1. This is a plaintiff's appeal arising out of a suit for pre-emption against a number of defendants, who have purchased shares in village Char under a deed dated 31st January 1925. The claim was mainly resisted on the strength of two deeds of gift executed by one Ram Nath, in favour of the defendant separately on 4th January 1926 and 1st March 1927. The first document was executed before the institution of the suit, but the second one was executed during its pendency. The plaintiff challenged the validity of these two gifts on the ground that the first one was fictitious, void and ineffectual, and that possession had not been delivered to the donees, and that the second one was in reality a sale deed and not a deed of gift. The learned Subordinate Judge has decided these questions of fact against the plaintiff, and the findings have been arrived at after an elaborate consideration of the evidence produced by both the parties. We agree with his conclusions, and do not feel inclined to disturb his findings of fact. He has, however, dismissed the plaintiff's suit on the ground that:
there is no proof that the property transferred under the gifts is joint and also ancestral and as such Ham Nath could not have made the gift. Secondly the transaction is voidable and not void. So long as the deed remains unchallenged, the donees possess a good title.
2. As regards the second ground relied upon by him, he was clearly in error in view of the opinion expressed by this Court in the case of Govind Singh v. Manglu : AIR1929All703 as well as Kundan Gir v. Jaswant Singh : AIR1929All765 .
3. The main point to consider is whether the defendants have acquired an indefeasible right by virtue of these gifts within the meaning of Section 20, Agra Pre-emption Act.
4. It is an admitted fact that the donor Ram Nath has a brother Bidhata and a minor son alive. They all live in one and the same house, though the plaintiff states that Bidhata has separate cultivation (p. 18).
5. In order to show that there was a nucleus of ancestral property in the hands of Ram Nath the plaintiff tendered a certified copy of a sale deed (Ex. 6, paper No. 41-C) dated 11th December 1875, purporting to transfer a one anna share in mauza Char in favour of Sanwale, son of Gauri Shankar, resident of that village. This document was not admitted by the counsel for the defendants, and apparently no notice was served under Section 66 by the plaintiff on Ram Nath to produce the original. It is also an unfortunate fact that the plaintiff's vakil in the Court below did not put any question to Ram Nath with regard to this deed when he was in the witness-box; nor was he at all questioned whether any property in his possession was ancestral or joint family property. The matter was left in the air by counsel for both the parties. No attempt was made on behalf of the plaintiff to prove that the original of this sale deed of 1875 had been lost or destroyed, or that it wag in the possession of any of the defendants. But it is a fact that the Court below admitted it in evidence and marked it as Ex. 6 on 19th October 1927, while the plaintiff's oral evidence was being tendered.
6. It seems to us that before any presumption as to the genuineness of the original can be made under Section 90, it is incumbent on the party trying to rely upon the document to lay the foundation by leading secondary evidence under Section 65, Evidence Act: vide Ishri Prasad Singh v. Lalli Jas Kunwar and Lalli Jas Kunwar v. Ishri Prasad Singh  22 All. 294 and Dwarka Singh v. Ramanand Upadhia  41 All. 592. Their Lordships of the Privy Council have frequently emphasized that before secondary evidence of a document can be given its loss, destruction or the difficulty to produce it should be established: vide Bhubaneswari Debi v. Harisaran Surma Moitra  6 Cal. 720 and Krishna Kishori v. Kishori Lal Roy  14 Cal. 486 at p. 490. Section 64, Evidence Act, itself clearly lays down that documents must be proved by primary evidence except in the cases mentioned thereafter.
7. Under-Section 65, Sub-clause (c). where the party offering evidence of its contents cannot, for any other reason not arising from his own default or neglect, produce it in reasonable time, secondary evidence may be admitted. The learned advocate for the respondents contends that the word 'produce' in this section indicates that it was to be produced out of the custody of the party concerned. We do not think that this narrow construction should be necessarily put on this section. The word 'produce' only means ''procure the production of or give it in evidence'. The question whether the non-production is due to any other sufficient reason not arising from his own default or neglect is one of fact, and depends mainly on the discretion of the Court. We have the fact that the learned Subordinate Judge felt himself satisfied, although he has not given any reason in the judgment, that the copy should be admitted in evidence and marked as an exhibit. We are therefore reluctant to interfere with the discretion exercised by the Court below.
8. But it seems to us that even assuming that the certified copy could be admitted as secondary evidence, and also that the presumption under Section 90 has been legitimately made, it does not follow that the identity of the transferee with the father of Ram Nath is also to be necessarily presumed.
9. But in this case it appears not only that Sanwale was the name of Ram Nath's father, but that the name of Ram Nath's grandfather was Gauri Shankar and they were residents of the same village. The sale deed of 1875 shows that the name of the father of the transferee Sanwale also was Gauri Shankar and they were residents of the same village. The property transferred under the deed was a one anna share, and just over a half anna share is now owned by Ram Nath. Indeed, the share now possessed by Ram Nath is situated in a patti called after Sanwale (p. 54). Under Section 3, Evidence Act, a fact is said to be proved when the Court either believes it to exist or considers its existence so probable that a prudent man ought under the circumstances of the particular case to act on the supposition that it exists. We think that although there is no direct oral evidence to establish the identity of Sanwale, the circumstances of this case are such that a prudent man ought to act upon the supposition of such identity. It would, therefore, follow that Ram Nath's father did possess a share in this village.
10. Even apart from this we are of opinion that the burden of establishing that the defendants have acquired an indefeasible right so as to defeat the claim for preemption lies upon the defendants. All that they have succeeded in showing is that Ram Nath has made a gift of a portion of the share held by him in their favour that he has delivered possession to them. On the one hand the plaintiff merely shows that Ram Nath has a brother and a son alive and that there are some properties, a house and zamindari share in existence. On the other hand, the defendants only show that Ram Nath professing to own the share has made the transfer, but they have not shown that he had acquired this property himself, or that it was necessarily his self-acquired property. There is in our opinion an initial presumption that Ram Nath, his brother and his sons are members of a joint Hindu family: but there is no presumption that family owns a joint family property in the absence of any proof of a nucleus: vide Ram Kishan Das v. Tanda Mal  33 All. 677. At the same time it would seem that there can be no presumption that any property which is in existence and is in the possession of one member of this joint family, is necessarily his separate property, or is his self-acquisition. The party who wishes to make out that it is his separate property over which he had an absolute power of disposal, should establish that case. No presumption can be drawn in his favour: per Richards C.J., in Kundun Lal v, Shankar Lal  35 All. 564.
11. In the present case we, however, think that there are sufficient materials on which the presumption could be made that the property was not the separate property 'of Ram Nath. We not only have a joint family consisting of two brothers and the children of at least one of them, but their shares are part of one patti, which is called patti Sanwale. The patti itself is named after the father of Ram Nath and Bidhata, and we are entitled to infer from this fact that it existed at the time when Sanwale was alive, that is to say, that the property has devolved upon Ram Nath and Bidhata from the time of Sanwale. There is admittedly a house in which these three persons are living jointly. There is no evidence that they are separate in mess, although there is the statement of the plaintiff that there is separate cultivation. Having regard to all these circumstances we are of opinion that the defendants have failed to establish that the gift of the share taken from Ram Nath has conferred upon them an indefeasible right which cannot be challenged by the other members of his family.
12. We would accordingly allow this appeal, set aside the decree of the Court below and decree the plaintiff's claim for pre-emption on payment of Rs. 6,000 within two months from this date. In case of such payment, the plaintiff will be entitled to his costs in both Courts including in this Court fees on the higher scale. In case of default of payment within the time allowed, the plaintiff's suit would stand dismissed with costs in both Courts including in this Court fees on the higher scale.