IN THE HIGH COURT OF BOMBAY (NAGPUR BENCH)
Second Appeal No. 62 of 2004
Decided On: 28.09.2017
Domaji Pandurang Kokate and Ors.
Hon’ble Judges/Coram:A.S. Chandurkar, J.
Citation: 2018(2) MHLJ 52
1. This appeal under Section 100 of the Code of Civil Procedure, 1908 has been filed by the original defendant who is aggrieved by the declaration granted by the trial Court in favour of the respondents – plaintiffs that they were the owners of the suit land and were thus entitled for its possession.
2. The facts relevant for deciding the appeal are that one Chintaman Barai was the owner of the field Survey Nos. 92 and 94/2. He had no issues. He however had a sister Tanabai. On 13-9-1968 said Chintaman executed a will bequeathing the aforesaid land in favour of the original defendant Pandharinath. According to the plaintiffs this will was subsequently cancelled by executing a deed of cancellation on 24-12-1970. This deed was also registered. Said Chintaman expired in the year 1975 and was survived by his sister. His sister Tanabai sold the aforesaid lands in favour of the plaintiffs who were brothers on 26-8-1987. The plaintiffs claimed to be put in possession accordingly. A dispute arose between the plaintiffs and the defendant with regard to possession. A receiver was appointed by the Sub-Divisional Magistrate and the parties were directed to get their title adjudicated in the Civil Court. Tanabai expired on 20-8-1989. Ultimately the plaintiffs filed suit seeking declaration that they were the owners of the suit property on the basis of the sale deeds executed by Tanabai. Possession was also sought.
3. The defendant filed his written statement at Exhibit-12. It was pleaded that on the basis of will dated 13-9-1968 executed by Chintaman he had become owner of the said lands. The execution of the deed of cancellation on 24-12-1970 was denied. Similarly, the subsequent sale deeds executed by Tanabai in favour of the plaintiffs were also denied. It was asserted that the defendant was always in possession till the same was taken from him by the Receiver.
4. The parties led evidence before the trial Court. The plaintiffs examined plaintiff No. 2 and two other witnesses. The defendant examined himself. On the basis of evidence on record, it was held that Tanabai had inherited the suit property from Chintaman as Chinman had cancelled the will executed in favour of the defendant. On that basis, the suit was decreed and the plaintiffs were held entitled for possession.
The appellate Court on reappreciation of the evidence on record confirmed the findings recorded by the trial Court and dismissed the appeal. Hence the legal heirs of the original defendant have filed this second appeal.
5. The following substantial questions of law were framed while admitting the appeal:
“(1) Whether certified copy of cancellation of will deed dated 24.12.1970 (Exh. 51) could be treated as public document and could have been admitted in evidence without examining attesting witnesses thereon?
(2) Whether certified copies of the sale deeds (Exhs. 54, 55 and 56) could have been admitted in evidence without examining any attesting witnesses thereon?”
6. Shri S.P. Kshirsagar, learned Counsel for the appellants submitted that deed of cancellation of will dated 24-12-1970 was not duly proved by the plaintiffs. What was placed on record was a certified copy of said document. The witness examined by the plaintiffs was a clerk from the Sub Registrar Office. This witness merely referred to the records maintained by the Office of the Sub-Registrar and his evidence could only prove registration of that document. The contents of the deed of cancellation at Exhibit-51 were not proved by the plaintiffs. The contents were required to be proved inasmuch as they were specifically denied by the defendant. It was then submitted that the aspect of registration of said document would not dispense with the proof of contents of said document and the same were required to be independently proved. As the deed of cancellation was not duly proved, the will executed in favour of the defendant on 13-9-1968 operated and on that basis, the defendant was the owner of the suit properties. On that count, Tanabai did not get any title and hence she was not competent to transfer said title in favour of the plaintiffs. In support of his submissions, the learned Counsel placed reliance on the decisions in Sir Mohammed Yusuf and another v. D and another MANU/MH/0106/1968 : AIR 1968 Bom. 112, Ramkrishan Ganpat Futane and others v. Mohammad Kasam and others MANU/MH/0090/1973 : 1973 Mh.L.J. 511 and M/s. Sanjay Cotton Co. v. Omprakash and another MANU/MH/0053/1973 : AIR 1973 Bom. 40. Reference was also made to the judgment of the Hon’ble Supreme Court in Ramji Dayawala and sons (P) Ltd. v. Invest Import MANU/SC/0502/1980 : AIR 1981 SC 2085. It was thus submitted that both the Courts erred in proceeding to decree the suit on the basis of the deed of cancellation dated 24-12-1970.
7. On the other hand, Shri V.K. Paliwal, learned Counsel for the respondents supported the impugned judgment. He submitted that the will executed in favour of the defendant had been duly cancelled and the deed of cancellation was also registered. It was not necessary for the plaintiffs to prove the cancellation of the will in the manner as required by Section 68 of the Indian Evidence Act, 1872 (for short, the said Act). According to him, the deed of cancellation was duly proved by examining PW-3 Digamber Taksande. His deposition was unchallenged inasmuch as he was not cross-examined by the defendant. In view of his unchallenged deposition, it was clear that the defendant had no grievance with the execution of the deed of cancellation on 24-12-1970. It was then submitted that the various surrounding circumstances can also be taken into consideration for concluding that Chintaman had cancelled the will dated 13-9-1968 executed in favour of the defendant. Reference was also made to the provisions of Section 74 of the said Act to urge that the deed of cancellation being duly registered, it was a public document and as its certified copy was duly produced, said document ought to be held as duly executed. It was thus urged that both the Courts had rightly found that the plaintiffs had acquired valid title in view of the sale deeds executed by Tanabai. It was thus submitted that the appeal was liable to be dismissed.
8. I have heard the learned Counsel for the parties at length and with their assistance, I have also gone through the records of the case. While the plaintiffs claim title by virtue of the sale deed executed in their favour by Tanabai who in turn contends that the will executed by Chintaman was cancelled, the defendant relies upon the will dated 13-9-1968 by contending that it was never cancelled. The execution of the will by Chintaman in favour of the original defendant is not seriously disputed. The dispute is with regard to cancellation of this will on 24-12-1970. The said will refers to the earlier will dated 13-9-1968 executed in favour of the defendant and then further states that as said defendant was not taking good care of the executant – Chintaman, he was cancelling the earlier will.
9. The provisions of Section 70 of the Indian Succession Act, 1925 (for short, the Act of 1925) provide for the manner in which an unprivileged will or codicil could be revoked. As per this provision, an unprivileged will executed earlier or any part thereof can be revoked by some writing declaring an intention to revoke the same and executed in the manner in which an unprivileged will is required to be executed. It also provides that this revocation could be done by burning, tearing or otherwise destroying the same by the testator or by some person in his presence with an intention to revoke the same. The earlier will dated 13-9-1968 executed by Chintaman was an unprivileged will. In view of provisions of Section 70 of the Act of 1925, it was required to be revoked in the same manner in which the unprivileged will was earlier executed. Reference in this regard can be usefully made to the judgment of the Division Bench of the Nagpur High Court in Chouthmal Jivrajjee Poddar v. Ramchandra Jivrajjee Poddar and others, MANU/NA/0067/1954 : AIR 1955 Nagpur 126. In other words, compliance with provisions of Section 68 of said Act was necessary. Thus, atleast one attesting witness was required to be examined for proving the deed of cancellation dated 24-12-1970.
10. For the purposes of proving the execution of the deed of cancellation dated 24-12-1970, the plaintiffs initially examined plaintiff No. 2 as PW-1 at Exhibit-50. He referred to the certified copy of the deed of cancellation dated 24-12-1070 and it was marked as Exhibit-62. The plaintiffs as per application below Exhibit-70 contended that one attesting witness Tukaram Kewte was aged about 70 years and was keeping ill. It was therefore not possible for that witness to remain present before the Court. Hence, it was prayed that a Commissioner be appointed for recording his evidence. The trial Court by order dated 29-1-1998 allowed the said application and appointed Shri S.N. Jane as the Court Commissioner for recording the deposition of that witness.
It appears from the record that said attesting witness was not inclined to depose before Court Commissioner unless the original document was shown to him. Evidence of this attesting witness was thus not recorded. Hence, by the application below Exhibit-100, the plaintiff No. 2 sought issuance of witness summons to the office of the Sub-Registrar, Arvi so that the original document of the deed of cancellation could be brought before the Court. This application was allowed by the trial Court on 24-9-1998. Accordingly, the plaintiffs examined witness No. 3 below Exhibit-102 who was a clerk from the office of the Sub Registrar, Arvi. This witness deposed that the original deed of cancellation was not available in the office of the Sub-Registrar and it was likely that the same might have been destroyed. He had brought a photocopy of the said deed of cancellation and according to this witness, the document at Exhibit-51 was a certified copy of the deed of cancellation.
11. The aforesaid evidence on record indicates that out of two attesting witnesses, one attesting witness was alive and though the Court Commissioner was appointed for recording his deposition, said witness did not depose. As the other attesting witness was not alive, it was open for the plaintiffs to adopt the course as prescribed by Section 69 of the said Act. The same was not done and the effect thereof is that only a certified copy of the deed of cancellation was placed on record and it was marked as Exhibit-51. As held by the Division Bench in Ramkrishan Ganpat Futane (supra), merely on the basis of the endorsement of the registering authority, due execution of the document cannot be proved. Mere registration of a document is thus not sufficient to prove its due execution more so when there is a statutory manner of proving the execution of such document. It is thus clear that the requirements of Section 70 of the Act of 1925 have not been complied with. The deed of cancellation dated 24-12-1970 Exhibit-151 has not been proved to be duly executed in the same manner in which will dated 13-9-1968 was executed. Only its certified copy was placed on record.
12. Faced with this situation, it was urged on behalf of the original plaintiffs that the deed of cancellation being duly registered, said document was a public document as contemplated by Section 74 of the said Act and hence it could be proved as a public document. This submission cannot be accepted. The deed of cancellation is a document executed between two private parties. As held in Purushottam v. A.N. Jog MANU/MH/0879/2004 : 2005(1) Mh.L.J. 426, merely because a private document is registered with the competent authority, such private document by itself cannot be treated to be a public document and it would continue to be a private document executed by private parties. Thus, mere registration of the deed of cancellation executed by a private party cannot by itself result in such document getting the character of a public document under Section 74 of the said Act. The deed of cancellation cannot be treated as a public document under Section 74 of the said Act.
13. It is well settled that mere exhibition of a document does not amount to proof of its contents nor does it amount to a party admitting the contents of such document. The party relying upon such document has to independently prove its contents. This position is clear from the decisions in Ramji Dayawala and sons and M/s. Sanjay Cotton Company (supra).
14. In view of this legal position, the finding recorded by both the Courts that the plaintiffs had proved that Chintaman had on 24-12-1970 cancelled his earlier will cannot be sustained. The deed of cancellation at Exhibit-51 has not been proved in the manner required by Section 70 of the Act of 1925. Substantial question of law No. 1 is accordingly answered by holding that the certified copy of the deed of cancellation cannot be treated as a public document and it could not have been admitted in evidence without examining an attesting witness.
15. Once it is found that the will dated 13-9-1968 in favour of the original defendant has not been validly cancelled, the said defendant would continue to be the owner of the suit properties. Tanabai, therefore, could not have acquired title by succession and she thus could not have sold the suit properties to the plaintiffs on 26-8-1987. Thus the sale deeds do not confer valid title on the plaintiffs as they had been executed by a person having no valid title to the suit properties. Substantial question of law No. 2 as framed therefore does not survive for its consideration.
16. As a result of the aforesaid discussion, it will have to be held that the plaintiffs are not entitled to seek the declaration that they are the owners of the suit property on the basis of the sale deeds executed by Tanabai. The suit is thus liable to be dismissed. Accordingly, the judgment in Regular Civil Suit No. 313/1992 dated 13-11-1998 as well as the judgment in Regular Civil Appeal No. 182/1998 dated 20-1-2004 are quashed and set aside. The suit stands dismissed. The second appeal is allowed in aforesaid terms with no order as to costs.