Bombay High Court
Narendra S/O Pandharinath ... vs Domaji Pandurang Kokate And 2 Ors on 28 September, 2017
Bench: A.S. Chandurkar
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH : NAGPUR.
SECOND APPEAL NO.62 OF 2004
APPELLANT: Vitthalrao alias Pandharinath S/o
Atmaram Mokaddam, aged 70 years,
(Orig.
Occupation-Cultivator, r/o Ashti Wardha
Defendants)
(Deleted v/o dated 27.6.2001)
A Narendra S/o Pandharinath Mokaddam,
aged about 38 years, r/o Ashti Tahsil,
Ashti District Wardha.
B Ashok S/o Pandharinath Mokaddam,
aged about 53 years, r/o Buldana,
District Buldana.
C Ramesh S/o Pandharinath Mokaddam,
aged about 58 years, r/o Amravati,
District Amravati.
D Pradeep S/o Pandharinath Mokaddam,
aged about 45 years, R/o Nagpur
District Nagpur.
E Surendra S/o Pandharinath Mokaddam,
aged about 41 years, r/o Akot District
Amravati.
F Rajendra S/o Pandharinath Mokaddam,
aged about 38 years, r/o Ashti Tahsil
Ashti District Wardha.
G Smt. Rukmabai Wd/o Pandharinath
Mokaddam aged about 73 years, r/o
Ashti Tahsil Ashti District Wardha.
H Ku. Chhaya d/o Pandharinath
Mokaddam, aged about 25 years, r/o
Ashti Tahsil Ashti Distreict Wardha.
I Sau. Sumitra w/o Subhas Bokade, aged
about 43 years, r/o Wardha District
Wardha.
J Sau. Nirmala w/o Dadarao Zode, aged
about 28 years, r/o Khaparkheda
District Wardha.
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K
Sau. Sandhya w/o Sudhakar Shinde,
aged about 31 years, r/o Butibori,
District Nagpur.
-VERSUS-
RESPONDENTS: 1. Domaji Pandurang Kokate, aged about
(Orig. plaintiffs) 65 years,
2. Ganesh S/o Pandurang Kokate, aged 50
years,
3. Kirana s/o Pandurang Kokate, aged 35
years,
All residents of Ashti Tahsil Ashti District
Wardha.
Shri S. P. Kshirsagar, Advocate for the appellants.
Shri V. K. Paliwal, Advocate for the respondents.
CORAM: A.S. CHANDURKAR, J.
DATE ON WHICH SUBMISSIONS WERE HEARD: 31-08-2017
DATE ON WHICH JUDGMENT IS PRONOUNCED: 28-09-2017
ORAL JUDGMENT :
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
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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.
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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,
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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 AIR 1968 Bom. 112, Ramkrishan
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Ganpat Futane and others v. Mohammad Kasam and others 1973
Mh.L.J. 511 and M/s Sanjay Cotton Co. vs. Omprakash and another
AIR 1973 Bom. 40. Reference was also made to the judgment of
the Hon'ble Supreme Court in Ramji Dayawala and sons (P) Ltd. vs.
Invest Import 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
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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
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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 Vs. Ramchandra Jivrajjee Poddar and
others, 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
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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
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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.
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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 vs. A. N. Jog 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).
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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
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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.
JUDGE
/MULEY/
