1. These appeals arise out of two suits instituted by the Secretary of State for India for the recovery of property alleged to have been dedicated for the maintenance of a water pandal and chatram at Ramnad for the purpose of carrying out the public trust connected therewith, and for mesne profits. Original Suit No. 6 of 1918 relates to 17 shops and vacant sites in the Ramnad Town, and Original suit No. 14 of 1917 relates to six pangus or shares of land in Dharmasanam Sodhukudi village. It is alleged in the plaint that these properties were dedicated to charity under a padhathi (a word which may be translated as a manual of instructions) written by Dhanushkodi Nayak in 1831 which contained bequests of a testamentary nature. The original padhathi or Will of Dhanushkodi Nayak, which was in Tamil, is not forthcoming, at the present date. The plaintiff attempted to prove the terms of it by secondary evidence consisting of a judgment of the Civil Judge of Madura in Original Suit No. 3 of 1863, which contains a translation of the padhathi executed by Dhanushkodi Nayak to his first wife.
2. The first question we have to decide is, whether this document is admissible in evidence as secondary evidence under Section 63 of the Evidence Act of the contents of the Will. It does not conform to the definition of secondary evidence, as it is not a copy made from or compared with the original. Nor is it an oral account of the contents of the original given by some person who has seen the original. The definition in Section 63 is exhaustive, as the section declares that secondary evidence 'means and includes'; and then follow the five kinds of secondary evidence. In Ambalavana Pandara Sannadhi v. Kuppachi Janaki Ammal 26 Ind. Cas. 618 . L.W. 877 and Ambalavana Pandarasannadhi v. Kuppachi Janaki Ammal 4 L.W. 331 the judgment of a Bench which disposed of a letters Patent Appeal from the former decision, it was held that the translation of a document was not secondary evidence of the contents of the document. I see no reason to differ from that ruling. Nor is the statement in the judgment (Exhibit A) evidence of the fact of the dedication when the judgment is not one between the parties to this suit or their representatives-in-interest. It was so held recently by the Rull Bench in Tripurana Seethapati Rao Dora v. Rokkam Venkanna Dora 66 Ind. Cas. 280 : A.I.R (1922) M 71 .
3. The only other evidence as to dedication is contained in the oral evidence of plaintiff's witnesses Nos. a and 2. The first plaintiff's witness is a law agent. He says he saw the document about 40 years ago when it was in the possession of the Zemindari Tahsildar, Chinniah Naik, who appears to have been the grand-daughter's husband of the testator. This witness did not explain the circumstances under which he was permitted to see that document and his evidence as to its contents, as observed by the learned District Judge, is not accurate and the details given by him are opposed to the facts alleged in the plaint and the statements in the Inam register (Exhibit VIII). The second witness for plaintiff' says he saw the original document about 30 years ago. The evidence that he gives is not evidence of what he recollects the document to have contained; but it is directed rather to the facts connected with the administration of the water pandal and chatram charities. The other three witnesses examined on plaintiff's side have no knowledge of the creation of a trust. I do not consider this oral evidence sufficient to establish the fact of an endowment of the suit property as a public trust under the Will. Nor are the terms of the trust to be gathered from the oral evidence. The District Judge treated the plaintiff's witnesses Nos. 1 and 3 as not reliable for proving the contents of the Will.
4. sThe next piece of evidence to which our attention was directed is (Exhibit B), a compromise decree in a suit between one of the wives of Dhanushkodi Nayak and his daughter. Exhibit B is only evidence as to the arrangement made between the parties when they compromised the litigation connected with Original Suit No. 15 of 1872, and, as to the particular items which were connected with their dispute, it would be consistent with this document to hold that these items were burdened with a private trust which the testator had been carrying out during his lifetime and which he had enjoined his descendants to carry out after his death.
5. Lastly, the Government Pleader referred us to the two Privy Council decisions in Ram Ranjan Chakerbati v. Ram Narain Singh 22 I.A. 60 and Dinomoni Chowdhrani v. Brojo Mohini Chowdhrani 6 C.W.N. 386 which were instances of judgments being admitted in evidence in subsequent proceedings not between the same parties. These are merely illustrations of the exception to Section 43 where the existence of a judgment is itself a fact in issue or is relevant under some other provisions of the Act. Under Section 91 when the terms of a grant have been reduced to the form of a document no other evidence can be given of those terms except the document itself, as it is the document alone that creates the rights and liabilities of the parties. The plaintiff cannot succeed in the present case without proving the terms of the trust set up by him in his plaint, and as he has failed to do so, the appeals must be allowed and the suits dismissed with costs of appellants throughout to be paid within three months. The memorandum of objections is not pressed and is dismissed.
6. I agree.