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Mahamad Saheb Nabisaheb Ismail Magdum Vs. Kamal and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtMumbai High Court
Decided On
Case NumberSecond Appeal Nos. 1004 and 1005 of 1949
Judge
Reported inAIR1953Bom338; (1955)57BOMLR291; ILR1953Bom734
ActsEvidence Act, 1872 - Sections 65, 66, 68 and 90; Dekkhan Agriculturists Relief Act - Sections 15D; Transfer of Property Act - Sections 59; Registration Act - Sections 58, 59 and 60
AppellantMahamad Saheb Nabisaheb Ismail Magdum
RespondentKamal and ors.
Appellant AdvocateG.R. Madbhavi, Adv.
Respondent AdvocateT.S. Jahagirdar, Adv.
Excerpt:
indian evidence act (i of 1872), section 90 - presumption as to due execution and attestation of document--whether such presumption applies to certified copy of such document.;the presumption raised by section 90 of the indian evidence act, 1872, as to due execution and attestation of a document does not apply to a certified copy of the document required to be executed and attested.;vithoba savlaram v. shrihari (1844) 47 bom. l.r. 116 followed.;pandappa mahalingappa v. shivalingappa (1943) 47 bom. l.r. 962 referred to. - .....in support of their claim, the plaintiffs in the two suits were unable to file the original mortgage deeds, but, instead, they produced only certified copies thereof.(6) various contentions were taken by the defendants, one of which need be stated in the course of this judgment, and that contention as that it was not true that the original mortgage deeds were with the defendants and that the predecessors-in-title of the defendants were the mortgage nor had they taken any mortgage- deeds from the predecessors-in-title of the plaintiffs.(7) it appears that the parties to these deeds are all dead. the writer, the attesting witnesses and the identifying witnesses are all dead. the plaintiffs had no personal knowledge regarding the two transactions. since the defendants denied that the.....
Judgment:

(1) These two appeals raise a pure question of law which is whether the presumption raised by Section 93 Evidence Act as to clue execution and attestation or a document will apply to a certified copy of a document required to be executed and attested. The facts 'of the two cases in which this question crises arc simple.

(2) The property in salt No. GO of 1946 out of which S. A. no. 1004 of 1949 arises consists of survey Nos. 61/1, SO/24, 484/3, 478/3 and 015/9 situate at Kudchi in the Belgaum District.

(3) The property in suit No. 91 of'194S out of Which S. A. No. 1005 of 1949 arises consists of surrey Nos. 61/2, SO/23, 484/3 and 615/9. The-suit property in the two suits originally belonged to the family of the plaintiffs.

(4) On 12-6-1395, the predecessor-or-title of the plaintiffs executed in favour of the predecessors in-title of the defendants a simple mortgage in order to secure a sum of Rs. 250-5-0. Tile mortgage deed is Ex. 59 in the case. On the same day, viz. on 12-6-1895, the predecessors-in-title o the plaintiff's executed in favour of the predecessors-in-title of the defendants a simple mortgage in order to secure the same sum of rupees, via. Rs. 250-5-0. The mortgage deed is Ex. 57 in the case.

(5) On 8-7-1946, the plaintiffs filed the aforesaid, suits for accounts under Section 15D, Dekkhan Agriculturists' Relief Act and they prayed for redemption. In support of their claim, the plaintiffs in the two suits were unable to file the original mortgage deeds, but, instead, they produced only certified copies thereof.

(6) Various contentions were taken by the defendants, one of which need be stated in the course of this judgment, and that contention as that it was not true that the original mortgage deeds were with the defendants and that the predecessors-in-title of the defendants were the mortgage nor had they taken any mortgage- deeds from the predecessors-in-title of the plaintiffs.

(7) It appears that the parties to these deeds are all dead. The writer, the attesting witnesses and the identifying witnesses are all dead. The plaintiffs had no personal knowledge regarding the two transactions. Since the defendants denied that the original documents were with them, the trial Court allowed certified copies to be produced under the provisions of Sections 65 and 63 Evidence Act and it was conceded on behalf of the defendants that the certified copies were admissible in evidence. However, since the defendants denied the execution of the documents by the mortgagors, the mortgage deeds had to be proved. That means that the execution of the mortgage deeds had to be proved and the due attestation of the mortgage deeds had also to be proved.

(8) Under these circumstances the question before the lower Courts was whether the presumption arising under Section 90 Evidence Act, could be raised in favour of the plaintiffs.

(9) The trial Court took the view that such a presumption could be raised under Section 90. Evidence Act, and so that Court gave the plaintiffs in both the suits the decrees as set out in the orders.

(10) From the decrees made in the two suits the defendants appealed in the District Court, Belgaum, and the learned Assistant Judge reversed the decrees of the trial Court and dismissed the plaintiffs' suits. From the appellate decrees the original plaintiffs have come up in second appeal.

(11) Since the two appeals raise a common Question of law, it will be convenient to dispose of the two appeals by a common judgment. Mr. Madbhavi who appears for the plaintiff in each appeal contends that the; lower appellate Court was wrong in holding in each case That the presumption under Section 90 could not be raised in this case. In order to appreciate this contention it is necessary to reproduce a part of Section 90 So far as material, it runs as follows : '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.'

(12) Now the presumption raised by Section 90 applies to the-original document. But it is contended that the presumption can be raised even in respect of a certified copy. That the presumption under Section 80 can be raised m favour of the original document only is established by authority. That authority is to be found in a judgment of this Court reported in the case of -- 'Vithoba Savlaram v. Shrihari', AIR 1945 Bom 319 (A). It is enough, I think, to quote the head-note in that case :

'The statutory presumption permitted by Section 90 Evidence Act, 1872, can be raised only with regard to the original document if produced to the Court, it does not apply to a certified copy wren the original document is not before, the Court.'

The judgment was delivered by Mr. Justice Cnagla, as he then was, and he relied, in support of his view, upon a decision of their Lordships of the Privy Council reported in the case of --'Basant Singh v. Brijraj Saran Singh, . If this case lays down the correct principle, Jir. Madbhavi has really no case in appeal.1 'But Mr. Madbhavi contends that there is another decision in his favour which is reported in the caso of -- 'Pandappa Mahalinjappa v. Shivlingappa', AIR 1945 Bom 193 (C). Mr. Madbhavi relies upon a part of the head-note in that case which runs as follows :

'The statutory presumption under Section 90, Evidence Act, 1872, cannot be made in respect of a document merely on production of its copy under Section 65 of the Act, But where such copy produced bears the Sub-Registrars endorsement as to the proper execution of the original document, such a presumption can be safely made.'

The document which was being considered in -Vithoba Savlaram's case (A)', was dated 1891,while the document which was being consideredin --'Panelappa Mahalingappa's case (C)', wasdated 1373. It is obvious that while the latterdocument was executed prior to the enactmentof the Transfer of Property Act, the former wassubsequent to the enactment Of the Transfer ofProperty Act. Section 59, T. P. Act provides that-'Where the principal money secured is onehundred rupees or upwards, a mortgage otherthan a mortgage by deposit of title-deeds canbe effected only by a registered instrumentsigned by the mortgagor and attested by atleast two witnesses.'

Section 68, Evidence Act, provides that--'If a document is required by law to be attested, it shall not fee used as evidence until one attesting witness at least has been called for the purpose of proving its execution, if there be an attesting witness alive, and subject to the process of the Court and capable of giving evidence.'

It is clear, therefore, that the execution of the two mortgage deeds by the mortgagors has to be proved and also the attestation of the two mortgage deeds has also to be proved. For that purpose, it is necessary to prove the two mortgage deeds by the evidence of the mortgagors. The mortgagors are all dead. The attesting witnesses arc also dead. But Section 63 provides that if a document is required by law to be attested, it shall not by used as evidence until one attesting witness at least has been called for the purpose of proving is execution. It is admitted that the attesting witnesses are dead. The position, therefore, is that neither the original mortgagors could prove the exception of the documents nor one Of the attesting witnesses could prove the execution of the documents by the mortgagors find since the originals were not produced but only the certified copies, the plaintiffs caimed that they could rely upon the presumption raised by Section 90.

(13) The Question for decision, therefore, is whether the presumption under Section 90 can be raised m each case. In view of the decision in -- -Vithoba Savlaram's case (A)', the presumption under Section 90 cannot be raised in the case of a eertided copy because the presumption can be raised only in respect of' the original document. But then Mr. Madbhavi relies upon --'Panclappa Mahalingappa's case (C)', and he says that the presumption can be raised even in the case of s, certified copy, if there is a Sub-Resistrar's endorsement upon r, document. Lokur J. has taken the view that the statutory presumption under Section 90 can be raised in a case where a certified copy bears the Sub-Registrar's endorsement as to the proper execution or the original document, and I will assume that that is the correct principle. Even 50, that principle can be applied in the case of a certified copy only in respect of the execution by the mortgagor in view of the endorsement made by the Sub-Registrar as a result of Sections 53, 59 and 60 Registration Act, I will assume therefore, in favour of Mr. Madbhavi that that presumption raised by Section 90 can he raised in favour of the certified copies with respect to the execution of the two mortgage feeds by the mortgagore. But I am unable to accept the argument of Mr. Madbhavi that the presumption under Section 90 can be raised with respect to the due attestation of title documents because Sections 58, 59 and 60 Registration Act. have no reference whatever to the attestation of a document. When a document is presentea for registration, the Sub-Registrar has to inquire whether the executant admits execution of the document and if the executant admitted the execution of the document, the Sub-Registrar has to make an endorsement in conformity with the provisions contained in Ss. 58, 59 and 60, Registration Act. But the Sub-Registrar is not required to make any endorsement in respect of the attestation of a document by in attesting witness. If that is so, then Ss. 58, 59 and GO have no application to the attestation of a document.

(14) If, therefore, the presumption under Section 90 can, at the most, be raided in favour of the certified copy with respect to the due execution of the document, leaving regard to the provisions contained in Ss. 58, 59 and 60, I am unable to hold that any such presumption under Section 90 can be raised in favour of the certified copy in relation to the attestation of tile document, in view of is conclusion, it seems to me that the lower appellate Court was right in holding that the due execution of the mortgage deeds was not proved.

(15) If the due execution of the documents is not proven, then it is obvious that the plaintiff in each case cannot maintain the present suit which is based upon the mortgage deeds in question.

(16) For the above reasons, therefore, I think,the view taken by the lower appellate Court ineach case is correct, The result is that Section A. No.1004 of 1949 fails and it will be dismissed withcosts, and for the same reasons S. A. No. 1005of 19J9 also fails and that too Will be dismissedwith costs.Appeals dismissed.


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