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Gurbux Singh and Ors. Vs. Bishan Dass 'Chela' Kaul Dass and Ors. (09.09.1968 - PHHC) - Court Judgment

LegalCrystal Citation
SubjectTrusts and Societies
CourtPunjab and Haryana High Court
Decided On
Case NumberSecond Appeal No. 1499 of 1963
Judge
Reported inAIR1970P& H182
ActsEvidence Act, 1872 - Sections 63 and 65; Registration Act, 1908 - Sections 60; Religious Endowments Act, 1863 - Sections 14
AppellantGurbux Singh and Ors.
RespondentBishan Dass 'Chela' Kaul Dass and Ors.
Appellant Advocate J.N. Kaushal,; Harbhagwan Singh and; Ashok Bhan, Adv
Respondent Advocate K.C. Puri,; S.K. Goyal,; H.C. Garg,;
DispositionAppeal dismissed
Cases ReferredKaruppanna Gounder v. Kolandaswami Gounder
Excerpt:
- sections 100-a [as inserted by act 22 of 2002], 110 & 104 & letters patent, 1865, clause 10: [dr. b.s. chauhan, cj, l. mohapatra & a.s. naidu, jj] letters patent appeal order of single judge of high court passed while deciding matters filed under order 43, rule1 of c.p.c., - held, after introduction of section 110a in the c.p.c., by 2002 amendment act, no letters patent appeal is maintainable against judgment/order/decree passed by a single judge of a high court. a right of appeal, even though a vested one, can be taken away by law. it is pertinent to note that section 100-a introduced by 2002 amendment of the code starts with a non obstante clause. the purpose of such clause is to give the enacting part of an overriding effect in the case of a conflict with laws mentioned with the.....b.r. tuli, j.1. bishan dass chela haul dass and brahm parkash chela tara dass brought a suit under section 92 of the code of civil procedure against mahant tara dass and others for declaration that the alienation made by tara dass, defendant no. 1, by way of gift in favour of arjan muni, defendant no. 2, of the whole land in village sibian through mutation no. 3987 dated 22-5-1954 was illegal being beyond his powers and was against the purpose of the religious trust of which tara dass defendant was the trustee and was, therefore, void. the plaintiffs also prayed for declaration that the alienation of 96 bighas & 9 biswas of land described in the heading of the plaint made by defendant no. 2, arjan muni, in favour of gurbux singh and others by a registered sale deed dated 22-5-1958 for rs......
Judgment:

B.R. Tuli, J.

1. Bishan Dass Chela Haul Dass and Brahm Parkash Chela Tara Dass brought a suit under Section 92 of the Code of Civil Procedure against Mahant Tara Dass and others for declaration that the alienation made by Tara Dass, defendant No. 1, by way of gift in favour of Arjan Muni, defendant No. 2, of the whole land in village Sibian through Mutation No. 3987 dated 22-5-1954 was illegal being beyond his powers and was against the purpose of the religious trust of which Tara Dass defendant was the trustee and was, therefore, void. The plaintiffs also prayed for declaration that the alienation of 96 bighas & 9 biswas of land described in the heading of the plaint made by defendant No. 2, Arjan Muni, in favour of Gurbux Singh and others by a registered sale deed dated 22-5-1958 for Rs. 20,000/- was beyond the powers of defendant No. 2 and was without legal necessity and consideration and was, therefore, void.

The plaintiffs also prayed for the removal of Shri Tara Dass, defendant No. 1, from the Mahantship of the Dera Udasian Sibian on the ground that the alienations in dispute were acts of mismanagement. The plaintiffs further prayed for possession of the property including the land sold to Gurbux Singh and others. This suit had been filed after obtaining the consent in writing of the Advocate General. On 7-8-1962, the suit was decreed by the trial Court in terms of the prayers made in the plaint except that the decree for possession was not granted. The defendants filed an appeal which was heard by Shri Surinder Singh, Additional District Judge, Bhatinda and was dismissed by his order dated 25-10-1963. This regular second appeal is directed against the decree passed by the learned Additional District Judge, Bhatinda.

2. The facts are that there is a Dera of Udasi Sadhus in village Sibian which was founded by Bawa Amar Dass, grand Guru of Bawa Hira Dass for a religious public purpose. Initially only 12 Gham-aons of land belonged to the Dera but later on Mahant Hira Dass acquired further land for the Dera and dedicated the entire property as a public trust property for religious purposes. There was also some land acquired in village Kotra and by his will dated Har 18, 1988 Bk. =Ist July, 1931 A.D. registered on the next day, he demised the property of the Dera situate at village Kotra in favour of his first Chela Roop Ram giving him all the rights of a proprietor without any restriction as to alienation etc. There is no dispute about this land in this suit. The land situate in village Sibian was given to Mahant Tara Dass who was the second Chela of Mahant Hira Dass for the purposes of management and carrying out the objects of the Dera. By this will, Mahant Tara Dass was appointed Mahant of the Dera after the testator on the basis of his ability and learning and because he was fully conversant with the customs and rituals of the Bhek (sect); he was directed to manage all the property for the benefit and improvement of the Dera and he was not entitled to sell the Dera property for personal use.

The property could be alienated only for the benefit of the Dera and any sale in contravention of this direction was to be void. In case Tara Dass became a person of bad character, the respectables of the Panchayat were given the right to remove him from Mahantship and to appoint Kaul Dass in his place. After the death of Hira Dass, Tara Dass came into possession of the property and through Mutation No. 3987 dated 22-5-1964 he gifted the whole of the land of the Dera Sibian measuring 244 bighas & 10 biswas to his Chela Arjan Muni, defendant No. 2, which was contrary to the directions given in the will of Hira Dass. Arjan Muni in turn sold 96 bighas and 6 biswas of land out of the above land to Gurbux Singh and Jang Singh, sons of Hardit Singh (one half) and Gurbachan Singh and Gurbux Singh, sons of Bhag Singh (the other half) for Rs. 20,000/- by means of a registered sale deed dated 22-5-1958. This sale by Arjan Muni, according to the plaintiffs, was void and did not affect the rights of the Dera.

3. The defendants resisted the suit and stated that no will had been executed by Mahant Hira Dass nor did Bawa Amar Dass found any Dera for religious or other purposes nor did Hira Dass create any religious trust by virtue of his will; Tara Dass had got the land from Hira Dass as a Chela and he had the right to make a gift thereof to Arjan Muni who in turn was within his rights to sell it to Gurbux Singh and others and, as such, the sale in favour of Gurbux Singh and others was valid.

4. On the pleadings of the parties, following issues were framed by the learned trial Court:--

(1) Whether Bishan Dass is the Chela of Kaul DASS and Brahm Parkash Chela of Tara Dass? O.P.

(2) Whether Dera Udasian In village Sibian was founded by Bawa Amar Dass, grand Guru of Hira Dass, for a religious purpose? O.P.

(3) Whether initially only 12 Ghamaons of land was the property of the said Dera? O.P.

(4) Whether Mahant Hira Dass, guru of defendant No. 1, acquired land in village Sibian, Kotra and in tehsil Qasur for the purpose of Dera as religious trust property? O.P.

(5) Whether property at village Bambiha was allotted in lieu of property left in tehsil Qasur? O.P.

(6) Whether Bawa Hira Dass created a religious trust in respect of his entire property? O.P.

(7) Whether Hira Dass on 18-3-1988 Bk. made a will of his property except the property in village Kotra in favour of defendant No. 1 with a condition that the property would remain as a trust property and that Tara Dass would have no power to alienate the same? O.P.

(8) Whether Tara Dass was appointed trustee of the said property? O.P.

(9) Whether Tara Dass was the owner of land measuring 244 bighas and 10 biswas situated in the area of village Sibian and as such the gift of the same made by him in favour of Arjan Muni defendant was valid? O.D.

(10) Whether the alienation of land measuring 96 bighas and 6 biswas out of the said land made by Arjan Muni in favour of defendant No. 3 was void and as such is liable to be set aside? O.D.

(11) Whether Mahant Tara Dass was guilty of mismanagement and liable to be removed from the Mahantship of the said Dera? O.P.

(12) Whether the plaintiffs are entitled to get possession of the said land alienated in favour of defendant No. 3? O.P.

(13) Whether the plaintiffs are grand chelas of Mahant Hira Dass and members of the Bhek and as such are entitled to sue in a representative capacity? O.P.

(14) Whether the suit is within time? O.P.

(15) Whether the suit is properly valued for the purpose of court-fee? O. P.

(16) Whether the plaintiffs should have mentioned in their plaint the property of the said Dera from which Mahant Tara Dass is sought to be removed as a Mahant? If so, what is its effect? O.D.

(16-A) Whether the suit under Section 92 of the Code of Civil Procedure is not maintainable against the alienees of the suit property? O.D, No. 3.

(17) Relief.

The learned trial Court decided all the issues except Nos. 5, 12 and 16-A in favour of the plaintiffs and as a consequence thereof, decreed the suit as prayed for except as regards the restoration of the possession of the suit land.

5. In appeal, before the learned Additional District Judge, the following three points were argued by the learned counsel for the defendants-appellants:--

(1) The copy of the will (P. 2) is not admissible in evidence without proper proof of the execution of the original will;

(2) Even if the execution of the 'Will (P. 2) is proved, there is no public trust created by the said deed; and

(3) Tara Dass was fully competent to gift the property in dispute to Arjan Muni and hence the sale by the latter was valid.

The learned lower appellate Court after an exhaustive study of the case law held that the copy of the will Exhibit P.. 2 being a copy obtained from the office of the Sub-Registrar was admissible in evidence without proving the execution of its original; that the trust in question was a public, religious and a charitable trust and not a private one and Mahant Tara Pass was not competent to gift the land of the Dera in favour of Arjan Muni. As a necessary corollary the sale of the land made by Arjan Muni in favour of Gurbux Singh and others was held to be void and ineffective.

6. In appeal before me, Shri Jagan Nath Kaushal, the learned counsel for the appellants, has argued the same three points. For point No. (1), the learned counsel has relied upon Sections 63, 65, 67, 68 and 72 of the Evidence Act and has emphasised that the secondary evidence can be given of the existence, condition or contents of a document in the cases mentioned in Section 65 of the Evidence Act and that the proof of the execution of the original document is not dispensed with. The counsel submits that the secondary evidence cannot be placed on a higher footing than primary evidence in which case the original document, if produced, has to be proved by evidence by calling the scribe, the executant or the attesting witnesses thereof or by any other mode prescribed by the law. According to the learned counsel, it is only under Section 90 of the Evidence Act that the proof of the execution of the original document purporting or proved to be 30 years old which is produced from any custody which the Court in the particular case considers proper, the due execution of the document is presumed and in no other case. The learned counsel has cited iudg-ments of various High Courts which I proceed to notice.

7. The first judgment cited by the learned counsel is that of Shadi Lal, C. J. and Fforde, J. in Chuha Mal v. Rahini Bakhsh, AIR 1924 Lah. 303, in which it was observed as under:--

'There is. however, no evidence to prove the execution of the original sale deed of which P. 5 is a copy. It is urged that the plaintiff could not prove the execution of a document which was not produced before the Court, but we do not think that the difficulty, if any, should relieve the party from the duty which the law casts upon him. The scribe, to whose evidence our attention has been Invited, only states that the original deed might have been executed by Matu, but that ambiguous statement cannot be treated as proof of the execution of the document.'

The sale-deed in this case does not appear to have been a registered document.

8. Reference is then made to the judgment of Dalai, J., in Sheikh Karim-ullah y. Gudar Koeri, AIR 1925 All. 56, in which the learned Judge held that:--

'a certified copy is sufficient secondary evidence under Section 63 of the existence, conditions and contents of the deed but not of its execution, which must be proved as required under Section 68.'

The document in this case also appears to have been not registered.

9. The next case relied upon by the learned counsel is the judgment of Chaturvedi, J., in Brajraj Singh v. Yogendrapal Singh, AIR 1952 Madh. Bha. 146, in which it was held that:--

'a copy of a will is not a sufficient evidence of the fact of adoption recited in the will. It is necessary for a party to prove the execution of the original. A certified copy is sufficient secondary evidence under Section 63 of the existence, conditions and contents of the deed but not of its execution which must be proved as required under Section 68 of the Evidence Act and that the evidence of the scribe or of an attesting witness was necessary for proving the will and this evidence has been lacking in this case.'

10. In Gulab Chand v. Sheo Karan Lall Seth, AIR 1964 Pat. 45, a Division Bench of the Patna High Court held that the secondary evidence should be given to prove the existence, condition or contents of a document and nothing more beyond that. If a document is alleged to have been signed by any person, the signature must be proved to be in the handwriting of that person.

11. These cases do not relate to copies of registered documents obtained from the office of the Sub-Registrar or Registrar under the Indian Registration Act and, therefore, are not of any help to tho learned counsel for the appellants. tie has, however, cited some judgments relating to registered documents, first of which is the judgment of Jai Lal, J., in Kartar Singh v. Didar Singh, AIR 1934 Lah. 282. in which the learned Judge observed as under:--

'The proviso (to Section 68 of the Indian Evidence Act) recently added makes it unnecessary to call an attesting witness in the case of such a document, except a will, if the document is registered unless its execution is expressly denied by the person by whom it purnorts to have been executed. From this the counsel asks me to infer that according to law as it now exists it is not necessary to prove by any evidence the execution of a registered document. I cannot accede to this suggestion. Section 68 merely provides a special rule relating to the proof of documents required to be attested. This proviso, therefore, is merely an exception to that special rule. It is not intended to override the general provisions of the law as to the proof of documents relied upon by the parties.'

This case related to the original sale-deed and does not take into consideration the provisions of Section 60(2) of the Indian Registration Act and is, therefore, of ao help.

12. The next case relied upon by the learned counsel is a Division Bench judgment of Madras High Court (Subba Rao and Panchapakesa Ayyar JJ.) in Gadey Venkata Ratnam v. Gadey Sita-ramayya, AIR 1950 Mad. 634 and he has drawn my attention to para 6 of the judg-ment in which it was held that in view of the decision of the Privy Council in Basant Singh v. Brijrai Saran Singh, AIR 1935 P.C. 132, 'the view expressed by this Court in Subrahmanya Somayajulu v. Y. Seethayya, AIR 1923 Mad. 1 (FB), that the presumption under Section 90. Evidence Act, with regard to documents 30 years old arises in the case of copies as well as originals, and that if a copy is proved to be a true copy a presumption may be made of the genuineness of the original itself, is no longer good law, though Mr. Somasundaram argues that it is good law. It follows that the defendant must prove the execution of the original will by Venkataratnam in some way known to law, at least by approved circumstantial evidence'. The learned counsel in that case had contended that the lower Court had erred in presuming the execution of the original will by Venkataratnam in a sound and disposing state of mind from the production of a copy Exhibit D. 8 more than 30 years old.

13. The next case relied upon by the learned counsel is Ketharaju Rajeshwari v. Kanthamraju Varalakshmamma, AIR 1964 Andh. Pra. 284, the head-note of which is as under:--

'Mere production of a certified copy of a document more than thirty years old is not sufficient to raise a presumption under Section 90 of the Evidence Act regarding its genuineness or execution although the certified copy may be used to prove the contents of the document.

Where the document is registered then although its mere registration may not by itself constitute sufficient proof of the execution of the document, in view of Sections 57 find 60 of the Registration Act the certified copy and the certificate issu-ed by the Registrar, would constitute sufficient evidence to prove the contents of the document 'and be also to some extent an evidence of the execution of the document'. It may be that proof of admission of execution before the Registrar may not satisfy completely the requirements of Section 67 of the Evidence Act which requires that the signature of the executant must be proved to be in his handwriting. 'But it cannot be argued that admission of signature before the Registrar cannot in any case form an evidence of the execution of the document'. If apart from the admission incorporated in the certificate of the Registrar under Section 60(2) of the Registration Act, there is other evidence to corroborate the admission, the execution of the document can be considered as proved.'

The sentences underlined (here in ' ') by me clearly show that the certificate Issued by the Registrar is to some extent an evidence of the execution of the document and that the admission of signature before the Registrar by the executant can form an evidence of the execution of the document. This judgment, therefore, does not help the learned counsel for the appellants.

14. The judgment of G. C. Das, J., in Subudhi Padhan v. Raghu Bhuvan, AIR 1962 Orissa 40, has then been referred to by the learned counsel in which the learned Judge observed as under in para 8 of the report:--

'By reason of the admission made by the first defendant of the genuineness of the certified copy within the meaning of Section 65(b) of the Evidence Act, the certified copy became admissible in evidence under Section 65. By reason of Section 57(5) of the Registration Act, the said copy becomes admissible for the purpose of proving the contents of the original document itself. The certified copy is also admissible under Section 65(e) of the Evidence Act. Secondary evidence may be given if the original is a public document within the meaning of Section 74. The definition of a public 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 ail 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 under Section 65 (e) and (f) of the Evidence Act. The certified copy is therefore secondary evidence of the public lecord 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. The certified copy of the suit mortgage deed is admissible in evidence. But this will not dispense with the proof of the execution of the same. Assuming this decision to be correct, which I have no doubt that it is so. the certified copy of the mortgage-bond dated March 26, 1907 may be admissible in evidence as secondary evidence but that does not dispense with the proof of actual execution.'

Reliance in that case was placed on a judgment of the Andhra Pradesh High Court in the case of Padmanabhachari Annamraju 'Sitapathirao, (1954) 2 Mad. L. J. (Andhra) 75.

15. The learned counsel has then brought to my notice a Division Beach judgment of the Bombay High Court (Gajendragadkar and Shah, JJ.) in Kashi-bai Martand v. Vinayak Ganesh, AIR 1955 Bom. 65, in which it was held that a copy of a document of mortgage which has been admitted under Section 65 of the Evidence Act as secondary evidence and is produced from proper custody and is over thirty years old, the signatures authenticating the copy may be presumed to be genuine under Section 90. Even so, under Section 90, when a copy is produced, the presumption cannot he made that the signature, handwriting, execution or attestation of the original document were In order. This part of the decision of the learned Judges does not concern us but their Lordships in para 7 of the report held as under:--

'In the case of a certified copy of a registered document, however, the party would be justified in contending that under the provisions of Section 60, Sub-section (2), Registration Act, it would be competent to the Court to hold that the execution of the document had been admitted by the executant before the Sub-Registrar. That is the endorsement, which the certified copy produced bears and the said endorsement must be given its due legal effect having regard to the provisions of Section 60, Sub-section (2).'

This observation of the learned Judges goes against the contention of the learned counsel for the appellants and helps the other side.

16. The last authority relied upon by the learned counsel is Naresh Chandra Bose v. State of West Bengal, AIR 1955 Cal. 398, in which it was held that by simply -producing the registers of the Registration Office without calling for the original documents from the custody of the persons in whose favour they are executed, the documents cannot be admitted in evidence and that the signatures of the executant of the document must be proved. Mere production of a document is not by itself sufficient proof of its execution and unless there is formal proof of its execution, its admission in evidence is improper and illegal

17. It will be observed that in some of the judgments cited by the learned counsel for the appellants, it has been held that the certificate of the Registrar, on a registered deed is some proof of execution of the document and it cannot be said that by the certificate of the Registrar, the document cannot be said to have been proved at all. There are two Division Bench judgments of this Court which are directly against the contention of the learned counsel for the appellants. The first is the judgment of Bishan Narain, and Chopra, JJ. in Mehtab Singh v. Amrik Singh, ILR (1957) Punj. 418= (AIR 1957 Punj. 146), and the relevant observation which are at pages 422-423 (of ILR Punj) = (at p. 148 of AIR) are as under:--

'I shall first deal with the point relating to the extcution of the will of 1901. The original will has not been produced. The lower appellate Court has held that it was in possession of Mst. Bhagwani and is being withheld by the plaintiff, and that in any case it is lost and, therefore, secondary evidence is admissible. The learned counsel for the appellant has not contested the correctness of this finding. The defendants have produced a certified copy of the will which was obtained from the Registration Office. This will is more than 30 years old but production of a copy cannot be considered to be sufficient to justify the presumption of due execution of the original will under the provisions of Section 90, Indian Evidence Act (AIR 1935 PC 132). It is, therefore, necessary to see in the present case if there is any evidence on the record to justify the lower Courts' finding that the execution of the original will has been proved. The copy produced is a certified copy of the original will. It has been produced by the registration clerk from his office. It bears the endorsement of the Sub-Registrar which records that Jawahar Singh, whom he personally knew, admitted before him that he had written and completed the will and that the thumb marked it in his presence. This endorsement under Section 60 of the Registration Act is admissible for the purposes of proving that the executant admitted the execution of the will that was produced before him The will was made about 50 years ago and I would consider this endorsement as sufficinent evidence in support of the finding that Jawahar Singh in fact executed it. In this case, however, there is the statement of Bishan Das, Sub-Registrar who has deposed in Court that he had made the endorsement on the will, and that he knew Jawahar Singh previously who had admitted its execution before him. He has also stated on oath that Jawahar Singh was in a disposing mind and the will had been read out to him. This evidence to my mind conclusively proves execution of the will and disposing mind of the testator. The lower Courts have also come to the same conclusion. The will is a natural one and is attested by two witnesses. There is nothing suspicious about it. It has been acted upon and the widows took possession of the property in accordance with the directions given in the will. It was only in 1937 that Mst. Bhagwan Kaur decided to ignore it. I am, therefore, clear in my mind that Jawahar Singh did in fact execute the will and got it registered in 1901.'

It is true that in this case Bishan Das, Sub-Registrar had been produced as a witness and he deposed that the certificate made by him was correct.

18. The second judgment is by Daya Krishan Mahajan and Prem Chand Pandit, JJ., in Arya Pritinidhi Sabha, Punjab v. Dev Raj, ILR (1962) 2 Punj. 915 = (AIR 1963 Punj. 208), in which after consider-ing the case-law on the subject, the learned Judges held:--

'So far as the execution of the original will is concerned, it is proved by the endorsement of the Registrar. That endorsement leaves no manner of doubt that the will was executed by Girdhari Lal to whom it was read over and who admitted its contents to be correct. Therefore, a certified copy of that will would be admissible in evidence in view of the fact that the original is not forthcoming and is being withheld by the respondents'.

19. The learned counsel for the respondents has also relied upon the following observations of the Privy Council in M. Ihtishan Ali v. Jamna Prasad, AIR 1922 PC 56 at page 58:--

'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. There is no doupt 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.'

From this observation of their Lordships of the Privy Council, the learned counsel submits that in the instant case, the will was duly registered by the Registrar and it should be held that it was duly registered by that officer after satisfying himself that the person presenting and admitting its execution was the person who had executed it.

20. The next case relied upon by the learned counsel for the respondents is the Division Bench judgment of Lahore High Court (Fforde and Bhide, JJ.) in Piara v. Fattu, AIR 1929 Lah. 711, the head-note of which states:--

'The registration of a document 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 the 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. Therefore the certificate endorsed on the sale deed by the Registering officer under Section 60 is a relevant piece of evidence for proving its execution.'

In view of this decision, the learned counsel submits that the certificate by the Registering Officer is a relevant piece of evidence for proving the execution of the will in the instant case.

21. Lokur, J. in Pandappa Mahaling-appa v. Shivalingappa Murteppa, AIR 1946 Bom. 193, held:--

'It is true that when a certified copy Is allowed to be produced under Section 65, no presumption can be drawn under Section 90 as to the genuineness or execution of the original and the Court should not admit a document merely on the ground that it is a certified copy of a document more than thirty years old and should call for proof of the execution of the document. But when the document is registered, such proof is to be found in the certified copy itself. The deed being registered, the certified copy bears the necessary endorsements of the Sub-Registrar before whom the executant acknowledged the execution and was duly identified. Sections 58, 59 and 60, Registration Act, provide that the facts mentioned in the endorsements may be proved by those endorsements, provided the provisions of Section 60 have been complied with.

Hence, where a registered mortgage-deed more than thirty years old is lost, the certified copy produced under Section 65 is admissible in evidence.'

22. A Division Bench of the Mysore High Court (Balakrishnaiya and Mallappa, JJ.) in Hutchegowda v. Chennige-gowda, AIR 1953 Mys. 49, held after discussing the case-law that evidence that a document was duly registered is some evidence or its execution by the person by whom it purports to have been executed and that the lower appellate Court was right in regarding the copies of the two registered documents as some evidence of the genuineness of their originals.

23. The last judgment to be noticed is by Govinda Menon, J., in Karuppanna Gounder v. Kolandaswami Gounder, AIR 1954 Mad. 486, the head-note of which is in these words:--

'When once the case for the introduction of secondary evidence is made out, certified copy got from the Registrar's office can be admitted under Section 57, Sub-section (5) of the Registration Act, without other proof than the Registrar's certificate of the correctness of the copy and shall be taken as a true copy. As the certified copy obtained from a Registrar's office is admissible under Section 57(5), Registration Act, for the purpose of proving the contents of the original documents, the mere production of such copy, without any further oral evidence to support it, would be enough to show what the original document contained.'

24. The judgments relied upon by the learned counsel for the respondents certainly support his contention that there was no necessity to produce any evidence to prove the execution of the will by Mahant Hira Dass and that the certificate of the Registering Officer on the will was sufficient proof of the execution of the will and its contents. The learned counsel for the respondents has then submitted that Bihan Dass, appellant, appeared as P.W. 6 and stated in his examination-in-chief that Mahant Hira Dass executed a will in favour of Tara Dass and through that will, Tara Dass had been made the Manager of the property. The witness stated that he was living in those days in the Dera. In cross-examination, he stated that Hira Dass had acquired all the property for the purposes of the Dera and the portion of the will (P. 2) marked 'A' to 'A' had been correctly recorded. This evidence of P.W. 6 proves the execution of the will, copy of which is Exhibit P. 2. Tara Dass, defendant, came in the witness-box as D. W. 8 and stated that he had got the land from his Guru, Hira Dass and that he did not know whether Hira Dass had executed any will in his favour. He then denied that Hira Dass had executed any will in his favour and stated that Hira Dass had given him this property in the capacity of a Chela. He had mortgaged a part of it because he needed money for the purposes of the Dera.

Apart from the evidence of Bishan Dass, there is circumstantial evidence to show that the will, copy of which is Exhibit P. 2, had been executed by Mahant Hira Dass. It had been held in AIR 1950 Mad. 634, that the execution of the original will car. also be proved by approved circumstantial evidence. The strong circumstances leading to the conclusion in favour of the execution of the will are first that Roop Ram took possession of the land in village Kotra as a full owner without any restriction on his right to alienate which was only in accordance with the will. The second circumstance is that Tara Dass mortgaged a part of the land for the purposes of the Dera and the third circumstance is that his assertion that Hira Dass had given him land as a Chela is not proved by any evidence of mutation etc. If Hira Dass had given him the land as a Chela in his life-time. Tara Dass would certainly have completed his title by some deed or mutation recorded in the revenue records. No such evidence has been produced.

25. For the reasons given above, I hold that the copy of the will (Exhibit P. 2) has been properly admitted into evidence.

26. On the second point, the contents of the will make it abundantly clear that Hira Dass had created a public trust for religious purposes with regard to the property in dispute. The Dera had been founded by Bawa Amar Dass, and Tara Dass had been made the Manager of the Dera along with its properties for carrying out the objects of the Dera and effecting improvements therein. He had been selected because of his ability and learning and in addition because he was practising as a Hakim. The land which had been given to Roop Ram in village Kotra had been given in full ownership whereas the land in village Sibian was only put under management of Mahant Tara Dass and the Panchayat was given the right to remove him and appoint Kaul Dass in case he became a bad character. He could not alienate the property of the Dera except for the purposes of the Dera itself. It is thus clear that a public trust for religious purposes had been created by this will by Mahant Hira Dass. The second point is also decided against the defendants-appellants,

27. In view of the contents of the will, the third point has also to be decided against the defendants-appellants. According to the will, Tara Dass was not competent to alienate the property of the trust except for the purposes of the trust and he could certainly not make a gift thereof in favour of his Chela Arjan Muni.

28. For the reasons given above, this appeal fails and is dismissed with costs.


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