• Partition suit - how to prove denied registered mortgage deed

Q) Sir, I am Lakshmi, age 73, my father had 10 Acer Self-Acquired property. My father expired 1999 intestate. My brother sold my father’s property without my knowledge in 2009(No news paper public notice). I filed partition suit and cancelation of sale deeds.
 My brother with his written statement filed an unregistered, unprobated forgery Will of my father dated 1998 in his favour, which is not mentioned in sale deeds . Two witnesses of Will and scribe of Will came to court and said that Will is genuine. My brother did not submit any other signatures except Will.
 I got two mortgage deeds of 1986 (12 years old to the Will date) of my father from register office. My brother in cross examination have denied these mortigage deed and said they are not genuine. They are 33 years old deeds to todays date.
Q) How to prove these mortigage deeds as genuine and reliable to send for compariosion of signature to hand writing expert opinion? My case was filed in 2011,so I don’t have much time. Only 2 moths left to finish my case in this court.
1Q) If I mark them from my side,then do these deed be pressumed to be geniune and executed by my father u/s 114 e of indian evidence act?
 OR
2Q)Should I get it marked as secoundery evidence(sec 65 of iea) by giving notice to by brother to produce original mortgage deed?
 OR
3Q) Summon registor and T.I.R. registor to court?
Asked 4 years ago in Property Law
Religion: Hindu

5 answers received in 2 hours.

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20 Answers

1. To prove the deeds u have to exhibit them during ur witness. Summon the witnesses who were present at that time of execution of the said deed.

2. If u have Xerox copies of those deed then no use. File an application for discovery and try to get them and my suggestion is that there is no need to prove those deed as u r the legal heir of ur father u r bound to get the share in his property

Subhendu Ghosh
Advocate, Barrackpore
234 Answers

4.0 on 5.0

Apply for and obtain certified copies of mortgage deed from sub registrar office

2) issue notice to brother to produce original

3) document under Section 74 takes in public records kept in any State of private documents. The Registrar's Office certainly keeps a public record of all sale deeds registered in that office. Section 76 enables an officer having the custody of a public document to give a certified copy. The certified copy is therefore admissible in evidence both under Section 65(e) and (f) of the Evidence Act. The certified copy therefore is secondary evidence of the public record of the mortgage deed kept in the Registrar's Office. Again by invoking Section 57(5) the said copy becomes admissible, for the purpose of proving the contents of the original document itself

Ajay Sethi
Advocate, Mumbai
87976 Answers
6207 Consultations

5.0 on 5.0

1. Apply for appointment of a handwriting expert to obtain opinion on the genuineness of your father's signature. Since the mortgage deed 30 years old and if registered then court can send both documents for comparison.

2. Marking of document prima facie testifies on admissibility of its content and figure. However this doesn't vouch for truth of its content.

3. If its a registered deed and 30 years old document then it would be exhibited as primary evidence only.

Devajyoti Barman
Advocate, Kolkata
22515 Answers
402 Consultations

5.0 on 5.0

File certified copy of the mortgage deed after obtaining the same from the office of Sub Registrar, if not filed so far. The certified copy received from the office of Sub Registrar is genuine as original.

Dalip Singh
Advocate, New Delhi
1040 Answers
36 Consultations

5.0 on 5.0

Dear Madam

Proving of a document requires many things to follow. Hyderabad is not far from my place. You may take personal advise. Please come to my office for legal advise with documents for appropriate advise.

Kishan Dutt Kalaskar
Advocate, Bangalore
6050 Answers
381 Consultations

4.8 on 5.0

Dear Client,

Probate is not mandatory in Hyderabad.

Presumption of genuineness of 30 years old Document.

Section 90 in The Indian Evidence Act, 1872

90. Presumption as to documents thirty years old.—Where any document, purporting or proved to be thirty years old, is produced from any custody which the Court in the particular case considers proper, the Court may presume that the signature and every other part of such document, which purports to be in the handwriting of any particular person, is in that person’s handwriting, and, in the case of a document executed or attested, that it was duly executed and attested by the persons by whom it purports to be executed and attested.

Non mention of WILL in the sale deed give rise to suspicious circumstances as to genuine/forged execution of WILL.

After father death, property would devolve in his legal heirs by equal share. If WILL was exits at the time of sale in 2009, he must and compulsory had to mention in sale deed, how he received ownership in the property as other legal heir is also alive inherit equal share in the property by inheritance.

If mortgage deeds are registered than presumption as to genuineness will attract u/s 114 e and G for duly registered.

Instead u should submit certify copy of mortgage if available, Sec 57 of Evidence Act will attract.

Also, Secondary evidence is admissible where the original is in possession of the party against whom document is sought.

Yogendra Singh Rajawat
Advocate, Jaipur
21481 Answers
31 Consultations

4.4 on 5.0

you can through your lawyer issue notice to your brother to produce original registered mortgage deeds

2) The certified copy therefore is secondary evidence of the public record of the mortgage deed kept in the Registrar's Office under section 65 of evidence act

2) summoning registrar as witness is long drawn and cumbersome process

Ajay Sethi
Advocate, Mumbai
87976 Answers
6207 Consultations

5.0 on 5.0

1. Please note that presumption of genuineness is not same as marking of a document. Marking of a document means formal proof of the documents.

2. So if your brother has denied the deeds you can exhibit it during your evidence.

3.Since it is registered and 30 years old deed it would be marked as Exhibit for sure and if that is so then it can very well sent for examination of handwriting by the experts.

4. if your evidence is closed you can be recalled for the purpose of exhibiting the document. Moreover the certified copy of registered deed is also a public document.

Please read section 74(2) and 67 of the Evidence Act.

Devajyoti Barman
Advocate, Kolkata
22515 Answers
402 Consultations

5.0 on 5.0

What is the need to send them for hand writing expert. If u have certify copies, admissible in evidence. Court will take judicial notice of same.

Why u r creating hurdle for yourself, Denied document ! let other party contest them, y u ?

Contact for precise advise, not willing reply ur long quires again and again.

Yogendra Singh Rajawat
Advocate, Jaipur
21481 Answers
31 Consultations

4.4 on 5.0

First of all 30 years old documents are presumed to be genuine so your brother evidence don't hold good. See sec 90 of evidence act.. If you wanna prove your brother will is fake get a commissioner appointed by court asking him to authenticate the signature of your father old will or his old bank records ... Get all documents marked which are in your custody.

Swarnarka Chowdhury
Advocate, Mysore
1878 Answers
5 Consultations

5.0 on 5.0

Y u want to prove mortgage deed. U want to prove debt of ur father so that with the help of those SBI Bank could take over ur property. Main thing is that u need to prove ur heirship as claimant

Subhendu Ghosh
Advocate, Barrackpore
234 Answers

4.0 on 5.0

Q) How to prove these mortigage deeds as genuine and reliable to send for compariosion of signature to hand writing expert opinion? My case was filed in 2011,so I don’t have much time. Only 2 moths left to finish my case in this court.

You can file a petition to find out the genuineness of the signature or comparison of signature under section 45 of Indian Evidence Act seeking to refer the matter for opinion by handwriting experts.

1Q) If I mark them from my side,then do these deed be pressumed to be geniune and executed by my father u/s 114 e of indian evidence act?

If they are original or certified registration copy, you can very well mark them as your side exhibits, the court will decide about the admission of the documents after hearing both the sides in the final arguments.

OR

2Q)Should I get it marked as secoundery evidence(sec 65 of iea) by giving notice to by brother to produce original mortgage deed?

You can mark it as your side evidence while examining yourself in chief during defence witness.

OR

3Q) Summon registor and T.I.R. registor to court?

You cannot summon the registrar for this.

T Kalaiselvan
Advocate, Vellore
78133 Answers
1543 Consultations

5.0 on 5.0

In cross-examination my brother has denied these two certified copies of registered mortgage deeds and said they are not genuine deeds. I am going to mark them as exhibits from my side in court.

Now How to get them admitted in court, so that they are eligible to send for hand expert opinion?

After producing the documents before the court you may file a petition seeking to send both this document and the will that has been relied upon by your brother to the forensic sciences department seeking expert's opinion to the genuineness of signature.

2Q) How to send notice to my brother to produce original mortgage deeds, through register post or by giving notice to his lawyer in court?

You can file a petition in the court seeking to direct him to produce the documents

OR

Q3) If we summon registrar as witness to prove genuine of mortgage deeds and thumb impression register for original signatures, then can we send original signatures of my father from T.I.R. register to expert opinion which cannot be denied. Is it right process?

Registrar is not an authority to prove his signature or genuineness of the mortgage deed, hence the registrar cannot be summoned for this purpose.

T Kalaiselvan
Advocate, Vellore
78133 Answers
1543 Consultations

5.0 on 5.0

1) your Lawyer would draft written arguments

2) it can be filed after completion of oral arguments

3) n need to mention sections while issuing notice to brother to produce original mortgage deed

4) you can rely upon section 65 of evidence act

Ajay Sethi
Advocate, Mumbai
87976 Answers
6207 Consultations

5.0 on 5.0

File for amendment of plaint annexed these documents than application for expert opinion.

Certified copies are admissible as primary evidence.

Yogendra Singh Rajawat
Advocate, Jaipur
21481 Answers
31 Consultations

4.4 on 5.0

1. You can invoke the correct provisions of law and the copy of the petition to be given to the opposite side.

2. Section 45 of the Indian evidence act.

3. You prepare the same by yourself if you know the case properly and to give a proper written statement after perusing the plaint and the documents thoroughly.

T Kalaiselvan
Advocate, Vellore
78133 Answers
1543 Consultations

5.0 on 5.0

Please note under Civil law give notice under order 12 rule 8 to produce documents . And sec 90 is a presumption that will work in your favour.

For getting your deeds authenticate please ask your lawyer to file application for appointment of commissioner . To submit written or oral arguments just get case advanced and file necessary application under.Sec 151 cpc and submit your arguments.

Swarnarka Chowdhury
Advocate, Mysore
1878 Answers
5 Consultations

5.0 on 5.0

1) your lawyer opinion is correct

2) if original mortgage deed is not in your brother possession issue of notice to brother would not serve any purpose

3)issue notice to bank to produce original mortgage deeds . to brother to produce loan discharge receipts

4) you can send notice by regd post or hand delivery

Ajay Sethi
Advocate, Mumbai
87976 Answers
6207 Consultations

5.0 on 5.0

If there is No possibility of possession of original mortgage deeds with my brother, you cannot give notice to him to produce originals in court. Your notice will be dismissed in court.

Q1) Is my lawyer’s opinion is correct?

Let your brother assert before court that he do not have original documents, you can decide further course after that. If your brother do not possess the said documents then it becomes your duty to prove that he has that and is not willing to produce the same before court, if your assertion is not convincing the court, then your petition may be dismissed.

Q2) If we give notice to produce Loan discharge receipts will it be helpful?

If he is admitting to possess the same, then it will be produced, but how will the loan discharge receipts will be useful to you?

Q3) Can we give notice to Bank to produce originals of mortgage deeds?

(or)

to both bank and my brother?

You can issue notice to bank through court to produce the same.

Q4) Notice should be given as per Order 12 Rule 8 of CPC or any other section?

The provisions of law will be taken care by your advocate.

Q5) How to serve notice, through register post or file in court or both?

Through court and post by the court.

T Kalaiselvan
Advocate, Vellore
78133 Answers
1543 Consultations

5.0 on 5.0

You can send it for handwriting expert. You can also do the secondary evidence question no 1Q you can do that. You can file written arguments from your side along with your oral arguments. I advice you to appoint a new lawyer and proceed rather proceeding in person.

Prashant Nayak
Advocate, Mumbai
27291 Answers
88 Consultations

4.4 on 5.0

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