Padma Khastgir, J.
1. The present suit had been filed by Ranjit Rumar Jain against Kamal Kumar Chowdhury and Ratan Kumar Chowdhury for a declaration that the Registered Indenture of Settlement dated February 14, 1971 executed by Radha Debi (also known as Radha Rani Debi) since deceased, was valid and subsisting, for a declaration that the plaintiff being the sole Trustee of the said Trust was exclusively entitled to administer the premises No. 14/4, Sudhir Chatterjee Street, Calcutta as a Trust property, possession of the said premises and also for a declaration that the Wills dated 9th July, 1974 and 15th July, 1974, claimed to have been executed by the said Radha Rani Debi, since deceased, have no effect or bearing on the said premises. Under those circumstances, the defendants were not entitled to administer the said premises as executors under those Wills and for other consequential reliefs.
2. The plaintiff's case was that the plaintiff was the natural born son of one Budhmull Jain (also known as Budhmull Nahata), since deceased. On or about January 30, 1956, the plaintiff was adopted by his maternal grandfather, Shew Karan Jain (Kalhotia) (also known as Shew Raj Singh). The said adoption of the plaintiff was duly recorded in a Registered Deed of Adoption executed by the said adoptive father of the plaintiff. According to the plaintiff, Shew Karan had left behind no other sons -- either natural born or adopted except the plaintiff.
3. One Radha Rani Debi (also known as Musstt. Radha Debi) since deceased was in the exclusive keeping of the said adoptive father of the plaintiff and was seized and possessed of the premises No. 14/4, Sudhir Chatterjee Street, Calcutta. Under a duly registered Indenture of Settlement executed by the said Radha Rani Debi on the 14th February, 1971, the said Radha Rani Debi since deceased settled the premises No. 14/4, Sudhir Chatterjee Street, Calcutta upon Trust upon various terms and conditions more fully contained in the Indenture of Settlement full particulars whereof will appear from the original Deed of Settlement dated 14th February, 1971. The salient terms and conditions of the said Settlement were that the settlor herself would become the first Trustee of the said Trust and she duly granted transfer of the assets and conveyed the said premises to the Trustee. On the date of the retirement of the said trustee and in such capacity the adoptive father of the plaintiff was to become the Trustee and failing him, his eldest son would be ihe Trustee of the said Trust property and thereupon the said premises shall vest in him. Shew Karan Jain, the adoptive father of the plaintiff, died on 18th December, 1972 and Radha Debi died on 17th July, 1974. According to the plaintiff, the said Trust was acted upon by the Settlor Trustee herself inasmuch as she realised rents, issues and profits of the said premises till her death. Shortly prior to the death of the Settlor Trustee, the defendants entered into, the said premises. It was the case of the plaintiff, as pleaded in the Plaint, that the defendant No. 1 was contending to be sole executor of a Will dated 15th July, 1974, claimed to have teen executed by Radha Rani Debi, whereas his son, the defendant No. 2 contended that he was the sole executor of another Will executed by Radha Rani Debi on 9th July, 1974. According to the plaintiff, the defendants had been wrongfully contending that the premises had been disposed of by Radha Rani Debi during her lifetime under those two Wills. However, it was the case of the plaintiff that the Settlor, Radha Rani Debi had no power or authority to revoke the said Trust and dispose of the property under the Will inasmuch as the said Deed of Trust and/or Settlement was executed by her, duly registered and acted upon by and between the parties. Inasmuch as it was an irrevocable Deed of Settlement, it was not within the power of Radha Rani Debi after the execution of the document to dispose of the property, which formed a part of the said settlement by her Will.
4. It was further contended in paragraph 5 of the Plaint by the plaintiff that the defendants had removed and/or destroyed the original Indenture of Settlement, which was in the possession and custody of the Settlor Trustee during her lifetime. Inasmuch as the defendants were interested in denying the said Indenture of Trust created by the settlor, the plaintiff being apprehensive of the invasion of the defendants to the rights of the plaintiff for the enjoyment of the said premises as a sole Trustee and the beneficiary of the said Deed of Settlement, had been compelled to file this suit for necessary reliefs. In some of the suits filed by the Settlor during her lifetime and still pending before other Courts, the defendant No. 1, according to the plaintiff, had wrongfully and surreptitiously got himself submitted in the place of the deceased, on the strength of the Will dated 15th July, 1974. Since the filing of this suit, the said Will, however, had been proved and probate had been granted in favour of the defendant No. 1.
5. The defendant No. 2 Ratan Kumar Chowdhury did not appear and contest this suit. However, written statement had been filed on behalf of both the defendants wherein it had been stated that the plaintiff was not the natural born son of Budhmull Jain or Budhmull Nahata and in fact, the defendants denied and disputed the factum and validity of the adoption that had been mentioned in the plaint. They also denied the factum and validity of the Deed of Adoption. They denied that apart from the plaintiff, Shew Karan did not have any other son, inasmuch as, according to the defendants, Shev Karan Jain had more than one son. In paragraph 3 of the Written Statement it had been stated that Radha Rani Debi was the sole and absolute owner of the premises No. 14/4, Sudhir Chatterjee Street, Calcutta. Inasmuch as she was the mistress of Shew Karan Jain for a number of years during his lifetime, the purported indenture of Settlement was caused to be executed inasmuch as Radha Rani Debi did not execute any Indenture of Settlement out of her free will and volition, inasmuch as she did not have the knowledge or understanding or appraisal of the contents of the Deed of Settlement. It had further been contended that the said Deed of Settlement was never intended to be acted upon, nor in fact, it was acted upon by the parties. The defendants denied that the plaintiff was the eldest son of Shew Karan Jain or that he acquired any right, title or interest in respect of the premises No. 14/4, Sudhir Chatterjee Street, Calcutta either on the strength of the Deed of Trust or otherwise. Radha Rani Debi was the sole and absolute owner of the said premises till 17th July, 1974, when she died, during her lifetime she exercised due control over the said premises and also exercised her right of ownership in respect of the said property.
6. It was the positive case of the defendants, as made out in the Written Statement, that she during her lifetime never acted as a Trustee but she treated the property as her own. It had been further contended in the Written Statement that the defendants came to know from Radha Rani Debi during her lifetime that apart from executing a power of attorney in favour of Shew Karan Jain, in order to enable him to manage her properties and affairs and also to look after and conduct litigations on her behalf, she had never executed any other document in favour of Shew Karan Jain or in respect of the said property, it was contended by the defendants that the signature on the said Deed of Trust was fraudulently procured by Shew Karan Jain, after making her believe that she was executing a power of attorney in favour of Shew Karan Jain who made her to put her signature on the said Deed of Trust, which never came into effect. Under those circumstances, according to the defendants, the said Deed of Trust was vitiated by fraud. It was not binding on Radharani Debi. Radha Rani Debi by her last Will and Statement executed by her on the 15th July, 1974 bequeathed her properly in favour of the defendant No. 1 and also appointed him as the executor, under the said Will. The defendant No. 1 had duly applied for probate of the said Will and in fact, the probate had been granted to him on 14th August, 1981. Prior to execution of the said Will on 15th July, 1974. Radha Rani Debi on 9th July, 1974, executed the Will which was a registered one but she revoked the said prior Will by execution of the Will and Testament dated 15th July, 1974. It was the case of the defendants in the Written Statement that Radha Rani Debi was an illiterate lady. She could barely sign her name only with great difficulty. Under those circumstances, the defendants in their Written Statement had stated that the plaintiff had no cause of action. The suit was misconceived and was not maintainable by the plaintiff. Under those circumstances, they prayed for dismissal of the suit.
7. The following issues were raised and settled at the trial: Issues
1. (a) Was the plaintiff, in fact, adopted by Shew Karan Jain as his son as alleged in para 1 of the Plaint?
(b) Was the said alleged adoption valid in law?
2. Is there any valid Deed of Settlement by Radha Rani Debi dated the 14th Feb., 1971, as alleged in paras. 2 and 3 of the Plaint?
3. (a) Was the Will dated 15th July, 1974 probated, as alleged in para 6 of the amended Written Statement?
(b) If so, what was the effect thereof?
4. To what relief, if any, is the plaintiff entitled?
8. So far as issue No. 1 is concerned, it had been contended by the learned lawyer Mr. Amiya Nath Bose, appearing on behalf of the defendant No. 1, first of all that the deed of adoption had not been properly proved by Ranjit K. Jain, Secondly he submitted that the fact of adoption had not been proved by the plaintiff and thirdly it was the case of the defendant No. 1 that the adoption of Ranjit K. Jain, the daughter's son by Shew Karan Kathodia was invalid in the eye of law inasmuch as such adoption was not permitted in the regenerate class of Hindus. Shew Karan Kathodia was a Hindu and was vaishya by caste, under these circumstances he contended that the adoption was not valid in the eye of law. So far the oral evidence of Ranjit K. Jain on the deed of adoption was that his grandfather Shew Karan Jain in the year 1966 adopted him and a registered deed of adoption was made on 30th Jan., 1956. He admitted that he was not acquainted with all the signatures on the document but he could only prove the signatures of his mother, Lakshmi Bai and that of Shew Karan Kathodia. The other signatures of the witnesses as also of the others being in Vernacular Language it was difficult for him to identify them. The said deed of adoption was registered at the office of the Sub-Register Ladmu, Rajasthan on 30th Jan., 1956. He was specifically asked in question 17th in examinalion-in-Chief to the effect 'what was the custom that was being referred to in the said deed of adoption.' However, his answer was that for the purpose of taking adoption there was a system of taking adoption in their community which had been referred to. When he was specifically asked about the custom his answer was that the custom was 'Godpatra'. His evidence was that Shew Karan Kathodia was a Jain. Ranjit K. Jain gave his name as Ranjit K. Jain alias Ranjil K. Kathodia. In question 248 the learned cross-examining counsel suggested to Ranjit K. Jain that 'there was no ceremony of adoption'. In answer to that Ranjit K. Jain stated that there was a ceremony of adoption and about 30 to 40 relatives were there. 'A function was arranged and all the people who attended there were given food and all those things, as was customary in our society'. When he was specifically asked whether he was prepared to call the persons whom he stated to be present during such adoption his answer was 'yes' and when he was asked to give out the names of such persons he gave the name of one as 'Golat Ram Bothra'. According to his evidence excepting his mother all other gentlemen present there were dead as far as he was aware. Under the circumstances it appeared that save and except proving the two signatures on the said deed of adoption Ranjit K. Jain the plaintiff herein could neither prove the document nor the other signatures on the said document. Inasmuch as Ranjit K. Jain had nothing to do with the preparation or creation of the said document nor could he enlighten as to the ceremony that had taken place under those circumstances strictly speaking apart from the signatures of his mother and that of his grandfather nothing else on the document could be proved by him. So far the factual part of adoption was concerned his evidence was scanty inasmuch as, although he had spoken of a custom prevalent amongst his community and ac-cording to him such custom and/or ceremony was performed inasmuch as the 'Godpatra' was created and 30 to 40 people were entertained at such ceremony but in spite of giving opportunities during cross-examination he failed to enlighten this Court as to whether in fact the giving and taking ceremony which was essential to such act of adoption had been complied with and/or performed or not. He did not come out in his Examination-in-Chief with such fact nor even when given an opportunity in cross-examination did he assert that such ceremony had taken place. Although he agreed to call other witnesses to the ceremony, he failed to do so. It was his positive evidence that his mother, was alive and who was a signatory to the said document and had all the knowledge of such adoption, in spite of that, the plaintiff chose not to call her as a witness and in spite of a challenge being thrown to such fact of adoption. It had also been brought out in cross-examination that some of vital signatures of Shew Karan Kathodia had been penned through in ink in the said Deed of adoption. Under those circumstances the defendant No. 1 contended that the plaintiff was relying on a cancelled document for the purpose of establishing the fact of adoption. At the beginning the plaintiff contended that originally the signatures were intact but subsequently they had been penned through while the document was in the custody of the Court. However when an opportunity was given to the plaintiff to lodge necessary complaint before the appropriate authority if that was his case, he declined to do so instead he called an interpreter and/or a translator of this Court to give evidence that in some parts of Rajasthan it was a prevalent practice of putting a vertical as also a horizontal line on a document where the signature of the executant would be taken but from the document itself it would appear that not all such signatories of Shew Karan Kathodia had been put on such horizontal and/or vertical lines. No other document had been produced to indicate that in fact that was the custom which was being followed in some part of Rajasthan.
9. The Hindu Adoptions and Maintenance Act, 1956 came into effect on 21st of December 1956. Under those circum-cumstances this particular adoption having taken place in the month of January 1956 was not governed by the provisions of the said Act. Under the circumstances the provisions under the Hindu Law were applicable in the instant case. From the deed of adoption it would appear that Shewkaran Kathodia had described himself as 'Son of Multamal, Caste Oswal Katholia'. He further recited in the said document that as he had no son of his own and according to his religion, one who did not have a son could not have salvation. Under those circumstances he took the eldest son of his daughter Lak-shmi Devi, in adoption. He had further recited that the custom of taking in adoption and handing in adoption and other customs in the brotherhood had been fulfilled. From the said recital it would appear that Shewkaran did not describe himself as a Jain in as much as he had given his caste as Oswal Kathotia. Under those circumstances the plaintiff's evidence that the Jains were caste-less and Shewkaran Kathotia was a Jain is contradictory to what has been recited in the deed itself. Gopal Chandra Sarkar Sastri's Hindu Law, 8th Edn. Page 194 observes:
'The ceremonies of giving and taking are absolutely necessary in all cases. These ceremonies must be accompanied by the actual delivery of the child; symbolical or constructive delivery by the mere parole expression or intention on the part of the giver and the taker without the presence of the boy is not sufficient nor are deeds of giftg and acceptance executed and registered in anticipation of intended adoption, nor acknowledgment sufficient by themselves to constitute legal adoption, in the absence of actual gift and acceptance accompanied by actual delivery; a formal ceremony being essential for that purpose. In a Sudra's adoption no other ceremony is necessary, giving and faking being sufficient, Among the Jains the giving and taking are essential but the religious ceremonies are not necessary; but there is no bar in their adopting in the Dattak Form.'
With reference to the three regenerate casts among the Hindus, the ceremony of Dattahoma or burnt offering is said to be necessary in addition to giving and taking. Under those circumstances even amongst the Jains the ceremony of giving and taking is essential in as much as the law of the Hindus applied to the Jaine.
N. R. Raghavachariar's Hindu Law, 7th Edn. Vol. page 141 under Article 134 observed:
'As regards the eligibility of the boy within the casts of the adopter, there is a rule of Sutherland that the boy to be adopted should not be the son of a woman whom the adopter could not have married in her maiden slate. This rule, though formulated by Mr. Sutherland as the rule of Nandapandita, is really different from Nandapandita's rule which is that the boy to be adopted must be the son of a woman on whom the adopter could have begotlen him in the Kshetraja form. Nandapandita's rule is based really on Saunake's methaphor that the adopted son is the reflexion of a son and hence disqualifies the daughter's son, the sister's son, the brother, the paternal and maternal uncles, etc., from being adopted'.
Under Article 178 the same author observed:
'According to the customary law prevailing among the Jains no authority express or implied is necessary for a widow of a sonless man making an adoption to him, and the son adopted may even be a grown-up and married man. The only essential ceremony for the validity of the adoption is the giving and taking of the adopted son. The Jains differ particularly from the Brahminical Hindus in their conduct towards the dead, omitting all the obsequies after the corpse is burnt or buried. The birth of a son has no effect according to them on the future state of his progenitor and consequently, adoption is merely a temporal arrangement, having no spiritual object.'
Under the circumstances although according to Jains the adoption is merely a temporal arrangement having no spiritual object but even then the only essential ceremony for the validity of the adoption is of giving and taking the adopted son.
From the recital made in the deed by the adoptive father it is indicated that he believed that as he had no son either natural or adopted, he de-sired to adopt a son inasmuch as according to his own religion, he could not have salvation without a son. If in fact Shew-karan was a Jain, he could not have such belief.
10. In the case reported in : 1SCR101 , Debi Prasad v. Tribeni Devi it had been held that (para 8):
'That is also the view expressed in Mayne's Hindu Law wherein it is observed that the giving and receiving are absolutely necessary to the validity of an adoption; they are the operative part of the ceremony, being that part of it which transfers the boy from one family to another; but the Hindu Law does not require that there shall be any particular form so far as giving and acceptance are concerned; for a valid adoption all that the law requires is that the natural father shall be asked by the adoptive parent to give his son in adoption, and that the boy shall be handed over and taken for this purpose'.
It had been observed that there was no doubt that the burden of proving salisfactorily that he was given by his nalural father and received by his adoptive father was on the adoptive son. I! had further been observed in that case that in the absence of direct evidence much value had to be attached to the fact that the alleged adopted son without controversy succeeded to his adoptive father's estate and enjoyed till his death and that ihe documents during his life and after his death were framed upon the basis of adoption. The instant case is not a case of ancient transaction inasmuch as the adop-tion had taken place according to the plaintiff in the year 1956 and his mother who was still alive at the time of hearing of the suit had been a witness to the document by putting her signature thereon. Moreover according to the plaintiff others who were also present at such ceremony, out of them at least one would be called by the plaintiff to corroborate his oral testimony, but ultimately the plaintiff did not examine his mother nor the gentleman named by him to support and/or corroborate his oral testimony. In the case reported in : 1SCR477 , Lakshman Singh Kothari v. Smt. Run Kanwar it had been held that (para 10):
'Under the Hindu Law, whether among the regenerate caste or among Sudras, there cannot be a valid adoption unless the adoptive boy is transferred from one family to another and that can be done only by the ceremony of giving and taking. The object of the corporal giving and receiving in adoption is to secure due publicity. To achieve this object it is essential to have a formal ceremony. No particular form is prescribed for the ceremony, but the law requires that the natural parent shall hand over the adoptive boy and the adoptive parent shall receive him. The nature of the ceremony may vary depending upon the circumstances of each case. But a ceremony there shall be, and giving and taking shall be part of it. The exigencies of the situation arising out of diverse circumstances necessitated the introduction of the doctrine of delegation; and therefore, the parents, after exercising their volition to give and take the boy in adoption, may both or either of them delegate the physical act of handing over the boy or receiving him, as the case may be, to a third party'.
In that particular case it was held that the ceremony of giving and taking which wag very essential for the validity of an adoption had not taken place. In para 8 of the said judgment it was held:
'To appreciate this argument it is necessary to notice briefly the law of adoption vis-a-vis, the ceremony of 'giving and taking', Gopal Chandra Sarkar Sastri in his book on Hindu Law, 8th Edn. succinctly describes the ceremony of 'giving and taking' thus at p. 194: 'The ceremonies of giving and taking are absolutely necessary in all cases. These ceremonies must be accompanied by the actual delivery of the child; symbolical or constructive delivery by the mere parole expression of intention on the part of the giver and the taker without the presence of the boy is not sufficient. Nor are deeds of gift and acceptance executed and registered in anticipation of the intended adoption, nor acknowledgment, sufficient by themselves to constitute legal adoption, in the absence of actual gift and acceptance accompanied by actual delivery; a formal ceremony being essential for that purpose'.
Much to the same effect it is stated in Mayne's Hindu Law, 11th Edn. at p. 237:
'The giving and receiving are absolutely necessary to the validity of an adoption. They are operative part of the ceremony, being that part of it which transfers the boy from one family into another. But the Hindu Law does not require that there shall be any particular form so far as giving and acceptance are concerned. For a valid adoption, all that the law requires is that the natural father shall be asked by the adoptive parent to give his son in adoption, and that the boy shall be handed over and taken for this purpose'.
The leading decision on this subject is that of the Judicial Committee in Shoshi-nath Ghose v. Krishnasunderi Dasi (1880) ILR 6 Cal 382. That was, like the present, a case of adoption among Sudras. There, it was contended, inter alia, that there was a formal adoption by giving and taking, and in the alternative it was contended that even if there had been no formal adoption as alleged, the deeds of giving and taking, executed in 1864, were sufficient to bring about the adoption and that was all that was essential in the case of Sudras. Sir J. W. Colvile, speaking for the Board rejected both the contentions. He accepted the finding of the lower courts that there was no formal giving and taking and rejected the argument that the documents themselves operated as a complete giving and taking of the adoptive boy. The learned Judge observed at p. 388 thus:
'There is no decided case which shows that there can be an adoption by deed in the manner contended for; all that has been decided is that, amongst Sudras, no ceremonies are necessary in addition to the giving and taking of the child in adoption.....It would seem, therefore, that, according to Hindu usage which the Courts should accept as governing the law, the giving and taking in adoption ought to fake place by the father handing over the child to the adoptive mother, and the adoptive mother declaring that she accepts the child in adoption.'
That a formal ceremony of giving and taking is essential to validate the adoption has been emphasized by the Judicial Committee again in Krishna Rao v. Sun-dara Siva Rao, 58 Ind App 148 : (AIR 1931 PC 109).
Under those circumstances a mere recital in the deed itself that such a ceremony had taken place in the absence of either oral or documentary evidence to that effect is not sufficient, and it was difficult to accept the case of the plaintiff. Mr. Amiya Nath Bose's submission that in any event Shewkaran Katho-dia belonging to Vaishya caste of Hindus could not adopt the son of his daughter in as much as he belonged to the regenerate class of the Hindus who could not according to Hindu Law adopt a son whose mother he could not have married. Mr. P. K. Roy the learned lawyer appearing on behalf of the plaintiff cited many cases indicating that such adoption was possible amongst the Jains who did not have any caste amongst themselves. In view of my finding that the plaintiff had failed to give sufficient evidence of the ceremony of giving and taking at the time of the adoption and in view of my finding that the plaintiff had also failed to prove the deed of adoption properly in as much as he could only prove the signature of the executant as also his mother. Under those circumstances it appeared that the plaintiff had failed to prove the actual ceremony of adoption which is also required in the case of Jains. Under those circumstances the question whether Shewkaran Kathodia belonged to the regenerate class or could adopt his daughter's son need not be considered. Mulla on Hindu Law 14th Edn. under Article 613 observed:
'It is too late in the day to contend that Jains are not included in the term 'Hindus'. The Jains are governed by all the incidents relating to the Hindu joint family, as was very recently held by the Supreme Court. The ordinary Hindu Law is to be applied to Jains, in the absence? of proof of special customs and usages varying that law. Those customs and usages must be proved by evidence, as other special customs and usages varying the general law should be proved, and in the absence of proof the ordinary law must prevail. There is, however, nothing to limit the scope of the inquiry to the particular locality in which the persons setting up the custom reside. Judicial decisions recognising the existence of a disputed custom among the Jains of one place are relevant as evidence of the existence of the same custom amongst the Jains of another place, unless it is shown that the customs are different; and oral evidence of the same kind is equally admissible, (a) Where, however a custom is negatived by a Judicial decision in one place, e. g. Madras, the fact that among Jains in the other Stales such a custom has been upheld by Courts does not warrant a general presumption of the prevalence of the custom in the Madras Stale'.
Under Article 622 it had been observed that a daughter's son may be adopted among the Agarwala Bania of the Sarogi Sect. In the instant case there had been no evidence tendered on behalf of the plaintiff proving such custom prevalent amongst the community, to which he belonged.
In the case reported in it had been held that in Mar-war, where the deed itself mentioned that the boy had been given and received in adoption and nothing was shown whereby it could be inferred that the physical act could not take place as mentioned in the deed, a presumption did arise that the recital in the deed had been complied with good sense but on the basis of when a person does take the transfer of sending for a scribe and executing the document and getting it registered there, in nothing to prevent him from performing the aclual physical act of giving and taking, (sic) But if any party to the litigation proves circumstances which would show that the physical act of giving and taking could not have been performed as recited in the deed of adoption then it would be for the party setting up the adoption to prove by positive evidence that the physical act of giving and taking had taken place. In the instant case the plaintiff failed to give any evidence whatsoever and state as to that ceremony having taken place in his examination-in-chief. On cross-examination also he failed to substantiate that such ceremony had taken place. He did not call any independent witness to prove that such ceremony had taken place. Under those circumstances on the mere recital in the deed itself, no presumption could be drawn in view of serious challenge being thrown by the defendants. Considering the peculiar facts of the case it could not be expected ihat the defendants belonging completely to different community and family could by positive evidence show that such ceremony had not taken place, save and except challenging the said adoption thereby requiring the party setting up the adoption to prove by positive evidence that the physical act of giving and taking had taken place.
Under those circumstances so far issue No. 1 is concerned I hold that the plaintiff had failed to prove the adoption as pleaded in the plaint.
11.-12. So far issue No. 2 is concerned the plaintiff relied on a certified copy of of a deed of settlement executed by Radha Hani Debi on 14th of February, 1971. The learned lawyer of the plaintiff relied first of all on Section 74(2) of the Evidence Act and in ihe alternative on Section 65 (a) or (c) of the said act. So far the evidence of Ranjit K. Jain is concerned that was not absolutely clear inasmuch as he could not positively state that the said document was in the custody of the defendant nor he could give substantial evidence as to the loss or destruction of the document. He could only state with regard thereto by stating that on 7th July, the defendants came to occupy the suit premises. They took charge of whatever belonged to Radha Rani Debi. There was no positive allegation that such document came into the possession of the defendants or that they had destroyed the same. However, it had been stated in the plaint itself in paragraph 5 that the defendants had removed and/or destroyed the original deed of settlement which was in the possession and custody of the Settlor and/or trustee, during her lifetime. Save and except a bare denial in the written statement, there was no specific denial that the said deed of settlement never came into possession of the defendants or they had no occasion of destroying and/or losing the said document. Under those circumstances Mr. Roy appearing on behalf of the plaintiff contended that the certified copy of the said deed should be treated as an exhibit and admitted in evidence. He relied on various cases.
13. In the case reported in : AIR1974Ori199 Chandra Sekhar Pati v. Ahalya Devi it had been held that (Para 7):
'Ext. 1 is a draft of the Anumati Patra alleged to have been executed by P. Somalingam, the admitted owner of the house, in favour of defendants 1 and 2 on 25-12-43. The original of Ext. 1 was not before the Court. The learned Subordinate Judge held that in the absence of the original being called for from defendants 1 and 2 Ext. 1 is inadmissible in evidence. Here, he committed a serious error of law. In the plaint, Ext. 1 was referred to. Defendants 1 and 2 denied existence of such a document. Under Section 66 of the Evidence Act, secondary evidence of the contents of the documents referred to in Section 65 clause (a) shall not be admissible unless certain steps are taken under this section, as prescribed. The proviso to the section engrafts certain exceptions. Clause (2) of the proviso lays down that no notice shall be required in order to render secondary evidence admissible in a case when from the very nature of the case, the adverse party roust know that he will be required to produce it, In this case, plaintiffs clearly made a reference to Ext. 1 in the plaint. Defendants 1 and 2 denied existence of such a document. The question of calling for the document from them did not arise. Ext. 1 cannot, therefore, be said to be inadmissible in evidence due to the absence of primary evidence.'
In the case reported in : AIR1956Bom555 Vishwanalh Vithoba v. Genu Kisan it had been held that (Para 3):
'The first point, which has been urged by Mr. Sukhthankar in this appeal is that the plaintiff has not proved that the three suit houses were purchased by Gyanuji. In order to prove his assertion on this point, the plaintiff has produced the certified copies of three sale deeds, Exhibits 75, 76 and 77.
Mr. Sukhthankar has urged that these copies of the sale deeds are not admissible in evidence. The plaintiff has stated in his evidence that the original sale deeds are not in his possession but they are in the possession of defendant 1. The plaintiff did not, however, give any notice to defendant 1 asking him to produce the original sale deeds.
Mr. Sukhthankar has, therefore, urged that the certified copies are not admissible in evidence as no notice was given to defendant 1 as required by Clause (a) of Section 65, Evidence Act. The proviso to Section 66, however, enables the court to dispense with such notice in any case, in which the Court so thinks fit. In Su-rendra Krishna v. Mirza Mahammad Syed Ali, AIR 1936 PC 15, their Lordships observed:
'The only purpose of a notice under Sections 65 and 66, Evidence Act, is to give the party an opportunity by producing the original document to secure, if he pleases; the best evidence of its contents. The difference between a certified copy and the original for the purposes of the present case is not very obvious but secondary evidence is admissible when the party offering.......
In the present case after the death of Gyanuji, the next senior member of Ihe family is Vithoba. The three sale deeds therefore in all probability went into the possession of Vithoba and after his death into the possession of the defendants. The plaintiff has stated that Ihe original sale deeds are not with him. He has also stated that they are in the possession of defendant 1. There was no cross-examination of the plaintiff in regard to his statement on this point.
Defendant 1 in his evidence did not deny that the original sale-deeds were in his possession. It would have been desirable if a question had been put to him on this point in the cross-examination by the plaintiff. But as the record stands, the plaintiff's slalement that the original sale-deeds are with defendant 1 remains unchallenged. This is also in accordance with the probabilities of the case.
The certified copies of three sale-deeds Exhs. 75, 76 and 77 were also produced by the plaintiff along with the plaint. He has specifically staled in the plaint that these sale-deeds related to the three suit houses. There was no denial of this statement in the defendants' written statement.
If, therefore, the original sale deeds are in the possession of the defendant 1 as deposed to by the plaintiff and as the plaintiff's statement that the certified copies of the three sale-deeds produced by him related to the suit houses has not been denied by the defendants, we think this would be a proper case in which notice as required under Clause (a) of Section 65, Evidence Act, should be dispensed with. In that case, the three certified copies, Exhibits 75, 76 and 77 would be admissible under Clause (a) of Section 65, Evidence Act.
On the other hand if the sale deeds are not in the possession of the defendants and as they are also not in the possession of the plaintiff, they must be deemed to have been lost. In that case, the certified copies would be admissible under Clause (a) of Section 65. The learned Judge was therefore right in admitting these three documents in evidence'.
In the case reported in : AIR1954Mad486 , Karuppanna Gounder v. Kolanda-swami Gounder it has been held that (Para 4):
'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'.
In the case reported in 0065/1963 , Arya Pratinidhi Sabha, Punjab Jul-lunder v. Dev Rai Vir Bhan it had been held that;
'Where the will would come into possession and did come into possession of the persons interested to deny it rib presumption that it was revoked by the testator can be raised specially when no bona fide search for it was proved to have been made at the testator's death, nor was there any occasion for such a search. This is a case where the original will is not lost but is being withheld by the interested parties.
The will was executed in 1914 by a Hindu, in the Punjab when no formalities were required to effectuate the same. The will was duly registered. The original was in possession of the persons who were interested to deny the same. A registered copy of the will was provided. The attesting witnesses were not in a position to say whether the contents of the will were the same as those in the copy.
Held that so far as the execution of the original will was concerned, it was proved by the endorsement of the Registrar. That endorsement left no manner of doubt that the will was executed by the testator 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 was not forthcoming and was being withheld by persons who were interested to deny it. Under Section 65(F), Evi-denfe Act read with Section 57 of Registration Act, the certified copy of the will was sufficient proof of the will.
The learned Counsel sought to contend that the certified copy of the registered will is not admissible in evidence. The short answer to this argument is that in view of the fact that the original will is not available, its secondary evidence can be led as required by Section 63 read with Section 65 of the Evidence Act. The Courts below have unanimously come to the conclusion that secondary evidence is admissible in this case, for the reason that the will is being withheld by the respondents. According to Clause (f) of Section 65 of the Indian Evidence Act, secondary evidence may be given of the existence, condition and contents of a document when the original is a document of which a certified copy is permitted by this Act or by any other law in force in India to be given in evidence, and in such a case according to Section 65, it is only the certified copy of the document which is admissible. According to Section 57 of the Indian Registration Act, certified copies of documents registered have to be supplied by the Registrar to all persons, applying for the same and according to Sub-section (5) of Section 57 such copies given under this section be admissible for the purpose to prove the contents of the original documents'.
In the case reported in : AIR1975Cal381 , Rabindra N. Das v. Santosh Kumar Milra, it had been further observed (at p. 385):
'Now in order to admit secondary avidenee in proof of a document of this nature it is important to bear in mind the nature of the document, the evidence about the search, the evidence about the enquiries made and the evidence about the loss of the original. In this case is is undisputed that the deed of trust which was executed was also registered, That point is not controverted. It is further apparent from the evidence of Jagdish Chandra Sil that he had the document registered. Ex. H is a certified copy issued by the Registrar of Assurance of the said deed. The fact that on that date 2nd July, 1946, a deed was executed cannot also now be disputed and it is apparent from the conduct of Sm. Provabati Biswas herself is instituting a suit challenging the execution of the said document, it is nobody's case that any other deed or document had been executed on that date. In the background of the aforesaid facts I am of the opinion that on the presumption of regularity under Section 114(c) of the Evidence Act the certified copy issued by the Registrar of Assurance should be accepted as the correct copy of the deed executed on the 2nd July, 1946. If that is so, then the evidence about the loss of the original will have to be adjudged in the light of the factors noted hereinbefore and on a consideration of all the facts and circumstances, I am of the opinion, that this certified copy should be admitted in the evidence as a copy of the deed of 2nd July, 1946'.
Under those circumstances although the plaintiff's evidence was not positive to that effect but from all the facts taken together the certified copy of the deed of settlement should be tendered in evidence. So far as the contention of the defendant that the said deed of settlement was not a valid document or that it was executed under undue influence, inasmuch as Radha Rani Debi was an illiterate woman, under those circumstances the principles applicable to a case of pardanasin lady would also be applicable in. the instant case, was unacceptable to this Court in as much as the defendant Kamal K. Chowdhury failed to substantiate such case by cogent evidence. His oral testimony was far from satisfactory, full of contradictions and he travelled far beyond the case as purported to have been made out in the written statement. Radha Rani Debi admitted the execution of the said document in subsequent pleadings.
In the case reported in : AIR1960Cal494 , Biswanath Agarwalla v. Smt. Dhapu Debi Jejodia it had been held that (Para 26):
'In order to enable the plaintiff to tender the certified copy as a secondary evidence it is enough for the plaintiff to prove that the original is not in his possession and so far he is concerned it is lost'.
The plaintiff in the instant case had relied on the deed of settlement. Under those circumstances if the plaintiff had the original with him he would have been the first person to produce the original before this Court. It had been contended by the plaintiff in the plaint that the said document had been destoryed by the defendants. There was no specific denial of such an allegation. Inasmuch as the defendants were relying on a will executed by Radha Rani Debi on the 15th July, 1974 it was to their interest that the original deed of settlement would not see the light of the day. Under the circumstances on the death of Radha Rani Debi the defendant No. 1 not only applied for the probate of the will dated 15th July, 1974 but as an executor had taken charge of all the properties belonging to Radha Rani Debi during her lifetime. In fact probate had been granted in respect of the said will. Although the original deed of settlement had been challenged by the defendant on the ground that the same was obtained by perpetrating fraud and/or under undue influence exercised by Shewkaran Ka-thodia who prevailed upon Radha Rani to execute such deed of settlement, such case was unacceptable to this Court as Kamal K. Chowdhury failed to substantiate such case in his oral evidence which was contradictory and unreliable. He could not corroborate his statement by any other reliable evidence either oral and/or documentary. Under those circumstances that part of the defendant's case was unacceptable to this Court. In the alternative it was contended on behalf of the defendant No. 1 that even if there was a valid deed of settlement created by Radha Rani Debi such deed was not acted upon by her inasmuch as in the Corporation rate bills, rent receipts and other documents Radha Rani did not describe herself as a trustee under the said deed of settlement, moreover she had disposed of the said property by her will dated 15th July, 1974. Mr. Amiya Nath Bose very strenenuously contended that Radha Rani Debi put her signature in Hindi on a document which was prepared in English script. Under those circumstances this Court should infer that the document was not understood by her properly and she did execute at the instance of Shewkaran Kathodia. The plaintiff examined Dhanesh Ch, Mitra an advocate who gave evidence stating that Sanat K. Mitra, the advocate who acted for Radha Rani not only in this particular document but also in all other suits where Radha Rani either filed the suit as a plaintiff or defended the suits as a defendant, in all those litigations Sanat K. Mitra had acted as her lawyer. According to the evidence of Dhanesh Ch. Mitra this deed of settlement was prepared at the instance of Radha Rani and as per her instructions and after the preparation of the original document the same was duly read over and explained by Dhanesh Ch. Mitra and after understanding the purports and contents thereof she duly executed the said deed. Although he could not produce his day book or other papers to indicate that he had such consultation with Radha Rani Debi but from the certified copy of the said deed it would appear that Dhanesh Ch. Mitra acted and signed as a witness to the said document and also he explained and read over the document to Radha Rani Debi before it was executed by her. Under those circumstances relying on the certified copy as also the evidence of Dhanesh Ch. Mitra it appeared that such a deed of settlement was executed by Kadha Rani Debi during her lifetime which fact had also been acknowledged by her in her written statement filed in the suits referred to above, Under the deed of settlement she appointed herself the first trustee and she managed the said property till she died. Under those circumstances relying on the evidence as tendered in this suit I answer issue No. 2 in the positive. So far issue No. 3 (a) is concerned it is an admitted fact that the said Will dated 15th July, 1974 had been probated by a competent court. Under those circumstances I answer issue No. 3 (a) in the positive. So far issue No. 3 (b) is concerned till the said probate is revoked and/or set aside and till the question of authority of Radha Rani Debi to execute a will in respect of a property which was the subject-matter of the deed of settlement, is validly and properly decided in a properly constituted suit the said probate is binding. So far issue No. 4 is concerned in view of my finding that the plaintiff could not prove the deed of adoption properly as such this suit is not maintainable by the plaintiff. Under those circumstances I dismiss the suit with costs. There will however, be a stay for three weeks.