1 NMS.3763.07-S.1810.96.sxw mnm IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION NOTICE OF MOTION NO.3763 OF 2007 IN SUIT NO. 1810 OF 1996 Mrs. Aruna Preet Mohan Singh & Anr. ...Plaintiff Vs. Ramesh Raghunath Joshi & Ors. ...Defendants Mr. J.P. Sen a/w. Mr. Birendra B. Saraf, Advocates i/b. M/s. Federal & Rashmikant for the Plaintiff Mr. S.U. Kamdar, Sr. Advocate a/w. Ms. Anita Castelino a/w. Ms. Alisha R. Lambay a/w. Mr. Vikas K. Singh, a/w. Ms. Pooja Patil, a/w. Mr. Prafull Salvi i/b. Lambay & Co., for Defendants 1(a) and 1(b) Ms. Aakansha Thakkar i/b. Purnanand & Co., for Defendant No.2 Mr. P. H. Manjrekar, Sr. Clerk from the Office of the Sub-Registrar-present on notice. CORAM : SMT. ROSHAN DALVI, J. DATED : 27TH JUNE, 2011 P.C. : 1. Mr. P.H. Manjrekar, Sr. Clerk, present. The witness has failed to produce both the documents directed to be produced on 14 th June 2011. The witness states that the original Indenture of Conveyance under Conveyance No.509/1986 is not traceable. The witness has not produced the day-register also. The witness is directed to go back to his office and get produced the original register. Kept Back to 3 p.m. At 3 p.m. 2. The witness Mr. P. H. Manjrekar, Sr. Clerk has appeared pursuant to 2 NMS.3763.07-S.1810.96.sxw witness summons issued upon him and has produced the office record, which is a photocopy of the Indenture of Conveyance dated 31 st January 1986 registered under No.509/1986. He has also produced the day-register No.29 mentioning entries of registration from 4 th December 1985 until 20 th June 1986 containing 100 pages. The relevant entry No.509 is shown by the witness at page No.89 of the register. It shows No.509 in the column of serial number, a conveyance Rs.1,75,000/- in the description of the property and the name of Malti J. Naoroji as the Vendor. It also shows No.1 in column No.5 showing one document executed. 3. The Defendant No.1 has taken out this Notice of Motion for being partially discharged, released and relieved from an undertaking given by her before this Court in Consent Terms dated 15 th January 2004 filed in this suit. She has applied for a modification of the Consent Terms to the extent of withdrawal of her undertaking for property at village Deonar, Taluka Kurla bearing CTS No.421/4 in Petition No.681 of 1995. 4. Two properties belonged to one Malti Jal Naoroji (Malti), since deceased. These were under CTS Nos.421/4 and 421/5 one of these properties under CTS No.421/5 was stated to have been sold by her during her life time to one Shanti Thadani. This was under an Indenture of Conveyance dated 31 st January 1986 lodged for registration on 31 st January 1986 upon its execution. The other property continued to belong to her during her life time. 5. The Plaintiffs are the heirs of Malti. The Plaintiffs contend that Malti 3 NMS.3763.07-S.1810.96.sxw left a Will dated 19 th April 1986, which was probated by them under a probate granted on 31 st January 1995. 6. The Predecessor-in-title of the present Defendants (the original Defendant Usha Ganesh Jategaonkar) is stated to be the domestic maid of Malti. She claimed that Malti executed another Will on 20 th December 1988 under which she left both the aforesaid properties to her. She has filed the Testamentary Petition on 20 th November 1995, which is pending for grant of probate. Citation has been served upon the Plaintiffs and a Caveat has been filed. It has been converted into a Testamentary Suit and is pending before this Court. 7. This suit is for declaration that the Will of Malti dated 20 th December 1988 is sham and bogus and for the consequent injunction and other ancillary reliefs. 8. The suit came to be settled under Consent Terms filed by the parties on 15 th January 2004. Under the Consent Terms the parties agreed that Malti was the absolute owner of the property under CTS No. 421/4. 9. The original Defendant No.1 was paid Rs. 50 lakhs in consideration of withdrawing her claim under the Will propounded by her, which was challenged in the suit. The Consent Terms recorded a development agreement entered into by the present Plaintiffs with Defendant No.2 in the suit on 14 th January 2004 and the fact that the original Defendant No.1 confirmed that she was in actual and physical possession of the servant’s quarter in the said property. The 4 NMS.3763.07-S.1810.96.sxw original Defendant No.1 confirmed that she had no right, title, interest, claim or demand in the room in her occupation. She undertook to unconditionally withdraw the Testamentary Petition filed by her to probate the Will of Malti propounded by her. 10.The Consent Terms made no reference to the other property of Malti being CTS No.421/5. The present Defendants have challenged the Consent Terms upon a case that the original Defendant No.1 was misrepresented by being informed of the fact that the property under CTS No.421/4 was already sold by Malti in her life time. The Will sought to be probated by the original Defendant No.1 bequeathed both the properties (which are adjoining properties) to her. It is the case of the Defendants that since one of the properties was stated to have been already sold during the life time of Malti, she would have had no bequeatheble interest in the property and the bequest made under the Will propounded by the original Defendant No.1 would have been void. Consequently, the Defendants contend that they agreed to withdraw their right, title and interest and their claim under the Will propounded by them upon settlement with regard to only one property under CTS No.421/4, which was to be developed under the development agreement dated 14 th January 2004 recited in the Consent Terms. 11.The Defendants contend that if the other property was not sold, it could have been bequeathed to the original Defendant No.1 under the Will propounded by her and that bequest would not have been void so that their claim would not have been settled by the original Defendant No.1 as shown in the Consent Terms, which dealt with 5 NMS.3763.07-S.1810.96.sxw only one of the two properties. 12.The Defendants have sought to show that the other property under CTS No.421/5 was not sold during the life time of Malti and hence they should be relieved of their undertaking with regard to that property so that they should not be made to withdraw the Testamentary Petition filed by the original Defendant No.1. 13.The main aspect to be seen is whether or not property under CTS No.421/5 was sold during the life time of Malti. Malti expired on 1 st May 1989. Both parties have relied upon and produced copies of Indenture of Conveyance dated 31 st January 1986 executed by and between Malti and Shanti Thadani. The Conveyance is executed on a stamp paper issued on 30 th January 1986. The original Conveyance has been lost from the office of the Sub Registrar of Assurances. A certified copy was available. The parties have taken copies of the certified copy initially in various other proceedings and relied upon xerox copies of such certified copy. The Defendants have tendered a compilation showing the said document at various pages. The entire document is the same on all the pages except for a stamp of the lodging of registration. The document shows parties admitting execution before the Registry on 31 st January 1986. The stamp of lodging shows the document lodged under No.509/1/ of 201986. Aside from six non judicial stamp papers on which the document is executed no further stamp duty is shown to be paid thereon. The nonjudicial stamps are to the extent of Rs.17,500/-. The consideration under the conveyance is of Rs.1,75,000/- which is recited in full. The 10% stamp duty is, therefore reflected in the 6 NMS.3763.07-S.1810.96.sxw nonjudicial stamp papers upon which the document is executed entitling it to be registered. The transfer is accordingly completed. 14.The Defendants contend that there was no transfer of the property under CTS No.421/5. They also contend that the relevant entry in the records of the Sub Registrar, which is maintained in the Day- register was not shown and produced and since a copy of the document relied upon by the Plaintiffs did not show the stamp of registration on each page, the Plaintiffs fail to show valid transfer. 15. The Defendants also contend that the stamp of registration in the copy of the document relied upon them showed an interpolation in the year 1986. This interpolation, if at all, is sought to be shown essentially only on page 1. Mr. Kamdar drew my attention also to page 4 of the document to show certain interpolation, but which is not seen to be so. He also showed that there appears to be interpolation in the stamp on the last but one page of the document where the parties admitted execution of the document before the Registrar. Similar is the case on the last, but second page. It may be mentioned that this interpolation is not on all the stamps on all the pages. Stamps at page Nos.2, 3, 5, 6, 7, 8, 9, 10, 11, 12, 13, 14, 15, 16, 17, 18 & 21 do not show any interpolation at all. 16.An officer from the Sub Registrar’s office has produced before the Court the copy of the document kept in the Sub-Registrar’s office which is from the official public record. It is not the original document, it is not a photostat copy. It is however, a photo copy of the original document lodged for registration and registered and 7 NMS.3763.07-S.1810.96.sxw kept in the office of the Sub-Registrar. Since it is a photo copy the difference in ink, if at all by way of interpolation cannot be seen. Only after the original document is produced would the Defendants be able to show such interpolation by any different ink. 17.It may be mentioned that even in the absence of the original document and from the record produced from the office of Sub Registrar of Assurances it is clear that Indenture of Conveyance dated 31 st January 1986 was lodged for registration upon it being stamped with 10% of the consideration mentioned in the document at the time of registration itself when the parties admitted execution of the document before the Registrar. 18.The last page of the document produced by the Registrar shows payment of additional stamp duty of Rs.31,700/- on 18 th February 1994, which is after the death of Malti. 19.The relevant document produced by the officer is the Day-register. It is a register of 100 pages. The register begins with entries of 4 th December 1985 and ends with entries of 20 th June 2006. Entry No. 509 of 1986 shows the sale deed, conveyance and the amount of consideration of Rs.1,75,000/- showing the description of the document and the name of Malti as the seller. It shows one such document being executed. A note of the registration of the document has been made on 31 st January 1986. Entries from No.500 to 521 was made on that date. The entry is made in the normal course of the conduct of the Sub Registrar of Assurances. The entry shows undoubted execution of the conveyance adequately stamped and 8 NMS.3763.07-S.1810.96.sxw duly lodged for registration. 20.There is, therefore, no misrepresentation of that fact and no fraud played upon the Defendant No.1 with regard to the fact that one of the properties of Malti was sold during her life time. The exception taken by Mr. Kamdar on behalf of the Defendants and the exercise showing various xerox copies of the document including one copy without the rubber stamp showing registration, is therefore, entirely unnecessary. 21.The Indenture of Conveyance shows an order of the Government of Maharashtra dated 6 th February 2005 issued under the Urban Land Ceiling and Registration Act popularly called NA Order annexed to the Conveyance. That order shows S.M. Thadani as the Transferee of Survey No.82 part and 83 part CTS No.427 & 428 part of 7170.70 sq. mtrs in area. It is contended by the Defendants that even that NA order is fabricated. The Defendants have produced certain certified copies from the ULC Department showing not Thadani, but J.A.D. Naoroji Foundation Trust as the Transferee. They contend that, therefore, there is a fraud played by the Plaintiffs in showing the said NA order also. The plaintiffs have produced two NA orders of the same date 6 th February 1985 issued by the same department of the Government of Maharashtra, which are NA orders for two different properties. One is showing S.M. Thadani as the Transferee and the other shows JAD Naoroji Foundation Trust as the Transferee. The Defendants have contended and have been issued certified copies showing the first page of the order showing JAD Naoroji Foundation Trust with pages 2,3 and 4 of the order relating to S.M. Thadani. 9 NMS.3763.07-S.1810.96.sxw This is an obvious error of the ULC Department. The certified copies produced by the Plaintiffs make this position very clear. The Plaintiffs have obtained both the certified copies on the same date and have been issued two NA orders. 22.The Plaintiffs have also produced a certified extract of Index II showing execution of the document on 31 st January 1986 and its registration on 19 th February 1994 after the remainder of the required stamp duty was paid. 23.Mr. Kamdar also relied upon the fact that certain mutation entries were sought to be made showing the change of the name of the owner Malti. An application in that behalf came to be filed on 25 th July 1994 by Shanti Thadani, the transferee of the property for change of Revenue Records. A notice came to be issued by the Revenue Authorities on 2 nd September 1994 and was sought to be served upon the parties. Malti had already expired. One of her relatives accepted notice and signed the same on 7 th September 1994. Someone on behalf of Shanti Thadani also signed the same on that date. The Defendants contend that these signatures are different and, therefore, there is a fraud played upon the Revenue Authorities and them. In fact one Ingrid Malik has filed an affidavit in this suit stating that she was present at the site and had accepted the service of notice. The affidavit states that she was looking after the affairs of Aruna Malik who is the Plaintiff No.1 in the suit. She is stated to be her sister-in-law. She signed on behalf of the original owner. The heirs and legal representatives of the original owner have taken no objection. 10 NMS.3763.07-S.1810.96.sxw 24.That affidavit shows that on that date Shanti Thadani was present at the properties along with her. The affidavit shows that Shanti Thadani accepted the notice. The affidavit does not mention who signed on behalf of Shanti Thadani. It does not also mention that Shanti Thadani signed the copy of the notice. Much is made about the fact that Shanti Thadani was present and accepted the notice. Even if Shanti Thadani was present some one authorised by her could have signed the copy of the notice for and on her behalf as is shown. 25.Consequently, even the fraud sought to have been committed upon the notice issued by the Revenue Authorities pursuant to which the Revenue records came to be altered cannot carry the case of Defendants any further. The Defendants were not concerned with the change of names. The names of any of the Defendants was not to be entered in the Revenue Record. Neither Shanti Thadani nor the heirs of the original owner have disputed what took place. In fact the filing of the affidavit by Ingrid Malik shows that she was not a total outsider as is claimed by the Defendants. The order in the mutation entry made is not and cannot be challenged by the Defendants who are the heirs of the original Defendant No.1. 26.The representation made to the Original Department that one of the properties was sold by Malti during her life time was not false. There is no fraud played upon the Defendants. The Consent Terms, which have been executed in the suit filed by the Plaintiffs for declaration that the Will sought to be propounded by the original Defendant No. 11 NMS.3763.07-S.1810.96.sxw 1 was bogus shows consideration paid to the original Defendant No. 1 in respect of the only property which could have been bequeathed by Malti. Consequently, upon being paid that consideration she undertook to withdraw her probate petition and the testamentary suit, which she failed to do. 27.The original Defendant No.1 would be bound by her undertaking. She has accepted Rs.50 lakhs as consideration in settlement. The present Defendants who are her legal heirs and legal representatives and who claim that the action survived to them and are, therefore, made party Defendants are bound by the undertaking of their predecessor-in-title through whom they claim. Neither the original Defendant No.1 nor the present Defendants can, therefore, be allowed to resile from, be relieved from or be discharged from the Consent Terms. 28.The Notice of Motion is dismissed. 29.The original Day-register and the Indenture of Conveyance dated 31 st January 1986 produced by the officer of the Sub Registrar of Assurances from the public record kept by that office are returned to him. He is discharged as a witness to produce the documents. Parties are returned their respective certified copies of the documents produced by them. The xerox copies of the relevant portions of the Day-register and the copy of the Indenture of Conveyance dated 31 st January 1986 are kept on record. (SMT. ROSHAN DALVI, J.)