Manindra Kumar Dey and Others vs Mahendra Suklabaidya and Others

J.N. Sarma, J.—This is an appeal by the Plaintiffs.

The brief facts are as follows :

The suit land is covered by three Dags and they are - Dag No. 1 - area - 2B. 10 K, Dag No. 2-area- 1B.5K and Dag No. 3 - area 2B. OK. The Plaintiff No. 1 is the father of Plaintiff No. 2. The Dag Nos. 1 and 2 are claimed by the Plaintiff No. 1 and Dang No. 3 is claimed by Plaintiff No. 2. The suit land originally belonged to Mahendra Suklabaidya, the Defendant No. 1. The Defendant No. 1 sold the entire land of Dag Nos. 2 and 3 to Rashmoni Suklabaidya by sale deed dated 17.7.1970 i.e. Ext.3. Rashmani sold Dag Nos. 1 and 2 to Jatindra Dey-proforma Defendant No. 2 on 7.6.1972, i.e. Ext.2. Jatindra sold the land of Dag Nos. 1 and 2 to Plaintiff No. 1 Manindra on 9.2.1978 i.e. Ext.1. Dag No. 3 was not sold by Rashmani. But after his death, the son Nibaran Suklabaidya, the Proforma Defendant No. 3 sold the land of Dag No. 3 to Kanu-PlaintiffNo.2 when he was minor on 25.10.1983 i.e. Ext.4. So, the Plaintiff No. 1 became owner of Dag Nos. 1 and 2 and PlaintiffNo.2 became owner of Dag No. 3 and as such, the Plaintiffs became the owner of all the 3 Dags.

The Defendant No. 1 Mahendra Suklabaidya instituted a proceeding u/s 145 of Code of Criminal Procedure in respect of Dag No. 3 of the suit land and* in the said proceeding possession was declared in favour of Defendant No. 1 in respect of the disputed land and thereby the title of the Plaintiff was clouded. The Plaintiff therefore, instituted the suit being Title Suit No. 17/86 in the court of the learned Asstt. District Judge at Karimganj for declaration of jote right of the Plaintiff No. 1 over Dag Nos. 1 and 2 and the jote right of the PlaintiffN6.2 over Dag No. 3 of the land. The Defendant No. 1 only contested the suit by filing the written statement His defence was that he is a refugee from East Pakistan and he possessed the land and later on it was allotted to him by the Govt. The Defendant No. 1 mortgaged the suit land to the Nibaran with a condition to re-convey the same in favour of the answering Defendant within the time fixed. The Defendant No. 1 paid the entire mortgage money to Nibaran and thereafter, he continued with the exclusive possession of the land. The deeds mentioned by the Plaintiffs are all fake and fabricated. The Plaintiff wanted to take possession of the land forcibly and thus, there was a proceeding u/s 145 of Code of Criminal Procedure and in that proceeding, possession was declared in favour of Defendant No. 1.

As many as 5 issues were framed in the suit and Plaintiff examined 5 witnesses and the contesting Defendant examined himself as a witness. The learned trial court decreed the suit by judgment dated 21.9.93 and there was an appeal being Title Appeal No. 2/93 before the learned District Judge, Karimganj. The learned District Judge found as follows:

i) Sale by Mahendra Suklabaidya to Rashmoni by Ext.3 proved.

ii) Sale by Rashmoni to Jatindra by Ext. 2 proved.

iii) Ext. 1 not admissible in evidence and title did not pass to Plaintiff No. 1 as the original deed of sale was not proved and only the certified copy of sale deed No. 422 dated 9.2.1978 was proved by the L.D.A. from the office of the Sub-Registrar at Karimganj from the register maintained at the said Sub-Registrar office.

iv) The title of Dag No. 3 cannot be declared as it was claimed to be a benami as the plea of benami was not established and the Plaintiff have not sought declaration of title of Plaintiff No. 2 to Dag No. 3. In view of the Benami Transaction (Prohibition) Act, 1988, the person in whose name a property is purchased shall be recorded as its real owner, meaning thereby that Dag No. 3 of the land having been admittedly purchased in the name of Plaintiff No. 2, it is the Plaintiff No. 2, whose name shall be recognised by law as the real owner and the question of treating the Plaintiff as the owner of Dag No. 3 of the suit land does not arise at all.

Having arrived at this finding, the appeal was allowed and the suit was dismissed. Hence this Second Appeal.

I have heard Mr. B.K. Goswami, learned Counsel for Appellants and Mr. A.S. Choudhury, learned Counsel for Respondents.

No substantial questions of law was formulated at the time of admitting the appeal. Learned counsel for the Appellants at the time of argument wants to urge the following questions as the substantial questions of law and they are accordingly formulated as substantial questions of law with notice to the learned Counsel for Respondents. Following are the substantial questions of law:

i) Whether the learned District Judge was right in refusing to consider the Sale Deed Ext. 1 which was admitted in evidence without objection?

ii) When the vendor of the sale deed Ext.1 who was a party to the suit did not contest the validity of the sale, whether a stranger could be allowed to assail the validity of the sale ?

iii) Whether the finding of the learned District Judge that the transfer of the land in Dag No. 3 to the Plaintiff No. 2 vide Ext. 4 was a benami transaction and as such hit by the Benami Transactions (Prohibition) Act, 1988, is based on no evidence and as such perverse ?

Mr. B.K. Goswami, learned Counsel for Appellants first takes up the question of No. (iii) and he urges that the judgment which was relied by the learned Judge i.e Mithilesh Kumar and Another Vs. Prem Behari Khare, has been subsequently overruled by the Supreme Court in the case of R. Rajagopal Reddy and Others (deceased by legal representatives) Vs. Padmini Chandrasekharan (deceased by legal representatives), wherein a view was expressed that the prohibition imposed by Sub-section (1) & (2) of Section 4 applies only to suits to be filed or defence to be taken in respect of property held benami, i.e. after Benami Transaction Act came into force and not to those suits filed or defences taken in respect of such benami transaction and pending final decision of coming into force of the Act as had been held earlier by a Division Bench of the apex court in Mithilesh Kumar and Another Vs. Prem Behari Khare, So, the decision cited by the learned Judge no longer holds the field. No doubt, at the time of passing the judgment by the learned Judge he was bound by the decision of the apex court which was later on modified/explained by a larger bench. Even, otherwise Mr. Goswami, learned Counsel for Appellants submits that even now the relief can be moulded and declaration of title can be made in favour of Plaintiff No. 2 for the land in question of Dag No. 3. The learned Judge having found that the sale in favour of Defendant No. 2 to be valid one, I set aside the finding of the learned Judge with regard to ExL4 and hold that the PlaintiffNo.2 is entitled to the land of Dag No. 3.

The next question comes regarding proof of Ext.1, Ext. 1 is admittedly a certified copy of a sale deed. The question is whether this certified copy was proved as required by law and whether it can be accepted as secondary evidence. It must be borne in mind that this document was admitted in evidence without objection. The law regarding proof of a document is that the objection to it must be taken at the earliest point of time. Where the objection to be taken is not that the document itself is in admissible, but that the mode of proof put forward is irregular or insufficient, it is essential that the objection should be taken at the trial before the document is marked as an Exhibit and admitted to the record. A party cannot lie until the case comes before a court of appeal and then complain for the first time of the mode of proof, (see AIR 1943 83 (Privy Council) (at page 87).

In Javer Chand and Others Vs. Pukhraj Surana, the court observed as follows:

Once a document has been marked as an exhibit in the case and has been used by the parties in examination, cross-examination of the witness...it is not open either to the trial court itself or to court of appeal or revision to go behind that order.

To the same effect, is the decision in P.C. Purushothama Reddiar Vs. S. Perumal, where in the Supreme Court laid down the law as follows:

It is not open to a party to object to the admissibility of documents which are marked as exhibits without any further objection from such parties.

The Ext.1 was admitted in evidence without objection. So, the admissibility of that document cannot be challenged at a later point of time. Further u/s 54 of the Transfer of Property Act, the right to property is transferred or is passed as and when registration is effected, if it can be shown that the vendor had the title to the property. No doubt, even in such cases title to the property does not pass, but there is not the intention of the party. Registration is prima facie proof of the intention to transfer, but it is not conclusive proof of operative transfer it there is a condition precedent (which must be strictly proved) as to the payment of consideration or delivery of the deed, but if the intention was that the transfer shall take effect on registration even if the seller has not given the possession or the buyer has not paid the price that will not stall transfer, transfer will be deemed to be effective. It is the intention which is the clinching factor and in view of that matter the legality and validity of the sale deed cannot be challenged usually by a stranger if it is not contested by the vendor himself. In this particular case, vendor was a Defendant in the suit, but he did not contest the validity and the legality of the sale deed in favour of the Plaintiff. So, on this ground alone, the Ext. 1 must be held to be valid.

Next question is whether the certified copy of the deed of sale is a public document u/s 74 of the Evidence Act and whether it can be proved as a public document u/s 77 of the Evidence Act. On this point there is a decision by the learned Single Judge of this Court reported in AIR 1979 Gau 14 (Md. Saimuddin Sheikh v. Abejuddin Sheikh, Res.) where in para 7 of the judgment it has been held as follows:

Mr. M.A. Laskar, learned Counsel appearing for the Respondent, relying on the decision of the Supreme Court reported in The Roman Catholic Mission Vs. State of Madras and Another, submits that the decision of the lower appellate court was correct, inasmuch as, the Defendant failed to satisfy the conditions laid down u/s 65 of the Evidence Act in order to give the secondary evidence. In my opinion, Section 65 of the Evidence Act is not applicable to the facts of the present case. In my opinion, the copy of the sale deed which was maintained in the sub-Registrar''s Office is a public document within the meaning of Section 74(2) of the Evidence Act which reads as follows:

The following documents are public documents:

(1) ....

(2) public records kept in any State of private documents.

It is indisputable that the sale deed in question is a private document. It is also indisputable that the record of the sale deed kept in the office of that private document and hence it falls within the category of ''public document''. Section 77 prescribes the mode of proving a public document It provides:

Such certified copies may be produced in proof of the contents of the public documents or parts of the public documents of which they purport to be copies.

It is not disputed that Ext. ''Cha'' is a certified copy of the sale deed executed by Syed Ali in favour of Jehiruddin. It, therefore, cannot be argued that Ext. ''Cha'' is not admissible in evidence.

That was also the decision by another Single Judge of this Court in Fazal Sheikh and Others Vs. Abdur Rahman Mea and Others, placing reliance in the decision of the AIR 1979 Gau 14 (supra) referred to above and in para 10 the same view has been taken holding mat public record of wakf deed which is a private document kept in office of Sub-Registrar is a public document as defined in Clause 2 of Section 74 of the Evidence Act and certified copy thereof is admissible in evidence. This AIR 1979 Gau 14 (supra) came ,up for consideration before a Division Bench of this Court in (1991) 1 GLR 197 (Shri Narattam Das and Ors. v. Md. Masaddar Ali Barbhuiyan and Ors.) and that decision was overrueld and in paras 5 and 6 of the judgment it has been held as follows:

In so far as the original sale deed is concerned, after it is registered under the Registration Act, it is not kept in the office of the Sub-Registrar. u/s 61(2) of the Registration Act, as soon as the registration is complete as is provided under the Registration Act, the Original sale deed shall be returned to the person who presented the same for registration or his nominee. Therefore, the Sub-Registrar is not required or is called upon to keep the sale deed, at all for any purpose under the law, and as such, the question of a public record of a private document does not arise. For these reasons, a private sale deed which has been registered shall not a public document within the meaning of Section 74(2) of the Evidence Act and, therefore, the provision u/s 77 is attracted. This view of our finds support from a decision of the Privy Council in AIR 1943 83 (Privy Council) In that case the Privy Council has held that the original receipt executed by any individual and registered under the Registration Act is not ''a public record of a private document'' within Section 74(2) as the original has to be returned to the party u/s 61(2) of the Registration Act We are, therefore, unable with the view expressed in the decision in Saimuddin v. Abezuddin AIR 1979 Gau 14.

For the reasons stated above, we overrule the decision of this Court reported as AIR 1979 Gau 14, Md. Saimuddin v. Abezuddin.

The same was the view taken by a Single Judge of this Court in (1992) 1 GLR 159 (United Bank of India v. M/s. Sarudhan Fish Refrigeration & Ice House of Digambar Chuck, Jorhat) where in para 8 relying in the judgment of the Division Bench of this Court laid down the law as follows:

In view of the above discussion, I held that a private deed even registered, cannot be a public document and therefore the provision u/s 77 of the Evidence Act is attracted. The mortgage deed in this case, executed by the Respondents and registered under the Registration Act is not a public record of a private document within Section 74(2) of the Evidence Act as the original has to be returned to the party u/s 61(2) of the Registration Act and therefore, the certified copy (Annexure-8) cannot be a valid document.

All these judgment quoted above did not consider the judgment of the apex court in Kalyan Singh Vs. Smt. Chhoti and Others, where in the apex court approved the decision of Rajasthan High Court in Kalyan Singh Vs. Smt. Chhoti and Others, and the finding of the High Court is quoted at para 23 and that is quoted below:

This takes us to the validity of the sale deed Ex. 3. The High Court rejected the document with the following observations:

Ex.3 is neither a certified copy given under any of the provisions of the Evidence Act nor is it a copy made from the original by any mechanical process. It also does not appear to have been made or compared from the original as there is no verification or endorsement of the kind and it does not come under clause 4 or 5 of Section 63 either. No one has given the oral account of the contents of the original document. If in place of primary evidence secondary evidence is admitted without any objection at the proper time then the parties are precluded from raising the question that the document has not been proved by primary evidence but by secondary evidence. But where there is no secondary evidence as contemplated by Section 66 of the Evidence Act then the document cannot be said to have been proved either by primary evidence or by secondary evidence.

Then in para 25 the Supreme Court has laid down the law as follows:

The High Court said, and in our opinion very rightly, that Ex.3 could not be regarded as secondary evidence. Section 63 of the Evidence Act mentions five kinds of secondary evidence. Clauses (1), (2) and (3) refer to copies of documents; Clause (4) refers to counterparts of documents and Clause (5) refers to oral accounts of the contents of documents. Correctness of certified copies referred to in Clause (1) is presumed u/s 79; but that of other copies must be proved by proper evidence. A certified copy of a registered sale deed may be produced as secondary evidence in the absence of the original. But in the present case Ex.3 is not a certified copy. It is just an ordinary copy. There is also no evidence regarding contents of the original sale deed. Ex.3 cannot, therefore, be considered as secondary evidence. The appellate court has a right and duty to exclude such evidence.

Ex. 1 in the instant case is squarely covered by the decision of the apex court and I am bound by that decision and as such, with all humility I accept this decision of the apex court as such I cannot follow the decision of the Division Bench in view of the decision of the apex court.

Mr. A.S. Choudhury, learned Counsel for Respondents relies on (1988) 1 GLR 342 (The State Bank of India, Imphal v. Laishram Mohan Singh and Anr.) and more particularly he relies in paras 13 and 14 of the judgment and that is quoted below:

As regards the proof of contents of a document, the Supreme Court, in Ramji Dayawala and Sons (P) Ltd. Vs. Invest Import, has held:

Undoubtedly, mere proof of the handwriting of a document would not tentamount to proof of all the contents or the facts stated in the document. If the truth of the fact stated in a document is in issue more proof of the handwriting and execution of the document would not furnish evidence of the truth of the facts or contents of the document The truth or otherwise of the facts or contents so stated would have to be proved by admissible evidence, i.e. by the evidence for the truth of the facts in issue.

Therefore, mere proof of the handwriting of the document or signature of the executant would not tentamount to prove all the contents or facts stated in the document if the truth of the facts stated in the document is an issue. In such a case, the truth or otherwise of the facts or contents as stated have to be further proved by admissible evidence.

Mr. Choudhury, learned Counsel for Respondents further submits that even if the Ext.1 is admitted as evidence the contents will not go. This contention is answered by the Supreme Court itself where it is stated that correctness of certified copies to in Clause (5) is presumed u/s 79 of the Evidence Act In the case of a certified copy there is no need to give an oral account of the contents of the original document as it is duly certified by the competent authority. Section 74 of the Evidence Act while describing kind of public document deem to be records kept in any State of the private documents (sub-Section (2) of Section 74). According to Sub-section (2) of Section 74 of Evidence Act public records kept in any State of Private documents are to be treated as public documents. The question is whether the copy of the sale deed registered is a public document. The answer must be positive in view of the law laid down by the apex court. Section 52(1) (c) of the Registration Act, 1908 requires every document admitted to register shall be kept in the appropriate book, Section 51 (2) of the Registration Act provides for sale deed entered in the book of the Registration Office. Whether copies of sale deed admitted to register are public documents. u/s 57 of the Registration Act, authority is given to give certified copies of an entry made in the register. Sub-section (5) of Section 57 lays down that all the copies supplied under this section shall be signed and sealed by the officer and shall be admissible for the purpose of proving the contents of the original.

While holding that a certified copy of sale deed is admissible in evidence, it should be borne in mind that there is difference in admissibility and probative value of documents. Admissibility of a document is one thing and its probative value quite another. These two things cannot be combined. A document may be admissible and yet may not carry weight. A proof of document is something which is independent from the evidentiary value of the document, (see State of Bihar Vs. Radha Krishna Singh and Others, . There may be a situation where the execution of a sale deed may be denied by the vendor, or heirs or by some one who steps in his shoes, in such a situation the execution must be proved as required u/s 67 of the Evidence Act, mere production of the certified copy of a sale deed will not be sufficient.

Mere filing of a document in a court is not enough to make the document a part of the record. There is still a preliminary matter to be attended to, before the contents of a document can be read as evidence. This is called the authentication of the writing or proof of its genuineness as required u/s 67 of the Evidence Act. It is not the legislative mandate that direct evidence of handwriting was always necessary u/s 67 of the Evidence Act. The section does not lay down any rule as to the kind of proof to be given. It follows from Section 67 that no particular kind of proof is required for the purpose of establishing the fact of execution or the contents of the document. It must nevertheless, must be shown to the satisfaction of the court the particular facts needs to be established. Generally following are the kinds of proof of writing or signatures:

i) By calling a person who signed or wrote document.

ii) By calling a person in whose presence the document was signed or written.

iii) By calling a handwriting expert.

iv) By calling a person acquainted with the handwriting of the person by whom the document is signed or written.

v) Comparison by the court u/s 73 of Evidence Act.

vi) By proof of an admission by the person who is alleged to have signed or written it.

vii) By any other acceptable methods/kinds allowable by law to the satisfaction of court including circumstantial evidence.

As pointed out by the apex court in Dattatraya Vs. Rangnath Gopalrao Kawathekar (Dead) by his legal representatives and Others, what facts and circumstances have to be established to prove the execution of a document depend on the please put forward. If the only plea taken is that the executant has not signed the document and the document is forgery, party seeking to prove the execution of a document need not adduce evidence to show that the party who signed the document knew the contents of the same. If there is a plea regarding contents, it may be necessary to place materials regarding contents and knowledge of the executant of the contents.

The next question is the presumption of execution under Registration Act and how far it despenses with the proof as required u/s 67 of the Evidence Act. The Sections throwing light on this are the Sections 58, 59 and 60 of the Registration Act. Section 58 provides for particulars to be endorsed on documents admitted to registration, Section 59 provides that the endorsements are to be dated and signed by registering officer, Section 60 provides for certificate of registration. The law on this point is that presumption u/s 60(2) of the Registration Act cannot take the place of proof as required by Section 67 of the Evidence Act when witnesses are available to prove the document in the manner as laid down in Evidence Act. If that is not adhered to it may open a floodgate of fraud and a court has a duty/obligation to close it. A certified copy usually will be a weak piece of evidence and it can never take place of the original, the original has its own worth and value as a piece of evidence. Under the Registration Manual signatures/thumb impression of the executant are to be taken in a Register by the Registering Officer, in case of certified copies even that may be proved.

This being the position, I allow this Second Appeal by setting aside the impugned judgment and decree dated 22.8.94 passed in Title Appeal No. 2 of 1993 by the learned District Judge at Karimganj. No costs.