1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
O. O. C. J.
Notice of Motion No.________of 200 8
IN
Suit No.1094 of 2007
H.K. Taneja & ors. .. .. Plaintiffs
v/s.
Bipin Ganatr a .. .. Defenda nt
And
Keshavrao J. Bhosle .. .. Applicant
Mr.Arif Bookwala, Sr.Advocate with Ms.Manjiri Shah i/by
M/s.Pam a ni & Pamani for Plaintiff.
Mr.Kezer Kharawala i/by M/s.R.K. Associates for Defendant.
Mr.D.D . Madon with Mr.D.P . Thakare for Applicant.
Mr.Kishore Rane, represent ative of C.R., present.
----
CORAM : SMT.ROSHAN DALVI, J.
Dated : 17 th Dece mb er 200 8
JUDGMENT :
Not on board. By consent, taken on board and
argued by all the Advocates.
2. The Applicant has applied under Order 40 Rule 1(2) of the
Code of Civil Procedure. The Applicant must show that he
was in possession of the property such that the Plaintiffs or
the Defenda nt had no present right to remove him.
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3. The Applicant has relied upon an Agreement dated
22.2.2001 to show his initial entry into the suit premises.
This is a Leave and Licence Agreement executed by one
Urmila Shah, who was the widow of one L.D. Shah, who
owned the suit flat and who settled it upon a trust in favour
of the Plaintiffs with a provision that his widow would live in
the suit flat for her life-time. The settlor as well his widow
have since expired. This Agreement is not in favour of the
Applicant but his daughter one Mitali Sawant. It is a licence
for 11 months which has expired by efflux of time.
ig It is in
respect of the permission to occupy one room in the suit flat
with the common use of the bathroom, toilet and kitchen by
the licensee. The licensee is to hand over possession of the
premises on the expiration of licence. Though it goes without
saying, it states that after the termination of the licence the
occupation of the licensee would be deemed to be that of a
trespa s ser.
4. The Agreement of licence is not registered as required. It
cannot be looked into. Mr.Madon argued that it is notarized.
It may be mentioned that notarization is not an additional
qualification to give the unregistered docume nt any extra
worth. Be that as it may, even the notarization is not done
as required. It does not show the number of notarial register
of the notary as per the required rules. Its execution cannot
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even be verified and the Applicant has taken no pains to get
it verified.
5. The procedure relating to notarization under the Notaries
Rules, 1956 framed under the Notaries Act, 1952 has not
been followed. Under Rule 11(2), the notary is required to
maintain a notarial register in prescribed form No.XV. The
form shows 11 column s, including the column of the Serial
number, Date, Name of the Notarial act, Name of the
executan t, Content s of docume nt s, Notarial fee, Signat u res
of the executa nt and the Notary. The purpose of this rule is
to relate each notarized docume nt to the serial number in
the notarial register required to be maintai ned by each
notary in the prescribed form. Hence the serial num ber of
the entry must be put on the docume nt to collate the entry
with the docume nt. In case of dispute the factum of
notarization would have to be separately proved by the
Applicant since, unlike registration, there is no presu m ption
of execution of a notarized docume nt. It is seen that in this
case the notary has not shown the serial number and the
register number in which the entry is made. It would be for
the Applicant to prove the notarization in view of the dispute.
The Applicant has not got produced the relevant notarial
register of the notary, kept in the normal course of his
conduct as such notary, to prove the execution of the
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docume nt before him. The documen t being otherwise
unregistered and inadmissible in evidence is, therefore, not
even prima facie shown to be notarized.
6. In the case of Prataprai Trumbaklal Mehta vs. Jayant
Nemcha nd Shah & anr., AIR 199 2 Bom 149 , this Court
considered, inter alia, the essence of notarization of
docume nt s by persons identified before notary and the
prescribed Rules, more specially Rule 11 required to be
followed for every notarial act.
ig That was a case of reliance
upon a copy of a document certified as true copy by the
notary. That notarial act remained unregistered. The mere
fact that the docume nt was notarized was held not to lend
any authe n ticity to the docume n t in the absence of seeing
the notarial register kept by the notary in the course of his
conduct as a notary as per Rule 11 of the Notaries Rules.
Evidence was led in that case. The notary was summo ned.
The relevant notarial register was produced. No entry was
found in the notarial register relating to the trans action
claimed to have taken place under the copy documen t
notarized as true copy. The notary deposed that the
executan t was not before him. He had not made any entry
in the notarial register as, according to him, that was not
required. He was only required to verify the docume nt,
compare the docume nt and endorse it as true copy if it was
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the identical copy of the original. It was observed thus :-
“Law takes judicial notice of seal of a notary. In
ordinary course, an initial presumption may be made
about genuinene s s of the notarised copy of the
document. The underlying idea behind such
presu mption is that the notary is normally a responsiblemember of the legal profession and he is expected to take
due care to satisfy himself about the identity of the party
appearing before him. If the party appearing before the
notary is not kno w n to the notary, the notary must get the
party identified by an Advocate know n to him and takesignature of both of them in token thereof .”
The contents of Rule 11, its purpose and object as well as the
conseque nces of non- compliance of the rules have also been
considered in Para- 11 of that judgment. Reference has been
made specially to Rule 11(2) of the Rules which provides that
every notary shall maintain notarial register in prescribed form
No.XV and the register requires entry of every notarial act in
the notarial register and taking of signat ure of the person
concerned in the register. It is observed that negligence of the
notary in the discharge of his notarial functions may
jeopardise the interest of third parties and public interest
itself. Upon seeing that the notarial register did not disclose
the notarial entry relating to the notarized documen t produced
before the Court, it was held that no evidentiary value
whatsoever could be attached to such a docume nt.
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7. It may be mentioned that that was a case of only a
certification of copy of a documen t as a true copy. Our case
goes much further. It is the case of the execution of the
original docume n t itself. The executa n t is required to be
present before the notary. He is required to be identified
before the notary. He is required to sign before the notary.
The notary is required to witness such an act and register
the trans action. Keeping in mind that the documen t relied
upon by the Applicant herein is not registered and hence is
inadmissible in evidence, even the factum of the execution of
the docume n t is not even prima facie shown by the Applicant
upon proving the notarial act. It is for the Applicant to make
out his case. The prima facie case of proof of the execution of
the docume nt on a given date by the executa n t before the
notary can be evidenced by the production of the true or
certified copy of the relevant portion of the notarial register
showing that the entry was made on the relevant date in the
normal course of the conduct of the notary. The Applicant
has underta ke n no exercise to subst a n ti ate his case of the
execution of the docume nt otherwise completely inadmissible
in evidence. Since even the notarial act is not shown even a
prima facie case cannot be made out.
8. In the case of J.G. Hegde vs. R.D. Shukla, AIR 200 4
Bombay 55 , this Court once again considered the notarized
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writing which was styled as “Affidavit- cum- Indemnity Bond”.
The relevant notarial register got produced by the Court did
not reveal the required entry. The purpose of Rule 11(2) of
the Notaries Rules requiring every notarial act to be serially
numbered in the register to be maintai ned by the notary was
considered. The dual purpose served by such a practice was
set out. It was observed that one was to identify every
docume nt with reference to the serial number and the other
was to prevent execution of anti- dated documen t s by
inserting an entry in between two successive entries which
are serially num bered.
The document s which are notarized do not even show the
serial num ber or the register number under which they are
registered and entered. Nevertheless, the notary, if called
upon by the executa nt to prove the notarization, would be
bound to produce the relevant register of the relevant date.
Only the production of such a register would show whether
or not the documen t was indeed notarized on the date it is
stated to be executed.
9. There have been numerou s cases of anti- dated docume nt s
shown to be notarized other than the one that came up
before the Court in the aforesaid two cases. Hence it cannot
be put past any executa n t to produce the docume n t shown
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to be notarized on a given date without subst a n ti ating that
fact through the manda torily required stat utory procedure.
No documen t thrown in the face of the Court as notarized
docume nt can, therefore, prevail without the accompa nying
notarial registration of entry. Of course, even if that is
shown, the fact that the docume nt has remained
unregistered when it creates an interest in an immovable
property would remain to be admissible in evidence. But at-
least the Court could be satisfied prima facie about its
execution. The docume nt produced by the Applicant without
showing compliance of the Notaries Act and Rules bears no
worth and deserves to be fully rejected.
10. It may be mentioned straightway that the absence of
registration as well as the required procedure for
notarization would make the docume nt so inadmissible in
evidence as to not allow the Applicant to base his case upon
such a docume nt. The object of registration as well as
notarization is lost if a docume nt of the kind can be looked
into or considered by the Court, even prima facie, to take the
content s as correct.
11. The Applicant has also relied upon a declaration of the
deceased Urmila Shah, dated 17.5.2006 (who was stated to
be 92 years old then), who declared about the relations hip
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with the Defendant in this Suit who came to be inducted by
her in the suit premises to take care of her during her
lifetime and who has resided therein since. Ju st as the
Defenda nt, who was her nephew, was “helping her”, the
Applicant is stated to have been helping her and her nephew.
Though the declaration does not make fine reading and its
precise purport is undeciphera ble, the Applicant seeks to
rely upon the reference to his name in paragraph 3 at page 2
of the docume nt. The Applicant also relies upon the last
paragrap h in the docume n t stating that the deponent had
executed the declaration without press u re, fraud or coercion
on the date of its execution and that it was binding upon
herself, her family members and the Defenda n t also. She
admittedly expired 4 month s thereafter, on 22.9.2006.
12. The declaration does not confer any right or title upon any
one. It merely states the course of events that have
transpired and about how some parties litigate. Aside from
the name of the Applicant in the docume n t, it shows little
else. Though the declaration sets out the acts of some
parties who litigate and shows apprehe n sion of future
litigation and gives notice that it was declared by her free
consent and would be binding on several persons, including
herself, it does not mention about the Leave and Licence
Agreement executed by the deponent herself in favour of the
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daughter of the Applicant 5 years prior thereto under the
aforesaid Agreement dated 22.2.2001.
13. Mr.Madon argued that this declaration has been notarized
which carries some weight. The declaration suffers from the
same ill of absence of the prescribed procedure of
notarization.
14. The Applicant has further relied upon another Agreement
dated 14.10.2005 between the Defenda nt and the Applicant.
This Agreement is executed on 2 stamp papers of Rs.50 / –
each issued on 13.10.200 5. They are issued not in the name
of the Defendan t or the Applicant as mandatorily required,
but in the name of the Advocate J.K. Natha ni (who has
shown his address at Borivli in the rubber- stamp on the
earlier documen t of 22.2.2001) and one P.V. Dalvi,
M.S.S.I.D.C . Ltd. That is a Licence Agreement granting
licence of the entire flat in favour of the Applicant for 11
month s. The period of the licence has been left blank.
Deposit of a large amoun t of Rs.2,52,5000 / – is purportedly
taken as security deposit. Aside from a receipt executed by
the Defenda nt, there is nothing else to subst a n tiate the
payment made. The entire amou nt is presu m a bly paid in
cash. Though the Applicant has relied upon his bank
passbook to show various other entries, this entry
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admittedly does not find place in the passbook and no other
material is produced to show the payment made under any
cheque. This Licence Agreement executed as late as in
October 2005 has also remained unregistered. It is also
similarly incorrectly notarized. Rule 11 of the Notaries Rules
are not followed. Even the revenue stamps showing the
notarial fees / c h a rges are not affixed. The notarization is
rather meaningless. Aside from the stamp of the notary, the
Agreement shows nothing to evince its execution. Even the
presence of the Advocate
ig to interpret and explain the
Agreement or to introduce the party to the notary is absent.
It suffers from the same malaise which led the Court to
reject the notarial documen t in the case of Prataprai
(supra) .
15. It may be mentioned that each of the notarial stamp s on
each of the aforesaid 3 documen t s is illegible. Why the
parties went to those notaries, who appear to be at different
places, cannot be understood. The Advocates who identified
the parties before the notary in 2 of the 3 Agreements are in
Borivali (East) and at the Esplana de Court, Mumbai. The
declaration of the deceased Urmila Shah, who lived at
Peddar Road, is surprisingly identified by Advocate in the
Esplan ade Court before a notary whose address is not
shown. In the Leave and Licence Agreement dated
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22.2.2001, she has been identified by another Advocate from
Borivali, Mumbai.
16. Mr.Madon argued that though the document s are not
registered, they are notarized and if the notarization is not
accepted, the Court will be rejecting the identification and
the explanation of the Advocates who have stamped those
docume nt s. The Leave and Licence Agreement in favour of
the Applicant is not identified by any Advocate. A mere
notarial stamp thereon
ig without reference to the serial
number on the notarial register, therefore, requires the
Court to reject the notarization. The other 2 docume nt s are
not docume nt s of title of the Applicant. The Agreement
dated 22.2.2001 is in favour of his daughter who is not the
Applicant before the Court. The identification of the deceased
in that docume nt is by an Advocate from Borivali. It is
wonderous how he identified an old lady then of about 87
years, living in Peddar Road. The identification of the
deceased in the documen t dated 17.5.2006 is by yet another
Advocate. The identification creates no confidence. It is not
in terms of the requiremen t of law and legal procedure.
None of these documen t s, therefore, shows the possession of
the Applicant in the suit premises as claimed by him arising
from under these docume nt s and cannot even be looked
into.
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17. It is contended on behalf of the Plaintiffs that this case is
not of total lack of possession simplicitor. It is a case of
malafides, mischief and fraud played upon the Court by the
Defenda nt and the Applicant in concert and collusion. The
Plaintiffs’ Advocates have painsta ki ngly undert ake n the effort
of obtaining inspection and copies of certain litigations
between the Applicant and the Defendan t in the Small
Causes Court. The Plaintiffs have given notice to the
Applicant’s Advocate as well as the Defenda nt’s Advocate to
produce the papers and proceedings in certain 3 Suits filed
in the Small Causes Court. None is produced by either of
them. The Plaintiffs have applied for and produced certified
copies thereof.
18. Mr.Bookwala took me through the result of that research.
In certain corresponde nce that took place between the
parties prior to the filing of this Suit, the Defenda n t had
promised to vacate the suit flat by his letter dated 1.11.2006
written to the Plaintiffs, Exhibit- X to the Plaint. To scuttle
giving up the said vacant possession as agreed by him, a
Suit has been filed by Mitali, the daughter of the Applicant
against the Defenda nt on 23.1.2007 being L.C. Suit No.46 of
2007 claiming sole and exclusive possession of the suit flat.
The Constituted Attorney of the Defenda n t is her own father,
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the Applicant herein! On 25.4.2007, the Suit came to be
settled by the Applicant’s daughter and the Defenda nt filing
Consent Terms under which the Defenda nt agreed not to
dispossess her without following due legal process.
19. Another Suit came to be filed by the Defenda nt against the
daughter of the Applicant on 13.2.2008 in which Consent
Terms came to be filed by the parties on 8.8.2008 under
which the Applicant’s daughter claimed no interest in the
suit premises. Mr.Bookwala pointed out that the Advocate
for the Defenda nt in this Suit has been shown as the
Advocate for the daughter of the Applicant in the Suit in the
Small Causes Court, Bombay. The Constit uted Attorney,
who verified that Plaint, is the Constit uted Attorney of
another occupa nt of the flat, one Farida Galabai, who has
similarly claimed to be in juridical possession in another
Notice of Motion taken out in this Suit being Notice of Motion
No.3965 of 2008. The Advocate for the daughter of the
Applicant in that case is the Advocate of that party in yet
another Suit filed in the Small Causes Court filed by that
other occupan t being R.A.D. Suit No.1739 of 2007 against
the Defenda nt. On 27.11.2007, Consent Terms were filed in
that Suit between that occupa n t and the Defendan t, under
which tenancy in favour of that occupa n t was confirmed by
the Defenda nt !! She claims, interalia, the part of the suit
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premises claimed by the Applicant herein.
20. The 2 Cross Suits between the Defendan t on one hand and
the Applicant and / o r his daughter on the other show the
transp a r e n t collusion between the parties and the desire to
outreach the Court based upon the position that then suited
the parties.
21. Aside from these litigations with regard to the suit flat itself,
the Plaintiffs have relied upon other proceedings to show the
actual address of the Applicant in Court records. In a Suit
being Summ a ry Suit No.3501 of 2007 filed by the Applicant
against the Defenda nt for recovery of Rs.5 Lakhs with
interest on a Promissory Note filed as late as on 3.11.2007,
his address is shown to be at Banganga, Walkeshwar and
not at the suit premises. The above Suit is filed on
25.3.2007. It can be seen from the Plaint and proceedings in
the above Sum m a ry Suit that even in November 2007, 8
month s after the filing of this Suit, the Applicant was not in
the suit premises.
22. Upon the filing of the Suit, an ad- interim Application came
to be made by the Plaintiffs on 4.4.2007 in Notice of Motion
No.1370 of 2007 taken out by the Plaintiffs. An ad- interim
injunction came to be granted against the Defenda nt, who
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was present, in terms of the stateme nt made by him that he
shall not create any third party rights in the suit premises. It
is precisely after that order of injunction that the Defendant
has inducted the Applicant in the suit premises. In his
Affidavit- in- reply to Notice of Motion No.1370 of 2007 filed in
Ju ne 2007, the Defendan t stated about the presence of the
Applicant in the suit premises. Thereafter on 29 th August
2008 when the Plaintiffs’ initial Notice of Motion No.1370 of
2007 was heard, the Defendant’s Counsel stated to Court
that no person was residing in the suit flat.
ig The Court
Receiver was directed to take symbolic possession of the suit
flat. Thereafter that order came to be modified upon an
Application made by the Defenda nt’s Advocate that the
stateme nt of his Counsel that no person was residing in the
suit flat was incorrectly recorded and that the Applicant and
his wife are the family friends staying in the suit flat which
came to be recorded by the Court on 4.9.2008.
23. In Jan u a ry 2008, a criminal complaint came to be filed by
the Applicant against the Defenda nt in the Metropolitan
Magistrate’s Court at Girgaum, Mumbai under Sections 156
(III) and 420 of the Indian Penal Code [IPC] alleging that the
Defenda nt was trying to oust the Applicant though the
Applicant paid the Defenda nt Rs.1,75,86,000 / – out of total
consideration of Rs.6.5 Crores for the sale of the suit flat.
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24. In March 2008, a complaint came to be filed by the
Defenda nt against the Applicant shown to be residing at
Banganga, Walkeshwar, in the Court of the Chief Additional
Metropolitan Magistrate at Girgau m, Mumbai, inter alia,
under Section 420 of the IPC and alleging, inter alia, that the
suit flat belonged to the trustees and that there was no
question of selling the suit flat to the Applicant on receiving
consideration of Rs.1,75,86,000 / – alleged to have been paid
entirely in cash. It is seen from the aforesaid dates that
though the Applicant was never in possession of the suit flat
in any capacity prior to the filing of the Suit, the Defenda nt
in order to scuttle his own admission of handing over vacant
possession of the suit flat to the Plaintiffs as the trustees as
per his letter dated 1.11.2006 sought to file collusive Suits
and sought to put up the Applicant in the suit premises after
the filing of the Suit.
25. It appears that the parties fell out upon whatever
underst a n di ngs that they may have had. Hence both the
parties filed criminal complaint s also after filing of the Suits.
In view of the Defendan t having inducted the Applicant in
the suit premises after the filing of the Suit and after the ad-
interim order of injunction obtained by the Plaintiffs against
the Defendant on 4.4.2007, the Plaintiffs sought the
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appoint me nt of the Receiver and of being put in possession
as the Receiver’s agent when Notice of Motion No.1370 of
2007 reached hearing. It appears that by that time the
relationship between the Defenda n t and the Applicant had
come to pass. The Defendan t, who had colluded with the
applicant pending the Suit, no longer desired to have the
Applicant in the suit premises. The Defenda nt, who was
personally present in Court when the Notice of Motion
reached hearing on 8.10.2008, made a stateme nt to Court
that he shall have the persons who are his relatives and
friends removed from the suit premises. He also stated to
Court that if they did not vacate the suit premises, the Court
Receiver may forcibly obtain possession from them. The
Court observed that the Defenda nt abided by his statement
made on 4.4.2007 in the Notice of Motion when the initial
ad- interim order had come to be passed. The Defendan t
clarified that none other than he was entitled to reside in the
suit premises. Hence the Court Receiver was directed to
allow the Defenda nt to remain in possession of the suit
premises and obtain possession from any other person who
may be found in the suit premises, with Police assista nce, if
required.
26. The Court Receiver having proceeded to execute that order,
the Applicant filed this Application claiming to be in
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possession since prior to the Suit. The two Suits in the
Small Causes Court show what transpired from 23.1.2007
when the Applicant’s daughter (not the Applicant) claimed to
be in possession, to 8.8.2008 when the Consent Terms were
filed in the second Suit in which she claimed no interest in
the suit flat. The Applicant has changed his mind. He seeks
to rely upon the same documen t on which his daughter sued
and settled.
27. The Applicant must show juridical possession in the suit
premises. No party can be allowed to remain in possession
of the suit premises upon obtaining unlawful possession
thereof. The Applicant has sought to show his juridical
possession by virtue of the aforesaid document s being 2
Licence Agreements executed by the widow of the settlor
Urmila Shah and by the Defenda nt and the declaration
executed by the said widow. None of these docume nt s can
be relied upon, produced in Court or considered by the
Court to allow the Applicant to be in possession as none is
admissible in evidence. The very purpose and object of the
Registration Act would be frustrated and the very object of
having such docume nt s registered would be frustrated if
docume nt s such as these are allowed to be relied upon by
the parties to show that the parties to the Suit have no
present right to remove those parties claiming to be in
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“possession”. Indeed there may be no case in which Court
Receiver could successfully obtain possession from total and
rank strangers and parties inducted after the filing of the
Suit to set at naught the order of appoint me nt of Court
Receiver for protection of the Plaintiffs’ property, if a party
upon such docume nt s would be entitled to show the Court
his “possession”.
28. Whatever be the collusive Suits filed between the parties
whilst they were thick friends and whatever be the frivolous
complaints made against one another once their relations hip
soured, the independe nt legal proceeding by the Applicant
himself in this Court being Summ a ry Suit No.3501 of 2007
would clinchingly show the claim of possession of the
Applicant herein. In that independen t proceeding filed 8
month s after the filing of this Suit, the Applicant himself has
shown his address to be at Banganga, Walkeshwar. That
seals his fate. The possession claimed by the Applicant is
neither lawful, nor juridical. The Applicant was also not in
any actual possession as on the date of the Suit. The
Applicant has been inducted in the suit premises after the
filing of the Suit and after the initial ad- interim order came
to be passed on 4.4.2007 and in fact later than November
2007 by executing anti document s. Though the infamous
idea of defrauding the Plaintiffs may have occurred to the
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Defenda nt prior to the filing of the Suit and after he himself
agreed to vacate the suit premises to have caused the
Applicant’s daughter to file the collusive Suit against him on
23.1.2007 being L.C. Suit No.47 of 2007, which he settled
with her a mere 3 month s thereafter, there have been no
proceedings between the Defenda nt and the Applicant
himself and no documen t s produced by the Applicant
himself to satisfy the Court about his lawful possession in
the suit premises. Even the very first docume n t, anti- dated
and fabricated as it is, relied upon by the Applicant is not in
his favour but in favour of his daughter.
29. It is of some importa nce to note that though the Applicant
claims to have been in possession of the suit premises since
as early as in February 2001 during the lifetime of the
deceased Urmila Shah herself, the Applicant has not
produced absolutely any documen t a ry evidence by way of
public docume n t s to evince his possession in the suit
premises for as long as 6 years prior to the filing of the Suit.
30. The Application is dishonest and mischievous.
31. The Notice of Motion is dismissed with costs, fixed at
Rs.5,000 / – .
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[SMT.ROSHAN DALVI, J.]
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