1. This second appeal under section 100 of the CPC, 1908 (for short " the CPC ") is at the instance of the original plaintiffs and is directed against the judgment and order dated 31st May, 2014 passed by the 11th Addl. District Judge, Rajkot in the Regular Civil Appeal No.100 of 2011 by which the lower appellate court dismissed the appeal preferred by the appellants herein thereby affirming the judgment and decree passed by the 7th Addl. Senior Civil Judge, Rajkot dated 19th November, 2011 in the Regular Civil Suit No.665 of 1994, dismissing the suit filed by the appellants herein for declaration and permanent injunction.

2. For the sake of convenience, the appellants herein shall be referred to as the original plaintiffs and the respondents herein shall be referred to as the original defendants.

3. One important aspect that needs to be noted is that the present second appeal has been filed by the original plaintiffs through their power of attorney holder, namely, Shri Naranbhai Jadavbhai Lalakiya.

4. The case of the plaintiffs:-

Their names came to be mutated in the revenue records vide Page 2 of 160 Downloaded on : Sat Jul 13 03:18:56 IST 2019 C/SA/183/2014 CAV JUDGMENT Entry No.817 dated 2nd January, 1984.

4.2 The plaintiffs instituted the Regular Civil Suit No.665/1994 for declaration and permanent injunction as they came to know that the defendants Nos.1 and 2 had put forward their claim to be the lawful owners of the suit land by virtue of a sale deed executed by the predecessor in title of the plaintiffs dated 25th February, 1965. The plaintiffs came to know that the sale deed was presented for registration after a period of about 11 months, i.e., on 25th January, 1966 in the office of the Sub-Registrar. It is the case of the plaintiffs that the sale deed dated 25th February, 1965, purported to have been executed by the predecessor in title of the plaintiffs in favour of the defendants Nos.1 and 2 and which came to be registered in the office of the Sub-Registrar on 25th January, 1966, is sham and bogus. According to the case of the plaintiffs, no such sale deed was ever executed by Kesar Sultan Sipai in favour of the defendants Nos.1 and 2. The plaintiffs disputed the contents of the sale deed as well as the valid execution of the same in the suit instituted by them in the Civil Court.

4.3 It is also the case of the plaintiffs that a deed of rectification allegedly executed by late Kesar Sultan Sipai for and on behalf of the plaintiffs is also illegal as the plaintiffs were minor at the relevant point of time. The purported deed of rectification is dated 16th September, 1967. Both these deeds, i.e, the sale deed as well as the rectification deed are on record as exhibits-140 and 141 respectively.

4.4 It is also the case of the plaintiffs that although the sale Page 3 of 160 Downloaded on : Sat Jul 13 03:18:56 IST 2019 C/SA/183/2014 CAV JUDGMENT deed and the rectification deed might have been executed by late Kesar Sultan Sipai in favour of the defendants Nos.1 and 2, yet, the sale deed never came to be acted upon or implemented. The plaintiffs have been in possession of the suit land all through out. According to the plaintiffs, for the first time, the defendants Nos.1 and 2 asserted their right, title and interest over the land on 26th April, 1991, i.e, after a period of 26 years from the date of execution of the sale deed.

4.5 It is the case of the plaintiffs that Kesar Sultan Sipai passed away on 17th December, 1983. The names of the plaintiffs came to be mutated in the revenue records vide revenue entry No.817 dated 2nd January, 1984. For the period between 1963-64 and 1983-84, the name of Kesar Sultan Sipai continued to figure in the revenue records, and at no point of time, the two documents, i.e, Exh.140 and the rectification deed, Exh.141, came on the revenue record. It is also the case of the plaintiffs that a notice under section 8(1) of the Urban Land Ceiling Act was served upon them in the name of Kesar Sultan Sipai. The notice is dated 9th October, 1988. The plaintiffs lodged their objections to the said notice, and on 28 th November, 1988, an opportunity of hearing was also given to the plaintiffs by the authorities under the provisions of the Urban Land Ceiling Act .

4.6 It is the case of the plaintiffs that on the same date, i.e., 28th November, 1988, upon the information conveyed to the competent authority under the Land Ceiling Act as regards the death of Kesar Sultan Sipai, a further notice under section 8(3) of the Act came to be issued to the plaintiffs, to which, the plaintiffs replied in accordance with law.

4.7 The plaintiffs also preferred an application under section 20 of the Urban Land Ceiling Act to the State Government claiming exemption from the provisions of the Act.

4.8 According to the case of the plaintiffs, the defendants Nos.1 and 2, for the first time, approached the revenue authorities for mutation of their names on the strength of the sale deed Exh.140 dated 25th February, 1965 and the rectification deed Exh.141 dated 16th September, 1967, i.e. almost after a period of 26 years.

4.9 It is the case of the plaintiffs that such developments and events came as a shock to them, more particularly, when they received the notice under section 135(D) of the Bombay Land Revenue Code. The plaintiffs appeared before the revenue authority and lodged their objections dated 10th June, 1991. The lodging of the objections culminated in the Disputed Case No.3 of 1991 in the office of the Mamlatdar, Rajkot.

4.10 The Mamlatdar, Rajkot, vide order dated 25th May, 1992, rejected the objections of the plaintiffs and certified the Entry No.1229 in favour of the defendants Nos.1 and 2.

4.11 The plaintiffs, thereafter, preferred an appeal before the Assistant Collector, Rajkot under the provisions of the Bombay Land Revenue Code, challenging the order passed by the Mamlatdar, Rajkot dated 25th May, 1992. The appeal preferred by the plaintiffs came to be partly allowed. The order, certifying the entry No.1229, came to be quashed by the Assistant Collector, Rajkot with a direction that part of the land Page 5 of 160 Downloaded on : Sat Jul 13 03:18:56 IST 2019 C/SA/183/2014 CAV JUDGMENT in question had been declared as excess under the provision of the Urban Land Ceiling Act and the same was liable to be forfeited to the State Government.

4.12 Ultimately, the plaintiffs thought fit to institute the Regular Civil Suit No. 665 of 1994 with a prayer to declare the sale deed, Exh.140 dated 25th February, 1965 and the rectification deed Exh.141 dated 16th September, 1967 as sham and bogus and not binding to the plaintiffs in any manner. The plaintiffs prayed for permanent injunction on the ground that they were in possession of the land from day one.

5. The case of the defendants Nos.1 and 2:-

The defendants also denied that the plaintiffs were in possession of the suit land. It is the case of the defendants that the suit land is not ancestral and, therefore, the plaintiffs cannot claim any right, title or interest through Kesar Sultan Sipai. It is also the case of the defendants that the father of the Page 6 of 160 Downloaded on : Sat Jul 13 03:18:56 IST 2019 C/SA/183/2014 CAV JUDGMENT defendants Nos.1 and 1/2 namely Bhikhalal Ramjibhai Patel had purchased the land in question from the father of the plaintiffs, namely, Kesar Sultan Sipai vide registered sale deed dated 25th February, 1965 by paying the full consideration, and since then, they are in possession of the land in question and carrying on agricultural work on the same. It is further the case of the defendants that said Bhikhalal Ramjibhai passed away in the year 1982. The defendants Nos. 2/1 and 2/2 are the legal heirs of said Bhikhalal Ramjibhai. It is the case of the defendants that over and above the defendants Nos.2/1 and 2/2, there are other legal heirs too of Bhikhalal Ramji. Although, they are the necessary parties, yet, they have not been joined as the defendants in the suit and, therefore, they prayed before the Civil Court that the suit is liable to be dismissed on the ground of nonjoinder of necessary parties. The defendants also took the plea that they purchased the land in question in the year 1965 and at that time, the procedure for change in tenure of the said land into residential purpose was pending before the office of the competent authority. Therefore, Sipai Kesar Suatan made the measurement of the land on 25/02/65 and he executed the agreement on the Stamp Paper of Rs.3.50/- by affixing his thumb impression stating that, if the land size would vary, the amount of Rs.2265/- per acre shall be paid towards the variation. It is the case of the defendants that as the land in question was in their possession since 25/02/65, an application was made for registering the land in the revenue record. Late Kesar Sultan Sipai had put his thumb impression for deleting his name from the land and the defendant No.1 and Bhikhalal Ramjibhai had also put their signatures. According to the defendants Nos.1 and 2, after Kesar Sultan Sipai & others Page 7 of 160 Downloaded on : Sat Jul 13 03:18:56 IST 2019 C/SA/183/2014 CAV JUDGMENT executed the deed in their favour on 25/02/65, they also made rectifications through the registered deed No.1201 dated:

It is also the case of the defendants that the land bearing Survey No.11 of Vavdi was handed over to them by the plaintiffs by a Registered Sale Deed dated 25/01/1966 and the said land has been converted into non-agricultural use for residential purpose by the Rajkot District Panchayat vide Revenue Binkheti No.200, dated 11/07/1965 and the plaintiffs have sold the said land admeasuring Acre-08, Gunthas-00 to Page 9 of 160 Downloaded on : Sat Jul 13 03:18:56 IST 2019 C/SA/183/2014 CAV JUDGMENT them. The said sale was confirmed by the Taluka Mamlatdar, Rajkot and the same was further affirmed by the Assistant Collector, Rajkot in the revenue appeal. The said land has been converted into non-agricultural land, but, as the said land falls within the provisions of the Ceiling Act and such cases are not yet disposed of, they are cultivating this non-agricultural land and particulars of the agricultural land are mentioned therein. As previous entry is not recorded in the revenue office in their names, the names of the plaintiffs are reflecting falsely in the revenue records. It was prayed that as the suit of the plaintiffs is false, frivolous and vexatious, the same may be dismissed with costs in favour of the defendants.

6. Having regard to the pleadings of the parties, the Civil Court framed the following issues vide Exh. 30:

10. The plaintiffs, being dissatisfied with the judgment and decree passed by the Civil Court, dismissing the suit, preferred the Regular Civil Appeal No.100 of 2011 in the Court of the District Judge at Rajkot. The Lower Appellate Court, upon re-appreciation of the oral as well as the documentary evidence, dismissed the appeal preferred by the plaintiffs and thereby affirmed the judgment and decree passed by the Civil Court, dismissing the suit. The Lower Appellate Court, in its judgment, observed as under:

Therefore, the Trial Court had not erred in arriving at the conclusion that the Appellants had no possession and therefore, the Issues No.1 to 3 were not proved by the Appellants. Therefore, the judgment and decree passed by the Trial Court cannot be interfered with by this Court. In view of the above said discussion, the detailed arguments advanced by the Ld. Advocate Mr. J.N. Doshi are dealt with substantially and some points of the arguments are not required to be dealt in detail because they are required to be dealt with in detailed only if this Court had believed that the Trial Court had falsely placed the burden of proving issue No.2 or other issues on the Appellants and also that the secondary evidence Page 13 of 160 Downloaded on : Sat Jul 13 03:18:56 IST 2019 C/SA/183/2014 CAV JUDGMENT was falsely permitted by the Trial Court.

24. As per the above stated discussion, this Court is of the view that the Trial Court had rightly placed the burden of proof on the Plaintiffs-Appellants and the Trial Court had also rightly permitted Ex.140, 141, 154 and 155 as secondary evidence. The Trial Court had not erred in treating Exh.154 and 155 because, the execution was legally proved by the employee of the Sub-Registrar office, Rajkot by producing the Government record and the said employee has no bias against any party. The Trial Court had rightly relied upon Ex.157 and 158 and has not overlooked any provisions of Law and the facts. Original Sale-Deed was proved by the secondary evidence and by oral evidence of Akbarbhai and Respondents also. Therefore, this Court is of the view that the Trial Court had not erred in passing the judgment and decree and Trial Court has passed the same in accordance with law and facts. The Judgment and Decree passed by the Trial Court is not suffering from any infirmity. It is not against the settled principle of Law. It is also not against the natural justice. Judgment and decree of the Trial Court cannot be interfered with, as per above stated discussion because, the Trial Court has rightly appreciated Law as well as the facts on the basis of oral as well as documentary evidence produced before the Trial Court. Therefore, reply to Issue No.1 and 2 are in the negative."

11. Being dissatisfied with the judgment and order passed by the Lower Appellate Court, dismissing the appeal, the original plaintiffs, through their power of attorney holder, are here before this Court with the present second appeal under section 100 of the CPC.

12. This second appeal has been admitted on the following substantial questions of law:

(C ) Whether the documents at Exh.140 dated 25.021965 and Exh.141 dated 16.09.1967 can be said to be document of transfer in absence of contents and considerations having been proved?

(D) Whether the learned Courts below have materially erred in law in not appreciating the legal contention that mere registration of document is not a proof of its execution?

(E) Whether the learned Courts below have materially erred in law in not deciding the issue of possessionn in favour of the plaintiffs-appellants despite voluminouss documentary evidence on record and none produced much less proved by the respondents defendants by any documentary or oral evidence?

(F) Whether the learned Courts below have materially erred in law and in facts in not accepting the contention of appellants original plaintiffs that documents Exh.140 and Exh. 141 cannot be said to have been proved in the facts of the case in view of the glaring infirmities, in view of Sections 71 and 101 of the Evidence Act?

(G) Whether under the provisions of Section-23 of the Registration Act, a document of sale, transfer can be registered after a period of four months from the date of execution?

(H) Whether the property could have been sold in absence of consent of two minors and without consent and approval of the learned District Court?"

C. Pending admission, hearing and final disposal of the Second Appeal, Your Lordship may be pleased to direct the respondents, their agents, employees, servants, attorneys not to in any way transfer, alienate, mortgage, encumber and/or create charge over the land in question bearing Survey No.11/p/9 admeasuring about acre 8-0 gunthas situated at Village-Vavdi, Taluka & District:

The request made by the respondent was opposed by the appellants. However, the Mamlatdar mutated the names of respondents. The said decision was challenged by the present applicants/appellants by way of filing an appeal before the concerned Deputy Collector. The Deputy Collector allowed the appeal preferred by the present applicants/appellants and entered their names. This order in favour of applicants has become final.

5 Having come to know, the appellants/plaintiffs filed a suit, being Civil Suit No 665 of 1994, before the learned Senior Civil Judge at Rajkot and prayed to pass a decree to declare that sale deed dated 25.2.1965 is not a valid one. It was further prayed that the possession of the appellants shall not be disturbed. The said suit was dismissed. During the pendency of the suit, the parties were directed to maintain status quo. The said decision came to be challenged by the original plaintiffs by way of filing an appeal, being Regular Civil Appeal No.100 of 2011, before the learned Additional District Judge, Rajkot, which came to dismissed.

6 I have also considered that the sale deed in question is of 25.2.1965, which is registered on 25.1.1966 i.e. after a period of 11 months. However, neither the defendants nor the office of the Registrar has produced the original copy of the sale deed before the trial court. I have also considered the fact that the appellants have participated in the proceedings issued under the provisions of the Urban Land Ceiling Act, 1977 . I have also considered the fact that the respondents came for mutating their names in revenue record after 26 years from the execution of the disputed sale deed, and after seven years from the date of death of their father who expired in 1984. I have also gone through the sale deed of 1965, which does not find any thumb impression or signatures of the executors. Considering this aspect, I am of the opinion that the present application requires consideration. Hence, the following order is passed.

Application is accepted. The parties are hereby direct to Page 17 of 160 Downloaded on : Sat Jul 13 03:18:56 IST 2019 C/SA/183/2014 CAV JUDGMENT maintain status quo till the final hearing of the appeal. Rule made absolute accordingly 7 Request made by Mr. Kavina to permit the respondents to develop the property/transfer the property subject to decision of Appeal is hereby rejected. "

which entire amount the Plaintiffs had received from the attorney. It was therefore recorded that if the attorney sold, transferred, leased or gifted the land, the Plaintiffs would have no further claim to receive any consideration. In paragraph 11 it was recorded that the Plaintiffs had become owner - possessor of the suit land. Paragraph 12 in unequivocal terms declared that the PoA was irrevocable and that the Plaintiffs would not revoke such power in future. Paragraph 14 recorded that the document contains stamp of Rs.9,600/-.

11. In clear therms thus the PoA was meant to be irrevocable and that it was coupled with consideration. As noted earlier even the Plaintiffs did not dispute either the execution or the validity of such document till the present proceedings arose in these Civil Applications. Before the trial court the Plaintiffs as well as the attorney gave their depositions. Their depositions were in tune with each other. The Plaintiffs' witnesses did not dispute the contents of the PoA or the stand that the sale deed of the year 1965 was according to the Plaintiffs and the attorney illegal and fraudulent. First Appeal was filed by the attorney for and on behalf of the Plaintiffs so was the Second Appeal. It appears that there were other parallel proceedings filed before the revenue authorities and even before the police authorities where it was the PoA who had appeared for and on behalf of the Plaintiffs.

12. The fact that the Plaintiffs in absence of any such PoA were always entitled to compromise the disputes between the Defendants, and in terms of any such compromise, seek withdrawal of the Second Appeal, and consequential confirmation of the judgment and decree of the court below is undeniable. However, when the Plaintiffs had given the irrevocable PoA coupled with consideration, in my opinion they had no independent right thereafter to compromise the disputes with the Defendants. As noted the power was focused with respect to the suit lands. It was coupled with consideration and it authorised the attorney to take all steps needed to prosecute the suit and all actions needed in connection with the suit lands.

13. Section 201 of the Contract Act pertains to termination of agency and provides inter alia that an agency can be terminated by the principal revoking his authority. Section 202 of the Contract Act however provides that where the agent has himself an interest in the property which forms the subject-matter of the agency, the agency cannot, in the absence of an express contract, be terminated to the prejudice of such interest. It is in this context it is held that if a PoA is irrevocable and is coupled with consideration, it cannot be revoked. It was in this context that the Division Bench of this Court in case of Her Highness Maharani Shantadevi v. Savjibhai H. Patel and ors. (supra) held that the principal cannot revoke the authority given to his agent Page 21 of 160 Downloaded on : Sat Jul 13 03:18:56 IST 2019 C/SA/183/2014 CAV JUDGMENT after the authority has been partly exercised, so far as regards such action / obligation as arise from acts already done. Likewise in case of Seth Loon Karan Sethiya v. Ivan E. John and ors. (supra) the Supreme Court held that the PoA was coupled with the interest and that therefore the same was not revocable. It was further held that the transaction entered into under the document amounts to an equitable assignment of the decree in favour of the Bank to the extent necessary to discharge appellant's debts to the Bank and that therefore it was open for the Bank to execute the decree in its own right.

14. The decision cited by Shri Sunit Shah in case of Dev Ratan Biswas & Ors. v. Most. Anand Moyi Devi & Ors. as noted earlier was not rendered in the background of the revocable PoA. It was therefore held that execution of general PoA would not divest the principal of his rights to consult his attorney before signing a compromise petition. Likewise in case of Suraj Lamp and Industries Private Limited v. State of Haryana and anr. (supra) the issue was entirely different. It was held that a transfer of immovable property by way of sale can only be by a deed of conveyance (sale deed). In the absence of a deed of conveyance duly stamped and registered as required by law, no right, title or interest in an immovable property can be transferred. The court was commenting on the trend of transferring title in immovable properties through PoA and wills without payment of full stamp duties. The question of cancellation of PoA by the principal which was coupled with consideration was not an issue.

15. In view of such discussion, I am of the opinion that it is not open for the Plaintiffs to seek withdrawal of Second Appeal on the ground that the disputes have resolved between the Plaintiffs and the Defendants. Any such permission would amount to allowing the Plaintiffs to withdraw the PoA which as noted is irrevocable. If the Plaintiffs were of the opinion that such PoA was not valid it was for them to take out appropriate legal proceedings. Having not raised any dispute about the legality and validity or acceptance of consideration under the PoA right from the date of its execution in the year 1995, they cannot simply wish away the document by raising a stand nearly 30 years later contending that they had in Page 22 of 160 Downloaded on : Sat Jul 13 03:18:56 IST 2019 C/SA/183/2014 CAV JUDGMENT fact not received any consideration or that in any case the PoA was not valid in law.

16. Having said that I cannot accept the request of the Applicant to be either impleaded in his own independent capacity or to be shown as a sole Appellant. It would amount to recognizing his locus in the litigation in his individual capacity. In my opinion he derives his right and interest only through the Plaintiffs. His interest cannot travel beyond those of the Plaintiffs. The Second Appeal can succeed only if the Plaintiffs had any right and his attorney. The attorney can prosecute the cause on behalf of the Plaintiffs but only to the extent the Plaintiffs themselves could. Nothing more, nothing less. His prayer in the present Civil Applications in the present form cannot be granted. However, as noted earlier, since I am not inclined to allow the Plaintiffs to withdraw the Second Appeal, this issue would become one of academic interest. In the result, both the Civil Applications are dismissed. "

rule(1), or

(b) withdraws from a suit or part of a claim without the permission referred to in sub-rule (3), he shall be liable for such costs as the Court may award and shall be precluded from instituting any fresh suit in respect of such subject-matter or such part of the claim.

16. Thus, clause (b) of sub-rule (4) of Rule 1 of Order 39 provides that when the suit is withdrawn without the permission, it will be subject to the cost and may not be permitted to institute. The provision of Order 23, Rule 1(4) provides that even the Court may not permit one of the plaintiffs to withdraw without the consent of other plaintiffs. Thus the provision of Order 23, Rule 1 of the Code are based on public policy that it does not give an opportunity to a litigant to abuse the process of the Court. The consideration for grant of permission to withdraw the suit at the appellate stage are totally different than considerations, which are available to the trial court. In other words, while withdrawing the suit with a liberty to file fresh suit as referred to in Order 23, Rule 1 of the Code stands on a different footing than seeking permission for withdrawal of the suit, which has been adjudicated by a judgment at the appellate stage. If it is permitted, it would amount to recalling of the order adjudicating the issues between the parties in the appeal. If the appellate court in exercise of appellate jurisdiction is satisfied then, it can set aside the judgment but permitting withdrawal of the suit amount to recalling of the order adjudicating the suit by the trial court, which stands on a different footing. This is not envisaged or provided in the Code of Civil Procedure and while providing for withdrawal of the suit under Order 23, Rule 1 of the Code of Civil Procedure , the provisions have Page 24 of 160 Downloaded on : Sat Jul 13 03:18:56 IST 2019 C/SA/183/2014 CAV JUDGMENT been made with detailed procedure and subject to the permission by the Court. If such permission is granted, it would amount to reading in the statute or adding to statute like Civil Procedure Code, which is not contemplated or provided by the Legislature.

17. A useful reference can be made to the judgment of the Hon'ble Apex Court in case of Byram Pestonji Gariwala Vs. Union Bank of India & Ors. , reported in AIR 1991 SC 2234, wherein referring to the provision of the Order 3, Rule 1, the Hon'ble Apex Court provides that it includes Counsel or agent of party, who can compromise and it is binding to the party. Thus in our judicial system, when there is an irrevocable power of attorney granted in favour of a person like Power of Attorney Holder, it is required to be considered whether he will have an interest and right or not. Again specific provision of the Indian Contract Act in the form of Sections 202 and 203 are required to be considered. The provision of Section 202 of the Indian Contract Act provides,

202. Termination of agency where agent has ank interest in subject matter.- Where the agent has himself an interest in the property which forms the subject-matter of the agency, the agency cannot, in the absence of an express contract, be terminated to the prejudice of such interest.

18. Thus it clearly provides that when an agent has an interest in the property, which forms the subject matter of the agency, the agency cannot be terminated to prejudice of such interest. Section 203 of the Contract Act refers to the revocation of such authority but it is provided that it is subject to the preceding Section ie. Section 202 of the Contract Act. Reference can also be made to the provision of Order 23, Rule 3, which referred to the compromise of the suit. Again in this provision, such a compromise has to be to the satisfaction of the Court and Explanation refers to the provision of the Indian Contract Act . It is in this background, when the suit has been filed by the appellants themselves but irrevocable power of attorney has been given with regard to the same property or the subject matter, the power of attorney holder in exercise of such authority having pursued the litigation claiming an interest in the subject Page 25 of 160 Downloaded on : Sat Jul 13 03:18:56 IST 2019 C/SA/183/2014 CAV JUDGMENT matter, cannot be prejudiced by the principal altering the position or disregarding such authority or the rule of agency. It is well accepted that as per the Contract Act and law of agency, mutual rights and obligation cannot be avoided and irrevocable power of attorney given by the principal, cannot be set at naught at a later stage when the agent has created an interest in the subject matter. No doubt, the principal has right to terminate the agency but it will be subject to the facts of the case. Meaning thereby, when on the basis of such power and authority given by the principle, agent has taken further steps and has altered his position or has created an interest qua third party or otherwise, it cannot be brushed aside or cancelled by the principal as the law of agency is based on the concept of contractual obligation and the mutuality. It is in this background, the permission, which is sought in the present Civil Application for withdrawal of the suit at the stage of appeal after it has been adjudicated upon by the trial court, cannot be permitted. It appears that as contended, the appellants having arrived at some settlement with third party or subsequent purchaser, it would not affect the steps taken pursuant to the relationship of agency between the principal and the agent like in the present case by the appellant and the Power of Attorney Holder. Moreover, it would also raise an issue of estoppel when parties have altered position whether either party can be allowed to back out causing prejudice to other side.

19. Moreover in the present case, earlier Civil Application No.8169/2015 with Civil Application No.8249/2015 was considered and same issue was addressed before the High Court and the High Court (Coram : Akil Kureshi, J.) vide order dated 10.08.2015 declined the permission. It has been specifically observed, However, when the Plaintiffs has given the irrevocable PoA coupled with consideration, in my opinion they had no independent right thereafter to compromise the disputes with the Defendants. Reference has been made to earlier judgment and pronouncement of the Hon'ble Apex Court including the observations made referring to the background of the case. It has been clearly reflected that the plaintiff is seeking withdrawal of the Second Appeal on the ground that the disputes have resolved between the plaintiffs and the defendants and it has been observed, Page 26 of 160 Downloaded on : Sat Jul 13 03:18:56 IST 2019 C/SA/183/2014 CAV JUDGMENT In view of such discussion, I am of the opinion that it is not open for the Plaintiffs to seek withdrawal of Second Appeal on the ground that the disputes have resolved between the Plaintiffs and the Defendants. Any such permission would amount to allowing the Plaintiffs to withdraw the PoA which as noted is irrevocable. If the Plaintiffs were of the opinion that such PoA was not valid it was for them to take out appropriate legal proceedings. Having not raised any dispute about the legality and validity or acceptance of consideration under the PoA right from the date of its execution in the year 1995, they cannot simply wish away the document by raising a stand nearly 30 years later contending that they had in fact not received any consideration or that in any case the PoA was not valid in law.

20. Therefore, the submissions made by learned advocate, Shri Parikh that the agent cannot have any individual right or authority and would be subject to the authority of the principal, requires consideration in background of the facts as discussed above, particularly when the agent is said to have interest in the subject matter of the suit or the property.

Civil Application No.3035 of 2016

21. Further the submissions which have been made by learned advocate, Shri Asim Pandya referring to the provision of the Order 39, Rule 4 of the Civil Procedure Code on the ground of change of the circumstances, is devoid of any merits. The provision of Order 39, Rule 4 provides for modification or variation in the order subject to proviso which clearly provides that where an order for injunction has been passed after giving to a party an opportunity of being heard, the order shall not be discharged, varied or set aside on the application of that party except where such discharge, variation or setting aside has been necessitated by a change in the circumstances, or unless the Court is satisfied that the order has caused undue hardship to the party. Thus the modification or variation in the interim relief or injunction is also subject to the ground specify like change of the circumstances or undue hardship, which has to be Page 27 of 160 Downloaded on : Sat Jul 13 03:18:56 IST 2019 C/SA/183/2014 CAV JUDGMENT established by the party seeking such modification in the injunction or the interim orders.

22. In the facts of the case, the applicant of Civil Application No.3035/2016 has not made out any such change of the circumstances particularly has not been able to point out as to how the circumstances have changed after the order has been passed in Civil Application No.8249/2015 by the High Court (Coram : Akil Kureshi, J.) dated 10.08.2015. Similarly, there is no hardship or undue hardship shown for such modification. The order of injunction or interim relief would naturally have some bearing on the rights of other side and such injunction is granted only for the purpose of maintaining the equilibrium or balance between the plaintiffs and the defendants till final hearing and adjudication of the matter like Second Appeal No.183/2014. Therefore, the submissions which have been made by learned advocate, Shri Asim Pandya with much emphasis on the Order 39, Rule 4 of the Code of Civil Procedure cannot be accepted. Similarly, his submissions that if the power of attorney holder is permitted in such a manner to pursue then, it would be against the public policy, also could be considered at the time of final hearing inasmuch the grant of irrevocable power of attorney is legally accepted and valid and, therefore, the submission made with regard to public policy cannot be readily accepted.

23. Another facet of submission made by learned advocate, Shri Pandya that the plaintiffs are having dominus litis as he is entitled to withdraw the suit at any stage, has to be considered with reference to the rival claims of other side. It is required to be considered as to whether the plaintiffs have dominus litis and can have privilege to withdraw the suit after it has been adjudicated and culminated into a judgment. The concept of dominus litis would not be attracted in the facts of the case inasmuch as dominus litis has a reference to the right of a party to decide against whom he would like to contest and join as party and what could be the relief and nature of claim, he can restrict or claim. However, the concept of dominus litis cannot come to rescue to avoid right of other person by ignoring the concept of agency which depends on mutuality and obligation. Therefore the understanding or the compromise between the plaintiffs and the defendants with regard to the Page 28 of 160 Downloaded on : Sat Jul 13 03:18:56 IST 2019 C/SA/183/2014 CAV JUDGMENT transaction of the property which again required to be examined with reference to other submissions regarding the genuineness of the transaction and the sale deed particularly with regard to the aspect of registration and execution. However as it is not required at this stage to dwell upon the same, the submission made by learned advocate, Shri Pandya for vacating the interim relief cannot be accepted.

24. A useful reference can be made to the observations made by the Hon'ble Apex Court in case of Sneh Gupta Vs. Devi Sarup & Ors. , reported in (2009) 6 SCC 194 referring to the scope of Order 23 of the Code of Civil Procedure and it has been clearly observed that while entering into a comprehensive agreement, the parties are bound to see that terms of one agreement do not come in conflict with the terms and conditions of the other. The Hon'ble Apex Court has observed in this judgment referring to earlier judgment in case of R. Rathinavel Chettiar & Anr. Vs. V. Sivaraman & Ors. , (1999) 4 SCC 89 has observed, "22. In view of the above discussion, it comes out that where a decree passed by the trial court is challenged in appeal, it would not be open to the plaintiff, at that stage, to withdraw the suit so as to destroy that decree. The rights which have come to be vested in the parties to the suit under the decree cannot be taken away by withdrawal of the suit at that stage unless very strong reasons are shown that the withdrawal would not affect or prejudice anybody's vested rights. The impugned judgment of the High Court in which a contrary view has been expressed cannot be sustained."

25. Therefore both the aforesaid civil applications deserve to be dismissed and accordingly stand dismissed."

14.6 Ultimately, the plaintiffs carried the matter to the Supreme Court. The Supreme Court disposed of the Special Leave Petitions Nos.17507-17508 of 2017 respectively by an order dated 20th November, 2017 in the following terms:-

15. Thus, it appears that the Supreme Court, without going into the merits of the matter, declined to interfere with the two orders passed by this Court referred to above and thought fit to request this Court to decide the present second appeal expeditiously in accordance with law. The Supreme Court further observed that all contentions were kept open. It also clarified that any observations made in the impugned order would not come in the way of deciding the present appeal on merits.

16. In such circumstances , referred to above , Mr. Dhaval Dave, the learned senior counsel appearing for the plaintiffs submitted that he would still like to persuade this Court to permit the original plaintiffs to withdraw this appeal in the wake of the settlement arrived at between his clients and the original defendants Nos.1 and 2.

17. Mr. Desai, the learned senior counsel appearing for the power of attorney holder vehemently opposed such a plea and submitted that the issue with regard to the right of the power of attorney holder to continue with the present second appeal stood concluded with the special leave petitions, preferred by the original plaintiffs, being rejected. According to Mr. Desai, there is no further scope for this Court to adjudicate whether the plaintiffs should be permitted to withdraw the second appeal. Mr. Desai submitted that his client has an interest in the litigation. His client holds an irrevocable power of attorney coupled with interest. According to Mr. Desai, the plaintiffs had received full consideration from the power of attorney holder at the time of the execution of the irrevocable power of attorney. In such circumstances, according to Mr. Desai, the settlement between the plaintiffs and the defendants could hardly be of any consequence and it is now the power of attorney holder who could be said to have stepped into the shoes of the plaintiffs and would like to proceed further with this second appeal.

18. The factual position that emerges from the materials on record is that there are two orders passed by this Court , referred to above , taking the view that the power of attorney is irrevocable coupled with interest and, therefore, the plaintiffs cannot be permitted to withdraw the present second appeal. At the same time, even while rejecting the special leave petitions preferred by the plaintiffs, the Supreme Court clarified that all contentions were kept open. The plain reading of the order passed by the Supreme Court would also indicate Page 31 of 160 Downloaded on : Sat Jul 13 03:18:56 IST 2019 C/SA/183/2014 CAV JUDGMENT that the Supreme Court did not deem fit to go into the merits of the two special leave petitions and left it to the High Court to consider all the relevant issues including the main issue which was before the Supreme Court in accordance with law while hearing the second appeal finally.

19. In such circumstances, I have thought fit to once again look into the issue whether the plaintiffs should be permitted to withdraw the present second appeal or not.

20. Mr. Dave, the learned senior counsel appearing for the plaintiffs vehemently submitted that the power of attorney holder has no locus in the present litigation as the power of attorney holder cannot be said to have any interest in the subject matter. The second contention canvassed by Mr. Dave is with regard to the legality and validity of the irrevocable power of attorney sought to be relied upon by the power of attorney holder. The submissions in this regard of Mr. Dave, the learned senior counsel are two fold. Mr. Dave first invited the attention of this Court to section 202 of the Contract Act and, thereafter, he invited the attention of this Court to sections 17 and 49 respectively of the Registration Act, 1908 . Mr. Dave submitted that even if the agent has himself an interest in the property, the same should form the subject matter of the agency. Mr. Dave, while elaborating his submission, argued that having regard to the nature of the litigation, it cannot be said that the suit property forms the subject matter of the agency. In such circumstances, it cannot be said that the agent has an interest in the property. Mr. Dave submitted that the suit property is of the ownership of the defendants Nos.1 and 2. They had purchased the suit property Page 32 of 160 Downloaded on : Sat Jul 13 03:18:56 IST 2019 C/SA/183/2014 CAV JUDGMENT way back in the year 1965 vide sale deed, Exh.140. The plaintiffs cannot be said to be the lawful owners of the suit property and, in such circumstances, could not have executed a power of attorney much less an irrevocable power of attorney without any right, title or interest over the subject land. Mr. Dave submitted that the power of attorney, if minutely perused, is almost in the nature of a sale, which is not recognized by law.

21. The second submission of Mr. Dave is that assuming for the moment that the document, i.e, the power of attorney is treated to be an irrevocable power coupled with interest, then in the absence of such document not being registered in accordance with the provisions of the Registration Act , the same has no legal force in the eye of law.

22. Mr. Dave submitted that the power of attorney in question figures at Exhibit-124. A power of attorney, being a contract of agency, has to fall in line with section 202 of the Contract Act, 1872 in order to qualify as irrevocable. As per the same, a power of attorney, in the absence of an express provision therein paving way for its revocation, is irrevocable if an interest in the property forming the subject matter thereof is created in favour of the holder thereof. Thus, to be very precise, when the purpose of power of attorney is to safeguard the interest of the holder thereof in the property which forms the subject matter thereof, the power of attorney qualifies as irrevocable. It means that it is sine qua non to have some property in the hands of the executants of power of attorney so as to create an interest therein in favour of the person to be appointed thereunder as holder thereof. However, in the Page 33 of 160 Downloaded on : Sat Jul 13 03:18:56 IST 2019 C/SA/183/2014 CAV JUDGMENT present case, when the power of attorney was executed by the Appellants pending the suit, the property forming the subject matter thereof, being the suit land, was not the property of the Appellants. Because, when the suit filed by the Appellants is for setting aside the sale deed executed in favour of the Respondents in respect of the suit land, the question of the Appellants having any transferable interest in the suit land till such sale deed is set aside as prayed for by the Appellants in the suit does not arise at all. A registered sale deed holds the field and operates in rem till it is set aside. As such, if the contents of the power of attorney in question are taken note of in juxtaposition to this aspect of the matter, it becomes ex- facie evident that the power of attorney was executed by the Appellants after filing of the suit for the purpose of proceeding with the suit and other connected matters as they were unable to pursue the suit and other proceedings effectively due to their illiteracy and other factors and at that point of time, the consideration in respect of the suit land was paid to the Appellants by the power of attorney holder and in lieu thereof, the Appellants agreed that they would not have any right over the consideration which the holder of the power of attorney would receive by causing transfer of the suit land by either sale, mortgage, lease or gift. Mr. Dave laid emphasis on clauses 1, 2 & 10 of the power of attorney at Exhibit-124. It is submitted that in substance, what can be said to have been assured to the holder of the power of attorney pursuant thereto by the Appellants as the executants thereof was the right to pursue the suit against the Respondents and to deal with the suit land subject to the outcome of the suit. It means that if at all anything is to be construed as having been transferred to the holder of the power of attorney, it is nothing Page 34 of 160 Downloaded on : Sat Jul 13 03:18:56 IST 2019 C/SA/183/2014 CAV JUDGMENT but a mere right to sue the respondents and to savor the fruits thereof if the outcome thereof was positive. However, as per section 6 (e) of the Transfer of Property Act, 1882, a mere right to sue is not the property which can be transferred. Further, section 6 (a) of the Transfer of Property Act, 1882 also prohibits transfer of a possibility to receive the property.

23. Mr. Dave further submitted that Section 17(1)(b) of the Registration Act, 1908 makes it mandatory to have registration of a document falling thereunder. The consequence of non- compliance thereof is provided in section 49 of the Registration Act, 1908. It is submitted that an irrevocable power of attorney under section 202 of the Contract Act, 1872 finds its place in section 17(1)(b) of the Registration Act, 1908 on the plain reading thereof. Consequently, the power of attorney in question ought to have been registered. However, admittedly it was not registered. Hence, even if the power of attorney in question is to be construed as irrevocable, it is unenforceable for the purpose of permitting the holder thereof to claim any right thereunder as per section 49 of the Registration Act, 1908. Mr. Dave placed reliance on the decision of the Allahabad High Court in the matter of Chandrama Singh V. Mirza Anis Ahmad reported in 2011 SCC Online All 528 (Paragraphs 10 & 17). In this case, the power of attorney, though revocable in nature on account of a stipulation therein in that regard, was registered as it created an interest in immovable property. However, the revocation thereof was without a registered document. Hence, dealing with the same, it was ruled that since the revocation would result in extinguishment of a right in respect of an immovable property, it would warrant registration. Mr. Dave submitted that the Page 35 of 160 Downloaded on : Sat Jul 13 03:18:56 IST 2019 C/SA/183/2014 CAV JUDGMENT submission of the power of attorney holder of the Appellants to the effect that if the irrevocable power of attorney was to fall under section 17(1)(b) of the Registration Act, there would not have been amendment of the said section 17 for the State of Gujarat by insertion of clause (1) with effect from 21st July, 2008 is without any merit. According to Mr. Dave, in the first place, the applicability or otherwise of section 17 (1) (b) would depend upon the plain reading thereof and not what legislature did by way of an amendment to section 17 . In the second place, the question of resorting to subsequent amendment to section 17 (1) by insertion of clause (f) thereto as an aid to interpret clause (b) thereof would arise if there is ambiguity in the language deployed for clause (b) by the legislature. However, the clause (b) of section 17(1) of the Registration Act is abundantly unequivocal in conveying its import. In the third place, a proper reading of clause (1) reveals that it is aimed at covering the power of attorney which is not per se creating any right or interest in the property so as to attract the application of clause (b), but at the same time it records transfer of possession. Thus, according to Mr. Dave, the purpose of clause (1) is to prevent a mischief aimed at excluding the application of clause (b).

24. Mr. Dave placed reliance on the decision of the Madras High Court in the matter of Mutharasu Thevar V. Mayaandi Thevar reported in 1967 SSC Online Mad 40 to fortify his submission that it is the prerogative of the principal and not the agent to decide as to who should conduct the litigation regardless of the nature of power of attorney.

25. Mr. Dave, in the last, submitted that if at all the Page 36 of 160 Downloaded on : Sat Jul 13 03:18:56 IST 2019 C/SA/183/2014 CAV JUDGMENT contention of the power of attorney holder is to be accepted, the observations made by the Coordinate Bench in paras-15 and 16 of the order dated 10th August, 2015 passed in the Civil Applications Nos.8249 and 8169 of 2015 respectively would preclude him from claiming or asserting any independent right to pursue the present second appeal.

26. On the other hand, Mr. Desai, the learned senior counsel appearing for the power of attorney holder submitted that there is no merit in the contentions canvassed on behalf of the plaintiffs. According to Mr. Desai, it cannot be argued that his client has no interest in the suit property which forms the subject matter of the agency. Mr. Desai submitted that the issue with regard to the applicability of the provisions of the Registration Act would come into play provided there is a litigation between the parties as regards the legality and validity of the irrevocable power of attorney. Mr. Desai submitted that as this issue stood concluded, this Court may not go into the same once again.

27. I deem fit and appropriate to quote few relevant clauses of the irrevocable power of attorney:-

Our power of Attorney holder will do all kind of works and undertake procedures as mentioned in this Power of Attorney which are liable to be done and performed by us by remaining present personally as the owner of the Page 42 of 160 Downloaded on : Sat Jul 13 03:18:56 IST 2019 C/SA/183/2014 CAV JUDGMENT aforesaid land for and on behalf of me besides, our Power of Attorney holder will also place signatures and deeds for and on behalf of me and accordingly whichever procedures are followed by our Power of Attorney Holder and works done by us for all such works, procedures and proceedings etc. will be considered to be as abiding to us and the same will be abiding to our parents, heirs, guardians and all concerns."

28. I propose to deal with both the submissions canvassed by Mr. Dave. I shall first deal with the first submission as regards section 202 of the Contact Act. Section 202 of the Contract Act reads thus:-

29. I may quote a passage from Cunningham & Shephard's Contract Act, 11th Edition, 2007-08 on the subject of section 202 of the Contract Act:-

30. In Bowstead on Agency, 14th Edition, page 423 it is stated as follows:-

31. The author thereafter points out that the mere fact that a power is declared in the instrument granting it to be irrevocable does not make it so. Irrevocability requires something further. It must satisfy the requirements mentioned above and it is then called a power coupled with an interest.

32. If the agent himself had an interest in the property which formed the subject-matter of the agency, then in the absence of an express contract to the contrary these powers of attorney could not be terminated by the plaintiffs to the prejudice of such interest. First, let us consider the meaning of the expression "interest" in section 202 . The word has not been defined in the Contract Act . It has, therefore, to be construed in the light of the situations which arise under the various provisions of the Contract Act . The Act deals with all kinds of property, movable and immovable, corporeal and incorporeal. It also deals with all kinds of rights, proprietary, non- proprietary personal and corporate. The word "interest" is to be applied to a wide variety of cases under the Contract Act and must, therefore, be given a wide meaning to serve these wide purposes of the Act. It is not a term of art or a technical word. In jurisprudence, the word "interest" simply means an advantage or a benefit. "Interests are things which are to a man's advantage : he has an interest in his freedom or his reputation. His rights to these, if he has such rights,. protect the interests, which accordingly form the subject of his rights but are different from them. To say he has an interest in his reputation means that it is to his advantage to enjoy a good name. "However, every interest of a person may not become a right. It is only those interests which are legally recognised Page 45 of 160 Downloaded on : Sat Jul 13 03:18:56 IST 2019 C/SA/183/2014 CAV JUDGMENT and/or are legally protected or enforced which amount to legal rights. (Salmond on Jurisprudence, 12th Edition, pages 217-

218). The German jurist jhoring viewed law as a reconciler of conflicting interests. Roscoe found as regards human disorders and claims as interests which exist independently of the law and which are constantly "pressing for recognition and security." (Philosophy of Law, Revised ' Edition, 1954). In the American Restatement of the Law of torts (Second Edition, 1965) the word "interest" is used to denote the object of any human desire.

33. For the purposes of the Law of Contract, therefore, it would not be appropriate to restrict the meaning of the word "interest" by the narrow compass in which this word is used at times in relation to immovable property. For instance, the last sentence of section 54 of the Transfer of Property Act states that a contract for sale of itself does not create any interest in or charge on immovable property. Similarly, section 17(1)(b) of the Registration Act makes only those documents compulsorily registerable which create, declare, assign, limit or extinguish any right, title or interest, whether vested or contingent, of the value of one hundred rupees and upwards to or in immovable property. Since an agreement for sale does not create such a right, title or interest, it may not be compulsorily registerable. But in the context of the Contract Act , it cannot be said that a person who is the beneficiary of an agreement of sale has no right or interest in the subject-matter of the sale. He has a legally enforceable right and interest in enforcing the contract of sale by the execution of a sale deed and in getting possession of the property agreed to be sold under the Page 46 of 160 Downloaded on : Sat Jul 13 03:18:56 IST 2019 C/SA/183/2014 CAV JUDGMENT provisions of the Specific Relief Act . In the English Common Law, the specific performance of contracts was a part of the law of contract. This is why Chapter IV of the Contract Act deals with the performance of contracts which includes the performance of contracts relating to immovable property also. In fact, section 4 of the Transfer of Property Act says that the chapters and sections of that Act which relate to contracts shall be taken as part of the Indian Contract Act, 1872 . Therefore, the power of attorney holder, in whose favour the plaintiffs had executed the irrevocable power with respect to the suit property, could be said to have an interest in the subject matter of the contract for the purposes of section 202 of the Contract Act if not for the purposes of the Transfer of Property Act and the Registration Act, 1908 . (see Harbans Singh vs. Shanti Devi (1977) ILR 2 Delhi 649).

34. In Loonkaran Sethiya v. State Bank of Jaipur ,, (1969) 1 SCR 122, the respondent bank was given an irrevocable power of attorney by the appellant. For, the appellant had borrowed money from the bank. He had empowered the bank to recover money due to him from his debtor by executing a decree in which he was the decree- holder. The word "interest" under section 202 of the Contract Act was construed as follows at page 126 of the report :- .

35. The aforesaid statement of law reproduces the English Common Law as would be evident from a reference to Article 135 in Bowstead on Agency, Fourteenth Edition, the relevant part of which is as follows :-

37. Section 49 of the Registration Act, 1908 reads as under:-

38. The Perusal of aforesaid Section 17 clearly suggests that the document/instrument, which intends/purports to create right/title to an immovable property having value of Rs.100/- should be registered. Similarly, the perusal of Section 49 of the Act suggests that the documents, which are required to be registered under Section 17 shall not affect any immovable property; comprised therein or confer any power to adopt or to receive any evidence to any transaction affecting the said property or conferring power unless it has been registered.

39. Indisputably, the so called irrevocable power of attorney coupled with interest is not a registered document. I am at one with Mr. Dave that the power of attorney is in substance in the form of a sale. In the last part of the document, it is clearly stated that full sale consideration of the property is being paid to the power of attorney by the plaintiffs. There is no doubt that law does not recognize such a sale.

40. As per Section 17 of the Registration Act, any document or instrument, which purports or intends to create title should be registered and in case the same is not registered, it would not affect any immovable property comprised therein or moreover it could not be allowed as evidence of any transaction affecting such property.

41. In the aforesaid context, I deem fit to rely upon the judgment passed by the Apex Court in Suraj Lamp and Industries Private Limited Through Director vs. State of Haryana and Another , (2009)7 SCC 363, wherein the Apex Court has held as under:-

42. The Perusal of the aforesaid law, having been laid by the Apex Court, clearly suggests that the title of immovable property, having value of more than Rs.100/-, can only be transferred by registered documents, as provided under Section 17 of the Registration Act, 1908. Similarly, it also emerge from the aforesaid judgment that no document as required by Section 17 to be registered shall, affect any immovable property comprised therein or received as evidence of any transaction affected such property unless it is registered.

43. In SMS Tea Estates Private Limited vs. Chandmari Tea Company Private Limited , (2011)14 SCC 66, the Apex Court has held as under:

44. However, the aforesaid principles would be applicable if ultimately the rights of the parties are to be determined vis-a- vis the document of power of attorney. I find it difficult to take the view that in view of the provisions of sections 17 and 49 of the Registration Act, 1908, the power of attorney holder cannot assert any right for the purpose of proceeding further with the present second appeal. He could be said to have some interest in terms of section 202 of the Contract Act and, therefore, I hold that he can legitimately submit before this Court that the plaintiffs should not be permitted to withdraw the second appeal.

45. In the aforesaid context, I may refer to and rely upon a decision rendered by a learned Single Judge of the Punjab & Haryana High Court in the case of Jeet Kumari vs. Girdhari Lal , 2003 (3) RCR (Civ) 391, wherein identical issue has been discussed and the position of law has been succinctly explained. The observations are as under:-

46. Thus, having regard to the position of law, as discussed above, I am at one with Mr. Dave, the learned counsel appearing for the plaintiffs that the extent no valid title could be said to have passed in favour of the power of attorney holder by virtue of the so called irrecoverable power of attorney. As discussed above, there cannot be a valid transfer of immovable property by way of power of attorney. I am also at one with Mr. Dave that the power of attorney holder cannot claim to be the lawful owner of the suit property as on date. However, at the same time, as discussed above, it is difficult for me to take the view that he cannot be said to have any interest in the litigation. If, at all, the plaintiffs succeed in this second appeal, then probably, thereafter, the power of attorney may have to ask the plaintiffs to execute a valid sale deed in his favour with respect to the suit property in Page 57 of 160 Downloaded on : Sat Jul 13 03:18:56 IST 2019 C/SA/183/2014 CAV JUDGMENT accordance with law. That would, altogether, be a different issue, with which, I am not concerned at this stage in the present litigation.

47. Before I close this issue, I may refer to the observations made by the Supreme Court in the case of Rama Vidya Bhushan Singh vs. Ratiram , reported in 1969 (1) UJ 86 SC that a document required by law to be registered, if unregistered, is inadmissible as evidence of a transaction affecting the immovable property, but it may be admitted as evidence of collateral facts, or for any collateral purpose, that is for any purpose other than that of creating, declaring, assigning, limiting or extinguishing a right to immovable property. As stated by Mulla in his Indian Registration Act , 7th En., at p. 189:

48. In view of the aforesaid discussion, I now proceed to consider the second appeal on its own merits.

49. Submissions on behalf of the power of attorney holder:-

He further submitted that the sale deed, Exh.140, was never produced before the office of the Registrar in accordance with section 23 of the Registration Act. He pointed out that the sale deed, Exh.140, was produced, for the first time, after a period of 11 months, i.e, on 21st January, 1966 for the purpose of registration.

49.2 According to Mr. Desai, the possession of the property, at no point of time, changed hands. The sale consideration of Rs.2000/- in cash has not been proved in accordance with law by the defendants. In such circumstances, it cannot be said to be a transfer of property in accordance with the provisions of section 54 of the Transfer of Property Act. Mr. Desai submitted that the photocopy of the sale deed, Exh.140 came to be produced after a period of 26 years before the Registering Authority for the purpose of mutation of revenue entry. He submitted that the attesting witnesses have also not been examined by the defendants. Even the scribe of the sale deed has not been examined though he was a minor. In the written statement, there is no pleading/assertion that the original sale deed is lost. Mr. Desai submitted that one Pareshbhai Kishorchandra Shukal, serving in the office of the Sub-Registrar appeared before the Civil Court and entered the box. His evidence is at Exh.152. The officer produced the photocopy of the Registered Book Extract, Exhs.157 and 158 to establish the Page 59 of 160 Downloaded on : Sat Jul 13 03:18:56 IST 2019 C/SA/183/2014 CAV JUDGMENT registration of the sale deed in favour of the defendants. Mr. Desai submitted that in his cross-examination, the officer has admitted that there is no identification of Kesar Sultan Sipai and even in Exh.140, i.e, the photocopy of the sale deed produced by the officer, there is no thumb impression of Kesarbhai or any other seller. In short, according to Mr. Desai, Exhs.157 and 158 could not have been admitted in evidence as a substitute to a photocopy of the alleged sale deed. He submitted that the Trial Court, vide order dated 29th March, 2011 passed below Exh.135, had allowed exhibiting all these documents, more particularly, Exh.140 subject to proving the same in accordance with law. According to him, at the most, Exhs.157 and 158 could be termed only as corroborative piece of evidence. Mr. Desai submitted that even if Exhs.157 and 158 are treated as the corroborative piece of evidence without the original sale deed on record, Exhs.157 and 158 have no evidenciary value.

49.3 Mr. Desai submitted that a certified copy of the sale deed cannot be termed as a public document under section 74 of the Evidence Act. He submitted that the issue of possession has been completely overlooked by both the courts below. Mr. Desai invited the attention of the Court to the following aspects:-

(c ) ULC proceedings were conducted by the Plaintiffs.

(d) Other Revenue Entries from 1965 till 1991 (Exh. 88 Page 60 of 160 Downloaded on : Sat Jul 13 03:18:56 IST 2019 C/SA/183/2014 CAV JUDGMENT to 92).

(e) No action by the Defendants till the year 1991.

(f) 11.04.1994 and 16.04.1994 Order of Status Quo granted against the Defendants.

(g) 25.02.1995 transfer of possession in favour of the Power of Attorney Holder.

(h) Exh. 21, order dated 15.07.1997 joint purshis to maintain status quo by all parties. POA in Possession.

(I) Exh.23 application claimed to be under Order 6 Rule 17 praying for adding issue of possession in the written statement was filed by defendant no.1 purchaser after a period of 10 years of institution of suit. The said application was rejected on 14.9.2005 by the trial Court and confirmed the said rejection by order passed in the Special Civil Application No.1339 of 2006 in which not only this Court dismissed the petition of defendant no.1- purchaser but also observed that the possession was not with the purchaser and therefore also, on this ground, transfer under Section 54 of the Transfer of Property Act cannot be said to have been established.

(j) Exh. 60 contempt application by the Defendants- clarified that no contempt as the Power of Attorney deed dated 25.02.1995 before the Order dated 15.07.1997.

(k) Exh. 76 Cross of Akbar Kesar Sipai specifically states possession is with the Plaintiffs.

(l) Exh. 109 Chief of Power of Attorney Holder.

(m) Exh. 116 to 122 documentary evidence to show possession of the Plaintiffs.

(n) Exh. 132 both Chief and Cross independent witness Chaturbhai Bhagwanjibhai Korat.

(o) Directions to GEB to give electricity connection.

(p) Only claim of the Defendants for possession is in their Written Statement and no other documentary proof Page 61 of 160 Downloaded on : Sat Jul 13 03:18:56 IST 2019 C/SA/183/2014 CAV JUDGMENT is produced.

(q) Sale Deed showing possession cannot be considered as proof of possession as the validity of the said sale deed is in question before the Courts. (No proof of the same produced by the Defendants).

(r ) Prayer of Adverse Possession, only has an alternative prayer and not a substantial prayer.

(s) After the order passed by the Trial Court, Possession grabbed by the Defendants.

I. Police Complaint not entertained.

ii. In the contempt application preferred before this Hon'ble Court being Misc. Civil Application No.3005 of 2011, notice was issued by the Hon'ble Division Bench (Coram: Hon'ble Mr. Chief Justice Bhaskar Bhattacharya and Hon'ble Mr. Justice J.B. Pardiwala), but later on vide order dated 29.11.2011, the said application was not heard further on merits on the ground that First Appeal under Section 96 of the CPC being First Appeal No.100 of 2011 was already preferred by the plaintiff.

iii. Application for Mandatory Injunction filed along with First Appeal-rejected- Therefore they approached the High Court-rejected-therefore approached the Supreme Court of India-not entertained, however, directed to hear the First Appeal in Three Months.

iv. Application under Order 41, Rule 27 for production of documents.

v. Suit under Section 6 of the Specific Performance Act."

49.4 Mr. Desai also brought to the notice of this Court the following attending circumstances, which according to him, have been overlooked by the two courts below:-

(c ) Village Form No.7/12 and Village Form No.6 were all in the names of original owners.

(d) On 19.10.1988, the ULC proceedings were initiated, notice was issued in the name of Kesarbhai, reply was given that Kesarbhai had died, and therefore, the notice was issued in the name of heirs and legal representatives of Kesarbhai and hence, it is an undisputed position of law as regards the possession of land in question on the basis of revenue records also

(e) Electricity bills, revenue receipts produced on record vide Exh. 88 to 92, Exh. 115 to 124 were produced on record showing the names of Naranbhai Jadavbhai Lalakiya and heirs and legal representatives of Kesarbhai and Kesarbhai respectively.

(f) Neighbouring land owner Chaturbhai Bhagwanbhai Korat vide Exh.:132 has deposed that Naranbhai Jadavbhai Lalakiya is in possession of the land in question since long.

(g) Akbar Kesarbhai Sipai has not been crossed examined on the issue of affixation of thumb impression or signature.

(h) The second purchaser being defendant no.2 has not entered in the witness box. Defendant no.2-purchaser has also not filed written statement as there is no signature of defendant no.2 in the written statement.

(I) Defendant no.1-purchaser has not mentioned in the written statement that original sale deed is lost or misplaced.

(j) Defendant no.1 loosely mentioned in the examination in chief that the document is 'lost'.

(k) It is an undisputed fact that no foundational fact is even mentioned as per Section 65 of the Evidence Act regarding the document being lost, destroyed, Page 63 of 160 Downloaded on : Sat Jul 13 03:18:56 IST 2019 C/SA/183/2014 CAV JUDGMENT misplaced, etc. It is the fact that Kesarbhai was illiterate.

(l) There is no Identification of Kesarbhai or other- sellers in the sale deed.

(m) Ingredients of Section 54 of passing of possession and consideration are not proved.

(n) Cash transaction of Rs.2000/- is not proved.

(o) As regards Section 90 of the Evidence Act, 30 years old document also cannot be considered as a public document in the facts of the present case."

49.5 Mr. Desai submitted that the defendants failed to prove the execution of the sale deed having regard to the following:-

"(a) Contents of the document not proved, consideration not proved, signature/thumb not proved.

(b) Witness not examined including the scribe of the document.

(c ) No primary Evidence produced by the Defendants.

(d) No reliance could have placed on Exhs.157 and 158 (Photocopies of the register of the Sub-Registrar) as at best it is Corroborative in nature. However, the same cannot be relied upon in absence of primary evidence.

(e) Section 54 of the Transfer of Property Act not satisfied.

(f) Adverse inference is required to be drawn as no party with a validly executed sale deed would not get it implemented for over 26 years. More so, when there was allegedly a correction deed to suggest conversion of the land in question to NA and that too not having been acted upon for equally long period of time.

(g) Registration of the document is no proof of contents of the document."

49.6 In such circumstances , referred to above , Mr. Desai prays that there being merit in this second appeal, the same be Page 64 of 160 Downloaded on : Sat Jul 13 03:18:56 IST 2019 C/SA/183/2014 CAV JUDGMENT allowed by quashing and setting aside the judgments of the lower courts and the suit of the plaintiffs be allowed.

49.7 Mr. Desai prays that this Court may allow the suit and issue a declaration that the sale deed Exh.140 does not confer the defendants with any right, title and interest over the suit property as the defendants have failed to establish that they are the lawful owners of the suit property by virtue of the sale deed Exh.140.

50. Submissions on behalf of the original plaintiffs:-

The learned counsel submitted that the burden of proof is on the plaintiffs to establish that the sale deed is sham and bogus. The defendants have been able to prove the execution and contents of the sale deed, Exh.140 in their favour. This initial Page 65 of 160 Downloaded on : Sat Jul 13 03:18:56 IST 2019 C/SA/183/2014 CAV JUDGMENT burden of proof upon the plaintiffs could not be said to have been discharged in any manner. The learned counsel would submit that it is not just sufficient to assert that the sale deed is sham and bogus or no such transaction had taken place at the relevant point of time. He would submit that the plaintiffs ought to have led cogent evidence in this regard. It is submitted that the attempt on the part of the plaintiffs is to shift the burden upon the defendants to establish that a valid sale deed was executed in their favour by the then owner of the suit land.

50.2 The learned counsel submitted that the foundation for relying upon the certified copy of the sale deed as the secondary evidence was led by the defendants by stating on oath that the original was lost. It is submitted that both the courts below have believed that a valid sale deed was executed, Exh.140, in favour of the defendants. The learned counsel submitted that upon appreciation of oral as well as the documentary evidence on record, the courts below have recorded a concurrent finding leading to the construction that the execution and the contents of the sale deed in question has been duly proved. The said finding cannot be made a subject matter of challenge in a second appeal unless the plaintiffs are able to point out any perversity in such finding.

50.3 The learned counsel submitted that section 71 of the Evidence Act has no application to the case on hand. According to the learned counsel, section 71 of the Evidence Act would come into play if the attesting witness to the concerned document is examined and such attesting witness neither denies or is unable to recollect the execution of the document.

In the case on hand, no attesting witness to the registered sale deed was examined and, therefore, there is no question of applying section 71 of the Evidence Act. He submitted that the sale deed does not require compulsory attestation. The proof of its execution is governed by section 72 of the Evidence Act.

50.4 In such circumstances , referred to above , the learned counsel prays that there being no merit in this second appeal, the same be dismissed.

51. There is no doubt that the defendants have been able to produce, in evidence, the certified copy of the sale deed as secondary evidence on the premise that the original has been lost. There is also no doubt that in the course of the trial of the civil suit, one Pareshbhai Kishorchandra Shukal, serving in the office of the Sub-Registrar entered the box and produced the photocopy of the Registered Book Extract, Exhs.157 and 158 to establish the registration of the sale deed in favour of the defendants. This has been the basis of the defendants while opposing the suit filed by the plaintiffs and the courts below believed the valid execution of the sale deed in favour of the defendants way back in the year 1965.

52. A registered document and the registration of the sale deed no doubt reinforces the valid execution of the sale deed. A registered document carries with it a presumption that it was validly executed. It is for the party challenging the genuineness of the transaction to show that the transaction is not valid in law. In Prem Singh and Others v. Birbal and Others , (2006) 5 SCC 353, it was held as under:-

53. The above judgment in Prem Singh 's case has been referred to in Vishwanath Bapurao Sabale v. Shalinibai Nagappa Sabale and Others (2009) 12 SCC 101.

54. In Rangammal vs. Kuppuswami & Ors. , reported in AIR 2011 SC 2344, the Supreme Court observed thus:-

55. In Ningawwa vs. Byrappa Shiddappa Hireknrabar , 1968 AIR (SC) 956, the Supreme Court held as under:-

56. In Vimal Chand Chevarchand Jain & Ors. vs. Ramakant Eknath Jadoo , (2009) 5 SCC 713, the Supreme Court held that the registered sale deed is presumed to be valid unless the contrary is proved. The onus is on the person who challenges the same to show that it is either not acted upon or is a sham transaction.

57. On the submissions urged by both the sides, the following points should be looked into and decided first:-

58. The aforesaid points have been discussed and explained exhaustively by Hon'ble Justice R.V. Raveendran (as his Lordship then was) in Smt. Rekha Rana & Ors. vs. Smt. Ratnashree Jain , reported in AIR 2006 M.P., 107.

Re : Points (i) and (ii)

59. The answer to these two questions can be found in the Evidence Act .

59.1 Chapter V of the Act deals with Documentary Evidence. Section 61 provides that contents of documents may be proved either by primary or by secondary evidence. Section 62 Page 69 of 160 Downloaded on : Sat Jul 13 03:18:56 IST 2019 C/SA/183/2014 CAV JUDGMENT defines primary evidence as meaning the document itself produced for inspection of the Court. Section 63 defines Secondary evidence as meaning and including among others certified copies given under the provisions of the Evidence Act . Section 64 provides that documents must be proved by primary evidence except in the cases mentioned in the subsequent sections.

59.2 Section 65 deals with cases in which secondary evidence relating to documents may be given. The relevant portion of Section 65 is extracted below:

59.3 Section 65 further provides that in cases (a), (c) and (d), any secondary evidence of the contents of document is admissible; in case (b), the written admission is admissible; in case (e) and (f), a certified copy of the document, but no other kind of secondary evidence, is admissible.

59.4 Section 67 relates to proof of signature/handwriting. It is extracted below:

59.5 Sections 74 and 75 define public documents and private documents respectively. They are extracted below:

75. Private documents - All other documents are private. "

62. I may also refer to the following passage from Ratanlal's Law of Evidence' (19th Edition page 237):

63. What then is a "public record, kept in any state of private documents" referred to in Clause (2) of Section 74 ? The answer may be found in the Registration Act, 1908 .

63.1 When a document is presented for registration and the person executing it appears and admits execution, Section 35 of the Registration Act, requires the Registering Officer to register the document as directed in Sections 58 to 61 of the said Act.

63.2 Section 51 relates to Register Books to be kept in the registration offices. Relevant portions thereof extracted below:

63.4 Section 57 requires the Registering Officers to allow inspection of Books No, 1 and 2 and indexes relating to Book No. 1 and to give certified copies thereof. The relevant portion of the said Section is extracted below:

and, subject to the provisions of Section 62 , copies of entries in such books shall be given to all persons applying for such copies.

(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. "

63.6 Section 61 deals with copying of endorsements and certificate and return of document. It is extracted below:

64. It is clear from the above that Book 1 maintained in the Registration Offices (a Register where all non-testamentary documents relating to immovable property are copied, entered Page 75 of 160 Downloaded on : Sat Jul 13 03:18:56 IST 2019 C/SA/183/2014 CAV JUDGMENT or filed) is a public record kept in a State of private documents and therefore a public document. When any person applies for the certified copy of document registered in the office which is entered/filed in Book 1, a certified copy of the document as copies/filed in Book 1 is furnished to the applicant. Such certified copy of any entries in that public record (Book 1) is a certified copy of a public document. But such certified copy of the registered document extracted from Book 1 is not itself a public document. It is really a true copy of a copy (copy of original deed entered in Book 1).

65. I, therefore, answer points (i) and (ii) as follows:

66. In the case of Jagdishchandra Chandulal Shah, 1989 (1) GLH 82, a learned Single Judge of this Court on considering the provisions of section 65 and 74 of the Indian Evidence Act as also section 57 of the Registration Act, has held and observed in paragraph 6, 7 and 11, as under:

67. The dictum as laid in Jagdishchandra (supra) is that the certified copy of the sale deed would be a public document and, therefore, would be admissible for the purpose of proving the contents of the original document. However, whenever the question of execution of the same arises, it will have to be proved according to law. What is sought to be conveyed in the said decision is that by merely admitting the certified copy of the sale deed in evidence, the execution of the same will not automatically stand proved.

68. A Full Bench of the Andhra Pradesh High Court in the case of The Land Acquisition Officer, Vijayawada Thermal Station vs. Nutalapati Venkana Rao , reported in AIR 1991 AP 31 had the occasion to examine the question whether the "contents" of a certified copy of the sale deed should be treated as evidence although none connected with the deed had been examined in the context of Sections 60 , 67 , 63 , 65 of the Evidence Act and 57(5) of the Registration Act . The Full Bench held as under:

'Primary evidence' of documents is defined in S. 62 as 'the document itself produced for inspection of the Court; 'Secondary evidence' of documents is defined in S. 63 as : (1) certified copies under the provisions 'hereinafter' contained, (2) copies made from the original by mechanical process, (3) copies made from or compared with original, (4) counter parts and (5) oral accounts of the contents of a document given by some person who has himself seen it. Illustration (c) to S. 63 states that 'a copy of a copy' is not secondary evidence unless it has been compared with the original. Sec. 64 enjoins that a document must be 'proved' by primary 'evidence except in cases 'hereinafter' mentioned and S. 65 refers to the conditions to be satisfied before secondary evidence relating to document can be given.

18. Now, it cannot be disputed that a certified copy granted by the Sub-Registrar is a copy of a copy. Therefore, it becomes necessary to decide incidentally whether such a copy given by a public authority in respect of acopy entered in his records, can be treated as 'secondary evidence'. As will be presently* noted, the Privy Council and the Supreme Court have treated certified copies so granted as 'secondary evidence'. We shall now refer to these aspects. First, we shall deal with the question of the effect of not raising objection to the adduction of secondary evidence.

19. The concepts of primary evidence and secondary evidence are fundamental to the consideration of the above question. As in the case of marking of documents under O. 13, R. 4, C.P.C . the principle of waiver has been applied whenever secondary evidence is adduced without objection. If no objection is raised at the stage when secondary evidence is adduced, no objection can be permitted at any later stage as held in Williams v. Wilcox, (1838) 8 Ad & El. 314 : 112 ER 857. There a copy which was secondary evidence was filed as evidence and as no objection was raised, Lord Denman held that no objection can be raised later. Objections as to sufficiency of search cannol be permitted later. See Hals-bury's Laws of England (4th Ed. Vol. 17, para 140). The position in Canada is the same as stated in Guerin v. Fox,(1898) QB 15 SC 199 : 22 Emp Dig p. 211 fn. k. It was there held that the "rule of law, that the evidence offered must be Page 80 of 160 Downloaded on : Sat Jul 13 03:18:56 IST 2019 C/SA/183/2014 CAV JUDGMENT the best evidence and that secondary evidence can be received only when the impossibility of producing the best has been established, is enacted in the interests of the parties and is not founded upon considerations of public policy, and that the objection to such evidence may be considered to be waived by the party interested in opposing it when it is not made at the time the evidence is offered". Likewise, in Canadian Bank of Commerce v. Bellamy, (1915) 33 WLR 8 : 9 WWR 587 :

Rama Ch. v. Ranganayaki , AIR 1941 Madras 612; Bacharabhai v. Mohanlal, AIR 1956 Bom 196; Subbarao v. Venkata Rama Rao , . In P. C. Purusho-tham Reddiar v. S. Perumal, , already referred to under Point No, 1, it is further laid down by the Supreme Court in regard to proof of 'contents' of a document, as follows :

21. Therefore, the marking of secondary evidence, if not objected to at the trial cannot be objected to later, and the 'contents' can also be looked into.

22. We shall next consider the second aspect whether a certified copy granted by a Sub-Registrar, can be 'secondary evidence', even though it is copy of a copy as stated in illustration (c) to S. 63 .

23. In this context reference has to be made to S. 57(3) Page 81 of 160 Downloaded on : Sat Jul 13 03:18:56 IST 2019 C/SA/183/2014 CAV JUDGMENT of the Registration Act, 1908, It clearly states that 'All copies given under this section shall be signed and sealed by the registering officers and "shall be admissible for the purpose of proving the contents of the original document".

Obviously, this provision takes certified copies out of the purview of illustration (c) to S. 63 , and therefore certified copies can be treated as secondary evidence provided conditions in S. 65 are satisfied for adducing secondary evidence.

24. We have also noticed that certified copies of registered documents marked without objection at the trial have been accepted by the Privy Council in Gopal Das v. Sri Thakurji , AIR 1943 PC 83 as 'some evidence' of execution of such a document. Our Supreme Court has held in Nani Bai v. Gita Bai , , that in the absence of a registered sale deed 'for any reason', its certified coy may be adduced as 'secondary evidence'. In another case in Bhinka v. Charan , the Supreme Court again held that a rebuttable presumption of genuineness of a certified copy arises under S. 79 of the Evidence Act provided that, (as stated in the proviso thereto), the document was executed substantially in the form and manner provided by law. Again in Kalyan Singh v. Chhoti , , the Supreme Court has held, while dealing with 'secondary evidence' under S. 63 of the Evidence Act, that in view of S. 63(1) read with S. 79 of the Evidence Act, 'a certified copy of a registered sale deed' may be produced as 'secondary evidence' in the absence of the original.

25. Further, under S. 60(2) of the Registration Act, 1908 a certificate of registration shall be some evidence of the document having been duly registered. In fact, the Privy Council has held in Gangamoyi Debi v. Trailukhya Nath , (1906) ILR 33 Cal 537 :

The above observations are obviously referable to illustration (e) in S. 114 of the Evidence Act, 1877 dealing with the presumption of regularity of official act.

26. There is also a close parallel between the above legal position obtaining in India and the corresponding position under the English law.

27. Halsbury's laws of England (4th Ed. Vol. 17) states that secondary evidence of public documents or entries from public registers, is admissible (paras 145, 150, 168, 169, 176), Para 168 states that entries in registers of births, marriages or deaths, certified copies of those entries or registers are prima facie evidence though not conclusive evidence. Para 169 says entries in other public registers are evidence of facts recorded provided the registers are required by law to be kept for public reference and the entries are made promptly and by the proper officer. Para 176 states that other registers including the land Registration Registers fall in this category. (See also Phipson on Evidence, 13th Ed. 1982, Para 36.11 and Cross on Evidence, 6th Ed. 1985, p.

69. What is discernible from the aforesaid Full Bench decision of the Andhra Pradesh High Court is that a certified copy granted by the Sub-Registrar is a copy of a copy. In view of section 63(1) read with section 79 of the Evidence Act, a certified copy of a registered sale deed may be produced as "secondary evidence" in the absence of the original.

70. A Learned Single Judge of the Orissa High Court, S.C. Mohapatra, J., (as his Lordship then was), in the case of Rama Chandra Majhi vs. Hambai Majhi , reported in AIR 1989 Orissa 27, has explained the position of law on the subject as under:

In cases (a), (c) and (d) any secondary evidence of the contents of the document is admissible. xxxx xxxx xxxx xxxx xxxx "

71. The ratio of the aforesaid decision of the Orissa High Court is that under section 65(c) , the secondary evidence of the contents of the documents is admissible where the original is lost. When the original sale deed, whose copy is maintained in the Registration Office, is lost, the secondary evidence can be given in respect of the contents thereof by proving the entry in the Registration Office.

72. Mr. Desai, the learned counsel appearing for the power of attorney holder vehemently submitted that the certified copy of a sale deed may be admissible as a secondary evidence in Page 85 of 160 Downloaded on : Sat Jul 13 03:18:56 IST 2019 C/SA/183/2014 CAV JUDGMENT the absence of the original sale deed on record. However, Mr. Desai laid much stress on the fact that before tendering or producing the certified copy of the sale deed in evidence, it was obligatory on the part of the defendants to lay a foundation for the same. To put it in other words, according to Mr. Desai, it was not just sufficient for the defendants to say that the original has been lost. To substantiate such submission, Mr. Desai has placed strong reliance on a decision of the Supreme Court in the case of Benga Behera & Anr. vs. Braja Kishore Nanda & Ors. , reported in AIR 2007 SC 1975, wherein the issue before the Supreme Court was with regard to loss of the original will and production of a certified copy of the will given in terms of the provisions of the Indian Registration Act . Mr. Desai placed reliance on the following observations made by the Supreme Court;

30. Loss of the original Will was, thus, not satisfactorily proved.

31. A document upon which a title is based is required to be proved by primary evidence, and secondary evidence may be given under Section 65(c) of the Evidence Act. The said clause of Section 65 provides as under:

Loss of the original, therefore, was required to be proved.

32. In a case of this nature, it was obligatory on the part of the first respondent to establish the loss of the original Will, beyond all reasonable doubt. His testimony in that behalf remained uncorroborated. "

74. The aforesaid contention of Mr. Desai as regards failure Page 87 of 160 Downloaded on : Sat Jul 13 03:18:56 IST 2019 C/SA/183/2014 CAV JUDGMENT on the part of the defendants to lay any foundation to adduce secondary evidence should fail on the simple ground that the production of marking of certified copy as secondary evidence of a public document under Section 65(E) or 65(F) of the Evidence Act need not be preceded by laying any foundation for acceptance of the secondary evidence. At the cost of repetition, I state that the certified copy of a registered instrument/document issued by the Registering Officer by copying from Book-I, is a certified copy of a public document. It can therefore be produced in proof of the contents of the public document or part of the public document of which it purports to be a copy. It can be produced as secondary evidence of the public document (entries in Book I), under Section 65(e) read with Section 77 of the Evidence Act

75. In the aforesaid context, I may refer to and rely upon a Constitution Bench decision of the Supreme Court in the case of Cement Corporation of India Limited vs. Purya , 2004 (8) SCC 270, wherein the Supreme Court in context with Section 51-A of the Land Acquisition Act, had observed as under;

76. In S. Madasany Thevar vs. A.M. Arjuna Raja , reported in AIR 2000 Madras 465, the Madras High Court held as under:

In Padmanabhachari v. Sithpathirao (1954) 2 Mad LJ 75. It was held --

77. A learned Single Judge of the Karnataka High Court in the case of K.M. Shaffi vs. Smt. Dayamathi Bai, reported in 1999 AIHC 4071, had the occasion to consider the question whether for tendering the certified copy of the sale deed in evidence whether proof of the loss of the original under section 65(c) of the Indian Evidence Act is required. The learned Single Judge, answering the said question in the negative, held as under;

78. I may also refer to and rely upon a decision of the Kerala High Court in the case of Upendra Rao S/o. Raya Shetty vs. M.K. Ammini , W/o. Sreedharan, Regular Second Appeal No.961 of 2005, decided on 30.11.2016, wherein the learned Single Judge held as under:

79. It is, therefore, clear that a person proposing to give secondary evidence by invoking clauses (a), (b) and (c) of Section 65 of the Evidence Act, has to first lay a foundation to the effect that the document is not in his possession and has not been produced inspite of a notice by the person who is in possession of the same; that the existence, condition or contents of the original have been proved to be admitted in writing or that the original has been destroyed, lost or cannot be produced, respectively. It is further clear from a perusal of Section 65(e) and (f) that the aforesaid requirement, which are prescribed in Section 65 (a) , (b) and (c), are not required to be established when the person seeks to give secondary evidence by producing a certified copy of a document alone and no other kind of secondary evidence of a document which is a public document within the meaning of Section 65(e) of the Evidence Act or by giving a certified copy of a document alone and no other kind of secondary evidence of a document which is a certified copy of an original permitted by the Evidence Act or by any other law to be given in evidence under Section 65(f) of the Evidence Act as the preconditions mentioned in Section 65(a) , (b) and (c) of the Evidence Act cannot be read into Section 65(e) or (f) by any stretch of statutory interpretation.

80. In view of the aforesaid analysis I am of the considered opinion that while a sale deed perse is a private document but once it is registered and entered in Book-I by the Registering Officer under Section 51 of the Registration Act, the records Page 94 of 160 Downloaded on : Sat Jul 13 03:18:56 IST 2019 C/SA/183/2014 CAV JUDGMENT thereof maintained by such Registering Officer is a public document as defined by Section 74 of the Evidence Act and, therefore, a certified copy of the same can be given as secondary evidence of the existence, condition or contents of the same.

81. Quite apart from the above, it is also clear from a perusal of the provisions of Section 57 of the Registration Act, that the books and indexes maintained under the provisions of the Registration Act are open to inspection by any person at all times and copies of entries in such books and indexes shall be given to all persons applying for such copies with the sign and seal of the registering officer and that all such certified copies bearing the sign and seal of the registering officer shall be admissible for the purpose of proving the contents of the original documents. On a conjoint reading of the provisions of Section 57(5) of the Registration Act alongwith the provisions of Sections 65(f) and 76 of the Evidence Act, it becomes clear that a certified copy of the sale deed which is compulsorily required to be registered and entered in the books and indexes maintained under the Registration Act , issued under the sign and seal of the registering officer, is permitted by the aforesaid section i.e. Section 57(5) of the Registration Act and Section 65(f) of the Evidence Act, to be given in evidence of the content of the document apart from and in addition to the fact that certified copies of public documents can also be given in evidence under Section 65(e) of the Evidence Act."

82. Thus, in view of the aforesaid discussion, I am of the view that the vociferous submission of Mr. Desai on behalf of the power of attorney holder that the certified copy of the sale Page 95 of 160 Downloaded on : Sat Jul 13 03:18:56 IST 2019 C/SA/183/2014 CAV JUDGMENT deed could not have been admitted as secondary evidence in the absence of any foundation being laid for the production of such secondary evidence should fail and is hereby rejected.

83. In the aforesaid context, I would like to say something for the benefit of the Sub-ordinate Courts. I have noticed that there is a serious misconception of law in the mind of the Presiding Officers of the Sub-ordinate Courts as regards adducing secondary evidence. In the case on hand also, at one point of time, it was sought to be argued that the defendants should have preferred an appropriate application in writing, seeking permission to produce the certified copy of the sale deed as secondary evidence as the original was not available being lost. It was also argued that in the application, the party seeking to adduce secondary evidence should assign cogent reasons and thereby lay a foundation for the purpose of furnishing secondary evidence. I may only say that there is no prescribed procedure for adducing the secondary evidence. There is absolutely no need to prefer any application in writing in this regard, seeking permission of the Court in the first instance to lead secondary evidence.

84. The Bombay High Court in the matter of Indian Overseas Bank v. Trioka Textile Industries , 2007 (AIR) (Bom) 24, has held that separate application for permission to lead secondary evidence is not necessary. It was held as under:-

85. Thereafter, again in the matter of Parasanbai Dhanraj Jain and others v. Sunanda Madhukar Jadhav and others , 2017 SCC Online Bombay 9875, the Bombay High Court has reiterated the principle of law laid down in Trioka Textile Industries (supra) and held as under:-

86. Recently also, in the matter of Karthik Gangadhar Bhat v. Nirmala Namdeo Wagh and Ors , 2018 (1) MHLJ 726, the Bombay High Court again reiterated the same principle and observed as under:-

87. Thus, in view of the above, no separate application is required to be filed, seeking permission to lead secondary evidence and it is open to the party seeking to lead secondary evidence before the Trial Court in accordance with Section 65 of the Evidence Act subject to the objection by other side, if any, and that objection has to be considered by the Trial Court at that time.

88. However, in the case on hand, the plaintiffs have, in clear terms, denied the execution of the sale deed in question. While holding that a certified copy of sale deed is admissible in evidence, it should be borne in mind that there is a basic difference in the admissibility and probative value of the documents. The admissibility of a document is one thing and its probative value quite another. These two things cannot be combined. A document like the certified copy of sale deed, in the case on hand, may be admissible and yet may not carry any weight. A proof of document is something which is independent from the evidentiary value of the document. As the plaintiffs have denied the execution of the sale deed in question, in such a situation, the execution must be proved as required under section 67 of the Evidence Act. The mere Page 99 of 160 Downloaded on : Sat Jul 13 03:18:56 IST 2019 C/SA/183/2014 CAV JUDGMENT 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 under Section 67 of the Evidence Act. It is not the legislative mandate that the direct evidence of handwriting was always necessary under Section 67 of the Evidence Act. The section also 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 be shown to the satisfaction of the Court the particular facts which needs to be established. At the cost of repetition, I state that the due execution can be proved by establishing that the signature in token of execution was affixed to the document by the person who is stated to have executed the document. This is normally done either;

(i) by examining the executant of the document; or

(ii) by examining a person in whose presence the signature/mark was affixed to the document; or

(iii) by referring the document to a handwriting expert and examining such expert; or

(iv) by examining a person acquainted with handwriting/signature of the person who is supposed to have written/signed the document; or

(v) by requesting the Court to compare the signature of the executant in the document with some admitted signature of Page 100 of 160 Downloaded on : Sat Jul 13 03:18:56 IST 2019 C/SA/183/2014 CAV JUDGMENT the person shown as executant; or

(vi) by proving admission by the person who is said to have signed the document, that he signed it.

89.. The two courts below dismissed the suit instituted by the plaintiffs challenging the genuineness and execution of the sale deed, Exh.140 substantially taking the view that as the defendants were in a position to produce the certified copy of the sale deed and the same being admissible as the secondary evidence, the plaintiffs could be said to have failed to prove that the transaction was sham and bogus and the defendants could be said to have proved the valid execution of the sale deed in their favour.

90.. Mr. Desai submitted that mere marking of document is no proof of its contents and the permission accorded to the defendants to adduce the secondary evidence by producing the certified copy of the registered sale deed does not absolve the defendants of their legal duty to prove their case as required under the facts and in law by adducing the required standard of evidence. He also submitted that it is a settled legal position of law that the genuineness of the signature or the thumb impression on the original cannot be proved by production of a certified copy.

91. According to Mr. Desai, in the absence of the original sale deed containing the endorsement within the meaning of Section 60 of the Registration Act or the certified copy thereof, the presumption under Section 60(2) of the Registration Act cannot be possibly raised in the present case.

Merely because the certified Photostat copy of the sale deed has been marked as an exhibit will not dispense with the requirement of the proof of sale or the factum of registration. (See Sait Tarajee Khimchand v. Yelamarti Satyam , AIR 1971 SC 1865).

92. Mr. Desai submitted that the defendants have also not been able to prove the due execution of the sale deed copy of which is Ex.140 inasmuch as neither the scribe thereof nor any of the attesting witnesses have been examined. The Proof of registration of a document, under the law, cannot be said to be proof of due execution of the document within the meaning of Section 67 , Evidence Act.

93. As regards the proof of due execution of the document within the meaning of Section 67 of the Evidence Act and the presumption in that regard under Section 60(2) of the Registration Act is concerned, there are conflicting decisions of the different courts. Let me look into few precedents taking the view that the mere proof of registration of a document under the law without anything more can be said to be proof of due execution of the document within the meaning of Section 67 of the Evidence Act.

94. In the case of Mamndra Kumardey vs. Mahendra Suklabaidya, reported in GAULR 1999 2219, a learned Single Judge of the Gauhati High Court had observed as under;

95. In State of Bihar and Ors. v. Sri Radha Krishna Singh & Ors. , AIR 1983 SC 684, the Supreme Court considered the issue in respect of admissibility of documents or contents thereof and held as under:

96. A Division Bench of the Andhra Pradesh High Court in Page 103 of 160 Downloaded on : Sat Jul 13 03:18:56 IST 2019 C/SA/183/2014 CAV JUDGMENT Ramanna v. Sambamoorthy , AIR 1961 Andh Pra 361 had held as under :--

97. A similar view was taken by a Division Bench of the Assam and Nagaland High Court in Bhutkani Nath v. Kamaleswari, AIR 1972 Assam 15. It was held :--

98. Following the above ratio, a Division Bench of the Bombay High Court in Ramkrishan Ganpat Futane v. Mohammad Kasam , AIR 1973 Bombay 242, has held :--

99. In Shiv Lal vs. Chetram, 1970 (2) SCC 775, the Supreme Court observed as under:

100. A Division Bench of the Assam & Nagaland High Court in the case of Bhukani Nath & Ors. vs. Mt. Kamaleshwari Nath & Anr., reported in AIR 1972 Assam & Nagaland 15 held as under;

101. In N.M. Ramachandraiah & Anr. vs. State of Karnataka & Ors. , reported in AIR 2007 Karnataka 164, a learned Single Judge of the Karnataka High Court, by referring to the aforesaid Division Bench decision of the Assam & Nagaland High Court in the case of Bhutkani Nath (Supra), held as under;

102. A learned Single Judge of the Bombay High Court, in the case of Bank of India vs. M/s. Allibhoy Mohammed & Ors., reported in AIR 2008 Bombay 81, had held as under;

103. A Division Bench of the Madhya Pradesh High Court had the occasion to consider two issues in the case of Smt. Rekha Rana (supra). Those two issues are as follows:

104. The two issues came to be answered as under;

105. The next question is whether a certified copy of a public document, issued by a registering officer, can be received in evidence without any further proof.

106. I may refer to the relevant portions of Sections 76 , 77 and 79 of Evidence Act extracted below in this behalf:

107. I have already held that a certified copy of a registered Instrument/document issued by the Registering Officer, by copying from Book 1, is a certified copy of a public document. It can therefore be produced in proof of the contents of the public document or part of public document of which it purports to be a copy. It can be produced as secondary evidence of the public document (entries in Book I), under Page 110 of 160 Downloaded on : Sat Jul 13 03:18:56 IST 2019 C/SA/183/2014 CAV JUDGMENT Section 65(e) read with Section 77 of the Evidence Act without anything more. No foundation need be laid for production of certified copy of secondary evidence under Section 65(e) or (f). But then it will only prove the contents of the original document, and not be the proof of execution of the original document. (Vide Section 57(5) of Registration Act read with Section 77 of Evidence Act). This is because registration of a document is proof that someone purporting to be 'X' the executant admitted execution, but is not proof that 'X' executed the document, I will elaborate on this aspect when dealing with Point No. (iv).

Re: Question (iv)

108. The next question is whether producing and marking of a certified copy of a sale deed, would amount to proving the sale-deed itself. If not, what is its effect. I will first refer to the decisions and Treatises, bearing on this aspect.

108.1. In Karuppanna Gounder v. Kolandaswami Gounder , AIR 1954 Mad. 486, a Learned Single Judge of the Madras High Court (Govind Menon, J, as his Lordship then was) held as follows:

108.2 In Padmanabhachari v. Annamraju Silapathirao 1954(2) Madras Law Journal 75, the Andhra Pradesh High Court considered a certified copy of mortgage bond dated 18-11-1876 (marked Ex. P/1). In that case, before the trial commenced, the plaintiff had issued a notice requiring defendants to admit the aforesaid mortgage deed. On the said notice, the first defendant's counsel had made an endorsement to the effect that the genuineness of the copy was admitted, it was subsequently argued by the first Page 112 of 160 Downloaded on : Sat Jul 13 03:18:56 IST 2019 C/SA/183/2014 CAV JUDGMENT defendant that only the genuineness of the certified copy as a copy of the copy kept in the Registrar's office was admitted, and that did not amount to an admission that it was a true copy of the original and therefore the plaintiff had to make out a case for the admission of the copy as secondary evidence of the original. It was also contended that the said admission did not absolve the plaintiff from proving the execution of the mortgage deed. Considering the said submission, K. Subba Rao, C. J. (as his Lordship then was) held as follows:

(Emphasis supplied) 108.3 A Division Bench of Nagpur High Court in Kashinath Shankarappa v. The New Akot Cotton Ginning and Pressing Co. Ltd. AIR 1951 Nagpur 255, while considering the question whether a copy of a balance sheet sent to the Registrar of Companies after the general meeting or the share holders of a Company is admissible in evidence, observed thus:

108.5 In Roman Catholic Mission v. State of Madras , AIR 1966 SC 1457 the Supreme Court held that -

108.6 Woodroffe and Ameer Ali's Law of Evidence (14th edition, Vol. 2) explains that matter thus:

109. The position therefore is that a certified copy of a sale deed issued by the Registration Officer under the Registration Act can be produced and marked as secondary evidence of a public document (that is Entries in Book 1 maintained under Section 51 of the Registration Act containing the copy of the registered document). Such certified copy issued by the Registration Officer in view of the certificates copied therein and the certificate made while issuing the certified copy will prove (i) that a document has been presented before the Registration Officer for registration; (ii) that execution had been admitted by the person who claimed to be the executant of the document and (iii) that the document was thereafter registered in the Registration Office and entered (copied) in Book 1. It is not however proof of the fact that original sale deed was duly executed by the actual person described as Executant. Production of a certified copy of a public document under Section 65(e) or production of a certified copy under Section 65(f) is completely different from production of a certified copy as secondary evidence of a private document (for eg, a sale deed under clauses (a), (b) and (c) of Section

110. Proving the execution of a registered sale deed (or any Page 116 of 160 Downloaded on : Sat Jul 13 03:18:56 IST 2019 C/SA/183/2014 CAV JUDGMENT other registered document which is not required by law to be attested) has two steps. The first step is production of the original sale deed or lay the foundation for letting in secondary evidence of the sale deed, by way of a certified copy of the sale deed, by showing the existence of any of the circumstances mentioned in clauses (a), (b) and (c) of Section

65. In other words, a certified copy can be offered as secondary evidence of the original sale deed under Clause (a) of Section 65 , by establishing that the original is in the possession or power of the person against whom the document is sought to be proved, or in the possession or power of any person out of reach of or not subject to the process of the Court, or in the possession of any person who is legally bound to produce it, and such person (of the three categories) does not produce it in spite of notice under Section 66 of the Act. A certified copy of the sale deed can also be offered as secondary evidence under Clause (c) of Section 65 , by showing that the original is destroyed or lost (or when the party offering evidence of its contents cannot, for any other reason not arising from his own default or neglect, produce it in reasonable time). Lastly a certified copy can be offered as secondary evidence under Clause (b) of Section 65 , where the existence, condition or contents of the (sic) has been admitted in writing by the person against whom it is proved or by his representative in interest, and such admission is proved.

111. The second step is to prove the execution of the deed (whether what is produced in the original or certified copy or other secondary evidence thereof given under Clause (a), (b) or (c) of Section 65 ) as required by Section 67 of the Act, Page 117 of 160 Downloaded on : Sat Jul 13 03:18:56 IST 2019 C/SA/183/2014 CAV JUDGMENT where the document is not one which is required by law to be attested or as required by Section 68 of the Act where the document is one which by law is required to be attested. This is because registration is not proof of execution. A private document cannot be used in evidence unless its execution is admitted by the party against whom it is intended to be used, or it is established by proof that it is duly executed. Due execution is proved by establishing that the signature (or mark) in token of execution was affixed to the document by the person who is stated to have executed the document. This is normally done either (i) by examining the executant of the document; or (ii) by examining a person in whose presence the signature/mark was affixed to the document; or (iii) by referring the document to a handwriting expert and examining such expert; or (iv) by examining a person acquainted with handwriting/signature of the person who is supposed to have written/signed the document; or (v) by requesting the Court to compare the signature of the executant in the document with some admitted signature of the person shown as executant; or

(vi) by proving admission by the person who is said to have signed the document, that he signed it.

112. If the person producing the certified copy of a registered instrument, without establishing the existence of any of the grounds under Clause (a), (b) or (c) of Section 65 , seeks to mark the certified copy, then it will not be secondary evidence of the original sale deed, but will only be the secondary evidence of the entries in a public document, that is the entries in Book 1 in the Registration Office which issued the certified copy. Such certified copy marked without laying Page 118 of 160 Downloaded on : Sat Jul 13 03:18:56 IST 2019 C/SA/183/2014 CAV JUDGMENT foundation for receiving secondary evidence, though admissible for the purpose of proving the contents of the original document, will not be proof of execution of the original document.

113. Certain amount of confusion exists because a certified copy can be produced as secondary evidence either under clauses (e) and (f) of Section 65 or under clauses (a), (b) or (c) of Section 65 . But the difference is that a certified copy is the only mode of secondary evidence that is permissible in cases falling under clauses (e) or (f) of Section 65 . But in the cases falling under clauses (a), (b) or (c), the secondary evidence can be a certified copy in the case of a registered instrument or by other modes described in Section 63 in regard to the unregistered documents. [ Vide Smt. Rekha Rana (supra)]

114. The position of law may be summed up thus:

115. A Division Bench of the Rajasthan High Court in the case of Indernath Modi vs. Nandram & Other , reported in AIR 1957 Rajasthan 231, speaking through K.N. Wanchoo, C.J. (as his Lordship then was) held as under:

It is obvious from these observations of their Lordships that the presumption under Section 60(2) is raised when evidence to prove execution in the manner provided in Section 67 of the Evidence Act is not available due to the executant or the marginal witnesses being dead or for some other reason. The presumption of Section 60(2) 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 provided by the Evidence Act . "

116. Let me now look into few decisions taking the view that Page 120 of 160 Downloaded on : Sat Jul 13 03:18:56 IST 2019 C/SA/183/2014 CAV JUDGMENT where the document is registered, then although its mere registration may not, by itself, constitute sufficient proof of the execution of the document, yet in view of Sections 57 and 60 respectively of the Registration Act , the certified copy and the certificate issued by the Registrar would constitute sufficient evidence to prove the contents of the document and be also, to some extent, an evidence of the due execution of the document.

117. A learned Single Judge of the Calcutta High Court, in the case of Laksmi Kanto Roy vs. Nishi Kanto Roy & Ors. , reported in (1966-67) 71 CWN 362, observed as under;

118. A Division Bench of the Mysore High Court in the case of Hutchegowda vs. Chennigegowd , AIR 1953 MYSORE 49, had observed as under;

As observed in "Piara v. Fattu', AIR 1929 Lab 711 (D) by Bhide, J .,with whom Fforde, J., agreed :

In AIR 1931 Bom 105 (B), Beaumont, C.J., and Baker, 1., were dealing with a case in which the first appellate court had observed "The lower court has not even insisted on proof that any such document was ever executed by deceased Ramji; the person who is said to have identified him before the Sub-Registrar is not examined. The respondent cited the writer and witnesses, but did not examine them. The result of this extraordinary conduct of the case is that the plaintiff is allowed to accuse Ms adversary without any proof of having a certain document, and is allowed to take every advantage of this accusation, being exempted thereby from his obligation to prove the execution of the document."

But Baker, J., who delivered the judgment of the High Court observed :

From these decisions, it is clear that the lower appellate. Court was right in regarding the copies of the two registered documents as some evidence of the genuineness of their originals."

119. A learned Single Judge of the Mysore High Court in the case of Amir Bi & Ors. vs. Committee of Management of Nilasandra Mosque , AIR 1969 MYSORE 103, had observed as under;

120. A Division Bench of the Madras High Court in the case of Irudayam Ammal & ors. vs. Salayath Mary, reported in AIR 1973 MADRAS 421 had observed as under;

The same view was taken in Gopaldas v. Sri Thankurji, AIR 1943 PC 83, in which after referring to the earlier decision of the Privy Council in AIR 1922 PC 56 (referred to above) Sir George Rankin observed that the evidence of due registration is itself some evidence of execution as against the other side. There is a full discussion on this question as to the presumption arising from the fact of due registration, coupled with the presumption arising under Section 114 of the Indian Evidence Act in a Bench decision of the Mysore High Court in Hutchegowda v. Chennigegowda , AIR 1953 Mys. 49, in which it was held that the evidence that a document was duly registered is some evidence of its execution by the person by whom it purports to have been executed.

There is a full discussion of the relevant case law including the decision of the Privy Council in AIR 1922 PC 56 aforesaid. In Revanna v. Dr. A. V. Ranga Rao , AIR 1952 Mys 119, it was observed that in cases where it is impossible for any person to prove execution of a document on account of the death of all the persons concerned the best and the only possible evidence that may be available is that of a certified copy of the registered document and that in such cases a presumption could arise under Section 60 of the Registration Act along with Section 114 of the Evidence Page 129 of 160 Downloaded on : Sat Jul 13 03:18:56 IST 2019 C/SA/183/2014 CAV JUDGMENT Act (see also Kashibai v. Vinayak , ). It will be seen that in the ultimate analysis, the problem in each case is 'has the best evidence been adduced on the facts of each case'; in the instant case we have not the slightest hesitation in holding that this essential test for arriving at the truth has been amply satisfied. "

19. The question has been considered in depth by Justice Raman Nair (as he then was) in Sumathi Amma v. Kunjuleskhmi Amma (1964 Ker LT 945). The learned Judge observed (at pages 946 and 947) :--

xx xx xx Page 131 of 160 Downloaded on : Sat Jul 13 03:18:56 IST 2019 C/SA/183/2014 CAV JUDGMENT With great respect I think that the attempt made in Indernath Modi v. Nand-ram (AIR 1957 Raj 231) to distinguish the Privy Council cases on the ground that those cases apply only, where it is not possible to take recourse to the method provided in Section 67 because of the factt that the executant and the marginal witnesses are either dead or cannot be found, and that it is only in such cases that recourse can be had 'to the presumption under Section 60 (2) of the Registration Act' is vitiated by the assumption that Section 67 of the Evidence Act prescribes a mode of proof and requires the executant or the "marginal witnesses" to be examined. Section 67 says nothing of the kind. It only says that facts have to be proved, and, unlike Section 68 , does not prescribe any particular mode of proof. The facts required to be proved under Section 67 can be proved by any kind of evidence, and there is nothing in the section to indicate that the evidence furnished by the registration certificate by virtue of Sub-section (2) of Section 60 of the Registration Act and by the presumption in Illustration (e) of Section 114 of the Evidence Act, is to be excluded."

We have no hesitation in endorsing the view of the learned Judge as laying down the correct law on the question if we may say so with respect. Therefore, we have to hold that the due execution of Exs. A15 and A16 have been properly proved in this case."

122. A Single Judge of the Punjab & Haryana High Court in the case of Shiv Das & ors. vs. Smt. Devki & Ors., reported in AIR 1978 Punjab & Haryana 285, had observed as under;

123. In one another decision of the Punjab & Haryana High Court in the case of Chander vs. Nihali, reported in 1992 (1) CurLJ 579, it has been held as under:

124. A Division Bench of the Bombay High Court in the case of Kashibai Martand vs. Vinayak Ganesh & Ors. , reported in AIR 1956 BOMBAY 65, had the occasion to consider the issue as regards the proof of execution of a document and the effect of sub-section (2) of section 60 of the Registration Act. Justice P.B. Gajendragadkar (as his Lordship then was), in his separate judgment, observed as under:

125. Justice Shah, in his separate but concurring judgment, had observed as under:

126. In Gangamoyi Debi v. Troilukhya Nath , 33 Ind App 60 (PC) their Lordships referring to the facts of the case stated that "on the day before his death, according to the respondents' Page 136 of 160 Downloaded on : Sat Jul 13 03:18:56 IST 2019 C/SA/183/2014 CAV JUDGMENT evidence, he went to the registry office, and there at 4 P.M. presented for registration the will in dispute......... The execution of the will was admitted by Brojo Nath Chowdhry who was identified by two witnesses, and then the will was registered." There was however one Lakhi Nath Mazumdar who had affirmed that he had seen Brojo Nath Chowdhry putting his signature on the document. 'But their Lordships observed:

127. Similarly in Ehtisham AH v. Jamna Prasad, 48 Ind App 365 at p. 372: (AIR 1922 PC 56 at p. 58) their Lordships observed:

128. The Privy Council made the position clearer in Gopal Das v. Sri Thakurji AIR 1943 PC 83. Their Lordships Page 137 of 160 Downloaded on : Sat Jul 13 03:18:56 IST 2019 C/SA/183/2014 CAV JUDGMENT observed:

129. It follows from what has been discussed above that if apart from the admission incorporated in the certificate of the Registrar under Section 60 (2) of the Registration Act, there is other evidence to corroborate the admission, the execution of the document can be considered as proved.

130. Mr. Dave, the learned senior counsel as well as Mr. Chandrani, the learned counsel appearing for the defendants vehemently submitted that the defendants could be said to have proved the valid execution of the sale deed in their favour. Mr. Dave, the learned senior counsel, to make good his submission, read a portion of the oral evidence of the defendant, namely, Mohanbhai Patel, Exh.137. According to Page 138 of 160 Downloaded on : Sat Jul 13 03:18:56 IST 2019 C/SA/183/2014 CAV JUDGMENT Mr. Dave, the defendant, namely, Mohanbhai Patel, in clear terms, has deposed that the sale deed was executed by late Kesar Sultan Sipai along with one of his major sons. Mr. Dave pointed out from the oral evidence wherein the defendant has deposed that Kesar Sultan Sipai had put his thumb impression and one of his major sons had also put his thumb impression. Both had appeared before the Sub-Registrar, and in the presence of the Sub-Registrar, the sale deed was duly executed. According to Mr. Dave, the evidence led by the defendants is sufficient to prove the valid execution of the sale deed. According to Mr. Dave, it cannot be said, as asserted by the other side, that the valid execution of the sale deed has not been proved or established. Mr. Dave submitted that there is a presumption that a registered document is validly executed. He submitted that a registered document like the sale deed, in the case on hand, would be valid in law. According to him, the onus of proof, thus, would be on a person who leads evidence to rebut the presumption. The argument of Mr. Dave is that if it is the case of the plaintiffs that the thumb impression or the signature on the sale deed is not genuine or forged or bogus, then it was for the plaintiffs to lead appropriate evidence to rebut the presumption. It is argued that in the instant case, the plaintiffs have not been able to rebut the said presumption. Mr. Dave submitted that the burden of proving the registered sale deed in question as sham and bogus, was on the Appellants (see issue No.2 framed by the Trial Court). Even this burden was rightly placed on the Appellants in view of section101 of the Evidence Act, 1872. Therefore, it was for the Appellants to lead appropriate evidence for discharging their burden of proving the registered sale deed in question as sham and bogus. The registered sale Page 139 of 160 Downloaded on : Sat Jul 13 03:18:56 IST 2019 C/SA/183/2014 CAV JUDGMENT deed in question was executed jointly by kesar Sipai and original Plaintiff Nos. 1 and 3 who happen to be the sons of Kesar Sipai. It is true that Kesar Sipai was not alive when the suit was instituted. However, when the original Plaintiffs Nos.1 and 3 were also parties to the registered sale deed in question as sellers along with Kesar Sipai, it cannot be said, as stated in the question on hand, that the sellers of the registered sale deed in question were not alive. He further submitted that out of the Plaintiffs Nos.1 and 3, only Plaintiff No.3 entered the witness box to depose. However, in his entire deposition nothing has been stated explaining as to how the registered sale deed in question would qualify as sham and bogus as sought to be asserted in the plaint. Even nothing has been stated in his deposition with regard to the signature of the Plaintiffs Nos.1 and 3 in the registered sale deed. It was open for the appellants to summon the attesting witness to the registered sale deed, if at all they were of the view that the attesting witnesses had not put their signatures in the registered sale deed. It is submitted that when the concerned official of the office of sub registrar clarified in his deposition that in the register maintained by the office of the registrar under the Registration Act , the signature of Plaintiffs Nos.1 and 3 was available in original along with their thumb impressions (Exh.157), it was open for the Appellants as Plaintiffs to prove through forensic expert, if at all that they were right, that the same do not reflect the signature and thumb impression of the Plaintiffs Nos.1 and 3. However, nothing of the sort was done. He submitted that if the judgments of the Courts below are taken note of in their true perspective, there is nothing therein to indicate, even remotely speaking, that the Courts below have simply jumped to the conclusion that when the concerned Page 140 of 160 Downloaded on : Sat Jul 13 03:18:56 IST 2019 C/SA/183/2014 CAV JUDGMENT document is a registered one, the proof of its execution stands dispensed with. It is submitted that as a matter of fact, after taking into consideration the certified copy of the registered sale deed at Exh.140 produced by the Respondents as also the copy of the registered sale deed produced by the concerned official of the office of the sub registrar at Exh.154 from the records maintained by the office of the sub registrar under the Registration Act and the depositions of the Respondent No.1 at Exh.137 and the official of the office of sub registrar at Exh.152 and the conduct of Appellants, the Trial Court recorded a finding that the execution and the contents of the registered sale deed were duly proved and the Appellants have failed to prove that the registered sale deed was sham and bogus for which the burden was on the Appellants as per the Issue No.2 framed by the Trial Court.

131. Mr. Dave, in the aforesaid context, tried to fortify his submissions by placing reliance on the decisions of the Supreme Court in the case of Ningawwa vs. Byrappa Shidappa Hireknrabar (supra), Prem Singh (supra) and Vimal Chand Chevarchand Jain (supra).

132. According to Mr. Dave, the legal position is that heavy burden of proof lies upon a person impugning the transaction to show that the same is sham or fraudulent one. According to Mr. Dave, a distinction has to be borne in mind in regard to the nominal nature of a transaction which is no transaction in the eye of law at all and the nature and character of a transaction as reflected in a deed of conveyance.

133. To put it in other words, according to Mr. Dave, the initial burden of proving the transaction bogus or sham was on the plaintiffs and they have miserably failed to lead any evidence in this regard. In such circumstances the onus cannot be said to have shifted upon the defendants to establish or prove the valid execution of the sale deed. A registered document and the registration of the sale deed re-enforces the valid execution of the sale deed. According to Mr. Dave, a registered document carries with it a presumption that it was validly executed. It is for the party, challenging the genuineness of the transaction, to rebut such presumption.

134. Mr. Dave, with a view to give us a fair idea about the nature of the evidence laid by the plaintiffs, took us through the cross-examination of one of the plaintiffs who entered the witness box. In his cross-examination, he deposed as under:

135. A specific question was put to the witness as to on what basis he asserted that no sale deed had been executed. The reply of the plaintiff is worth taking note of. This is what I find from the cross-examination.

136. Mr. Dave, thereafter, took me to the evidence of Page 142 of 160 Downloaded on : Sat Jul 13 03:18:56 IST 2019 C/SA/183/2014 CAV JUDGMENT Pareshbhai K. Shukla, Exh.152. This witness, at the relevant point of time, was serving as a clerk in the office of the Sub- registrar at Rajkot. His examination-in-chief reads thus:

137. In his cross-examination, on behalf of the defendants Nos.3,4 and 5, he deposed as under:

138. On the other hand, Mr. Desai, the learned senior counsel appearing for the power of attorney submitted that the plaintiffs came to the Court alleging that the defendants had created a bogus sale deed and had got it executed in suspicious circumstances. When the execution of the sale deed put forth by the defendants was denied by the plaintiffs, it would not be correct in law to say that it was for the plaintiffs to establish that the document was forged or concocted. Mr. Desai would submit that the party, who propounds the document, will have to prove it. The plaintiffs having denied the execution of any such sale deed, the burden was on the defendants to prove that the plaintiffs had executed the sale deed and not on the plaintiffs to prove the negative.

139. Mr. Desai, in support of his aforesaid submission, has placed reliance on a decision of this Court in the case of Thiruvengadam Pillai vs. Navaneethammal , reported in (2008) 4 SCC 530: AIR 2008 SC 1541, wherein the Supreme Court held that when the execution of an unregistered document put forth by the plaintiff was denied by the defendants, the ruling that it was for the defendants to establish that the document was forged or concocted is not a sound proposition. The first appellate Court proceeded on the basis that it is for the party who asserts something to prove that thing; and as the defendants alleged that the agreement was forged, it was for them to prove it. But the first appellate Court lost sight of the fact that the party who propounds the document will have to prove it. It was the plaintiff who had come to Court alleging that the first defendant had executed an agreement of sale in his favour. The defendant having Page 145 of 160 Downloaded on : Sat Jul 13 03:18:56 IST 2019 C/SA/183/2014 CAV JUDGMENT denied it, the burden was on the plaintiff to prove that the defendant had executed the agreement and not on the defendant to prove the negative.

140. The principle of law explained by the Supreme Court in Thiruvengadam Pillai (supra) will not apply in the case on hand. In Thiruvengadam Pillai (supra), the execution was of an unregistered document. The case on hand is one of a registered document in the form of a sale deed. It carries a presumption of genuineness as regards the valid execution also. I must remind myself of what the Supreme Court has observed in the case of In K. Laxmanan v. Thekkayil Padmini & Ors. , AIR 2009 SC 951. In para-19, the Supreme Court observed as under;

141. In In Krishna Mohan Kul @ Nani Charan Kul & Anr. v. Pratima Maity & Ors. AIR 2003 SC 4351, the Supreme Court, in para-12, observed as under:

142. The issue with regard to the burden of proof, in my opinion, should pale into insignificance because both the sides have tried to lead evidence in their own manner. The plaintiffs tried to lead evidence to indicate that the transaction was sham and bogus and no sale deed as asserted by the defendants was executed, whereas the defendants led evidence in their own way by producing the certified copy of the sale deed and also by examining one of the officers from the office of the sub-registrar to prove the valid execution of the sale deed. However, the correct position of law as regards the burden of proof has been explained by the Supreme Court in the case of Anil Rishi vs. Gurbaksh Singh, Appeal (Civil ) 2413 of 2006, decided on 2nd May, 2006, wherein late Justice S.B. Sinha had observed as under:

143. I am dealing with a second appeal preferred by the original plaintiffs against the concurrent findings recorded by the two courts below. Essentially, the issue whether the defendants could be said to have proved the valid execution of the sale deed in their favour would be a question of fact, of course, subject to the evidence on record. The two courts below, after due consideration of the oral as well as the documentary evidence on record, have recorded a concurrent finding that the defendants have been able to prove the contents of the sale deed as well as valid execution of the sale Page 148 of 160 Downloaded on : Sat Jul 13 03:18:56 IST 2019 C/SA/183/2014 CAV JUDGMENT deed. The submission on behalf of the power of attorney is that the evidence as regards valid execution of the sale deed is deficient. To put it in other words, the evidence is not sufficient to justify the findings as regards the valid execution of the sale deed. I may sum up my final conclusion as under:

144. It is true that on mere production of a certified copy of a document which is more than 30 years old, no presumption is permitted regarding its genuineness or execution under Section 90 of the Evidence Act. Section 90 requires production in Court of the particular document in original in regard to which the Court is asked to draw the statutory presumption of its execution. In Basant Singh v. Brij Raj Saran Singh , AIR 1935 PC 132 their Lordships of the Privy Council observed:

145. This view came to be affirmed by the Supreme Court in Harihar Prasad v. Deonarain Prasad, (S) AIR 1956 SC 305 at p. 310. Although therefore a certified copy may be used to prove the contents of a document, yet no statutory presumption under Section 90 of the Evidence Act is available in a case where the original is not produced but a certified copy alone is produced.

146. The necessary question which arises from the above is: Is Page 149 of 160 Downloaded on : Sat Jul 13 03:18:56 IST 2019 C/SA/183/2014 CAV JUDGMENT the certified copy of the sale deed given by the Registrar's Office admissible to prove the execution of the sale deed? I do not think it can be seriously disputed that the certified copy although admissible in evidence as secondary evidence may be enough to prove the contents of the document, but is not enough to prove its execution.

147. It cannot however be contended that the certified copy is not admissible in evidence to prove even the contents of the document. Section 61 of the Evidence Act embodies the general rule that the contents of the documents may be proved either by primary or secondary evidence. The terms "primary' and "secondary evidence" have been explained in Sections 62 and 63 . It is Section 64 which lays down that the documents must be proved by primary evidence except in the cases where the secondary evidence is permitted under the Evidence Act . This section rests on the maxim that the 'best evidence' must always be produced. But when it is proved that the original is either lost, or has been wilfully suppressed or cannot be produced for reasons beyond the control of the plaintiff, secondary evidence can certainly be looked into.

148. Now under Section 65 , the secondary evidence may be given of the existence, condition or contents of a document when the original is a public document within the meaning of Section 74 . Section 74 defines what are public documents. Subsection (2) of Section 74 states that the public records kept in any State of private documents are also public documents. This Section therefore refers to such records also as are kept under the Indian Registration Act , particularly Sections 51 and Page 150 of 160 Downloaded on : Sat Jul 13 03:18:56 IST 2019 C/SA/183/2014 CAV JUDGMENT 57- Section 51 refers to the register-books to be kept in the several registration offices. Under Section 57 registering officers are under a legal obligation to allow inspection of certain books and indexes, and to give certified copies of entries. Under Sub-section (5) of Section 57 all copies given under the said Section are to be signed and sealed by the registering officer. These certified copies shall be admissible for the purposes of proving the contents of the original document.

149. Under Section 77 of the Evidence Act also certified copies are admissible to prove the contents of the public documents. There is however some difference between Section 57 of the Registration Act and Section 77 of the Evidence Act. Whereas Section 57 of the Registration Act makes the certified copies admissible to prove the contents of the original' documents. Section" 77 of the Evidence Act makes the certified copies admissible to prove the contents of the public documents. This difference does not alter the effect as far as this case is concerned. This Section i.e., Section 57 , therefore, permits a certified copy to be used for the purposes of proving the contents of the original document. Similarly under Section 60(2) of the Registration Act a certificate containing the word. 'registered' together with the number and page of the book in which the document has been copied-shall be signed and sealed and dated by the registering officer. This certificate under Section 60 (2} is admissible for the purpose of proving that the document has been duly registered in the manner provided by this Act and that the facts mentioned in the endorsement referred to in Section 59 have occurred as Page 151 of 160 Downloaded on : Sat Jul 13 03:18:56 IST 2019 C/SA/183/2014 CAV JUDGMENT therein mentioned.

150. Although therefore a mere registration of a document may not by itself constitute sufficient proof of the execution of the document, but in view of Sections 57 and 60 of the Registration Act the-certified copy and the certificate issued by the Registrar, do, in my judgment, constitute sufficient evidence to prove the contents of the document and also to some extent an evidence of the execution of the document. It may be that the proof of admission of execution before the Registrar may not satisfy completely the requirements of Section 67 of the Evidence Act which requires that the signature of the executant must be proved to be in his handwriting. But it cannot be argued that admission of signature before the Registrar cannot in any case form an evidence of the execution of the document. It may be argued validly that merely on the basis of admission before the Registrar "it may be dangerous to declare the execution of the document as proved, but certainly if there is other corroborating evidence the admission of execution before the Registrar can be a relevant piece of evidence from which the presumption of execution can legitimately be drawn. After all the solemnity of the registration of a document cannot be lost sight of. The statutory inference which gives rise from the solemnity of the registration, cannot be, therefore, ignored,

151. A combined reading of Sections 57 and 60 of the Registration Act and Section 67 of the Evidence Act lead me to the conclusion that mere production of a certified copy of a document registered may not be enough to prove the Page 152 of 160 Downloaded on : Sat Jul 13 03:18:56 IST 2019 C/SA/183/2014 CAV JUDGMENT execution of the document. But it is sufficient to prove the contents of the document. A certificate issued by the Registrar under Section 60 is acceptable in evidence to prove to some extent the admission of execution made by the executor before the Registrar. It may be that an imposter approached the Registrar and got the registration made, but no such allegation is made in this case. It is not even suggested to any one in the witness box. If apart from the admission incorporated in the certificate of the Registrar under section 60(2) of the Registration Act, there is other evidence to corroborate the admission, the execution of the document can be considered as proved. The two courts below, as stated above, after due consideration of the oral as well as the documentary evidence on record, has recorded a concurrent finding as regards the genuineness of the sale deed as well as due execution of the sale deed. The attempt on the part of the learned counsel appearing for the power of attorney is to persuade me to take the view that the evidence on record is deficient and not sufficient to hold valid execution of the sale deed.

152. I must remind myself of two decisions of the Supreme Court as regards the extent, to which, the High Court can go into in a second appeal under section 100 of the CPC. The Supreme Court, in Madamanchi Ramappa & Anr. vs. Muthalura Bojappa , reported in AIR 1963 SC 1633 observed as under;

153. The Supreme Court, in Deity Pattabhiramaswamy vs. S. Hanymayya, reported in 1959 AIR (SC) 57, observed as under:

The principle laid down in this decision has been followed in innumerable cases by the Privy Council as well as by different High Courts in this country. Again the Judicial Committee in Midnapur Zamindari Co. Ltd. v. Uma Charan , 29 Cal WN 131 : 1923 AIR(PC) 187), further elucidated the principle by pointing out:

Nor does the fact that the finding of the first appellate Court is based upon some documentary evidence make it any the less a finding of fact (See 11 ILR(Lah) 199 : 1930 AIR(PC) 91). But, notwithstanding such clear & authoritative pronouncements on the scope of the provisions of Section 100 , Civil Procedure Code, some learned Judges of the High Courts are disposing of Second Appeals as if they were first appeals. This introduces, apart from the fact that the High Court assumes & exercises a jurisdiction which it does not possess, a gambling element in the litigation & confusion in the mind of the litigant public. This case affords a typical illustration of such interference by a Judge of the High Court in excess of his jurisdiction under S. 100 , Civil Procedure Code. We have, therefore, no. alternative but to set aside the decree of the High Court on the simple ground that the learned Judge of the High Court had no. jurisdiction to interfere in second appeal with the findings Page 155 of 160 Downloaded on : Sat Jul 13 03:18:56 IST 2019 C/SA/183/2014 CAV JUDGMENT of fact given by the first appellate Court based upon an appreciation of the relevant evidence. In the result, the decree of the High Court is set aside and the appeal is allowed with costs throughout."

154. Thus, in view of the concurrent findings recorded by the two courts below and also considering the discussion in the two judgments of the courts below, I should not go into the sufficiency or adequacy of the evidence to support the finding of fact arrived at by the two courts below as regards the genuineness of the sale deed, more particularly, proving the contents of the same as well as the execution.

155. The aforesaid discussion answers the questions Nos.12(A), 12(B), 12(C), 12(D), 12(E) and 12(F) as formulated by this Court.

156. The above takes me to the issue with regard to Section 23 of the Registration Act Section 23 of the Registration Act reads thus:

157. Mr. Desai, the learned counsel appearing for the power of attorney vehemently submitted that the disputed sale deed was executed on 25th February, 1965. The same was presented Page 156 of 160 Downloaded on : Sat Jul 13 03:18:56 IST 2019 C/SA/183/2014 CAV JUDGMENT in the office of the Sub-Registrar for the purpose of registration on 25th January, 1966 and, ultimately, the same came to be registered on 20th August, 1966. The submission of Mr. Desai is that in view of Section 23 of the Registration Act, the entire transaction could be said to be a nullity as the sale deed has got to be registered within four months from the date of its execution. According to Mr. Desai, the sale deed, although was executed on 25th February, 1965, the same came to be presented on 25th January, 1966, i.e., much beyond the period of four months and, in such circumstances, the same could not have been registered in the first place. This fact has been disputed by the defendants. According to the defendants, the sale deed itself indicates that the stamp-paper was purchased on 21st January, 1966 and, therefore, the same could not have been executed on 25th February, 1965. In such circumstances, according to Mr. Dave, the issue with regard to Section 23 of the Registration Act pales into insignificance. Besides the same, Mr. Dave pointed out that there are no pleadings in this regard. In the entire plaint, this issue has not been pleaded. Mr. Dave further pointed out that even the Trial Court had no occasion to frame any issue with regard to the legality and validity of the registration of the sale in context with Section 23 of the Registration Act. In such circumstances, according to Mr. Dave, this issue may not be gone into in a second appeal.

158. To the aforesaid extent, I am at one with Mr. Dave. It is true that there is no pleading worth the name in the plaint with regard to Section 23 of the Registration Act. No foundation has been laid in this regard. Although, the two courts did touch this issue, but, ultimately, there is no specific finding in this Page 157 of 160 Downloaded on : Sat Jul 13 03:18:56 IST 2019 C/SA/183/2014 CAV JUDGMENT regard. This being a mixed question of law and fact, I would not like to go into the same in this second appeal. It appears that this issue was raised, for the first time, in the course of the arguments before the Trial Court.

159. In the aforesaid context, I may refer to and rely upon the decision of the Supreme Court in the case of Ram Sarup Gupta vs. Bishun Narain Inter College , reported in AIR 1987 SC 1242, wherein the Supreme Court observed as under:

160. The aforesaid discussion answers the question No.12(G) formulated by this Court.

161. One of the substantial questions of law formulated in the Page 158 of 160 Downloaded on : Sat Jul 13 03:18:56 IST 2019 C/SA/183/2014 CAV JUDGMENT present second appeal is with respect to the absence of consent of the two minors vis-a-vis the transfer of property by their father. Question No.12(H) formulated by this Court reads as under:

162. The Hindu Minority and Guardianship Act, 1956 contains a provision vide section 8(2) thereof requiring the guardian of the minor to obtain the prior permission of the District Court before causing disposal of any property belonging to the minor. However, the appellants are not governed by the Hindu Minority and Guardianship Act, 1956 . The appellants are Muslims. Even in a situation where the Hindu Minority and Guardianship Act, 1956 is applicable, the disposal of the property of the minor by the guardian without the prior permission of the District Court is voidable as opposed to void at the instance of the concerned minor and upon attaining majority. Such option is required to be exercised by the minor by filing an appropriate Civil Suit for setting aside such transfer within a period of three years from the date of attaining majority by the minor (See section 8(3) of the Hindu Minority and Guardianship Act, 1956 read with article 60 of the Limitation Act, 1963 .

163. The aforesaid answers the question No.12(H) as framed by this Court.

164. All the questions formulated by this Court at the time of Page 159 of 160 Downloaded on : Sat Jul 13 03:18:56 IST 2019 C/SA/183/2014 CAV JUDGMENT admission of the second appeal are answered accordingly against the plaintiffs.

165. For all the reasons stated aforesaid, this second appeal must fail and is hereby dismissed with costs. The appellants will pay the Court Fee.

(J. B. PARDIWALA, J)

166. After the judgment is pronounced, Mr. Hriday Buch, the learned counsel appearing for the power of attorney holder makes a request that the interim order, earlier granted by this Court, directing the parties to maintain status quo as regards the nature, character and possession of the suit property, may be continued for a further period of four weeks from today. Considering the request of Mr. Buch, the interim order earlier passed by this Court, and which has continued till this date, shall continue for a further period of four weeks.

(J. B. PARDIWALA, J) Vahid Page 160 of 160 Downloaded on : Sat Jul 13 03:18:56 IST 2019