IN THE HIGH COURT OF BOMBAY
Notice of Motion No. of 2008 in Suit No. 1094 of 2007
Decided On: 17.12.2008
H.K. Taneja and Ors.
R.S. Dalvi, J.
Citation: (2009) 2 Mh.L.J. 855
1. Not on board. By consent, taken on board and argued by all the Advocates.
2. The applicant has applied under Order 40, Rule 1(2) of the Code of Civil Procedure. The applicant must show that he was in possession of the property such that the plaintiffs or the defendant had no present right to remove him.
3. The applicant has relied upon an Agreement dated 22.2.2001 to show his initial entry into the suit premises. This is a Leave and Licence Agreement executed by one Urmila Shah, who was the widow of one L.D. Shah, who owned the suit flat and who settled it upon a trust in favour of the plaintiffs with a provision that his widow would live in the suit flat for her life-time. The settlor as well his widow have since expired. This Agreement is not in favour of the applicant but his daughter one Mitali Sawant. It is a licence for 11 months which has expired by efflux of time. It is in respect of the permission to occupy one room in the suit flat with the common use of the bathroom, toilet and kitchen by the licensee. The licensee is to hand over possession of the premises on the expiration of licence. Though it goes without saying, it states that after the termination of the licence the occupation of the licensee would be deemed to be that of a trespasser.
4. The Agreement of licence is not registered as required. It cannot be looked into. Mr. Madon argued that it is notarized. It may be mentioned that notarization is not an additional qualification to give the unregistered document any extra worth. Be that as it may, even the notarization is not done as required. It does not show the number of notarial register of the notary as per the required rules. Its execution cannot even be verified and the applicant has taken no pains to get it verified.
5. The procedure relating to notarization under the Notaries Rules, 1956 framed under the Notaries Act, 1952 has not been followed. Under Rule 11(2), the notary is required to maintain a notarial register in prescribed form No. XV. The form shows 11 columns, including the column of the Serial number, Date, Name of the Notarial act, Name of the executant, Contents of documents, Notarial fee, Signatures of the executant and the Notary. The purpose of this rule is to relate each notarized document to the serial number in the notarial register required to be maintained by each notary in the prescribed form. Hence the serial number of the entry must be put on the document to collate the entry with the document. In case of dispute the factum of notarization would have to be separately proved by the applicant since, unlike registration, there is no presumption of execution of a notarized document. It is seen that in this case the notary has not shown the serial number and the register number in which the entry is made. It would be for the applicant to prove the notarization in view of the dispute. The applicant has not got produced the relevant notarial register of the notary, kept in the normal course of his conduct as such notary, to prove the execution of the document before him. The document being otherwise unregistered and inadmissible in evidence is, therefore, not even prima facie shown to be notarized.
6. In the case of Prataprai Trumbaklal Mehta v. Jayant Nemchand Shah and Anr. MANU/MH/0030/1992 : AIR1992Bom149 , this Court considered, inter alia, the essence of notarization of documents by persons identified before notary and the prescribed rules, more specially Rule 11 required to be followed for every notarial act. That was a case of reliance upon a copy of a document certified as true copy by the notary. That notarial act remained unregistered. The mere fact that the document was notarized was held not to lend any authenticity to the document in the absence of seeing the notarial register kept by the notary in the course of his conduct as a notary as per Rule 11 of the Notaries Rules. Evidence was led in that case. The notary was summoned. The relevant notarial register was produced. No entry was found in the notarial register relating to the transaction claimed to have taken place under the copy document notarized as true copy. The notary deposed that the executant was not before him. He had not made any entry in the notarial register as, according to him, that was not required. He was only required to verify the document, compare the document and endorse it as true copy if it was the identical copy of the original. It was observed thus:
Law takes judicial notice of seal of a notary. In ordinary course, an initial presumption may be made about genuineness of the notarised copy of the document. The underlying idea behind such presumption is that the notary is normally a responsible member of the legal profession and he is expected to take due care to satisfy himself about the identity of the party appearing before him. If the party appearing before the notary is not known to the notary, the notary must get the party identified by an Advocate known to him and take signature of both of them in token thereof.
The contents of Rule 11, its purpose and object as well as the consequences of non-compliance of the rules have also been considered in Para-11 of that judgment. Reference has been made specially to Rule 11(2) of the rules which provides that every notary shall maintain notarial register in prescribed form No. XV and the register requires entry of every notarial act in the notarial register and taking of signature of the person concerned in the register. It is observed that negligence of the notary in the discharge of his notarial functions may jeopardise the interest of third parties and public interest itself. Upon seeing that the notarial register did not disclose the notarial entry relating to the notarized document produced before the Court, it was held that no evidentiary value whatsoever could be attached to such a document.
7. It may be mentioned that that was a case of only a certification of copy of a document as a true copy. Our case goes much further. It is the case of the execution of the original document itself. The executant is required to be present before the notary. He is required to be identified before the notary. He is required to sign before the notary. The notary is required to witness such an act and register the transaction. Keeping in mind that the document relied upon by the applicant herein is not registered and hence is inadmissible in evidence, even the factum of the execution of the document is not even prima facie shown by the applicant upon proving the notarial act. It is for the applicant to make out his case. The prima facie case of proof of the execution of the document on a given date by the executant before the notary can be evidenced by the production of the true or certified copy of the relevant portion of the notarial register showing that the entry was made on the relevant date in the normal course of the conduct of the notary. The applicant has undertaken no exercise to substantiate his case of the execution of the document otherwise completely inadmissible in evidence. Since even the notarial act is not shown even a prima facie case cannot be made out.
8. In the case of J.G. Hegde v. R.D. Shukla MANU/MH/0786/2003 : AIR2004Bom55 , this Court once again considered the notarized writing which was styled as “Affidavit-cum-Indemnity Bond”. The relevant notarial register got produced by the Court did not reveal the required entry. The purpose of Rule 11(2) of the Notaries Rules requiring every notarial act to be serially numbered in the register to be maintained by the notary was considered. The dual purpose served by such a practice was set out. It was observed that one was to identify every document with reference to the serial number and the other was to prevent execution of anti-dated documents by inserting an entry in between two successive entries which are serially numbered.
The documents which are notarized do not even show the serial number or the register number under which they are registered and entered. Nevertheless, the notary, if called upon by the executant to prove the notarization, would be bound to produce the relevant register of the relevant date. Only the production of such a register would show whether or not the document was indeed notarized on the date it is stated to be executed.
9. There have been numerous cases of anti-dated documents shown to be notarized other than the one that came up before the Court in the aforesaid two cases. Hence it cannot be put past any executant to produce the document shown to be notarized on a given date without substantiating that fact through the mandatorily required statutory procedure. No document thrown in the face of the Court as notarized document can, therefore, prevail without the accompanying notarial registration of entry. Of course, even if that is shown, the fact that the document has remained unregistered when it creates an interest in an immovable property would remain to be admissible in evidence. But at-least the Court could be satisfied prima facie about its execution. The document produced by the applicant without showing compliance of the Notaries Act and Rules bears no worth and deserves to be fully rejected.
10. It may be mentioned straightway that the absence of registration as well as the required procedure for notarization would make the document so inadmissible in evidence as to not allow the applicant to base his case upon such a document. The object of registration as well as notarization is lost if a document of the kind can be looked into or considered by the Court, even prima facie, to take the contents as correct.
11. The applicant has also relied upon a declaration of the deceased Urmila Shah, dated 17.5.2006 (who was stated to be 92 years old then), who declared about the relationship with the defendant in this Suit who came to be inducted by her in the suit premises to take care of her during her lifetime and who has resided therein since. Just as the defendant, who was her nephew, was “helping her”, the applicant is stated to have been helping her and her nephew. Though the declaration does not make fine reading and its precise purport is undecipherable, the applicant seeks to rely upon the reference to his name in paragraph 3 at page 2 of the document. The applicant also relies upon the last paragraph in the document stating that the deponent had executed the declaration without pressure, fraud or coercion on the date of its execution and that it was binding upon herself, her family members and the defendant also. She admittedly expired 4 months thereafter, on 22.9.2006.
12. The declaration does not confer any right or title upon any one. It merely states the course of events that have transpired and about how some parties litigate. Aside from the name of the applicant in the document, it shows little else. Though the declaration sets out the acts of some parties who litigate and shows apprehension of future litigation and gives notice that it was declared by her free consent and would be binding on several persons, including herself, it does not mention about the Leave and Licence Agreement executed by the deponent herself in favour of the daughter of the applicant 5 years prior thereto under the aforesaid Agreement dated 22.2.2001.
13. Mr. Madon argued that this declaration has been notarized which carries some weight. The declaration suffers from the same ill of absence of the prescribed procedure of notarization.
14. The applicant has further relied upon another Agreement dated 14.10.2005 between the defendant and the applicant. This Agreement is executed on 2 stamp papers of Rs. 50/- each issued on 13.10.2005. They are issued not in the name of the defendant or the applicant as mandatorily required, but in the name of the Advocate J.K. Nathani (who has shown his address at Borivli in the rubber-stamp on the earlier document of 22.2.2001) and one P.V. Dalvi, M.S.S.I.D.C. Ltd. That is a Licence Agreement granting licence of the entire flat in favour of the applicant for 11 months. The period of the licence has been left blank. Deposit of a large amount of Rs. 2,52,5000/- is purportedly taken as security deposit. Aside from a receipt executed by the defendant, there is nothing else to substantiate the payment made. The entire amount is presumably paid in cash. Though the applicant has relied upon his bank passbook to show various other entries, this entry admittedly does not find place in the passbook and no other material is produced to show the payment made under any cheque. This Licence Agreement executed as late as in October 2005 has also remained unregistered. It is also similarly incorrectly notarized. Rule 11 of the Notaries Rules are not followed. Even the revenue stamps showing the notarial fees/charges are not affixed. The notarization is rather meaningless. Aside from the stamp of the notary, the Agreement shows nothing to evince its execution. Even the presence of the Advocate to interpret and explain the Agreement or to introduce the party to the notary is absent. It suffers from the same malaise which led the Court to reject the notarial document in the case of Prataprai (supra).
15. It may be mentioned that each of the notarial stamps on each of the aforesaid 3 documents is illegible. Why the parties went to those notaries, who appear to be at different places, cannot be understood. The Advocates who identified the parties before the notary in 2 of the 3 Agreements are in Borivali (East) and at the Esplanade Court, Mumbai. The declaration of the deceased Urmila Shah, who lived at Peddar Road, is surprisingly identified by Advocate in the Esplanade Court before a notary whose address is not shown. In the Leave and Licence Agreement dated 22.2.2001, she has been identified by another Advocate from Borivali, Mumbai.
16. Mr. Madon argued that though the documents are not registered, they are notarized and if the notarization is not accepted, the Court will be rejecting the identification and the explanation of the Advocates who have stamped those documents. The Leave and Licence Agreement in favour of the applicant is not identified by any Advocate. A mere notarial stamp thereon without reference to the serial number on the notarial register, therefore, requires the Court to reject the notarization. The other 2 documents are not documents of title of the applicant. The Agreement dated 22.2.2001 is in favour of his daughter who is not the applicant before the Court. The identification of the deceased in that document is by an Advocate from Borivali. It is wondrous how he identified an old lady then of about 87 years, living in Peddar Road. The identification of the deceased in the document dated 17.5.2006 is by yet another Advocate. The identification creates no confidence. It is not in terms of the requirement of law and legal procedure. None of these documents, therefore, shows the possession of the applicant in the suit premises as claimed by him arising from under these documents and cannot even be looked into.
17. It is contended on behalf of the plaintiffs that this case is not of total lack of possession simplicitor. It is a case of mala fides, mischief and fraud played upon the Court by the defendant and the applicant in concert and collusion. The plaintiffs’ Advocates have painstakingly undertaken the effort of obtaining inspection and copies of certain litigations between the applicant and the defendant in the Small Causes Court. The plaintiffs have given notice to the applicant’s Advocate as well as the defendant’s Advocate to produce the papers and proceedings in certain 3 Suits filed in the Small Causes Court. None is produced by either of them. The plaintiffs have applied for and produced certified copies thereof.
18. Mr. Bookwala took me through the result of that research. In certain correspondence that took place between the parties prior to the filing of this Suit, the defendant had promised to vacate the suit flat by his letter dated 1.11.2006 written to the plaintiffs, Exhibit-X to the plaint. To scuttle giving up the said vacant possession as agreed by him, a Suit has been filed by Mitali, the daughter of the applicant against the defendant on 23.1.2007 being L.C. Suit No. 46 of 2007 claiming sole and exclusive possession of the suit flat. The Constituted Attorney of the defendant is her own father, the applicant herein. On 25.4.2007, the Suit came to be settled by the applicant’s daughter and the defendant filing Consent Terms under which the defendant agreed not to dispossess her without following due legal process.
19. Another Suit came to be filed by the defendant against the daughter of the applicant on 13.2.2008 in which Consent Terms came to be filed by the parties on 8.8.2008 under which the applicant’s daughter claimed no interest in the suit premises. Mr. Bookwala pointed out that the Advocate for the defendant in this Suit has been shown as the Advocate for the daughter of the applicant in the Suit in the Small Causes Court, Bombay. The Constituted Attorney, who verified that Plaint, is the Constituted Attorney of another occupant of the flat, one Farida Galabai, who has similarly claimed to be in juridical possession in another Notice of Motion taken out in this Suit being Notice of Motion No. 3965 of 2008. The Advocate for the daughter of the applicant in that case is the Advocate of that party in yet another Suit filed in the Small Causes Court filed by that other occupant being R.A.D. Suit No. 1739 of 2007 against the defendant. On 27.11.2007, Consent Terms were filed in that Suit between that occupant and the defendant, under which tenancy in favour of that occupant was confirmed by the defendant!! She claims, inter alia, the part of the suit premises claimed by the applicant herein.
20. The 2 Cross Suits between the defendant on one hand and the applicant and/or his daughter on the other show the transparent collusion between the parties and the desire to outreach the Court based upon the position that then suited the parties.
21. Aside from these litigations with regard to the suit flat itself, the plaintiffs have relied upon other proceedings to show the actual address of the applicant in Court records. In a Suit being Summary Suit No. 3501 of 2007 filed by the applicant against the defendant for recovery of Rs. 5 Lakhs with interest on a Promissory Note filed as late as on 3.11.2007, his address is shown to be at Banganga, Walkeshwar and not at the suit premises. The above Suit is filed on 25.3.2007. It can be seen from the Plaint and proceedings in the above Summary Suit that even in November 2007, 8 months after the filing of this Suit, the applicant was not in the suit premises.
22. Upon the filing of the Suit, an ad interim application came to be made by the plaintiffs on 4.4.2007 in Notice of Motion No. 1370 of 2007 taken out by the plaintiffs. An ad interim injunction came to be granted against the defendant, who was present, in terms of the statement made by him that he shall not create any third party rights in the suit premises. It is precisely after that order of injunction that the defendant has inducted the applicant in the suit premises. In his Affidavit-in-reply to Notice of Motion No. 1370 of 2007 filed in June 2007, the defendant stated about the presence of the applicant in the suit premises. Thereafter on 29th August, 2008 when the plaintiffs’ initial Notice of Motion No. 1370 of 2007 was heard, the defendant’s Counsel stated to Court that no person was residing in the suit flat. The Court Receiver was directed to take symbolic possession of the suit flat. Thereafter that order came to be modified upon an application made by the defendant’s Advocate that the statement of his Counsel that no person was residing in the suit flat was incorrectly recorded and that the applicant and his wife are the family friends staying in the suit flat which came to be recorded by the Court on 4.9.2008.
23. In January 2008, a criminal complaint came to be filed by the applicant against the defendant in the Metropolitan Magistrate’s Court at Girgaum, Mumbai under sections 156(111) and 420 of the Indian Penal Code (I.P.C.) alleging that the defendant was trying to oust the applicant though the applicant paid the defendant Rs. 1,75,86,000/-out of total consideration of Rs. 6.5 Crores for the sale of the suit flat.
24. In March 2008, a complaint came to be filed by the defendant against the applicant shown to be residing at Banganga, Walkeshwar, in the Court of the Chief Additional Metropolitan Magistrate at Girgaum, Mumbai, inter alia, under Section 420 of the I.P.C. and alleging, inter alia, that the suit flat belonged to the trustees and that there was no question of selling the suit flat to the applicant on receiving consideration of Rs. 1,75,86,000/- alleged to have been paid entirely in cash. It is seen from the aforesaid dates that though the applicant was never in possession of the suit flat in any capacity prior to the filing of the Suit, the defendant in order to scuttle his own admission of handing over vacant possession of the suit flat to the plaintiffs as the trustees as per his letter dated 1.11.2006 sought to file collusive Suits and sought to put up the applicant in the suit premises after the filing of the Suit.
25. It appears that the parties fell out upon whatever understandings that they may have had. Hence both the parties filed criminal complaints also after filing of the Suits. In view of the defendant having inducted the applicant in the suit premises after the filing of the Suit and after the ad interim order of injunction obtained by the plaintiffs against the defendant on 4.4.2007, the plaintiffs sought the appointment of the Receiver and of being put in possession as the Receiver’s agent when Notice of Motion No. 1370 of 2007 reached hearing. It appears that by that time the relationship between the defendant and the applicant had come to pass. The defendant, who had colluded with the applicant pending the Suit, no longer desired to have the applicant in the suit premises. The defendant , who was personally present in Court when the Notice of Motion reached hearing on 8.10.2008, made a statement to Court that he shall have the persons who are his relatives and friends removed from the suit premises. He also stated to Court that if they did not vacate the suit premises, the Court Receiver may forcibly obtain possession from them. The Court observed that the defendant abided by his statement made on 4.4.2007 in the Notice of Motion when the initial ad interim order had come to be passed. The defendant clarified that none other than he was entitled to reside in the suit premises. Hence the Court Receiver was directed to allow the defendant to remain in possession of the suit premises and obtain possession from any other person who may be found in the suit premises, with Police assistance, if required.
26. The Court Receiver having proceeded to execute that order, the applicant filed this application claiming to be in possession since prior to the Suit. The two Suits in the Small Causes Court show what transpired from 23.1.2007 when the applicant’s daughter (not the applicant) claimed to be in possession, to 8.8.2008 when the Consent Terms were filed in the second Suit in which she claimed no interest in the suit flat. The applicant has changed his mind. He seeks to rely upon the same document on which his daughter sued and settled.
27. The applicant must show juridical possession in the suit premises. No party can be allowed to remain in possession of the suit premises upon obtaining unlawful possession thereof. The applicant has sought to show his juridical possession by virtue of the aforesaid documents being 2 Licence Agreements executed by the widow of the settlor Urmila Shah and by the defendant and the declaration executed by the said widow. None of these documents can be relied upon, produced in Court or considered by the Court to allow the applicant to be in possession as none is admissible in evidence. The very purpose and object of the Registration Act would be frustrated and the very object of having such documents registered would be frustrated if documents such as these are allowed to be relied upon by the parties to show that the parties to the Suit have no present right to remove those parties claiming to be in “possession”. Indeed there may be no case in which Court Receiver could successfully obtain possession from total and rank strangers and parties inducted after the filing of the Suit to set at naught the order of appointment of Court Receiver for protection of the plaintiffs’ property, if a party upon such documents would be entitled to show the Court his “possession”.
28. Whatever be the collusive Suits filed between the parties whilst they were thick friends and whatever be the frivolous complaints made against one another once their relationship soured, the independent legal proceeding by the applicant himself in this Court being Summary Suit No. 3501 of 2007 would clinchingly show the claim of possession of the applicant herein. In that independent proceeding filed 8 months after the filing of this Suit, the applicant himself has shown his address to be at Banganga, Walkeshwar. That seals his fate. The possession claimed by the applicant is neither lawful, nor juridical. The applicant was also not in any actual possession as on the date of the Suit. The applicant has been inducted in the suit premises after the filing of the Suit and after the initial ad interim order came to be passed on 4.4.2007 and in fact later than November 2007 by executing anti documents. Though the infamous idea of defrauding the plaintiffs may have occurred to the defendant prior to the filing of the Suit and after he himself agreed to vacate the suit premises to have caused the applicant’s daughter to file the collusive Suit against him on 23.1.2007 being L.C. Suit No. 47 of 2007, which he settled with her a mere 3 months thereafter, there have been no proceedings between the defendant and the applicant himself and no documents produced by the applicant himself to satisfy the Court about his lawful possession in the suit premises. Even the very first document, anti-dated and fabricated as it is, relied upon by the applicant is not in his favour but in favour of his daughter.
29. It is of some importance to note that though the applicant claims to have been in possession of the suit premises since as early as in February 2001 during the lifetime of the deceased Urmila Shah herself, the applicant has not produced absolutely any documentary evidence by way of public documents to evince his possession in the suit premises for as long as 6 years prior to the filing of the Suit.
30. The application is dishonest and mischievous.
The Notice of Motion is dismissed with costs, fixed at Rs. 5,000/-.