R.P. Mookerjee, J.
1. The plaintiffs-appellants and the defendants respondents claim Mohesh Chandra Banerjee as their predecessor-in-interest. Mohesh had one son Bamapada through his first wife, and four sons Debipada, Umapada, Khagendra and Haripada through his second wife. The plaintiffs are the descendants of Bamapada.
The defendants axe the descendants of the other four sons of Mohesh. The plaintiffs filed the present suit out of which this appeal arises for partition of certain items of property which they claimed to be the joint properties of the family.
The plaintiff further claimed that Mohesh had by a deed of gift in favour of his son Bamapada given six annas interest in fifty-two items of properties including the properties described in the schedule to the plaint. They accordingly claimed a six annas interest in the properties under the deed and an additional two annas interest as heirs of Mohesh.
2. Two sets of written statements were filed by the defendants -- one set by defendants 9 to 11 who were the daughters of Haripada, the youngest son of Mohesh; the other set was filed by defendants 1 to 8, who were descendants of the three other sons of Mohesh. It is not necessary to refer to the allegations contained in the two sets of written statements separately as in the main the defence is similar.
Various objections had been raised by the defendants. It was contended that the alleged deed of gift had never been executed by Mohesh; even if there had been one, it had not acted upon. Further, the properties included in the plaint had not been the subject-matter of the deed of gift.
The plaintiffs' right to claim partition was further contested on the ground that there were various other items of property held jointly by the members of the family which had been excluded by the plaintiffs. There were other necessary parties in whose presence alone the suit could be tried out.
3. The learned Subordinate Judge had decreed the suit in a preliminary form. The plaintiffs' claim based upon the alleged deed of gift has been dismissed. The plaintiffs have appealed to this Court.
4. After the appeal had been opened a prayer was made on behalf of the plaintiffs for liberty to withdraw the suit with leave to file a fresh suit on the same cause of action on the ground that there were formal and technical defects on which the suit was bound to fail. Time was given to file an application. This was filed on 7-6-1955, and affidavits have been filed by the parties with regard to the same.
The defendants-respondents have waived their objections which had been raised in the trial Court on the ground of partial partition and of the necessary parties not having been impleaded. The technical and formal defeats referred to in the application of the plaintiffs-appellants, therefore, do not arise so far as the present appeal is concerned. Whether such defects were formal or technical ones need not be considered. We proceed to consider the appeal on the merits.
5. The principal and practically the only question for decision in the present appeal is whether the plaintiffs are entitled to a larger share under the alleged deed of gift.
6. The alleged deed of gift is stated to be of the date of the 7th Kartick, 1261 B. S. (22-10-1854). The plaintiffs' case is that it was an unregistered document. For the purpose of proving the existence of the deed of gift, the plaintiffs filed a certified copy of the same, such certified copy having been obtained from the records of Title Suit No. 816 of 1880.
Attempts were also made to prove the existence of the deed of gift and that it had been acted upon on reference to certain proceedings between the members of this family and certain outsiders.
7. The objection raised by the defendants in the lower Court that the items of properties included in the plaint are not covered by the alleged gift has been abandoned in this Court. All the parties have accepted in that Court the suit properties are covered by the alleged gift.
8. The first question which calls for our decision is whether the certified copy of the deed of gift, Ex. 2, as produced in this case has been properly admitted, and also whether such a copy proves not only the existence of the deed of gift but also the proper execution thereof as alleged.
9. Attempts were made to invoke the provisions of Section 90, Evidence Act read with Section 65 of the same Act not only to make this document admissible in evidence but also to prove the contents of that document.
10. Section 90, Evidence Act raises a presumption as to documents more than thirty years old. The provisions are clear and unequivocal so far as documents which are more than thirty years old and are produced in a subsequent proceeding are concerned.
Where a private document is produced from proper custody and the age of the document is thirty years or more and the same is on the face of it free from suspicion, 'the Court may presume that the signature and every other part of such document, which 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 attested by the persons by whom it purports to be executed and attested.'
11. The language used in the section indicates that the presumption raised is a permissive one. Though it is not obligatory on a Court to raise the presumption, it is a matter of judicial discretion whether the Court will make the presumption or call upon the party to offer other proof. See -- 'Srinath Patra v. Kuloda Prosad' 2 Cal LJ 592 (A); as also -- 'Imrit Chamar v. Sridhari Pandey' 15 Cal LJ 7 (B).
12. It has also been settled that only in such documents as bear the signature of the writer or, of witnesses to the document that the presumption can arise. Account papers though more than thirty years old which do not bear on their face the signature of the writer are not admissible in evidence on the presumption available under Section 90, Evidence Act. Vide -- 'Bhagirathmal Kanodia v. Bibhuti Bhusan' : AIR1942Cal309 , and -- 'Basi Nath Pal v. Jagat Kishore' AIR 1916 Cal 176 (D).
13. Further the section makes it clear that the presumption which is to be raised relates only to the signature, execution or attestation of a document. It does not involve any presumption that the contents of the document are true or that it had been acted upon. Such allegation has to be proved on adducing proper and relevant evidence. See -- 'Bhagirathmal Kanodia v. Bibhuti Bhusan', (C) (ante).
14. The question, however, assumes a more difficult position when a copy of a document is produced. In one of the early decisions of this Court in -- 'Khetter Chunder Mookerjee v. Khetter Paul' 5 Cal 886 (E), reasons had been given for drawing the presumption of the correctness of the entries made in the original on production of a copy of the same.
In a long series of decisions this view had been accepted, though there had been murmurs of dissent in some of the Courts. This has, however, been settled by the Judicial Committee, and in all the later decisions the point has been set at rest. See -- 'Seethayya v. Subramanya' AIR 1929 PC 115 (F), and -- 'Basant Singh v. Baij Raj Saran Singh' . In the latter case the Judicial Committee expressed themselves in the following clear and decisive terms:
'In face of the clear language of Section 90, their Lordships are unable to accept these decisions (5 Cal 886 (E) etc.,) as sound. The section clearly requires the production in the Court of the particular document in regard to which the Court may make the statutory presumption. If the document produced is a copy, admitted under Section 65 as secondary evidence, and it is produced from proper custody and is over thirty years old, then the signatures authenticating the copy may be presumed to be genuine as was done in AIR 1929 PC 115 (F), in that case the dispute was as to the terms of a grant which had admittedly been made.
Their Lordships approve of the decision in. -- 'Shripuja v. Kanhayalal' AIR 1918 Nag 114 (H), in which the Judicial Commissioner held that production of a copy was not sufficient to justify the presumption of due execution of the original under Section 90, and they are unable to agree with the subsequent overruling of that decision in -- 'Shri Gopinath Maharaj Sansthan v. Moti '.
15. The question as to the scope of Section 90, Evidence Act came up for consideration before the Supreme Court last year. In -- 'Sitaldas v. Santram' : AIR1954SC606 , it has been laid down that the language of Section 90, Evidence Act requires the production of the particular document in regard to which the Court is invited to make the statutory presumption.
If the document produced is a copy, admissible as secondary evidence under Section 65 of the Act and is produced from proper custody and is over 30 years old, then only the signatures authenticating the copy may be presumed to be genuine; but production of a copy is not sufficient to raise the presumption of the due execution of the original (Vide 'Basant Singh v. Baij Raj', (G), ante). In this case no foundation was laid for reception of secondary evidence under Section 65 of the Act, nor can the copy produced be regarded as secondary evidence within the meaning of Section 63.
16. After the decision of the Judicial Committee in 'Basant Singh v. Baij Raj (G)' (ante,) it had been observed by some of the Courts that the legal position created by that decision was by no means clear. It does not appear to us that any doubt has now been left after the enunciation of the principles by the Judicial Committee and now reiterated by the Supreme Court.
The principles are clear and specific. The signatures authenticating the copy are proved, if the copy produced satisfies the conditions laid down under Section 90, Evidence Act. The loss of the original is to be proved before secondary evidence can be allowed to be put in.
17. Reliance, however, was placed on the observations of the Judicial Committee in AIR 1929 PC 115 (F). In this case, the original grant had been made about two hundred and fifty years ago. The grant had been recognised by tile British Government. In the course of these proceedings, the respondents in that appeal had admitted that they did not own the kudivaram before the grant and that they did not acquire the kudivaram independently and after the grant. The respondents' case was that the original grant was lost. Its express terms were not proved.
The proper inference from all the facts including the case of ownership by themselves and their predecessors was that under the grant they received the kudivaram. The appellants, on the other hand said that the respondents had disclosed a copy of the original grant which the appellants tendered in evidence. They contended that the document in sufficiently plain terms gave the melvaram only. The respondents denied the admissibility of the copy, and raised an issue on the question of the construction of the grant as well.
18. The documents which had been tendered purported to be copies of two documents. The documents produced contained the endorsement 'Originals have been retained by us and copies have been filed 1858'.
19. Their Lordships of the Judicial Committee after referring to the facts as stated above proceeded to express themselves in the following terms:
'Their Lordships agree with the learned Chief Justice and his colleagues in the High Court that the document was admissible as evidence of the terms of the lost original. The document is over thirty years old, and is produced from proper custody. By Section 90, Evidence Act, 1872, the Court may therefore presume the signatures authenticating the copy to be genuine,
The statement to which the signatures are appended -- namely, that the document is a copy of the original -- appears to be evidence both for the reason given by the Chief Justice i.e. as a statement made by a deceased person in a document relating to a relevant fact, and also as an admission made by a party and a predecessor-in-title of the parries. The document being admissible is secondary evidence of the terms of the original grant......'
The Board then proceeded to interpret the terms of the grant.
20. It has been argued before us that in spite of the strict provisions of Section 90, Evidence Act, there may be circumstances under which a copy produced would be available not only to prove the existence of the original document, but of the terms thereof as well.
This argument seems to be well founded.The circumstances, therefore, have to be consider-ed, where on the facts in a particular case, if acopy of a document is found to be admissible assecondary evidence under Section 65, Evidence Act,whether the terms thereof can be taken to havebeen proved, although they do not under Section 90itself prove themselves on a presumption raisedunder that section.
21. If this be the position, so far as the provisions in the Indian Evidence Act are concerned, we have to consider whether the circumstances under which the certified copy had been marked satisfy the conditions imposed under the Act.
22. As we have indicated already, the alleged deed of gift was an unregistered document of the year 1854. Mohesh survived for about thirty years after this alleged execution of the document. He is stated to have married for the second time near about the date when the document is alleged' to have been executed. During the life-time of Mohesh, Bamapada executed a mortgage in respect of some of the properties covered by the alleged deed in favour of one Amritalal Banerjee.
A suit to enforce the mortgage was filed, and in Title Suit No. 816 of 1880 in the Court of the Munsif at Howrah, the original deed of gift is alleged to have been produced and filed by the mortgagee. The certified copy which has been produced now was obtained from the records of the said Title Suit No. 816 of 1880. The original document is stated to have been taken back by the party filing the same viz., the mortgagee, after this certified copy had been kept on the record.
An ex parte decree was passed on 2-12-1880, in the said suit. A certified copy of the decree has been marked Ex. 3 in the present case. Mohesh was alive on this date, as it appears from the copy of the decree, where Bamapada is described to be the son of Mohesh, and the admitted case of the parties before us also was that Mohesh died near about 1884 or 1885.
Plaintiff I, Kotiswar Mukherjee, who is the grandson of Bamapada and was at the time of his deposition aged less than forty years has no personal knowledge either of the deed of gift or of the mortgage suit and other proceedings which had been taking place in the eighties of the last century.
The eldest amongst the members of the family is Paresh Nath Mukherjee, defendant 1. He has stated in his deposition that he was born a few years after the death of Mohesh. He has also no personal knowledge of any of the transactions -- either the alleged deed of gift or the subsequent mortgage proceedings.
23. In connection with some of the properties included within the deed of gift, there had been other litigations between the members of the family of the Mukerjees who are now the parties an the partition suit before us and transferees from them and their neighbours.
Some of those papers have also been produced, Ex. 3(a) and Ex. 4. There is a reference to this deed of gift in the proceedings of 1885-86 as well, and from the copy of the decree read with the amendment thereof, it appears that the deed of gift was accepted by the parties to that litigation as genuine and enforceable.
24. As regards the question whether the copy produced in the present case should be accepted as secondary evidence under Section 65. Evidence Act, it has to be proved that the original has been lost and is not available. The learned Subordinate Judge has for reasons which have been given by Mm come to the conclusion that the plaintiffs have not been able to establish that fact.
In view of the conclusion which we have reached and the procedure which we shall indicate to be followed in this case, it is not necessary for us to deal with this finding and to determine whether the conclusion is proper one or not.
25. When the certified copy was produced in the present case and was tendered to be marked, objection was raised on behalf of the defendants to the admissibility thereof. The learned Subordinate Judge marked the paper as an exhibit subject to objection. This was the most important piece of evidence on which the plaintiffs relied, and it was necessary for the Court to arrive at a clear decision as to whether the objection raised on behalf of the defendants about the admissibility of this document was to be sustained or not.
If the Court had at the time when the document was being marked arrived at a decision, and not left over the consideration of the question till the delivery of judgment, it would have been possible for the parties to take necessary steps immediately to adduce evidence as required under Section 65, Evidence Act.
AS was observed by this Court in -- 'Jadu Rai v. Bhubotaran Nundy' 17 Cal 173 (K) (and the principle was reiterated in -- 'Ramanuj Rai v. Dakshineshwar Rai' AIR 1926 Cal 752 at pp. 754-755 (L), where the trial Court had not come to a decision with regard to the admissibility of an important document like the present one at the stage when it was being marked, the only duty of the appellate Court is to remit the case to the trial Court for further hearing. Similar view had been expressed in -- 'Ramjibun v. Oghore Nath' 2 Cal WN 188 (M).
26. Further the implications of Section 90, Evidence Act had not been fully appreciated by the parties at the initial stage in the trial Court, and though objections were raised about the admissibility of the certified copy, there was no proper decision or trial in the lower Court. The parties were taken off the track, and the details and particulars which were required to be put up before the Court by both the parties were not so done.
27. The trial Court also did not properly consider whether from the materials which had been produced it could be said that the deed of gift had either been executed by Mohesh or been otherwise acted upon.
The lower Court missed the implications of the proceedings initiated by the mortgagee during the life-time of Mohesh and of the other documentary evidence produced. We do not express arty opinion as to the evidentiary value or the effect thereof, as the question will have to be considered on the merits by the lower Court.
28. Under these circumstances, we direct that the judgment and decree passed by the trial Court be set aside and the case remitted to that Court for rehearing according to law. The parties will be allowed fresh opportunity to adduce evidence both as regards the proving of the certified copy or proof of the loss of the original and also the execution of the original deed -- if the original deed be not available.
The defendants will also be entitled to adduce evidence about the treatment of the properties and whether the deed of gift had at all been executed by Mohesh, and! even if so executed by Mohesh, whether it had been acted upon by the parties. The parties will be allowed to adduce additional evidence on the question of the alleged deed of gift certified copy of the same and also dealing with the properties since the alleged deed of gift.
29. The costs incurred by the parties in this Court will depend upon the ultimate result of the suit. The hearing fee in this Court is assessed at five gold mohurs.
30. I agree.