- (1.) THIS is a defendant's second appeal against the concurrent judgments of the two courts below.
(2.) THE first point argued before me by the learned counsel for the appellants was that as the execution of Ex. 1 has not been proved, the document was inadmissible and that the courts below erred in holding that the plaintiff-respondent was entitled to get decree of the property in question on that basis. This point had been raised in the two courts below. Both the courts below have rejected the aforesaid point. The argument of the appellant's counsel was that the gift-deed dated 6. 8. 1947 executed in favour of the plaintiff-respondent was inadmissible being not covered by Section 90 of the Evidence Act. The submission of the appellants' counsel is untenable. Under Section 65 of the Evidence Act, secondary evidence of a certified copy is admissible in law. The expression certified copy is not defined but the documents referred under section 76 of the Evidence Act lays down as to what are the certified copies of public documents. A certified copy is a copy certified as true and signed by an officer who has the custody of the original. In the instant case, the evidence had been brought to establish that the original of the gift-deed had been lost. Consequently, the prerequisite of Section 65 had been established and the trial court rightly took the same into account. Counsel for the appellants cited two rulings in support of his proposition that even if the loss of the original had been proved and its copy was admissible under Section 65 of the Evidence Act, but the evidence of loss of the original would not establish the execution of the decree. It is true that the execution of a document would not be proved by the mere fact of loss of the original. As the copy of the gift-deed had been admitted as secondary evidence under section 65 of the Evidence Act, the Court was entitled to presume the genuineness of the original which purported to be over 30 years old by virtue of Section 90 of the Evidence Act. Section 90 of the Evidence Act provides as follows: - "90. Where any document, purporting or proved to be 30 years old, is produced from any custody which the Court in the particular case considers proper, the Court may presume that the signature and every other part of such document, which purports to be in the hand writing of any particular person, is in that person's handwriting, and in the case of a document executed or attested, that it was only duly executed and attested by the persons by whom it purports to be executed and attested. "
(3.) IN the instant case, the plaintiff-respondent has also produced Radha Kishan, who stated that the property in question had been given by Mst. Sarshabai through Ex. 1 which was duly registered. The original document was admitted by the trial court in accordance with law. It may be mentioned here that when the original had been lost, the hand writing and the signature of the person who had executed the same could not be proved. The law could not or did not insist on the execution of the document to be established. In Basant Singh vs. Brij Raj Saran (1), the document was not certified copy. Similarly, in Gopal Das vs. Sri Thakurji (2), a Division Bench of the Allahabad High Court held that unless loss of the original deed in proved, or it is proved that the original is in the possession of or under the control of the opposite party, secondary evidence was inadmissible. In the instant case, the loss of the original had been proved and, thereafter, secondary evidence had been admitted. Reference be made to a decision of the Supreme Court reported in Kalyan Singh vs. Chhoti (3), where the Supreme Court held that the correctness of certified copies is to be presumed under section 65 read with Section 79 of the Evidence Act. ;