1
IN THE HIGH COURT OF JUDICATURE
AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
SUIT NO. 105 6 OF 198 7
M/s. M.J.Builders ...Plaintiffs
Vs.
Aziz Moosa & Ors. ...Defenda nt s
Mr. Rajiv Kumar with Ms. Neeta Solanki
with Kiran Jain i/b. Kiran Jain & Co., for Plaintiffs
Mr. M.U.Pandey for Defendant s 6A to 6F
Mr.Samir Vaidya with Mr. S.P.Dalal
i/b. Dalal & Co., for Defenda nt No.9
AND
SUIT NO. 320 2 OF 198 9
Moham me d Ju m m a n Haji Abdul Sattar ...Plaintiff
Vs.
M/s. M.J. Builders & 2 Ors. ...Defenda nt s
Mr. Samir Vaidya with Mr. S.P. Dalal
i/b. Dalal & Co., for Plaintiff
Mr. Rajiv Kumar with Ms. Neeta Solanki
i/b. Kiran Jain & Co., for Defenda nt No.1
Mr. A.J. Almeida for Defenda nt No.3
CORAM: SMT.ROSHAN DALVI, J.
DATED: 12 TH FEBRUARY, 200 9
J U D G M E N T:
1. Several parties have been claiming in several capacities
the land which initially stood admittedly in the name of one
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Haji Abdul Sattar Ali Mohamme d Cham a dia (in short Haji)
since 5 th November 1960 under the Conveyance executed in
his favour on that date. There have been 3 suits filed by 3
such parties claiming the said property. The above 2 suits are
2 of them. The 3 rd suit was filed by one Aziz Moosa being Suit
No.1035 / 1 9 9 0 , which has been dismissed for default of his
appeara n ce upon non- prosecution of his claim.
2. The above 2 suits have been filed against various parties
also claiming diverse rights in the suit property.
ig Several
Defenda nt s have since given up their defence. The main 3
contesting parties are the Plaintiff in Suit No.1056 / 1 9 8 7 one
is a Builder and Developer and who claims interest in the suit
property initially from an Agreement for Sale dated 20 th
December 1978, which culminated in a Consent Decree with
the successors in title of the aforesaid Haji under a Consent
Decree passed by this Court on 10 th Ju ne 1982. The other
claima nt is Defenda nt No.6 in the aforesaid Suit
No.1056 / 1 9 8 7 who initially claimed fishing rights in the suit
property followed by an option to purcha se the said property,
which he claims to have exercised during the life time of the
Haji. The 3 rd claimant is the Plaintiff in Suit No.3202 / 1 9 8 9
who claims to be the only son left by the Haji as his sole heir
and legal represent ative. He is also Defendant No.9 in Suit
No.1056 / 1 9 8 7 .
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3. There are several Defendan t s in Suit No.1056 / 1 9 8 7 , who
have not defended the suit and who need not be considered,
save and except Defendant Nos.6 and 9 aforesaid. The
successor in title of the aforesaid Haji who was his second wife
is the Defenda nt in both the Suits. She has expired pending
the suits. She as well as her daughter are made party
Defenda nt s in Suit No.3202 / 1 9 8 9 .
4. The suit property is an open land admeas u ri ng about 53
acres 30 guntha s under Survey No.44 of village Darauli near
Malwani at Malad, Mumbai described in the aforesaid
Conveyance and the later docume nt s as being a land in
Taluka Borivali, Bombay Subur b a n Division as also in Taluka:
Satara, Dist: Thane. The bounda ries of the suit land are
admittedly the bound aries of Survey No.15, Survey No.45,
Survey No.51 and Malwani village to the East,West,North and
Sout h respectively of the suit property. All the claimant s of
the suit land have no issue with regard to the identification of
the suit land and claim the same land from the same common
predecessor in title, the aforesaid Haji Abdul Sattar Ali
Moham med Cham adia.
5. The Plaintiff in Suit No.1056 / 1 9 8 7 shall be referred to as
the Builder. The Plaintiff in Suit No.3202 / 1 9 8 9 , who is also
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Defenda nt No.9 in the other suit, shall be referred to by his
name Jum m a n . The Defendant No.6 in the suit of the Builder
(and who has not filed any suit himself) shall be referred to by
his name Koli.
6. Each of the aforesaid parties have challenged the right
claimed by the others. The successors in title of the Haji have
accepted and admitted the claim of the Builder with whom
they have entered into the agreement for sale and later the
Conveyance by way of the Consent Decree.
ig Based upon the
respective claims of the aforesaid parties Ju stice R.G.
Vaidyanat h a framed separate issues in the aforesaid 2 suits
which are answered as follows:-
ISSUES IN SUIT NO.105 6 / 1 9 8 2 FINDINGS
1. Whether Plaintiff is a registered firm. Yes
2. Whether Plaintiffs firm is the owner of
suit property having acquired it from
the 4 th Defenda nt under an agreement
of sale dated 20.12.1978 followed by
decree in suit No.1093 of 1982. Yes
3. Whether Plaintiff’s Vendor Hazarab ai
(4 th Defendan t) was the wife of the
original owner Haji Abdul Sattar Ali
Moham me d as alleged in the Plaint. Yes
4. Whether the said original owner Haji
Abdul Sattar Ali Moham med gifted the
suit property in favour of Hazarab ai on
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15.4.1968 as alleged in para 7 of the
Plaint. Yes
5. Whether Haji Abdul Sattar Ali Mohammed
executed a Will dated 18.4.1968 as
alleged in paragrap h 7 of the plaint. Yes
6. Whether the Will dated 18.4.1968 is a
forged and got up document as alleged
in the written stateme nt. No
7. Whether the Plaintiff proves that he was
put in possession of suit property and
continue d to be in possession of the suit
property as alleged in the plaint. Yes
8. Whether the consent decree in suit
No.1093 / 1 9 8 2 was a collusive and
fraud ulent as alleged in the written
stateme nt. No
9. Whether the consent decree in Suit
No.1093 / 1 9 8 2 is void being in contr-
-avention of Urban Land Ceiling Act
and the Contract Act as alleged in
paragrap h 3 of the written stateme nt
of 6 th Defendan t. No
10. Whether Plaintiff proves that Haji Abdul
Sattar Ali Moham me d died in 1968. Yes
11. Whether Haji Abdul Sattar Ali Moham med
died in 1986 as alleged in the written
stateme nt. No
12. Whether the 6 th Defendant has been in
possession of the suit property since 1968. No
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13. Whether 6 th Defenda nt is a licencee of
suit property for fishing purposes under
an agreement dated 30.9.1968 executed
by Haji Abdul Sattar Ali Moham med with
an option to purcha se the land as alleged
in paragrap h 27 of the written stateme nt
of 6 th Defendan t. No
14. Whether 6 th Defenda nt exercised option
to purcha se the land and paid consid-
-eration amou nt to Haji Abdul Satar Ali
Moham med as alleged. No
15. Whether 9 th Defenda nt is the son of Haji
Abdul Sattar Ali Moham med and is the
sole heir of the original owner as alleged
in his written statemen t. No
16. What relief ?
ISSUES IN SUIT NO.320 2 / 1 9 8 9 FINDINGS
1. Whether the real name of the Plaintiff
is Moham med Ju m m a n Abdul Satar
as alleged by him. No
2. Whether the Plaintiff is the only son
or sole heir or legal represent a tive of
the deceased Haji Abdul Sattar Ali
Moham med as alleged in paragrap h 1
of the plaint . No
3. Whether Haji Abdul Sattar Ali
Moham med expired on or about 2 nd
May 1968 as alleged in paragrap h 1
of the plaint. No
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Or
Whether Haji Abdul Sattar Ali Mohammed
died on 2 nd May 1986 No
Or
Whether Haji Abdul Sattar Ali Mohammed
died on 15 th May 1968 as alleged in the
written stateme nt. Yes
4. Whether the docume nt annexed as Ex.’A’
‘B’ and ‘C’ to the plaint are genuine
docume nt s as sought to be represented
in paragrap h 1 of the plaint. No
5. Whether the docume nt s marked as Exhs.
‘A’,’B’ & ‘C’ to the plaint are fabricated or
caused to be made by the Plaintiffs with
the full knowledge of their falsely as
alleged in paragrap h 5 of the written
stateme nt. Yes
6. Whether the Plaintiff’s father was owner Need not be
of the suit land as alleged in paragrap h answered
2 of the plaint. excep t that
the Haji was not
the Plaintiff’s father
7. Whether the Plaintiff’s father during his No
life time or after his death the Plaintiff Except
has been in continuo u s or uninterr u p te d that the
occupation, possession or enjoyment of posse s s i o n
the suit property as alleged in para 5 of of the Haji
the plaint. is admitt ed
8. Whether the father of the Plaintiff had
entru s ted those defenda n t with the
original conveyance of the suit land as
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‘Amanat’ as alleged in paragrap h 6 of
the plaint. No
9. Whether these Defenda nt s administered
or caused to be administered any threats
to the Plaintiff as alleged in paragrap h 11
of the plaint. No
10 .Whether 1 st Defenda nt s have misused
the title deeds in collusion with Defendant
No.2 and 3 as alleged in paragrap h 21 of
the plaint. No
11 .Whether Plaintiff is the owner of the suit
property or entitled to declaration to that
effect as alleged in paragrap h s 24 & 25 of
the plaint. No
12 .Whether Plaintiff is in possession of the
suit property as alleged in paragrap h 25
of the plaint. No
13 .Whether the Defenda n t No.1 was at all
material times in possession of the suit
property till they handed over possession
to Shri A.P. Yagnik, the Private Receiver
appointed by this Hon’ble Court as alleged
in paragrap h 19 of the written stateme nt
of Defendant No.1. Yes
14 .Whether the claim of the Plaintiff is barred
by Law of Limitation as alleged in paragrap
21 of the written stateme nt. No
15 .Whether Plaintiff has not valued the subject
matter of the suit property for payment of
the Court fees as alleged in paragraph 22
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of the written statemen t. Yes
16 .Whether Defenda nt No.2 is widow of the
original owner of the suit property viz.
Haji Abdul Sattar Ali Moham me d. Yes
17 .Whether the original owner Haji Abdul
Sattar Ali Moham med gifted the suit
property by oral gift in favour of Defen-
-dant No.2 on 15 th April 1968 as alleged. Yes
18 .Whether the first Defendant acquired
the suit property by entering into agre-
-ement of sale with Defenda nt No.2
followed by a Consent Decree in Suit
No.1092 / 1 9 8 2 as alleged. Yes
19 .Whether the first Defendant was put
in possession of the suit property and
contin ued in possession till the Receiver
was appointed by the Court. Yes
20 .What relief ?
7. The Builder has led extensive evidence not only to prove
his right, title and interest in the suit property, but also to
disprove the right claimed by Ju m m a n . He has accordingly
examined 9 witnesses. He has got produced documen t s of the
Haji with regard to the suit property by himself and through
the Tahasildar of the Urban Land Ceiling Depart me n t and one
Architect and licenced Surveyor. He has got produced further
docume nt s from the Trustee of the Cemetery where the Haji
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was stated to have been buried, the Officer of Tata Memorial
Hospital where the Haji was admitted for treatme nt of Cancer
which he suffered, a Police Inspector who investigated the
private complaint filed by the Builder against the Jum m a n
with regard to the alleged fraud and fabrication of the
docume nt s made by Ju m m a n and one independen t witness
from the native village of the Haji, being village Dhoraji in
Gujarat.
8. He has been extensively cross examined on behalf of Koli
as well as Ju m m a n . The other witnesses also have been
similarly cross examined though they have essentially only
produced the docume nt s and gave direct evidence to prove
them, save and except the independen t witness from the
village of the Haji who has deposed with regard to his
knowledge about the family of the Haji and the execution of
certain documen t s by the Haji during his life time.
9. The Koli has led evidence essentially to prove the
execution of the licence for fishing granted by the Haji to him
and the option to purch ase exercised by him. He has also
relied upon the Revenue records as also the Revenue
proceedings.
10. Jum m a n has not examined himself. He has not produced
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or tendered any docume nt s. He has essentially sought to rely
upon the docume n t s got produced by the Builder to show the
alleged fraud practiced by him in fabricating docume n t s to
show him to be the son of the Haji.
11. Aside from challenging the claim of the Builder, Koli has
also sought to challenge the right claimed by the Builder upon
his transaction with the successors in title of the Haji under
the Urban Land (Ceiling and Regulation) Act, 1976 (ULCRA).
He has contended that the decree sought to be obtained by the
Builder with the predecessor s in title of the Haji (his wife one
Hazarabai and her daughter Kulsu mb ai who are both
Defenda nt s in the aforesaid Suits) is a collusive decree. He
has contended that the Builder could not obtain possession of
the suit property under such a collusive decree and his
trans action is void under ULCRA. The Builder has denied any
fishing rights having been granted by the Haji to Koli or Koli
having accepted the same and exercised his option to
purcha se the suit property from the Haji. The Builder has also
challenged Ju m m a n’ s claim as the son of the Haji.
12. Since common evidence has been led, the issues from the
aforesaid 2 suits would also be required to be answered in
common, since several of the issues are common to both the
Suits. These are with regard to the owners hip of the suit
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property claimed by each of these parties, the possession of
the Suit property also claimed by each of them, the execution
of the Consent Decree in collusion or otherwise, the execution
of a Gift and later a Will by the said Haji, whether the
successors in title of the Haji who claim to be his widow and
daughter were indeed his wife and daughter and whether
Ju m m a n is the son of the said Haji by that name under the
docume nt s which he claims. Aside from these main issues the
issue relating to the bar of limitation as well as the inadequate
valuation of Ju m m a n’ s Suit would also have to be decided.
13. The admitted fact in this Suit is the title of the Haji under
the aforesaid Conveyance dated 5 th November 1960. The
partner s hip firm of the Builders is also not in issue. The
aforesaid issues shall, therefore, be answered accordingly.
14. ISSUE NO.1 IN SUIT NO.105 6 / 1 9 8 7 : RE: Partners hip
Firm : Upon the undisp u t ed extract of the Firm Exhibit- A, the
issue is answered in the Affirmative .
15. ISSUE NOS.4, 5 & 6 IN SUIT NO.105 6 / 1 9 8 7 AND ISSUE
O.17 IN SUIT NO.320 2 / 1 9 8 9 : RE : Gift and Will of Haji:-
Originally the property belonged to the Haji, since 1960, who
is stated to have gifted it to his wife, Hazarabai. He later
executed a Will reciting the fact of the execution of the Gift
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thereu n de r. Accordingly Hazarabai came to be the owner of
the suit property. The Haji is stated to have expired in 1968.
Hazarabai sought to sell the Suit property a decade thereafter.
It would, therefore, be material to consider the title of the
Hazarabai.
16. The Builders have sought to prove the Will through one
Haji Ismail Haji Ibrahim Pothiawala as P.W. No.9. The Will is
in Gujarati language. It is registered. It is executed by the
Haji on 18 th April 1968. It is witnessed by 2 witnesses, both of
whom have died. The Will is, therefore, required to be proved
as any other docume nt as per the provisions of Section 69 of
the Evidence Act. The P.W. 9 knew the Haji as well as his
family. He has identified the signat ure of the Haji on the Will.
He has been shown the signat ue of the Haji on the earlier
admitted docume n t s which are Agreement for Sale and the
Conveyance in favour of the Haji. He has deposed that both
these signat ur es are of the same person. He was not present
at the time of the execution of the Will. However, he was
present at the time of registration when the execution of the
Will was admitted. He has seen the Haji sign on the first page
of the Will before the Registrar at Dhoraji. He has identified
that signat u re on the original Will. P.W. 9 has also identified
the signat u re s of the attesting witnesses. He has also given
the relations hip of the attesting witnesses whom he knew.
They were the brother and nephew of the Haji. Accordingly
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the Will of the Haji dated 18 th April 1968 has been proved.
17. The Will mentions about the family of the Haji – he had 2
wives, both named Hazarab ai. He has stated the names of his
children from both the wives and what they were then doing.
He has specified 2 properties owned by him, one in Dhoraji
and one in Mumbai being the suit property. The property has
been described as open land in Mumbai, Thane District
Satara, Tal: Borivali bearing Survey No.44 admeas u ri ng 53
acres and 30 gunth a s
ig purcha sed by him under the
Conveyance dated 5 th November 1960 for Rs.1,063 / – and
which was then of the market value of Rs.32,000 / – . It is
further recited in the Will that on 15 th April 1968 he has gifted
both those properties to his 2 nd wife Hazarabai Abu Fazal and
which has been accepted by her. He has given her the
possession (KABJO) of the property and she has accepted the
same. The Will further recites that there is no other
immovable property owned by the Haji. The Will deals with
certain furniture, cash, obsequial ceremonies etc., with which
we are not concerned. Consequen tly it is seen that the Suit
property, then owned by the Haji was gifted by him to his 2nd
wife Hazarab ai Abu Fazal, Defenda nt No.4 in Suit
No.1056 / 1 9 8 7 and Defenda nt No.2 in Suit No.3202 / 1 9 8 9 . It
will have to be seen whether such a gift is a valid gift under
the Muslim Personal Law.
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18. Section 135 in Chapter XI of Mulla’s Principles of
Mahomeda n Law sets out the definition of a Gift or Hiba thus:-
“A Hiba or Gift is “a transfer of property, made
immediately, and without an exchange, by one person to
another and accepted by or on behalf of the latter. ”
19. Under Section 149 of Mahomeda n Law the 3 essentials of
a Gift are (1) a declaration of gift by the donor, (2) an
accepta nce of the gift, express or implied, by or on behalf of
the donee, and (3) delivery of possession of the subject of the
gift by the donor to the donee. Upon these 3 conditions being
complied, the Gift would be complete. Under Section 150
thereof it is essential that there should be a delivery of
possession of a subject of the Gift. This has been held also in
the case of Abdul Sattar Vs. The Vth Additional District
Judge, Lucknow, 19 7 8 ALL. L.J.54 3 .
20. In the case of Fatimabibi Vs. Abdul Rehman Abdul
Karim, AIR 200 1 Gujarat 175 upon considering the aforesaid
3 essentials of a valid Gift it has been held that after an oral
Gift by the husba n d in favour of his wife, the execution of a
Deed of Declaration and mutation in the name of the wife
followed by delivery of possession would make the Gift
complete. The fact that the acceptance of the Gift by the wife
was mentioned in the Deed of Declaration, it would not
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require further evidence as to accepta nce by the Donee in view
of the relations hip of the parties. It is further held that after
the Deed was registered all the ingredients of a valid gift are
established. In this case the Haji made an oral Gift in favour
of his wife prior to the execution of his Will. He recited that
fact in his Will followed by the fact of accepta nce of the Gift as
also the possession of the property by the wife. The Will has
been registered. The Gift is complete.
21. In the case of Hayatuddin Haji Shujauddin Vs. Abdul
Gani Abdul Hafiz 19 7 5 Mh. L. J 345 a Gift of an undivided
share in the property by reciting that it was so made together
with an intention to divest the property being made clear was
held to be a valid gift. In that case the property was held by 2
wives and a sister of one deceased Lalmiya who succeeded to
his estate. 2 of the persons gifted their share in favour of the
Plaintiff. The 3 rd co- sharer continued in the property. The Gift
Deed of the undivided share showed the possession being
given to the Donee, after separation from the 3 rd owner. That
was the value of 14 anna s share in the property. The Donee
sued for declaration of his ownership in the property and in
the alternative for partition and separate possession of his
share. It was held that the Gift was validly made under
Sections 159 and 160 of Mahomeda n Law.
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22. In the case of Canton m e n t Board Vs. G. Venkatram
Reddy (199 5) 4 SCC 561 the essentials of the valid gift under
Moham med a n law are set out in Paragraph 5. All it requires is
the delivery of possession of the subject of the gift and taking
of possession of the gift by the Donee, actu ally or
constr uctively, for completion of the gift. Hence, the
execution of the Power of Attorney by Hazarab ai shows the
constr uctive accepta nce of the gift by her. No further act is
necess ary.
23.
Mr. Pandey argued that no overt acts are shown by
Hazarabai by way of mutation entries or otherwise constitute
accepta nce of the gift for a period of as long as 10 years.
However, since accepta nce of a gift can be made even
constr uctively, a single act showing dominion over the
property gifted such as to deal with the property would suffice.
24. In this case the entire suit property has been gifted to
Hazarabai as aforesaid. The Will has been marked Exhibit-
U21 in evidence upon it having been proved under Section 69
of the Evidence Act. Hence Issue Nos.4 & 5 in Suit
No.1056 / 1 9 8 7 & Issue No.17 in Suit No.3202 / 1 9 8 9 are
answered in the Affirmative and Issue No.6 in Suit
No.1056 / 1 9 8 7 is answered in the Negative .
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25. ISSUE NOS.2, 8 & 9 IN SUIT NO.105 6 / 1 9 8 7 & ISSUE
NOS.1 0 &18 IN SUIT NO.320 2 / 1 9 8 9 : Re: Ownership and
Acquisition of the Suit property : The Builders have led
evidence through their Partner P.W.1 to show how the Suit
property came to be acquired by them. In October 1978 he
met one Fida Hussainb hoy who was a Broker. He knew the
suit plot as well as its owners. The Builders approac hed him.
He showed them the suit site. The Builders approved the plot.
They were informed that the owner was from Dhoraji,
Sauras h t r a, Gujarat. ig They were also informed that the owner
was one Hazarabai. She had given her Power of Attorney to
her daughter Kulsum b ai. Kulsu mb ai met the Partner of the
Builders along with her husba n d Yunusb hoy. The deal was
settled for Rs.1,50,000 / – . They were taken to the Advocate of
Kulsu mb ai, one Abbas Talim. He prepared the draft
agreement between the parties. That agreement was signed by
the parties. The P.W. 1 has identified his own signat ure as
well as the signat ure of Kulsumb ai, who was the Constituted
Attorney of Hazarabai , but who has signed the Agreement not
showing that she was such Constituted Attorney. She has
signed in her personal capacity. The Agreement dated 20 th
December 1978 has been accordingly proved. The Builders
gave to Kulsum b ai a cheque of Rs.10,000 / – towards earnest.
He requested for the Power of Attorney in favour of the
Builders, which came to be executed on the next day by
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Kulsu mb ai. Kulsum b ai is a party Defendan t in Suit
No.3202 / 1 9 8 9 . She has accordingly been represented. She
has admitted execution of these docume nt s. Conseque ntly the
agreement for Sale dated 20 th December 1978 and the Power of
Attorney dated 21 st December 1978 have come to be proved.
26. Hazarabai has executed a Power of Attorney in favour of
her daughter Kulsum b ai. The Power of Attorney has been
executed at Dhoraji before the Executive Magistrate on 4th
Ju ne 1976. The Power of Attorney has been executed on a
Stamp paper issued in the name of Hazarabai Abu Fazal,
herself on 3 rd Ju ne 1976. The stamp paper of the Power of
Attorney appears to have been purch ased by the son of
Hazarabai one Haji Basheer Sattar whose name has been
mentioned on all the pages of Power of Attorney below the
stamp. It is the General Power of Attorney including the power
of sale of the property. The Power of Attorney has been
marked Exhibit- U23 in the evidence.
27. Under these circum st a nces the execution of the agreement
for sale dated 20 th December 1978 shall have to be considered.
The Suit property belonged to the Haji. It was gifted to
Hazarabai. She executed a Power of Attorney in favour of
Kulsu mb ai.
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28. Kulsum b ai negotiated the sale of the property with the
Builders. She signed the Agreement for Sale on behalf of
Hazarabai. However, the execution clause of the Agreement
for Sale does not show her execution as such Constituted
Attorney. The execution clause shows Hazarabai to be the
Vendor. Kulsum b ai has signed against the said clause. She
accepts her signat u re. She has not challenged the execution of
the Agreement for Sale at any time. She has received the
earnest amou nt of Rs.10,000 / – by cheque paid by the
Builders. She has executed a further Power of Attorney in
favour of the Builders, the next day. The execution of the
Power of Attorney has been deposed by the P.W. 1 in
paragrap h 38 of his evidence.
29. The Agreement for Sale shows the earnest of Rs.10,000 / –
paid by the Builders to Kulsumb ai. Kulsum b ai has not
challenged the receipt of the entire consideration mentioned in
the Agreement for Sale. The Bank stateme nt of th Builders
showing the payments made, more specially of the balance
amou nt, would essentially determine the bonafides of the
trans action. In fact in the cross examination of P.W. 1 by
Ju m m a n , P.W.1 was called upon to produce his bank
stateme nt and other evidence relating to the payment.
Thereafter he was not asked questions upon it. Upon the
Court’s quarry, Mr. Kumar tendered to Court the bank
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stateme nt s of Development Co- operative Bank and the Ismalia
Co- operative Bank Ltd., and Union Bank of India showing the
said Earnest debited in December 1978 as well as the payment
of the balance consideration of Rs.1,30,000 / – debited on 28 th
August 1982 Exhibit- RRR (colly) . The Bank stateme nt with
regard to the first payment of Rs.10,000 / – has been issued
under the Bankers Book Evidence Act duly certified by his
Bank. The entry relating to the payment of Rs.1,30,000 / – is in
a genuine old Bank documen t s issued in the normal course of
the conduct of the Bank.
ig The last payment of the balance
amou nt of Rs.10,000 / – which was to be paid after the Income
Tax Clearance Certificate was obtained by the Builders from
Kulsu mb ai is shown to have been paid under another
Banker’s statement of Union Bank of India of the Builders in
April 1983. Strangely Ju m m a n’ s Advocate, though having
called upon the Plaintiff to produce this evidence has objected
to its production.
30. It is argued on behalf of Koli that the trans action of sale
between Kulsum bai and the Builders becomes tainted in view
of the fact the Kulsu mb ai was only the Constit uted Attorney of
Hazarabai, who was the then owner of the suit property, even
if the Will of the Haji is taken to be proved. She having signed
an Agreement for Sale in her person al capacity, could not have
agreed to convey the title to the Builders.
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22
31. It would have to be seen as to how the Builders sought to
deal with and develop the Suit property agreed to be
purcha se d by them and for which they were given the power
inter alia to put up constr uction work under sanctioned plan
and utilise the entire FSI of the said property under Clause 11
thereof. Mr.Rajiv Kumar has meticulou sly taken the Court
through the labyrinth of material showing the direct oral
evidence of P.W.1 with regard to the acts of the Builders
through their then Attorney Taher Kadiani & Co.,by proving
the corresponde nce between the parties.
32. The Solicitors of the Builders gave public notice in
“Bomba y Samach ar ” and “Free Press “. They entered into
corresponde nce with a certain 3 rd party, who claimed certain
rights in the Suit property as also with the Vendors of the Suit
property as follows:
a) By their letter dated 29 th November 1980 addressed to
Hazarabai at Dhoraji, they called upon Hazarab ai to make
out marketable title.
b) By their letter dated 14 th December 1979 addressed to
Hazarabai they called upon her to answer 72 requisitions in
respect of the suit property.
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23
c) Under their letter dated 13 th December 1979 to the
Builders they annexed the draft of the proposed
Conveyance and sent the same by registered post to
Hazarabai in Dhoraji for approval. This was stated to be
without prejudice to Hazarabai making out a
marketa ble title and obtaining the Income Tax Clearance
Certificate under Section 230(A) of the Income Tax Act.
d) They obtained appoint me nt for joint inspection of the
suit property from the Mumbai Municipal Corporation as
shown in the Mumbai Municipal Corporation’s letter dated
12 th December 1979.
e) They sent their letter dated 19 th Jan u a ry 1980 by
registered post to Hazarabai at Dhoraji regarding not having
received the draft Conveyance duly approved by her and
requisitions answered by her or permission of the Competent
Authority under Section 27 of the ULCRA obtained by her. It
shows that they had made inquiry from Governme n t and
Municipal Depart me n t s for investigation of title of
Hazarabai, but could not obtain the relevant records.
f) They called upon Hazarabai to produce any
agreement entered into by her with the party who had filed
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24
objections upon the public notice being given by
them.
All these show the usual detailed legal work of a
purcha ser’s Attorney.
g) An Architect and licenced Surveyor one Samoon
Rassiwala has been examined as P.W.7 . He has deposed
about his appoint me nt and the corresponde nce that
he carried out with the DILR in respect of the
meas ure me n t of the land and its survey. He has initially
written a letter dated 23 rd May 1979 for carrying out survey of
suit plot of land annexing the required docume n t s. The
letter has been proved by his direct evidence. He has
been issued several letters by the DILR, being letter dated
17 th December 1982, 7 th Febru ary 1983 and 1 st March 1983.
He thereafter called upon the DILR to carry out the survey
and demarcate the suit land by his letter dated 14 th
September 1983. The DILR has responded under its letter
dated 2 nd Jan u a ry 1984. These letters have been proved by
his direct evidence and marked Exhibit- AA (colly) . He has
similarly obtained the plan of the suit land from the DILR’s
office and the names of the plot holders surrou n di ng the
suit plot, so as to locate and identify the suit plot. It may be
remembered that the Plaintiff’s Attorneys had made a
grievance under their letter dated 19 th Jan u a ry 1980 that the
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25
land could not be located ), an aspect which came to be
professionally determined by the said Architect.
h) P.W.7 attended the Survey to be carried out by the
DILR along with his represent ative, the Building
Contractor as well as the Maintena nce Surveyor. He has
taken photograph s of the suit property which have been
identified by him by identifying the persons in the
photograph s as well as the suit property and upon such
direct evidence marked Exhibit- Q (colly). His cross
examination shows that the survey was held for num ber of
days and the demarcation of the land was made by the
DILR. He has described the mode of carrying out the plane
table survey and the putting of the survey marks
on the land to be surveyed. He has deposed about the BUND on
one bound ary of the suit property. In his cross examination
he has referred to the triangle prepared on the survey plan
Exhibit- Q in evidence showing the location of each table
installed at the time of survey. Though he has not stood
the test of memory in his cross examination with regard to
the poles fixed, and which is not even required, the
triangles prepared or the exact location of the bund, a
reading of his evidence shows his presence as well as his
professional input at the time of the survey.
33. It appears that Kulsum b ai was irked by the various
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26
requisitions and queries raised by the Builder’s Attorneys
purs u a n t to the Agreement for Sale. She had addressed a
letter in Gujarati dated 24 th December 1979 to the Broker Fida
Hussain Bhoy making a grievance about the irrelevant queries
of the Builder’s Attorneys and insisted that it was the
purcha se r who had to obtain the ULCRA permission under the
Power of Attorney executed in their favour. She sought only
the payment of the balance consideration which was sought
to be delayed by the Builders. It was in reply to that letter
that the Builder’s Attorneys had addressed a final notice dated
19 th Jan u a ry 1980 to Hazarabai.
34. It can be seen that the draft Conveyance remained to be
approved. Permission under the ULCRA was not obtained.
The requisitions were not answered. The title could not be
investigated and market able title was not made out. Under
these circum st a n ces the Builders filed Suit No.1093 / 1 9 8 2
against the Hazarabai and Kulsum bai. This is stated to have
been filed in Ju ne 1982. The suit came to be decreed by
consent of the parties under the Consent Decree dated 17 th
August 1982. Under the consent terms the execution of the
Agreement for Sale dated 20 th December 1978 was admitted.
The Hazarabai and Kulsu mb ai agreed to convey the suit
property upon the consideration agreed between the parties
the receipt of which was admitted. Hazarab ai and Kulsum b ai
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handed over the Title Deeds of the suit property to the
Builders. They agreed that the Decree would operate as a
Conveyance and stated that prior to that date possession of
the suit plot was handed over to the Builders. These consent
terms have also been signed only by Kulsumb ai against the
names of both the Defenda n t s.
35. It is contended on behalf of Koli that the Consent Terms is
collusive and hence, the title of the Builders is stated to
tainted by such collusion.
ig Mr. Pandey on behalf of Koli has
drawn this Court’s attention to the fact that though Hazarab ai
is shown to be the Vendor in the Agreement for Sale, the
docume nt is signed by Kulsu mb ai not as her Constituted
Attorney but in her individual capacity. It is also shown that
the Power of Attorney executed the day after the execution of
the Agreement for Sale does not bear any reference to the
Agreement for Sale and that it further shows that tena nt s
and / o r occupa nt s, licencees or trespas sers, who pay rents and
compens ation who were required to be ejected from the suit
property, which shows the admission of the possession and
occupation of Koli who has been the only occupan t / licencee
on the suit property. Though Mr. Pandey fairly conceded that
Taher Kadiani & Company acted professionally as the
Attorneys of the Purchasers, he contended that the execution
of the Consent Terms a couple of mont hs after the filing of suit
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for specific performa nce of the Agreement for Sale shows the
collusion between the parties.
36. The Dictionary meaning of ” Collusion ” is required to be
seen. Oxford English Dictionary shows the meaning of
” Collusion ” to be a secret or illegal cooperation in order to
cheat or deceive others. Hence the meaning of “Collude” is
shown to be to come to a secret agreement in order to deceive
others; conspire.
37.
It is not shown whom Kulsum bai and the Builders sought
to be deceive. Koli, until then, had claimed only a licence for
fishing on the suit property as shall be seen presently.
Ju m m a n , much later came on the scene to claim to be the
only son of the Haji, as shall be seen presently. There were no
parties who were sought to be deceived by Kulsumb ai and / o r
the Builders.
38. The Advanced Law Lexicon by P. Ramanat ha Aiyar
shows at page 86 4 the meaning and concept of “Collusion”
thus:-
“Collusion. A secret agreem e n t for a fraudulen t
purpose; a secret or dishon e s t arrangem e n t in fraud
of the rights of anoth er; a secret agree m e n t by two
or more persons to obtain an unlawful object. An::: Downloaded on – 09/06/2013 14:20:47 :::
29agree m e n t betwee n person s to obtain an object
forbidden by law, or to obtain a lawful object byillegal means. Collusion is a decei tful agreem e n t or
contract between two or more persons; for the oneto bring an action against the other, to some evil
purpose, as to defraud a third person of high right,
etc. This collusion is either app a r e n t , when it
shews itself on the face of the act; or, which is morecom m o n , it is secre t , where done in the dark, or
covered over with a show of hones t y. And it is a
thing the law abhors: wherefore, when found, it
makes void all things dependan t upon the same,though otherwise in them s e l v e s good (Co.Lit.1 0 9 ,
36 0; Tomlin). The word ‘collusion’ when used inconne c t i o n with judicial proceedi ngs means a secret
agree m e n t betwee n two person s that the one should
institu t e a suit against the other in order to obtainthe decisi o n of a judicial tribunal for some sinist er
purpose or even in the wider sens e of a decei tful
agree m e n t or contract between two or more persons
to do some act in order to prejudice a third personor for some improper purpose.”
39. The concept of collusion must be understood by the effect
of the act of a party which legally affects another party such
that by that act itself a party is aggrieved. Such act could be
challenged as collusive. Any agreement between 2 parties with
which a 3 rd party is not concerned cannot be challenged as
collusive, of course the 3 rd party can challenge the agreement
itself having been entered into which may affect his rights.
40. Though Koli as well as Ju m m a n may challenge the
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Consent Decree obtained by the Builders with Hazarabai and
Kulsu mb ai on merits and upon establishing their claim that
they had acquired a legal right prior thereto, the Consent
Decree itself cannot be challenged on the ground that it is
collusive as the Consent Decree is not seen to have been
entered into to effect the vested rights of Koli or Jum m a n .
Each of their rights, if any, shall be considered on its own
merits. The mere passing of a Consent Decree, or for that
matter a Decree upon contest, cannot divest Koli or Ju m m a n
of their vested rights, if any. That however, would not make
the Consent Decree collusive or vitiated on that ground. Their
challenge to the transfer from Hazarab ai or Kulsum b ai to the
Builders shall be otherwise seen upon each of their respective
cases separately.
41. Mr. Pandey argued that the Consent Decree passed in
1982 when the ULCRA was in force is a nullity and since it is
a nullity he can merely rely upon its invalidity when it is set
up against him although he has not taken steps to set it aside.
(Abdullami ya n Abdulreh man Vs. Governm e n t of Bombay,
AIR (29) 19 4 2 Bombay 257 FB).
42. The invalidity, if any, of the Consent Decree shall have to
be seen upon reading ULCRA as a whole. The decree would
come into effect only upon all the compliances with the
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provisions of ULCRA. If however, the provisions of ULCRA are
complied and the Suit property is exempted from ULCRA or if
ULCRA does not apply to the Suit property at all, the Consent
Decree would be operative and the case of its invalidity would
then fail.
43. Mr. Pandey relied upon the judgment in the case of Bai
Dosabai Vs. Mathurdas Govinddas AIR 198 0 SC 133 4 at
13 3 9 to show that in that case the effect of ULCRA on a decree
passed by the High Court before the Act came into force was
considered. The Supreme Court held that the decree could be
moulded to provide relief in accordance with that law.
44. In this case it will have to be seen whether ULCRA,
applied to the Suit property and whether it enabled the Suit
property to be ultimately developed and transferred within the
parameters of that law.
45. It is argued by Mr. Pandey that the Consent Decree was
obtained in the Suit filed by the Builders to circumvent the
provisions of ULCRA and is, therefore, a void contract under
Section 23 of the Indian Contract Act and that the Decree is,
therefore a nullity.
46. In the case of Nagubai Ammal Vs. B. Shama Rao AIR
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19 5 6 S.C. 59 3 a collusive proceeding in a mortgage Suit came
to be considered by the Apex Court. The Court was concerned
with the distinction between the collusive and fraud ulent
proceedings. It considered a fraud ulent proceeding distinct
from a collusive proceeding. The Court observed thus:-
“Collusion in judicial proceedi ngs is a secret
arrangem e n t betwee n two persons that the one
should institu t e a suit against the other in order to
obtain the decision of a judicial tribunal for some
sinist er purpose”. (Wharton’s Law Lexicon, 1 4 th Edn.,p.21 2).
In such a proceedin g, the claim put forward is
fictiti ou s , the cont e s t over it is unreal, and the
decree passed therei n is a mere mask having thesimilitude of a judicial determinati on and worn by
the parties with the object of confoun ding third
parties.”.
(Eviden c e led)
47. Similarly in the case of Subhas Chandra Das Mushib, Vs.
Ganga Prosad Das Mushib AIR 196 7 SC 878 (V 54 C187) it
has been held that collusion is a secret agreement for illegal
purpose or a conspiracy and implies that a man does
something with evil design. In that case a brother and sister
were stated to have colluded secretly or fraud ulently to
execute a Deed of Gift with the object of depriving the Plaintiff.
48. It has to be seen whether in this case the parameters set
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33
out by the Apex Court are satisfied to conclude that the Suit
between the Builders’ and Hazarabai and Kulsu mb ai was
collusive so that the decree obtained by them also became
collusive. The Builders’ claim is not fictitious. They have
seriously prosecuted their claim from day one. They have paid
consideration for the suit property. They have called upon the
Vendors to do all the acts and things that Vendors in their
position were required to do. That having not been done, they
had sued the Vendors. Hence, the contest in that Suit was not
unreal. The Builders obtained what they were seeking – the
Conveyance of the property and the Title Deeds. The Builders
paid consideration for the same. Hence, the decree was not a
mere mask to confound 3 rd parties. Since the Builders wanted
the conveyance in their name, which Kulsum b ai need not have
objected and Kulsu mb ai wanted only the consideration for the
property to be transferred which the Builders were prepared to
pay, and since the other terms could be complied by the
Builders under the Power of Attorney as required by
Kulsu mb ai in her aforesaid Gujarati letter to the Broker, this
was indeed a case for settlement. No other party could be
deceived by such settlement.
49. It is argued that this was to confound the ULC
Depart me n t since the property could not be conveyed or
transferred to the Builders under the restrictive mandate
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34
contained in ULCRA. Indeed at the relevant time the Urban
Land (Ceiling and Regulation) Act, 1976 was in force; it has
since been repealed. Hazarab ai / K ul s u m b ai had filed retur n s
as required under Section 6 of the ULCRA. However, the
inquiry contemplated under Section 8 of the Act by the
Competent Authority for preparing the draft statemen t of the
land held in excess of the ceiling limit was not made.
Conseque n tly the final stateme nt under Section 9 of the Act
was also not made and the land was not acquired under
Section 10 by the Government, or the amoun t paid under
Section 11 to the holders of the land.
50. It need hardly be mentioned that as in the case of all such
other lands the power to exempt under Section 20 of the
ULCRA remains with the Governmen t and could be availed of
by the Builders purs u a n t to the Consent Decree by the
Hazarabai and Kulsum b ai themselves. Similarly the power to
declare that the excess land was not to be treated as excess
further remained with the Governme n t upon an application
being made by the holder of the land under Section 21 of the
Act. Just such an application under Section 21 of the ULCRA
was made by Kulsum b ai in the name of Hazarab ai on 3 rd
August 1979, after the execution of the Agreement for the Sale
and before the Conveyance to be entered into under the letter,
Exhibit- CC in evidence.
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51. In fact the Tahasildar attached to the Urban Land Ceiling
Depart me n t produced the relevant record kept by the public
authority in the ordinary course of its conduct upon he having
been issued the letter of request in that behalf. These are the
applications dated 30 th March 1979 made by Hazarabai
through her daughter Kulsum b ai and the reply dated 30 th
April 1979 of the Competent Authority under ULCRA. The
letter is an application for an exemption under Section 21 of
the ULCRA together with the form of the Scheme under the
said Act and the Declaration under Section 21(1) of the Act.
The reply calls upon the Hazarab ai to produce certain further
docume nt s. These letters have been marked Exhibits- NN
(colly) in evidence. They having been produced from the
proper custody are required to be read in evidence.
52. After the execution of the Conveyance the Builders have
sought to apply for permission under Section 20 of the Act for
constr uction under the Scheme for Weaker Section and have
received the letter of the Urban Land Ceiling Authority dated
29 th Jan u a ry 1987, Exhibit- FF in evidence stating that their
application was pending in view of the challenge to the said
Act pending before the High Court. Much later on 8th April
1987 the Urban Land Ceiling Authority under their further
letter part of Exhibit- FF (colly) required the documen t s with
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regard to the suit property from the Builders including the
Poperty Register Card, City Survey Plan, Copy of Returns
under Section 6(i) of the Act, copy of Order under Section 8(3)
of the Act, Consent of persons having interest in the land,
revised Development plan remarks, certificates from the
Architect, location of the buildings and teneme nt s to be
constr ucted, the required undertaking, Indemnity Bond,
appoint me nt letter of the Architect, power to represent and the
approved layout plan.
53.
It can be seen that until the permissions under Section
20 or 21 of the Act were applied for and granted, the land
cannot be exempted from the rigours of the Act. Until that
time the Consent Decree would not in law operate as
Conveyance, notwithst a n di ng the fact that the parties to the
Suit agreed personally to convey the property to the Builders.
Once the permission is obtained, it matters not whether there
was a traditional Conveyance executed or the Consent Decree
took its place, only if the mandatory requireme nt s of
Registration and stamp were satisfied.
54. The Consent Decree as drafted by the Prothonot ary and
Sr. Master of the Court came to be sent for registration and
the payment of the stamp duty. Upon the payment of deficit
stamp duty on 24 th March 1987 it came to be returned to the
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37
Court on 2 nd December 1987 as is evident from the Consent
Decree filed on 23 rd December 1987, Exhibit- OO in evidence.
It is only thereafter that the Index II came to be issued for
entering the name of the Builders as the claiming party and
the Governme nt as also Hazarabai and Kulsumb ai as the
executing party. The date of the registration of the Index- II is,
therefore, shown to be 2 nd December 1987 in the Index- II,
Exhibit- O in evidence.
55. It may be mentioned that therefore, reliance upon Section
27 of ULCRA to contend that any transfer by way of sale,
mortgage, gift, lease or otherwise was prohibited is
misconceived. Under the said Section the transfer is excepted,
if made, with the previous permission in writing of the
Competent Authority. The mode of obtaining such permission
in writing is set out under Section 27(2) of the Act – it has to
be made by an application in writing to the Competent
Authority. The Competent Authority has the power to grant or
refuse the permission under Section 27(3) of the Act. In fact
under Section 27(4) of the Act, if the Competent Authority
does not refuse to grant the permission within 60 days it
would have to be deemed to have been granted. The
permission is applied for both under Section 20 by the
Builders as well as under Section 21 by Hazarab ai and
Kulsu mb ai themselves. Further under Section 28(a) of the Act
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the transfer by sale mortgage, gift, lease or otherwise could be
registered only upon the notice of the intended transfer being
given to the Competent Authority and under Section 28(b) of
the Act after the permission of the Competent Authority is
given.
56. The Scheme of the Act is, therefore, not to prohibit,
transfer altogether, but to allow transfer only under certain
conditions and upon following the procedure prescribed by
that legislation. Until that procedure is complied, no transfer
would be made. Consequen tly until the procedure is
complied, the Registering Authority would not register such a
transfer and would not issue Index- II in respect of the
transfer. Once that procedure is followed the Conveyance as
such executed by and between the parties or a Consent
Decree, if any, passed by the Court, which would be agreed to
be treated as such Conveyance, would be effectuated.
57. Mr. Pandey relied upon the case of Nathulal Vs.
Phoolcha nd AIR 19 7 0 SC 546 which is required to be read in
this context. It has been held that the agreement conditional
upon the permission of an Authority under a prescribed
stat ute is deemed to be subject to the implied condition of
obtaining that permission. Hence, if the property was not
transferable without the permission of the Authority, the
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agreement to transfer would be deemed to be subject to the
condition that the sanction of the Authority would be
obtained.
58. In this case the transfer itself would be subject to the
permission of the authority as in all such other cases where
Urban properties are developed.
59. The Consent Terms, therefore would not result in
circumventing the provisions of ULCRA. The contract between
the parties can, therefore, not be taken to be vitiated under
Section 23 of the Indian Contract Act. In fact it took between
August 1982 and December 1987 to comply with the
provisions of ULCRA by the Builders, the agreement between
the parties notwithst a n di ng. Index II was issued only in
December 1987.
60. Mr. Pandey has made much about the fact that part of the
suit land was stated to be in the development zone and the
other part in the non- development zone. He has extensively
cross examined P.W.1 with regard to the NOC required to be
obtained. The fact remains, as is evident from the docume nt s
that the permission was applied for and the rigours of the Act
were not sought to be circumvented.
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61. Mr. Kumar contended that al this is academic because the
Act has since been repealed. The Urban Land (Ceiling and
Regulation) Repeal Act 1979 came into force in the State of
Maharas h t r a in 2007. The ULCRA stood repealed under
Section 2 of the Act. All the proceedings under the Principal
Act, pending before the commence me nt of the Repeal Act
abated under Section 4 of the Repeal Act. The Suit land has
not been covered by the Repeal Act. The clock has turned full
circle. The contention with regard to collusion that never was
goes thus far.
62. In the case of Gajraj Singh & Ors. Vs. State Transport
Appellate Tribunal & Ors. (199 7) 1 SCC 650 the effect of a
Repeal Act is considered. It is held that the effect of repeal is
to obliterate that Act as if it had never been passed and never
existed except for trans actions which were commenced,
prosecuted and concluded while it was an existing law.
The development of the Suit property, upon the Consent
Decree in this case, though commenced has not been
concluded. Hence, the Repeal Act would apply to the suit
trans action which has not yet been ” closed ” under the Act.
The Builders would not now require ULCRA permission for
developing the property. The applications under Sections 20
or 21 of the Act would not be considered by the ULC
authorities. Mr. Pandey’s submission that the Repeal Act
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41
cannot legalise illegalities purported prior to Repeal would not
apply to an act stated to be an illegality merely becau se of the
provisions of the Act, since repealed. Of course, if there are
other illegalities they would subsist. Only the illegality, if any,
conseque nt upon the mand ate under the Act, since repealed
would be wiped off. Hence, even if there could have been no
conveyance under a validly executed docume nt or equally
under the Consent Decree, if the ULCRA was in force, the
ULCRA having now been repealed the conveyance would
remain in effect. The illegality of the trans action or the nullity
of the decree, if at all, would be only purs u a n t to the ULCRA
which has now been obliterated from the record. Hence, the
act of the Builders and Hazarabai / K ul s u m b ai must be taken
never to have been illegal and the decree which is passed must
be taken never to have been the nullity.
63. Mr. Pandey contended that the Consent Decree is void
also on the ground that the Suit land is agricultur al and hence
cannot be transferred to anyone other than an agricultu rist
under Section 63 of the Bombay Tenancy & Agricultur al Lands
Act, 1948 (BTALA) and hence the transfer by conveyance
contemplated under the Consent Decree is void under Section
23 of the Indian Contract Act. Such transfer is subject to the
permission of the Collector under the proviso to Section 63 of
BTALA. It is for the Builders to obtain such permission or
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suffer the conseque nces.
64. From the aforesaid evidence it can be seen that the
Builders have acquired the Suit property from Hazarabai
through her daughter Kulsu mb ai under the Agreement for
Sale dated 20 th December 1978 followed by the Consent
Decree dated 17 th August 1982 in Suit No.1093 / 1 9 8 2 filed by
them. Hence Issue No.2 in Suit No.1056 / 1 9 8 7 and Issue
No.1 8 in Suit No.3202 / 1 9 8 9 are answered in the Affirmative
and Issue Nos.8 & 9 in Suit No.1056 / 1 9 8 7 and Issue No.10
in Suit No.3202 / 1 9 8 9 are answered in the Negative .
65. ISSUE NO.7 IN SUIT NO.105 6 / 1 9 8 7 AND ISSUE NOS.13
& 19 IN SUIT NO.320 2 / 1 9 8 9 : RE: Possession of the Suit
property : The Builders having been put in possession of the
Suit property has not been disputed by Hazarab ai or
Kulsu mb ai. It is they who put the Builders in possession.
The Builders acted upon such possession. The various acts of
the Builders more specially the act of conducting the Survey of
the suit land and having it demarcated by the DILRs office
shows that they were put in possession. That fact has been
recited in Clause 5 of the Consent Terms signed by Kulsum b ai
and the Builders.
66. Possession follows title in respect of open land. From the
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evidence relating to the trans action between Hazarabai /
Kulsu mb ai and the Builders, and the acts of the Attorneys and
the parties to the trans action thereafter, juridical as well as
actual possession of the Suit property is seen to be with the
Builders since the execution of the Agreement dated 20 th
December 1978.
67. P.W. 1 has produced the Report of Mr.A.P.Yagnik, retired
Prothonotary & Sr. Master of this Court, Private Receiver
appointed in Appeal No.658 / 1 9 9 2 filed by Jum m a n which has
been marked Exhibit- P in evidence as a copy of the judicial
proceedings. The Report shows possession having been taken
by the Private Receiver from the Builders as per order in the
Appeal dated 9 th July 1992. It further shows a barbed wire
fencing on the 3 sides of the property together with RCC poles
affixed therein. It also shows two iron gates to protect the
property from trespas ser s. It shows one side of the property
having a creek. It also shows one pakka struct u re with 4
cabins were also handed over by the Builders to the Receiver.
The Report also shows that there were no squatters on the suit
land. There were 4 boards of the Builders, out of which 3 were
removed. These Minutes have been signed by Koli, the
Advocate for Ju m m a n as well as the Advocate for Hazarabai
and Kulsum b ai. The report shows the possession of the
property which was vacant land without squatters with one
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board of the Builders and one pakka struct u re duly fenced
with 2 iron gates as on 30 th April 1994. Koli has later sought to
feebly question this vital evidence containing his admitted
signat u re. Possession having been taken from the Builders,
the fact that they had such possession is clear despite the
claims of Koli and Ju m m a n to the contrary. Hence, Issue
No.7 in Suit No.1056 / 1 9 8 7 as well as Issue Nos.1 3 & 19 in
Suit No.3202 / 1 9 8 9 are answered in the Affirmative .
68. ISSUE NOS.7 & 12 IN SUIT NO.32 0 2 / 1 9 8 9 :
Re: Possession of Jum m a n :
ig Ju m m a n claims to be in
possession of the suit property. He has not examined himself.
It is not even clear whether he claims to be in juridical or in
actual possession of the Suit property. His juridical
possession may be seen upon proof of he being the owner of
the Suit property, which shall be dealt with presently. That
would be upon the premise that possession follows title in
respect of open land. His actual possession is not shown in
the suit property by any overt act. He has not examined
himself. He has, therefore, not even deposed about his
possession. He has not produced or proved any docume nt
evidencing his possession. The private Receiver, got
appointed in his Appeal being Appeal No.658 / 1 9 9 2 shows
vacant possession being taken by the Receiver from the
Builders and not from him. The Report of the Private Receiver
dated 30 th April 1994 shows the entire land being vacant with
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only one struct u re thereon. Ju m m a n has not shown to him
to be in possession of that struct ur e also. The land had one
board of the Builders. Ju m m a n’s Advocate has signed the
report showing possession taken from the Builder. There is,
therefore, nothing to show the actual possession of Ju m m a n
in any part of the suit land. However, the title of the Haji has
been admitted. Conseque ntly possession which follows the
title of the Haji has also been admitted by the parties. Issue
No.7 refers to Haji as ” the Plaintiff’s father ” . The question
whether Haji was Ju m m a n’s
ig father shall be dealt with
presently. However, it is clarified that the Haji was admittedly
in possession of the Suit property during his life time. Save
and except this clarification Issue Nos.7 and 12 in Suit
No.3202 / 1 9 8 9 are answered in the Negative .
69. ISSUE NO.3 IN SUIT NO.105 6 / 1 9 8 7 & ISSUE NO.16 IN
SUIT NO.32 0 2 / 1 9 8 9 . RE : Hazarab ai being the wife of the
Haji : The Plaintiff has examined Haji Ismail Haji Ibrahim
Pothiawala, P.W.9 to show the family backgrou n d, relations as
well as the properties and dealings of the Haji. His evidence
inter alia shows that he was distantly related to the Haji on his
matern al side. He knew Haji since his childhood. The Haji
resided near Siddiqui Masjid at Dhoraji and at Hasam
Building, Mohamad ali Road, Mumbai- 400 003. The Haji was
doing business in cotton at Pydhou ni, Mumbai. His evidence
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further shows that he was married twice. It shows the
number of children he had begotten from his two wives. Both
his wives were named Hazarab ai. Hazarabai referred to in
these Suits was his second wife. She was the daughter of Abu
Fazal. In his cross examination there is nothing produced to
show even remotely that Hazarabai was not the wife of the
Haji. He has refuted the case put to him (though no case can
be put to any independe n t witness as no independe nt witness
ever has a case ! ) that Hazarabai who was the daughter of Abu
Fazal was not married to the Haji, or that Kulsum bai was not
the daughter of the Haji and Hazarabai or that he had no proof
that Kulsum b ai was the daughter of the Haji .
70. The earliest reference to Hazarabai is in the Will of the
Haji, Exhibit- U 21 in evidence which has been proved under
Section 69 of the Evidence Act through the evidence of P.W.9.
The original Will which has been registered with the Registrar
at Dhoraji shows the entire family of the Haji. Hazarabai is
shown as his second wife. She is referred to as Hazarabai Abu
Fazal. Abu Fazal is her father’s name. The evidence of P.W. 9
shows that as per the custom in the Muslim Commu nity
women are referred to showing their name followed by their
father’s name. She has been gifted the 2 immovable properties
owned by the Haji including the Suit property. The Plaintiff
has got produced through P.W. 8, the Police Officer the
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certified copy of the Death Certificate of the Haji issued by the
Municipality of Dhoraji Town, Exhibit- U 22 in the evidence. It
being a certified copy of public records issued in the normal
course of the conduct of the public authority carries the
presu m p tion as to its correctnes s. The death certificate shows
the name of Hazarabai as the wife of the deceased.
71. Hazarabai has executed the Power of Attorney in favour of
her daughter Kulsum bai on 4 th Ju ne 1976, Exhibit- U 23 in
the evidence. She is described there as Hazarabai Abu Fazal.
The Power of Attorney has been executed before the Executive
Magistrate at Dhoraji. She has been identified before the
Magistrate by Advocate Mr. R.K. Hadiawala. She is described
as the wife of the Haji. The Power of Attorney is in respect of
the suit property which has been gifted to her by the Haji. The
Haji Basheer Sattar who has been stated and described as one
of the sons of Haji in the Will, has signed on each page of the
Power of Attorney under the stamp showing that he purcha se d
the stamp in the name of Hazarab ai Abu Fazal on 3 rd Ju ne
1976, a day before the execution of the Power of Attorney. The
fact that he was the son of the Haji is not denied. His
signat u re shows his tacit admission to the fact of Hazarabai,
the principal in the Power of Attorney, was the owner of the
Suit property who appointed her daughter Kulsum b ai as her
Constit uted Attorney.
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72. Kulsum b ai is the daughter of the Hazarabai. That fact
has not been denied by any party. The agreement signed by
Kulsu mb ai is made out in the name of Hazarabai Abu Fazal
who is described as the owner of the suit property, earlier
admittedly owned by the Haji.
73. The entire corresponde nce made by the Attorneys of the
Builders in respect of the purch a se of the suit land by the
Builders has been made with Hazarabai Abu Fazal at Dhoraji.
In the letter dated 14 th December 1979 part of Exhibit-
(colly) which has been sent by registered post to Hazarab ai at
Dhoraji, she is shown as the widow of the Haji. In the letter of
the Builders’ Attorneys to Hazarabai, part of Exhibit- J(colly)
in evidence she has been shown to be residing C/o.Kuls u m b ai
Haji Abdul Sattar Cham a dia at Dhoraji since Kulsu mb ai is
shown to be the daughter of the Haji and her relations hip with
her mother is not denied. Hazarabai is seen to be addressed as
the wife of the Haji. Even the letter in Gujarati of Kulsum b ai
dated 24 th October 1979 addressed to the Broker Fida
Hussainb hoy and which has been replied by the Builders’
Attorneys shows the reply having been sent to Hazarabai at
Dhoraji. Hence, Hazarabai has been sent the reply to the
letter addressed by Kulsum b ai. None of these documen t s has
been challenged at least as regards the addresses by either
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Koli or Ju m m a n . No part of the extensive cross examination of
P.W.1 has been directed to this end.
74. The retur n s Under Section 6 of the ULCRA as well as the
application under Section 21(i) of the Act made by Kulsum bai
in respect of the Suit property is made in the name of
Hazarabai Abu Fazal as her Constituted Attorney. Even this
aspect has not been challenged by any party.
75. The Builders have examined inter alia the Officer of Tata
Memorial Hospital where the Haji was taking treat men t for
Cancer. He has got produced the hospital records kept in the
ordinary course of the conduct of the hospital. The hospital
records accordingly proved through that witness have been
marked Exhibit- SS (colly) in evidence. The hospital record of
the Haji shows inter alia as his nearest relative and friend Mrs.
H.A. Ali Moham med (Hazarabai Abdul Ali Moham med ).
76. Such docume nt a ry evidence corroborates the oral
evidence of P.W.9 Haji Ibrahim Pothiawala.
77. It would be too much to impute that Hazarabai Abu Fazal
who is shown as the wife as well as the widow of the Haji from
the obscure village of Dhoraji and who has executed several
docume nt s showing her as such from time to time could be
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any one other than the wife of Haji to whom he gifted inter alia
the Suit land. Hence Issue No.3 in Suit No.1056 / 1 9 8 7 and
Issue No.1 6 in Suit No.3202 / 1 9 8 9 are answered in the
Affirmativ e .
78. ISSUE NOS.1 0 & 11 IN SUIT NO.105 6 / 1 9 8 7 & ISSUE
NO.3 IN SUIT NO.32 0 2 / 1 9 8 9 : RE: The Date of the death of
the Haji: It is admitted that the Haji owned the Suit property
under the Conveyance dated 5 th November 1960. The
aforesaid evidence has shown that he had two wives and
several children; one of them was his daughter Kulsum b ai and
the other was his son Basheer. Koli as well as Jum m a n have
denied this relations hip. Koli has just denied without more.
He claims that he only knew the Haji and the Haji had no
family. Jum m a n claims that he was the only son of the Haji.
79. The Builders contend that the Haji expired at Dhoraji on
15 th May 1968 at the age of 65 years. Ju m m a n and Koli
contend that the Haji expired at Bombay on 2nd May 1986 at
the age of 65 years.
80. The oral evidence led by the Builders, with regard to the
death of the Haji has been given by P.W.9 who was his relative
and knew him since his childhood. He has inter alia deposed
that he was buried at Memon Jam at Kabrast h a n at Dhoraji.
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He had visited the graveyard 5 years prior to the deposition
and had seen his tombstone. He, however, did not remember
the name written on the tombstone.
81. Since the death is shown to have taken place at Dhoraji
the Haji could have been buried at Dhoraji and the oral
evidence to that extent can be accepted, subject to its
corroboration by public records.
82. The death can only be proved by the Death Certificate
issued by the relevant Municipal Authority where the death
took place. The certified extract of the Municipal records are
required to be produced in evidence as they bare a
presu m p tion as to their correctness being certified extracts of
public docume n t s. This presu m p tion holds until it is
rebutted.
83. The Builders have got produced the certified extracts of
the Municipal records of Dhoraji Town from the death noting
register. The certified copy of the death register is marked
Exhibit- U 22 . It shows the extract from the General Register
No.138. It shows that death having taken place on 15 th May
1968 at 12.30 a.m. The entry has been notified on 17 th May
1968 at 4.45 p.m. The name of the deceased person is shown
to be Haji Sattar. His father’s name is shown to be Ali
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Moham med Vali Moham me d Chamadia. His wife’s name is
shown to be Hazarabai. His age is shown to be 65 years. The
information is given by Basheer Haji Sattar, his son. This
certificate has not been challenged. The presu m p tion that it
carries as a certified copy of public records under Section 79
of the Evidence Act is not rebutted. The certificate shows the
date of his death and all the other material particular s which
must be taken to be correct.
84. The extract of the register
ig of deaths has also been
produced by the Builders. This is also an extract of the public
records being Dhoraji Municipality. This extract shows the
same particular s. It is a certified true copy of the register
under the seal of the Municipality. It goes the same way.
85. The Haji was buried in a cemetery at Dhoraji. The
Builders have sought to produce a letter of the President of the
Memon Jam at showing the factum of the burial on 16 th May
1968. That witness has not been examined and hence, that
docume nt, though got produced amongst other docume nt s
through a Police Inspector who got produced those docume nt s
during the course of an investigation of a criminal complaint
filed by the Builders against Ju m m a n for fabrication of
records, cannot be stated to be proved in this Suit and cannot
be relied upon.
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86. Jum m a n has relied upon a death certificate of the Haji as
Exhibit- A to his plaint. He has not examined himself. He has
not tendered a certified copy on record of the Court in the
evidence. He has only relied upon a copy of the death
certificate annexed to the Plaint. It is contended by the Builder
that the death certificate relied upon by Ju m m a n is a false
and fabricated record. The Builders have sought to rebut the
presu m p tion that would arise from such certificate of death.
Koli has accepted the Certificate.
ig The Certificate may be
looked into to consider the truth of its content s as a certified
copy of a public records. The presu m ption would hold until it
is rebutted.
87. The certificate shows the Haji having expired on 2nd May
1986 and his death having been registered on 20 th May 1986
under Registration No.843. He is shown to have expired ” at
home ” . The certificate is issued on 28 th November 1986 under
No.75298 by the Sub Registrar of Public Health Departme nt of
the Mumbai Municipal Corporation.
88. The Builders have got produced docume n t s which were
sought to be produced in the criminal trial during
investigation of their criminal complaint through the
Investigating Officer in that case. That Officer has been
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examined as P.W.8. He has deposed about the steps taken by
him to investigate into the death and the birth certificate
records of Jum m a n relied upon by him to prove his claim as
the only son of the Haji who was stated to have expired on 2nd
May 1986. It would be unnecess a ry to deal with the heap of
docume nt s of P.W.8 who has written various letters to various
authorities to obtain various docume nt s from those authorities
under cover of their letters. It would be material only to see
and consider the docume nt s of public records uneart hed by
him from the relevant public offices during the investigation.
89. The Municipal records, showing the aforesaid death
certificate got produced by Ju m m a n and also relied upon by
Koli, would have to be looked into. The death certificate is
issued by the Mumbai Municipal Corporation upon an
application made in that behalf by Ju m m a n giving information
of the death of the Haji. Such information is given in the
application form prescribed under Section 44 of the
M.M.C.Act . P.W.8 has got produced the said application from
the Municipal records being public records. Hence, the said
application has been produced from proper custody. It is
verified to be a true copy and produced as such. It carries the
same presu m p tion as the death certificate itself. It is
interesting to see the content s of this application.
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90. The application is in the prescribed printed form. It is
dated 27 th November 1986 part of Exhibit- EEE(colly) made
from ” Hasam Building, Bombay- 400 003 “. That is the address
shown below the date at the top of the application. It is an
application for 3 copies of the death certificate. It shows the
full name of the Haji. It shows the address of the Haji. It
shows that the death took place at home(Bombay). The date of
death is shown to be 2 nd May 1986. The applicant is Ju m m a n .
His full name is shown as “MohMod Jum a n Haji Abdul
Sat t a” . It shows the place of disposal of dead body to be at
Chand a nw a di. It is signed by Ju m m a n in Hindi as “Mohma d
Haji Abdu Sat t a” (son). The application is seen to be
handwritten by a person of an extremely low educational
backgrou n d, in the English as well as Hindi language. The
name of the applicant as well as his deceased father are not
correctly written. At two places the name Sattar is incorrectly
spelt. The name of the building is also incorrectly spelt. Since
Ju m m a n has not examined himself he could not be cross
examined upon the handwriting. Even if he has not written
the application in English, (presu m a bly becau se he may not
know even element ary English) his surna m e is conspicuou s
by the absence of his first name Ju m a n therein. The word
Satta in Hindi is also incorrectly spelt in the signat ure. Since
he claims to be the son of the Haji and has relied upon the
death certificate containing identical particulars he alone must
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be taken to have made the application as such son.
Conseque n tly his signat ur e on the application must be looked
into for all its faults – being the incorrect spelling of Sattar as
well as the absence of his first name Ju m m a n .
91. It may be mentioned that another such similar application
has been made by one Aziz Moosa who claims to be the
nephew of the deceased Haji and who made a claim upon the
properties of the deceased Haji in the suit filed by him being
Suit No.1035 / 1 9 9 0 in this Court, which has since been left
unprosecuted and dismissed. P.W.8 got produced from the
same Municipal records his application also. That application
similarly verified as a true copy and produced from the public
records bears the same registration number in the register of
Municipal records. It is dated 28 th May 1986. It gives similar
particular s. The only difference in that application is that the
place of disposal of the dead body is neither shown in the
printed form nor is it filled in. Aziz Moosa seems to have been
issued a death certificate under No.27154 which is issued on
28 th May 1986, the date of his application itself. Ju m m a n is
shown to have been issued the death certificate bearing
No.75298 which is issued on 28 th November 1986 a day after
his application was made to the Mumbai Municipal
Corporation on 27 th November 1986. P.W.8 has produced yet
another death certificate having the same particulars under
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No.75296 which is marked Exhibit- L and which is the
certificate shown to have been issued on 28 th November 1986,
a day after the application made by Ju m m a n .
92. The issue of the death certificate upon the application for
the death certificate would be depende nt upon the extract of
the Municipal register and the death report. P.W.9 has taken
the effort of getting these public docume nt s also produced.
Exhibit- LL 1 is the copy of the extract of the municipal
register itself. The relevant entry is under Registration No.843
which is reflected in each of the aforesaid death certificates.
The date of the death is shown to be 2 nd May 1986. The
registration of the death is on 20 th May 1986. The place of
death is shown to be at home (Bombay). The Haji is shown to
be 65 years old. The cause of death is shown to be Asthama,
cough and old age. In the column “Wheth er medically
certified or not” the word, “Pancha ma” is mentioned. The
name of the person informing about the death is shown to be
Aziz Moosa. His residential address is shown to be “as above”
(there is no residential address mentioned above). In the
remarks column it is shown that the burial was done at
Nariyalwadi, Muslim Cemetery No.82, Mumbai. It must be
remembered that in the application of Aziz Moosa the place of
disposal of the dead body has not been mentioned and in the
application of Jum m a n the place of disposal of the dead body
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has been mentioned to be Chanda nw a di. It may also be
mentioned that the word ” Chanda nw a di ” is in the handwriting
other than that of the rest of the application signed by
Ju m m a n as the son.
93. This extract of the register must be read along with the
copy of the death report also got produced through P.W.9 as
part of Exhibit- FFF (colly) . The death report is dated 2 nd May
1986. It shows the name of the Haji and his father. It shows
that the Haji expired at home.
ig His age is shown to be 65
years. The cause of death is shown to be Astham a, cough and
old age. The kind of medical attention received in the last
illness which requires Allopathy, Homeopat hy, Ayurvedic,
Unani etc., to be mentioned shows the word “Pancha n a m a”
against the said colum n. The name of the informa nt is shown
to be Aziz Moosa. Against the address of the informa nt is
shows that burial was done at 1.00 a.m. in Cemetery No.82.
The application is not signed by the Applicant, but is dated 3rd
May 1986. It bears the rubber stamp of Nariyalwadi Muslim
Cemetery in which No.82 is circled. The oral evidence shows
that upon death, one of the relevant Cemeteries is allotted to
each corpse. The circling of No.82 shows the Cemetery No.82
was allotted to the Haji.
94. The Haji was a man of means. Pothiawala’s (P.W.9)
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evidence shows that he was a cotton mercha n t at Pydhouni.
The Passport of the Haji Exhibit- LLL shows that he was a
Broker. He admittedly was the owner of the suit property,
which is a large piece of valuable land. It would have to be
seen how he passed his last days in the twilight of his life
given that the death report as well as the entry No.842 in the
Municipal register does not show any Doctor having issued a
death certificate, but a panch a n a m a having been made
instead.
95.
The Haji is shown to be 65 years old in the death
certificate produced by the Builders as well as the death
certificates produced by Ju m m a n as also Aziz Moosa. As per
the death certificate issued by Dhoraji Municipality, his death
took place on 15 th May 1968. If he was 65 years old then, he
would have been born in 1903. His passport Exhibit- LLL
shows his date of birth to be 30 th August 1903. Ju m m a n , and
for that matter Aziz Moosa, have not produced any evidence of
the Haji’s birth. The cause of his death is shown to be
Astham a, cough and old age. There is no corroborating
evidence of the illness suffered by the father of Jum m a n or the
uncle of Aziz Moosa produced by them.
96. The Builders have instead got produced evidence of
Cancer having been suffered by the Haji. P.W.6 the Assista nt
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Administration Officer of Tata Memorial Hospital who has
produced the records of the hospital as Exhibit- SS1 . These
records show the Haji having suffered from advanced Cancer
of the right base and center of the tongue. He was under
treatme nt in Tata Memorial Hospital from 21 st Februa ry 1968
to 6 th March 1968. The hospital records show his address at
Siddiqui Masjid, Dhoraji, Post: Sauras h t r a as well as his
address at 107, Moham med Ali Road, Hasan Building, 3rd
Floor, Bombay. The records further show inter alia an
application made by way of pre- printed post card addressed to
the hospital for availing of railway concession, on the reverse
of which the intimation of his death on 15 th May 1968 has
been given to the hospital. Hence, though the Haji has not
claimed railway concession his death has been informed to the
hospital. The records of the hospital got produced and
accordingly proved through its Assista nt Administration
Officer show that the Haji suffered from Cancer in Februa ry –
March 1968. He expired in May 1968. The date of the death of
the Haji as shown in the records of Dhoraji, is therefore,
corroborated by the independe nt hospital record. Neither the
date of the death, nor the cause of the death shown in the
death report as well as the extract of Entry No.842 in the
register of the Mumbai Municipal Corporation relied upon by
Ju m m a n is corroborated. The Haji, who admittedly was a
man of means, would have been treated by a Doctor, no
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matter what he suffered from. He was, therefore, expected to
obtain a death certificate under the provisions of Section 450
of the Mumbai Municipal Corporation Act. The requireme nt of
a pancha n a m a in the place of a death certificate or in the
place of any medical treatme nt, be it Allopathy, Homeopat hy,
Ayrvedic or Unani, may be accepted by the Municipality for the
corpses of a vagrant, a beggar or such other person who may
not have received any medical treatme nt or been under the
care of any Medical Practioner as per their Rules in their G.Rs.
It is inconceivable that the Pancha n a m a alone can be made of
the dead body of the Haji. In any event no pancha n a m a is
produced by Ju m m a n and no panch has been examined by
him.
97. The reference to cemetery No.82 which is itself a fictitious
record rather than being proved by Ju m m a n as corroborative
evidence has been sought to be disproved by the Builders by
examination of the Managing Trustee of the said Cemetery as
a fictitious record made in the death report Exhibit- FF (colly) .
Professor Sayyed Moham m a d A.Hussaini who is the Managing
Trustee of a Irania Shiya Asna Isna Cemetery has been
examined. He as P.W. 5 has produced records of the cemetery
to show that no burial of the Haji took place therein. His oral
evidence shows that only Shiya Muslims are buried in
Cemetery No.82. The Haji by his name is shown to be a Sunni
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Muslim. The Haji was indeed a Kuchhi Memon, who is a
Sun ni Muslim. He hailed from Kutch in Saura s h t r a District.
98. P.W.5 has produced the Calender of 2 nd May 1986 showing
that no dead body was brought to his Cemetery on that day,
the page of Friday 2 nd May 1986 having been left blank. His
evidence shows that that was the record kept by his Cemetery
in the ordinary course of the conduct of the said Cemetery.
99. Mr.Pandey contended that the record is a page of an
account book and hence is unn at u r al evidence. The witness
has been examined on 16 th November 1998. His oral evidence
shows that Haji could not have been buried at his Cemetery.
Nevertheless, prior to his deposition he was contacted by the
Police Officer who investigated the criminal complaint, P.W.8.
He made inquiries and brought out the record maintained by
the Cemetery. The Cemetery is not expected to keep
immaculate records. It is however, expected to keep some
records of the various burials that took place therein. It may
use an account book or even a diary for making its entries.
There is no reason to reject the record brought by an
independen t witness. The Builders have produced this
evidence to rebut the presu m p tion. Neither Ju m m a n nor Koli
have produced any Corroborative evidence of the contents of
the death certificate relied upon by them.
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100. On reading of each of the aforesaid docume nt s which
culminated in the death certificate of the Haji who is stated to
have expired in 1986 alongside the independe nt record of the
Cemetery as well as TATA Memorial Hospital got produced by
the Builders seen alongside the birth of the Haji in his
passport makes it abu nd a n tly clear that the death certificate
relied upon by Ju m m a n and Koli is a fabricated record and
cannot be relied upon to prove the date of the death of the
Haji.
101. Koli has not produced any evidence of the death of the
Haji except his oral testimony that he attended the funeral of
Haji in May 1986. It is contended by Mr.Pandey that though
all the parties admit that the Haji owned the Suit property
under the Conveyance dated 5 th November 1960, the parties
are at variance as to who was the person who died as
contended by each of them. He has contended that the Haji as
described in the Conveyance was one Haji Abdul Sattar Ali
Moham med and person who is stated to have expired at
Dhoraji is one Haji Sattar Chamadia (or Haji Sattar Ali
Moham med Chama dia). Mr. Pandey would contend that, that
person was Sattar and not Abdul Sattar. The person who
expired in Bombay in 1986 was Abdul Sattar and these are
two different persons. He argued that all the docume n t s of the
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person who expired in Bombay and who owned the Suit
property was Abdul Sattar and the person who expired in
Dhoraji was Sattar Chamadia.
102. It may be mentioned that Abdul is one of the words
amongst Muslims that mean and denote a reference to God /
Prophet. That word is usually used as a prefix to the real name
of Muslims. Such prefixes or suffixes are Abdul, Moham med,
Ali etc., this is a matter of common knowledge. It is a fact of
which judicial notice is required to be taken. Facts for which
judicial notice is required to be taken need not be proved
under Section 56 of the Evidence Act. Interestingly the
judgment s under Mahommeda n Law relating to Hiba cited
earlier in respect of issues relating to the execution of the Gift
and the Will by the Haji show by the very name of the parties
in the case, this aspect. The case of Hayatuddin Haji
Shujauddin Vs. Abdul Gani Abdul Hafiz (Supra) is a
illustration on the point. Incidentally the name of the
Responde nt in that case shows precisely the prefix Abdul to
the name Gani and the father’s name Hafiz. There is no
sur na m e shown when these prefixes are used as commonly
understood. Similarly the case of Fatimabibi Vs. Abdul
Rehma n Abdul Karim (supra) shows the same prefix and the
same style of writing the name without the surn a m e with the
prefix as used. Interestingly the other case is that of Abdul
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Sattar Vs. The Vth Additional District Judge, Lucknow
(Supra), in which also the surn a m e is not used. It may,
therefore, be seen that when such prefixes or suffixes are used
with the first name, the Surna me is not used. In official
docume nt s where surn a m e s may be required to be used the
prefixes or suffixes may be dispensed with. The person is
nonetheless the same.
103. Even otherwise Mr. Pandey is incorrect. In this case all
the documen t s showing the surn a me are not without the
prefix Abdul having been described to show two different
persons, one being Haji Sattar Cham adia and the other being
Haji Abdul Sattar Moham med. A look at the docume nt s in
this case would make this aspect clear. For easy reference the
references to the name of the Haji as well as his wife and
daughter differently described in various docume nt s is set out
as follows:-
Sr.No. Particul a r s of Name Exhibi t
docu m e n t and dat e
Conveyance Deed Haji Abdul Sattar U-3
1 -5.11.1960 Ali Moham med
2 7x12 Extracts - do - U-20
Last Will and Haji Sattar Ali U-21
Testame nt -18.4.1968 Moham med
3 Cham adia
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Sr.No. Particul a r s of Name Exhibi t
docu m e n t and dat e
Death Certificate - do - U-22
4 -15.5.1968
General Power of Hazarabai Abu U-23
Attorney - 4.6.1976 Fazal w/o Haji
Sattar Ali
5 Moham med
Agreement for Sale - Hazarabai Abu
20.12.1978 Fazal w/o Haji
6 Sattar Cham adia
General Power of Kulsu mb ai Abdul
7 Attorney 21.12.1978
ig Sattar Cham adia
Public Notices - Haji Sattar D(colly)
13.12.1979 & Cham adia
8 15.12.1979
Letter - 14.12.1979 Hazarabai Abu H(colly)
Fazal w/o Haji
Abdul Sattar
9 Cham adia
Purcha sers requisition Haji Abdul Sattar H (colly)
10 on Vendor's title Chamadia
Letter sending the Kulsu mb ai Haji J (colly)
draft of the Abdul Sattar
Conveyance to Cham adia
11 Kulsum b ai
Letter - 12.12.197 9 Hazarabai D/o Abu K (colly)
Fazal & w/o Abdul
12 Sattar Cham adia
Title of the Suit Hazarabai Abu N (colly)
No.1093 / 1 9 8 2 Fazal w/o Haji
13 Sattar Cham adia
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Sr.No. Particul a r s of Name Exhibi t
docu m e n t and dat e
Index- II (Hazarabai O
wd /o.Haji Abdul
14 Sattar Cham adia)
Letter of the Kulsu mb ai (Abdul FF (colly)
Competent Authority - Sattar Cham adia)
15 29.1.87 (ULC)
Letter of ULC Authority - do - FF (colly)
dated 8.4.1987 to
16 Kulsum b ai
Notice issued by Haji Abdul Sattar HH (colly)
17 Tahasildar Borivali,
ig Ali Moham med
Entry No.843 in the Haji Abdul Sattar LL-1
Municipal Death Ali Moham m a d
18 Register.
Supplemen t ary form of Hazarabai Abu NN (colly)
scheme under Section Fazal
19 21(1) (ULCRA)
Post card sent to Tata A. S. Ali Mohammed SS (colly)
Memorial Hospital
20 dated 28 th May 1968
Record of Tata Abdul Sattar Ali SS
21 Memorial Hospital Moham m a d
Death Certificate Haji Abdul Sattar EEE
22 produced by Ju m m a n Ali Moham med (colly)
Municipal Records for Haji Abdul Sattar EEE
Death Certificate of Ali Moham m a d (colly)
23 Jum m a n & Aziz Musa
Passport - 12.4.1957 Abdul Sattar Ali LLL
24 Moham m a d
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104. It must be noted that in several of the above docume n t s
the prefix Abdul appears even with the Surn a m e Chama dia.
These include the docume nt s of Mumbai.
105. It is importa nt to remember that several of these
docume nt s bear reference to the Haji’s address at Hasan
Building, Moham m a d Ali Road Mumbai as well as at Dhoraji
being the case paper of the Haji as the patient of Tata
Memorial Hospital Exhibit- SS (colly) as well as his passport
Exhibit- LLL. It would be too much to conclude that the
person born in Dhoraji having the current address at Hasan
Building, Moham m a d Ali Road, Mumbai and who had given
both such addresse s in his case papers and passport and who
is known variously as Abdul Sattar, Haji Sattar, Haji Abdul
Sattar Ali Mohmmed, Haji Sattar Chama dia and Haji Sattar Ali
Moham med Chamadia and the like is not one and the same
person with or without his prefixes and surn a me.
106. One intrinsic evidence that lends credence to the date of
the death of the Haji is the Death Certificate of the Haji
Exhibit- U-22 shows that the information of the death was
given by Bashir Haji Sattar who is shown to be one of the sons
of the Haji. Incident ally, his name is also shown on each page
of the Power of Attorney executed by Hazarabai, the widow of
the Haji; Exhibit- C.
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107. Aside from the years of the death there have been various
dates given by various parties of the death of the Haji. Each of
them have mistakenly stated other dates which are not
corroborated by any document a ry evidence. The two dates
relied upon by the two parties for their specific claims are 15 th
May 1968 as contended by the Builders and 2 nd May 1986 as
contended by Ju m m a n and Koli.
108. The Haji is seen to have expired on 15 th May 1968 as
reflected in the certified copy of the public records maintained
by Dhoraji Municipality of his death, which have not been
challenged by any docume n t a ry evidence. Hence, the Builders
have proved that the Haji died in 1968. Ju m m a n has not
proved that the Haji died in 1986. Consequen tly issue No.10
in Suit No.1056 / 1 9 8 7 is answered in the Affirmative and
Issue No.1 1 in Suit No.1056 / 1 9 8 7 is answered in the
Negative , and Issue No.3 in Suit No.3202 / 1 9 8 9 is answered
to show that the Haji died on 15 th May 1968.
109. ISSUE NO.15 IN SUIT NO.105 6 / 1 9 8 7 AND ISSUE
NOS.1,2 , 4 & 5 IN SUIT NO.32 0 2 / 1 9 8 9 : RE : Jum m a n’ s
Identity and Legal Right :- Ju m m a n has filed Suit
No.3202 / 1 9 8 9 claiming to be the only son and the sole heir of
the Haji. His belated action, 21 years after the death of the
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Haji is based upon the false and fabricated death certificate of
the Haji showing his death on 2 nd May 1986 under registration
No.843 Exhibit- A to his plaint. His suit is filed on 23 rd October
1989 more than 3 years after the claimed death of the Haji
and after much water had flown over the Haji’s estate.
110. As such, after obtaining the death certificate Ju m m a n has
produced a false and fabricated birth certificate to show his
birth as the son of the Haji. Though he has not examined
himself these docume nt s required to be considered, if only for
their total lack of worth.
111. Mr.Almeida on behalf of Kulsum b ai pointed out how
Ju m m a n is a rank stranger. The last Will and Testament of
the Haji shows his 2 wives and their children. It bears no
mention of Ju m m a n or Moham m a d Ju m m a n with the
customary prefix, as he has chosen to call himself in the title
of the plaint and as he is shown in the birth certificate
Exhibit- B to the plaint relied upon by him.
112. The evidence of P.W.9 the only witness who has been
examined by any of the parties to the Suit knowing the family
history, linage and Succession of the Haji, also shows the
family member s of the Haji and specifies that Ju m m a n is not
his son.
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113. Mr. Almeida drew my attention specifically to the Death
and the Birth Certificates Exhibits- A & B to the plaint in Suit
No.3202 / 1 9 8 9 . The Death Certificate is issued on 28 th
November 1986. The application for its issue was made on 27 th
November 1986. The Birth Certificate shows the birth of
Ju m m a n registered on 26 th November 1986, after the death of
his alleged father and a day prior to his application for the
death certificate of his father. Hence, though his birth is in
1964, it is registered in 1986 ! The Birth Certificate shows his
father’s name to be Haji Abdul Sattar S/o. Ali Mohamm a d and
his mother’s name to be ” Mrs.Haji Abdul Sattar ” . It is not
known how the name of a female who was his wife was in such
short supply that she was known by her husb a n d’ s name.
114. Though his father is shown to have his perma ne n t
address at Hasan Building, Bombay- 400 003, Ju m m a n’ s
perma ne n t address is shown to be Isaq Estate, Kismat Nagar,
Marole Pipe Line Road, Andheri (East), Mumbai- 400 059. One
wonders why the only son did not live at the same address as
that of his father even when he registered his own birth.
115. His birth certificate is issued upon the birth report got
produced by P.W.8 from the records of the Mumbai Municipal
Corporation certified to be a true copy by Executive Health
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Officer. The application for the birth report is made on 26 th
November 1986 (a day prior to Ju m m a n’ s application for the
death certificate of his father ). The particulars in the
application is signed by him as Moham med Jum m a n in Hindi
(as against his signat ure as Moham m a d Haji Abdul Sattar in
Hindi on the application for the death certificate.). He has
shown the names of his parent s as Haji Abdul Sattar S/o. Ali
Moham m a d and Smt. Haji Abdul Sattar. His mother’s name
has otherwise never been revealed.
116.
Upon such record, though outlandish on the face of it, the
Builders have taken the effort to get produced other
docume nt s of Ju m m a n . These are inter alia his ration card
and his 2 passports. The ration card is particularly and
peculiarly intrinsic. P.W.8 has got the ration card produced
during his investigation of the criminal complaint. The ration
card shows Ju m m a n ‘ s name to be Shaikh Ahmad Ju m m a n
after which the words “Abdul Sattar” are added by way of
correction. The ration card itself is issued on 7 th October 1986
(a month prior to the applications for birth and death
certificates). It shows his address at Nizam Chawl, Pipe Line
Road, Marol, Mumbai. One wonders why the only son of a
wealthy father was constrai ned to live in a chawl. The ration
card of Ju m m a n showing his name as Shaikh Ahmad
Ju m m a n b h ai without the addition of the words “Abdul Sattar”
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has also been produced by P.W.9 as a part of the record of the
Tahasildar’s office. Hence it is seen that these words have
been added by way of corrections after the ration card was
initially issued. The corrected ration card is not shown to be
issued under the stamp of the relevant rationing office as the
original ration card.
117. The birth certificate came to be issued upon the affidavit
of Ju m m a n stating those facts. Based upon that affidavit the
Tahasildar has simplicitor issued the Heirship Certificate. The
affidavit of a party to the proceedings cannot be used as
evidence on record. The party must examine himself and be
available for cross examination. In the absence of that party
his affidavit must fail. In the absence of his affidavit the
Heirship Certificate issued by the Tahasildar must also fail.
Conseque n tly his claim as the sole heir of the Haji must fail.
118. Incidentally he has been issued 2 passports containing
different information as to his name and ancestry, which need
not be dissected.
119. Based upon the docume n t s relied upon by Ju m m a n ,
which are not tendered by him in evidence, his case of he
being the only son of the Haji and the sole heir is not made
out. In fact it is seen to be otherwise. Even the presu m p tion
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under Section 79 of the Evidence Act is rebutted. Hence, Issue
No.1 5 in Suit No.10 5 6 / 1 9 8 7 and Issue Nos,1, 2 & 4 in Suit
No.3202 / 1 9 8 9 are answered in the Negative . Issue No.5 in
Suit No.3202 / 1 9 8 9 is answered in the Affirmative .
120. ISSUE NOS.12, 13 & 14 IN SUIT NO.105 6 / 1 9 8 7 . RE:
Possession, licence and the option to purcha se the Suit
property by Koli:- Koli is Defenda nt No.6 in Suit
No.1056 / 1 9 8 7 . He has sought to challenge the Plaintiff’s title
and accordingly the reliefs claimed by the Plaintiff.
121. His claim is that he is a fisherm a n. He claims to have
been fishing on the Suit property since 1966 initially without
the permission of the Haji at times when the sea water came
upon the Suit land during monsoons and / o r at high tides. He
claims fishing rights in the Suit property purs u a n t to a licence
granted by the Haji to him on 30 th September 1968 under a
writing executed by the Haji on that date. He further claims
that he had an option to purcha se the said land as mentioned
in the licence, which he exercised on 1 st September 1983 upon
payment of part of the consideration for exercising the option
on that date and upon payment of further installment s
thereafter. He accordingly claims to be in actu al possession
of the Suit property since 1966 when he intermittently started
fishing thereon and in juridical possession of the Suit property
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from the date of the licence on 13 th September 1968.
122. His oral evidence is that he is Koli by birth and profession.
His parents were in business of fishing and selling fish. He
carried on the same business. He had 2 acres agricultu ral
lands in Malwani adjacent to the Suit land on which he grew
vegetables for a certain period of time. He has produced the
7 / 12 Extract of the said land as Exhibit- 24 . His mother had
a licence of Mumbai Municipal Corporation for selling fish in
Malad Fish Market. Hence he claims to be an agriculturist
upon cultivating the said Guruc h a r a n land close to the Suit
property. His oral evidence is that the Suit land was adjacent
to a creek and half of the land was under water through out
the year and in the Monsoon almost the entire land was under
the Sea water during high tides. When the fishing boats
cannot go into the open Sea during the monsoon he used to
fish in the suit land which was a kilometer away from his own
agricult ur al land, which he cultivated. He started fishing
since 1966- 67 upon which he claims possession of the Suit
property since that time, which was prior to the licence when
he obtained from the Haji to fish on the suit property.
123. He claims to have known the Haji upon the premise that
he used to come to the Suit land once or twice a year and
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came to know about his fishing activity thereon. The Haji met
him one day “while he was going to his land got down from
the bus at Malwani and came to him” . After his personal
knowledge of the Haji having got down from the bus to meet
him, he has deposed that the Haji told him how he regretted
purcha sing that land which was for investment without
inspecting it and expecting it to be an agricultu ral land.
124. His further evidence is upon the Haji expressing his
innermost thought s about the ownership of his property to
him. He thought that he should legally do fishing on the land
(which until then he did illegally and clandestinely without the
permission of the owner of the land ) and so he approached the
Haji and requested him to grant him licence to carry on fishing
on the suit land. He approac hed the Haji in the middle of
September 1968. He mentioned to the Haji the advantages of
giving him the licence – that if the Haji agreed he could do
fishing on the land, the land would be in his possession
throughou t the year, he could carry on activities on the land
and there would be no encroachm e n t on the land; (he alone
would encroach upon the land). The Haji agreed to give him
the said land and asked him to come after a week.
125. His further evidence shows how the Haji conversed with
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him after he agreed to give Koli the suit land and called
him ……….. He again went to him after a week and the Haji
“opened up the topic with him that he was trapped in
purcha sing the said land…”. The Haji offered to sell him the
land. However, he did not agree to purch a se the same
immediately. He exercised caution. Ostensibly he only
wanted to be in possession of the property, but did not want
the ownership rights. He told the Haji that he would do
business on the land for some years and thereafter, discus s
with him about the purcha se.
ig But he was ready to take the
land for fishing. Haji granted the licence to fish for 20 years at
the rate of Rs.44 / – per mont h, the licence fees to be paid for
10 years in advance and after the expiry of 10 years also the
licence fees of Rs.80 / – per month or more was to be paid in
advance. He was permitted to catch fish, dry fish and keep
fish net and fishing vessels on the land. The Haji allowed him
to erect bunds , dig ditches and ponds and erect a shelter for
fishing activities at his cost with an option to purcha se at the
rate of Rs.2500 / – per acre.
126. His further evidence shows that he had not carried the
money on the date of that meeting when the Haji had called
him (when he “opened up the topic” of the regrettable
purcha se ). The Haji called him once again after about one
week during which time he would keep the agreement ready to
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be executed between them on the lines discus sed by the
parties. He went to Haji’s residence on 30 th September 1968.
He signed the agreement prepared by the Haji. He paid the
Haji Rs.5280 / – in cash being the advance licence fees for 10
years. Haji signed the agreement in his presence and gave it
to him. The Haji asked him to sign on a copy, which he gave
the Haji. This is the pictorial, floral, vivid account of what is
contained in the docume nt sought to be produced by direct
oral evidence. Alas the docume n t does not bear the signat ure
of Koli himself, though there is a provision for the same.
ig The
signatory of the docume nt has not deposed about the
aforesaid account of how the Haji got down from the bus,
called him twice and prepared the agreement. Koli has sought
to push into the evidence a docume nt signed by the party who
has not deposed about the trut h of its contents. His evidence
about the trut h of the content s of the docume nt executed by
another party, therefore, remains at that. This documen t is,
therefore, marked part of Y-1 (colly) for identification and
remains unproved and unidentified by its maker / a u t h o r .
127. The signat u re of the Haji on this document has, however,
been admitted and is marked part of Exhibit- 6 (colly) in
evidence.
128. It must be appreciated that the agreement relied upon by
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Koli is of 30 th September 1968. The Haji is already seen to
have expired by then. The Haji was undergoing treatme n t for
Cancer month s prior to his demise. The Haji was not expected
to travel by bus and otherwise to an admittedly regrettable
land on that one day, the date of which is not mentioned. Mr.
Pandey on behalf of Koli, has advisedly accepted that death
certificate produced by Ju m m a n without demur though he
has not accepted the claim of Ju m m a n at all. It is only thank s
to the death certificate of Jum m a n that Koli has put forward
has case of licence
ig under the stamp paper dated 24 th
September 1968, otherwise issued well after the death of the
Haji.
129. Koli claims to have exercised the option to purcha se the
suit land on 1 st September 1983. The option to purcha se is on
a plain ledger paper stated to be signed by the Haji as well as
him. Even that docume nt is marked part of Y-1 (colly) for
identification; only the Haji’s signat ur e is marked part of
Exhibit- 6(colly) . Both these docume n t s have since not been
identified and are accordingly not proved. The document s,
therefore, cannot be read in evidence. The reliance upon the
case of Om Prakash Berlia & Anr. Vs. Unit Trust of India &
Ors. 198 3 Bombay 1 relied upon by Mr. Pandey himself
shows that the trut h of the content s of the docume nt s not
having been proved by the maker of the docume nt s, the
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docume nt cannot be stated to be proved and cannot be read in
evidence.
130. Mr. Pandey contend s that the oral evidence of Koli by way
of affidavit of examination- in- chief recited above proves the
content s of the documen t. The contention is incorrect. The
Haji could not have signed any document in September 1968,
he having expired in May 1968. The stamp paper of the
docume nt is not purcha sed by the Haji. It is purcha se d by
Koli. Hence, the signat u re, though appearing to be very
similar to that of the Haji’s signat u re, and so admitted by
P.W.1 in his cross examination also, could not have been put
by the Haji. The contents of the docume nt executed by the
Haji cannot be taken to have been proved by the life-like
graphic portrayal of Koli. The licence to fish and the option to
purcha se remain at that.
131. Koli has relied upon two receipts dated 1 st September
1984 and 1 st September 1985 also stated to be signed by the
Haji showing payment of Rs.10,000 / – thereu n d er towards
payment of some installment s upon exercising the option to
purcha se. He claims that further amou n t s were not paid by
him as the Haji expired in 1986. The right to receive amou n t
is the heritable right. It survives to his heirs and legal
represent atives. Further payment s, if any, could have been
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made to the heirs of Haji. However, he does not admit that
Haji left any heirs. He challenges the claim by Hazarabai as
well as Kulsum b ai or for that matter of Ju m m a n to the estate
of Haji. It is argued on behalf of the Builders that at the rate
of Rs.2500 / – per acre, Koli would be required to pay
Rs.1,18,000 / – to the Haji as per the agreement set up by him.
Koli has paid only Rs.30,000 / – instead. Upon payment of
Rs.30,000 / – therefore, he could not even otherwise claim to
have purcha sed the suit land. Besides the Haji had gifted the
land to Hazarabai well before and had divested himself of its
title.
132. The oral evidence of Koli is therefore required to be
appreciated in view of the agreement dated 30 th September
1986 part of Y-1(colly) in evidence. The agreement is on a
stamp paper dated 24 th September 1986. The paper is issued
in the name of one E.G.Koli from an Exchange at Malad,
Bombay. If the evidence of Koli is to be tested for its
credibility, it must be seen how it runs. The deposition shows
that the Haji would rarely come to his land which was close to
that of Koli. When he came on that day, deposed in
paragrap h 7 of his evidence ” after getting down from the bus
at Malwani ” and introd ucing himself, he had already lamented
about the unprod uctive land. Somehow Koli had approached
him. How he found out his address is not shown in the
elaborate description of the meetings between the two. Koli
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had requested for the licence in the middle of September 1968.
The Haji had agreed to give the land to him. He had told him
to come after a week. For some reason, it cannot be
understood why, he again “opened the topic” about being
trapped, which was not required. The Haji offered to sell him
the land. The Haji granted the licence to him. Because he
was not carrying the money, he was called again after one
week. The Haji “would keep the agreement ready to be
executed” on the lines discus sed between them. He went back
to the Haji’s residence on the date of the agreement.
ig The Haji
had kept the agreement ready. Both signed.
133. There is no need or opportu nity for the agreement to be
signed on a stamp paper issued in Malad in the name of Koli,
if the Haji was to do everything and keep the agreement ready.
There is nothing in the elaborate story, complete with all
details of the step by step incidents that happened which even
remotely suggests that Koli was to bring the stamp paper and
the Haji was to type the docume nt. It was only the Haji who
was to do everything to get the documen t ready; he did all
that. He is expected to have purcha sed the stamp paper
himself. He would not purch a se the stamp paper from Malad
where he would go to see his land on those rare occasions.
He would not know any Exchange at Malad or any Stamp
Vendor there. He would not purch ase the docume nt in the
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name of one E.G.Koli. Aside from the fact that this docume nt
is now seen to be executed month s after the death of the Haji,
it is the most importa n t evidence that gives a lie to the story
spun by Koli. The docume nt is distinctly got up and
fabricated by Koli on an stamp paper earlier purcha se d by one
Koli who may have been his family member. This explains
why Koli accepts the death certificate produced by Ju m m a n
while he does not accept his claim or any other documen t.
Having got only the stamp paper issued on 24 th September,
1986, he has to accept Haji’s death in 1986 and not before.
134. Such is the result of the appreciation of such a document
which is not even proved by direct oral evidence and which
remains to be identified and yet remains Y-1 for identification.
135. Mr. Pandey argued that the documen t s marked Y-1 (colly)
in evidence are proved by direct evidence led by Koli of the
circumst a n ce s under which the docume nt s came to be
executed by the Haji. It may be mentioned that the length of
the evidence, with all its embellishme n t s, cannot prove a
docume nt. The circum s t a n ce s which made a party execute
the documen t also cannot prove a docume nt. The evidence
relating to the actual execution of the docume nt by its
signatory is the only mode of proving a private documen t
signed by a party. Documen t s such as Y-1(colly) marked for
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identification can only be identified by the author of the
docume nt. It cannot be identified by a party putting up that
docume nt against the author or his assignees or successors.
136. Mr. Pandey argued that it is only an error that Koli has
not signed the agreement dated 30 th September 1968. A copy
of the agreement has been signed by him and given to the
Haji. Mr. Almeida drew my attention to the cross examination
of Mr. Pandey calling upon the Builders to produce a copy of
the agreement dated 30 th September
ig 1968 and option to
purcha se dated 1 st September 1983 being the docume nt s from
amongst the docume nt s stated to have been handed over by
Hazarabai or Kulsum bai to the Builders. He rightly argued
that that gives away the case of Koli that Hazarabai was not
his wife and Kulsumb ai was not the daughter of the Haji. It
reflects on the non- admission of the other docume nt s of the
Haji. Whatever that be, a copy of the agreement dated 30 th
September 1968 signed by Koli would make no difference in
considering the proof of the trut h of the contents of the
docume nt dated 30 th September 1968 of which Koli is not the
author. In fact even if it is signed by Koli in confirmation, the
docume nt dated 30 th September 1968 could only have been
proved in evidence as the document executed by the Haji. The
reliance by Mr. Pandey upon the case of Omprakash Berlia &
Anr. Vs. Unit Trust of India & Ors. 198 3 Bombay 1 makes
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this position absolutely clear.
137. In the case of Rajendra Pratap Singh Vs. Rames hwar
Prasad AIR 19 9 9 SC 37, the effect of signing of a documen t
by one or both the parties to an agreement came to be
considered. That was a case of a lease. It was required to be a
bilateral endeavour of a Lessor and a Lessee. It may be signed
by one of them or by both. It has been observed in that
judgment that:-
“Whet h e r both par t i e s have execu te d an instru m e n t
will be a ques t ion of fact to be deter m i n e d on
evidence if such a det er m i n a t i o n is warr a n t e d fromthe plea d i n g s of the part i c u l a r suit. Merely
becau s e the docum e n t show s only the sign a t u r e of
one of the par t ie s it is not enough to conclu de tha t
the non- signing par t y has not joined in the
execut ion of the instru m e n t .
138. The evidence in this case shows how the Haji executed the
docume nt. The fact that Koli may have parrot like –
reprod uced its contents from memory would make no
difference. It is only for the Haji to state before the Court that
he had executed the docume nt s marked Y-1(colly) for
identification and to identify his signat ure. Mere signing the
docume nt s by Koli who has relied upon them cannot prove the
execution of the docume nt s by the Haji.
139. In view of the seminal documen t itself not standing the
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test of credibility, the later docume nt which is on a ledger
paper upon which Koli claims to have exercised his option to
purcha se by making payment of the first three installment s
only hardly comes up for consideration.
140. This leaves the aspect of the two signat ure s of the Haji
which have been identified by P.W.1 . P.W.1 is the partner of
the Builders Firm. He had never met or seen the Haji. He
could identify the signat ur e of Haji only upon he having seen
the Haji’s signat u re s on earlier docume nt s.
ig He has identified
the signat u re s in paragrap h 83 of his evidence. It would be
apt to consider how that evidence came to be recorded. The
witness was shown the Court Receiver’s report Exhibit- P in
evidence in paragrap h 81 of the evidence. He was asked
questions on a letter addressed by Koli to the Court Receiver
which was marked Y for identification and which has not been
identified. Thereafter he was put questions with regard to
poles and fencing put on the suit property in paragrap h 82 of
the evidence. Immediately thereafter he was ” shown a
docume nt “. In fact those are the docume n t s marked Y-1
(colly) in evidence. Without reference to the content s of either
of these docume nt s or any foundation for them, he was asked
only to identify the signat u re s on the docume nt. He identified
the signat ure s to be of the Haji. The signat u re s on the two
docume nt s are similar and both are made with blue fountain
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pen. It would be worth seeing these docume nt s with the two
additional receipts of Rs.10,000 / – each on two pieces of ledger
paper. The signat ur es on all these docume nt s more specially
the second documen t in Y-1(colly) being the option to
purcha se and the two receipts of 1 st September 1984 and 1 st
September 1985 are with the same pen.
141. These signat ures require to be compared with the
admitted signat ure s of the Haji on the Conveyance dated 5th
November 1960. A comparison of the two signat ures shows
that the admitted signat ure of the Haji marked Exhibit- 9 on
the first page of the Conveyance is rather different from these
signat u re s. The signat u re s are made showing the name Haji
Abdul Sattar Ali Moham me d. Hence upon a signat ure being
shown in “a docume nt” the witness would consider the general
getup of the signat ur e and not its analytical comparison
(which a Court is required to do by placing two signat u re s side
by side under Section 73 of the Evidence Act). The
identification by P.W.1 of the Haji’s signat u re ” on a docume nt ”
thru st upon him in the midst of evidence with regard to a
completely different matter, therefore, hardly enures for the
benefit of Koli. The witness who has never witnessed the
signat u re of a signatory identifying the signat u re can only
show broadly that he has not simplicitor denied the signat ure
without applying his mind.
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142. It is the circumst a n ti al evidence which is required to be
considered. It is such circum st a n tial evidence which calls the
bluff of Koli. Four signat ures similarly signed, two of which
are shown at a time to the witness has resulted in the witness
being beguiled by calligraphy. Even marking the said two
signat u re s as Exhibit- 6 (colly) in evidence, therefore, does not
go far. The entire docume nt remains to be marked and
exhibited for want of proof. These signat ure s have only to be
analysed to bring the latent fraud on surface. The agreement
dated 30 th September 1968 is unmista k a bly a forged and
fabricated documen t. It cannot give any rights to Koli. The
same holds for his offer to purcha se the land dated 1st
September 1983, 15 years after the death of the Haji. Similar
are the two receipts executed in the two succeeding years.
143. What is important to note is that though Koli claims
juridical possession under the agreement dated 30 th
September 1968 and claims to have been fishing on the suit
land even prior to that agreement, there is not a single overt
act shown by Koli even remotely suggesting his possession
over the entire land. There are no entries in the record to
rights with regard to the use of the Suit land as sought to be
shown in respect of his neighbouring guruch a r a n land where
he is shown to be growing vegetables though in the year 1964-
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65 only which has been entered into Revenue records by a
pencil entry. and marked Exhibit- 24 in evidence. Mr. Pandey
took pains to explain the pencil entries in the 7 / 1 2 Extract of
the neighbouring land standing in the name of Koli. He
explained that in the year 1964- 65 Koli cultivated the said
land by growing vegetables. This is in addition to the land
being shown as guruch a r a n land in that year also. When Koli
started fishing on the Suit land, he discontin ued growing
vegetables on the adjacent land. Mr. Pandey would have the
Court believe that each of those 2 mighty activities, would
cons u me the entire time of Koli that it would have been
impossible for Koli to carry on both these activities at the
same time, so that the intrinsic evidence shows vegetable
cultivation in the year 1964- 65 which was discontin ue d when
fishing started on the Suit land ! What work did Koli do before
1964 ? A single pencil entry for a single year in the adjacent
land has nothing to do with the Suit land.
144. Similar evidence, which is conspicuou s by its absence, is
the 7 / 12 extract of the Suit land showing the possession of
Koli. If Koli had the explainable record of one land, he would
be expected to obtain such record of the other land too. He
would be expected to have similar entries made showing the
non- agricult ur al fishing activities in respect of his possession
of the Suit land also. There are no documen t s whatsoever
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produced by Koli in respect of the suit land from 1960s until
the filing of the Suit or making his claim before the Tahasildar.
In fact, the 7 / 12 extract of the Suit land is amongst the
docume nt s got produced by the builders as Exhibit- U 20 in
evidence amongst the docume nt s handed over by Kulsum bai
to them at the time of the execution of the Agreement for Sale.
Though all those docume nt s cannot be and are not read in
evidence, without proof of their execution by direct oral
evidence, the 7/ 1 2 extract of the land agreed to be sold can be
read in evidence as a certified copy of public record carrying
the presu m p tion of its correctness. The 7 / 1 2 Extract, marked
Exhibit- U 20 does not show any reference of Koli. The
spurious documen t s fabricated and sought to be pushed into
evidence upon the tall claim by a long story remain at that.
They are unproved. No claim can be based thereon as is
sought to be made by Koli. The possession of Koli in the Suit
land is not shown. The licence is not proved. The option to
purcha se is also not proved. Hence, Issue Nos.12, 1 3 & 14 in
Suit No.1056 / 1 9 8 7 are answered in the Negative .
145. ISSUE NO.6 IN SUIT NO.320 2 / 1 9 8 9 :
RE : Ownership of the suit land : It is the admitted position
that the Haji was the owner of the suit land. The issue need
not be answered and except for clarifying that the Haji was not
the Plaintiff’s father in Suit No.3202 / 1 9 8 9 .
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146. ISSUE NO.8 IN SUIT NO.320 2 / 1 9 8 9 . :
RE :- The Conveyance as “Amanat” : It is Jum m a n’ s case that
the Haji entru s ted Hazarabai and Kulsu mb ai with the original
Conveyance as “Amanat”. This is a matter of oral evidence.
How, where and when the custody was given would be
required to be seen. Since Ju m m a n has not examined himself
this issue is not proved. Hence, issue No.8 is answered in the
Negative .
147. ISSUE NO.9 IN SUIT NO.320 2 / 1 9 8 9 :
RE :-Threats.
The Jum m a n has alleged that the Defenda nt s administered
threats to him. That is also not proved by direct oral evidence.
Hence, issue No.9 is answered in the Negative .
148. ISSUE NO.11 IN SUIT NO.320 2 / 1 9 8 9 : RE : Jum m a n’ s
ownership on the Suit land. Ju m m a n has not led any oral
evidence. Ju m m a n’ s docume nt of birth is seen to be false and
fabricated. He has not shown that he is the heir of the Haji.
He has not been conveyed the suit property. Hence, issue
No.1 1 is answered in the Negative .
149. ISSUE NO.14 IN SUIT NO.320 2 / 1 9 8 9 :
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RE :- Limitation : Ju m m a n claims to be the only son of the
Haji. He has himself claimed that the Haji expired on 2 nd May
1986. He claims as the sole heir of the Haji. He, therefore,
claims the Haji’s estate. He has made no claim to obtain the
estate within 3 years of the death of the Haji as known to him.
However, he claims his rights in the Suit property upon the
challenge thereto purs u a n t to the Consent Decree dated 17 th
August 1982 in Suit No.1093 / 1 9 8 2 . His Suit is not filed
within 3 years of the Consent Decree also. There is no
averment in the plaint regarding the suit not being barred by
the law of limitation. Though Jum m a n claims to have known
about the challenge to his claim upon the filing of the Suit
No.1056 / 1 9 8 7 when he was served in September 1988, his
claim relating to the threats administered upon him show his
knowledge of the suit prior to the service of sum mon s upon
him.
150. However his claim in the Suit is upon Aziz Moosa claiming
to be the nephew of the Haji in about April 1987. He claims to
have obtained knowledge of the Consent Decree passed in Suit
No.1093 / 1 9 8 2 only in and after April 1987. Hence, Issue
No.1 4 in Suit No.3202 / 1 9 8 9 is answered in the Negative .
151. ISSUE NO.15 IN SUIT NO.320 2 / 1 9 8 9 :
RE : Valuation of the Suit : Ju m m a n has valued the Suit at
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Rs.50,100 / – upon the premise that the Suit property is under
” No Development Zone ” . The said claim is wholly arbitrary
and not under any rules relating to payment of Court Fees.
Ju m m a n has failed to show that Suit property is under ” No
Development Zone ” or that it can be valued as such.
The Suit property is required to be valued at the market
rate of the property as in 1989. That having not been done,
the plaint itself would deserve rejection under Order VII Rule
11 of the C.P.C . Issue
ig No.15 in Suit No.3202 / 1 9 8 9 is
answered in the Affirmative .
152. ISSUE NO.16 IN SUIT NO.105 6 / 1 9 8 7 AND ISSUE NO.20
IN SUIT NO.32 0 2 / 1 9 8 9 : RE : Reliefs : The Builders have
proved their title to the suit property. They have shown their
juridical possession and are entitled to continue in possession
of the suit property. They are entitled to develop the suit
property.
153. Koli has not shown grant of fishing rights in respect of the
suit property or the exercise of option to purcha se the Suit
property by him for consideration. Koli is not entitled to enter
into or remain upon the suit property or use or occupy the suit
property for any purpose and in any man ner.
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154. Jum m a n has only shown a frivolous suit filed by him
without showing any relationship with the Haji. Jum m a n has
not valued his suit correctly. His plaint itself deserves to be
rejected for want of proper valuation. He is not entitled to
obtain any reliefs in respect of the suit property. Hence, the
following order:
ORDER
1. The Suit No.1056 / 1 9 8 7 is decreed in terms of prayers (a)
and (b).
2. M.J. Builders are declared to be the sole and absolute
owners of the suit property being land on CTS No.2, Survey
No.44, situated at Dhara uli Village, Malwani, Malad,Mumbai admea s u ri ng 53 acres and 30 gunth a s described in
Exhibit- A to the Plaint.
3. It is further declared that none of the Defenda nt s has any
right, title or interest in respect of the suit property.
4. The Defenda nt s in Suit No.1056 / 1 9 8 7 are restrained
from interfering with the possession of M.J. Builders or
disturb their possession or entering upon the suit property
or any part thereof.
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5. The Plaint in Suit No.3202 / 1 9 8 9 deserves to be rejected
under the provisions of Order VII Rule 11 of the C.P.C for
want of proper valuation. However, since the entire evidence
is led, the suit itself is dismissed with costs fixed at
Rs.25,000 / – .
6. The Plaintiff in Suit No.3202 / 1 9 8 9 shall pay the Court
Fees based upon the valuation of the suit property put by
the Builders being M.J. Builders as Plaintiffs in Suit
No.1056 / 1 9 8 7 .
(SMT. ROSHAN DALVI, J.)
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