1 IN THE HIGH COURT OF BOMBAY AT GOA WRIT PETITION NO.15 OF 2010 Shri Heriberto Francisco Maria D'Cunhaalias Heriberto D'Cunha, Bachelor, s/o Joaquim A.M.R.D., D'Cunha, landlord, resident of H.No.363, Ankur Luis Ward, Carmona, Salcete – Goa, since deceased through his Legal Representatives : 1a. Josce Comenio Luis, major in age, married, Advocate, resident of H.No.363, Ankur Luis Ward, Carmona, Salcete -Goa, 1b. Niceta Luis Linhares, major in age, housewife, resident of H.No.363, Ankur Luis Ward, Carmona, Salcete-Goa, 1c. Eufrida Luis, major in age, housewife, resident of H.No.363, Ankur Luis Ward, Carmona, Salcete-Goa. .. Petitioners. Versus 1. Shri Victor Luis Monteiro, son of Joaquim Monteiro, aged about 38 years, bachelor, businessman, resident of H.No.70, Cuelim, Cansaulim, Goa 2. Shri Francisco Alberto Lourenco D'Cunha, bachelor, landlord, resident of H. No.40, Costa Ward, Cuelim, Cansaulim, Goa. 2 3. M/s Sociedade de Fomento Industrial Ltd., a Company incorporated under the Indian Companies Act, 1956 having registered office at Erasmo Carvalho Street, Margao Goa. 4. Smt. Aida Berta Dos Remedios Cunha e Gomes, Resident of H. No.207, Ultimo Part Ward, Post Office Majorda, (deceased) through her legal heirs 5. William Gomes and his wife 6. Smt. Zaria Dias Gomes, both residents of Gomes Bldg. First Floor, Dr. D. N. Shah J.S.S. Road, Chitra Bazaar, Mumbai 400 002. 7. Smt. Julia Francisco R. Cunha Costa, and her husband 8. Shri Ramiro Abreu Costa, both residents of Opposite Red Roof Hotel, Margao -Goa. .. Respondents Mr. A. F. Diniz, Advocate for the petitioners. Mrs. Agni,Advocate for the respondent No.1. Mr. I. Aga, Advocate for the respondent No.2. Mr. M. S. Usgaonkar, Senior Advocate with Ms A. Razaq, Advocate for the respondent No.3. Mr. V. P. Thali, Advocate for the respondent No.6. 3 Coram :- A. P. Lavande, J. Reserved on :- 2 nd September,2010 Pronounced on :- 15 th September,2010 JUDGMENT : Heard learned Counsel for the parties. Rule. By consent, heard forthwith. 2. By this petition, the petitioners have challenged the order dated 15th December, 2009 passed by Civil Judge, S.D., Vasco in Special Civil Suit No.65/1997/B dismissing the application dated 16th April, 2009 filed by the petitioners / plaintiffs seeking leave to produce certified copy of the gift deed dated 24th November, 1975. 3. The petitioners are the legal representatives of Heriberto Francisco Maria D'Cunha alias Heriberto D'Cunha, who filed the above referred suit against the defendants seeking declaration and consequential reliefs. 4. The petitioners filed an application dated 16th April, 2009 seeking leave to produce certified copy of the said gift deed on the ground that although the petitioners were in possession of original deed of gift, the last page of 4 the deed was missing and could not be traced. The petitioners, therefore, sought leave to produce a certified copy of the said deed, which was objected to by defendant Nos. 1,2,3,7 and 8. The Trial Judge dismissed the application on the ground that the petitioners were not entitled to produce certified copy of the gift deed and predicates of Section 65 of the Indian Evidence Act were not fulfilled. 5. Mr. Diniz, learned Counsel appearing for the petitioners submitted that the defendants, who opposed the application did not seriously challenge the existence of the gift deed, but they challenged its validity on various grounds like fraud etc. Mr. Diniz, learned Counsel further submitted that since the gift deed is compulsorily registrable under the Registration Act, 1908, in terms of Section 57(5) of the Registration Act, the petitioners are entitled to produce certified copy. In support of his submission, learned Counsel placed reliance upon the judgment of the Apex Court in the case of Cement Corporation India Vs. Purya and others; (2004)8 SCC 270. He further submitted that Section 65(c), (f) are not merely exclusive. In support of this submission, learned Counsel relied upon the judgment of the Apex Court in Marwari Kumhar and others Vs. Bhagwanpuri Guru Ganeshpuri and another; (2000)6 SCC 735. 5 6. Per contra, Mrs. Agni, learned Counsel for respondent No.1 submitted that the defendants have not admitted the execution of the gift deed and the petitioners have not led any evidence to establish that the last page of the gift deed is missing and, therefore, the petitioners are not entitled to lead secondary evidence. According to Mrs. Agni, the petitioners are not entitled to lead secondary evidence in terms of Section 65 of the Indian Evidence Act. Mr. Agha, learned Counsel for respondent No.2 placing reliance upon the replies filed on behalf of defendant Nos. 1, 2, 7 and 8, submitted that the said defendants have not admitted the execution and authenticity of the gift deed dated 24th November, 1975. He, therefore, submitted that no fault could be found with the impugned order. 7. Mr. Usgaonkar, learned Senior Counsel appearing for respondent No.3 submitted that the Trial Court has rightly passed the impugned order, and more particularly placed reliance upon the paragraph 16 of the impugned order in which the Trial Court has held that the Power of Attorney pursuant to which the gift deed was executed by the duly constituted attorney having not been produced, the document is incomplete and hence, not admissible in 6 evidence. Learned Counsel further submitted that the judgment in the case of Cement Corporation of India relied upon by Mr. Diniz is in different context and as such, not applicable in the present case. Mr. Thali, learned Counsel for respondent No.6 adopted the arguments advanced by Mr. Usgaonkar. 8. I have considered the rival submissions and perused the record. 9. By an application dated 16th April, 2009, the petitioners/ plaintiffs contended that last page of the original gift deed dated 24th November, 1975 was missing and, therefore, the petitioners/ plaintiffs be permitted to produce certified copy of the same. 10. In Cement Corporation of India Ltd. (supra), a five judges' bench of the Apex Court while dealing with reference made on account of conflict between two three judges' bench of the Apex Court in paragraph 20 observed as follows : “20. The above view of the Court in Kurra Sambasiva Rao case, in our opinion, is not the 7 correct position in law. Even prior to the insertion of Section 51-A of the Act the provisions of the Evidence Act and the Registration Act did permit the production of a certified copy in evidence. This has been clearly noticed in the judgment in Narasaiah case wherein the Court relying on Sections 64 and 65(f) of the Evidence Act read with Section 57(5) of the Registration Act held that production of a certified copy of a registered sale document in evidence was permissible in law even prior to insertion of Section51-A in the LA Act. We are in agreement with the said view expressed by this Court in Narasaiah case.” 11. Section 65(f) of the Indian Evidence Act, 1872 permits giving of secondary evidence of the existence, condition or contents of the document when the original is a document of which a certified copy is permitted by this Act, or by any other law in force in India to be given in evidence. 12. It cannot be seriously disputed that the certified copy of the gift deed dated 24th November, 1975 has been given in terms of Section 57(5) of the Registration Act,1908. Section 57 of the Registration Act reads thus : 57. Registering officers to allow inspection 8 of certain books and indexes, and to give certified copies of entries.- (1) Subject to the previous payment of the fees payable in that behalf, the Books Nos. 1 and 2 and the Indexes relating to Book No.1 shall be at all time open to inspection by any person applying to inspect the same; and, subject to the provisions of section 62, copies of entires in such books shall be given to all persons applying for such copies. (2) Subject to the same provisions, copies of entries in Book No.3 and in the Index relating thereto shall be given to the persons executing the documents to which such entries relate, or to their agents, and after the death of the executants (but not before) to any person applying for such copies. (3) Subject to the same provisions, copies of entries in Book No.4 and in the Index relating thereto shall be given to any person executing or claiming under the documents to which such entries respectively refer, or to his agent or representative. (4) The requisite search under this section for entries in Book Nos. 3 and 4 shall be made only by the registering officer. (5) All copies given under this section shall be signed and sealed by the registering officer, and shall be admissible for the purpose of proving the contents of the original documents. 13. In view of the judgment of the Apex Court, which 9 is squarely applicable in the present case, I am of the considered opinion that the learned Trial Judge exercised jurisdiction illegally while passing the impugned order. In terms of the law laid down by the five Judges' Bench's judgment of the Apex Court in Cement Corporation of India Limited, the petitioners are entitled to produce certified copy of the gift deed dated 24th November, 1975. 14. Upon a plain reading of Section 65(f) of the Indian Evidence Act, 1872 and Section 57(5) of the Registration Act, and in view of the ratio laid down in the case of Cement Corporation of India Ltd. (supra), it is evident that the petitioners are entitled to produce certified copy of the gift deed dated 24th November, 1975. Mr. Diniz is also right in placing reliance upon the judgment of the Apex Court in the case of Marwari Kumhar (Supra) in which the Apex Court has held that clause (c) of Section 65 is independent of clause (f). In view of the clear ratio laid down by the Apex Court in the case of Cement Corporation of India (supra), which is clearly applicable in the present case, I do not find any merit in any of the submissions made by the learned Counsel appearing on behalf of the respondents. As stated above, in terms of Section 65(f) of Indian Evidence Act and Section 57(5) of the Registration Act, the plaintiffs are 10 entitled to produce a certified copy of the gift deed dated 24th November, 1975. Insofar as the argument of Mr. Usgaonkar that since the petitioners have not produced the Power of Attorney through which the gift deed was executed by the Donor and as such the document is incomplete is concerned, I find no merit. Since the petitioners/ plaintiffs seek to produce a certified copy of the registered gift deed, they are entitled to produce the same in evidence. No doubt, the defendants in the suit are entitled to raise contentions available in law after the certified copy of the gift deed dated 24th November, 1975 is produced on record. 15. In view of the above discussion, the impugned order dated 15th December, 2009 is quashed and set aside. Rule is made absolute in the aforesaid terms. Having regard to the facts and circumstances of the case, the parties are directed to bear their own costs. 16. Interim relief granted on 8th January, 2010 stands vacated. Parties either personally or through their Counsel shall appear before the Trial Court on 29th September, 2010 at 10.00 a.m. A. P. LAVANDE, J. SMA 11 17. At this stage Mr. Usgaonkar learned Senior counsel appearing for Respondent no.3 seeks stay of the order on the ground that respondent no.3 wants to approach the Apex Court. 18. The prayer has been opposed by Mr. Diniz, learned counsel appearing for the petitioners. 19. Considering the facts and circumstances of the case, the impugned order shall not be acted upon for a period of four weeks. Thereafter, the stay shall automatically stand vacated and no further extension shall be granted. However, the parties shall appear before the trial Court as directed. A. P. LAVANDE, J. SMA