Dhiral Vinit Gogari v. Pravina Purushottamdas Nagarawalla

13. Learned Advocate Mr. Sharma appearing for Respondent Nos.[8] to 10 submitted that a document cannot be registered beyond the time prescribed under Sections 23 and 25 of The Registration Act,

1908. He submitted that Defendant Nos.[8] to 10 have raised objection that they have 1/6th share in the suit property through late Minakshi Jayantilal Shah who is deceased daughter of Purushottamdas & Prabhavati. He submitted that despite this clear stand, no issue is framed by the Trial Court about Prabhavati’s disposing capacity to deal with 1/6th share in the suit property. He therefore submitted that the matter be remanded for fresh consideration to the Trial Court. He relied upon judgments of Atul Project India Private Limited Vs. The State of Maharashtra & Ors. [2025 NCBHC-OS 9688], P. A. J. Seetharama Raju & Ors. Vs. Messrs. Lala Gopikrishna Gokuldoss Agency Department [AIR 1963 MADRAS 1] and Bachhaj Nahar Vs. Nilima Mandal & Anr. [2008(17) SCC 491]. He has relied upon a circular dated 22.12.2011 issued by Inspector General of Registration and Controller of Stamps, Pune which directs that a document which is required to be registered should not be accepted as an annexure to confirmation deed or declaration deed. He further submitted that it needs to be seen whether suit property was part of LoA. He, however fairly accepts that neither confirmation deeds nor the LoA have been challenged by Respondent Nos. 8 to 10.

14. Mr. Ketan Nagarawalla, Respondent / Defendant No. 3 - party in person, submitted that document of conveyance dated 03.06.1980 is a back-dated document which was signed in 2002. He submitted that he was pressurized to sign the document of power of attorney. His main submission is that all through the proceedings in the Trial Court as well as in this Appeal, none of the Advocates he approached, has helped him properly and according to him all the Advocates he approached or tried to engage during the proceedings were influenced by the other side and therefore he has not engaged any advocate and his case has not been put up properly. He however, fairly accepts that neither the conveyance deed nor confirmation deeds nor the order granting LoA have been challenged by him.

15. Considering the rival submissions and un-challenged findings in favour of the Appellants, only following points arise for my consideration:

(i) Whether the confirmation Deeds dated 16.09.2002

(ii) Whether it is necessary to interfere, what order ?

16. At the outset, it is necessary to be noted that no arguments are advanced about suit not being properly valued. The Trial Court in paragraph 21 of the impugned Judgment has considered the prayers in the suit and objection about proper valuation and has concluded that section 6(iv)(d) read with section 6(v) of Maharashtra Court Fees Act will apply. Therefore considering that declaration of ownership is sought under prayer clause (aaa) and consequential prayer of injunction is made and suit is valued at Rs. 31,000/- only as per consideration mentioned in conveyance deed of the year 1980, the suit is not properly valued. Hence no interference is required in the finding of the Trial Court on this aspect (under Issue No. 8) as well as the consequential direction to Collector for recovery of deficit court fee.

17. Under Issue Nos. 3, it is held that the Plaintiffs have not become owner of the property. Under Issue No.6, it is held that Plaintiffs are in possession of the suit property. The execution of Confirmation Deeds dated 16.09.2002 are held as proved. It is also held as proved that Conveyance dated 03.06.1980 is executed by Prabhavati pursuant to Agreement dated 09.12.1959. Suit is held to be filed within limitation. Admittedly, none of the Respondents have filed cross objections challenging the findings in favour of the Appellants. Therefore, the findings about possession, execution of Confirmation Deeds, Conveyance Deed being executed pursuant to Agreement of 1959, have attained finality and need not be gone into by this Court.

18. So also, Issue Nos. 1 & 7 about Prabhavati and Purshottamdas executing agreement of 1959 in favour of mother of the Plaintiff (Panbai) and Plaintiffs complying with terms are held to be redundant. These findings have also attained finality and this Court need not go into the same.

19. So far as finding about limitation is concerned, I have gone through the record as required under section 3 of the Limitation Act,

1963. Confirmation Deeds are dated 16.09.2002 and they are registered on 03.10.2002. Cause of action is stated to have arisen in June, 2003. The suit is filed on 05.09.2006. Hence suit for declaration about title is filed within limitation, as rightly held by the Trial Court.

20. That leaves this Court to consider the most important aspect of title of the Appellants.

21. There are in all 4 documents executed between parties, out of which agreement of 1959 is an agreement for sale but not sale deed, and there is no question of transferring title, as contract for sale does not create any interest in the immovable property, much less a title. Then comes conveyance deed of 1980. This is titled as Conveyance Deed but it is admittedly not registered. Therefore neither 1959 document nor 1980 document satisfies the mandatory requirements of section 54 of the T.P. Act and therefore can not transfer title.

22. Thereafter comes two documents which are at Exh. 70 – a Confirmation Deed executed on 16.09.2002, registered on 03.10.2002 between Prabhavati Nagarwalla and the Appellants’ predecessor Talakshi and a document at Exh. 68 – another Confirmation Deed executed on 16.09.2002, registered on 03.10.2002 between Respondent Nos. 1 to 5 (some of the heirs of Prabhavati) and the Appellants’ predecessor Talakshi. From the original record and proceeding I have gone through these two documents in original. Both the documents are registered having Registered Nos. 7745/2002 and 7746/2002. I have also perused power of attorneys held by Mr. Haresh Talakshi Shah, in whose favour both Prabhavati and Respondent Nos. 1 to 5 have executed them, having registration Nos.1555/2002 and 1556/2002 respectively. Using these registered power of attorneys, Mr. Haresh has executed and registered the confirmation deeds.

23. I have perused original endorsements made by the concerned have been executed in the presence of the Registrar with their identity duly proved by persons mentioned along with the stamp. Both power of attorneys are registered on 18.09.2002 and confirmation deeds are registered on 03.10.2002, which is after the date of registration of power of attorney. Therefore, it is confirmed by Prabhavati as well as five of her legal heirs by registered confirmation deeds that suit property has been sold in favour of original Plaintiff Talakshi M. Shah.

24. So far as the argument of Respondent Nos.[8] to 10 about Prabhavati’s disposing capacity is concerned, it must be noted that in the family of the Respondents, admittedly LoA has been granted in favour of Prabhavati and others under order of this Court dated 24.07.2014 passed in Testamentary Suit No.10 of 1985, which order is not challenged by any party and therefore Prabhavati had sufficient capacity as sole owner to execute document in favour of the Plaintiff. Also none of the parties have filed any suit or other proceedings challenging the convenance deed or registered confirmation deed. Also, none of the Respondents including Respondent Nos.[8] to 10 have challenged the order dated 24.07.2014 granting LoA. Hence, Respondent Nos. 8 to 10 cannot be permitted to contend that they have 1/6th share in the suit property, because Prabhavati during her life time has executed registered confirmation deed in favour of the Plaintiff.

25. The circular dated 22.12.2011 relied upon by Respondent Nos. 8 to 10 issues directions not to accept compulsorily registrable document as annexure to ‘conformation deed’ or ‘declaration deed’ but ‘sale deed’ on payment of due and up-to-date stamp duty is permitted. However, these directions are issued much after confirmation deeds in question were registered in 2002 and therefore, will not be applicable.

26. Except Defendant No.4, nobody has entered into witness box. The Defendants’ sole witness - Defendant No.4 (Pinky N. Shah alias Nagarawala) has given following admissions: i. That Defendant Nos.1, 2 & 3 are not going to be examined. ii. That she has got knowledge in respect of suit property to some extent only. iii. That confirmation deed at Exhibit-68 was executed by Defendant Nos.[1] to 5. iv. That Defendants did not take any action. Therefore, the sole witness of the Defendants admits that confirmation deed at Exhibit-68 is executed by Defendant Nos. 1 to 5.

27. In view of the aforesaid admissions, the argument of the party in person (Respondent No.3) that he could not lead evidence because of the pressure from the other side, cannot be believed. Firstly, the case of alleged pressure exerted on a party has to be proved and cannot be accepted by mere submission across the bar. Respondent No. 3 ought to have entered witness box and offered himself for cross-examination. Secondly, the sole witness has clearly stated that Respondent No.3 is not going to be examined. Whatever Respondent No.3 has stated in this Court across the bar, is not at all supported by any pleading and evidence led before the Trial Court and therefore can not be considered.

28. Now turning back to the legal issue as to whether registered confirmation deeds can give title to the Appellants.

29. Let us consider various judgments relied upon by the parties.

30. In the case of Ashapura Ramdev Buildcon LLP (supra), registered deed of confirmation was presented before the High Power Committee which had held that the Petitioner therein did not have clear title. In that case, this Court encountered a problem in the form of question left unanswered by High Power Committee as who is the owner otherwise. This Court held that the registered confirmation deed cannot be questioned by some committee forming an opinion, which is exclusively in the domain of the Civil Court. Admittedly the suit and the present appeal is in Civil Court within whose domain the question of title lies. Therefore I am considering the said aspect.

31. In the case of Nimesh J. Patel (supra), the learned Single Judge of this Court was considering the point whether the owner/landlord is necessary and proper party in a suit filed against Corporation restraining it from demolishing demises premises. In that case, a finding was rendered by the Trial Court that since the conveyance deed is not registered, the claim of ownership based on such deed cannot be accepted and therefore, the concerned party cannot be impleaded in the suit. In this factual backdrop, this Court considered the effect of a registered deed of confirmation. After considering that in the confirmation deed as well as earlier conveyance deed, the parties and property were same and recitals recording that due to inadvertence conveyance remained to be stamped / registered and after finding that defect of non-registration of conveyance deed December 2009 being cured by registering a confirmation deed of August 2010, it is held by this Court that the confirmation deed had cured the defect.

32. In the case of Atul Project India Pvt. Ltd. (supra), this Court had an occasion of considering the effect of Amnesty Scheme on the strict timelines mandated by The Registration Act, 1908 for registration of a document. In that case, a document was presented after a period of 37 years of execution and its registration was not allowed due to non-compliance with statutory timelines under Sections 23 and 25 of The Registration Act, 1908. In the present case, the conveyance deed of 1980 is not presented for registration. What is registered in confirmation deed of 2002. Therefore, timeline under Sections 23 or 25 will have no application. This distinguishes the present case from the facts of above case of Atul Project India (supra).

33. So far as the Judgment of Bachhaj Nahar (supra) is concerned, the facts in that case are that in a suit for recovery of possession of property ‘A’, the Court had granted possession of property ‘B’ and in that context, it is held that relief can be granted only with reference to the prayers made. In the present case, not even remotely, similar situation is arising and therefore, said judgment does not advance case of any party.

34. In the case of P.A.J. Seetharama Raju and Ors. (supra), Madras High Court has held that where the document which requires registration is not presented for registration within time prescribed, it will not be open to the parties to have it registered in an indirect manner by simply adopting the device of referring to it or making it a part of later document which could be presented for registration.

35. Following relevant judgments were not cited before me. However, they are relevant to the present consideration.

36. In paragraph 12 (b) of Official Trustee of West Bengal Vs. Stephen Court Ltd. [(2006) 13 SCC 401], the Supreme Court framed the question - “whether the defect of unregistered document assigning lease of immovable property stood cured by registration of subsequent document that is debenture trust deed?” The Supreme Court in para 18 of the said judgment held that the defect in the earlier document stands cured when the supplementary agreement (subsequent document) is executed and which is ‘duly registered’.

37. In the case of Mahindra Valjirathod Vs. National Radio [(2019)4 Bom CR 351], exactly the same issue as involved here, was under consideration and a defect in deed of conveyance of September 1998 was sought to be cured by subsequent deed of confirmation of August 1999, which was duly registered in January 2005. In that case, ratio of Official Trustee of West Bengal (supra), is followed in para 29 as the deed of confirmation was ‘duly registered’.

38. In short, settled law emerging is that if parties as well as property are same, and the same intention of sale appears from the confirmation deed, then the defect of non-registration of such conveyance can be cured later, by duly registering the confirmation deed.

39. The key aspect therefore is also whether the confirmation deed is ‘duly registered’. Consequently, when a confirmation-deed is propounded before the Civil Court seeking declaration of title, the Court is obliged to verify whether it is ‘duly registered’ so that title can be declared to be vested. In my considered view, ‘duly registered’ has to be interpreted as registered in accordance with law in conformity with section 3 read with Schedule I of the Maharashtra Stamp Act. Schedule I of the Maharashtra Stamp Act mandates payment of stamp duty based on market value of the immovable property involved with stamp duty/penalty payable. Section 33 of the Maharashtra Stamp Act casts duty upon every person having by law authority to receive evidence (including Civil Court) that if any instrument chargeable with duty is produced before it and if it appears to be not duly stamped, the same has to be impounded. Section 33A even provides for impounding after registration.

40. Perusal of confirmation deed at Exhibit-70 and receipts produced at Exhibit-69 shows that adjudication fee, stamp duty, penalty and registration fee are duly paid by the Plaintiff on confirmation deed. Also, it is seen from the original confirmation deed (Exhibit-70) that parties are same, property is same and intention to sell is also same. Original convenance deed is annexed to this document. The convenance deed and registered confirmation deeds are not challenged by any party.

41. Therefore, in the facts and law discussed above and for reasons stated above, I am of the opinion that the Trial Court was not justified in holding that the title is not proved by the Appellants. Therefore, the Appellants are entitled to declaration as sought. I have therefore recorded my findings to the points as above.

42. Accordingly, the appeal is allowed by passing following order:

Trial Court and this Court as per Rules, the suit is decreed in terms of prayer clauses (a), (aa), (aaa) which reads as under: “a) that it be declared that the defendants No.1 to 10 are not entitled to disturb the ownership, right, title and interest of the Plaintiffs in respect of the said property described in Exhibit "A" being plot of land bearing C.T.S. No.227, 227/1 to 18 admeasuring 3765 sq. yds. equivalent to 3148 sq. mtrs. at Kanheri Division, Tal. Borivali, Mumbai aa) That it may be declared that the Deed of Conveyance dated 3rd day of June, 1980 executed by late Smt. Prabhavati Purshottomdas Nagarawala is valid, subsisting and binding upon the Defendant Nos. 1 to 10 in respect of the suit premises. aaa) That it may be declared that the Plaintiffs are the owners of the suit premises viz. plot of land bearing C.T.S. No. 227 and 227/1 to 18, admeasuring about 3765 sq. yards, equivalent to 3148 sq. metres at Kanheri Division, Taluka Borivali, in the Mumbai Suburban District.”

43. In view of disposal of appeal, pending interim application is also disposed of.

44. Record and proceedings be sent back to the Trial Court. copy of this order. (M.M. SATHAYE, J.)