Delhi High Court

Shri Ramdhari vs Shri Vinod Kumar Sharma on 31 March, 2011

Author: Indermeet Kaur

*      IN THE HIGH COURT OF DELHI AT NEW DELHI

%                           Judgment delivered on: 31.3.2011


+            RSA No.125/2007 & CM No.6548/2007


SHRI RAMDHARI                             ...........Appellant
             Through:          Mr.Madan Lal Sharma and Mr.Varun
                               Nischal, Advocate.

                   Versus

SHRI VINOD KUMAR SHARMA         ..........Respondent

Through: Mr.P.K.Bhardwaj, Advocate

CORAM:

HON'BLE MS. JUSTICE INDERMEET KAUR

1. Whether the Reporters of local papers may be allowed to see the judgment?

2. To be referred to the Reporter or not? Yes

3. Whether the judgment should be reported in the Digest?

Yes

INDERMEET KAUR, J. (oral)

1. This appeal has impugned the judgment and decree dated

26.2.2007 which had endorsed the finding of the trial judge dated

06.2.2006 wherein the suit filed by the plaintiff Vinod Kumar

Sharma seeking possession and mesne profits qua suit premises

bearing No.WZ-1087, Gali no.11, Sadh Nagar, Palam Colony, New

Delhi (hereinafter referred to as „the suit property) had been

decreed in his favour.

2. Case of the plaintiff is that the suit property was originally

owned by Kamla Devi; she had died on 02.9.1979; she was survived

by three sons and five daughters. Her daughter namely Rekha on

behalf of the other legal heirs of her deceased mother had

executed a registered deed of relinquishment dated

31.12.1981(Ex.PW-3/2) in favour of their brother Narinder Kumar

qua the suit property. Narinder Kumar thereafter vide registered

sale deed dated 15.4.1983 Ex.PW-3/1 had sold this property to the

plaintiff namely Vinod Kumar Sharma. Defendant had been

inducted as a tenant at monthly rental of `30/- by the erstwhile

owner Smt.Kamla Devi; defendant had attorned in favour of the

plaintiff and recognized him as a landlord. The plaintiff had

terminated the tenancy of the defendant vide two notices, one

dated 01.12.1982 and the subsequent notice dated 05.5.1983

under Section 106 of the Transfer of Property Act. These notices

are not in dispute.

3. The defendants had contested the suit on various grounds

including the averment that the relinquishment deed Ex.PW-3/2

was not validly executed and the subsequent sale deed Ex.PW-3/1

executed by Narinder Kumar in favour of the plaintiff is also not

binding upon the defendant.

4. Trial Judge had framed the following 12 issues.

"1. Whether the suit is not maintainable in the present form? OPD

2. Whether the suit has not been valued properly for the purpose of court fee and jurisdiction? OPD

3. Whether the remaining LRs of Smt.Kamla Devi had executed a deed of relinquishment in respect of the house in suit in favour of Sh.Narinder Kumar on 31.12.81? If so, its effect? OPP

4. Whether Sh.Narinder Kumar has no right to execute the sale deed in favour of the plaintiff without maintaining letters of Administration in respect of the premises in suit? OPD

5. What is the rate of rent of the room in question? OPP

6. Whether the tenancy premises of the defendants consists also of the one shed in front of the room in question? If so, its effect? OPD

7. Whether the defendant attorned the plaintiff and paid him rent till July 1982? If so, its effect? OPP

8. Whether the tenancy of the defendant was duly terminated by means of a valid notice? If so, its effect? OPP

9. Whether the plaintiff is entitled to recover possession of the premises in suit? OPP

10. Whether the plaintiff is entitled to recover mesne profits? If so,

at what rate and how much?

11. Whether suit is barred under Section 50 of the DRC Act? OPD

12. Relief."

5. Issues no.3 and 4 are relevant for the controversy before this

Court. Evidence was led both oral and documentary. In view

thereof the suit of the plaintiff stood decreed. The impugned

judgment had affirmed the finding of the trial judge holding that

the relinquishment deed dated 31.12.1981 Ex.PW-3/2 is a

registered document and has been duly proved through the

testimony of PW-3; vide this document all the legal heirs of Kamla

Devi had relinquished their shares in favour of Narinder Kumar.

There is no dispute interse between any of the siblings. Narinder

Kumar had thereafter vide a registered sale deed Ex.PW-3/1 sold

this property to the plaintiff which was again a valid transfer. On

other counts also the suit of the plaintiff had been decreed. Those

are not being detailed as the only bone of contention before this

Court is the validity of the relinquishment deed and sale deed.

6. This is a second appeal. It has been admitted on 17.11.2008

and the following substantial question of law was formulated:

"Whether any reliance can be placed in law on the contents of relinquishment deed Ex.DW3/2 and sale deed Ex.DW3/1 while determining ownership of the suit property?"

7. The arguments of the appellant are as aforenoted. Attention

has been drawn to the Section 67 of the Indian Evidence Act. It is

pointed out that the mode of proof of a document cannot be

dispensed with; a document in law can be proved either if the

executant comes into witness box or if the said document is

required in law to be proved by a attesting witness, by summoning

the said witness. This has not been adhered to. Merely producing

a certified copy of a registered document does not dispense with

the mode of proof. It is pointed that the defendant being a tenant

had the locus standi to challenge the sale deed. For this

proposition reliance has been placed of a judgment reported in AIR

1982 SC 1213 Devi Das Vs. Mohan Lal. Reliance has also been

place upon AIR 1973 Bombay 14 C.H. Shah Vs. S.S.Malpathak &

Ors., AIR 2007 AP 50 Muddasani Sarojana Vs. Muddasani Venkat

Narsaiah & Ors. and AIR 1968 Bombay 112 Sir Mohammed Yusuf

Vs. D to support his submission that the mandate of Section 67 of

the Evidence Act cannot be dispensed with. Ex.PW-3/1 and

Ex.PW-3/2 could have only been proved either by executant of the

document or through the attesting witness or any other person

who had seen executant writing or signing the said document. For

the same proposition reliance has been placed upon AIR 1972 SC

330 M/s Bareilly Electricity Supply Co. Ltd. Vs. Workmen and Ors.

as also AIR 1993 Delhi 330 Ram Jawai Vs. Shakuntala Devi. It is

submitted that the executant of the document has to be summoned

in order that opportunity is granted to the other side to cross-

examine the witness; this rule is also in conformity with the

principles of natural justice.

8. Arguments have been countered. Learned counsel for the

respondent has also placed reliance upon a judgment of the Apex

Court reported in 2003 (TLS) 38532 R.V. E. Venkatachala Gounder

Vs. Arulmigu Viswesarawwarni. Attention has been drawn to the

provisions of Order 13 Rule 4 of the Code of Civil Procedure

(hereinafter referred to as „the Code‟); it is pointed out that an

objection to the admissibility of the document could be raised

before the document is exhibited and cannot be raised later.

10. Record has been perused. The disputed documents are;

Ex.PW-3/2 dated 31.12.1981 i.e. the relinquishment deed

purported to have been executed by Rekha one of the legal heir of

deceased Kamla Devi in favour of her other siblings; this is a

registered document; it is not disputed that none of the other

siblings have challenged this document. The second document is

the sale deed dated 15.4.1983 Ex.PW-3/1 executed by Narinder

Kumar in favour of the plaintiff. This is also a registered document

and has not been challenged interse by any of the legal heirs of

Kamla Devi. PW-3 had come into witness box to prove these

documents; he was summoned from the office of the Sub-Registrar.

His deposition is to the effect that the said two documents had

been registered in the office of the Registrar and were accordingly

proved as Ex.PW-3/2 and Ex.PW-3/1. In his cross-examination

PW-3 had admitted that he has no personal knowledge about the

case; so he had been summoned in his official capacity. No

suggestion had been given to this witness that the record which he

had brought is not correct record or that the aforenoted documents

had not been registered in the office of the Sub-Registrar. Absence

of this cross-examination leads to only one inference, that being,

that Ex.PW-3/2 and Ex.PW-3/1 had been duly registered in the

office of the Registrar. PW-3 had produced the original documents

from his department. He had not been cross-examined on the

veracity or the authenticity of the said documents; it was never the

case of the defendant (as is evident from the written statement)

that these transaction i.e. the relinquishment deed and the sale

deed were in fact not genuine. Only objection is about

admissibility and mode of proof; objection being that the

admissibility and the mode of proof are two different factors.

11. Under the Indian Evidence Act, evidences are of two kinds;

oral and documentary. Chapter-IV deals with oral evidence;

Chapter-V deals with documentary evidence. Documentary

evidence is also of two kinds; primary and secondary evidence.

Under Section 79 there is a presumption as to the genuineness of

the certified copy of a document; the court shall presume to be

genuine every document which is purported to be a certificate or

certified copy of the original. Ex.PW-3/2 and Ex. PW-3/1 had

created a presumption in favour of the plaintiff. This was a

rebuttable presumption; it was open to the defendant to have

rebutted this presumption but he had failed to do so. Even at the

time when the aforenoted documents were proved through the

version of PW-3 there was no suggestion that they did not fulfill the

mode of proof as required under law. These documents had been

tendered in evidence and evaluated by the courts below without

any demur.

Order 13 Rule 4 of the Code provides that every document

admitted in evidence in a suit being endorsed by or on behalf of the

court which endorsement is signed or initialled by the judge

amounts to an admission of the document in evidence. An

objection to the admissibility of the document should be raised

before this endorsement is made whereupon the court is obliged to

form its opinion on the question of its admissibility and express the

same upon which depends whether the document would be

admitted or not admitted in evidence. In R.V. E. Venkatachala

Gounder (supra) the Apex court had detailed the two classes of

objections about the admissibility of the documents and classified

them into two classes:

"(i) an objection that the document which is sought to be provides itself inadmissible in evidence; and (ii) where the objection does not dispute the admissibility of the document in evidence but is directed words the mode of proof alleging the same to be irregular or insufficient. In the first case, merely because a document has been marked as „an exhibit‟ an objection as to its admissibility is not excluded and is available to be raised even at later stage or even in appeal or revision. In the latter case, the objection should be taken before the evidence is tendered and once the document has been admitted in evidence and marked as an exhibit, the objection that it should not have been admitted in evidence or that the mode adopted for proving the document is irregular cannot be allowed to be raised at any stage subsequent to the marking of the document as an exhibit. The later proposition is a rule of fair play. The crucial test is whether an objection, if taken at the appropriate point of time, would have enabled the party tendering the evidence to cure the defect and resort to such mode of proof as would be regular. The omission to object becomes fatal because by his failure the party entitled to object allows the party tendering the evidence to act on an assumption that the opposite party is not serious about the mode of proof. On the other hand, a prompt objection does not prejudice the party tendering the evidence, for two reasons: firstly, it enables the Court to apply its mind and pronounce its decision on the question of admissibility then and there; and secondly, in the event of finding of the Court on the mode of proof sought to be adopted going against the party tendering the evidence, the opportunity of seeking indulgence of the Court for permitting a regular mode or method of proof and thereby removing the objection raised by the opposite party, is available to the party leading the evidence. Such practice and procedure is fair to both the parties. Out of the two types of objections, referred to hereinabove, in the latter case, failure to raise a prompt and timely objection amounts to waiver of the necessity for insisting on formal proof of a document, the document itself which is sought to be proved being admissible in evidence, the document itself which is sought to be proved being admissible in evidence. In the first case, acquiescence would be no bar to raising the objection in superior Court."

The Constitution Bench of the Supreme in a judgment

reported in 2004(5) ALLMR (SC) Cement Corporation of India Ltd.

Vs. Purya in the context of the mode of proof of a sale deed had

noted inter alia as follows:

"22.In the ordinary course a deed of sale is the evidence of a transaction by reason whereof for a consideration mentioned therein the title and interest in an immovable property specified therein is transferred by the vendor to the vendee. Genuineness of such transaction may be in question. In a given situation the quantum of consideration or the adequacy thereof may also fall for adjudication. The Courts, more often than not, are called upon to consider the nature of the transaction. Whenever a transaction evidenced by a sale deed is required to be brought on record, the execution thereof has to be proved in accordance with law. For proving such transaction, the original sale deed is required to be brought on record by way of primary evidence. Only when primary evidence it not available, a certified copy of the sale deed can be taken on record. Such certified copies evidencing any transaction are admissible in evidence, if the conditions precedent therefore in terms of Section 75 of the Indian Evidence Act are fulfilled. The transaction evidenced by the sale deed must be proved in accordance with law."

12. Ex.PW-3/2 and Ex.PW-3/1 had been admitted in evidence;

they were relied and adjudicated upon by both the court below; it

was never the defence of the defendant that these documents were

not genuine or authentic. There was a presumption of the

genuineness of the certified copies of these documents i.e. Ex.PW-

3/2 and Ex.PW-3/1; this presumption was never rebutted. The

documents had been duly proved and were rightly relied upon by

both the courts below. The judgments relied upon by learned

counsel for the appellant have no application and are all distinct.

13. The judgment of C.H. Shah (supra) lays down the proposition

that Section 79 raises a rebuttal presumption with regard to the

genuineness of certified copies and has no application to original