, thus, not satisfactorily proved.
31. A document upon which a title is based is required to be proved by primary evidence, and secondary evidence may be given under Section 65(c) of the Evidence Act. The said clause of Section 65 provides as under:
"When the original has been destroyed or lost, or when Page 86 of 160 Downloaded on : Sat Jul 13 03:18:56 IST 2019 C/SA/183/2014 CAV JUDGMENT the party offering evidence of its contents cannot, for any other reason not arising from his own default or neglect, produce it in reasonable time."
Loss of the original, therefore, was required to be proved.
32. In a case of this nature, it was obligatory on the part of the first respondent to establish the loss of the original Will, beyond all reasonable doubt. His testimony in that behalf remained uncorroborated. "
73. Mr. Desai also placed reliance on one another decision of the Supreme Court in the case of H. Siddiqui (Dead) by Lrs. vs. A. Ramalingam, reported in (2011) 4 SCC 240, wherein in para-12, the following has been observed:-
"10. The Provisions of Section 65 of the Act 1872 provide for permitting the parties to adduce secondary evidence. However, such a course is subject to a large number of limitations. In a case where original documents are not produced at any time, nor, any factual foundation has been led for giving secondary evidence, it is not permissible for the court to allow a party to adduce secondary evidence. Thus, secondary evidence relating to the contents of a document is inadmissible, until the non production of the original is accounted for, so as to bring it within one or other of the cases provided for in the section. The secondary evidence must be authenticated by foundational evidence that the alleged copy is in fact a true copy of the original. Mere admission of a document in evidence does not amount to its proof. Therefore, the documentary evidence is required to be proved in accordance with law. The court has an obligation to decide the question of admissibility of a document in secondary evidence before making endorsement thereon. (Vide: The Roman Catholilc Mission & Anr. v. The State of Madras & Anr., AIR 1966 SC 1457; State of Rajasthan & Ors. v. Khemraj & Ors., AIR 2000 SC 1759; Life Insurance Corporation of India & Anr. v. Ram Pal Singh Bisen, (2010) 4 SCC 491; and M. Chandra v. M. Thangamuthu & Anr., (2010) 9 SCC 712)."
74. The aforesaid contention of Mr. Desai as regards failure Page 87 of 160 Downloaded on : Sat Jul 13 03:18:56 IST 2019 C/SA/183/2014 CAV JUDGMENT on the part of the defendants to lay any foundation to adduce secondary evidence should fail on the simple ground that the production of marking of certified copy as secondary evidence of a public document under Section 65(E) or 65(F) of the Evidence Act need not be preceded by laying any foundation for acceptance of the secondary evidence. At the cost of repetition, I state that the certified copy of a registered instrument/document issued by the Registering Officer by copying from Book-I, is a certified copy of a public document. It can therefore be produced in proof of the contents of the public document or part of the public document of which it purports to be a copy. It can be produced as secondary evidence of the public document (entries in Book I), under Section 65(e) read with Section 77 of the Evidence Act
75. In the aforesaid context, I may refer to and rely upon a Constitution Bench decision of the Supreme Court in the case of Cement Corporation of India Limited vs. Purya, 2004 (8) SCC 270, wherein the Supreme Court in context with Section 51-A of the Land Acquisition Act, had observed as under;
"22. In the ordinary course a deed of sale is the evidence of a transaction by reason whereof for a consideration mentioned therein the title and interest in an immovable property specified therein is transferred by the vendor to the vendee. Genuineness of such transaction may be in question. In a given situation the quantum of consideration or the adequacy thereof may also fall for adjudication. The Courts, more often than not, are called upon to consider the nature of the transaction. Whenever a transaction evidenced by a sale deed is required to be brought on record, the execution thereof has to be proved in accordance with law. For proving such transaction, the original sale deed is required to be Page 88 of 160 Downloaded on : Sat Jul 13 03:18:56 IST 2019 C/SA/183/2014 CAV JUDGMENT brought on record by way of primary evidence. Only when primary evidence is not available, a certified copy of the sale deed can be taken on record. Such certified copies evidencing any transaction are admissible in evidence, if the conditions precedent therefor in terms of Section 75 of the Indian Evidence Act are fulfilled. The transaction evidenced by the sale deed must be proved in accordance with law.
23. Evidences are of different types. It may be direct, indirect or real evidence. The existence of a given thing or fact is proved either by its actual production or by the testimony or admissible declaration of someone who has himself perceived it. Such evidence would be direct evidence. Presumptive evidence which is an indirect evidence would mean that when other facts are, thus, proved, the existence of the given fact may be logically inferred. Although the factum probandum and the factum probantia connote direct evidence, the former is superior in nature.
24. The terms 'primary and secondary evidence' apply to the kinds of proof that may be given to the contents of a document, irrespective of the purpose for which such contents, when proved, may be received. Primary evidence is an evidence which the law requires to be given first; secondary evidence is evidence which may be given in the absence of that better evidence when a proper explanation of its absence has been given. However, there are exceptions to the aforementioned rule.
28. Section 51 A of the L.A. Act may be read literally and having regard to the ordinary meaning which can be attributed to the term 'acceptance of evidence' relating to transaction evidenced by a sale deed, its admissibility in evidence would be beyond any question. We are not oblivious of the fact that only by bringing a documentary evidence in the record it is not automatically brought on the record. For bringing a documentary evidence on the record, the same must not only be admissible but the contents thereof must be proved in accordance with law. But when the statute enables a court to accept a sale deed on the records evidencing a transaction, nothing further is required to be done. The admissibility of a Page 89 of 160 Downloaded on : Sat Jul 13 03:18:56 IST 2019 C/SA/183/2014 CAV JUDGMENT certified copy of sale deed by itself could not be held to be inadmissible as thereby a secondary evidence has been brought on record without proving the absence of primary evidence. Even the vendor or vendee thereof is not required to examine themselves for proving the contents thereof. This, however, would not mean that contents of the transaction as evidenced by the registered sale deed would automatically be accepted. The legislature advisedly has used the word 'may'. A discretion, therefore, has been conferred upon a court to be exercised judicially, i.e., upon taking into consideration the relevant factors.
33. The submission of Mr. G. Chandrasekhar to the effect that the contents of a sale deed should be a conclusive proof as regard the transaction contained therein or the court must raise a mandatory presumption in relation thereto in terms of Section 51A of the Act cannot be accepted as the Court may or may not receive a certified copy of sale deed in evidence. It is discretionary in nature. Only because a document is admissible in evidence, as would appear from the discussions made hereinbefore, the same by itself would not mean that the contents thereof stand proved. Secondly, having regard to the other materials brought on record, the court may not accept the evidence contained in a deed of sale. When materials are brought on record by the parties to the lis, the court is entitled to appreciate the evidence brought on records for determining the issues raised before it and in the said process, may accept one piece of evidence and reject the other."
76. In S. Madasany Thevar vs. A.M. Arjuna Raja, reported in AIR 2000 Madras 465, the Madras High Court held as under:
"in Karuppanna v. Kolandaswami, , wherein it was held (para 4) --
"When once the case for the introduction of secondary evidence is made out, certified copy got from the Registrar's office can be admitted under Section 57. Sub- section (5) of the Registration Act, without other proof than the Registrar's certificate of the correctness of the Page 90 of 160 Downloaded on : Sat Jul 13 03:18:56 IST 2019 C/SA/183/2014 CAV JUDGMENT copy and shall be taken as a true copy. As the certified copy obtained from a Registrar's office is admissible under Section 57(5), Registration Act, for the purpose of proving the contents of the original documents, the mere production of such copy, without any further oral evidence to support it, would be enough to showwhat the original document contained."
In Padmanabhachari v. Sithpathirao (1954) 2 Mad LJ 75. It was held --
"The certified copy is therefore, admissible under Section 65(e) and (f) of the Evidence Act. The certified copy therefore is secondary evidence of the public record of the mortgage deed kept in the Registrar' office. Again by invoking Section 57(5), the said copy becomes admissible for the purpose of proving the contents of the original document itself."
77. A learned Single Judge of the Karnataka High Court in the case of K.M. Shaffi vs. Smt. Dayamathi Bai, reported in 1999 AIHC 4071, had the occasion to consider the question whether for tendering the certified copy of the sale deed in evidence whether proof of the loss of the original under section 65(c) of the Indian Evidence Act is required. The learned Single Judge, answering the said question in the negative, held as under;
"Therefore, the entry of the sale deed made in the public record kept in the office of the Sub-Registrar of a private document like a sale deed is a public document. The question whether for tendering the certified copy of the sale deed in the evidence is proof of the loss of the original under Section 65(c) of the Indian Evidence Act is required. In my opinion, it does not because the case is covered by Section 65-A of the Evidence Act, in particular this case on hand.
In my opinion, the contents of the sale deed can be proved by production of the certified copy on the Page 91 of 160 Downloaded on : Sat Jul 13 03:18:56 IST 2019 C/SA/183/2014 CAV JUDGMENT following manner:-
'(a) The sale deed recorded in Book No.1 in the office of the Sub-Registrar is a public document under Section 74 of the Indian Evidence Act.
(b) Because under Section 65(e) of the Indian Evidence Act, Secondary evidence can be given when the original is a public document; and (c ) Because under Section 77 of the Indian Evidence Act, certified copies may be produced in proof of the contents of public document."
78. I may also refer to and rely upon a decision of the Kerala High Court in the case of Upendra Rao S/o. Raya Shetty vs. M.K. Ammini, W/o. Sreedharan, Regular Second Appeal No.961 of 2005, decided on 30.11.2016, wherein the learned Single Judge held as under:
"21. Well settled is the proposition of law that a certified copy of a registered document is inadmissible under Section 65 of the Evidence Act to prove the contents of the original document, unless a case for reception of secondary evidence was made out. It is pertinent to remember that Section 57(5) of the Act only declares that the copies given under the Section shall be admissible for the purpose of proving the contents of the original document and it is indisputable that such copies are not intended to prove the execution of document. From Section 65 of the Evidence Act, it is clear that there are certain parameters to be established for adducing secondary evidence. In other words, secondary evidence could be adduced only on laying a foundation for doing so.
22. In the case of a registered document, the entry in the registration book is a 'public document', the term which has been defined in Section 74 of the Evidence Act. Going by Section 75 of the Evidence Act, all documents other than those mentioned in Section 74 are private documents. What is filed at the time of registration of a document is only a true copy of the document presented for registration. Ordinarily, a copy of a copy is Page 92 of 160 Downloaded on : Sat Jul 13 03:18:56 IST 2019 C/SA/183/2014 CAV JUDGMENT inadmissible under Section 63 of the Evidence Act, unless it has been compared with the original or unless the copy with which it was compared was a copy made by some mechanical process, which in itself ensure the accuracy of such a copy. By the express provision in Section 57(5) of the Act, the certified copies of documents obtained from the Registrar's office are admissible, though they are secondary evidence. Section 57 of the Act only shows that when secondary evidence has in any way been introduced, say, as by adducing proof of loss of an original document, a copy certified by the Registrar shall be admissible for the purpose of proving the contents of original. A certified copy of what has been registered in the book of registration is also admissible to prove the contents of the original document, when the original is withheld by a party in whose possession it is or presumed to be.
23. Section 65(e) of the Evidence Act declares that secondary evidence may be given of the existence, condition or contents of a document when the original is a public document within the meaning of Section 74.
24. Section 65(f) of the Evidence Act also needs a specific mention. It says that when the original is a document of which a certified copy is permitted by the Evidence Act, or by any other law in force in India to be given in evidence, such a copy is also regarded as secondary evidence. As mentioned above, a copy issued from the Registrar's office can be used in the form of a secondary evidence.
25. On a conjoint reading of Section 57 of the Act and Sections 63, 65 and 74 of the Evidence Act, it can be seen that a registered document, properly executed by the parties, is not a public document. It is certainly a private document. No doubt, the parties are bound by the terms of it as it is a contract concluded between them. A true copy of a document presented for registration, which has been entered in the books of registration, kept as per law (as mandated by the Act and the Rules), is a public document, falling within Section 74 of the Evidence Act. If that be so, a certified copy of a registered document copied from the true copy kept in the Registrar's office and issued by the registering officer can neither be a public document nor be a certified copy of a private document. But as per the stipulations in the provisions Page 93 of 160 Downloaded on : Sat Jul 13 03:18:56 IST 2019 C/SA/183/2014 CAV JUDGMENT mentioned above, it is a certified copy of a public document. So much so, it can be received as secondary evidence to prove the contents of the original document for the reasons above mentioned. "
79. It is, therefore, clear that a person proposing to give secondary evidence by invoking clauses (a), (b) and (c) of Section 65 of the Evidence Act, has to first lay a foundation to the effect that the document is not in his possession and has not been produced inspite of a notice by the person who is in possession of the same; that the existence, condition or contents of the original have been proved to be admitted in writing or that the original has been destroyed, lost or cannot be produced, respectively. It is further clear from a perusal of Section 65(e) and (f) that the aforesaid requirement, which are prescribed in Section 65 (a), (b) and (c), are not required to be established when the person seeks to give secondary evidence by producing a certified copy of a document alone and no other kind of secondary evidence of a document which is a public document within the meaning of Section 65(e) of the Evidence Act or by giving a certified copy of a document alone and no other kind of secondary evidence of a document which is a certified copy of an original permitted by the Evidence Act or by any other law to be given in evidence under Section 65(f) of the Evidence Act as the preconditions mentioned in Section 65(a), (b) and (c) of the Evidence Act cannot be read into Section 65(e) or (f) by any stretch of statutory interpretation.
80. In view of the aforesaid analysis I am of the considered opinion that while a sale deed perse is a private document but once it is registered and entered in Book-I by the Registering Officer under Section 51 of the Registration Act, the records Page 94 of 160 Downloaded on : Sat Jul 13 03:18:56 IST 2019 C/SA/183/2014 CAV JUDGMENT thereof maintained by such Registering Officer is a public document as defined by Section 74 of the Evidence Act and, therefore, a certified copy of the same can be given as secondary evidence of the existence, condition or contents of the same.
81. Quite apart from the above, it is also clear from a perusal of the provisions of Section 57 of the Registration Act, that the books and indexes maintained under the provisions of the Registration Act are open to inspection by any person at all times and copies of entries in such books and indexes shall be given to all persons applying for such copies with the sign and seal of the registering officer and that all such certified copies bearing the sign and seal of the registering officer shall be admissible for the purpose of proving the contents of the original documents. On a conjoint reading of the provisions of Section 57(5) of the Registration Act alongwith the provisions of Sections 65(f) and 76 of the Evidence Act, it becomes clear that a certified copy of the sale deed which is compulsorily required to be registered and entered in the books and indexes maintained under the Registration Act, issued under the sign and seal of the registering officer, is permitted by the aforesaid section i.e. Section 57(5) of the Registration Act and Section 65(f) of the Evidence Act, to be given in evidence of the content of the document apart from and in addition to the fact that certified copies of public documents can also be given in evidence under Section 65(e) of the Evidence Act."
82. Thus, in view of the aforesaid discussion, I am of the view that the vociferous submission of Mr. Desai on behalf of the power of attorney holder that the certified copy of the sale Page 95 of 160 Downloaded on : Sat Jul 13 03:18:56 IST 2019 C/SA/183/2014 CAV JUDGMENT deed could not have been admitted as secondary evidence in the absence of any foundation being laid for the production of such secondary evidence should fail and is hereby rejected.
83. In the aforesaid context, I would like to say something for the benefit of the Sub-ordinate Courts. I have noticed that there is a serious misconception of law in the mind of the Presiding Officers of the Sub-ordinate Courts as regards adducing secondary evidence. In the case on hand also, at one point of time, it was sought to be argued that the defendants should have preferred an appropriate application in writing, seeking permission to produce the certified copy of the sale deed as secondary evidence as the original was not available being lost. It was also argued that in the application, the party seeking to adduce secondary evidence should assign cogent reasons and thereby lay a foundation for the purpose of furnishing secondary evidence. I may only say that there is no prescribed procedure for adducing the secondary evidence. There is absolutely no need to prefer any application in writing in this regard, seeking permission of the Court in the first instance to lead secondary evidence.
84. The Bombay High Court in the matter of Indian Overseas Bank v. Trioka Textile Industries, 2007 (AIR) (Bom) 24, has held that separate application for permission to lead secondary evidence is not necessary. It was held as under:-
"2. A Chamber Summons seeking leave to lead secondary evidence is not necessary. The proceeding is in fact misconceived. A party desiring to lead secondary evidence must do so before the Judge recording the Page 96 of 160 Downloaded on : Sat Jul 13 03:18:56 IST 2019 C/SA/183/2014 CAV JUDGMENT evidence. It is the Judge recording evidence who must decide, if any objection as raised, whether or not to admit the secondary evidence in evidence. If evidence is lead before a Commissioner the objection to secondary evidence naturally can only be recorded and not decided by the Commissioner. It is then the Judge hearing the suit who decides the objection.
3. An independent application by way of a Chamber Summons or Notice of Motion is neither required nor desirable. It is always open for the party to lead secondary evidence before the Judge recording the evidence/hearing the matter without taking out such an application."
85. Thereafter, again in the matter of Parasanbai Dhanraj Jain and others v. Sunanda Madhukar Jadhav and others, 2017 SCC Online Bombay 9875, the Bombay High Court has reiterated the principle of law laid down in Trioka Textile Industries (supra) and held as under:-
"11. I have recently set out the law on this and I will say so briefly once again: either secondary evidence is led or it is not led. Either the provisions of Section 65 are met or they are not met. No permission of a Court is required to lead evidence of any kind. No judge in the subordinate judiciary to this High Court will hereafter will insist on any such application under any circumstances whatsoever. I do not think I can put it in any clearer terms than this. Any such order is wholly illegal and liable to be set aside. A copy of this order is now to be circulated to every Civil Judge in the State of Maharashtra. To clarify: in an evidence affidavit under Order 18, a witness may well say of a given document that he cannot prove it by direct evidence and then proceed to adduce the secondary evidence in compliance with Section 65 of the Evidence Act. The trial court is to consider that evidence, viz., the reason given for not leading direct evidence, and the secondary evidence led, and is to then decide whether the secondary evidence led is sufficient. That is all. There is absolutely no question of an application, whether styled as an interim application or a 'MARJI' application, Page 97 of 160 Downloaded on : Sat Jul 13 03:18:56 IST 2019 C/SA/183/2014 CAV JUDGMENT for 'permission' to lead secondary evidence. The Court cannot refuse that permission, and it cannot insist on an application for any such permission."
86. Recently also, in the matter of Karthik Gangadhar Bhat v. Nirmala Namdeo Wagh and Ors, 2018 (1) MHLJ 726, the Bombay High Court again reiterated the same principle and observed as under:-
"11. Take the two situations under Section 65(a) and (c). In the first, notice is given to the other side to produce an original; the other side does not produce the notice. Section 66 requires such a notice, but also contains exceptions. One of these is in sub-clause (2), "when, from the nature of the case, the adverse party must know that he will be required to produce it". There are others. Therefore, it is not in every case that such a notice is compulsory. A simple example is that of a letter by the party A to party B. The original is with party B. He knows, or must know, from the nature of the case, that he will be required to produce the original. He does not. No notice is necessary, and party A can straightaway produce his office copy of that letter. No 'leave' or 'permission' is required to do this. Under Section 65(c), where the original is lost, the party seeking to adduce secondary evidence must depose that the original is lost and must also depose to the other conditions set out in that sub- clause, viz., that he is not guilty of default or neglect. The section itself says that in a case under 65(c), any evidence of the contents is admissible. Again, there is simply no question of 'leave' being required.
12. In the present case, by the impugned order, the plaintiffs were ostensibly 'permitted' to lead secondary evidence with respect to a certified copy of a registered lease deed but were disallowed to lead secondary evidence in respect of a gift deed.
13. The entire order is one that cannot be sustained. It adopts a procedure unknown to our law and jurisprudence and directly contrary to decisions of this court.Page 98 of 160 Downloaded on : Sat Jul 13 03:18:56 IST 2019 C/SA/183/2014 CAV JUDGMENT
14. I am informed that the only reason this application was filed was that notice under Section 66 of the Evidence Act to produce the original documents had not been given. That, as we have seen, is no reason to demand an application for 'permission to lead secondary evidence'. All that the Court needed to do was to grant some time for issuing appropriate notice under Section 66, assuming such a notice was required, which is not always so. I am now told that a notice under Section 66 has already been given."
87. Thus, in view of the above, no separate application is required to be filed, seeking permission to lead secondary evidence and it is open to the party seeking to lead secondary evidence before the Trial Court in accordance with Section 65 of the Evidence Act subject to the objection by other side, if any, and that objection has to be considered by the Trial Court at that time.
88. However, in the case on hand, the plaintiffs have, in clear terms, denied the execution of the sale deed in question. While holding that a certified copy of sale deed is admissible in evidence, it should be borne in mind that there is a basic difference in the admissibility and probative value of the documents. The admissibility of a document is one thing and its probative value quite another. These two things cannot be combined. A document like the certified copy of sale deed, in the case on hand, may be admissible and yet may not carry any weight. A proof of document is something which is independent from the evidentiary value of the document. As the plaintiffs have denied the execution of the sale deed in question, in such a situation, the execution must be proved as required under section 67 of the Evidence Act. The mere Page 99 of 160 Downloaded on : Sat Jul 13 03:18:56 IST 2019 C/SA/183/2014 CAV JUDGMENT production of the certified copy of a sale deed will not be sufficient. Mere filing of a document in a Court is not enough to make the document a part of the record. There is still a preliminary matter to be attended to, before the contents of a document can be read as evidence. This is called the authentication of the writing or proof of its genuineness as required under Section 67 of the Evidence Act. It is not the legislative mandate that the direct evidence of handwriting was always necessary under Section 67 of the Evidence Act. The section also does not lay down any rule as to the kind of proof to be given. It follows from Section 67 that no particular kind of proof is required for the purpose of establishing the fact of execution or the contents of the document. It must nevertheless be shown to the satisfaction of the Court the particular facts which needs to be established. At the cost of repetition, I state that the due execution can be proved by establishing that the signature in token of execution was affixed to the document by the person who is stated to have executed the document. This is normally done either;
(i) by examining the executant of the document; or
(ii) by examining a person in whose presence the signature/mark was affixed to the document; or
(iii) by referring the document to a handwriting expert and examining such expert; or
(iv) by examining a person acquainted with handwriting/signature of the person who is supposed to have written/signed the document; or
(v) by requesting the Court to compare the signature of the executant in the document with some admitted signature of Page 100 of 160 Downloaded on : Sat Jul 13 03:18:56 IST 2019 C/SA/183/2014 CAV JUDGMENT the person shown as executant; or
(vi) by proving admission by the person who is said to have signed the document, that he signed it.
89.. The two courts below dismissed the suit instituted by the plaintiffs challenging the genuineness and execution of the sale deed, Exh.140 substantially taking the view that as the defendants were in a position to produce the certified copy of the sale deed and the same being admissible as the secondary evidence, the plaintiffs could be said to have failed to prove that the transaction was sham and bogus and the defendants could be said to have proved the valid execution of the sale deed in their favour.
90.. Mr. Desai submitted that mere marking of document is no proof of its contents and the permission accorded to the defendants to adduce the secondary evidence by producing the certified copy of the registered sale deed does not absolve the defendants of their legal duty to prove their case as required under the facts and in law by adducing the required standard of evidence. He also submitted that it is a settled legal position of law that the genuineness of the signature or the thumb impression on the original cannot be proved by production of a certified copy.
91. According to Mr. Desai, in the absence of the original sale deed containing the endorsement within the meaning of Section 60 of the Registration Act or the certified copy thereof, the presumption under Section 60(2) of the Registration Act cannot be possibly raised in the present case.
Page 101 of 160 Downloaded on : Sat Jul 13 03:18:56 IST 2019 C/SA/183/2014 CAV JUDGMENTMerely because the certified Photostat copy of the sale deed has been marked as an exhibit will not dispense with the requirement of the proof of sale or the factum of registration. (See Sait Tarajee Khimchand v. Yelamarti Satyam, AIR 1971 SC 1865).
92. Mr. Desai submitted that the defendants have also not been able to prove the due execution of the sale deed copy of which is Ex.140 inasmuch as neither the scribe thereof nor any of the attesting witnesses have been examined. The Proof of registration of a document, under the law, cannot be said to be proof of due execution of the document within the meaning of Section 67, Evidence Act.
93. As regards the proof of due execution of the document within the meaning of Section 67 of the Evidence Act and the presumption in that regard under Section 60(2) of the Registration Act is concerned, there are conflicting decisions of the different courts. Let me look into few precedents taking the view that the mere proof of registration of a document under the law without anything more can be said to be proof of due execution of the document within the meaning of Section 67 of the Evidence Act.
94. In the case of Mamndra Kumardey vs. Mahendra Suklabaidya, reported in GAULR 1999 2219, a learned Single Judge of the Gauhati High Court had observed as under;
"As pointed out by the apex court in AIR 1971 SC 2548 (Dattatriya-Vs-Raj Nath) what facts and circumstances have to be established to prove the execution of a Page 102 of 160 Downloaded on : Sat Jul 13 03:18:56 IST 2019 C/SA/183/2014 CAV JUDGMENT document depend on the plea put forward. If the only plea taken is that the executant has not signed the document and the document is forgery, the party seeking to prove the execution of a document need not adduce evidence to show that the party who signed the document knew the contents of the same. If there is a plea regarding contents, it may be necessary to place materials regarding contents and knowledge of the executant of the contents. The next question is the presumption of execution under Registration Act and how far ;it despenses with the proof as required under Section 67 of the Evidence Act. The Sections throwing light on this are the Sections 58,39 and 60 of the Registration Act. Section 58 provides for particulars to be endorsed on documents admitted to registration, Section 59 provides that the endorsements are to be dated and signed by registering officer, Section 60 provides for certificate of registration. The law on this point is that presumption under Section 60(2) of the Registration Act cannot take the place of proof as required by Section 67 of the Evidence Act when witnesses are available to prove the document in the manner as laid down in Evidence Act. If that is not adhered to it may open a floodgate of fraud and a court has a duty/obligation to close it. A certified copy usually will be a weak piece of evidence and it can never take place of the original, the original has its own worth and value as a piece of evidence. Under the Registration Manual signatures/thumb impression of the executant are to be taken in a Register by the Registering Officer, in case of certified copies even that may be proved."
95. In State of Bihar and Ors. v. Sri Radha Krishna Singh & Ors., AIR 1983 SC 684, the Supreme Court considered the issue in respect of admissibility of documents or contents thereof and held as under:
"Admissibility of a document is one thing and its probative value quite another - these two aspects cannot be combined. A document may be admissible and yet may not carry any conviction and the weight of its probative value may be nil."
96. A Division Bench of the Andhra Pradesh High Court in Page 103 of 160 Downloaded on : Sat Jul 13 03:18:56 IST 2019 C/SA/183/2014 CAV JUDGMENT Ramanna v. Sambamoorthy, AIR 1961 Andh Pra 361 had held as under :--
"The effect of registration is not to prove the execution as provided by Section 67 of the Evidence Act but only to prove an admission by the executant to the registration in solemn circumstances. The certificate of the registering officer is admissible not to prove the execution of the deed but merely to prove the admission of execution the effect of such admission being in each case a separate question."
97. A similar view was taken by a Division Bench of the Assam and Nagaland High Court in Bhutkani Nath v. Kamaleswari, AIR 1972 Assam 15. It was held :--
"It is however, well-settled that when execution of a document is being challenged the certificate of registration alone will not be sufficient proof of the due execution of the document. Registration does not dispense with the necessity of proof of execution when the same is denied. It is true that a sale deed is not required by law to be attested. Even then proof of execution of a sale deed, when it is denied will have to be furnished as in the case of any other document under Section 67 of the Evidence Act."
98. Following the above ratio, a Division Bench of the Bombay High Court in Ramkrishan Ganpat Futane v. Mohammad Kasam, AIR 1973 Bombay 242, has held :--
"In our view a certificate of registration given under Section 60 of the Registration Act is not sufficient to prove the due execution of a document and when the execution of a document is denied the proof as required by Section 67 of the Evidence Act must be furnished. In the absence of any other evidence on record adduced by the plaintiffs, it is clear that it is not possible to hold merely on the basis of the endorsement of the registering officer that the execution of the wakf deed by deceased Sheikh Meliatab has been proved as required by Section 67 of the Evidence Act."Page 104 of 160 Downloaded on : Sat Jul 13 03:18:56 IST 2019 C/SA/183/2014 CAV JUDGMENT
99. In Shiv Lal vs. Chetram, 1970 (2) SCC 775, the Supreme Court observed as under:
"We shall first take up the mortgage said to have been executed on December 21, 1895. Prima facie the suit in respect of this property is barred by time but it is said that in view of the acknowledgment made by mortgagors under the original of Ex. P-5 dated 22.6.1906, the suit is within time. There is no satisfactory material to show that Ex.P-5 relates to the mortgage in question. It is not necessary to go into that question in detail as in our opinion, it was impermissible for the courts below to rely on Ex.P-5 for the purpose of acknowledgment Ex. P-5 is a certified copy of a statement said to have been made in a mutation proceeding. Its original has not been produced. No witness has been examined to speak to the fact that the persons who are shown to have signed the original have in fact signed the same or those persons were the mortgagors or their representatives. The signature on the original cannot be proved by production of a certified copy. Nor can the courts raise any presumption under s. 90 of the Evidence Act in that regard see Harihar Prasad Singh and anr. v. Mst. of Munshi Nath Prasad, 1956 SCR 1(AIR 1956 SC 305). The High Court and the 1st appellate court erroneously thought that they could presume that the persons mentioned as the executants in the copy have signed the original on the strength of S. 44 of the Punjab Land Revenue Act and Section 114 (e) of the Evidence Act. Section 44 of the punjab Land Revenue Act deals with the presumption as regards an entry in the record of rights. Herein we are not concerned with any entry in the record of rights. We are, concerned with the genuineness of the, signature in the original of Ex. P- 5 and the identification of the persons who signed it. Hence that section affords no aid. Section 114(e) of the Evidence Act says that court may presume that judicial and official acts have been regularly performed. Herein we are not concerned with the regularity of the performance of any official act. The identification of an executant or genuineness of a signature in a statement filed before an official has nothing to do with the regularity of his act unless it is shown that he had a duty to identify the person who signed it and further to take the signature in his presence. Therefore Ex. P-5 cannot Page 105 of 160 Downloaded on : Sat Jul 13 03:18:56 IST 2019 C/SA/183/2014 CAV JUDGMENT serve as an acknowledgment,of the mortgage. Hence the plaintiffs claim to redeem the mortgage in respect of item No. 2 of the plaint must fail."
100. A Division Bench of the Assam & Nagaland High Court in the case of Bhukani Nath & Ors. vs. Mt. Kamaleshwari Nath & Anr., reported in AIR 1972 Assam & Nagaland 15 held as under;
"The court held that the sale deed was void for want of proper execution and passing of consideration. Mr. P. Choudhuri, the learned counsel for the appellants, submits that the learned Subordinate Judge erred in law in holding that the sale deed was not properly executed by Lakhiram Nath. He submits that since the document was registered, there is a presumption under the law that the same has been duly registered as well as duly executed. He relies upon section 60 of the Indian Registration Act. It is, however, well-settled that when execution of a document is being challenged the certificate of registration alone will not be sufficient proof of the due execution of the document. Registration does not dispense with the necessity of proof of execution when the same is denied. It is true that a sale deed is not required by law to be attested. Even then, proof of execution of a sale deed, when it is denied, will have to be furnished as in the case of any other document under Section 67 of the Evidence Act."
101. In N.M. Ramachandraiah & Anr. vs. State of Karnataka & Ors., reported in AIR 2007 Karnataka 164, a learned Single Judge of the Karnataka High Court, by referring to the aforesaid Division Bench decision of the Assam & Nagaland High Court in the case of Bhutkani Nath (Supra), held as under;
"15. Therefore, the law is well settled. Execution of a document does not mean merely signing, but signing by way of assent to the terms of the contract embodied in Page 106 of 160 Downloaded on : Sat Jul 13 03:18:56 IST 2019 C/SA/183/2014 CAV JUDGMENT the document. Execution consists in signing a document written out and read over and understood, and does not consist of merely signing a name upon a blank sheet of paper. It is a solemn act of the executant who must own up the recitals in the instrument and there must be clear evidence that he put the signature after knowing the contents of document fully. To be executed, a document must be in existence; where there is no document in existence there cannot be execution. Mere proof or admission that a person's signature appears on a document cannot by itself amount to execution of a document. Registration does not dispense with the necessity of proof of execution when the same is denied. Thus, execution of document is not mere signing of it. "
102. A learned Single Judge of the Bombay High Court, in the case of Bank of India vs. M/s. Allibhoy Mohammed & Ors., reported in AIR 2008 Bombay 81, had held as under;
"33. The mode of proving the contents of the documents has been dealt with in Sections 61-66. As already stated hereinabove the production of the document purporting to have been signed or written by a certain person is no evidence of its authorship. It is necessary to prove their genuineness and execution. Proof, therefore, has to be given of the handwriting, signature and execution of a document. No writing can be received in evidence as a genuine writing until it has been proved to be a genuine one, and none as a forgery until it has been proved to be a forgery. A writing, by itself, is not evidence of the one thing or the other. A writing, by itself, is evidence of nothing, and therefore is not, unless accompanied by proof of some sort, admissible as evidence.
34. Section 67 refers to documents other than documents required by law to be attested. It says that the signature of the person alleged to have signed a document (i.e. execution) must be proved by producing evidence to the effect that the signature purporting to be that of the executant is in fact in his handwriting as laid down by the Apex Court in Venkatachala Vs. Thimmajamma,(A.I.R. 1959 S.C. 443) and the other Page 107 of 160 Downloaded on : Sat Jul 13 03:18:56 IST 2019 C/SA/183/2014 CAV JUDGMENT matter in the document (i.e. its body) must also be proved by proof of the handwriting of the person or persons purporting to have written the document. Execution is proved by the first (i.e. proof of handwriting), and the genuineness of the document is proved by the second (i.e. proof of handwriting), unless they are admitted by the other side. The term "execution" is not defined in any statute. It means completion, i.e. the last act or acts which complete a document and in English law this is known as "signing, sealing and delivering". The ordinary meaning of executing a document is signing it as a consenting party thereto.
35. The execution of authorship of a document being a question of fact, it can be proved like any other fact by direct or circumstantial evidence. The internal evidence provided by a document may also be of some help. In most cases the nature of evidence will depend on the nature of the documents and the circumstances of each case. Section 67 does not require any particular mode of proof that any writing or signature is in the hand of a particular person. If it is a letter, it must be proved as to who was the writer and who signed it. If it is an entry in a diary or notebook, its authorship must be proved, i.e. it is the diary or note book of the person whose statement it is alleged to contain. In a suit for money on account of sale of goods, the ledgers, challans and corresponding bills have to be proved to be in the handwriting of the person who has written them.
36. The definition of "proved" given under Section 3 must be read along with Section 67 which requires that there must be specified evidence that the signature purporting to be that of the executant is in the handwriting of the executant. Until this is proved the Court cannot proceed to consider whether execution is proved. In other words Section 67 makes proof of execution of a document something more difficult than proof of matter other than execution of a document. Original of the public document must be proved in the manner required by the provisions of the Act (See C.H. Shah Vs. S.S. Malpathak, A.I.R. 1973 Bombay, 14).Page 108 of 160 Downloaded on : Sat Jul 13 03:18:56 IST 2019 C/SA/183/2014 CAV JUDGMENT
37. Under Section 67, if a document is alleged to be signed by any person, the signature of the said person must be proved to be in his handwriting in the manner laid down in Sections 45 and 47 (Venkatachala Vs. Thimmajamma, A.I.R. 1959 S.C. 443).
38. A party seeking to prove the execution of a document is not required to prove that the executant knew the contents thereof when the executant denies having signed it and pleads forgery, but if the executant pleads ignorance then in certain circumstances it may be necessary to satisfy the court that the executant had knowledge of the contents (Dattatraya Vs. Rangnath, A.I.R. 1971 S.C. 2548). So where the correctness of the contents of a document is in issue, it should be proved by calling the person who executed the document. It is not sufficient to merely prove through a witness the signature of the handwriting of the person who signed or wrote it (Madholal Vs. Asian Ass Co. Ltd A.I.R. 1954 Bombay 305; Md. Yusuf Vs. D. A.I.R. 1968 Bombay 112). The signature of the executant of a sale deed must be proved before it can be admitted in evidence. A sale deed cannot be proved by mere production of the Register in which it is copied out in the registration office. Consequently, documents could not be said to have been proved in accordance with the Evidence Act. Similar is the case, with regard to the letter of partnership. Hence, documents produced on record though originals or primary evidence cannot be read in evidence for want of legal proof. As such, they are required to be excluded from consideration."
103. A Division Bench of the Madhya Pradesh High Court had the occasion to consider two issues in the case of Smt. Rekha Rana (supra). Those two issues are as follows:
(i) Whether a certified copy of a public document can be received in evidence without any further proof ?
(ii) What is the effect and efficacy of producing and marking a certified copy of the sale deed ?Page 109 of 160 Downloaded on : Sat Jul 13 03:18:56 IST 2019 C/SA/183/2014 CAV JUDGMENT
104. The two issues came to be answered as under;
105. The next question is whether a certified copy of a public document, issued by a registering officer, can be received in evidence without any further proof.
106. I may refer to the relevant portions of Sections 76, 77 and 79 of Evidence Act extracted below in this behalf:
"76. Certified copies of public documents - Every public officer having the custody of a public document, which any person has a right to inspect, shall give that person on demand a copy of it on payment of the legal fees therefore, together with a certificate written at the foot of such copy that it is a true copy of such document or part thereof, as the case may be...and such copies so certified shall be called certified copies.
77. Proof of documents by production of certified copies - Such certified copies may be produced in proof of the contents of the public documents or parts of the public documents of which they purport to be copies.
79. Presumption as to genuineness of certified copies - The Court shall presume to be genuine every document purporting to be a certificate, certified copy or other document, which is by law declared to be admissible as evidence of any particular fact and which purports to be duly certified by any officer of the Central Government or of a State Government.... "
107. I have already held that a certified copy of a registered Instrument/document issued by the Registering Officer, by copying from Book 1, is a certified copy of a public document. It can therefore be produced in proof of the contents of the public document or part of public document of which it purports to be a copy. It can be produced as secondary evidence of the public document (entries in Book I), under Page 110 of 160 Downloaded on : Sat Jul 13 03:18:56 IST 2019 C/SA/183/2014 CAV JUDGMENT Section 65(e) read with Section 77 of the Evidence Act without anything more. No foundation need be laid for production of certified copy of secondary evidence under Section 65(e) or (f). But then it will only prove the contents of the original document, and not be the proof of execution of the original document. (Vide Section 57(5) of Registration Act read with Section 77 of Evidence Act). This is because registration of a document is proof that someone purporting to be 'X' the executant admitted execution, but is not proof that 'X' executed the document, I will elaborate on this aspect when dealing with Point No. (iv).
Re: Question (iv)
108. The next question is whether producing and marking of a certified copy of a sale deed, would amount to proving the sale-deed itself. If not, what is its effect. I will first refer to the decisions and Treatises, bearing on this aspect.
108.1. In Karuppanna Gounder v. Kolandaswami Gounder, AIR 1954 Mad. 486, a Learned Single Judge of the Madras High Court (Govind Menon, J, as his Lordship then was) held as follows:
"Section 57 of the Indian Registration Act deals, among other things, with the grant of certified copies, and Sub- section (5) lays down that all copies given under that section shall be signed and sealed by the registration officer and shall be admissible for the purpose of proving the contents of the original documents. But the law is that a certified copy of what has been copied in the books of registration is admissible to prove the contents of the original document . only when a case is made out for introduction of secondary evidence, i.e. by proof of the loss of the original or where a original is withheld by a party in whose possession it is or is presumed to be. In Page 111 of 160 Downloaded on : Sat Jul 13 03:18:56 IST 2019 C/SA/183/2014 CAV JUDGMENT this case the plaintiffs have done all they could by giving notice to defendants 3 and 4 to produce the original which notice has not been complied with. Therefore, the requisite essentials for the adducing of secondary evidence have been properly complied with. When once the case for the introduction of secondary evidence is made out, certified copy got from the Registrar's office can be admitted under Section 57, Sub-section (5) of the Indian Registration Act without other proof than the Registrar's certificate of the correctness of the copy and shall be taken as a true copy. It seems to me that the plaintiffs have satisfied the Court that the necessary prerequisites for the introduction of secondary evidence as contemplated under Sections 65 and 66 of the Evidence Act have been made out. When once it is proved that the party is entitled to adduce secondary evidence, then the question arises. "What is the mode of proof of the certified copy ?" As stated already under Section 57(5) of the Indian Registration Act, a certified copy obtained from a Registrar's office shall be admissible for the purpose of proving the contents of the original document. That means that the mere production of a certified copy without any further oral evidence to support it would be enough to show what the original document contained. That a registration copy is the copy of a public document contemplated under Section 74, Sub-section (2) of the Indian Evidence Act, is indisputable and the copy of such a document is a certified copy of a public document under Section 76 of the Indian Evidence Act. "
108.2 In Padmanabhachari v. Annamraju Silapathirao 1954(2) Madras Law Journal 75, the Andhra Pradesh High Court considered a certified copy of mortgage bond dated 18-11-1876 (marked Ex. P/1). In that case, before the trial commenced, the plaintiff had issued a notice requiring defendants to admit the aforesaid mortgage deed. On the said notice, the first defendant's counsel had made an endorsement to the effect that the genuineness of the copy was admitted, it was subsequently argued by the first Page 112 of 160 Downloaded on : Sat Jul 13 03:18:56 IST 2019 C/SA/183/2014 CAV JUDGMENT defendant that only the genuineness of the certified copy as a copy of the copy kept in the Registrar's office was admitted, and that did not amount to an admission that it was a true copy of the original and therefore the plaintiff had to make out a case for the admission of the copy as secondary evidence of the original. It was also contended that the said admission did not absolve the plaintiff from proving the execution of the mortgage deed. Considering the said submission, K. Subba Rao, C. J. (as his Lordship then was) held as follows:
"In my view, secondary evidence of the contents of Exhibit P-1 is admissible both under Section 65(b) as well under Section 65(e). The first defendant admitted the genuineness of the certified copy. That is an ad mission- learned Counsel for the appellant does not dispute this position of the existence, condition or contents of its original, i.e. the copy of the mortgage document maintained in the Registrar's Office. If so much was granted, Section 57(5) of the Registration Act makes the said copy admissible for the purpose of proving the contents of the original document itself. A combined reading of the provisions of Section 65(b) of the Evidence Act and Section 57(5) of the Registration Act may be put thus. By reasons of the admission made by the first defendant of genuineness of the certified copy within the meaning of Section 65(b) of the Evidence Act, the certified copy became admissible in evidence as secondary evidence under Section 65. By reason of Section 58(5) of the Registration Act, the said copy becomes admissible for the purpose of proving the contents of the original document itself. I would also hold that the certified copy is also admissible under Section 65(e) and (f) of the Evidence Act.
Secondary evidence may be given, if the original is a public document within the meaning of Section 74. The definition of a public document under Section 74 takes in public records kept in any State of private documents. The Registrar's Office certainly keeps a public record of all sale deeds registered in that office. Section 76 enables an officer having the custody of a public document to give a certified copy. The certified copy is Page 113 of 160 Downloaded on : Sat Jul 13 03:18:56 IST 2019 C/SA/183/2014 CAV JUDGMENT therefore admissible in evidence both under Section 65(e) and (f) of the Evidence Act. The certified copy therefore is secondary evidence of the public record of the mortgage deed kept in the Registrar's Office. Again by invoking Section 57(5) the said copy becomes admissible, for the purpose of proving the contents of the original document itself. I would therefore hold that the certified copy is admissible in evidence. But this will not dispense with the proof of the execution of Exhibit P-I. "
(Emphasis supplied) 108.3 A Division Bench of Nagpur High Court in Kashinath Shankarappa v. The New Akot Cotton Ginning and Pressing Co. Ltd. AIR 1951 Nagpur 255, while considering the question whether a copy of a balance sheet sent to the Registrar of Companies after the general meeting or the share holders of a Company is admissible in evidence, observed thus:
"Section 65, Evidence Act sets out the cases in which secondary evidence is admissible. It was argued that this falls under Clause (e) "when the original is a public document within the meaning of Section 74" because Section 74 states that the following are public documents, namely, "(2) public records kept in British India of private documents". The argument is not well founded. Section 65 applies only when the original is a public document. It would, for example, be absurd to contend that a private sale deed or mortgage can be proved by the production of a certified copy obtained from the Sub-Registrar's office and nothing more. "(Emphasis supplied) 108.4 In Subudhi Padhan v. Raghu Bhuvan, AIR 1962 Ori 40,, a learned single Judge of the Orissa High Court, held that marking of a certified copy of a registered mortgage deed which is admissible as , secondary evidence does not dispense with the proof of actual execution. He observed:Page 114 of 160 Downloaded on : Sat Jul 13 03:18:56 IST 2019 C/SA/183/2014 CAV JUDGMENT
"Again by invoking Section 57(5) the said copy becomes admissible for the purpose of proving the contents of the original document. But this will not dispense with the proof of the execution of the same...the certified copy of the mortgage-bond may be admissible in evidence as secondary evidence but that does not dispense with the proof of actual execution. "
108.5 In Roman Catholic Mission v. State of Madras, AIR 1966 SC 1457 the Supreme Court held that -
"Where the originals were not produced at any time nor was any foundation laid for establishment of the right to give secondary evidence, copies of the original not admissible in evidence. "
108.6 Woodroffe and Ameer Ali's Law of Evidence (14th edition, Vol. 2) explains that matter thus:
"Under this Clause (that is Clause (2) of Section 74), entries of the copies of private documents in Book 1, 3 and Book 4 of the Registration Office being public records kept of private documents are public documents, and as such may be proved by certified copies, that is certified copies may be offered in proof of those entries. But neither these entries nor certified copies of these entries, are admissible in proof on the contents of the original documents so recorded unless secondary evidence is allowable under the provisions of this Act. (at page 1710) a registered deed of sale is not a document of which a certified copy is permitted by law to be given in the first instance without having been introduced by other evidence. Section 57 of the Registration Act only shows that when secondary evidence has in any way been introduced, as by proof of the loss of the original document, a copy certified by the Registrar shall be admissible for the purpose of proving the contents of the original; that is, it shall be admitted without other proof than the Registrar's certificate of the correctness of the copy, and shall be taken as a true copy, but that does not make such a copy of a document which may be given in evidence without other evidence to introduce it...and although such a copy may be taken as a correct copy of Page 115 of 160 Downloaded on : Sat Jul 13 03:18:56 IST 2019 C/SA/183/2014 CAV JUDGMENT some document registered in the office, this circumstance does not make that registered document evidence or render it operative against the persons who appear to be affected by its terms. A document registered in and brought from a public registry office, requires to be proved when it is desired that it should be used as evidence against any party who does not admit it quite as much as if it came out of private custody, (at page 1612). "
109. The position therefore is that a certified copy of a sale deed issued by the Registration Officer under the Registration Act can be produced and marked as secondary evidence of a public document (that is Entries in Book 1 maintained under Section 51 of the Registration Act containing the copy of the registered document). Such certified copy issued by the Registration Officer in view of the certificates copied therein and the certificate made while issuing the certified copy will prove (i) that a document has been presented before the Registration Officer for registration; (ii) that execution had been admitted by the person who claimed to be the executant of the document and (iii) that the document was thereafter registered in the Registration Office and entered (copied) in Book 1. It is not however proof of the fact that original sale deed was duly executed by the actual person described as Executant. Production of a certified copy of a public document under Section 65(e) or production of a certified copy under Section 65(f) is completely different from production of a certified copy as secondary evidence of a private document (for eg, a sale deed under clauses (a), (b) and (c) of Section
65.
110. Proving the execution of a registered sale deed (or any Page 116 of 160 Downloaded on : Sat Jul 13 03:18:56 IST 2019 C/SA/183/2014 CAV JUDGMENT other registered document which is not required by law to be attested) has two steps. The first step is production of the original sale deed or lay the foundation for letting in secondary evidence of the sale deed, by way of a certified copy of the sale deed, by showing the existence of any of the circumstances mentioned in clauses (a), (b) and (c) of Section
65. In other words, a certified copy can be offered as secondary evidence of the original sale deed under Clause (a) of Section 65, by establishing that the original is in the possession or power of the person against whom the document is sought to be proved, or in the possession or power of any person out of reach of or not subject to the process of the Court, or in the possession of any person who is legally bound to produce it, and such person (of the three categories) does not produce it in spite of notice under Section 66 of the Act. A certified copy of the sale deed can also be offered as secondary evidence under Clause (c) of Section 65, by showing that the original is destroyed or lost (or when the party offering evidence of its contents cannot, for any other reason not arising from his own default or neglect, produce it in reasonable time). Lastly a certified copy can be offered as secondary evidence under Clause (b) of Section 65, where the existence, condition or contents of the (sic) has been admitted in writing by the person against whom it is proved or by his representative in interest, and such admission is proved.
111. The second step is to prove the execution of the deed (whether what is produced in the original or certified copy or other secondary evidence thereof given under Clause (a), (b) or (c) of Section 65) as required by Section 67 of the Act, Page 117 of 160 Downloaded on : Sat Jul 13 03:18:56 IST 2019 C/SA/183/2014 CAV JUDGMENT where the document is not one which is required by law to be attested or as required by Section 68 of the Act where the document is one which by law is required to be attested. This is because registration is not proof of execution. A private document cannot be used in evidence unless its execution is admitted by the party against whom it is intended to be used, or it is established by proof that it is duly executed. Due execution is proved by establishing that the signature (or mark) in token of execution was affixed to the document by the person who is stated to have executed the document. This is normally done either (i) by examining the executant of the document; or (ii) by examining a person in whose presence the signature/mark was affixed to the document; or (iii) by referring the document to a handwriting expert and examining such expert; or (iv) by examining a person acquainted with handwriting/signature of the person who is supposed to have written/signed the document; or (v) by requesting the Court to compare the signature of the executant in the document with some admitted signature of the person shown as executant; or
(vi) by proving admission by the person who is said to have signed the document, that he signed it.
112. If the person producing the certified copy of a registered instrument, without establishing the existence of any of the grounds under Clause (a), (b) or (c) of Section 65, seeks to mark the certified copy, then it will not be secondary evidence of the original sale deed, but will only be the secondary evidence of the entries in a public document, that is the entries in Book 1 in the Registration Office which issued the certified copy. Such certified copy marked without laying Page 118 of 160 Downloaded on : Sat Jul 13 03:18:56 IST 2019 C/SA/183/2014 CAV JUDGMENT foundation for receiving secondary evidence, though admissible for the purpose of proving the contents of the original document, will not be proof of execution of the original document.
113. Certain amount of confusion exists because a certified copy can be produced as secondary evidence either under clauses (e) and (f) of Section 65 or under clauses (a), (b) or (c) of Section 65. But the difference is that a certified copy is the only mode of secondary evidence that is permissible in cases falling under clauses (e) or (f) of Section 65. But in the cases falling under clauses (a), (b) or (c), the secondary evidence can be a certified copy in the case of a registered instrument or by other modes described in Section 63 in regard to the unregistered documents. [Vide Smt. Rekha Rana (supra)]
114. The position of law may be summed up thus:
(i) Production and Marking of a certified copy as secondary evidence of a public document under Section 65(e) need not be preceded by laying of any foundation for acceptance of the secondary evidence. This is the position even in regard to the certified copies of the entries in Book I under Registration Act relating to a private document copied therein.
(ii) Production and marking of a certified copy as secondary evidence of a private document (either a registered document like a sale deed or any unregistered document) is permissible only after laying the foundation for acceptance of secondary evidence under Clause (a), (b) or (c) of Section 65.
(iii) Production and marking of an original or certified copy of Page 119 of 160 Downloaded on : Sat Jul 13 03:18:56 IST 2019 C/SA/183/2014 CAV JUDGMENT a document does not dispense with the need for proof of execution of the document. Execution has to be proved in a manner known to law (Section 67 and 68 and ensuing sections in chapter V of Evidence Act).
115. A Division Bench of the Rajasthan High Court in the case of Indernath Modi vs. Nandram & Other, reported in AIR 1957 Rajasthan 231, speaking through K.N. Wanchoo, C.J. (as his Lordship then was) held as under:
"8. In Gopal Das v. Sri Thakurji, AIR 1943 PC 83 (C) their Lordships again made certain observations in connection with Section 60(2) of the Registration Act. That was a case relating to a document executed in 1881, and the suit in which the question arose was filed sometime before 1930 more than 40 years after the document had been executed. In that connection, their Lordships used the presumption of Section 60(2) of the Registration Act after making the following observations at p. 87:
"It seems clear that any objection to the sufficiency of the proof upon this point would have been idle the circumstances being such that the evidence of due registration is itself some evidence of execution as against the plaintiffs. Wills and documents which are required by law to be attested raise other questions but this receipt was not in that class."
It is obvious from these observations of their Lordships that the presumption under Section 60(2) is raised when evidence to prove execution in the manner provided in Section 67 of the Evidence Act is not available due to the executant or the marginal witnesses being dead or for some other reason. The presumption of Section 60(2) cannot take the place of proof as required by Section 67 of the Evidence Act when witnesses are available to prove the document in the manner provided by the Evidence Act. "
116. Let me now look into few decisions taking the view that Page 120 of 160 Downloaded on : Sat Jul 13 03:18:56 IST 2019 C/SA/183/2014 CAV JUDGMENT where the document is registered, then although its mere registration may not, by itself, constitute sufficient proof of the execution of the document, yet in view of Sections 57 and 60 respectively of the Registration Act, the certified copy and the certificate issued by the Registrar would constitute sufficient evidence to prove the contents of the document and be also, to some extent, an evidence of the due execution of the document.
117. A learned Single Judge of the Calcutta High Court, in the case of Laksmi Kanto Roy vs. Nishi Kanto Roy & Ors., reported in (1966-67) 71 CWN 362, observed as under;
"That takes me to the deed of trust of January 13, 1879, a document duly registered. What is before me as exhibit A is not the original deed itself, so that I may press into service section 90 of the Evidence Act. 1 of 1872 and presume this document, some 85 years old, to be genuine. Exhibit A is only a certified copy of this registered deed of trust dated January 13, 1879. Even so, I see no difficulty. In the First place, the existence of a document as this is virtually admitted, as noticed already. What is admitted need not be proved. Indeed, by such admission, the secondary evidence furnished by the certified copy elevates itself to the height of a primary evidence. In the second place, foundation has been laid for reception of secondary evidence under section 65 (a) ibid. The clear evidence of Lakshmi Kanto is that he had seen the original deed of trust in the possession of Nishi Kanto, the first defendant and therefore an adverse party (qq. 21 and 30). Such a one, the adverse party Nishi Kanto, must have known from the very nature of the case that he would be required to produce it. Thus, an implied notice is there under the proviso, clause (2), to section 66 ibid. Therefore, the requirement of section 65 (a) ibid is satisfied and the production of the certified copy of the deed of trust appears to be sufficient proof of the deed itself. In the third place, though under section 90 ibid the production of a certified copy of the ancient document Page 121 of 160 Downloaded on : Sat Jul 13 03:18:56 IST 2019 C/SA/183/2014 CAV JUDGMENT before me may not justify the presumption of its due execution, section 57 (5) of the Registration Act 16 of 1908 deserves to be taken into reckoning, and by virtue thereof the copy in hand "shall be admissible for the purpose of proving the contents of the original" deed of trust. In the fourth place, another section of the Registration Act: section 60(2), goes a long way to prove, and proves, execution even. The Registrar's certificate dated January 29, 1879, containing the word "registered", together with the number and page of the book in which the document has been copied, is there:
just as section 60(1) ibid prescribes. This certificate, apart from being dated, is signed and sealed too by the registering officer. That being so, by virtue of section 60(2) ibid, such certificate shall be admissible for the purpose of proving that the facts mentioned in the endorsements referred to in section 59 ibid have occurred as therein mentioned. And one of the facts mentioned so, under section 59 ibid read with the preceding section 58, is the admission of the execution of the document by all the four parties thereto- Gopal Chunder, Harray Krishna, Bhooban Mohiney and Raj Coomary. See (1) Pandappa Mahalingappa vs. Shivalingappa Murtappa, AIR 1946 Bombay 193."
118. A Division Bench of the Mysore High Court in the case of Hutchegowda vs. Chennigegowd, AIR 1953 MYSORE 49, had observed as under;
"The main point on which the learned counsel for the appellant attacked the decision of the lower appellate court is in respect of its coming to a decision, from the mere production of copies of registered documents that the originals of those documents were proved. Evidence that a document was duly registered is some evidence of its execution by the person by whom it purports to have been executed. There was some difference of opinion in the High Courts of India outside Mysore on this aspect of the matter. The Privy Council decision in 'Gangamoyi Debi v. Trailukhya Nath', 33 Cal 537 (C), set the matter at rest. Sir Ford North who delivered the judgment of their Lordships in that case observed :Page 122 of 160 Downloaded on : Sat Jul 13 03:18:56 IST 2019 C/SA/183/2014 CAV JUDGMENT
"The registration is a solemn act, to be performed in the presence of a competent official appointed to act as Registrar, whose duty it is to attend to parties during the registration and see that the proper persons are present, are competent to act, and are identified to his satisfaction; and all things done before him in his official capacity and verified by his signature will be presumed to be done duly and in order. Of course it may he shown that a deliberate fraud upon him has been successfully committed; but this can only be by very much stronger evidence than is forthcoming here."
As observed in "Piara v. Fattu', AIR 1929 Lab 711 (D) by Bhide, J .,with whom Fforde, J., agreed :
"On behalf of the respondent, on the other hand, it is contended that the certificate of the Registering officer merely shows that the legal formalities as to registration was complied with and that it cannot be looked upon as evidence of its execution as there is no guarantee that the person who appeared before the Registering officer and claimed to be the executant was the real executant. There seems to be a considerable body of authority in support of this view; Vide 'Kripanath v. Bhashaye Mollah', 6 WR 105 (E) :'Fyez Ali v. Omedee', 21 WR 265 -'Fuzal Ali v. Bia Bibi', 7 Cal LR 276; 'Sulnnatul v. Koylashpoti', 17 Cal 903 and -'Rajmangal v. Mathura Dubain', AIR 1915 All
383. But most of these rulings were prior to the Privy Council decision in 33 Cal 537 (C), and the effect of that decision does not appear to have been considered in the later rulings which were referred to." Again Lord Phillimore who pronounced the judgment of their Lordships in AIR 1922 PC 56 (A) has observed:
"There is no doubt that the deed was executed, for it was registered, and registered in a regular way, and it is the duty of the registrar, before registering, to examine the grantor, or some one who, he is satisfied, is the proper representative of the grantor, before he allows the deed to be registered.
There can be no doubt therefore, that Ehsan Ali Khan executed the deed and was party to its registration." Sir George Rankin, who pronounced the judgment of' their Lordships in the case reported in 'Gopal Das V. Sri Thakurji', AIR 1943 PC 83 (.1) has observed:Page 123 of 160 Downloaded on : Sat Jul 13 03:18:56 IST 2019 C/SA/183/2014 CAV JUDGMENT
"The registrar's endorsement show (see sub-S.2 of 8.60, Registration Act, 1877) that in 1881 a person claiming to be this Parshotam Das, and to have become son of Harish-chandra by adoption made by his widow Manki Bahu, presented the receipt for registration and admitted execution. He was identified by two persons one Sheo Prasad and the other Girja Prasad, who was the scribe of the document and was known to the Registrar. What remains to be shown is that the person admitting execution before the Registrar was this Parshotam Das and no impostor. The question is one of fact except in so far as there was as a matter of law a presumption that the registration proceedings were regular and honestly carried out: 33 Ind App 60 at p.65 (C) AIR 1922 PC 56 at p.58 (A). It seems clear that any objection to the sufficiency of the proof upon this point would have been idle, the circumstances being such that the evidence of due registration is itself some evidence of execution as against the plaintiffs."
In AIR 1931 Bom 105 (B), Beaumont, C.J., and Baker, 1., were dealing with a case in which the first appellate court had observed "The lower court has not even insisted on proof that any such document was ever executed by deceased Ramji; the person who is said to have identified him before the Sub-Registrar is not examined. The respondent cited the writer and witnesses, but did not examine them. The result of this extraordinary conduct of the case is that the plaintiff is allowed to accuse Ms adversary without any proof of having a certain document, and is allowed to take every advantage of this accusation, being exempted thereby from his obligation to prove the execution of the document."
But Baker, J., who delivered the judgment of the High Court observed :
"Then as to the proof, the document, in this particular instance, has been registered and bears the necessary endorsements by the Sub-Registrar before whom the executant was identified by the Kulkarni of the village. The effect of registration has been considered by this court in 'Thama v. Govind', 9 Born LR 401 (K) where it Page 124 of 160 Downloaded on : Sat Jul 13 03:18:56 IST 2019 C/SA/183/2014 CAV JUDGMENT was held that $3.58, 59 and 60, Registration Act, provide that the facts mentioned in the endorsement may be proved by these endorsements provided the provisions of $.60 have been complied with. The endorsement of the Sub-Registrar in the present case shows that Ramji the executant admitted execution of the document and gave his thumb impression and that he was identified before the Sub-Registrar by Keshav Hari Talati who was known to the Sub-Registrar. In these circumstances, the view of the first court that the copy of the adoption deed is admissible in evidence and that is sufficiently proved appears to be correct."
From these decisions, it is clear that the lower appellate. Court was right in regarding the copies of the two registered documents as some evidence of the genuineness of their originals."
119. A learned Single Judge of the Mysore High Court in the case of Amir Bi & Ors. vs. Committee of Management of Nilasandra Mosque, AIR 1969 MYSORE 103, had observed as under;
"11. It is stated in para 2 of the plaint that Abdulla Hussain has executed the document on 23-3-1940. The defendants in their written statement have merely denied the allegations made in para. 2 of the plaint. There is no specific denial of the execution of the document by Abdulla Hussain. The trial court has not raised any issue relating to the proof of the execution of the document. It is therefore clear that the execution of the document, not having been specifically disputed, no issue is raised and there is no decision by the Courts below. Therefore, it is not open to the learned counsel for the appellants to raise the question of proof of the execution of the document in this Court for the first time. Even otherwise, in my opinion, the evidence on record is sufficient to hold that the plaintiffs have proved the execution of the document.
12. Section 67 of the Indian Evidence Act provides that if a document is alleged to have been signed by any person, then the signature of that person to that Page 125 of 160 Downloaded on : Sat Jul 13 03:18:56 IST 2019 C/SA/183/2014 CAV JUDGMENT document must be proved. In this case, P.W. 4, Shaik Hyder, who has identified the executant Abdulla Hussain before the Sub-Registrar, P.W. 2, a clerk in the Sub- Registrar's office has produced the thumb impression register which is marked Exhibit P-1 and states that the entry relating to the document dated 23-4-1948 is Exhibit P-1 (a). However, P.W. 4 when shown Exhibit P-1, pointed out Exhibit P-1 (b) as the signature of the executant Abdulla Hussein. This is obviously incorrect. It is not known whether this witness is a literate or illiterate. The signature in Exhibit P-1 is in Urdu and if this witness was a literate, surely, he could not have committed the mistake of pointing out the signature of Abdulla Hussein as Exhibit P-1 (b) instead of Exhibit P-1 (a). The Register shows that the document has been registered on 23-4- 1948 and it bears the thumb impression of the executant who has also signed it in Urdu/ P.W. 5 is an attestor of the document. His evidence is that the executant signed the document before the Sub-Registrar and also in the lawyer's office where the document was executed. Further, the executant himself presented the document for registration and having admitted its execution, signed it in Hindustani. He has also put his left thumb mark on it. It also shows that he was identified by Shaik Hyder P.W.
4.
13. Section 58 of the Indian Registration Act requires that every document admitted to registration shall bear the endorsement of the particulars such as the signature of the person admitting execution of the document. Under Section 60(1) of the Act, the registering Officer has to endorse a certificate containing the word 'registered' thereon and under sub-section (2) of that section, such certificate shall be signed, sealed and dated by the registering officer and shall then be admissible for the purpose of proving that the document has been duly registered in the manner provided by the Act and that the facts mentioned in the endorsements referred to in Section 59 of the Act have occurred as stated therein. One of such facts falling within Section 59 is the signature of the executant of the document. Further, P. Ws. 4 and 5 have spoken about the signature of Abdulla Hussein. This evidence to my mind, is sufficient to hold that the document bears the signature of Abdulla Hussein and the same is proved. The lower appellate court has also, believing the evidence of P. Ws. 4 and 5 held that Page 126 of 160 Downloaded on : Sat Jul 13 03:18:56 IST 2019 C/SA/183/2014 CAV JUDGMENT Abdulla Hussein has signed the document.
14. It is however contended by Mr. Farukhi that mere proof of the signature by itself is not sufficient to hold that the execution of the document is proved and in support of that proposition, he relied upon a decision of this court in Narayanappa v. Latchmakka (1958) 36 Mys LJ 479, wherein it has been observed that mere proof of signature of party to a document is not the same thing as proving the due execution of the document. That observation came to be made in respect of a document alleged to have been executed by an illiterate lady; the courts below in the case had come to the conclusion that she did not know the real character of the document when she signed it and it was in that context this court observed that mere proof of signature of the party is not the same thing as proving the due execution of the document. It is obvious that if a person signs a document not knowing the nature of that document, it is a good as his not having executed the document and therefore, the observation made in that context can have no relevance to the facts of the present case.
15. Next, Mr. Farukhi relied upon the decision in Balappa Tippanna v. Asangappa Mallappa, (1959) 37 Mys. LJ 920 = (AIR 1960 Mys. 234). In that decision, the effect of the proviso to Section 68 of the Indian Evidence Act was considered since the document was to be proved as required by that Section since it was required to be attested and the proof of such a document had to be given in accordance with the provisions of that Section. That decision again, has no relevance to the facts of this case.
16. Mr. Farukhi then relied on the decision in Narayanachar v. Venkatanathan, (1961) 39 Mys L J 794 in support of his submission that the certificate by the Registrar under Section 60(2) of the Indian Registration Act is not sufficient to hold that the document has been executed. It is true that this court has stated that the execution of the document cannot be held to be proved by the fact of the registration of the document itself. What Section 60(2) provides is that the registration certificate is proof that the document was duly registered and not that it was duly executed. It would however appear that the document was however appear that the document was presented for registration not by the Page 127 of 160 Downloaded on : Sat Jul 13 03:18:56 IST 2019 C/SA/183/2014 CAV JUDGMENT executant himself but by a person who held the power of attorney from the executant and it was in that context that the observation was made. But the plaintiff in the instant case do no merely rely upon the certificate under Section 60(2) of the Registration Act. They have also examined two witnesses--P. Ws 4 and 5--to prove the signature of Abdulla Hussein.
Though it is true that Court is not, bound to treat the Registrar's endorsement as conclusive proof of the fact of its execution, yet, if the executant admits the execution and signs it before the Registrar and the Registrar affixes his signature endorsing the signature of the executant stating that the executant has admitted execution and certifies the document, then, such an endorsement and the certificate read with the evidence of P. Ws. 4 and 5 is sufficient to hold that the document is proved to have been signed and executed by the executant namely, Abdulla Hussein. Therefore, these decisions on which reliance has been placed by the learned counsel for the appellants do not help them in maintaining that the execution of the document is not proved. "
120. A Division Bench of the Madras High Court in the case of Irudayam Ammal & ors. vs. Salayath Mary, reported in AIR 1973 MADRAS 421 had observed as under;
"6. From the above, it will be seen that this is a clear case to which the well known maxim "Omnia praesumuntur contra spoliatorem" applies (vide Broom's Legal Maxims 1939, 10th Edn., pp. 637 to 640). "If a man by his tortious act, withholds the evidence by which the truth of his case would be manifested, every presumption to him disadvantage will be adopted." Irudaya Udayar and the plaintiff who is a tool in the formers hands are clearly the wrong-doers and every adverse inference will be drawn against them as they should take the responsibility for the non-production of the original will. The first defendant has also satisfactorily accounted for the non-production of the original Will and the non- examination of the attesting witnesses as they are dead and no useful evidence could be given by the scribe. The first defendant has, therefore, proved the will by other Page 128 of 160 Downloaded on : Sat Jul 13 03:18:56 IST 2019 C/SA/183/2014 CAV JUDGMENT acceptable, satisfactory evidence supplemented by such presumptions as would arise under the provisions of the Regulations Act and S. 114 of the Evidence Act on the facts of this case. There is a general presumption about the execution of the will arising under Section 60 of the Indian Registration Act (vide Mullah's Indian Registration Act 7th Edn., page 256). It is true that registration, by itself, in all cases, is not proof of execution, but if no other evidence is available, the certificate of registration is prima facie evidence of its execution and the certificate of the registering officer under Section 60 of the Registration Act is relevant for proving execution. (See discussion in Sarkar's evidence latest 12th Edn., p.
640). As observed by the Privy Council in Md. Ihtisham Ali v. Jamna Prasad, AIR 1922 PC 56, registration is a solemn act and if no other evidence is available the court can presume that the Registrar performed his duty of satisfying himself that the document presented to him for registration was duly executed by the executant and the executant was duly and properly identified before him.
The same view was taken in Gopaldas v. Sri Thankurji, AIR 1943 PC 83, in which after referring to the earlier decision of the Privy Council in AIR 1922 PC 56 (referred to above) Sir George Rankin observed that the evidence of due registration is itself some evidence of execution as against the other side. There is a full discussion on this question as to the presumption arising from the fact of due registration, coupled with the presumption arising under Section 114 of the Indian Evidence Act in a Bench decision of the Mysore High Court in Hutchegowda v. Chennigegowda, AIR 1953 Mys. 49, in which it was held that the evidence that a document was duly registered is some evidence of its execution by the person by whom it purports to have been executed.
There is a full discussion of the relevant case law including the decision of the Privy Council in AIR 1922 PC 56 aforesaid. In Revanna v. Dr. A. V. Ranga Rao, AIR 1952 Mys 119, it was observed that in cases where it is impossible for any person to prove execution of a document on account of the death of all the persons concerned the best and the only possible evidence that may be available is that of a certified copy of the registered document and that in such cases a presumption could arise under Section 60 of the Registration Act along with Section 114 of the Evidence Page 129 of 160 Downloaded on : Sat Jul 13 03:18:56 IST 2019 C/SA/183/2014 CAV JUDGMENT Act (see also Kashibai v. Vinayak, ). It will be seen that in the ultimate analysis, the problem in each case is 'has the best evidence been adduced on the facts of each case'; in the instant case we have not the slightest hesitation in holding that this essential test for arriving at the truth has been amply satisfied. "
121. A Division Bench of the Kerala High Court in the case of Kunhamina Umma & Ors. vs. Special Tahsildar & Ors., reported in AIR 1977 KERALA 41, had observed as under;
"17. Certain other courts have taken the view that a certificate of registration given under Sec, 60 (2) of the Registration Act is not by itself sufficient to prove due execution of a document as required by Section 67 of the Evidence Act and that the effect of registration is not to prove execution but only to prove an admission by the executant to the registration in solemn circumstances-- see (1) Ramkrishan v. Mohd. Kasim, AIR 1973 Bom 242. (2) Ramanna v. Sambamurthy, AIR 1961 Andh Pra 361. (3) Bhutkani Nath v. Kamaleswari, AIR 1972 Assam & Naga 15.
(4) Dharm Das v. Kashi Nath, AIR 1959 Cal 243.
18. In Indernath Modi v. Nandram (AIR 1957 Raj 231) Chief Justice Wanchoo (as he then was) said, "Among the endorsements referred to in Section 59, is the endorsement under Section 58. The endorsement under Section 58 includes the signature and admission of every person admitting the execution of the document. It is from this admission of execution made under Section 58 that the courts have held that the registration of documents is some proof of its execution. At the same time it may be rememibered that this mode of proof cannot take the place of proof as provided by Section 67 of the Evidence Act waich lays down that if a document is alleged to be signed or to have been written wholly or in part, by any person the signature or the handwriting of so much of the document as is alleged to be in that person's handwriting must be proved to be in his handwriting."Page 130 of 160 Downloaded on : Sat Jul 13 03:18:56 IST 2019 C/SA/183/2014 CAV JUDGMENT
19. The question has been considered in depth by Justice Raman Nair (as he then was) in Sumathi Amma v. Kunjuleskhmi Amma (1964 Ker LT 945). The learned Judge observed (at pages 946 and 947) :--
"I regard the Privy Council decision in Gangamoyi Debi v. Troiluckhya Nath Chowdary, (1906) ILR 33 Cal 537 (PC) -- Md. Ihtishan AH v. Jamna Prasad (AIR 1922 PC 56) and Gopal Das v. Sri Thakurji (AIR 1943 PC 83) -- see also Vishvanath v. Rahibai (AIR 1931 Bom 105), Pandappa v. Shivalingappa (AIR 1946 Bom 193) and Kalu v. Bapurao (AIR 1950 Nag 6) -- as authority for the proposition that, in cases where Section 68 of the Evidence Act has no application the certificate of registration in the light of the presumption in Section 114, Illustration (e) of the Evidence Act is evidence of execution and can, in fit cases, be accepted as proof thereof and with the contrary view expressed in Salimatul Fatima v. Koyalashpati Narain Singh ((1890) ILR 17 Cal 903), Maruti Balaji v. Dattu (AIR 1923 Bom 253 (2)) and Bulakidas Hardas v. Chotu Paikan (AIR 1942 Nag 84) -- neither what is said in the Privy Council decisions nor the wording of Section 60 (2) of the Registration Act lends the least support to the statement in the last mentioned case that the certificate is only corroborative and not substantive evidence; the section says that the certificate is admissible for proving certain facts which can only mean that it is substantive evidence regarding those facts--I must express my respectful dissent. To the argument noticed in Ara Begam v. Deputy Commr. Gonda (AIR 1941 Oudh 529 at p. 548), Bulakidas Hardas v. Chotu Paikan (AIR 1942 Nag 84 at p.
85) and Ramanna v. Sambamoorthi (AIR 1961 Andh Pra 361 at p. 369) that if the certificate of registration were to be accepted as proof of execution, a party who is required to prove a document would, if it is registered, be relieved of the necessity of examining any witnesses to prove it end could rest solely on the certificate, thus opening the way to fraud and fabrication, the answer is obvious. It is that the court is not bound to accept the certificate as sufficient proof and, where better evidence is available, can insist on better evidence, drawing the presumption in Illustration (g) of Section 114 of the Evidence Act against the party who withholds this better evidence.
xx xx xx Page 131 of 160 Downloaded on : Sat Jul 13 03:18:56 IST 2019 C/SA/183/2014 CAV JUDGMENT With great respect I think that the attempt made in Indernath Modi v. Nand-ram (AIR 1957 Raj 231) to distinguish the Privy Council cases on the ground that those cases apply only, where it is not possible to take recourse to the method provided in Section 67 because of the factt that the executant and the marginal witnesses are either dead or cannot be found, and that it is only in such cases that recourse can be had 'to the presumption under Section 60 (2) of the Registration Act' is vitiated by the assumption that Section 67 of the Evidence Act prescribes a mode of proof and requires the executant or the "marginal witnesses" to be examined. Section 67 says nothing of the kind. It only says that facts have to be proved, and, unlike Section 68, does not prescribe any particular mode of proof. The facts required to be proved under Section 67 can be proved by any kind of evidence, and there is nothing in the section to indicate that the evidence furnished by the registration certificate by virtue of Sub-section (2) of Section 60 of the Registration Act and by the presumption in Illustration (e) of Section 114 of the Evidence Act, is to be excluded."
We have no hesitation in endorsing the view of the learned Judge as laying down the correct law on the question if we may say so with respect. Therefore, we have to hold that the due execution of Exs. A15 and A16 have been properly proved in this case."
122. A Single Judge of the Punjab & Haryana High Court in the case of Shiv Das & ors. vs. Smt. Devki & Ors., reported in AIR 1978 Punjab & Haryana 285, had observed as under;
" 14. A bare reading of Ss. 58, 59 and 60 of the Indian Registration Act leads to the conclusion that the registration of a document is a solemn act to be performed in the presence of a competent officer whose function is to ensure that proper persons are before him and are identified to his satisfaction and further that all things done before him in his official capacity and verified by his signature, will be presumed to be in order and duly done. It follows, therefore, that the certificate endorsed on the deed by the registering officer under S. 60 of the Page 132 of 160 Downloaded on : Sat Jul 13 03:18:56 IST 2019 C/SA/183/2014 CAV JUDGMENT Act is a relevant piece of evidence for proving its execution. Besides sub--section (5) of S. 57 of the Act directs that a certified copy of a registered document issued by the office of the Registrar shall be admissible for the purpose of providing the contents of the original document."
123. In one another decision of the Punjab & Haryana High Court in the case of Chander vs. Nihali, reported in 1992 (1) CurLJ 579, it has been held as under:
"Moreover, the certificate of the Registrar under Section 60 of the Registration Act is a relevant piece of evidence for proving due execution of the Will. The registration of a document is a solemn act to be performed in the presence of a competent official appointed to act as Registrar, whose duty is to attend to the parties during the registration and see that the proper persons are present, are competent to act, and are identified to his satisfaction, and all things done before him in his official capacity and verified by his signature will be presumed to be done duly and in order. (See in this connection - Piara v. Fattu, 1929 AIR (Lah) 711. The first Appellate Court was in error in holding that the Will was not validly executed. The findings arrived at by the First Appellate Court are reversed."
124. A Division Bench of the Bombay High Court in the case of Kashibai Martand vs. Vinayak Ganesh & Ors., reported in AIR 1956 BOMBAY 65, had the occasion to consider the issue as regards the proof of execution of a document and the effect of sub-section (2) of section 60 of the Registration Act. Justice P.B. Gajendragadkar (as his Lordship then was), in his separate judgment, observed as under:
'7. Section 58 of that Act provides for particulars to be endorsed on documents admitted to registration. Under Page 133 of 160 Downloaded on : Sat Jul 13 03:18:56 IST 2019 C/SA/183/2014 CAV JUDGMENT Sub-section (1) of this section, on every document admitted to registration, other than a copy of a decree or order, or a copy sent to a registering officer under Section 39, there shall be endorsed from time to time the particulars mentioned in Clauses (a), (b) and (c) of the said sub-section.
Under Clause (a), the signature and addition of every person admitting the execution of the document, and, if such execution has been admitted by the representative, assign or agent of any person, the signature and addition of such representative, assign or agent, is required to be endorsed.
Under Clause (c) of the said sub-section, any payment of money or delivery of goods made in the presence of the registering officer in reference to the execution of the document, and any admission of receipt of consideration, in whole or in part, made in his presence in reference to such execution, is required to be,endorsed. Clause (b) deals with the signature and addition of every person examined in reference to such document under any of the provisions of the Act.
Section 59 requires the registering officer to affix the date and his signature to all endorsements made under Section 58. Lastly, Section 60 provides that, after such of the provisions of Sections 34, 35, 58 and 59 as apply to any document presented for registration have been complied with, the registering officer shall endorse thereon a certificate containing the word "registered", together with the number and page of the book, in which the document has been copied.
When the procedure thus prescribed has been followed in registering a document and the endorsements required to be made have been duly made by the registering officer, Sub-section (2) of Section 60 provides for a statutory presumption. It says that such certificate shall be signed, sealed and dated by the registering officer and shall then be admissible for the purpose of proving that the document has been duly registered in a manner provided by the Act and that the facts mentioned in the endorsements referred to in Section 58 have occurred as therein mentioned.
It would thus be seen that the effect of Sub-section (2) of Section 60 is to enable the Court to raise a statutory presumption that the facts mentioned in the Page 134 of 160 Downloaded on : Sat Jul 13 03:18:56 IST 2019 C/SA/183/2014 CAV JUDGMENT endorsements have occurred as therein mentioned. In other words, wherever the endorsement of the registering officer shows that the executant admitted the execution of the document before him or admitted the receipt of the money mentioned in the document, the said facts would be endorsed by the registering officer and the endorsements thus made, which; a certificated copy would bear, can be regarded as showing that the facts mentioned in the endorsements have occurred as therein mentioned.
Mr. Kotwal is, therefore, justified in contending that under the provisions of Section 60, Sub-section (2), it would be competent to the Court to hold that the execution of the document had been admitted by the executant before the Sub-Registrar. That is the endorsement which the certified copy produced in the present proceedings bears and the said endorsement must be given its due legal effect having regard to the provisions of Section 60, Sub- section (2). "
125. Justice Shah, in his separate but concurring judgment, had observed as under:
"But mere proof of the contents of the document does not prove due execution, of the mortgage deed. The plaintiff has not only to prove the contents of the document, but she has to prove that the document was duly executed as required by Section 59 Transfer of Property Act, and that the same was registered. On production of a certified copy containing endorsements required by Sections 58 and 59 and the certificate of registration under Section 60, Clause (1) of the Registration Act, due registration of the document must be regarded as proved.
Due execution of the mortgage-deed can, however, be proved only if the plaintiff is able to show that the mortgagor signed the document with intent to execute the same and the deed was attested in the. manner required by law. For proving the signature of the mortgagor on the deed the plaintiff relied upon Sub- section (2) of Section 60, Registration Act. That sub- section, in so far as it is material, provides that where a Page 135 of 160 Downloaded on : Sat Jul 13 03:18:56 IST 2019 C/SA/183/2014 CAV JUDGMENT certificate of registration under Sub-section (1) of Section 60 has been signed, sealed and dated by the registering officer, it shall be admissible for the purpose of proving that the facts mentioned in the endorsements referred to in Section 59 have occurred as therein mentioned. Section 59 requires the registering officer to affix the date and his signature to all endorsements made under Sections 52 and 58.
Section 58(1)(a) requires the registering officer to endorse the signature and addition of every person admitting execution of every document, and, if such execution has been admitted by the representative, assign or agent of any person, the signature and addition of such representative, assign or agent. In this case, from the endorsement made on the deed of mortgage by the Sub-Registrar it is clear that the mortgage deed was admitted to have been executed by the mortgagor and it was duly presented by him for registration. The plaintiff is, therefore, entitled to rely upon the certificate of registration to prove the fact that the deed of mortgage was duly signed by the mortgagor. Where the original mortgage deed has not been produced and a suit has been filed to enforce rights under the mortgage relying upon a copy, the signature of the mortgagor may be proved by relying upon the certificate of registration. That view is supported by a decision of this Court reported in 9 Bom LR 401 (C).
The head-note in that case states that Sections 58, 59 and 60, Registration Act provide that the facts mentioned in the endorsements may be proved by those endorsements provided the requirements of Section 60 have been complied with. That was a case in which the mortgage-deed was of 1877 and at that time a mortgage- deed was not required by law to be attested. The Court in that case held, relying upon the certificate of registration under Section 60 of the Registration Act, that the mortgage-deed was duly proved and on that footing a decree was given in favour of the mortgagee. "
126. In Gangamoyi Debi v. Troilukhya Nath, 33 Ind App 60 (PC) their Lordships referring to the facts of the case stated that "on the day before his death, according to the respondents' Page 136 of 160 Downloaded on : Sat Jul 13 03:18:56 IST 2019 C/SA/183/2014 CAV JUDGMENT evidence, he went to the registry office, and there at 4 P.M. presented for registration the will in dispute......... The execution of the will was admitted by Brojo Nath Chowdhry who was identified by two witnesses, and then the will was registered." There was however one Lakhi Nath Mazumdar who had affirmed that he had seen Brojo Nath Chowdhry putting his signature on the document. 'But their Lordships observed:
"This evidence would be quite sufficient in their Lordships' opinion, to answer the observations of the Subordinate Judge. But they desire to put the case on a higher ground. The registration is a solemn act, to be performed in the presence of a competent official appointed to act as registrar, whose duty it is to attend the parties during the registration and see that the proper persons are present and are competent to act, and are identified to his satisfaction; and all things done before him in his official capacity and verified by his signature will be presumed to be done duty and in order. Of course it may be shown that a deliberate fraud upon him has been sucessfully committed; but this can only be by very .much stronger evidence than is forthcoming here,"
127. Similarly in Ehtisham AH v. Jamna Prasad, 48 Ind App 365 at p. 372: (AIR 1922 PC 56 at p. 58) their Lordships observed:
"There is no doubt that the deed was executed, for it was registered, and registered in a regular way, and it is the duty of the Registrar, before registering to examine the grantor, or some one whom he is satisfied is the proper representative of the grantor, before he allows the deed to be registered. There can be no doubt, therefore, that Ehsan AH Khan executed the deed and was party to its registration etc. etc."
128. The Privy Council made the position clearer in Gopal Das v. Sri Thakurji AIR 1943 PC 83. Their Lordships Page 137 of 160 Downloaded on : Sat Jul 13 03:18:56 IST 2019 C/SA/183/2014 CAV JUDGMENT observed:
"The registrar's endorsements show (see Sub- section (2) of Section 60, Registration Act, 1877), that in 1881 a person claiming to be this Parshotam Das, and to have become son of Harish Chandra by adoption made by his widow Manki Bahu, presented the receipt for registration and admitted execution. He was identified by two persons -- one Sheo Prasad and the other Girja Pra-sad, who was the scribe of the document and was known to the Registrar. What remains to be shown is that the person admitting execution before the Registrar was this Purshotam Das and no imposter. The question is one of fact except in so far as there was as matter of law a presumption that the registration proceedings were regular and honestly carried out: 33 Ind App 60 at p. 65 (PC); 48 Ind App 365 at p. 372 : (AIR 1922 PC 56 at p. 58). It seems clear that any objection to the sufficiency of the proof upon this point would have been idle, the circumstances being such that the evidence of due registration is itself some evidence of execution as against the plaintiffs. Wills and documents which are required by law to be attested raise other questions but this receipt was not in that class."
129. It follows from what has been discussed above that if apart from the admission incorporated in the certificate of the Registrar under Section 60 (2) of the Registration Act, there is other evidence to corroborate the admission, the execution of the document can be considered as proved.
130. Mr. Dave, the learned senior counsel as well as Mr. Chandrani, the learned counsel appearing for the defendants vehemently submitted that the defendants could be said to have proved the valid execution of the sale deed in their favour. Mr. Dave, the learned senior counsel, to make good his submission, read a portion of the oral evidence of the defendant, namely, Mohanbhai Patel, Exh.137. According to Page 138 of 160 Downloaded on : Sat Jul 13 03:18:56 IST 2019 C/SA/183/2014 CAV JUDGMENT Mr. Dave, the defendant, namely, Mohanbhai Patel, in clear terms, has deposed that the sale deed was executed by late Kesar Sultan Sipai along with one of his major sons. Mr. Dave pointed out from the oral evidence wherein the defendant has deposed that Kesar Sultan Sipai had put his thumb impression and one of his major sons had also put his thumb impression. Both had appeared before the Sub-Registrar, and in the presence of the Sub-Registrar, the sale deed was duly executed. According to Mr. Dave, the evidence led by the defendants is sufficient to prove the valid execution of the sale deed. According to Mr. Dave, it cannot be said, as asserted by the other side, that the valid execution of the sale deed has not been proved or established. Mr. Dave submitted that there is a presumption that a registered document is validly executed. He submitted that a registered document like the sale deed, in the case on hand, would be valid in law. According to him, the onus of proof, thus, would be on a person who leads evidence to rebut the presumption. The argument of Mr. Dave is that if it is the case of the plaintiffs that the thumb impression or the signature on the sale deed is not genuine or forged or bogus, then it was for the plaintiffs to lead appropriate evidence to rebut the presumption. It is argued that in the instant case, the plaintiffs have not been able to rebut the said presumption. Mr. Dave submitted that the burden of proving the registered sale deed in question as sham and bogus, was on the Appellants (see issue No.2 framed by the Trial Court). Even this burden was rightly placed on the Appellants in view of section101 of the Evidence Act, 1872. Therefore, it was for the Appellants to lead appropriate evidence for discharging their burden of proving the registered sale deed in question as sham and bogus. The registered sale Page 139 of 160 Downloaded on : Sat Jul 13 03:18:56 IST 2019 C/SA/183/2014 CAV JUDGMENT deed in question was executed jointly by kesar Sipai and original Plaintiff Nos. 1 and 3 who happen to be the sons of Kesar Sipai. It is true that Kesar Sipai was not alive when the suit was instituted. However, when the original Plaintiffs Nos.1 and 3 were also parties to the registered sale deed in question as sellers along with Kesar Sipai, it cannot be said, as stated in the question on hand, that the sellers of the registered sale deed in question were not alive. He further submitted that out of the Plaintiffs Nos.1 and 3, only Plaintiff No.3 entered the witness box to depose. However, in his entire deposition nothing has been stated explaining as to how the registered sale deed in question would qualify as sham and bogus as sought to be asserted in the plaint. Even nothing has been stated in his deposition with regard to the signature of the Plaintiffs Nos.1 and 3 in the registered sale deed. It was open for the appellants to summon the attesting witness to the registered sale deed, if at all they were of the view that the attesting witnesses had not put their signatures in the registered sale deed. It is submitted that when the concerned official of the office of sub registrar clarified in his deposition that in the register maintained by the office of the registrar under the Registration Act, the signature of Plaintiffs Nos.1 and 3 was available in original along with their thumb impressions (Exh.157), it was open for the Appellants as Plaintiffs to prove through forensic expert, if at all that they were right, that the same do not reflect the signature and thumb impression of the Plaintiffs Nos.1 and 3. However, nothing of the sort was done. He submitted that if the judgments of the Courts below are taken note of in their true perspective, there is nothing therein to indicate, even remotely speaking, that the Courts below have simply jumped to the conclusion that when the concerned Page 140 of 160 Downloaded on : Sat Jul 13 03:18:56 IST 2019 C/SA/183/2014 CAV JUDGMENT document is a registered one, the proof of its execution stands dispensed with. It is submitted that as a matter of fact, after taking into consideration the certified copy of the registered sale deed at Exh.140 produced by the Respondents as also the copy of the registered sale deed produced by the concerned official of the office of the sub registrar at Exh.154 from the records maintained by the office of the sub registrar under the Registration Act and the depositions of the Respondent No.1 at Exh.137 and the official of the office of sub registrar at Exh.152 and the conduct of Appellants, the Trial Court recorded a finding that the execution and the contents of the registered sale deed were duly proved and the Appellants have failed to prove that the registered sale deed was sham and bogus for which the burden was on the Appellants as per the Issue No.2 framed by the Trial Court.
131. Mr. Dave, in the aforesaid context, tried to fortify his submissions by placing reliance on the decisions of the Supreme Court in the case of Ningawwa vs. Byrappa Shidappa Hireknrabar (supra), Prem Singh (supra) and Vimal Chand Chevarchand Jain (supra).
132. According to Mr. Dave, the legal position is that heavy burden of proof lies upon a person impugning the transaction to show that the same is sham or fraudulent one. According to Mr. Dave, a distinction has to be borne in mind in regard to the nominal nature of a transaction which is no transaction in the eye of law at all and the nature and character of a transaction as reflected in a deed of conveyance.
Page 141 of 160 Downloaded on : Sat Jul 13 03:18:56 IST 2019 C/SA/183/2014 CAV JUDGMENT133. To put it in other words, according to Mr. Dave, the initial burden of proving the transaction bogus or sham was on the plaintiffs and they have miserably failed to lead any evidence in this regard. In such circumstances the onus cannot be said to have shifted upon the defendants to establish or prove the valid execution of the sale deed. A registered document and the registration of the sale deed re-enforces the valid execution of the sale deed. According to Mr. Dave, a registered document carries with it a presumption that it was validly executed. It is for the party, challenging the genuineness of the transaction, to rebut such presumption.
134. Mr. Dave, with a view to give us a fair idea about the nature of the evidence laid by the plaintiffs, took us through the cross-examination of one of the plaintiffs who entered the witness box. In his cross-examination, he deposed as under:
"I do not know that my father had executed sale-deeds in favour of Mohan Ambabhai and Bhikhalal Ramjibhai Patel in the year 1965 and 1967. It is true that I do not know anything about these two sale-deeds."
135. A specific question was put to the witness as to on what basis he asserted that no sale deed had been executed. The reply of the plaintiff is worth taking note of. This is what I find from the cross-examination.
"Que:- On what basis you have stated that no sale-deed is executed?
Ans:- The land is in our possession and on the basis of said fact, I state that no any sale deed is executed."
136. Mr. Dave, thereafter, took me to the evidence of Page 142 of 160 Downloaded on : Sat Jul 13 03:18:56 IST 2019 C/SA/183/2014 CAV JUDGMENT Pareshbhai K. Shukla, Exh.152. This witness, at the relevant point of time, was serving as a clerk in the office of the Sub- registrar at Rajkot. His examination-in-chief reads thus:
"I am serving as a clerk in the office of the Sub Registrar. The summons issued by this Court was served in the office of the Sub Registrar for the purpose of production of the documentary evidences and also to record the deposition. It was informed by the Sub Registrar to remain present before this Hon'ble Court along with the Summons. Therefore, I have remained present before this Court. The letter appointing me to appear before this Court is produced herewith. The signature of the Sub Registrar viz Shri M.H. Jethwa is there in the said letter. The said letter is admitted at Exh.153. The sale deed No.364 dated 25.1.66 was produced before the then Sub Registrar Shri K.J. Thanna. The name of Bhikhalal Ramji is shown as the purchaser and the names of Kesar Sultan and others are reflected as the vendors of the suit land. The said sale deed is registered with our office. I have brought the true copy of the said sale deed. It is produced in the Court and admitted at Exh.154. The sale deed No.1201 was registered on 10.4.67 in the office of the Sub Registrar. The said sale deed was executed by Kesar Sultan and others in favour of Bhikhalal Ramji. The sale deed No.1201 dated 10.4.67 was registered with the office of Sub Registrar. I have brought the true copy of said agreement. It is produced in the Court and admitted at Exh.155.
The sale deed was registered with the Sub Registrar in the presence of the purchasers, vendors and two witnesses at the relevant point of time. If the purchaser does not remain present, the vendor can execute and register the agreement. All the parties were present when the above sale deed was registered. Proper identification of the parties was also given. If any of the vendors does not remain present, the sale deed cannot be executed. The signature of vendors are seen in the Column No.2 of Page No.1 & 2 of both the documents. The signature/thumb impression of vendor is also there on the last page of the documents. The signatures and Page 143 of 160 Downloaded on : Sat Jul 13 03:18:56 IST 2019 C/SA/183/2014 CAV JUDGMENT thumb-impressions are also obtained in the separate register (Thumb-book) maintained by the office of the Sub Registrar. This is the permanent record and is available in our office. The same will be produced during the next date of hearing.
The witness has not brought thumb-book along with him and it is necessary to produce in the case. The witness seeks time of 15 to 20 days. The matter is adjourned subject to production of the book on the next date of hearing.
Further examination in chief by Ld. Advocate Budhdevbhai for the Defendant No.1 and 2.
The documentary evidences as mentioned were not brought on record when the matter was heard last. Now, today I have remained present in the Court along with all the documents. Accordingly, the vendors had remained present in the Sub Registrar Office and they had put their thumb impressions in the book and sale deed in the presence of Sub Registrar. I am to produce the original book in the Court. Xerox copy of the same is annexed hereto and admitted at Exh.157. The second document was executed in the year 1967. Accordingly, the vendors had remained present in the Office and they had put their thumb impressions in the document in the presence of the Sub Registrar. I am to produce the original book in the Court. Xerox copy of the same is annexed hereto and admitted at Exh.158."
137. In his cross-examination, on behalf of the defendants Nos.3,4 and 5, he deposed as under:
"It is true that the aforesaid deeds and agreements were registered as per the registration rules and regulations which were in force at the relevant time and the agreements were registered in the presence of the purchasers and vendors."Page 144 of 160 Downloaded on : Sat Jul 13 03:18:56 IST 2019 C/SA/183/2014 CAV JUDGMENT
138. On the other hand, Mr. Desai, the learned senior counsel appearing for the power of attorney submitted that the plaintiffs came to the Court alleging that the defendants had created a bogus sale deed and had got it executed in suspicious circumstances. When the execution of the sale deed put forth by the defendants was denied by the plaintiffs, it would not be correct in law to say that it was for the plaintiffs to establish that the document was forged or concocted. Mr. Desai would submit that the party, who propounds the document, will have to prove it. The plaintiffs having denied the execution of any such sale deed, the burden was on the defendants to prove that the plaintiffs had executed the sale deed and not on the plaintiffs to prove the negative.
139. Mr. Desai, in support of his aforesaid submission, has placed reliance on a decision of this Court in the case of Thiruvengadam Pillai vs. Navaneethammal, reported in (2008) 4 SCC 530: AIR 2008 SC 1541, wherein the Supreme Court held that when the execution of an unregistered document put forth by the plaintiff was denied by the defendants, the ruling that it was for the defendants to establish that the document was forged or concocted is not a sound proposition. The first appellate Court proceeded on the basis that it is for the party who asserts something to prove that thing; and as the defendants alleged that the agreement was forged, it was for them to prove it. But the first appellate Court lost sight of the fact that the party who propounds the document will have to prove it. It was the plaintiff who had come to Court alleging that the first defendant had executed an agreement of sale in his favour. The defendant having Page 145 of 160 Downloaded on : Sat Jul 13 03:18:56 IST 2019 C/SA/183/2014 CAV JUDGMENT denied it, the burden was on the plaintiff to prove that the defendant had executed the agreement and not on the defendant to prove the negative.
140. The principle of law explained by the Supreme Court in Thiruvengadam Pillai (supra) will not apply in the case on hand. In Thiruvengadam Pillai (supra), the execution was of an unregistered document. The case on hand is one of a registered document in the form of a sale deed. It carries a presumption of genuineness as regards the valid execution also. I must remind myself of what the Supreme Court has observed in the case of In K. Laxmanan v. Thekkayil Padmini & Ors., AIR 2009 SC 951. In para-19, the Supreme Court observed as under;
"19.... when there are suspicious circumstances regarding the execution of the Will, the onus is also on the propounder to explain them to the satisfaction of the Court and only when such responsibility is discharged, the Court would accept the Will as genuine. Even where there are no such pleas, but circumstances give rise to doubt, it is on the propounder to satisfy the conscience of the Court. Suspicious circumstances arise due to several reasons such as with regard to genuineness of the signature of the testator, the conditions of the testator's mind, the dispositions made in the Will being unnatural, improbable or unfair or there might be other indications in the Will to show that the testator's mind was not free. In such a case, the Court would naturally expect that all legitimate suspicion should be completely removed before the document is accepted as the last Will of the testator."
141. In In Krishna Mohan Kul @ Nani Charan Kul & Anr. v. Pratima Maity & Ors. AIR 2003 SC 4351, the Supreme Court, in para-12, observed as under:
"12.... When fraud, mis- representation or undue influence is alleged by a party in a suit, normally, the Page 146 of 160 Downloaded on : Sat Jul 13 03:18:56 IST 2019 C/SA/183/2014 CAV JUDGMENT burden is on him to prove such fraud, undue influence or misrepresentation. But, when a person is in a fiduciary relationship with another and the latter is in a position of active confidence the burden of proving the absence of fraud, misrepresentation or undue influence is upon the person in the dominating position, he has to prove that there was fair play in the transaction and that the apparent is the real, in other words that the transaction is genuine and bona fide. In such a case the burden of proving the good faith of the transaction is thrown upon the dominant party, that is to say, the party who is in a position of active confidence."
142. The issue with regard to the burden of proof, in my opinion, should pale into insignificance because both the sides have tried to lead evidence in their own manner. The plaintiffs tried to lead evidence to indicate that the transaction was sham and bogus and no sale deed as asserted by the defendants was executed, whereas the defendants led evidence in their own way by producing the certified copy of the sale deed and also by examining one of the officers from the office of the sub-registrar to prove the valid execution of the sale deed. However, the correct position of law as regards the burden of proof has been explained by the Supreme Court in the case of Anil Rishi vs. Gurbaksh Singh, Appeal (Civil) 2413 of 2006, decided on 2nd May, 2006, wherein late Justice S.B. Sinha had observed as under:
"There is another aspect of the matter which should be borne in mind. A distinction exists between a burden of proof and onus of proof. The right to begin follows onus probandi. It assumes importance in the early stage of a case. The question of onus of proof has greater force, where the question is which party is to begin. Burden of proof is used in three ways : (i) to indicate the duty of bringing forward evidence in support of a proposition at the beginning or later; (ii) to make that of establishing a Page 147 of 160 Downloaded on : Sat Jul 13 03:18:56 IST 2019 C/SA/183/2014 CAV JUDGMENT proposition as against all counter evidence; and (iii) an indiscriminate use in which it may mean either or both of the others. The elementary rule is Section 101 is inflexible. In terms of Section 102 the initial onus is always on the plaintiff and if he discharges that onus and makes out a case which entitles him to a relief, the onus shifts to the defendant to prove those circumstances, if any, which would disentitle the plaintiff to the same. In R.V.E. Venkatachala Gounder v. Arulmigu Viswesaraswami & V.P. Temple and Anr. [JT 2004 (6) SC 442], the law is stated in the following terms :
"29. In a suit for recovery of possession based on title it is for the plaintiff to prove his title and satisfy the court that he, in law, is entitled to dispossess the defendant from his possession over the suit property and for the possession to be restored to him. However, as held in A. Raghavamma v. A. Chenchamma there is an essential distinction between burden of proof and onus of proof: burden of proof lies upon a person who has to prove the fact and which never shifts. Onus of proof shifts. Such a shifting of onus is a continuous process in the evaluation of evidence. In our opinion, in a suit for possession based on title once the plaintiff has been able to create a high degree of probability so as to shift the onus on the defendant it is for the defendant to discharge his onus and in the absence thereof the burden of proof lying on the plaintiff shall be held to have been discharged so as to amount to proof of the plaintiff's title."
143. I am dealing with a second appeal preferred by the original plaintiffs against the concurrent findings recorded by the two courts below. Essentially, the issue whether the defendants could be said to have proved the valid execution of the sale deed in their favour would be a question of fact, of course, subject to the evidence on record. The two courts below, after due consideration of the oral as well as the documentary evidence on record, have recorded a concurrent finding that the defendants have been able to prove the contents of the sale deed as well as valid execution of the sale Page 148 of 160 Downloaded on : Sat Jul 13 03:18:56 IST 2019 C/SA/183/2014 CAV JUDGMENT deed. The submission on behalf of the power of attorney is that the evidence as regards valid execution of the sale deed is deficient. To put it in other words, the evidence is not sufficient to justify the findings as regards the valid execution of the sale deed. I may sum up my final conclusion as under:
144. It is true that on mere production of a certified copy of a document which is more than 30 years old, no presumption is permitted regarding its genuineness or execution under Section 90 of the Evidence Act. Section 90 requires production in Court of the particular document in original in regard to which the Court is asked to draw the statutory presumption of its execution. In Basant Singh v. Brij Raj Saran Singh, AIR 1935 PC 132 their Lordships of the Privy Council observed:
"Their Lordships approve of the decision in Shripuja v. Kanhayalal, 15 Nag LR 192: AIR 1918 Nag 114 in which the Judicial Commissioner held that production of a copy was not sufficient to justify the presumption of due execution of the original under Section 90, and they are unable to agree with the subsequent overruling of that decision in Gopinath Maharaj Sansthan. v. Moti, 30 Nag LR 155: AIR 1934 Nag 67."
145. This view came to be affirmed by the Supreme Court in Harihar Prasad v. Deonarain Prasad, (S) AIR 1956 SC 305 at p. 310. Although therefore a certified copy may be used to prove the contents of a document, yet no statutory presumption under Section 90 of the Evidence Act is available in a case where the original is not produced but a certified copy alone is produced.
146. The necessary question which arises from the above is: Is Page 149 of 160 Downloaded on : Sat Jul 13 03:18:56 IST 2019 C/SA/183/2014 CAV JUDGMENT the certified copy of the sale deed given by the Registrar's Office admissible to prove the execution of the sale deed? I do not think it can be seriously disputed that the certified copy although admissible in evidence as secondary evidence may be enough to prove the contents of the document, but is not enough to prove its execution.
147. It cannot however be contended that the certified copy is not admissible in evidence to prove even the contents of the document. Section 61 of the Evidence Act embodies the general rule that the contents of the documents may be proved either by primary or secondary evidence. The terms "primary' and "secondary evidence" have been explained in Sections 62 and 63. It is Section 64 which lays down that the documents must be proved by primary evidence except in the cases where the secondary evidence is permitted under the Evidence Act. This section rests on the maxim that the 'best evidence' must always be produced. But when it is proved that the original is either lost, or has been wilfully suppressed or cannot be produced for reasons beyond the control of the plaintiff, secondary evidence can certainly be looked into.
148. Now under Section 65, the secondary evidence may be given of the existence, condition or contents of a document when the original is a public document within the meaning of Section 74. Section 74 defines what are public documents. Subsection (2) of Section 74 states that the public records kept in any State of private documents are also public documents. This Section therefore refers to such records also as are kept under the Indian Registration Act, particularly Sections 51 and Page 150 of 160 Downloaded on : Sat Jul 13 03:18:56 IST 2019 C/SA/183/2014 CAV JUDGMENT 57-Section 51 refers to the register-books to be kept in the several registration offices. Under Section 57 registering officers are under a legal obligation to allow inspection of certain books and indexes, and to give certified copies of entries. Under Sub-section (5) of Section 57 all copies given under the said Section are to be signed and sealed by the registering officer. These certified copies shall be admissible for the purposes of proving the contents of the original document.
149. Under Section 77 of the Evidence Act also certified copies are admissible to prove the contents of the public documents. There is however some difference between Section 57 of the Registration Act and Section 77 of the Evidence Act. Whereas Section 57 of the Registration Act makes the certified copies admissible to prove the contents of the original' documents. Section" 77 of the Evidence Act makes the certified copies admissible to prove the contents of the public documents. This difference does not alter the effect as far as this case is concerned. This Section i.e., Section 57, therefore, permits a certified copy to be used for the purposes of proving the contents of the original document. Similarly under Section 60(2) of the Registration Act a certificate containing the word. 'registered' together with the number and page of the book in which the document has been copied-shall be signed and sealed and dated by the registering officer. This certificate under Section 60(2} is admissible for the purpose of proving that the document has been duly registered in the manner provided by this Act and that the facts mentioned in the endorsement referred to in Section 59 have occurred as Page 151 of 160 Downloaded on : Sat Jul 13 03:18:56 IST 2019 C/SA/183/2014 CAV JUDGMENT therein mentioned.
150. Although therefore a mere registration of a document may not by itself constitute sufficient proof of the execution of the document, but in view of Sections 57 and 60 of the Registration Act the-certified copy and the certificate issued by the Registrar, do, in my judgment, constitute sufficient evidence to prove the contents of the document and also to some extent an evidence of the execution of the document. It may be that the proof of admission of execution before the Registrar may not satisfy completely the requirements of Section 67 of the Evidence Act which requires that the signature of the executant must be proved to be in his handwriting. But it cannot be argued that admission of signature before the Registrar cannot in any case form an evidence of the execution of the document. It may be argued validly that merely on the basis of admission before the Registrar "it may be dangerous to declare the execution of the document as proved, but certainly if there is other corroborating evidence the admission of execution before the Registrar can be a relevant piece of evidence from which the presumption of execution can legitimately be drawn. After all the solemnity of the registration of a document cannot be lost sight of. The statutory inference which gives rise from the solemnity of the registration, cannot be, therefore, ignored,
151. A combined reading of Sections 57 and 60 of the Registration Act and Section 67 of the Evidence Act lead me to the conclusion that mere production of a certified copy of a document registered may not be enough to prove the Page 152 of 160 Downloaded on : Sat Jul 13 03:18:56 IST 2019 C/SA/183/2014 CAV JUDGMENT execution of the document. But it is sufficient to prove the contents of the document. A certificate issued by the Registrar under Section 60 is acceptable in evidence to prove to some extent the admission of execution made by the executor before the Registrar. It may be that an imposter approached the Registrar and got the registration made, but no such allegation is made in this case. It is not even suggested to any one in the witness box. If apart from the admission incorporated in the certificate of the Registrar under section 60(2) of the Registration Act, there is other evidence to corroborate the admission, the execution of the document can be considered as proved. The two courts below, as stated above, after due consideration of the oral as well as the documentary evidence on record, has recorded a concurrent finding as regards the genuineness of the sale deed as well as due execution of the sale deed. The attempt on the part of the learned counsel appearing for the power of attorney is to persuade me to take the view that the evidence on record is deficient and not sufficient to hold valid execution of the sale deed.
152. I must remind myself of two decisions of the Supreme Court as regards the extent, to which, the High Court can go into in a second appeal under section 100 of the CPC. The Supreme Court, in Madamanchi Ramappa & Anr. vs. Muthalura Bojappa, reported in AIR 1963 SC 1633 observed as under;
"In other words, the learned Judge seems to think that the adequacy or sufficiency of evidence to sustain a conclusion of fact is a matter of law which can be Page 153 of 160 Downloaded on : Sat Jul 13 03:18:56 IST 2019 C/SA/183/2014 CAV JUDGMENT effectively raised in a second appeal In our opinion, this is clearly a misconception of the true legal position. The admissibility of evidence is no doubt a point of law, but once it is shown that the evidence on which courts of fact have acted was admissible and relevant, it is not open to a party feeling aggrieved- by the findings recorded by the courts of fact to contend before the High Court in second appeal that the said evidence is not sufficient to justify the findings of fact in question. It has been always recognised that the sufficiency or adequacy of evidence to support a finding of fact is a matter for decision of the court of facts and cannot be agitated in a second appeal. Sometimes, this position is expressed by saying that like all questions of fact, sufficiency or adequacy of evidence in support of a case is also left to the jury for its verdict. This position has always been accepted without dissent and it can be stated without any doubt that it enunciates what can be properly characterised as an elementary proposition. Therefore, whenever this Court is satisfied that in dealing with a second appeal, the High Court has, either unwittingly and in a casual manner, or deliberately as in this case, contravened the limits prescribed by s. 100, it becomes the duty of this Court to intervene and give effect to the said provisions. It may be that in some cases, the High Court dealing with the second appeal is inclined to take the view that what it regards to be justice or equity of the case has not been served by the findings of fact recorded by courts of fact; but on such occasions it is necessary to remember that what is administered in courts is justice according to law and considerations of fair play And equity however important they may be, must yield to clear and express provisions of the law. If in reaching its decisions in second appeals, the High Court contravenes the express provisions of section 100, it would inevitably introduce in such decisions an element of disconcerting unpredictability which is usually associated with gambling; and that is a reproach which judicial process must constantly and scrupulously endeavour to avoid."
153. The Supreme Court, in Deity Pattabhiramaswamy vs. S. Hanymayya, reported in 1959 AIR (SC) 57, observed as under:
Page 154 of 160 Downloaded on : Sat Jul 13 03:18:56 IST 2019 C/SA/183/2014 CAV JUDGMENT" The finding on the title was arrived at by the learned District Judge not on the basis of any document of title but on a consideration of relevant documentary and oral evidence adduced by the parties. The learned Judge therefore, in our opinion, clearly exceeded his jurisdiction in setting aside the said finding. The provisions of Section 100 are clear and unambiguous. As early as 1891, the Judicial Committee in Durga Chowdhrani v. Jawahir Sigh, 17 Ind. App 122 (PC), stated thus "There is no. jurisdiction to entertain a second appeal on the ground of erroneous finding of act, however gross the error may seem to be".
The principle laid down in this decision has been followed in innumerable cases by the Privy Council as well as by different High Courts in this country. Again the Judicial Committee in Midnapur Zamindari Co. Ltd. v. Uma Charan, 29 Cal WN 131 : 1923 AIR(PC) 187), further elucidated the principle by pointing out:
"If the question to be decided is one of fact it does not involve an issue of law merely because documents which are not instruments of title or otherwise the direct foundation of rights but are merely historical documents, have to be construed."
Nor does the fact that the finding of the first appellate Court is based upon some documentary evidence make it any the less a finding of fact (See 11 ILR(Lah) 199 : 1930 AIR(PC) 91). But, notwithstanding such clear & authoritative pronouncements on the scope of the provisions of Section 100, Civil Procedure Code, some learned Judges of the High Courts are disposing of Second Appeals as if they were first appeals. This introduces, apart from the fact that the High Court assumes & exercises a jurisdiction which it does not possess, a gambling element in the litigation & confusion in the mind of the litigant public. This case affords a typical illustration of such interference by a Judge of the High Court in excess of his jurisdiction under S. 100, Civil Procedure Code. We have, therefore, no. alternative but to set aside the decree of the High Court on the simple ground that the learned Judge of the High Court had no. jurisdiction to interfere in second appeal with the findings Page 155 of 160 Downloaded on : Sat Jul 13 03:18:56 IST 2019 C/SA/183/2014 CAV JUDGMENT of fact given by the first appellate Court based upon an appreciation of the relevant evidence. In the result, the decree of the High Court is set aside and the appeal is allowed with costs throughout."
154. Thus, in view of the concurrent findings recorded by the two courts below and also considering the discussion in the two judgments of the courts below, I should not go into the sufficiency or adequacy of the evidence to support the finding of fact arrived at by the two courts below as regards the genuineness of the sale deed, more particularly, proving the contents of the same as well as the execution.
155. The aforesaid discussion answers the questions Nos.12(A), 12(B), 12(C), 12(D), 12(E) and 12(F) as formulated by this Court.
156. The above takes me to the issue with regard to Section 23 of the Registration Act Section 23 of the Registration Act reads thus:
"23. Time for presenting documents.--Subject to the provisions contained in sections 24, 25 and 26, no document other than a will shall be accepted for registration unless presented for that purpose to the proper officer within four months from the date of its execution: Provided that a copy a of a decree or order may be presented within four months from the day on which the decree or order was made, or, where it is appealable, within four months from the day on which it becomes final."
157. Mr. Desai, the learned counsel appearing for the power of attorney vehemently submitted that the disputed sale deed was executed on 25th February, 1965. The same was presented Page 156 of 160 Downloaded on : Sat Jul 13 03:18:56 IST 2019 C/SA/183/2014 CAV JUDGMENT in the office of the Sub-Registrar for the purpose of registration on 25th January, 1966 and, ultimately, the same came to be registered on 20th August, 1966. The submission of Mr. Desai is that in view of Section 23 of the Registration Act, the entire transaction could be said to be a nullity as the sale deed has got to be registered within four months from the date of its execution. According to Mr. Desai, the sale deed, although was executed on 25th February, 1965, the same came to be presented on 25th January, 1966, i.e., much beyond the period of four months and, in such circumstances, the same could not have been registered in the first place. This fact has been disputed by the defendants. According to the defendants, the sale deed itself indicates that the stamp-paper was purchased on 21st January, 1966 and, therefore, the same could not have been executed on 25th February, 1965. In such circumstances, according to Mr. Dave, the issue with regard to Section 23 of the Registration Act pales into insignificance. Besides the same, Mr. Dave pointed out that there are no pleadings in this regard. In the entire plaint, this issue has not been pleaded. Mr. Dave further pointed out that even the Trial Court had no occasion to frame any issue with regard to the legality and validity of the registration of the sale in context with Section 23 of the Registration Act. In such circumstances, according to Mr. Dave, this issue may not be gone into in a second appeal.
158. To the aforesaid extent, I am at one with Mr. Dave. It is true that there is no pleading worth the name in the plaint with regard to Section 23 of the Registration Act. No foundation has been laid in this regard. Although, the two courts did touch this issue, but, ultimately, there is no specific finding in this Page 157 of 160 Downloaded on : Sat Jul 13 03:18:56 IST 2019 C/SA/183/2014 CAV JUDGMENT regard. This being a mixed question of law and fact, I would not like to go into the same in this second appeal. It appears that this issue was raised, for the first time, in the course of the arguments before the Trial Court.
159. In the aforesaid context, I may refer to and rely upon the decision of the Supreme Court in the case of Ram Sarup Gupta vs. Bishun Narain Inter College, reported in AIR 1987 SC 1242, wherein the Supreme Court observed as under:
"All necessary and material facts should be pleaded by the party in support of the case set up by it. In the absence of pleading, evidence, if any, produced by the parties cannot be considered. No party should be permitted to travel beyond its pleading. The object and purpose of pleading is to enable the adversary party to know the case it has to meet. In order to have a fair trial it is imperative that the party should state the essential material facts so that other party may not be taken by surprise. The pleadings however should receive a liberal construction, no pedantic approach should be adopted to defeat justice on hair splitting technicalities. Sometimes, pleadings are expressed in words which may not expressly make out a case in accordance with strict interpretation of law, in such a case it is the duty of the Court to ascertain the substance of the pleadings and not the form to determine the case and the issues upon which they went to trial. Once it is found that in spite of deficiency in the pleadings parties knew the case and they proceeded to trial on those issues by producing evidence, it would not be open to a party to raise the question of absence of pleadings in appeal."
160. The aforesaid discussion answers the question No.12(G) formulated by this Court.
161. One of the substantial questions of law formulated in the Page 158 of 160 Downloaded on : Sat Jul 13 03:18:56 IST 2019 C/SA/183/2014 CAV JUDGMENT present second appeal is with respect to the absence of consent of the two minors vis-a-vis the transfer of property by their father. Question No.12(H) formulated by this Court reads as under:
"Whether the property could have been sold in absence of consent of two minors and without consent and approval of the learned District Court?"
162. The Hindu Minority and Guardianship Act, 1956 contains a provision vide section 8(2) thereof requiring the guardian of the minor to obtain the prior permission of the District Court before causing disposal of any property belonging to the minor. However, the appellants are not governed by the Hindu Minority and Guardianship Act, 1956. The appellants are Muslims. Even in a situation where the Hindu Minority and Guardianship Act, 1956 is applicable, the disposal of the property of the minor by the guardian without the prior permission of the District Court is voidable as opposed to void at the instance of the concerned minor and upon attaining majority. Such option is required to be exercised by the minor by filing an appropriate Civil Suit for setting aside such transfer within a period of three years from the date of attaining majority by the minor (See section 8(3) of the Hindu Minority and Guardianship Act, 1956 read with article 60 of the Limitation Act, 1963.
163. The aforesaid answers the question No.12(H) as framed by this Court.
164. All the questions formulated by this Court at the time of Page 159 of 160 Downloaded on : Sat Jul 13 03:18:56 IST 2019 C/SA/183/2014 CAV JUDGMENT admission of the second appeal are answered accordingly against the plaintiffs.
165. For all the reasons stated aforesaid, this second appeal must fail and is hereby dismissed with costs. The appellants will pay the Court Fee.
(J. B. PARDIWALA, J)
166. After the judgment is pronounced, Mr. Hriday Buch, the learned counsel appearing for the power of attorney holder makes a request that the interim order, earlier granted by this Court, directing the parties to maintain status quo as regards the nature, character and possession of the suit property, may be continued for a further period of four weeks from today. Considering the request of Mr. Buch, the interim order earlier passed by this Court, and which has continued till this date, shall continue for a further period of four weeks.
(J. B. PARDIWALA, J) Vahid Page 160 of 160 Downloaded on : Sat Jul 13 03:18:56 IST 2019