1. This is a defendant's appeal arising out of a suit for recovery of possession by avoidance of a sale deed of 1913. This deed was executed for a sum of Rs. 169 by one Mt. Poona in order to pay off a prior mortgage dated 4th December 1909 executed by her in favour of Mendai, the defendant's father. The property transferred was what had been inherited by her from her mother. It was therefore a Hindu woman's limited estate in her possession, and no valid transfer could have been made without legal necessity. The recital in the earlier mortgage deed as shown by a certified copy was to the effect that the money had been borrowed for barkhi, that is the first annual death ceremony of her mother, Mt. Ram Kali. There was also oral evidence to the same effect. The present plaintiffs have after the death of Mt. Poona purchased this very property, viz., one pie share from her sons who became the heirs to the estate.
2. The lower appellate Court has distinctly found that the sale deed of 1913 was for legal necessity, inasmuch as it was proved that the money had been raised to pay off the prior mortgage deed under which money had been borrowed for the barkhi ceremony of her mother. The learned Judge has pointed out that according to the prevalent belief it would have been improper for Mt. Poona to perform the death ceremony of her mother out of her own money or out of the income of her property, as it is considered a sin for a mother to be benefited by the income of her daughter, and that it was on account of such a sentiment that Mt. Poona must have raised money out of the property left by her mother Mt. Ram Kali to perform the barkhi ceremony of the latter. The performance of such a ceremony would be a duty on the person who inherits the estate of the deceased and the expenses could be met out of such property. The original mortgage deed of 1909 was not produced and apparently there was no definite proof of its loss. The lower appellate Court, however, thought that the loss of the original is required to be proved only if the document is being enforced in a suit and that there is no such requisite if the copy is merely produced as a piece of evidence. It would be difficult to accept this view of the law, as under Section 65, Evidence Act, no secondary evidence can be admitted for any purpose unless it is shown that the original has been lost or is not procurable. But the learned Judge has based his finding, independently of the document, on the oral evidence produced by the parties. His finding therefore must be accepted as a finding of fact. The appeal is accordingly dismissed but without any order as to costs as no one appears for the respondent.