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Judgment
F. M. Reis, J.—Heard Shri J. P. Mulgaonkar, learned Counsel appearing for the appellants. The above appeal challenges the judgment passed by the Courts below whereby the suit for permanent injunction filed by the respondents to restrain the appellants from interfering with the suit property came to be decreed. The counter claim filed by the appellants to declare a Deed of Renunciation dated 27.06.1963 as null and void came to be dismissed.
Shri Mulgaonkar, learned Counsel appearing for the appellants has assailed the impugned judgment essentially on the following counts. It is his first contention that the learned Judge was not justified to grant the permanent injunction in favour of the respondents as according to him, the respondents have failed to establish their possession in respect of the suit property. The learned Counsel further pointed out that the findings arrived at by the learned Judge to the effect that the respondents were in possession of the suit property are perverse and as such, the
above appeal deserves consideration. The next contention of the learned Counsel appearing for the appellants is that the Courts below have erroneously come to the conclusion that the Deed of Renunciation dated 27.06.1963 is not null and void. The learned Counsel has pointed out that the said Deed of Renunciation dated 27.06.1963 has not been duly proved and as such the question of relying upon the said document would not arise at all. The learned Counsel further pointed out that the said Deed of Renunciation has been allegedly executed before the then Notary Public and according to him, such Notary Public was not empowered to get such document executed under the then provisions of law. The learned Counsel further pointed out that in view of the Article 2034 of the Portuguese Civil Code, such Deed of Renunciation ought to have been executed before the Court and as such, as the alleged document in the present case has been executed before the Notary Public stands vitiated and cannot create any legal effect. The learned Counsel further pointed out that as the Deed of Renunciation is null and void, the question of granting any permanent injunction in favour of the respondents in the manner so done by the Courts below would not arise at all. The learned Counsel has taken me through the impugned judgment as well as the evidence on record and pointed out that there is sufficient material on record to come to the conclusion that the Deed of Renunciation relied upon by the respondents is null and void and cannot create any legal effect. The learned Counsel in support of his submissions has relied upon the commentary to Article 2034 in Book of Family Law and Succession in Portuguese Civil Code, 1867. The learned Counsel as such submitted that in view of the said commentary, it cannot be disputed that such document can only be executed before the Court and not before the Notary Public.
I have carefully considered the submissions of the learned Counsel appearing for the appellants. I have perused the impugned judgment passed by the Courts below as well as the material produced on record. Upon perusal of the records, I find that both the Courts below upon appreciation of evidence on record and have come to the conclusion that the respondents are in possession of the suit property and consequently they are entitled for the permanent injunction. The Courts below have considered the evidence adduced by the respondents to come to such concurrent findings. It is well settled that such concurrent findings cannot be unsettled by this Court in exercise of its power u/s 100 of Civil Procedure Code. In the judgment of the Apex Court reported in Municipal Committee, Hoshiarpur Vs. Punjab State Electricity Board and Others, it has been held at paras 16, 24 & 26 thus:
Thus, it is evident from the above that the right to appeal is a creation of statute and it cannot be created by acquiescence of the parties or by the order of the court. Jurisdiction cannot be conferred by mere acceptance, acquiescence, consent or by any other means as it can be conferred only by the legislature and conferring a court or authority with jurisdiction, is a legislative function. Thus, being a substantive statutory right, it has to be regulated in accordance with the law in force, ensuring full compliance with the conditions mentioned in the provision that creates it. Therefore, the court has no power to enlarge the scope of those grounds mentioned in the statutory provisions. A second appeal cannot be decided merely on equitable grounds as it lies only on a substantial question of law, which is something distinct from a substantial question of fact. The court cannot entertain a second appeal unless a substantial question of law is involved, as the second appeal does not lie on the ground of erroneous findings of fact based on an appreciation of the relevant evidence. The existence of a substantial question of law is a condition precedent for entertaining the second appeal; on failure to do so, the judgment cannot be maintained. The existence of a substantial question of law is a sine qua non for the exercise of jurisdiction under the provisions of Section 100 CPC. It is the obligation on the court to further clear the intent of the legislature and not to frustrate it by ignoring the same.
The powers u/s 103 CPC can be exercised by the High Court only if the core issue involved in the case is not decided by the trial court or the appellate court and the relevant material is available on record to adjudicate upon the said issue.
Thus, it is evident that Section 103 CPC is not an exception to Section 100 CPC nor is it meant to supplant it, rather it is to serve the same purpose. Even while pressing Section 103 CPC in service, the High Court has to record a finding that it had to exercise such power, because it found that finding(s) of fact recorded by the court(s) below stood vitiated because of perversity. More so, such power can be exercised only in exceptional circumstances and with circumspection, where the core question involved in the case has not been decided by the court(s) below.
In view of the said judgment of the Apex Court there is no question of re-appreciation of evidence u/s 100 of C.P.C. Consequently, the concurrent findings arrived at by the Courts below on that aspect based on evidence cannot be said to be perverse which would call for interference by this Court u/s 100 of Civil Procedure Code.
Dealing with the next contention of the learned Counsel appearing for the appellants to the effect that the Deed of Renunciation which was executed way back in the year 1963 is null and void, it would be appropriate to consider the stand taken by the appellants with regard to such Deed of Renunciation. In the written statement as well as in the counter claim filed by the appellants, the contention of the appellants was that they have never executed such type of Deed nor they were aware of its existence. The Courts below on appreciation of evidence on record have come to the conclusion that there was ample evidence on record to suggest that the appellants immediately after the execution of the said Deed of Renunciation had in fact obtained the certified copy thereof from the concerned Notary. The Courts below on appreciation of evidence on record have disbelieved the case made out by the appellants to the effect that the appellants had not executed such Deed of Renunciation.
These concurrent findings cannot be re-appreciated by this Court in the present Second Appeal.
With regard to the next contention of the learned Counsel appearing for the appellants to the effect that the Deed of Renunciation ought to have been executed before the Court and not before the then Notary, I find that the said contention cannot be accepted. Under Decree No. 8373 of the Notarial Laws, Article 1 thereof clearly provides that notaries inter-alia are permitted to draw up all public wills, deeds of approbation of closed wills, extra judicial protests and all other authentic and extra-official instruments. As such, it cannot be disputed that the Deed of Renunciation contemplated under Article 2029 of Portuguese Civil Code is to be executed before the Notary Public being an authentic document. Considering that the said document in the present case has been executed before the then Notary Public who had power to execute such document in accordance with the law as prevailing in the year 1963, I find that it cannot be said that the said document had not been executed in accordance with the law. The contention of Shri Mulgaonkar that the original deed of renunciation has not been produced and as such no evidential value can be given to the certified
copy cannot be accepted. The Division Bench of this Court in the judgment reported in Carlos Tavora and Others Vs. Maria Felicidade Fernandes e Lobo and Others, has held at paras 12 & 13 thus :
In our view the said observations of the Supreme Court are inapplicable to the case at hand. The said observations were made in relation to sale deeds which are essentially private documents and with reference to Section 51-A of the said Act and which documents are otherwise executed before a public officer and a public record is kept of the same. In the case at hand the plaintiffs have produced a certified copy of the said Will. In this State and in this case the Will was executed with the intervention of a Notary Public, who is public functionary under the law in force, namely Decree No.8373, dated 18.9.1922 and in accordance with Articles 1911 onwards of the Civil Code, 1867, and therefore is a public document which can be proved by production of a certified copy as provided by S. 77 of the Indian Evidence Act, 1872. Such a Will carries with it a ring or a halo of its authenticity and reliability and it is presumed to be true until disproved.
It is to be noted that a Notary as envisaged under the Notarial Law of Decree No. 8373, dated 18.9.22 is a public servant whose functions, under the said law, in general are to intervene in all extra judicial acts which are in need of certainty and authenticity, and in particular to record, inter alia, public wills and all other authentic extra judicial official documents or to intervene in their making. Therefore, a Will made in this State under the said law carries with it a presumption of correctness, authenticity and reliability, a presumption which has got to be accepted until the contrary is proved. In other words, every statement made by the Notary of what was said and done by him in his official capacity is to be presumed to be true until the contrary is proved. A similar system of law relating to notaries public is followed in France. With a view to explain this system to British Jurists to acquire the knowledge of French law. Sir Otto Kahn-Freund, Claudine Levy and Bernard Rudden in their Book "A Source Book on French Law-System-Methods Outlines of Contract" says :
The legal significance of his (Notary''s) office stems partly from the much stronger force which notarial documents ( acts authentiques ) have compared with private documents ( acts sous seing prive)
. ............. Each statement made by a notaire of what was said or done before him in his official capacity is presumed true until disproved in a formal procedure ( inscription de faux ) which is hardly ever used.
Considering the said judgment of the Division Bench, the said deed of renunciation has been executed with the intervention of a Notary public who is a public functionary under the law in force which is a public document which can be proved by production of a certified copy.
With regard to the contention of the learned Counsel appearing for the appellants to the effect that the Deed of Renunciation had to be executed only in terms of Article 2034 of Portuguese Civil Code, I find that it cannot be disputed that the Deed of Renunciation can also be executed before the Court of law. But however, considering the relevant provisions of law, there is no bar to execute such document before the Notary in accordance with law in force at the relevant time. It is not in dispute that at the relevant time, the Indian Registration Act was not in force in the State of Goa. The law in force at the relevant time permitted such document to be executed before the Notary public appointed under Article 1 of the Notarial Laws. Consequently, the contention of the learned Counsel appearing for the appellants to that effect deserves to be rejected. As such, the commentary relied upon by the learned Counsel appearing for the appellants does not support the case put forward by the appellants in the peculiar facts of the present case. In view of the above, I find that no substantial question of law arises in the Appeal which requires consideration by this Court u/s 100 of Civil Procedure Code. Hence, the appeal stands dismissed.