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2019 DIGILAW 304 (BOM)

INDIRA RAJGURU v. BALKRISHNA K RAJGURU

2019-02-01

R.D.DHANUKA

body2019
JUDGMENT : R.D. DHANUKA, J. 1. The matter was on board today for speaking to the minutes of the oral judgment dated 8th January, 2019 when both the parties pointed out few corrections in the said oral judgment. After carrying out those corrections in the oral judgment dated 8th January, 2019, the said oral judgment reads thus : 2. The suit is placed on board for considering the admissibility of the documents referred to and relied upon by the defendant nos.3 and 4 in the compilation of documents. The defendant no.3 has filed affidavit in lieu of examination in chief dated 4th August, 2018. The plaintiff has filed a statement of admission and denial in respect of the documents forming part of the compilation of documents filed by the defendant nos.3 and 4. 3. Heard learned counsel appearing for the plaintiff and the defendant nos.3 and 4 and have perused the affidavit in lieu of examination in chief filed by the defendant no.3, statement of admission and denial on behalf of the plaintiff, some of the prayers in the plaint in Suit No.3165 of 2010. The defendant nos.3 and 4 have relied upon 28 documents in the said compilation of documents. The documents are marked as under : 4. Insofar as the documents at serial nos.1 to 3 are concerned, those documents are the original extract of village form no.8-A, of the original form no.2 and the original extract of village form no.6 respectively. The existence and the contents of these documents are disputed by the plaintiff on the ground that those alleged public documents are not proved in accordance with the provisions of the Indian Evidence Act. 5. Mr.Rajesh Shah, learned counsel appearing for the defendant nos.3 and 4 submits that all these three documents are public documents and are duly certified by the Talathi of the Grampanchayat and thus proved section 74 of the Indian Evidence Act, 1872 and are required to be marked as exhibits. On the other hand, Mr.Jagtiani, learned counsel appearing for the plaintiff invited my attention to those three documents at serial nos.1 to 3 of the compilation of original documents and would submit that none of these documents are certified copies of the public documents. On the other hand, Mr.Jagtiani, learned counsel appearing for the plaintiff invited my attention to those three documents at serial nos.1 to 3 of the compilation of original documents and would submit that none of these documents are certified copies of the public documents. No legal fees together with a certificate written on the foot of such copy that it is true copy of the said document or part thereof is made on those three documents. There is no date mentioned on those three documents with the name, official title and seal of the officer authorized by law to make use of a seal is affixed on those documents as required under section 76 of the Indian Evidence Act, 1872. 6. A perusal of those three documents clearly indicates that there is no fee appears to have been paid by the defendant nos.3 and 4 while obtaining those documents from the Grampanchayat nor there is any certificate written on the foot of such copy that it is true copy of such documents or part thereof. The said documents are also not dated and subscribed by any officer with his name and office title and seal by an officer who is authorized by law to make use of a seal. In my view, since those documents are not the certified copies of the public documents as contemplated under section 76 of the Indian Evidence Act, 1872, these documents cannot be marked as exhibits. It is however, made clear that the defendant no.3 would be at liberty to obtain the certified copies of these public documents in accordance with section 76 of the Indian Evidence Act, 1872 and to apply for exhibiting these documents before evidence of the defendant nos.3 and 4 is closed. 7. Insofar as the documents at serial nos. 4, 5 and 6 are concerned, i.e. original power of attorney dated 18th June, 2006, original deed of gift dated 22nd June, 2006 and original Deed of Release dated 22nd June, 2006 are concerned, the plaintiff has denied the existence and the contents thereof and also the admissibility of these three documents. The document at serial no.4 is disputed on the ground that as per section 17 read with section 49 of the Registration Act, the document is in-admissible. The document at serial no.4 is disputed on the ground that as per section 17 read with section 49 of the Registration Act, the document is in-admissible. Insofar as the document at serial nos.5 and 6 are concerned, the admissibility of these two documents is also denied on the ground that both the documents are purportedly registered based on the unregistered power of attorney. 8. In view of these objections, Mr.Shah, learned counsel for the defendant nos.3 and 4 invited my attention to the deposition made by the defendant no.3 in paragraphs 9, 12 and 13 of the affidavit in lieu of examination in chief dated 4th August, 2018. It is submitted that the said power of attorney was executed by the deceased father of the defendant no.3 in presence of the two attesting witnesses. In presence of those two attesting witnesses, the deceased had executed the said power of attorney by putting his signature at the end of the said power of attorney against the execution clause below the photograph of the deceased affixed thereto. The witness also had signed the said power of attorney as a donee of the said power of attorney. The said power of attorney was notarized. 9. Insofar as the document at serial no.5 is concerned, it is submitted that the said document was signed by the defendant no.3 in his capacity as a donee of the gift in presence of two attesting witnesses. The said Gift Deed is duly registered. 10. Insofar as the document at serial no.6 is concerned, it is submitted that the said document was signed by the defendant no.3 in presence of the two attesting witnesses which was signed by the defendant no.3 on the strength of the said power of attorney which is at serial no.4 of the compilation of documents executed by the defendant in favour of the defendant no.3. 11. Learned counsel appearing for the defendant nos.3 and 4 invited my attention to the affidavit of evidence filed by the plaintiff and more particularly paragraph 13 and would submit that the plaintiff herself has relied upon the said three documents and has prayed that the said documents be marked as exhibits. 11. Learned counsel appearing for the defendant nos.3 and 4 invited my attention to the affidavit of evidence filed by the plaintiff and more particularly paragraph 13 and would submit that the plaintiff herself has relied upon the said three documents and has prayed that the said documents be marked as exhibits. He also invited my attention to the prayer clauses (j) and (m) praying for declaration that the purported power of attorney dated 8th June, 2006 is null and void, illegal and unequivocal in law and be cancelled, quashed and set aside and praying for impounding those documents. It is submitted that on this ground also, the plaintiff cannot be allowed to now raise the objection about the admissibility of these three documents on the ground that those documents are in-admissible in evidence as per section 17 read with section 49 of the Registration Act. 12. Mr.Shah, learned counsel for the defendant nos.3 and 4 placed reliance on the judgment of the Hon'ble Supreme Court in case of Rajni Tandon vs. Dulal Ranjan Ghosh Dastidar & Anr., (2009) 14 SCC 782 and in particular paragraphs 11, 27 and 33 thereof and would submit that section 17 of the Registration Act would not be attracted to the facts of this case. Section 33 of the Registration Act would apply only in cases where presentation of a document is in terms of section 32(c) of the Registration Act and not otherwise. He submits that since the defendant no.3 himself had signed the document as an agent of the father before the Registrar Officer, it was not the case of presentation under section 32(c) of the Registration Act, 1908. 13. Learned counsel for the defendant nos.3 and 4 placed reliance on the judgment of the Hon'ble Supreme Court in case of Suraj Lamp & Industries Private Limited vs. State of Haryana & Anr., (2012) 1 SCC 656 and and in particular paragraphs 20 and 21 in support of the submission that the power of attorney itself is not an instrument of transfer in respect of right, title and interest in the immovable property. No interest is created in favour of the defendant no.3 under the said power of attorney. He also placed reliance on the judgment of this Court in case of Ratilal Nathubhai & Anr. No interest is created in favour of the defendant no.3 under the said power of attorney. He also placed reliance on the judgment of this Court in case of Ratilal Nathubhai & Anr. vs. Rasiklal Maganlal & Ors., (1950) AIR Bombay 326 and in particular paragraphs 2 to 7 in support of the submission that the power of attorney executed by the father of the defendant no.3 in favour of the defendant no.3 would not attract section 17 of the Registration Act, 1908 and thus was not required to be registered. Section 49 of the Registration Act, thus would not apply to the said power of attorney. 14. Insofar as the documents at serial nos.5 and 6 are concerned, it is submitted that both these documents were admittedly registered and are admissible in evidence. 15. Mr.Jagtiani, learned counsel for the plaintiff on the other hand submits that under the said alleged power of attorney, the father of the defendant no.3 had authorized the defendant no.3 to execute a document. He invited my attention to the recital - E of the said power of attorney and would submit that the defendant no.3 was not only an agent but was also a donee under the said power of attorney who executed the Gift Deed and the Deed of Release as a constituted attorney in his own favour. An interest was created under the said power of attorney in favour of the defendant no.3 as a donee by the father of the defendant no.3 He strongly placed reliance on section 17(1)(b) of the Registration Act, 1908 and would submit that the power of attorney being not-testamentary instrument and creating or purports to create interest in or to immovable property, such instrument is compulsorily required to be registered and the said condition not having been complied with in my view section 49 of the Registration Act, 1908, such document cannot be admitted in evidence. 16. Insofar as the judgment of the Hon'ble Supreme Court in case of Suraj Lamp & Industries Private Limited (supra) relied upon by Mr.Shah, learned counsel for the defendant nos.3 and 4 is concerned, the said judgment is distinguished by Mr.Jagtiani, learned counsel for the plaintiff on the ground that the effect of section 17(1) (b) of the Registration Act, 1908 has not been considered by this Court in the said judgment. The said power of attorney relied upon by the defendant no.3 clearly empowers the donee and the releasee to execute the document in favour of the constituted attorney itself. The power of attorney relates to the immovable property. He strongly placed reliance on sections 32 and 33 of the Indian Registration Act, 1908 and also the Gift Deed. He submits that the constituted attorney has signed the said Gift Deed in his own favour. The defendant no.3 however, was empowered to sign the documents on behalf of his father however the said power of attorney was required to be authenticated before the Sub-Registrar of Assurances. Since the said power of attorney itself was not registered, the Gift Deed and the Deed of Release also could not have been executed by the said constituted attorney purportedly exercising his powers under the said power of attorney. 17. Learned counsel distinguished the judgment of this Court in case of Ratilal Nathubhai (supra) on the ground that the said judgment also did not deal with the provisions of section 32 of the Registration Act but deals only with section 34 thereof. In the said matter, the suit was filed by the plaintiff for eviction of the tenants. The facts before this Court are totally different. The said judgment of the Division Bench of this Court does not deal with the question posed before this Court in this matter. It is not the case of the defendant nos.3 and 4 that this case is outside the purview of section 32 of the Indian Registration Act, 1908. 18. It is submitted by the learned counsel that since the power of attorney itself was not registered which was mandatorily required to be registered, the document at serial nos.5 and 6 i.e. the Gift Deed and the Deed of Release also which are executed by the defendant no.3 purporting to exercise the powers as a constituted attorney are also in-admissible in law and cannot be marked as exhibits. 19. Mr.Jagtiani, learned counsel appearing for the plaintiff though initially distinguished the judgments referred to and relied upon by Mr.Shah, learned counsel for the defendant nos. 19. Mr.Jagtiani, learned counsel appearing for the plaintiff though initially distinguished the judgments referred to and relied upon by Mr.Shah, learned counsel for the defendant nos. 3 and 4 yesterday, when the matter was called out fairly invited my attention to the paragraphs (20) and (24) to (26) of the Hon'ble Supreme Court in case of Rajni Tandon (supra) and would submit that in view of this judgment of the Hon'ble Supreme Court, insofar as the registration office is concerned, the defendant no.3 who was the constituted attorney of his father was the actual executant of the document and was entitled under section 32(a) to present the said document for registration and to get it registered. He submits that in the said judgment, the Hon'ble Supreme Court held that one of the categories of persons who are eligible to present documents before the registration office in terms of section 32 of the Registration Act, 1908 is the "person executing" the document. The expression "person executing" used in section 32, can only refer to the person who actually signs or marks the document in token of execution, whether for himself or on behalf of some other person. 20. Learned counsel fairly conceded that in view of this judgment of the Hon'ble Supreme Court, section 33 of the Registration Act, 1908 cannot be attracted to the power of attorney executed by the father of the defendant no.3 in favour of the defendant no.3. Learned counsel fairly also invited my attention to the unreported judgment of this Court dated 24th November, 2011 in case of M/s.Atlanta Limited vs. Anil R. Agarwal & 27 Others in Notice of Motion in Suit (Lodging ) No.1962 of 2011 and in particular paragraphs 53 to 59 of the said judgment and would submit that this Court after adverting to the judgment of the Hon'ble Supreme Court in case of Rajni Tandon (supra) and also the judgment of Full Bench of this Court in case of Sitaram Laxmanrao Kadam & Another vs. Dharmasukhram Tansukhram Tripathi, (1927) AIR Bombay 487 has held that the power of attorney in similar circumstances would not attract section 33 of the Indian Registration Act, 1908 but would attract section 32(a) of the Indian Registration Act. 21. It is submitted that the words referred in section 17(1)(b) operates in two different field. 21. It is submitted that the words referred in section 17(1)(b) operates in two different field. He submits that section 17(1) (b) therefore would be attracted to the facts of this case and in view of the said power of attorney itself not having been registered the said power of attorney could not be considered as admissible in view of section 49 of the Registration Act, 1908. 22. Mr.Jagtiani, learned counsel appearing for the plaintiff also fairly invited my attention to the Maharashtra Amendment to section 17(1) of the Registration Act, 1908 published in the Maharashtra Government Gazette dated 25th May, 2012 and submitted that in view of this amendment also, the Court may take a view that such power of attorney may not attract the registration since the said power of attorney was executed prior to the date of the said amendment to section 17(1) which was brought into the effect in the year 2012. 23. Learned counsel appearing for the plaintiff however placed reliance on the judgment of the order of the Division Bench of this Court dated 17th January, 2012 in Appeal (Lodging) No.813 of 2011 in Notice of Motion No.3588 of 2010 in this suit and more particularly pages 4, 5 and 6 in support of the submission that since the said power of attorney itself create the right in the defendant no.3, section 17(1) (b) of the Registration Act, 1908 stood clearly attracted to the said power of attorney. 24. Mr.Shah, learned counsel appearing for the defendant nos. 3 and 4 in rejoinder submits that the issue as to whether section 33 was attracted to the power of attorney executed by the father of the defendant no.3 in his favour or not is already concluded by the Hon'ble Supreme Court in case of Rajni Tandon (supra) and also in case of Suraj Lamp & Industries Private Limited (supra). He submits that the learned Single Judge of this Court also has after adverting to the judgment in case of Rajni Tandon (supra) and also the judgment of Full Bench of this Court in case of Ratilal Nathubhai and another vs. Rasiklal Maganlal & Others, (1950) AIR Bombay 326 has already rejected similar submissions which are canvassed by the learned counsel for the plaintiff. He strongly placed reliance on the judgment of the Full Bench of this Court in case of Sitaram Laxmanrao Kadam & Another (supra) and more particularly on the relevant paragraphs at pages 488, 490 and 491 dealing with sections 32 and 34 of the Registration Act, 1908. 25. It is submitted that the issue now raised by the plaintiff under section 17(1)(b) of the Registration Act, 1908 also has been clearly rejected by the Full Bench of this Court in the said judgment which has been adverted to the later judgment by this Court. He submits that the said judgment of the Full Bench of this Court is also adverted by the learned Single Judge in case of M/s.Atlanta Limited (supra) and also by the Hon'ble Supreme Court in case of Rajni Tandon (supra). Learned counsel for the defendant nos. 3 and 4 placed reliance on section 122 of the Transfer of Property Act and would submit that the said section clearly provides as to when a gift is complete. He submits that the said section 122 has to be read with section 123 which contemplates that the transfer of a property by an instrument of gift is required to be registered. He submits that merely because the power of attorney was executed by the father of the defendant no.3 in favour of the defendant no.3 to execute the Deed of Gift or to admit the said document for registration itself did not create right, title or interest whatsoever in the immovable property or to the moveable property. 26. The said power of attorney could have been revoked by the father of the defendant no.3 any time during his lifetime. The said document itself was thus not required to be registered. He submits that admittedly the said Gift Deed when executed by the father of the defendant no.3 through the defendant no.3, the gift in respect of the immovable property was complete when executed and attracted the provisions of Registration Act which admittedly was done at that stage. 27. Learned counsel for the defendant nos. 3 and 4 invited my attention to the recitals (C), (D) and (E) of the power of attorney and would submit that the right, title and interest could be transferred under the said power of attorney only when the Gift Deed was signed. 27. Learned counsel for the defendant nos. 3 and 4 invited my attention to the recitals (C), (D) and (E) of the power of attorney and would submit that the right, title and interest could be transferred under the said power of attorney only when the Gift Deed was signed. Similarly the Deed of Release would extinguish the right of the party only when the said Deed of Release itself was executed and not on the date of execution of the power of attorney itself. The registration of the Gift Deed as well as the Deed of Release would be required only at the stage of execution of those documents which in this case have been admittedly rejected. 28. Learned counsel for the plaintiff once again placed reliance on paragraph (10) of the judgment of the Hon'ble Supreme Court in case of Suraj Lamp & Industries Private Limited (supra) and would submit that after considering the provisions of the Transfer of Property Act in the said judgment, the Hon'ble Supreme Court held that no right was conveyed under the deed of power of attorney. He submits that the Hon'ble Supreme Court has clearly held that the power of attorney is not an instrument of transfer in regard to any right, title or interest in an immovable property. The power of attorney was executed for taking further steps as contemplated in the power of attorney. Only on the basis of such power of attorney, the defendant no.3 could not claim any title in the immovable property. 29. It is submitted that the Hon'ble Supreme Court has held that the power of attorney is a document of convenience and no right is created in favour of any party under the power of attorney itself. He submits that the said power of attorney admittedly was not an irrevocable power of attorney. The provisions of section 17(1) (b) therefore would not be attracted. The power of attorney does not satisfy the conditions prescribed under section 17(1)(b) of the Registration Act. 30. Learned counsel appearing for the defendant nos. 3 and 4 relied upon the passage from the Commentaries of Sanjiva Row's on The Registration Act which states that the clause 'Whether in present or in future' belongs to the bunch of infinitives proceeding in it and not to the nouns "rights, title or interest". 30. Learned counsel appearing for the defendant nos. 3 and 4 relied upon the passage from the Commentaries of Sanjiva Row's on The Registration Act which states that the clause 'Whether in present or in future' belongs to the bunch of infinitives proceeding in it and not to the nouns "rights, title or interest". The learned Author has referred to the judgment of Punjab and Haryana High Court in case of Inam Baksh Khan vs. Karim Shah, 1895 P.R. Case No.16, Page 58 in the said paragraph. 31. Learned counsel for the defendant nos.3 and 4 also placed reliance on the judgment of Lahore High Court in case of Ramdas vs. Nadir Shah & Others,1919 AIR Lahore 60 and in particular relevant paragraph on page 61 in support of the submission that since power of attorney did not create any right, title or interest even in future, section 17(1)(b) of the Registration Act would not be attracted. He submits that the judgment of the Punjab and Haryana High Court in case of Inam Baksh Khan (supra) was adverted by the Lahore High Court in the said judgment. 32. Mr.Shah, learned counsel for the defendant nos.3 and 4 submits that admittedly the plaintiff has referred to and relied upon the said power of attorney in the plaint and has prayed for cancellation of the said document and for a declaration that the said document is void etc. He submits that unless such document is produced in evidence, no such relief can be sought by the plaintiff. He submits that the plaintiff thus in the affidavit in lieu of examination in chief had rightly stated that those documents may be marked as exhibit and thus cannot be now allowed to urge that those documents are inadmissible in evidence. 33. A perusal of the power of attorney dated 18th June, 2006 indicates that under the said power of attorney, Mr.Karsanji Keshavji Rajguru who was the father of the defendant no.3 had expressed his desire to transfer the right, title and interest in flat no. 402, flat no.601 and garage no.8 by way of gift to Mr.Dhirajlal Karsanji Rajguru, the defendant no.3 herein. 402, flat no.601 and garage no.8 by way of gift to Mr.Dhirajlal Karsanji Rajguru, the defendant no.3 herein. He had authorized the defendant no.3 to sign, execute the Deed of Gift, transfer his right, title and interest in those properties in favour of the defendant no.3 and to execute a Deed of Release renouncing his right, title and interest in the flat no.601 on the 6th floor and garage no.8 in the Kings Apartment. 34. A perusal of Gift Deed which was executed on 22nd June, 2006 indicates that along with the said Deed of Gift, the said power of attorney was also annexed as part of the said Gift Deed. It is not in dispute that the father of the defendant no.3 did not revoke the said power of attorney during his lifetime. In my view Mr.Shah, learned counsel for the defendant nos. 3 and 4 rightly placed reliance on sections 122 and 123 of the Transfer of Property Act, 1882 in support of his submission that merely on the execution of the power of attorney to execute the Deed of Gift in future, the Gift was not complete and that the transfer of property by gift did not take place merely on the basis of execution of the power of attorney. The said power of attorney was admittedly not an irrevocable power of attorney. 35. The father of the defendant no.3 could have revoked the power of attorney any time during his lifetime which in this case was not done. In my view, merely on the basis of such power of attorney, the defendant no.3 could not claim any right, title or interest in the said immovable property as the donee of the property or under a Deed of Release. The Hon'ble Supreme Court in case of Suraj Lamp & Industries Private Limited (supra) has already held that the power of attorney is a document of convenience and does not create any right, title or interest in the immovable property. It is held that except in cases where power of attorney is coupled with interest, it is revocable. The donee in exercise of his power under such power of attorney only acts in place of the donor subject of course to the powers granted to him by reason thereof. 36. It is held that except in cases where power of attorney is coupled with interest, it is revocable. The donee in exercise of his power under such power of attorney only acts in place of the donor subject of course to the powers granted to him by reason thereof. 36. It is held by the Hon'ble Supreme Court that the attorney holder may however execute a deed of conveyance in exercise of the power granted under the power of attorney and convey title on behalf of the grantor. The power of attorney is revocable or terminable at any time unless it is made irrevocable in a manner known to law. Even an irrevocable attorney does not have the effect of transferring title to the grantee. In my view, the principles laid down by the Hon'ble Supreme Court in case of Suraj Lamp & Industries Private Limited (supra) squarely applies to the facts of this case. I am respectively bound by the said judgment. 37. The Hon'ble Supreme Court in case of Rajni Tandon (supra) has considered similar facts and has held that "executed or authenticated in the manner hereinafter referred" under section 32(6) would mean the procedure specified in section 33. The procedure under section 33 would be attracted where a document is presented by a person holding a "powers-of-attorney" of the persons mentioned in Clause 32(a) of the Registration Act, 1908. It is held by the Hon'ble Supreme Court that where a person hold a power of attorney which authorizes him to execute a document as agent for some one else, and he executes a document under the terms of the power of attorney, he is, so far as the registration office is concerned, the actual executant of the document is entitled under section 32 (a) to present it for registration and get it registered. 38. In my view, the powers exercised by the constituted attorney under the said power of attorney and to execute the document on behalf of the doner would fall under section 32(a) of the Registration Act, 1908 and not section 32(c) of the said Act. Mr.Jagtiani, learned counsel for the plaintiff also fairly conceded this position in law. 38. In my view, the powers exercised by the constituted attorney under the said power of attorney and to execute the document on behalf of the doner would fall under section 32(a) of the Registration Act, 1908 and not section 32(c) of the said Act. Mr.Jagtiani, learned counsel for the plaintiff also fairly conceded this position in law. Even otherwise in my view there is no merit in the submission made by the learned counsel earlier that the provision of section 32(c) would attract to the facts of this case and not section 32 (a). 39. In my view, the provisions of the Transfer of Property Act, 1882 have to be read with the provisions of the Registration Act, 1908. Since no rights were created in favour of the defendant no.3 under the said power of attorney and the said power of attorney did not confer any title in the immovable property, section 17(1)(b) of the Registration Act, 1908 would not be attracted to the facts of this case. 40. Be that as it may, the plaintiff herself in the affidavit in lieu of the examination in chief has referred to and relied upon these documents and more particularly paragraph 13 of the affidavit in lieu of the examination in chief and also prayed for various reliefs in respect of those documents in the plaint and has deposed that these documents be marked in evidence. In my view, the plaintiff cannot be allowed to urge that these documents are not admissible on one or the other grounds. The documents at serial Nos.4, 5 and 6 are accordingly marked as Exhibits D-3 (2), D-3 (3), D-3 (4). 41. Insofar as the documents at serial nos.7, 8, 9, 10, 14, 19, 22, 26, 27 and 28 are concerned, since the said documents are admitted by the plaintiff in her statement of admission and denial subject to contention raised therein, the same are accordingly marked as Exhibits D-3 (5) to D-3 (14) respectively. 42. Insofar as the documents at Serial Nos.11, 12, 13, 15, 16, 17, 18, 20, 21 and 23 are concerned, these documents are disputed by the plaintiff on the ground that these documents are third party documents and are photocopies. These documents are also objected on the ground that no foundation is laid by the defendant no.3 for leading secondary evidence. 43. These documents are also objected on the ground that no foundation is laid by the defendant no.3 for leading secondary evidence. 43. Mr.Shah, learned counsel for the defendant nos.3 and 4 would submit that witness summons was issued by this Court on the application made by the defendant nos.3 and 4 to the Beach King's Apartment Co-op.Hsg.Soc. Ltd. for producing these documents since according to the witness, the original of these documents were in custody of the society. Learned counsel invited my attention to paragraphs 19 to 31 of the affidavit in lieu of the examination in chief of the defendant no.3 and would submit that the said society having made a statement before this Court that those documents are not traceable, the witness has laid foundation to lead secondary evidence in those paragraphs. 44. Mr.Jagtiani, learned counsel for the plaintiff could not dispute that the witness summons was served upon the society with a direction to produce the originals of these documents however the society could not produce these documents as not traceable. On perusal of the deposition in the aforesaid paragraphs, in my view, the defendant no.3 has already laid foundation to lead secondary evidence and has satisfied the conditions of section 63 read with section 65 of the Indian Evidence Act, 1872. The documents at Serial Nos.11, 12, 13, 15, 16, 17, 18, 20, 21 and 23 are accordingly marked as Exhibits D-3 (15) to D-3 (24) respectively. 45. In so far as the document at serial no.24 is concerned, this document is denied by the plaintiff on the ground that the said document is a third party document. Insofar as the document at serial no.25 is concerned, no reasons are recorded in the statement of admission and denial of the documents filed by the plaintiff. 46. Mr.Shah, learned counsel for the defendant nos.3 and 4 placed reliance on the depositions made in paragraph 32 of the affidavit in lieu of the examination in chief and would submit that this witness has produced a original declaration dated 25th July, 2006 along with office translation thereof. He submits that the witness has also identified the signature of Amrutben Keshavji Rajguru. He submits that the said witness has thus complied with the requirement of section 67 of the Indian Evidence Act, 1872 and thus those documents be marked as exhibits. He submits that the witness has also identified the signature of Amrutben Keshavji Rajguru. He submits that the said witness has thus complied with the requirement of section 67 of the Indian Evidence Act, 1872 and thus those documents be marked as exhibits. He submits that section 68 of the Indian Evidence Act, 1872 would not apply to these documents. He also placed reliance on section 62 of the Indian Evidence Act, 1872. 47. Mr.Jagtiani, learned counsel for the plaintiff opposes these documents on the ground that the defendant no.3 is not competent witness to depose on execution of those documents since the witness was not personally present when the said document was alleged to have been signed by Amrutben Keshavji Rajguru and was not the author of the document. The witness has not proved due execution of the said documents. He submits that in any event, the signatures of two alleged attesting witnesses on the document are not proved in the depositions made in paragraphs 32 and 33 of the affidavit in lieu of the examination in chief. This witness is not familiar with the signature or hand writing of two alleged attesting witnesses. He submits that the alleged author of the said document is available for evidence and thus the contents of the said documents cannot be proved by the defendant no.3 but can be proved only by the author of the said document who would be suitable and the best witness to prove the contents thereof. 48. In rejoinder, Mr.Shah, learned counsel for the defendant nos.3 and 4 placed reliance on sections 62 and 63 of the Indian Evidence Act, 1872 and would submit that the said witness has produced the originals of the said documents which is primary evidence and has also proved the conditions set out in section 67 of the Indian Evidence Act, 1872. The said documents thus can be exhibited subject to proof of contents. He submits that it is not the case of the plaintiff that the said document is required to be attested. 49. In my view, since the alleged author of the said document is available, the contents of the said document can be proved only by author of the said document and not by the defendant no.3 who does not claim to be present at the time of execution of the said document. 49. In my view, since the alleged author of the said document is available, the contents of the said document can be proved only by author of the said document and not by the defendant no.3 who does not claim to be present at the time of execution of the said document. The said defendant no.3 however has produced the originals of the said document and the said documents being a primary document is marked as Exhibit D-3 (25) subject to proof of contents excluding the signatures of the alleged attesting witnesses allegedly affixed at the bottom of the said document. 50. The document at serial no.25 being an office translation of the document at serial no.24 and is accordingly marked as Exhibit D-3 (26) subject to proof of contents excluding the signatures of the alleged attesting witnesses allegedly affixed at the bottom of the said document. 51. Signature of the alleged attesting witnesses can be proved by author of the said document if examined by the defendant nos.3 and 4. Those alleged signatures of the attesting witnesses are accordingly not marked as exhibit at this stage.