1 to 9. xxxxxxxx
10. The respondents relied on certified copies of four title deeds in respect of the suit property-bearing house No. 74. Three of these four documents were produced with the list Ex. 83. The first is a certified copy of a mortgage deed executed on Ist April 1902 by Laxmidas predecessor-in-title of the plaintiff and Hiralal who was the owner of the adjacent house No. 75 at the relevant point of time. The second is the rent note executed by Chhaganlal Laxmidas and Hiralal in favour of the mortgage on 2nd August 1905. The third document is a certified copy of a mortgage deed executed by Chhaganlal Laxmidas, the father of the plaintiff, and one Hirabhai Narottam on 2nd April 1907. The fourth is the sale-deed executed by Makanbhai in favour of his wife Diwaliben on 23rd June 1932 produced with list Ex. 39. The original documents are not forthcoming on the plea that they are lost. The defendants, therefore, sought to introduce certified copies of these four registered documents in evidence but the plaintiff successfully thwarted their attempt in the trial court. The trial court came to the conclusion that Section 90 of the Evidence Act cannot be pressed hi service for into these certified copies In evidence as the statutory presumption arising under Section 90 can be availed of only If the original documents are produced on record. This view of the learned trial judge seems to be correct on a plain reading of Section 90, which provides that where any document, purporting or proved to be 80 years old, is produced from any custody which the court in the particular case oonsf&6 proper, the court may presume that the signature and every other part of such document winch 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 at by the person by whom it purports to be executed and attested The words 'any document' and 'is produced' used in Section 90 indicate that reference is to the original document and -not to the certified copy of that document. The Supreme Court in Harihar Prasad Singh v. Must of Munsh Nath Prasad, 1956 SCR I : (AIR 1956 SC ,905) held that there could be no presumption of genuineness in favour of certified copies of documents under Section 90 of the Evidence Act. This view was reiterated by the Supreme Court in Tilak Chand Kureel v. Bhim Rai, (1969) 8 SCC W7, in the follow to words
'It was said that the presumption under Section 90 of the Evidence Act was not applicable as copies were produced and not the original documents. In our opinion this argument is well founded. In Basant v.'Brqlal it was held by the Privy Council that the presumption enacted in Section 90 of the Evidence Act ran be applied only with regard to original documents and not copies thereof. The same view was taken by this court in Harihar Prasad Singh v. Must. Of Munshi Nath Prasad (supra).'
Therefore, the view that the certified copies of the four documents in r aspect of the suit property cannot be admissible in evidence under Section 90 of the Evidence Act cannot be assailed.
11. The learned first appellate judge hag, however, come to the conclusion this the aforesaid certified copies of old title deeds would be admissible in evidence as secondary evidence as the original We deeds were lost. This view of, the law. 1st appellate judge was seriously challenge A Wore me by Mr. Raju, the learned advocate for, the appellant plaintiff In order to decide whether the view taken by the first appellate judge is correct, it is necessary to refer to the relevent provisions of the Evidence Act as well as the Registration Act Section 61 of the Evidence Act lays dowzi that the contents of documents may be proved either by primary or by secondary evidence, primary evidence means the document itself whereas secondary evidence means and includes certified copies given under the provisions mentioned In the Act or copies made from or compared with the original. Section 64 states that the documents must be proved by primary evidence except In cases mentioned in the next following sections. The conjoint reading of Sections 61 and 64 is that ordinarily the contents of a document must be proved by the production of the origind document except iii cases mentioned in the sections immediately favouing According to Section 65, secondary evidence may be given of the existence, condition or contents of a document, if (a) the original is shown or appears to be in the possession or power of person against whom the document is sought to be proved or (b) the original has been destroyed or lost, or (c) when 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, or (d) the original is the document of which a certified copy is permitted by this Act, or (a) by any other law in force in India to be given in evidence. Section, 66, however, enjoins upon the party seeking to tender secondary evidence to serve the party in whose possession the original document is or appears to be, with a notice before tauderhv the secondary evidence. However, in where the adverse party is expected to know from the facts of the case that the document is required to be produced and fails to pro. duce the same or in cases which the court considers appropriate, the non_service of notice shall not preclude the party trom leading secondary evidence. So also whm the loss of the document is admitted by the adverse party or agent, there would be no need to serve a notice before tenderh secondary evidence. Now in the present case, the case of the plaintiff is that he hu not produced the original title deeds in res. pea of his property because they am nd traced and are lost -In the there can be no room for doubt that respondents were entitled in law to the sesecondary evidence ragarding the contoft of the old title deeds in raged of the dbF puted property. Sec,don 89 .1. therefam I provides that the court ' presume that every document, call ail Jor Abd not Vodwi4l after notice to produce, was attested, stamped and executed in the manner required by law. The contention of Mr. Raju, however, was that Section 89 would have no application because in the instant case admittedly the defendants had not served the plaintiff with a-_ notice for production of the original title deeds in- r espect of house No. 74. In support of his -contention he invited my attention to the case of Suit. Mira Bai v. jai Singh AIR 1971 Rai SM. In that case it was held that the language of Section 89 clearly indicates that its operation is restricted to cases where a notice to produce a document has been given to the opposite party. Referring to the facts of that case, Lodha, J. observed that 'admittedly the defendants were not given notice to produce the docuIment and, therefore, Section 89 cannot come to the plaintiffs aid.- In my opinion, this decision has no application to the facts of present case. In the instant case~ once the plaintiff excuses himself from the production of the original documents on the pka that they are not traced or are lost, the question of giving notice for production does not arise. If the plaintiff states before the court, as in the present case that the original title deeds are lost and he'is not in a position to produce the same. it would be futile to insist on a notice of production to bring into play Section 89 of the Evidence Act. 1, therefore, do not see any substance in the objection raised before me by Mr. Raju, the learned advocate for the appellant plaintiff, as regards the applicability of Section 89 of the Evidence Act.
12. Reference may now be made to a few relevant provisions of the Registration Act, which bear on the question of admission of the aforesaid certified copies of the relevant title deeds Section 17 of the Act provides that non-testamentary instruments which purport or operate to create, declare, assign, limit, or extinguish, whether in present air in future. any right, title or interest, whether vested or contingent, of the value of one hundred rupees and upwards to or in immoveable property, shall be compulsorily registrable. Mortgage deeds and lessees of is immoveable property from year to year or for any term exceeding one year or reserving a yearly rent would require registration by virtue of Section 17 of the said AcL Section 18 lays down that instruments (other than instruments of gift and wills) which Purport as operate to create, declare, assign, limit or extinguish, whether in present or in future, any right, title or interest, whether vested or contingent, of a value ka than one hundred rupees, to or in immoveable property, may be registered. Therefore, according to this provision, if the value of the immoveable property in respect of which the instrument is executed, is less than one hundred rupees, registration of the do6ument is optional. Section 21 next provides that no non-testamentary document relating to immoveable property shall be accepted for registration unless it contains a description of such property sufficient to identity the same. Reference may now be made to sub-section (1) of Section 51 which Indicates the register of books to be kept in the several offices of registering officers, and book No. I register of non-testamentary documents relating to immoveable property, is one of them. According to sub-section (2) of See 51, in book No. I shall be entered or Mod all documents or memoranda registered under Sections 17, 18 and 89 which relate to immoveable property and are not wills. Then comes the last relevant provision contained in, Section 57, sub-section (1) whereof provides that subject to the previous payment of the fees payable in that behalf, copies of entries in book No. I shall be given to all persons applying for the same. Sub-sec . (5) of Section 57 next provides that all copies given under this section shall be signed and sealed by the registering officer, and shall be admissible tm the purpose of proving the contents of the original documents. It becomes immediately clear on a plain reading of this group of sections that a certified copy of an entry of a document made in book No. I maintained tinder the provisions of the Registration Act shall be admissible in evidence for the purpose of proving the contents of the original document. It is indeed true that the party relying on the certified copy would be entitled to tender it in evidence only if the adversary party refuses to produce the original document after having been called upon to do so.
13. The above discussion establishes that the respondents were obliged to produce the certified copies of the title deeds in respect of the property owned by the plaintiff because the latter refused to produce the original documents on the plea that they were lost. Item can be no doubt that the original documents would be in possession of the plaintiff unless they are lost or destroyed. Therefore ' in any view of the matter, on the failure of the plaintiff to produce the original title deeds, the defendants were enfilled to lead secondary evidence under the provisions of Sections 65 and 66 of the Evidence Act. Section 89 entitles the court to presume that the document was attested stamped and executed in the manner required by law. Section 57(5) of the Registration Act next provides that all copies of documents given under sub-see. (1) shall be admissible for the purpose of proving the contents of the original document. A combined reading of these provisions leaves no doubt in my mind that once it is established that the original title deeds are lost or destroyed. Or are being deliberately withheld by the party against whom they are sought to be used, secondary evidence in respect of those title deeds can be tendered and if the secondary evidence happens to be certified copies of registered documents entered in book No. 1, the contents thereof can be read in evidence by virtue of sub-section (5) of, Section 57 of the Registration Act. I am, therefore, of the opinion that the learned first appellate judge was right in taking the view that the certified copies of the aforesaid old title deeds in respect of the plaintiff's house No. 74 were admissible in evidence and the learned trial judge had committed an error in refusing to admit them in evidence.
14. In Vishwanath Vithoba v. Genu Kisan : AIR1956Bom555 , a similar question arose for consideration. In that case, the plaintiff had produced certified copies of three sale deeds at Exs. 75, 76 and 77. It was urged that these copies of the sale deeds were not admissible in evidence. The plaintiff had deposed that the original sale deeds were not in his possession and were with the first defendant. No notice for the production of the original sale deeds was given by the plaintiff to the first defendant. it was, therefore, urged that the certified . copies could not be admitted in evidence as no notice for production of the originals was received by the first defendant as required by clause (a) of See. 65, Evidence Act. The proviso to Section 66, however, was resorted to dispense with such notice because as observed by the Privy Council in Surendra. Krishna v. Mirza Mabamed Syed Ali , the only purpose of a notice under Sections 65 and 66, Evidence Act is to give the party an opportunity of producing the original document to secure, if he pleases, the best evidence of its contents. In the, background of these facts it was observed that secondary evidence is admissible when the party offering evidence of its contents cannot, for any reason not arising from his own default or neglect', produce the original document in reasonable time and under Section 66 the court has absolute power, when it thinks fit, to dispense with the notice. This decision of the Division Bench of the Bombay High Court, which is binding on me, clearly supports the view that I have taken on an analysis of the relevant provisions of the Evidence Act and the Registration Act. For these reasons I think that the contention of Mr. Raju that the certified copies of the old title deeds in respect of the suit property, i. e. house no. 74, could. Not be admitted in evidence, is not well founded.
xx xx xx xx
15. Appeal dismissed.