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Dwarka Singh v. Rama Nand Upadhya And Ors.

Allahabad High Court

Apr 15, 1919

Judgment

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Factual and Procedural Background

The appeals Nos. 419 and 420 arise from a suit by the plaintiffs-respondents for redemption of a mortgage originally said to have been executed by Musammat Phulbasi on 3 June 1876 in favour of Bhairon Singh (predecessor-in-interest of the defendants). The mortgage was alleged to be for Rs. 300 and with possession. After Musammat Phulbasi's death, her son Ram Sundar purportedly executed a sale deed in favour of the plaintiffs. The plaintiffs served a notice for redemption on 27 April 1915, alleging satisfaction of the mortgage by appropriation of timber. The defendants refused to surrender possession, and the suit for redemption was instituted on 18 June 1915.

The defendants denied the mortgage and disputed the relationship between Ram Sundar and Musammat Phulbasi, asserted ownership and/or adverse possession for more than twelve years, and did not produce the original mortgage deed. The plaintiffs filed a certified copy of the 1876 mortgage-deed, which the trial Court admitted. The trial Court held that the defendants, who must have had the original, failed to produce it and thus the plaintiffs could give secondary evidence (a certified copy); it also held that a presumption under Section 90 of the Evidence Act could be raised in respect of the certified copy and, on consideration of revenue entries and Section 90, found the 1876 mortgage proved. A decree for redemption on payment of Rs. 300 was passed for the plaintiffs, with costs to be borne by each party as directed. Both parties appealed to the lower Appellate Court, which dismissed the defendants' appeal (maintaining the redemption decree) and partly allowed the plaintiffs' appeal on costs; thereafter the defendants appealed to this Court (Nos. 419 and 420).

Legal Issues Presented

Whether the mortgage of 3 June 1876 was proved according to law where the plaintiffs produced only a certified copy and the original was not produced by the defendants.
Whether the defendants had established adverse possession for more than twelve years prior to institution of the suit (this issue was raised before this Court and rejected in the judge's earlier judgment of 20 January 1919).
Whether the plaintiffs' claim was maintainable in the absence of a prior tender (this objection was raised and rejected in the earlier judgment of 20 January 1919).

Arguments of the Parties

Appellants' (Defendants') Arguments

The mortgage of 1876 is not proved because the plaintiffs produced only a certified copy of the deed; under the language of Section 80 (as contended) and related provisions, the presumption in favour of a document cannot be raised in respect of a certified copy and applies only where the original document is produced.
The defendants asserted they had been in adverse possession for over twelve years prior to the suit (raised as an objection before this Court and rejected in the earlier judgment).
No tender was made by the plaintiffs, and therefore the plaintiffs' claim is not maintainable (also rejected earlier by the Court).
They relied upon a passage from the judgment in First Appeal No. 13 of 1913 (6 July 1914) to support the proposition that Section 90 applies only where the original document is produced and that there is no presumption in favour of a copy.
They argued that the plaintiffs had not served notice to produce the original, and that omission was fatal to the plaintiffs' ability to give secondary evidence under Section 66 of the Evidence Act.

Respondents' (Plaintiffs') Arguments

The language "When any document is produced" in the statute does not confine Section 90 to cases where the original is physically produced in Court; therefore Section 90's presumption can apply to a certified copy where the original is not produced.
Secondary evidence of an ancient document (a certified copy) is admissible without proof of execution of the original when a proper case is made, and plaintiffs relied upon earlier cases supporting that position.
They relied on authorities such as Khetter Chunder Mookerjee v. Khetter Pal Sreeterutno, Ishri Prasad Singh v. Lallijas Kunwar, and Ponnambalath Parapravan v. Karoth Sankaran Nair to support the admissibility of certified copies and the raising of the Section 90 presumption in such circumstances.
On notice to produce the original, plaintiffs argued that Section 66's exception applies where "from the nature of the case" the adverse party must know that they would be required to produce it; here the defendants must have known the mortgage-deed in their possession would be required, so prior notice was not necessary.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Khetter Chunder Mookerjee v. Khetter Pal Sreeterutno, 5 C. 886; 6 C.L.R. 199; 2 Ind. Dec. (N.S.) 1172	Authority supporting that the presumption permitted by Section 90 may be applied where the original cannot be produced but a certified copy is forthcoming (i.e., Section 90 can be applied to certified copies in appropriate circumstances).	The Court followed this authority as a primary precedent supporting the view that Section 90's presumption can apply to a certified copy and cited it as binding support for admitting the certified copy and raising the presumption.
Ishri Prasad Singh v. Lallijas Kunwar, 22 A. 294; A.W.N. (1900) 82; 9 Ind. Dec. (N.S.) 1227	Two-judge decision adopting the construction that Section 90's presumption is not confined to documents actually produced in Court and supporting application of the presumption to certified copies in appropriate cases.	The Court treated this decision as authoritative and followed it in holding the certified copy admissible and in applying the presumption under Section 90.
Ponnambalath Parapravan v. Karoth Sankaran Nair, 12 Ind. Cas. 453; 21 M.L.J. 981	A Madras Bench decision expressing the same view: that Section 90's presumption can be applied in the context of properly established certified copies when the original is not produced.	The Court cited and followed this decision as further authority supporting the admissibility of the certified copy and the raising of the Section 90 presumption.
First Appeal No. 13 of 1913 (Bench decision of 6 July 1914) — (name not reported)	Contains an observation (referred to by appellants) that "Section 90 of the Evidence Act only applies when the document is produced ... There is no presumption in favour of a document, the copy of which is produced in evidence." — expressed as an opinion that Section 90 applies only to an actually produced document.	The Court treated the passage as obiter dicta, unnecessary for decision in that case, and rejected it as contrary authority; the Court held the observations were not binding and that the authorities supporting the contrary view had not been considered in that earlier judgment.

Court's Reasoning and Analysis

The Court's analysis proceeded from the narrow legal question referred to the Bench: whether the mortgage sought to be redeemed (dated 3 June 1876) had been proved when the plaintiffs produced only a certified copy and not the original document.

The Court first noted that two of the three objections (adverse possession and absence of a tender) had already been rejected in the judge's earlier judgment of 20 January 1919, leaving only the question of proof of the mortgage deed for the present Bench.

On the key point, the defendants-appellants contended that the statutory presumption in Section 90 of the Evidence Act applies only where an original document is produced in Court and does not extend to certified copies; they relied upon language in a prior Bench judgment to that effect. The plaintiffs-respondents argued that the phrase "When any document is produced" should not be read to limit the Section to physical production of the original in Court, and that secondary evidence of an ancient document (a certified copy) is admissible under the rules when a proper case is made; they relied on prior authorities supporting that view.

The Court examined the conflicting authorities. It found that several prior decisions (Khetter Chunder Mookerjee; Ishri Prasad Singh; Ponnambalath Parapravan) supported the proposition that the presumption under Section 90 may be applied where the original cannot be produced but a certified copy is produced and properly proved. The Court concluded that the contrary observations in the 1914 Bench decision were obiter, unnecessary to that decision, and had not considered the prior authorities relied upon by the plaintiffs.

The Court further addressed the contention that plaintiffs had failed to give notice under Section 66 (to produce the original) and so could not give secondary evidence. It relied on the exception in Section 66 that permits secondary evidence without formal notice "when, from the nature of the case, the adverse party must know that he will be required to produce it." The Court held that, in a suit for redemption where the defendant was in possession of the mortgage deed, the defendant must have known the original would be required and therefore notice was unnecessary; the defendants' failure to produce the original made the certified copy admissible under Section 65 and the Section 66 exception.

Two lines of reasoning appearing in the opinions were invoked to support the admissibility and presumption: (1) direct reliance on earlier judicial authorities which had applied Section 90 to certified copies; and (2) an equity/analogy approach and the general presumption power under Section 114 of the Evidence Act, which permits a Court to presume facts likely to have happened (the Court stated that Section 90 is an illustration of that general presumption and that applying Section 90 by analogy to a properly established certified copy was consistent with Section 114). One judge (Waish, J.) explicitly stated he preferred to base his concurrence on equitable principles and Section 114 in addition to the authorities.

On that basis the Court concluded that the certified copy of the 1876 mortgage was admissible and that the presumption under Section 90 could be applied; the lower Courts' conclusions were upheld.

Holding and Implications

Holding (core ruling): THE APPEAL IS DISMISSED WITH COSTS.

Implications and direct effects:

The Court upheld the lower Courts' finding that the 1876 mortgage was proved on the evidence filed (including the certified copy) and that the plaintiffs were entitled to redemption on payment as decreed below.
The Court held that a certified copy of an ancient document may, in appropriate circumstances, attract the presumption under Section 90 of the Evidence Act when the original cannot be produced, particularly where the adverse party had possession and must have known the original would be required.
The Court ruled that Section 66's exception ("when, from the nature of the case, the adverse party must know that he will be required to produce it") excused formal notice to produce the original in the factual circumstances of a redemption suit where the defendant held the original.
The decision follows and applies existing authorities (as cited) and rejects contrary obiter observations in a prior Bench decision; the direct consequence for the parties is that the defendants' appeal fails and costs are awarded against them.

This summary is drawn exclusively from the provided opinion. No information beyond the text of the opinion has been added or inferred.

Show all summary ...

1. The two appeals Nos. 419 and 420 are connected and arise out of a suit brought by the plaintiffs-respondent's for redemption of a mortgage. They stated in their plaint that the mortgage was executed by one Musammat Phulbasi on the 3rd of June 1876 in favour of Bhairon Singh, the predecessor-in interest of the defendants. The mortgage was in lieu of Rs. 300 and was with possession. Musammat Pbulbasi died leaving her surviving a son called Ram Sundar. He executed a sale deed in respect of the mortgaged property in favour of the plaintiffs. The latter served a notice on the defendants asking for re-temption on the 27th of April 1915, alleging that the mortgage had been satisfied by the appropriation of the timber on the property. The defendants declined to make over possession of the mortgaged property and on the 18th of June 1915 the suit, out of which the two appeals have arisen, was instituted by them for redemption. In addition to the recovery of the property without payment, the plaintiffs asked for Rs. 215, damages for mesne profits. The defendants resisted the claim on various pleas. They denied the mortgage of the 3rd Jure 1876 as also the allegation that Ram Sundar was the son of Musammat Phulbasi. They stated that the property in suit was their own and in any case they had teen in adverse possession for more than twelve years. The original mortgage deed was not produced in the case. The plaintiffs filed a certified copy of the deed which was admitted by the Court. The Court held that as the original mortgage-deed must have been made over to Bhairon Singh, the mortgagee, and must have come, after his death, in the possession of the defendants, they should have produced it and as they had failed to produce the original document, the plaintiffs were entitled to give secondary evidence by producing a certified copy of the original deed. The Court further held that the preemption under Section 80 of the Evidence Act could be raised in respect of a certified copy filed on behalf of the plaintiffs. The revenue entries from 1864 up to the present day were also filed in the case which show that the owner of the property was the husband of Musammat Phulbasi and after his death her name was entered as owner and subseunently as mortgagor. Alter her death (he name of her son Ram Sundar was substituted and he was shown as the mortgagor. The names of Bhairon Singh and the defendants were shown in the revenue papers ever since 1876 as those of mortgagees. Taking the said entries into consideration and the presumption under Section 90 of the Evidence Act, the learned Munsif held the mortgage of 1876 proved. The other pleas in defence were also disallowed. The allegation of the plaintiffs with regard to the satisfaction of the mortgage was disbelieved. A decree was passed in favour of the plaintiffs respondents for redemption of the property on the payment of Rs. 300 Under the said decree the plaintiffs were to bear their own cost as also the costs of the defendants. Both parties appealed to the (sic) Court, the plaintiffs with regard to (sic) and the defendants with regard to be decree for redemption. The lower Appellate Court dismissed the appeal of the defendants maintaining the decree for re demotion and accepted the appeal of the plaintiffs partially making each party to (sic) his own costs. The defendants preferred two appeals to this Court, namely Nos. 419 and 420.

2. The two appeals came up before me on the 20th of January 1919, when three objections were urged on behalf of the appellants against the decree of the lower Court, namely, first, that the mortgage of 1876 is not proved, secondly, that the defendants have proved their adverse possession for more than 12 years prior to the institution of the suit; and thirdly, that no tender having been made by the plaintiffs their claim is not maintainable. In my judgment of the 20th of January 1919 I have given reasons for the rejection of the second and third objections. The first objection, relating to the proof of the mortgage of 1876, raised a point of law about which I found conffict of of authority in this Court and, therefore, I referred the case to a larger Bench. The only point now before us is whether the mortgage which the plaintiffs seek to redeem has been proved according to law. The contention for the defendants-appellants is that the plaintiffs have only filed a certified copy of the mortgage of the 3rd of June 1876 and no presumption under Section 80 can be raised in respect of it. The language of the section clearly shows that the section applies only to the case of an original document, and not to a certified copy. On the other hand the argument for the plaintiffs-respondents is that the use by the Legislature of the words, "When any document is produced", does not limit the operation of the section to cases in which the document is actually produced in Court. Secondary evidence of an ancient document is, therefore, admissible without proof of the execution of the original when a case is made not under Section 60 of the Evidence Act. In support of his argument the learned Compel for the respondents relies soon the following cases: Khetter Chunder Mookerjee v. Khetter Pal Sreeterutno 5 C. 886 ; 6 C.L.R. 199 ; 2 Ind. Dec. (N.S.) 1172; Ishri Prasad Singh v. Lallijas Kunwar 22 A. 294 ; A.W.N. (1900) 82 ; 9 Ind. Dec. (N.S.) 1227 and Ponnambalath Parapravan v. Karoth Saniaran Nair 12 Ind. Cas. 453 ; 21 M.L.J. 981.

3. The reply for the appellants is that these cases were wrongly decided and that the provisions of section 90 were not carefully considered. Reliance is placed by the appellants on a passage in the judgment of a Bench of this Court in First Appeal No. 13 of 1913 decided on the 6th of July 1914. The passage in question is as follows:--"Section 90 of the Evidence Act only applies when the document is produced and the presumptions therein mentioned are presumptions in favour of a document which is actually produced. Even then the Court is not bound to presume, although it is entitled to do so if it thinks fit. There is no presumption in favour of a document, the copy of which is produced in evidence." On a reference to the facts of that case it appears that no question of presumption under Section 90 arose, inasmuch as the loss of the original mortgage deed had not been satisfactorily proved. The observations about the application of Section 90 to a certified copy were merely an expression of opinion which need not have been made as far as the decision of that case was concerned. The cases relied upon by the plaintiffs respondents were not brought to the notice of the learned Judges who decided it I agree with Mr. Justice Wilson in his observations in the case of Khetter Chunder Mookerjee v. Khetter Paul Sreeterutno 5 C. 886 ; 6 C.L.R. 199 ; 2 Ind. Dec. (N.S.) 1172. The language of Section 90 does not limit or confine the application of the Section to cases where the original document is actually produced in Court. This Court also took the same view in the case of Ishri Prasad Singh v. Lallijas Kunwar 22 A. 294 ; A.W.N. (1900) 82 ; 9 Ind. Dec. (N.S.) 1227 On the construction of the Section contended for by the appellants, it would open a door to fraud by enabling a mortgagee to withhold the mortgage deed and thus defeat the claim for redemption. I think that the lower Courts were right in applying Section 90 to the certified copy of the mortgage of 1876 filed by the plaintiffs. There is one more point to be considered in connection with the objection of the appellants. The learned Counsel has contended that no notice for the production of the original was served upon his clients and omission to give such a notice is fatal to the case of the plaintiffs, and that they were not entitled to give secondary evidence unless and until they had served a notice upon the defendants to produce the original. I do not think that there is any force in this contention. According to Section 66 of the Evidence Act, secondary evidence of the contents of the documents referred to in Section 65, Clause (a), shall not he given unless the party proposing to give such secondary evidence has previously given to the party in whose possession or power the document is (or to his Attorney or Pleader) such notice to produce it as is prescribed by law, except in the six cases mentioned in the section. One of the exceptions is: "When, from the nature of the case, the adverse party must know that he will be required to produce it." In the present case the defendants must have known that the mortgage dead in their possession would be required in evidence in the case. They failed to produce it. The plaintiffs were, therefore, entitled to give secondary evidence of the deed without giving any notice to the defendants or their Pleader, calling upon them to produce the original. I would, therefore, hold that there is no force in the appeal and that the appeal should fail.

Waish, J.

5. On the question of law referred to this Court by my brother I agree that the presumption permitted by Section 90 of the due execution and attestation of a document which is shown to be thirty years old, may be made by the Court where that document cannot be produced but a certified copy of it is forthcoming.

6. In this case the defendant, the suit being one for redemption, was an adverse party who must have known that he would be required to produce the original of the mortgage. Notice to produce the document, therefore, was excused by Section 66(a). The loss of the original or its willful non-production by the defendant, it matters not which, therefore, made a certified copy admissible under Section 65. That certified copy was admissible to prove the original. In other words, to prove what the original, if produced, would have proved. I feel bound to say that the language of Section 90 seems to me to permit by its express terms the presumption which has been applied in this case only to an original which is produced, and I find myself unable to accept the explanation which is given of the word "produce" as not meaning production in Court, because, in my opinion, the section is only dealing with the function of a Court and no other sort of production in a section of the evidence act could be contemplated, and the argument for the appellant in this case is that the document is not produced. I prefer, while agreeing entirely with the result, to base my opinion upon a well-known rule of equity by which the Courts have always acted by analogy to a Statute which is not expressly applicable. We have to apply the rule of equity and good conscience where an express provision does not happen to have been made and by analogy in the case of production of a certified copy, as the document would have proved itself if produced, so I think it proves itself by the proper proof and production of secondary evidence which the law allows to be substituted for the original in certain conditions. If this is not in itself sufficient, I think it is one of those cases which was probably contemplated by the general power of presumption given by Section 114 of the Evidence Act. By that Section the Court may presume the existence of any fact which it thinks likely to have happened, regard being had to the common course of natural events, human conduct and public and private business. Section 90 is really only one illustration of that general presumption. The law says, and rightly says, owing to the long period of time which has expired, that in a document thirty years old which is produced it is to be presumed that it was properly executed and attested. That is nothing more than having regard to the common course of natural events, human conduct and public and private business. The probability is that it was. It may, of course, be expressly proved by the other side that it was not, but the party relying upon the document is not to be punished by its inability to prove the affirmative. It seems to me that in applying the analogy of Section 90, which expressly provides for the production of the original, to the production of a properly established certified copy, the Court is merely exercising powers given to it under Section 114. In any case I think there is clear authority on the subject which ought to be followed in this Court. The point was decided by a single Judge in 1830 in the case of Khetter Chunder Mukherjee v. Khetter Panl Sreeterutno 5 C. 886 ; 6 C.L.R. 199 ; 2 Ind. Dec. (N.S.) 1172. That decision was followed by a two Judge decision of this Court in 1900, reported in the case of Ishri Prasad Singh v. Lallijas Kunwar 22 A. 294 ; A.W.N. (1900) 82 ; 9 Ind. Dec. (N.S.) 1227 which we ought to follow. A two Judge Madras Bench took the same view in 1907 in the case of Ponnambalath Parapravan v. Karoth Sankaran Nair 12 Ind. Cas. 453 ; 21 M.L.J. 981. The only suggestions of an authority to the contrary are some obiter dicta by the first Court in 1914. A perusal of the record of that case shows clearly that these dicta, which occurred at the end of the judgment, were unnecessary for the decision. As my brother has pointed out, the case was disposed of at an earlier stage by a decision that the loss of the document was not established. The case has not been reported. The judgment shows clearly that the authorities to which we have referred were not mentioned or considered by the Court. I think it very unlikely, if the Court's attention had been drawn to these authorities, that they would have expressed the opinion which they did, at any rate without considerable argument. It is a point, as has been said, not free from difficulty and one which could not be disposed of by a few cursory observations. I think the dictum relied upon is not an authority at all.

7. By The Court--The order of the Court is that the appeal is dismissed with costs.