1. This appeal is against the judgment in R. A. 51 of 46-47 On the file of the Subordinate Judge, Mysore, dismissing the appeal filed against O. S. 331 of 1944-45 on the file of the Second Munsiff, Mysore who had decreed the plaintiff-respondent's suit for declaration of title and for possession of the plaint schedule properties as prayed for.
2. The case of the plain tiff-respondent is that the suit properties belonged to Channi-gegowda. His widow Thimmi alias Helavi took plaintiff's father in adoption and executed a registered deed to evidence the same. Helvi was defendant's father's sister and this is how plaintiff and his mother came to be, after the death of his father, under the protection of defendant's father. Helvi died while they were living with defendant's father who began to look after the properties for and on behalf of the plaintiff. After the death of the father of the defendant, the suit was instituted for declaration of plaintiff's title and for possession of plaint-schedule properties. The defendant-appellant admits that Helvi is his father's sister, but denies that she ever lived with him. Though the adoption is denied in the statement, it is not contended before us that the adoption is not true. The defendant has denied that the properties belonged to Chennigegowda and that his father was looking after the properties on behalf of the plaintiff. According to him the plaintiff was never in possession of the properties within 12 years before suit and the suit is barred by adverse possession.
3. Both the courts below have come to the conclusion that the properties belonged to Channigegowda and to plaintiff's father and that these belong now to plaintiff. They are of opinion that as defendant's father was in possession of the property on behalf of plaintiff, till his death the suit is well within time and that it is not barred by adverse possession. It will be noticed that the defendant docs not contend that the properties belonged to him. or to his father. His case is one of adverse possession. It is in evidence that plaintiff's grand father Chennigegnwda purchased three of the suit properties under registered sale deeds, Khata of most of them stood in the khata of his wife after his death and none of these were in the khata of defendant's father till the time of the introduction of record of rights. Defendant's father did not issue a reply claiming the properties as his when plaintiff's mother issued a notice claiming them. From these and other circumstances of the case, the learned Subordinate Judge has agreed with the learned Munsiff in his finding that the properties belonged to plaintiff's grand-father.
4. As regards the question whether the plaintiff has been in possession of the properties within 12 years before suit or whether the suit is barred by adverse possession, it was rightly held by the two courts below that the father of the defendant was in possession of the property on behalf of the plaintiff and that he was looking after the management of the properties. As admitted by the defendant in his statement, Thimmi alias Helvi was defendant's father's sister. It is true that he has denied that Helvi ever lived with her brother Venkatagowda after her husband's death. But Chikkadasappa 8th witness for the defendant admits that Helvi lived in Venketegowda's house. Doddavenkatiah DW-9 admits much more than this. He says that Helvi was wife of Channigegowda and that after his death, she began to live with defendant's father Venkategowda. Plaintiff's father whose marriage took place in Veokategowda's house lived in that house till his death. It is therefore very clear that Helvi who came to her brother's house after her husband's death must have taken plaintiff's father in adoption and celebrated his marriage in that house. Plaintiff's father and mother lived under the protection of defendant's father Venkategowda till plaintiffs father died, leaving the plaintiff who was a baby at the time. Plaintiff's father according to D. W. 9 was tending cattle in Venkate-gowda's house till his death. Evidently being dull, he was occupying a subordinate position in Venkategowda's house and both he and the plaintiff were under his protection. Venkategowda under the circumstances cannot but be deemed to have been looking after the properties for and on behalf of the plaintiff and his possession must tantamount to possession by the plaintiff and his father. There was thus good material for both the courts below to come to the conclusion that the plaintiff is the owner of the plaint schedule property and that the suit is within time and not barred by adverse possession, These are questions of fact and the concurrent findings of the two courts below cannot be attacked in second appeal in this court.
5. It was however contended that the courts below erred in their view as to what constitutes adverse possession and that the lower appellate court was wrong in treating the two registered sale deeds in favour of the plaintiff's grand-father as proved merely because copies of those documents were filed in court, and that the lower appellate court was also wrong in admitting copies of these documents under Order 41, E. 27. It is no doubt true, that under Order 41, Rule 27 the court can call upon a party to adduce additional evidence if it feels that that evidence is necessary to enable it to give a proper decision. This, however, does not mean that a party cannot file an application bringing to the notice of the appellate court the need for such evidence. It cannot be said that the lower appellate court was wrong in merely allowing the plaintiff to put in certain copies of registered documents.
6. What is, however, more seriously contended is that the copies of the registered documents should not have been allowed to be put in without satisfactory evidence about the loss of the originals and that from mere production of copies of registered documents the lower appellate court was wrong in presuming the genuineness of their originals. Plaintiff is the person who must have been in possession of the originals of the copies of the two registered sale deeds in favour of Channigegowda. He swears that he has not got the original deeds with him & that the schedule properties were purchased by his grandfather Chennigegowda under exhibits C and D. Here it has to be noticed that the learned Subordinate Judge has noted that the Advocate of the appellant appearing in that court had no objection. In these circumstances, it is difficult to understand the objection of the learned advocate for the appellant that the copies were wrongly allowed to be put in. As observed in --'Ihtishan Ali v. Jamna Prasad', AIR 1922 P. C. 56(A) :
'it is, no doubt not very likely that such a deed would be lost, but in ordinary cases, if the witness in whose custody the deed should be deposed to its loss, unless there is some motive suggested for his being untruthful, his evidence would be accepted as sufficient to let in secondary evidence of the deed. And if in addition he was not cross-examined this result would follow all the more.'
As observed by Baker J. in --'Vishvanath Ramji v. Rahibai Ramji', AIR 1931 Bom 105(B)
'The question whether secondary evidence is rightly admitted is one proper to be decided by the Judge of the first instance and depends very much on his discretion and his conclusion should not be overlooked except in a very clear ease of miscarriage.'
In this case it is stated that the objection in fact was waived and the plaintiff has not been cross-examined on the point of his not being in possession of the originals of exhibits C & D. There is, therefore, no substance in this contention.
7. The main point on which the learned counsel for the appellant attacked the decision of the lower appellate court is in respect of its coming to a decision, from the mere production of copies of registered documents that the originals of those documents were proved. Evidence that a document was duly registered is some evidence of its execution by the person by whom it purports to have been executed. There was some difference of opinion in the High Courts of India outside Mysore on this aspect of the matter. The Privy Council decision in --' Gangamoyi Debi v. Trailukhya Nath', 33 Cal 537 (C), set the matter at rest. Sir Ford North who delivered the judgment of their Lordships in that case observed :
'The registration is a solemn act, to be performed in the presence of a competent official appointed to act as Registrar, whose duty it is to attend to parties during the registration and see that the proper persons are present, are competent to act, and are identified to his satisfaction; and all things done before him in his official capacity and verified by his signature will be presumed to be done duly and in order. Of course it may be shown that a deliberate fraud upon him has been successfully committed; but this can only be by very much stronger evidence than is forthcoming here.'
As observed in --Piara v. Fattu', AIR 1929 Lah 711(D) by Bhide J., with whom Fforde J. agreed :
'On behalf of the respondent, on the other hand, it is contended that the certificate of the Registering officer merely shows that the legal formalities as to registration was complied with and that it cannot be looked upon as evidence of its execution as there is no guarantee that the person who appeared before the Registering officer and claimed to bo the executant was the real executant. There seems to be a considerable body of authority in support of this view; Vide --'Kripanath v. Bhashaye Mollah'. 6 W. Rule 105 (E); --'Fyez Ali v. Omedee'. 21 W. Rule 265--'Fuzal Ali v. Bia Bibi', 7 Cal LR 276; --'Sulimatul v. Koylashpoti', 17 Cal 903 and--'Rajmangal v. Mathura Dubain'. AIR 1915All 383. But most of these rulings wereprior to the Privy Council decision in 33Cal 537(C), and the effect of that decisiondoes not appear to have been consideredin the later rulings which were referred to.'
Again Lord Phillimore who pronounced thejudgment of their Lordships in AIR 1922 PC56(A) has observed :
'There is no doubt that the deed was executed, for it was registered, and registered in a regular way. and it is the duty of the registrar, before registering, to examine the grantor, or some one who, he is satisfied, is the proper representative of the grantor, before he allows the deed to be registered.There can be no doubt therefore, that Ehsan All Khan executed the deed and was party to its registration.'
Sir George Rankin, who pronounced the judgment of their Lordships in the case reported in -- 'Gopal Das v. Sri Thakurji' has observed :
'The registrar's endorsement show (see Sub-section 2 of Section 60, Registration Act, 1877) that in 1881 a person claiming to be this Parshotam Das, and to have become son of Harish-chandra by adoption made by his widow Manki Bahu, presented the receipt for registration and admitted execution. He was identified by two persons -- one Sheo Prasad and the other Girja Prasad, who was the scribe of the document and was known to the Registrar. What remains to be shown is that the person admitting execution before the Registrar was this Parshotam Das and no impostor. The question is one of fact except in so far as there was as a matter of law a presumption that the registration proceedings were regular and honestly carried out: 33 Ind App CO at p. 65 (C); AIR 1923 PC 56 at p. 58 (A). It seems clear that any objection to the sufficiency of the proof upon this point would have been idle, the circumstances being such that the evidence of due registration is itself some evidence of execution as against the plaintiffs.'
In AIR 1931 Bom 105 (B), Beaumont C. J. and Baker J. were dealing with a case in which the first appellate court had observed
'The lower court has not even insisted on proof that any such document was ever executed by deceased Ramji; the person who is said to have identified him before the Sub-Registrar is not examined. The respondent cited the writer and witnesses, but did not examine them. The result of this extraordinary conduct of the case is that the plaintiff is allowed to accuse his adversary without any proof of having a certain document, and is allowed to take every advantage of this accusation, being exempted thereby from his obligation to prove the execution of the document.'
But Baker J. who delivered the judgment of the High Court observed:
'Then as to the proof, the document, in this particular instance, has been registered and bears the necessary endorsements by the Sub-Registrar before whom the executant was identified by the Kulkarni of the village. The effect of registration has been considered by this court in -- 'Thama v. Govind', 9 Bom LR 401 (K) where it was held that Sections 58, 59 and 60, Registration Act, provide that the facts mentioned in the endorsement may be proved by these endorsements provided the provisions of Section 60 have been complied with. The endorsement of the Sub-Registrar in the present case shows that Ramji the executant admitted execution of the document and gave his thumb impression and that he was identified before the Sub-Registrar by Keshav Hari Talati who was known to the Sub-Registrar. In these circumstances, the view of the first court that the copy of the adoption deed is admissible in evidence and that is sufficiently proved appears to be correct.'
From these decisions, it is clear that the lower appellate Court was right in regarding the copies of the two registered documents as some evidence of ihe genuineness of their originals.
8. It is, however, brought to our notice that there are decisions in this court which show that the genuineness of the original cannot be presumed from the mere production of copies of registered documents. The decisions reported in 45 Mysore HCR 97 (L) and 50 Mys HCR 113 (M) are relied on. As regards the first of these cases it will be noticed that a certified copy of a partition deed was produced in evidence and it was urged on behalf of the contesting defendant that the partition deed being a document more than 30 years old no proof as regards its genuineness was necessary beyond the production of the certified- copy and the genuineness of the original may be presumed under Section 90, Evidence Act. It may be stated with respect that it was correctly held in that case that though the genuineness of the certified copy of the partition deed could be presumed under S, 90, Evidence Act, the certified copy being a document 30 years old, the mere production of the certified copy was not sufficient to justify a presumption under that section of the due execution of the original. The decision of the Privy Council in --'Basant Sing v. Brij Raj Saran Sing' also merely states that Section 90 of the Evidence Act itself is clear on the point that production of a copy is not sufficient to justify the presumption of due execution of the original under Section 90. 45 Mys HCR 97 (L), however has nothing to do with the question of raising a presumption under Section 60, Registration Act. In fact, there is nothing to show the certified copy relied on in that case is a copy of a registered document. As observed by Beckett J. in -- 'Harnam Singh v. District Official Receiver', AIR 1941 Lah 400 (O) with reference to the Privy Council decision relied on by this Court in the decision referred to above :
'All that was laid down in (N) was that the age of a copy gave rise to no presumption of the due execution of the original, not that such execution could not he presumed on any other grounds, Section 60, Registration Act, provides that the certificate of the registering officer shall be admissible for the purpose of proving not only that the document has been duly registered, but also that the facts mentioned in the usual endorsements have occurred as therein mentioned. The endorsements mentioned in Section 58 include endorsements relating to the execution of the document. Following 33 Cal 537 (PC) (C) and AIR 1929 Lah 711 (D) it was held by a Division Bench of this Court in -- 'Brij Baj Saran v. Alliance Bank of Simla', AIR 1936 Lah 946 (P) that a Sub-Registrar's endorsement duly made under Section 60, Registration Act, is relevant evidence for proving the execution of the document. In the present instance, the copy shows that the arbitrators themselves admitted the execution of the document containing the award. It would indeed be unfortunate if registered records became practically useless as they grew old unless they could be produced in the original form but happily this does not appear to 'be the law.'
It is thus clear that the decision of this court in 45 Mysore HCR 97 (L) which does not deal with a case under Section 60, Registration Act, does not help the appellant in any way.
9. The decision reported in 50 Mys HCR 118 (M), however, appears at first sight to bein favour of the contentions raised by the learned Advocate for the Appellant. That was a case in which a certified copy of a registered document was produced and it was held that a presumption of genuineness of the original cannot be raised. -- 'Ramanathan Chettiar v. Ramanathan Chettiar', AIR 1947 Mad 57 (Q) was relied on and it was held in the latter case also that where only a copy of a document purporting to be more than 30 years old is produced, the Court cannot under Section 90 of the Evidence Act draw a presumption that the original document, of which it is a copy, is genuine. The question whether a presumption under Section 90, Registration Act, of the genuineness of the original document on the ground of its being a registered document was neither raised nor considered, and as such it cannot be taken as an authority on that aspect of the matter. There is, however, the following observation, which is likely to raise an impression that under no circumstances production of registered documents, as in that case can be evidence of the genuineness of the originals :
'If in this ease there was nothing on tha record except the production of these two copies, following the decisions abovenamed, we should have had no difficulty in holding the genuineness of the originals of which Exhibits U and W purport to be copies, had not been made out.'
It is unfortunate that 16 Mys LJ 249 (R) and the Privy Council decisions wore not brought to the notice of the learned Judges as in such a case it is likely that the above observation would not have been made. Moreover, there was in that case no need to raise any presumption, as it is clear by the following observation in it :
'But an examination of the evidence clearlyshows that the genuineness of those documents has been established beyond doubt,and indeed since the copies are not themselves over 30 years old the plaintiff cannotseek the aid of Section 90 in proof of theoriginals of these documents and the learned Munsiff seems to have.unnecessarily considered this aspect of the case.'
It is thus seen that in view of the fact thatthe evidence in that case itself established thegenuineness of the documents, no question ofraising a presumption under Section 60, Registration Act, arose for consideration.
10. On the other hand, in the decision of this Court in 16 Mys LJ 249 (R) which relies on the Privy Council decision in 33 Cal 537 (C) referred to in AIR 1929 Lah 711 (D) mentioned above, Shankaranarayana Rao J. observed :
'Sections 34 and 35 of the Registration Regulation cast certain duties on the Sub-Registrar; he has to enquire whether or not the document produced before him was executed by the person by whom it purports to have been executed, to satisfy himself about the identity of the persons appearing before him and alleging that they executed the document, and so on.'
This is no doubt a decision by a Single Judge. But in -- 'Fakir Ahamed v. Abdul Wahab'. S. A. No. 25 of 1943-44 (S), the Bench consisted of Venkataramana Rao C. J. and our present Chief Justice and the following observation in that case lays down the law on the point :
'Certified copies contain endorsements 'which go to show that the documents were executed by Mohamad Hussain and under Section 60, Clause 2, Registration Act, these documents can ba relied on for purpose of proving the execution of the originals. The appellate Court has discussed the case law on the point and we must take it that execution, of the originals had properly been proved.'
It has to be noticed that, as in this case, no oral evidence of the documents .had been adduced in that case in respect of genuineness of the documents in question and the mere production of the copies of the registered documents containing endorsements which made it clear that the person by whom it purports to have been executed did execute those documents, was held to be sufficient proof of the execution of the documents.
11. 'Ara Begam v. Deputy Commr., Gonda',AIR 1941 Oudh 529 (T), relied on by thelearned Advocate for the appellant is a decision of a single Judge. It was observed in thatcase as follows :
'The fact of the matter is that if the broadproposition put forward on behalf of theplaintiffs were to be accepted, in a largemajority of cases proof of execution such asis contemplated by Section 67,.. Evidence Act,would become unnecessary. The effect of theregistration endorsement is not to prove execution as is required by. Section 67 but only toprove an admission made by the executantto the Registrar or Sub-Registrar's certificateis admissible not to prove execution of thedeed but merely to prove the admission ofexecution. The effect of the admission is inevery case a separate question.....To sum up the whole position, as it appears to me, the plaintiffs were in a position to lead evidence of execution without, so far as appears from the record any difficulty. They have chosen to withhold evidence of execution although it could hardly be said that the surrounding circumstances were free from suspicion.'
The decision in the first place suggests that the. endorsement of the Sub-Registrar may only go to prove an admission of a person that he executed the document and that this admission cannot.be binding on third parties. Secondly, it holds that it may not be safe to raise a presumption of due execution of the document even in a case where the party has purposely failed to adduce other evidence though he could have easily done so and there are suspicious circumstances. It has however to be remembered that in 33 Cal 537 (C) and other cases, referred to above the endorsement of the Sub-Registrar has not been relied on merely as an admission. In -- 'Puran Chand v. Monmotho Nath', AIR 1928 PC 38 (U) it was contended that the word 'executing' used in Section 35 of the Registration Act only meant actual signing. Their Lordships of the Privy Council rejected that contention, and it was observed
'A document is executed, when those who take benefits and obligations under it have put or have caused to be put their names to it..... Hence the words 'person executing'in the Act cannot be read merely as 'person signing'. They mean something more, name-ly, the person, who by a valid execution enters into obligation under the instrument.'
As observed by Shankaranarayana Rao J. in 16 Mys LJ 249 (R), the Sub-Registrar, has, to enquire whether or not the document produced purports to have been executed and to satisfyhimself about the identity of the persons appearing before him and alleging that they executed the document and so on. The presumption raised in these cases is in respect of the execution of the documents.
12. It is not merely a presumption under Section 60, Registration Act, that arises in cases of this kind. Apart from any presumption that arises under any law, a presumption of fact arises in cases of this kind. As stated in Section 114, Evidence Act, the Court may presume the existence of any fact which it thinks likely to have happened regard being had to the common course of natural events, human conduct and public and private business, in their relation to the facts of the particular case. Wood-roffe and Ameer Ali in their commentary under Section 4, Evidence Act, observes :
'Presumptions of fact or natural presumptions are inferences which the mind naturally and logically draws from given facts without the help of legal direction. They are always re-buttable. They can hardly be said with propriety to belong to that branch of the law which treats of presumptive evidence. They are in truth but mere arguments of which the major premise is not a rule of law; they belong equally to any and every subject matter, and are to be judged by the common and received tests of the truth of propositions and the validity of arguments. They depend upon their own natural efficacy in generating belief, as derived from those connections which are shown by experience, irrespective of any legal relations. They differ from presumptions of law in this essential respect, that while those are reduced to fixed rules, and constitute a branch of the system of jurisprudence, these merely natural presumptions are derived wholly and directly from the circumstances of the particular case by means of the common experience of mankind, without the aid or control of any rules of law. Such, for example, is the, inference of guilt drawn from the discovery of a broken knife in the pocket of the prisoner, the other part of the blade being found sticking in the window of a house which, by means of such an instrument, had been burglariously entered. These presumptions remain the same under whatever law the legal effect of the facts, when found, is to be decided.' (See Taylor. Ev. 214).
13. In case of a registered document the document is registered only after the officer appointed for the purpose satisfies himself that the document has been duly executed. In many cases an endorsement of the Sub-Registrar proves that a person who purports to have executed the document has presented it for registration and has received consideration in the presence of the Sub-Registrar. All this is something more than admissions. The document itself might remain unchallenged for more than a score of years. What will be the presumption of all such circumstances put together? The presumption is one of fact, and the Court is at liberty to infer from all these circumstances that the document was executed by the person by whom it purports to have been executed. After all, the fact that the document is registered is only a piece of evidence. It is open to the Court to accept it or reject it. It may be rejected in the circumstances referred to in Oudh case mentioned above, that is, where it can hardly be said that the surrounding circumstances are free from suspicion and where the parly on whom the burden of proof lies wantonly keeps back the evidence of witnesses present at the time of execution though they are alive. As observed by Shankaranarayana Rao J., in 16 Mys LJ case, it may be shown that a deliberate fraud has been played upon the Sub-Registrar. Thus, while it is clear that the presumption of the genuineness of a document is not unrebuttable it is one that the Court may raise considering the circumstances of each case including the hardship that might be caused by not raising such a presumption in a proper case. Let us take the case of a suit for possession of a land leased to another for a long period of time, on the expiry of the said period of the lease. If the tenant in whose favour the lease deed was executed denies the existence of the document and all the attestors and the scribe of the document are dead, how will it be possible for the owner of the property to prove that the lease deed was executed by him or his predecessor-in-interest? In such cases, where it is impossible for any person to prove the execution of a document on account of the death of all the persons concerned, the best and only possible evidence that may be available is that of a certified copy of the registered document.
14. As regards the question of adverse possession it is contended that plaintiff's mother issued a notice Exhibit II, saying that defendant's father took wrongful possession of her produce. Evidently, considering the allegation in the notice that defendant's father promised to give her produce, it is clear that the idea in the notice is not that defendant claim-ed to be in possession of the property in his own right. Assuming that plaintiff's mother issued the notice admitting the properties to be in adverse possession of the defendant, the admission does not bind the plaintiff who does not claim the property through her. As observed in -- 'Kaliammal v. Sundarammal', AIR 1949 Mad 84 (V):
'An admission by a party to a suit is not binding upon a person not claiming through him. Thus, where a widow admits that her husband and her husband's brother had. reunited after partition, the admission is not binding upon her daughter who is not her representative-in-interest as she does not claim her title through her mother but through her father.'
15. When the property is in the possession of a close relative, particularly when the owner is a minor and has no other male member to look after him, it must be presumed that the possession is not adverse. The point is quite clear and it is unnecessary to refer to the case law on the point. It is sufficient to refer to the following observation in the commentary of U. N. Mitra on Law of Limitation under Article 144, Limitation Act, and the decisions relied on by the learned author are also set out in it :
'Acts amounting to adverse possession should be scrutinized in the light of relationship that exists between the parties. With reference to the property of a female living with her relation he is deemed to be manager on her behalf until he openly asserts a hostile title to hold on his own behalf. Possession of husband or brother or mother is 'prima facie' not adverse.
Minor and guardian : It is not open to a person who takes charge of a minor and protects him to plead that as regards hisproperties he has adverse possession. The law is clear that a person who is either an actual legal guardian or who takes upon him-self the guardianship of a minor cannot be heard to say that his possession must be taken to be adverse to the minor. So long as he acts as guardian or as agent, the law regards him as bailiff or trustee for the minor and would not allow him to set up adverse possession. The position of a lunatic is also similar. The presumption is that such possession is on behalf of the infant or the lunatic and it continues so even after the ward attains majority until something has been done to alter the character of that possession.'
16. In this case, there is evidence to show that the plaintiff and his father lived with defendant's father till the latter died and that he was in possession of the properties of Channanigegowda grand-father of plaintiff. There are registered sale deeds executed in his favour. It is clear that defendant's father was in possession of the properties on behalf of plaintiff till he died. The defendant has not stated that the properties belonged to him or his father, or stated how they belonged to them. None of the properties stood in the Khatha of defendant's father. On the other hand in the case of three out of the four properties, khatha stood in the name of the mother of the plaintiff till it was changed to the name of the defendant's father at the time of the introduction of the Record of Rights within 12 years before suit. It cannot, therefore, be said that the lower Courts had no evidence to support their conclusion that the properties belonged to the plaintiff, and that defendant's father was in possession of the properties only for and on behalf of the plaintiff.
17. There was ample material for both the Courts below for coming to the conclusion that plaintiff is the owner of the suit properties and that he was in possession of them within 12 years before suit. Plaintiff's suit was rightly decreed as prayed for by him and this appeal against the concurrent findings of the Courts below stands dismissed with costs.
18. I agree.
19. Appeal dismissed.