Chattisgarh High Court
Surendra Kumar Mehta (Died) Through Lrs vs Lakshan on 1 September, 2025
1
NIRMALA
RAO
2025:CGHC:44229
NAFR
HIGH COURT OF CHHATTISGARH AT BILASPUR
SA No. 207 of 2001
Judgment Reserved on 08.08.2025
Judgment delivered on 01.09.2025
1 - Surendra Kumar Mehta (Died) Through Lrs As Per Honble Court Order
Dated 24-09-2024
1.1 - (A) Rajat Kumar Mehta S/o Late Shri Surendra Kumar Mehta Aged
About 61 Years R/o House No. Smig-7, Alka Avenue, Uslapur, District
Bilaspur Chhattisgarh
1.2 - (B) Smt. Ranjana Bahadur W/o Dr. A.N. Bahadur, D/o Late Shri
Surendra Kumar Mehta Aged About 57 Years Deepu Para, Vinoba Nagar,
District Bilaspur Chhattisgarh
1.3 - (C) Smt. Anjula Shrivastav W/o Shri Anurodh Shrivastav, D/o Late Shri
Surendra Kumar Mehta Aged About 56 Years H-6 Shalimar Parak, Kolar
Road, District Bhopal Madhya Pradesh
1.4 - (D) Smt. Tilothma Sadavarti W/o Shri Rajiv Sadavarti, D/o Latge Shri
Surendra Kumar Mehta Aged About 54 Years Emar- Emereld Floors Premiers
Tower No. 4, Flat No. 401, Sector 65, Gurgaon, Delhi
1.5 - (E) Neeraj Mehta S/o Late Shri Surendra Kumar Mehta Aged About 53
Years B-27 Sai Leela Villa, Alka Avenue, Uslapur, District Bilaspur
Chhattisgarh
2 - Bulchu (Died) Through Lrs As Per Honble Court Order Dated 12-03-2014
2.1- (A) Mu. Kayo Bai Wd/o Late Bulchu, Aged About 42 Years R/o Village
Manipur Mathupara, Police Station And Tahsil Ambikapur, District Surguja
Chhattisgarh
2.2 - (B) Tarachand S/o Late Bulchu, Aged About 24 Years R/o Village
Manipur Mathupara, Police Station And Tahsil Ambikapur, District Surguja
Chhattisgarh
2.3 - (C) Darasingh S/o Late Bulchu, Aged About 28 Years R/o Village
2
Manipur Mathupara, Police Station And Tahsil Ambikapur, District Surguja
Chhattisgarh
... Petitioner(s)
versus
1 - Lakshan S/o Sampat Aged About 30 Years Caste Bargah, R/o Village
Laxmipur, P. S. And Tehsil Ambikapur, District Surguja Chhattisgarh
2 - Bahalram (Deleted) As Per Honble Court Order Dated 07-01-2016
3 - Lachmaniya (Deleted) As Per Honble Court Order Dated 07-01-2016
4 - Kendi (Deleted) As Per Honble Court Order Dated 07-01-2016
5 - Kodesri D/o Gathiya, Aged About 32 Years R/o Village Laxmipur, P. S. And
Tehsil Ambikapur, District Surguja Chhattisgarh
6 - Nankhi D/o Gathiya, Aged About 21 Years R/o Village Laxmipur, P. S. And
Tehsil Ambikapur, District Surguja Chhattisgarh
7 - The State Of Madhya Pradesh Now Chhattisgarh Through The Collector,
Surguja, Ambikapur Chhattisgarh
... Respondent(s)
-------------------------------------------------------------------------------------------------------
For Appellants/
Defendants No.1 & 2 : Shri Shashwat Mishra, holding the brief
of Shri Rishabh Gupta, Advocate.
For Respondent/State : Shri Shubham Bajpayee, P.L.
For Respondents No.5 & 6 : Shri Nishikant Sinha, Advocate.
------------------------------------------------------------------------------------------------------
Hon'ble Shri Justice Rakesh Mohan Pandey
Order on Board
1. The defendants have filed this second appeal, assailing the judgment
and decree passed by the District Judge, Surguja (Ambikapur), in
Civil Appeal No. 92A of 1999 dated 20.3.2001, whereby the appeal
was dismissed.
2. This appeal was admitted for hearing on the following substantial
question of law, vide order dated 21.1.2016:
"(i) Whether the learned lower Appellate Court was justified
in law in holding that the property in dispute being joint
property of Sampat Barga and Gathiya Barga, the sale
deed executed in the year 1942 did not pass any title in
favour of Dashrathlal Mehta?
(ii) Whether defendant Surendra Kumar Mehta son of
Dashrathlal Mehta was entitled to half of the share in the
joint property of Sampat Barga and Gathiya Barga by
virtue of sale deed executed in the year 1942?"
3. The facts of the present case are that Civil Suit No. 156A of 1990 was
filed by the plaintiffs for declaration of title and permanent injunction in
respect of the agricultural land described in Schedules A and B.
Schedule B forms part and parcel of Schedule A. The plaintiffs
pleaded that the suit property was the self-acquired property of
Sampat Bargah and Gathiya Bargah, as a joint lease deed was
issued in their names during the settlement period. The plaintiffs
further pleaded that they are the descendants of the original owners
and have inherited the property in succession, and they are in
possession of the suit land. They pleaded that the cause of action
arose when defendant No.1 interfered with their possession, leading
to a proceeding under Section 145 of the Cr.P.C.
4. Defendants No.1 & 2/appellants filed their written statement and
denied the plaint averments. They pleaded that the suit land was
transferred by Sampat Bargah to the father of defendant No.1
(Dashrath Lal Mehta) in the year 1942, and subsequently, the land
described in Schedule-B was transferred to the late Nanhu (father of
defendant No. 2) in 1962 through a sale-deed. The defendants further
pleaded that they had perfected their title by the law of adverse
possession.
5. Learned trial Court framed issues, and both parties led oral and
documentary evidence. After due appreciation of the evidence, the
trial Court recorded findings that the suit property mentioned in
Schedule-A was the self-acquired property of Sampat Bargah and
Ghatiya Bargah; in the year 1932, the property was sold to Dashrath
Lal Mehta; and that in 1978, the defendants started asserting rights
over the property described in Schedule-B. Learned trial Court also
held that the plaintiffs failed to prove the dates of the death of Sampat
Bargah and Ghatiya Bargah, and they remained in possession of the
suit property till their death, or the plaintiffs themselves are currently
in possession. Learned trial Court recorded a finding that the
notarized copy of the sale deed executed in the year 1942 was
prepared by Notary S.P. Gupta (PW-2) on 5.8.1980, after comparing it
with the original, and its execution was duly proved in evidence,
which conferred title in favor of Dashrath Lal Mehta.
6. Learned trial Court further held that the defendants have perfected
their title on the basis of adverse possession. Accordingly, the civil
suit was dismissed vide judgment dated 15.2.1993. The plaintiffs
preferred a first appeal before the learned District Judge, Surguja.
The Appellate Court allowed the appeal and set aside the judgment
and decree passed by the learned trial Court vide judgment and
decree dated 20.3.2001.
7. The Appellate Court reversed the findings, holding that the sale-deed
of the year 1942 executed by Sampat Bargah did not convey a valid
title to late Dashrath Lal Mehta, and the defendants have not
perfected title by adverse possession. It further held that Dashrath Lal
Mehta did not have a valid title to execute the sale-deed in favour of
the late Nanhu.
8. The plaintiffs exhibited Ex.P/1 revenue records of Surguja State
settlement, in which the names of Sampat Bargah and Ghatiya
Bargah are recorded as owners of the suit property. Their names
continued in the revenue records till 1963-64, which is evident from
Ex.P/4. Ex.P/8 is an order passed in Criminal Revision No.45/ 79, in
which the learned Second Additional Sessions Judge, Ambikapur,
recorded a finding that the legal representatives of Sampat and
Ghatiya Bargah were in possession of the suit property. Ex.P/9 is the
revenue record of 1977-78, in which the names of Sampat Bargah
and Ghatiya Bargah again appear against the suit property.
9. Learned counsel for the appellants would submit that the suit property
was recorded in the names of Sampat Bargah and Ghatiya Bargah,
and a sale deed pertaining to the suit property was executed in favour
of Dashrath Lal Mehta. He would contend that the findings recorded
by the learned Appellate Court are erroneous, and Sampat Bargah
was competent to alienate his share from the suit property. He would
further contend that the findings recorded by the learned trial Court
with regard to adverse possession is erroneous as the
appellants/defendants are in possession of the suit property since
1942 and 1962, respectively, and the plaintiffs never raised any
objection. Although the original copy of the sale-deed was not
produced, a notarized true copy prepared by Notary S.P. Gupta (PW-
2) on 5.8.1980 was placed on record and duly proved by the said
witness, thereby establishing the due execution. It is also argued that
the learned Appellate Court erred in holding that Dashrath Lal Mehta
had no title to alienate the property to Nanhu. He would also contend
that Dashrath Lal Mehta had a valid right and title over the suit
property and, therefore, he executed the sale-deed in favor of Nanhu.
10. Learned counsel for the appellants has placed reliance on the
judgment passed by the Hon'ble Supreme Court in the matter of
Ramdayal vs. Manaklal, 1973 SCC OnLine MP 15, and the
judgments passed by this Court in Shashikala Manikpuri vs. Komal
Singh and Ors, Second Appeal No.202 of 2005, and Binjhwar and
Ors vs. Rajesh Kumar and Ors., F.A. No. 60 of 2006.
11. On the other hand, learned counsel for respondents No.5 & 6 would
oppose the submissions made by counsel for the appellants. He
would contend that the suit property was settled in the names of
Sampat Bargah and Ghatiya Bargah, and the suit property was their
self-acquired property. He would contend that both brothers remained
in possession of the property till their death. It is argued that the suit
property described in Schedule-A was never alienated by Sampat
Bargah and Gathiya Bargah to Dashrath Lal Mehta; rather, the
Schedule-B property was subsequently alienated by Dashrath Lal
Mehta to Nanhu. He would further contend that Ex.P/1 is the survey
settlement record showing the names of Sampat Bargah and Ghatiya
Bargah. It is also argued that the defendants failed to prove the fact
that Schedule-A property was purchased by Dashrath Lal Mehta from
the original owners, and they deposed that the suit land was
purchased from Sampat Bargah alone. It is further argued that the
defendants failed to produce the original sale deed to establish a
valid transaction. He would also argue that the appellants made an
attempt to establish title over the suit property based on a notarized
copy, which is not admissible in evidence. He would further state that
the defendants failed to produce sufficient oral or documentary
evidence to establish the essential ingredients of adverse
possession. He would also state that the defendants have not
pleaded the date of their possession or when it became hostile to the
plaintiffs. He would assert that since Dashrath Lal Mehta had no title
over the suit property, he was not competent to alienate it to Nanhu. It
is further asserted that the learned trial Court recorded an erroneous
finding with regard to adverse possession in favour of Nanhu. He
would also submit that the appeal deserves to be dismissed.
12. Learned counsel for respondents No. 5 & 6 has placed reliance on
the judgment passed by the Hon'ble Supreme Court in the matter of
Lakhi Baruah and others vs. Padma Kanta Kalita and Others,
(1996) 8 SCC 357, and the judgment passed by the High Court of
Bombay in the matter of Prataprai Trumbaklal Mehta vs. Jayant
Nemchand Shah and Another, AIR 1992 BOMBAY 149.
13. Learned counsel for the State would support the judgment passed by
the learned Court below.
14. I have heard learned counsel for the parties and perused the record.
15. In the matter of Ramdayal (supra), the Hon'ble Supreme Court in
para 4 to 6 has held as under:-
"4. In such a case no equity requires that the purchaser
should be allowed to retain possession of the property till his
right is worked out in a partition suit. The fear expressed by
learned Single Judge (The Chief Justice) that the alienee may
delay the conduct of the partition suit and may remain in
enjoyment of the property for a very long time without any
justification is real where the transfer of the property by a
coparcener is in excess of his share in the whole coparcenary
property; but where the property transferred by the
coparcener, of which the purchaser has obtained possession
is less than or almost equivalent to the share of the alienating
coparcener, no such difficulty can arise. When it is conceded
that a purchaser from a coparcener has a right to ask for
general partition, it is obvious that his right in the joint family
property is recognised, though he may not claim enjoyment
jointly of the coparcenary property. The fact, however,
remains that he acquires interest immediately on the
purchase ejected by him and as such, the possession of the
property purchased by him. if it is not in excess of the share
of his transferor in the coparcenary property, cannot be said
to be unjust or inequitable.
5. Under the circumstances, we are of the opinion that the
direction of staying the execution proceedings for a certain
period enabling the purchaser from a coparcener to file a
partition suit and, if the suit is filed within that period, to stay
the execution till the decree in the partition suit, can be legally
given where the property in possession of the purchaser from
a coparcener is not in excess of the share of the coparcener.
In other cases such a direction may be said to be inequitable.
6. In this particular case, from the material on record it
appears that the property purchased by the appellant is less
than the share of his vendor or approximately equals it. Under
the circumstances, the appeal is allowed only to this extent
that a further direction be added to the decree passed by the
Courts below to the effect--
"The execution of the decree in so far as it directs the
purchaser to deliver possession of the property to the
plaintiff be stayed for a period of six months and if
before the expiry of that period the purchaser brings a
suit for general partition, then the stay should continue
until the disposal of the suit but if no such suit is
brought within that period, then the stay of execution
will stand canceled."
16. In the matter of Shashikala Manikpuri (supra), in paragraphs 9, 10,
11 & 12, the following observations were made:-
(9) In the matter of Ramdayal v. Manakla, AIR 1973 Madhya
Pradesh 222, a Full Bench of the Madhya Pradesh High
Court has clearly held that purchaser of an undivided
interest of coparcenery property can only obtain under the
sale an undivided interest of the alienating coparcener and
a right to claim general partition by way of suit. The said
decision has been followed with with approval by the
Madhya Pradesh High Court in the matter of Maharu and
others v. Dhansai and other respondents, AIR 1992 Madhya
Pradesh 220. Paras 10 and 11 of Maharu's case (supra)
state as under: -
"10. From the statement of law by the Full Bench it can
no longer be a subject of debate that the present
purchasers could only obtain under the sale an
undivided interest of the alienating coparcener and a
right to claim general partition by way of suit. The
purchaser only steps into the shoes of the transferor
and is invested with all the rights and is subject to all
the disabilities of the transferor. He at best, is entitled to
only joint possession with the nonalienating co-owners
and if resisted he may recover joint possession by a
suit. He is, in fact, only bound by the arrangements, if
any, as to exclusive possession by different co-owners
entered into, before he acquired the interest in the joint
property. In this case there is nothing on record to show
that his vendor, under a mutual arrangement amongst
the coparceners was in exclusive possession of the
land transferred by him. Even under the principles of
Section 44 of the Transfer of Property Act the
transferee from a co-owner acquires the transferee's
right to joint possession or other common or part
enjoyment of the property and to enforce a partition of
the same and subject to the conditions and liabilities
affecting, at the interest date of transfer, the share or
interest transferred to him The aforesaid section also
only assures to transferee's right to joint possession or
common enjoyment of the property but does not confer
on the transferee any right to exclusive possession
even where the transferor usas in such a possession.
There are a few cases such as Sukh Dev v. Puri, AIR
1940 Lahore 473-474 and Chanderbhan Jailal, AIR
1964 Punjab 435 which take a view that if there existed
any arrangement inter se between the coparceners or
co-owners under which one of them is in exclusive
possession of a portion of joint property, a transferee
from him, is entitled to 9 enjoy the benefits of exclusive
possession by virtue of the transfer in his favour.
11. In the instant case, however, there is no pleading of
any such inter se arrangement between the
coparceners. It is also not the case of the purchasers
that the alienating member who placed them into
possession, was in exclusive possession and
enjoyment of the suit land sold in their favour. In a
situation obtaining as in this case the purchasers,
therefore, had only a right to remain in joint possession
of the coparcenery property and to work out their rights
by bringing a suit for general partition and claim in that
suit allot ment of the alienated property to the share of
their vendor. The purchasers can claim no larger right
than what their vendor, as member of the coparcenery,
possessed."
(10) In the matter of Gajara Vishnu Gosavi v. Prakash
Nanasaheb Kamble and others, (2009) 10 SCC 654, the
Supreme Court has held as under:-
"13. Thus, in view of the above, the law emerges to
the effect that in a given case of an undivided share
of a coparcener can be a subject-matter of
sale/transfer, but possession cannot be handed over
to the vendee unless the property is partitioned by
metes and bounds, either by the decree of a court in
a partition suit, or by settlement among the
cosharers."
(11) The principle of law laid down in Gajara Vishnu Gosavi
(supra) has been followed with approval by the Supreme
Court in the matter of Syscon Consultants Private Limited v.
Primella Sanitary Products Private Limited and another,
(2016) 10 SCC 353.
(12) Thus, the crystallised legal view is that an undivided
share of a coparcener can be a subject matter of
sale/transfer, but possession cannot be handed-over to the
vendee unless the property is partitioned by metes and
bounds or by decree of court in partition suit."
17. In the matter of Binjhwar (supra), in paragraphs 12, 13, 14 & 15, the
following was observed:-
12) In the present case, possession of the property was
handed-over to defendants No. 2 to 5 by defendant No.1 at
the time of the execution of sale-deeds and admittedly
defendants No.2 to 5 are in possession.
13) In the matter of Ramdayal (supra), it is held that if the
purchasers are in possession of the property it should be
protected whereas, in the matter of Shashikala Manikpuri 10
(supra), it is held that the undivided share of a coparcener
can be a subject-matter of sale/transfer, but possession
cannot be handed over to the vendee unless the property is
partitioned by metes and bounds, either by the decree of a
court in a partition suit, or by settlement among the co-
sharers.
14) With regard to the share of the plaintiff and defendant
No.1, the learned trial Court has wrongly found the plaintiff
entitled to get 1/3rd as the share in the suit property
mother/defendant No.6 cannot be treated as coparcener
during the lifetime of her husband i.e. defendant No.1,
therefore, the share of plaintiff and defendant No.1 would be
½-½ and thus the plaintiff shall get ½ share in the property
mentioned in the decree passed by the learned trial Court.
15) With regard to the possession, defendant No.1 has not
alienated the property in excess of his share but at the same
time there is no partition between the plaintiff and defendant
No.1, therefore, defendants No. 2 to 5 are permitted to file a
suit for partition before the competent Court along with an
application for temporary injunction and till such application
is decided by the concerned Court, the possession of
defendants No.2 to 5 shall not be disturbed by the plaintiff."
18. The plaintiffs, who are the legal representatives of the late Sampat
Bargah and Ghatiya Bargah, filed a civil suit for declaration of title
and permanent injunction in respect of the suit property mentioned in
Schedule-A, comprising total survey Nos. 7, admeasuring 1.301
hectares, situated at Village Laxmipur, Tahsil and District Ambikapur.
The property mentioned in Schedule-B, comprising total Survey Nos.
6, admeasuring 1.252 hectares, was alienated by the late Dashrath
Lal Mehta to the late Nanhu. Nanhu was the original defendant No.1,
and original defendant No.2 - Surendra Kumar Mehta is the son of
the late Dashrath Lal Mehta. They pleaded that the suit property
mentioned in Schedule-A was recorded in the names of Sampat
Bargah and Ghatiya Bargah and that the property was settled in their
names. Thus, it is their ancestral property. They denied that Dashrath
Lal Mehta or his legal representatives had any rights over any part of
the suit property. They further pleaded that in 1978, the defendants
interfered with their possession, necessitating the filing of a suit. The
defendants filed a written statement, pleading that the suit property
described in Schedule-A was sold by late Sampat Bargah to late
Ghatiya Bargah in the year 1942, after which Sampat Bargah left the
village Laxmipur. Therefore, his legal representatives had no right
over the property. They denied any interference with the plaintiffs'
possession and claimed that they themselves were in possession.
They further asserted that they had perfected their title through
adverse possession, having been in possession for the last 15-16
years.
19. The defendants/appellants exhibited the sale deed dated 18.7.1962,
marked as Ex-D/1, executed by Dashrath Lal Mehta in favour of
Nanhu Ram. Plaintiff No.1 - Lachan (PW-1) deposed in his
examination-in-chief that the suit property described in Schedule-A
was settled in the names of Sampat Bargah and Ghatiya Bargah,
vide Ex.P/1. He exhibited various documents and, in paragraph 8,
categorically stated that his father, Sampat Bargah, never sold any
property to Dashrath Lal Mehta and that the plaintiffs are in
possession of the suit property. He remained firm during the cross-
examination.
20. Sadar Ram (PW-2) deposed that Sampat Bargah and Ghatiya
Bargah never alienated the property to Dashrath Lal Mehta. He
admitted that Sampat Bargah resided with his son in Chirmiri.
21. Defendant No.1 - Ganga deposed that Sampat Bargah had alienated
his property and subsequently left the village, and he was the sole
owner of the suit property. He further stated that Sampat Bargah
returned to the village during the emergency period. He admitted that
Dasrath Lal Mehta had alienated the property mentioned in Schedule-
B to Nanhu. He further stated that he does not know Ghatiya Bargah
or his legal representatives. In cross-examination, he admitted the
fact that the portion of land alienated by Dashrath Lal Mehta to Nanhu
is being cultivated by Plaintiff No.1 - Lachan. He also admitted the
proceedings initiated under Section 145 of Cr.P.C.
22. Lavang Sai (DW-2) stated that Sampat Bargah had left the village
along with his minor son and never returned to the village Laxmipur.
This witness has further deposed that Dashrath Lal Mehta narrated to
him that the suit property was purchased for the sale consideration of
Rs.40/-. He deposed that he did not know the age of Dashrath Lal
Mehta, his own age, or the exact date of the alleged transaction.
23. Defendant No.2-Surendra Kumar Mehta examined himself and
admitted the fact that he had been in possession of the suit property
for the last 40-50 years. He also admitted the fact that he is an
Advocate and has been practicing since 1962. He further admitted
the fact that though the consideration amount was Rs.40/- but it is not
mentioned in the document. This witness further stated that the
registration was not required for conveyance valued under Rs.100/-.
It is also admitted that no mutation order was passed in favor of his
father, and documents have not been placed on record to prove the
possession.
24. S.P. Gupta (DW-2), Advocate and notary, stated that the document
written on plain paper was notarized by him on 5.8.1980 after
comparing it with the original document. In cross-examination, this
witness remained firm.
25. Gulchu Ram (DW-3), the son of Nanhu, stated that he is the adopted
son of Nanhu and that he has been in possession of the suit property
mentioned in Schedule-B, which was purchased by his father through
a registered sale-deed from Dashrath Lal Mehta.
26. The alleged sale-deed was executed by Sampat Bargah on
7.11.1942. The contents of the document are that Sampat Bargah,
with the consent of Ghatiya Bargah, sold the property to Dashrath Lal
Mehta for a consideration of Rs.40/-, and from the date of execution,
they lost title over the suit property. The details of the suit property
were written on the back side of the document. It was signed by
Sampat Bargah and Ghatiya Bargah. The document was drafted by
Abdul Samad and attested by Dhansai Uraon and Bolaram (driver).
This document is a notarized true copy and does not bear the original
signatures of Sampat Bargah, Ghatiya Bargah, or the witnesses.
27. In the written statement, the defendants did not mention the date of
execution of the sale-deed, the names of attesting witnesses, or even
the name of the notary advocate.
28. It is a well-settled principle of law that a notarized true copy is
generally not admissible as primary evidence in Courts. It may,
however, be admitted as secondary evidence if the original is
unavailable and if proper procedure under the Evidence Act is
followed to prove the accuracy and authenticity of the document. The
Courts are required to assess the circumstances under which the
copy was created before accepting it. Its evidentiary value is limited
to proving the contents of the original document, not the truth or
correctness of those contents.
29. In the matters of Ramdayal (supra), Shashikala Manikpuri (supra)
and Binjhwar (supra), it has been held that the undivided share of a
coparcener can be the subject-matter of sale or transfer, but
possession cannot be handed over to the vendee unless the property
is partitioned. It has also been held that a coparcener may alienate
his share in the undivided property, and the purchaser may assert
their right by way of a suit for general partition.
30. The judgments cited by counsel for the appellants are not touching
the facts of the present case. According to the notarized document
and the evidence led in this regard, the alleged unregistered sale-
deed was executed jointly by Sampat Bargah and Ghatiya Bargah; it
is not a case where Sampat Bargah alone alienated the property.
31. In the matter of Lakhi Baruah (supra), the Hon'ble Supreme Court in
paras 15 to 18 has held as under:
"15. Section 90 of the Evidence Act, 1872 is founded on
necessity and convenience because it is extremely difficult
and sometimes not possible to lead evidence to prove
handwriting, signature or execution of old documents after
lapse of thirty years. In order to obviate such difficulties or
improbabilities to prove execution of an old document,
Section 90 has been incorporated in the Evidence Act, 1872
which does away with the strict rule of proof of private
documents. Presumption of genuineness may be raised if
the documents in question is produced from proper custody.
It is, however, the discretion of the court to accept the
presumption flowing from Section 90. There is, however, no
manner of doubt that judicial discretion under Section 90
should not be exercised arbitrarily and not being informed by
reasons.
16. So far as applicability of presumption arising from
Section 90 of the Evidence Act, 1872 in respect of copy of
the old document is concerned, the earliest decision of the
Indian Court was made in 1880 in Khetter Chander
Mookerjee v. Khetter Paul Sreeterutno, ILR (1879-1880) 5
Cal 886. Later on, in the decisions of various High Courts the
presumption under Section 90 was also made applicable to
the certified copy. The Privy Council, upon review of the
authorities, however, did not accept the decision rendered in
Khetter and other decisions of the High Court, where the
presumption was attached also to copies, as correct. It was
indicated that in view of the clear language of Section 90 the
production of the particular document would be necessary
for applying the statutory presumption under Section 90. If
the document produced was a copy admitted under Section
65 as secondary evidence and it was produced from proper
custody and was over thirty years old, then the signature
authenticating the copy might be presumed to be genuine;
but production of the copy was not sufficient to justify the
presumption of due execution of the original under Section
90. In this connection, reference may be made to the
decisions in Seethayya v. Subramanya Somayajulu, LR
(1928-29) 56 IA 146 and Basant Singh v. Brij Raj Saran
Singh, AIR 1935 PC 115. In view of these Privy Council
decisions, disproving the applicability of presumption under
Section 90 to the copy or the certified copy of an old
document, in the subsequent decisions of the High Courts, it
has been consistently held by different High Courts that
production of a copy or a certified copy does not raise the
presumption under Section 90.
17. The position since the aforesaid Privy Council decisions
being followed by later decisions of different High Courts, is
that presumption under Section 90 does not apply to a copy
or a certified copy even though thirty years old, but if a
foundation is laid for the admission of secondary evidence
under Section 63 of the Evidence Act, 1872 by proof of loss
or destruction of the original and the copy which is thirty
years old is produced from proper custody, then only the d
signature authenticating the copy may under Section 90 be
presumed to be genuine.
18. In the facts of this case, the presumption under Section
90 was not available on the certified copy produced by the
defendants and, in our view, the High Court is justified in
refusing to give such presumption in favour of the
defendants. We may also indicate that it is the discretion of
the court to refuse to give such presumption in favour of a
party, if otherwise, there is occasion to doubt due execution
of the document in question. The plaintiffs definite case was
that the deed of sale in favour of Holiram was a forged and
fabricated document. In the aforesaid facts, there was a
requirement to produce the original copy so that the question
of due execution by Plaintiff I could have been contested by
the parties."
32. In the matter of Prataprai Trumbaklal Mehta (supra), the Bombay
High Court in para 11 has held as under:
"11. On 9th August 1952, the President of India granted
assent to the Notaries Act, 1952 passed by our Parliament.
The said Act came into force on 14th December 1956 on
issue of necessary notification and publication thereof in the
Government Gazette. Prior to the passing of the said Act,
the Government of India was empowered to appoint Notary-
Public under Sections 138 and 139 of the Negotiable
Instruments Act for the limited purpose of functioning of
Notaries under the said Act. Prior to the passing of the said
Act, the Master of Faculties in England also used to appoint
Notaries Public in India for performing all notarial functions.
Section 3 of the said Act empowers the Central Government
to appoint any legal practitioner or any other person as a
notary for the whole of India or part thereof. The said
Section also empowers the State Government to appoint
any legal practitioner or other person who possess
prescribed qualifications as a notary for functioning as such
within the State. The notarial functions include "certifying
copies of documents" as true copies of the original. Section
15 of the Notaries Act, 1952 empowers the Central
Government to make rules to carry out the purposes of the
Act including prescribing of fees payable to a notary for
doing any notarial act and prescribing of form of registers
required to be maintained by a notary, and particulars to be
entered therein. In exercise of the powers conferred by
Section 15 of the Notaries Act, 1952, the Central
Government has framed the necessary rules. Rule 10(1) of
the Notaries Rules, 1956 prescribes that every notary shall
charge a fees for certifying copies of documents as true
copies of the original at the rate prescribed therein. Rule
11(9) of the said Rules provides that every notary shall grant
a receipt for the fees and charges realised by him and
maintain a register showing all the fees and charges
realised for every single notarial act. Rule 12 of the said
Rules prescribes for use of seal of notary. Rule 11(2) of the
said Rules in terms provides that every notary shall maintain
notarial register in prescribed Form No. 15. The prescribed
form of the register provides for entry of every notarial act in
the notarial register and taking of signature of the person
concerned in the register and entry in respect of fees
charged. It is, therefore, not correct to state, as stated by
Mr. Sonavane, that no entry-need be made in the notarial
register in respect of the notarial act of certifying copy of
document as true copy of the original. Even if one or two
column of the said form is not applicable, entries must be
made in the said register filling up remaining columns as are
applicable and adapting the format accordingly. It is the
responsibility of a notary to satisfy himself that the original
document intended to be executed before him was
executed by the person concerned and not by someone
else in the name of a different person. It is the responsibility
of the notary to satisfy himself about the identity of the
execution of the original document by making all reasonable
inquiries including insistence of identification of a member of
the public by a legal practitioner known to the notary. Unless
the executant is known to the notary personally, the notary
must insist on written identification of the executant by an
advocate in order to minimise the possibility of cheating by
personification. Negligence of a notary in the discharge of
his notarial functions may jeopardise the interest of third
parties and public interest itself. If the work of comparison of
copy of the document with the original and the prima facie
scrutiny of authenticating the original involves labour for too
little a fee, the person concerned need not opt to become a
notary. Notaries, formerly known as Notary-Public, enjoy
high status throughout the country and the Courts take
judicial notice of the seal of the notary and presume that the
document in question must have been certified as true copy
by the notary after taking of all possible care by the notary in
comparing the copy with its original and due verification of
the identity of the executant and the person appearing
before the notary for the certification."
33. In the matter of Lakhi Baruah (supra), it was held that, in order to
invoke the presumption, it must be proved that the document
produced and admitted was over thirty years old and was produced
from proper custody. Only then may the signature authenticating the
copy be presumed to be genuine. However, the mere production of a
copy is not sufficient to justify the presumption of due execution of the
original.
34. In the present case, the appellants failed to prove the due execution
of the documents and the original was also not produced, as
discussed in paras 31 to 33.
35. In the matter of Prataprai Trumbaklal Mehta (supra), it was held
that it is the responsibility of a notary to satisfy himself that the
original document intended to be executed before him was, in fact,
executed by the concerned person and not by someone else. The
notary must also be satisfied regarding the identity of the executant
and the execution of the original document by making all reasonable
inquiries.
36. In the present case, the suit filed by the plaintiffs was dismissed on
the ground that the sale-deed was executed by Sampat Bargah and
Ghatiya Bargah in favour of Dashrath Lal Mehta in 1942, and its
execution was proved by notary Advocate S.P. Gupta (DW-2).
However, a notarized true copy is merely a reproduction of the
original document, and the court requires the original to prove both
the accuracy and the truthfulness of the contents.
37. In the present case, neither the defendants nor the notary
(S.P. Gupta) proved the contents of the document. Further, in the
written statement, defendant No.2 - Surendra Kumar Mehta did not
plead the details regarding the date of the execution of the sale deed,
the consideration amount, the names of the witnesses, or the
existence of the original documents. Defendant No. 2 has not
mentioned the name of the Notary Advocate, who notarized the true
copy of the sale deed. The witnesses disclosed the factum of the
execution of the sale deed, names of witnesses and the name of
Notary in evidence. It is a well settled principle of law that evidence
beyond pleadings is not admissible. Therefore, the learned First
Appellate Court rightly reversed the findings recorded by the trial
Court with regard to the authenticity of the document.
38. Ex.P/1 submitted by the plaintiffs would establish the fact that the suit
property mentioned in Schedule-A was initially recorded in the name
of Sampat Bargah and Ghatiya Bargah and continued in their names
till 1977-78. The defendants have not produced a single document to
establish that the suit property was ever recorded either in the name
of Dashrath Lal Mehta or Surendra Kumar Mehta. Therefore, the
learned Appellate Court rightly held that the suit property was the joint
property of Sampat Bargah and Ghatiya Bargah and that the alleged
sale-deed executed in 1942 did not confer title in favour of Dashrath
Lal Mehta. Accordingly, the substantial question of law No. 1 is
answered in the negative, against the appellants.
39. As the defendants failed to prove the due execution of the sale-deed
in favour of Dashrath Lal Mehta, his son Surendra Kumar Mehta is
not entitled to get any share in the joint property of Sampat Bargah
and Ghatiya Bargah. Accordingly, the substantial question of law No.
2 is also decided in the negative against the appellants.
40. Accordingly, the appeal is dismissed, leaving the parties to bear their
own cost(s).
41. A decree be drawn accordingly.
Sd/-
(Rakesh Mohan Pandey)
Judge
Nimmi
