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Kashibai Martand v Vinayak Ganesh and Others

Bombay High Court

22 February 1955

Case Analysis

Bench P. B. Gajendragadkar, SHAH

Where Reported 1955 Indlaw MUM 221; AIR 1956 BOM 65

Case Digest Subject: Criminal; Land & Property; Practice & Procedure

Keywords: Cross-Examination, Condition Precedent, Appeal allowed,

Public Document, Specific Plea, Principal Money Secured, Private Treaty

Summary: Gajendragadkar J.

(A) Land & Property - Evidence Act 1872, ss.89, 90 - Redemption - Validity
of mortgage deed - Plaintiff filed suit for owner of equity of redemption in
respect of mortgage in suit and wants to redeem that mortgage - Trial Judge
dismissed suit holding that original mortgage deed itself had been validly
executed - Lower appellate Court dismissed appeal holding that valid
execution of mortgages had not been proved and that provisions of s.89 of
the Act could not be invoked by plaintiff - Hence, instant Appeal.

Held, deed of mortgage can be said to be validly executed, it must be

proved that it was executed by mortgagor and that execution by mortgagor
was attested by at least two witnesses. Presumption as to documents which
are 30 years old, which can be raised u/s.90 of the Act, is permissible only
in regard to original documents and not their copies. But the presumption
which is permissible to be raised u/s.89 of the Act is required to be raised
about original document. However, notice was given to opponent and
opponent has not produced document though document is in his
possession or power, then he would be entitled to ask to presume that
document was original document properly attested, stamped and executed.
Therefore, decrees passed by Courts below are set aside. Plaintiff would be
entitled to redeem mortgage in respect of property that is property
mentioned in deed of mortgage. Appeal disposed of.

SHAH, J.:

(B) Land & Property - Evidence Act 1872, s.89 - Redemption of mortgage -
Entitlement to - Validity of document - Whether plaintiff would be entitled to
redeem mortgage in respect of property.

Held, plaintiff has produced certified copy of document, and she may be
regarded as having proved contents of document. Documents of title would
include previous mortgage-deed. When after notice to produce document,
defendants failed to produce it, Court would be justified in raising
presumption of due attestation and execution u/s.89 of the Act. It does not
appear that in that case any notice to produce original document was
served, and no attempt to rely upon presumption arising u/s. 89 of the Act
was made. Plaintiff is not only entitled to rely upon presumption, but she is
also entitled, for reasons already stated, to rely upon presumption arising
u/s.89 of the Act and by combined operation of those two presumptions
plaintiff has proved that document was duly executed in manner required by
 15/10/2020 Delivery | Westlaw India Page 3

law. Appeal disposed of.

Ratio - Plaintiff shall be entitled to redeem mortgage in respect of property

that is property mentioned in deed of mortgage.

Cases Citing this Case Maria Stella and Others v T. Joseph Catherine and Others
2002 Indlaw MAD 610, AIR 2003 MAD 270

Om Prakash Berlia and Another v Unit Trust of India and Others (No. 1)
1982 Indlaw MUM 4382, AIR 1983 BOM 1, [1983] 54 Comp Cas 136

Dilipsingh v Dhaniram Narayandas and Others

1975 Indlaw MUM 164, AIR 1976 BOM 38

Irudayam Ammal and Others v Salayath Mary

1972 Indlaw MAD 327, AIR 1973 MAD 421, 1972 (2) MLJ 508

Mira Bai v Jai Singh and Others

1970 Indlaw RAJ 55, AIR 1971 RAJ 303

Gurbux Singh and Others v Bishan Dass 'Chela' Kaul Dass and Others
1968 Indlaw PNH 62, AIR 1970 P&H 182

Legislation Cited Indian Evidence Act, 1872

Indian Evidence Act, 1872 s. 65

Indian Evidence Act, 1872 s. 89

Indian Evidence Act, 1872 s. 90

Indian Evidence Act, 1872 s. 164

Registration Act, 1908

Registration Act, 1908 s. 60(2)

Transfer of Property Act, 1882

Transfer of Property Act, 1882 s. 59

© 2019 Thomson Reuters South Asia Private Limited

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15/10/2020 Delivery | Westlaw India Page 4

Bombay High Court

22 February 1955

Kashibai Martand
v
Vinayak Ganesh and Others

Case No : Second Appeal No. 1004 of 1952

Bench : P. B. Gajendragadkar, SHAH

Citation : 1955 Indlaw MUM 221, AIR 1956 BOM 65

Summary : Gajendragadkar J.

(A) Land & Property - Evidence Act 1872, ss.89, 90 - Redemption - Validity of mortgage deed - Plaintiff filed suit
for owner of equity of redemption in respect of mortgage in suit and wants to redeem that mortgage - Trial Judge
dismissed suit holding that original mortgage deed itself had been validly executed - Lower appellate Court
dismissed appeal holding that valid execution of mortgages had not been proved and that provisions of s.89 of
the Act could not be invoked by plaintiff - Hence, instant Appeal.

Held, deed of mortgage can be said to be validly executed, it must be proved that it was executed by mortgagor
and that execution by mortgagor was attested by at least two witnesses. Presumption as to documents which are
30 years old, which can be raised u/s.90 of the Act, is permissible only in regard to original documents and not
their copies. But the presumption which is permissible to be raised u/s.89 of the Act is required to be raised about
original document. However, notice was given to opponent and opponent has not produced document though
document is in his possession or power, then he would be entitled to ask to presume that document was original
document properly attested, stamped and executed. Therefore, decrees passed by Courts below are set aside.
Plaintiff would be entitled to redeem mortgage in respect of property that is property mentioned in deed of
mortgage. Appeal disposed of.

SHAH, J.:

(B) Land & Property - Evidence Act 1872, s.89 - Redemption of mortgage - Entitlement to - Validity of document -
Whether plaintiff would be entitled to redeem mortgage in respect of property.

Held, plaintiff has produced certified copy of document, and she may be regarded as having proved contents of
document. Documents of title would include previous mortgage-deed. When after notice to produce document,
defendants failed to produce it, Court would be justified in raising presumption of due attestation and execution
u/s.89 of the Act. It does not appear that in that case any notice to produce original document was served, and
no attempt to rely upon presumption arising u/s. 89 of the Act was made. Plaintiff is not only entitled to rely upon
presumption, but she is also entitled, for reasons already stated, to rely upon presumption arising u/s.89 of the
Act and by combined operation of those two presumptions plaintiff has proved that document was duly executed
in manner required by law. Appeal disposed of.

Ratio - Plaintiff shall be entitled to redeem mortgage in respect of property that is property mentioned in deed of
mortgage.

The Judgment was delivered by : HON'BLE JUSTICE GAJENDRAGADKAR

(1) This is an appeal by the plaintiff whose claim to redeem the suit mortgage has been dismissed by both
15/10/2020 Delivery | Westlaw India Page 5

the Courts below. The claim has been dismissed on the ground that the execution of the mortgage-deed is
not proved by the plaintiff.

(2) The question about the proof of the execution of the mortgage-deed came to be raised in the present
litigation in this way. The property in suit originally belonged to Baburao Ganesh Junnarkar, and according to
the plaint it was mortgaged by Baburao to Vinayak Malwadkar on 1-6-1897. Baburao on his death, left
behind him surviving his widow Laxmi and his daughter Radha-bai. Laxmi died in 1918 and Radhabai in
1934. Before her death, Radhabai executed a will on 26-12-1933.

The plaintiff is the legatee under this will in respect of the property in suit. That is how she claims to be the
owner of the equity of redemption in respect of the mortgage in suit and wants to redeem that mortgage. On
the mortgagee's side several transactions have taken place.

The mortgagee Vinayak adopted Ganesh. Ganesh died on 7-4-1934. Vinayak is his son; he is defendant No.
1 to the present suit. Vinayak sold the right, title and interest vesting in him to Dhanraj Hajarimal on
22-8-1935. The purchaser in his turn sold the property to Nath-mal Rajmal on 23-12-1935.

It appears that Vinayak challenged the sale deed executed by him in favour of Dhanraj on 22-8-1935, by
filing suit No. 214 of 1939. This suit was decreed and Vinayak was held entitled to the possession of the
property now in suit and other properties on condition that he paid Rs. 15, 000 in the manner prescribed by
the decree.

Defendant No. 1 then sold his right, title and interest in this property to Nathmal Rajmal on 29-4-1943. It
should be noticed that Nathmal felt apprehensive about the validity of his title In view of the decree which
was passed in favour of defendant No. 1 and against his vendor Dhanraj Hajarimal. That is why he sought to
perfect his title by obtaining the sale-deed from defendant No. 1.

Meanwhile, the right, title and interest of defendant No. 1 was put to sale at an auction-sale held under an
order passed on the Original Side of this Court or. 27-8-1943. Govind Palekar was the auction-purchaser at
this sale. Govind Palekar, in his turn, sought to complete his title and leave no defect in it by obtaining a
deed of release from Nathmal on 27-11-1943. Govind Palekar died on 27-9-1944, and the present
defendants Nos. 2 to 6 are his heirs and legal representatives.

It is from these defendants that the plaintiff seeks redemption in respect of the mortgage which, according to
the plaint, was executed by Baburao on 1-6-1897, in favour of Vinayak Malwadkar. The defence was that
Baburao was not the owner of the property at any time and so he was not authorised to execute any
mortgage-deed in respect of the said property. It was urged by the defendants that Malwadkar was in
enjoyment of the property as absolute owner throughout the period and reliance was placed upon the
several transactions in respect of this property which have taken place on the side of Malwadkar and to
which I have just referred.

(3) After the plaint was filed, the plaintiff contended that the original document was not with her and she
wanted liberty to produce the certified copy of the original mortgage-deed. The mortgage-deed was
registered and a certified copy was accordingly produced along with the plaint.

The learned trial Judge allowed the plaintiff to produce the certified copy, but he held that the production of
the certified copy would not Justify the inference which the plaintiff wanted to be drawn in her favour, that the
original mortgage-deed itself had been validly executed. That is why, though the learned trial Judge recorded
findings in favour of the plaintiff on other issues, he dismissed the suit on the ground that the valid execution
of the mortgage had not been proved by the plaintiff.

The plaintiff took this matter before the lower appellate Court and the lower appellate Court has taken the
same view as the learned trial Judge did on the question as to the valid execution of the mortgage-deed.
Three points were raised before the lower appellate Court for its determination. On the question of limitation
the lower appellate Court has made a finding in favour of the plaintiff.

The contention raised by the defendants, that prior purchasers were necessary parties and the suit was
defective on account of non-joinder of necessary parties, was rejected by the lower appellate Court; but he
has held that the valid execution of the mortgages has not been proved and that the provisions of S. 89 of
the Evidence Act could not be invoked by the plaintiff in support of her claim. In the result the appeal
preferred by the plaintiff was dismissed. It is this decree which is challenged before us by the plaintiff.

(4) When the matter was argued before my learned brother on 19-1-1955, it was urged that the point raised
was of some importance and that there appeared to be some conflict in the observations made in two
reported judgments of this Court. So my learned brother referred the matter to a division bench and it has
now come before us for final disposal.

(5) The point of law which arises for our decision falls under Ss. 89 and 90, Evidence Act. The first
contention which Mr. Kotwal has raised before us on behalf of the appellant is that he would be entitled to
15/10/2020 Delivery | Westlaw India Page 6

ask the Court to draw a presumption in favour of his claim under S. 90, Evidence Act, itself. Mr. Kotwal
points out that the original document was a registered document and that he has been permitted to produce
and prove a certified copy of the said document.

The certified copy itself can be regarded as more than 30 years old and so under the provisions of S. 90 a
presumption can be drawn, about the valid execution of the original document in turn.

This question has been raised for judicial decision on several occasions and since the decision of the Privy
Council in 'Basant Singh v. Brijraj Saran Singh', AIR 1935 PC 132 (A), it must now be taken to be settled
that, where a document which is produced is a copy admitted under S. 65, Evidence Act, as secondary
evidence and it is produced from proper custody and is over 30 years old, the signatures authenticating the
copy may be presumed to be genuine under S. 90.

Even so, under S. 90, when a copy is produced, the presumption cannot be made that the signature,
handwriting, execution or attestation of the original document were in order. S. 90 provides for the raising of
a presumption as to documents purporting or proved to be 30 years old.

Where any document purporting or proved to be 30 years old is produced from proper custody, the Court
may, under S. 90, 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.

Before the decision of the Privy Council was pronounced on this point in 'Basant Singh's case (A)', there
appears to have been a conflict of judicial opinion on the question as to whether tha presumption permissible
under the provisions of S. 90 was confined only to original documents or could be extended even to copies
of original documents allowed to be produced under the provisions of S. 65 of the Evidence Act.

That conflict has now been resolved and it has been decisively held that the presumption under S. 90 cannot
apply to a copy though it may have been admitted under the provisions of S. 65 of the Evidence Act.

(6) Mr. Kotwal, however, argues that the copy which was produced before the Privy Council was not a
certified copy of a registered document and his case is that different considerations would arise when the
Court is dealing with a question of the application of S. 90 in reference to a certified copy of a registered
document. In connection with this argument, Mr. Kotwal has invited our attention to the provisions contained
in three sections of the Registration Act.

(7) S. 58 of that Act provides for particulars to be endorsed on documents admitted to registration. Under
sub-s. (1) of this section, on every document admitted to registration, other than a copy of a decree or order,
or a copy sent to a registering officer under S. 39, there shall be endorsed from time to time the particulars
mentioned in els. (a), (b) and (c) of the said subsection.

Under cl. (a), the signature and addition of every person admitting the execution of the document, and, if
such execution has been admitted by the representative, assign or agent of any person, the signature and
addition of such representative, assign or agent, is required to be endorsed.

Under cl. (c) of the said sub-section, any payment of money or delivery of goods made in the presence of the
registering officer in reference to the execution of the document, and any admission of receipt of
consideration, in whole or in part, made in his presence in reference to such execution, is required to be
endorsed. Cl. (b) deals with the signature and addition of every person examined in reference to such
document under any of the provisions of the Act.

S. 59 requires the registering officer to affix the date and his signature to all endorsements made under S.
58. Lastly, S. 60 provides that, after such of the provisions of Ss. 34, 35, 58 and 59 as apply to any
document presented for registration have been complied with, the registering officer shall endorse thereon a
certificate containing the word "registered", together with the number and page of the book, in which the
document has been copied.

When the procedure thus prescribed has been followed in registering a document and the endorsements
required to be made have been duly made by the registering officer, sub-s. (2) of S. 60 provides for a
statutory presumption. It says that such certificate shall be signed, sealed and dated by the registering officer
and shall then be admissible for the purpose of proving that the document has been duly registered in a
manner provided by the Act and that the facte mentioned in the endorsements referred to in S. 58 have
occurred as therein mentioned.

It would thus be seen that the effect of sub-s. (2) of S. 60 is to enable the Court to raise a statutory
presumption that the facts mentioned in the endorsements have occurred as therein mentioned. In other
words, wherever the endorsement of the registering officer shows that the executant admitted the execution
of the document before him or admitted the receipt of the money mentioned in the document, the said facts
15/10/2020 Delivery | Westlaw India Page 7

would be endorsed by the registering officer and the endorsements thus made, which a certificated copy
would bear, can be regarded as showing that the facts mentioned in the endorsements have occurred as
therein mentioned.

Mr. Kotwal is, therefore, justified in contending that under the provisions of S. 60, sub-s. (2), it would be
competent to the Court to hold that the execution of the document had been admitted by the executant
before the Sub-Registrar. That is the endorsement which the certified copy produced in the present
proceedings bears and the said endorsement must be given its due legal effect having regard to the
provisions of S. 60, sub-s. (2).

(8) It is, however, necessary to make it clear that the inference as to the admission made by the executant
that he had executed the document which we are raising in the present appeals is referable to S. 60(2),
Registration Act, and it has no reference to S. 90, Evidence Act.

In order to draw the inference under S. 60(2) of the Registration Act it is not required that the document
should be ancient: all that is required is that, under the provisions of the Evidence Act, a certified copy
should be admissible, and if it is admitted, it should bear the endorsement required by S. 58 of the
Registration Act.

Whenever a certified copy of a registered document bearing endorsements made under S. 58 is produced
before a Court, S. 60(2) authorises the inference to be drawn that the facts mentioned in the endorsements
have occurred as therein mentioned. In other words, this is a presumption or inference authorised by the
provisions of S. 60(2), Registration Act and it need not be connected or confused with a presum-tion or
inference that may arise under S. 90 of the Indian Evidence Act.

The provisions of S. 90 do not apply to a copy as has been held by the Privy Council and it would make no
difference to the said position that the copy in question is a certified copy of a registered document. S. 90
refers to a document, and in the context it must mean the original document and not its copy, however,
made. Therefore, in our opinion, it would not be right to hold that, because the Privy Council were dealing
with the certified copy of an unregistered document when they considered the scope and effect of the
provisions of S. 90, of the Evidence Act, the decision should be confined only to certified copies of
unregistered documents and cannot be extended to certified copies of registered documents.

The decision of the Privy Council is based upon the proper denotation of the word "document" used in S. 90
and on that denotation all copies would be excluded, whether they are certified copies of registered or
unregistered documents. Even so, as I have just indicated, having regard to the provisions of S. 60 (2), it
would be open to the appellant in the present case to contend that, since the document which is produced is
a certified copy of a registered document, a presumption can be drawn that the document had been
executed by the executant and that he had admitted its execution before the registering officer.

(9) This position, however, would not materially assist the appellant because the valid execution of the
document implies the proof of some other facts. It would not be enough to prove that the mortgagor put his
signature to the document of mortgage and admitted that the document had been executed by him before
the registering authority. Having regard to the provisions of S. 59 Transfer of Property Act, the plaintiff would
further have to prove that the deed of mortgage executed by the mortgagor was attested by at least two
witnesses.

In other words, before a deed of mortgage can be said to be validly executed, it must be proved that it was
executed by the mortgagor and that the execution by the mortgagor was attested by at least two witnesses.
And it would be clear that, so far as the proof of this additional fact is concerned, S. 60 (2), Registration Act,
would be powerless to give any help to the appellant. S. 60(2) is confined to the endorsements made under
S. 58 of the Act and it provides for the raising of a statutory presumption or inference in respect of the said
endorsements alone.

(10) Mr. Kotwal, however, contends that in the present case it would be open to him to rely upon the
provisions of S. 89 Evidence Act, and it is this point which needs to be considered by us in the present
appeal. S. 89 provides that the Court shall presume that every document called for and not produced after
notice to produce was attested, stamped and executed in the manner required by law. As the words of the
section indicate, in all cases to which the section applies the Court would be entitled to raise a presumption
that the document in question was attested, stamped, and executed in the manner required by law.

This presumption cannot be said to be limited merely to the mechanical part of attestation or execution. The
presumption which is justified under S. 89 is in respect of the legal requirements as to attestation, stamping
and execution. In other words, wherever the provisions of S. 89 can be legitimately invoked, it would be open
to the Court to hold that the document which was called for and had not been produced had been attested
as required by law, stamped as required by law and executed in the manner prescribed by law.

Mr. Kotwal's contention is that, in the present case, notice was given to the defendants to produce the
document and they have not produced it. That is why Mr. Kotwal wants us to raise the statutory presumption
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under S. 89 of the Evidence Act

(11) Before dealing with the facts in the present case, it may be convenient at this stage to consider the
effect of the provisions of S. 89 of the Evidence Act by reference to some other relevant sections of that Act.
The rule of the Evidence Act which is enunciated in S. 61 is that the contents of documents may be proved
either by primary or by secondary evidence. In the normal course, the original document is intended to be
produced before the Court in order to prove its contents. But in certain specified cases, secondary evidence
is permissible.

"Secondary evidence" has been defined by S. 63 of the Act. This expression means and includes certified
copies given "under the provisions hereinafter contained"; copies made from the original by mechanical
processes which in themselves insure the accuracy of the copy, and copies compared with such copies; and
other documents to which the section refers.

Under S. 65, secondary evidence may be given of the existence, condition or contents of a document in the
cases mentioned in that section, S. 64 having provided that documents must be proved by primary evidence
"except in the cases hereinafter mentioned".

Now, the exceptional cases, in which secondary evidence may be given of the existence, condition or
contents of a document, are specified in cls. (a) to (g) of S. 65. We are more directly concerned in the
present case with cl. (a) of S. 65.

This clause provides that, when the original is shown or appears to be in the possession or power of the
person against whom the document is sought to be proved, or of any person out of reach of, or not subject
to, the process of the Court; or of any person legally bound to produce it; and when, after the notice
mentioned in S. 66, such person does not produce it, secondary evidence may be given of the existence,
condition or contents of a document.

S. 66 deals with the rules as to notice to produce certain documents and under this section secondary
evidence of the contents of documents referred to in S. 65, cl. (a), shall not be 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; and if no
notice is prescribed by law, then such notice as the Court considers reasonable under the circumstances of
the case.

The position, therefore, is that, where a party wants to produce a certified copy of a document on the ground
that the original is in the possession or power of his opponent, he is required to give notice to the opponent
under S. 66 calling upon him to produce the original document which is in his possession or power. When
notice is thus served on the opponent, it would be his duty to produce the document before the Court. If
despite the notice, the opponent fails to produce the document, then under the provisions of S. 65(a) it would
be open to the party to produce a certified copy of the said document.

It would thus be clear that, before these provisions are pressed into service and a certified copy is allowed to
be produced by a party, it would be necessary for the Court to be satisfied that the original document is in
the possession or power of the person or persons mentioned in S. 65(a) of the Evidence Act, that notice has
been given to the person or persons to produce the document, and that despite the notice the person or
persons have failed to produce the document.

It is in reference to such cases that S. 89 purports to draw the presumption to which I have just referred. It
deals with cases where a document is called for and not produced, and that would apply to cases falling
under S. 65(a) and S. 66, Evidence Act. I have already indicated that there are several exceptional cases in
which secondary evidence is permissible to be produced under S. 65; but in none of the cases other than
those falling under cl. (a) of that section is notice required to be given under S. 66 of the Act.

If, for instance, the original document has been destroyed or lost, or when the party offering evidence of its
contents cannot for any other reason not arising from his own default or neglect produce it in reasonable
time, the party is entitled to produce secondary evidence under S. 65, Cl. (c); and yet, before he is allowed to
produce secondary evidence, he is not required by S. 66 to give any notice to any party whatever.

All that he has to prove is that the original has been destroyed or lost, or that for any other reason not arising
from his own default or neglect he would not be able to produce the original in reasonable time. Prima facie
in such cases the provisions of S. 89 may not be applied.

The condition precedent for the application of S. 89 appears to be that the original document must have
been called for and has not been produced after notice to produce it is given, and these conditions
unequivocally suggest that the cases in which the statutory presumption under S. 89 can be raised are
cases which fall under S. 65(a) and S. 66, Evidence Act.

The principle underlying the provisions of S. 89 is sometimes described as the "necessity" principle. If a
15/10/2020 Delivery | Westlaw India Page 9

party is in possession of a document, or it is shown that the document is in his power, and despite the notice
given to him to produce that document he refuses to produce that document, law provides that the conduct
of the party justifies an inference being drawn against him, and in that sense the principle of necessity is
invoked and Courts are authorised to assume that the document which has not been produced must have
been properly attested, stamped and executed in the manner required by law.

While Considering the presumption Which arises under S. 89, it may be relevant to remember that once a
presumption is drawn under S. 89, it cannot be easily rebutted by the production of the original document at
a later stage. S. 164 of the Evidence Act lays down that, when a party refuses to produce a document which
he has had notice to produce, he cannot afterwards use the document as evidence without the consent of
the other party or the order of the Court.

It would be possible to compare the presumption which can statutorily be raised under S. 89 with the
presumption which is permissible to be raised under S. 114, Evidence Act, ill. (g). If a person fails to produce
a document in his possession, an inference can be drawn under S. 114 that such person refuses to produce
the document, because, if produced, it would be against his interests.

On similar lines and for similar reasons S. 89 authorises the presumption to be drawn in cases to which the
said section applies, that the original document is not produced because it would, if produced, show that it
was properly attested, stamped and executed in the manner required by law.

When a party is allowed to produce secondary evidence under S. 65, all that the section permits to be done
is to enable the party to prove the contents of the document by the production of the secondary evidence.
That by itself would not be of decisive importance to the party because before the contents are allowed to be
proved the execution of the document has got to be established according to law; and in the matter of
proving the proper and valid execution of documents, Ss. 89 and 90 provide for raising certain artificial
presumptions.

As I have already indicated, the presumption as to documents which are 30 years old, which can be raised
under S. 90, is permissible only in regard to original documents and not their copies. But the presumption
which is permissibie to be raised under S. 89 is required to be raised about the original document in
circumstances to which I have just referred. Therefore, if Mr. Kotwal is able to prove that in the present case
notice was given to the opponent and the opponent has not produced the document though the document is
in his possession or power, then he would be entitled to ask us to presume that the document was the
original document properly attested, stamped and executed.

(12) Mr. Desai for the respondents has strenuously argued that, though Mr. Kotwal may be right in the point
of law which he has raised before us, it would not be open to him to contend that the statutory presumption
under S. 89 should be drawn in his favour because the lower appellate Court has made a finding against Mr.
Kotwal on this point.

The lower appellate Court appears to have thought that it was not shown satisfactorily that the original
document was in the possession or power of defendants. Nos. 2 to 6 and that naturally has been relied upon
by Mr. Desai in his favour. It is perfectly true that the question as to whether it is shown by a party asking for
leave to adduce secondary evidence under S. 65 that the original document is in the possession or power of
the opponent would be a question of fact; and, in the ordinary course, a finding recorded by the lower
appellate Court on this question of fact would bind the parties in second appeal.

But in the present case, we are reluctant to attach any importance to the finding made by the lower appellate
Court for two reasons. We have carefully considered the evidence given by defendant No. 4 in this case and
we have felt no hesitation whetever in coming to the conclusion that the statements made by defendant No.
4 cannot be regarded as legal evidence at all.

The only witness who has been examined for the defendants is defendant No. 4. On the plaintiff's side she
herself stepped into the witness-box. It is not surprising that since the plaintiff is a legatee under the will
executed by Radhabai, she can have no personal knowledge in the matter. Defendant No. 4 is the brother of
the auction-purchaser Palekar.

From the statements made by him in evidence-in-chief, it is obvious that he has no personal knowledge in
the matter of the auction purchase at all. His brother had become the auction-purchaser and defendant No.
4 is one of the heirs who has succeeded to the estate of the auction-purchaser on his death. Amongst his
other heirs are the sons of the auction-purchaser and his widow. Shankarrao, defendant No. 4. stated that
he had filed a sale certificate and that he had no other document in regard to the property in question.

He also added frankly that he did not know if the suit property had been mortgaged by any one. In
cross-examination he said that he had not asked Nathmal to give him prior documents of title. Apparently the
lower appellate Court was inclined to attach some importance to this statement made by Shankarrao. In view
of the fact that Shankarrao had no concern with the auction-sale which gave title to his brother, the
statement made by him that he did not ask Nathmal to give him prior documents can have no significance
15/10/2020 Delivery | Westlaw India Page 10

whatever.

Here is a legal representative and heir of the deceased auction-purchaser stepping into the witness-box and
from his evidence it is patent that he had no personal knowledge as to what happened at the time when the
auction-sale took place in 1943; and yet the learned appellate Judge appeal's to have regarded
Shankarrao's evidence as legal evidence on which a finding could be made as to whether it was shown that
the original document was in the possession of the defendants or not.

(13) The other reason which has weighed with us in not attaching any value to the finding made by the lower
appellate Court is that he appears to have lost sight of one material fact in dealing with this question. The
learned Judge has emphasized the fact that the predecessor-in-title of the present defendants Nos. 2 to 6
was an auction-purchaser at the Court-sale held on 27-8-1943, and, according to him, the fact that the
auction-purchaser got title from a Court-sale excluded the possibility that he might have cared to obtain the
original deed of mortgage as alleged by the plaintiff.

In coming to this conclusion, the learned Judge apparently lost sight of the fact that, though the
predecessor-in-title of defendants Nos. 2 to 6 can in one sense be regarded as an auction-purchaser in
respect of the properties sold at the Court-sale, in another sense he sought to make his title complete by
obtaining a private document from Nathmal on 27-11-1943.

I have already mentioned the material facts in respect of the transactions that took place on the mortgagee's
side in regard to the properties in suit. From those facts it would be apparent that after defendant No. 1
obtained a decree in Civil Suit No. 214 of 1939, Nathmal, who felt shaken by the said decree, obtained a
private document from defendant No. 1 on 29-4-1943, and in his turn the auction-purchaser fortified his title
by obtaining a document from this Nathmal himself. Therefore, it is clear that the auction-purchaser sought
to obtain title by a private document and in that case the normal presumption would be that he also secured
from his vendor all documents of title including presumably the mortgage-deed in question. It is remarkable
that in these proceedings the sale-deed passed by defendant No. 1 to Nathmal and the deed of release
obtained by the auction-purchaser Palekar from Nathmal have not been produced before the Court.

The only document which has been produced by the contesting defendants is the auction sale certificate.
Therefore, in our opinion, the lower appellate Court was in error in holding that, since the title derived by the
contesting defendants was based on an auction-sale, it was unlikely that the original deed of mortgage
would be with them, as this is wholly inconsistent with the facts as to which there is no dispute before us.

Before us there has been no dispute as to the transactions to which I have referred, and that being so, it
seems to me that the lower appellate Court was clearly in error in basing his conclusions on facts which
were neither accurate nor true.

(14) In this connection, it would also be relevant to remember that though this litigation appears to have been
seriously contested, in the written statement no plea has been made as required by the proviso to S. 68,
Evidence Act. S. 68 deals with the question of proof of execution of documents which is required by law to
be attested, and the proviso adds that it would not be necessary to call an attesting witness in proof of the
execution of any document, not being a will, which has been registered in accordance with the provisions of
the Indian Registration Act, unless its execution by the person by whom it purports to have been executed is
specifically denied.

It is well known that, if a party to a redemption suit wants to challenge the valid execution of the
mortgage-deed itself and is inclined to dispute the validity of attestation, he must specifically make a proper
denial in that behalf if he intends to compel the mortgagor-plaintiff to prove the attestation in accordance with
law. The denial must be specific within the terms of the proviso, and it has not at all been specific in the
written statement filed by the contesting defendants in the present case.

It is true that they denied the authority of Baburao to execute a valid mortgage. They seemed to contend that
the property always belonged to the Malwadkar family as their own property. Even so, no alternative plea
has been made in the written statement suggesting that, in case the mortgage-deed was alleged to be
executed by Baburao validly, the attestation of the document was denied and that the plaintiff should be
called upon to prove that part of her case.

Indeed, if the learned trial Judge had considered the pleadings more carefully, he might have hesitated to
call upon the plaintiff to prove the attestation part of the requirement of law. I am referring to this fact for the
purpose of showing that it was not probably intended seriously by the contesting defendants to dispute the
attestation part of of the execution of this document.

This may have some bearing on the merits of the question whether the original mortgage-deed was in the
possession or power of the contesting defendants. In the ordinary course the deed of mortgage would be
with the mortgagee, and as soon as it is shown that the execution of the mortgage was admitted by the
executant before the Sub-Registrar, the mortgagee or his heirs would be required to lead some evidence to
show that the document was not with them nor was it in heir power.
15/10/2020 Delivery | Westlaw India Page 11

It is true that the onus to prove the fact that the document in question is in the possession or in the power of
the opponent is initially on the party seeking to ask for permission to lead secondary evidence. But, in the
circumstances of this case, I feel no difficulty whatever in holding that the plaintiff has discharged that onus.

The conduct of the defendants in not making a specific plea as required by the proviso to S. 68 of the
Evidence Act, in not producing the material documents such as the sale-deed passed to Nathmal by
defendant No. 1 and the deed of release executed by Nathmal in favour of Govind Palekar, and in failing to
lead any legal evidence to show that the document was not with them or in their power, corroborates the
same conclusion.

(15) That being so, I am disposed to take the view that the appellant is entitled to rely upon the presumption
raised, under S. 89, Evidence Act. If the said presumption is raised, then it must be held that the original
document was properly stamped, attested and executed as required by law.

(16) It would now be necessary to refer to some of the decisions to which our attention has been invited at
the Bar. I have already mentioned the decision of the Privy Council in 'Basant Singh v. Brijraj Saran Singh',
(A). After this judgment was reported, the question as to the scope and effect of the provisions of S. 90 of
the Evidence Act has been considered on three occasions in this Court. By coincidence all the three
judgments are delivered by single Judges and in none of them did the question of applying the provisions of
S. 89 fall to be considered.

In 'Vithoba Savlaram v. Shrihari Narayan', AIR 1945 Bom 319 (B), Chagla J. as he then was, held that the
statutory presumption under S. 90 of the Evidence Act can be raised only with regard so the original
document if produced in Court; and that it does not apply to a certified copy when the original document is
not before the Court. So far as I can gather from the facts mentioned in 'Vithoba Savla-ram's case (B)' it
appears to be a case where secondary evidence was permitted to be led on the ground that the original
document was lost or destroyed and so there was no occasion to consider the question as to whether S. 89
applied.

The learned Judge has referred to the Privy Council judgment in 'Basant Singh's case (A)' and has observed
that, if the document produced is a copy admitted u/s. 65 as secondary evidence and it is produced from
proper custody and is over 30 years old, then the signatures authenticating the copy may be presumed to be
genuine, but that the actual execution of the original could not be said to be proved by the production of such
secondary evidence because that presumption did not apply to a copy which has been produced as
secondary evidence.

With very great respect, it may be pointed out that the attention of the learned Judge does not appear to
have been drawn to the relevant sections of the Indian Registration Act. I have already dealt with these
sections and I have pointed out that under Section 60, sub-section (2), of the said Act, a stautory
presumption arises that the facts mentioned in the endorsements required to be made under S. 59 occurred
as indicated in the endorsements.

The words of Section 60, sub-s. (2), themselves are very clear; but even so, it may be relevant to refer to two
reported judgments of this Court where the said sections have been construed and given effect to. In 'Thama
v. Govind', 9 Bom LR 401 (C) it has been held that Sections 58, 59 and 60, Registration Act provide that the
facts mentioned in the endorsements may be proved by those endorsements provided the provisions of S.
60 have been complied with.

To the same effect is the decision of Baker J. who delivered the judgment of the Bench in 'Yishva-nath v.
Rahibai', AIR 1931 Bom 105 (D). If the attention of the learned Judge had been invited to these provisions of
the Indian Registration Act, he would have considered the other point which arose on the facts before him,
and that was in respect of the requirements of law as to the valid execution of a mortgage in 1891.

It is well known that the requirement that a deed of mortgage must be attested by two witnesses came to be
introduced by the provisions of the Transfer of Property Act for the first time. In case of mortgages executed
before the date of enactment of the Transfer of Property Act, that requirement had not to be satisfied by
mortgage-deeds.

In other words, if a mortgage-deed was executed before the Transfer of Property Act came into operation,
then the statutory presumption under Section 60, sub-s. (2), of the Registration Act, would be enough to
prove the valid execution of the said mortgage-deed altogether; and it does appear that the mortgage
transsaction with which the learned Judge was dealing in 'Vithoba Savlaram v. Shrihari', (B) had taken place
in 1891, that is, prior to the date when the Transfer of Property Act came to be applied to the State of
Bombay.

From the judgment delivered by the learned Judge it is clear that this aspect of the matter was not
mentioned before the learned Judge. The attention of Lokur, J. however, was drawn to this aspect of the
material provisions of the Registration Act in 'Pandappa Mahalingappa v. Shivlingappa Murteppa', AIR 1946
Bom 193 (E) and he has considered the effect of the said provisions at length and has held that, in regard to
15/10/2020 Delivery | Westlaw India Page 12

a mortgage like the one which he was dealing and which was executed before the Transfer of Property Act
came into operation, the presumption raised under Section 60, sub-s. (2), was enough to prove the valid
execution of the mortgage once secondary evidence in the form of a certified copy of the original mortgage
was allowed to be produced u/s. 65 of the Evidence Act.

With respect, I think the view taken by Lokur, J. is right. Dixit J. who had to deal with the same point in
'Mahamad Saheb v. Kamal', AIR 1953 Bom 338 (F), has, with respect, correctly pointed out the distinction
between the statutory presumption which can be laised under Section 90, Evidence Act and that whicn can
be raised under Section 60, sub-s. (2), Registration Act.

Since the mortgage with which Dixit, J. was dealing was subsequent to the date of enactment of the Transfer
of Property Act, the presumption under Section 60, sub-s. (2), was insufficient to justify the plaintiff's claim.
Therefore, in my opinion, the view taken by Lokur J. in 'Pandappa Mahalingappa v. Shivlingappa Murteppa
(E)', is right, as it is plainly in consonance with the provisions of Section 60, sub-s. (2), Registration Act.

(17) That, however, would not be enough in the present case to justify the plaintiff's claim because the deed
of mortgage itself is subsequent to the date of the coming into operation of the Transfer of Property Act. That
is why I have had to consider the question as to the effect of the provisions of Section 89, Evidence Act.
Since I have held that the appellant is entitled to invoke the provisions of S. 89 of the Evidence Act, I must
draw the inference in her favour that the original document, a certified copy of which has been produced
before us, was properly stamped, attested and executed.

(18) The result is, the appeal must be allowed and the decree passed by the Courts below must be set
aside. The plaintiff would be entitled to redeem the mortgage in respect of the property which bears City
Survey No. 368; that is the property mentioned in the deed of mortgage and it is only this property which the
plaintiff would be entitled to redeem.

(19) It has been urged before us by Mr. Desai that several improvements have been made by the mortgagee
and that accounts will have to be taken of these improvements before a decree of redemption is drawn up. I
do not propose to express any opinion on this issue at this stage. We would, therefore, send back the
papers to the learned trial Judge with a direction that he should draw a preliminary decree for redemption in
accordance with, this judgment and in accordance with law.

(20) We think, in the circumstances of this case the appellant should get her costs in this Court and in the
lower appellate Court. Costs in the trial Court will be costs in the cause.

SHAH, J.:

(21) The plaintiff's suit was dismissed by the trial Court on the ground that the execution of the deed of
mortgage which the plaintiff sued to redeem was not proved, and the appeal from that decision has been
dismissed by the District Court at Poona. The mortgage which the plaintiff sued to redeem is of 1897. Under
S. 59 of the Transfer of Property Act, 1882, when the principal money secured is Rs. 100 or more, a
mortgage can only be effected by a registered fastrument signed by the mortgagor & attested by at least two
witnesses, except where the mortgage is by deposit of title-deeds.

In the present case, according to the plaintiff, the amount secured was more than lis. 100 and the mortgage
was not by deposit of title-deeds. The plaintiff had, therefore, to establish that the property was mortgaged
by the original owner Baburao to Malwadkar by an instrument duly executed by the mortgagor and attested
by two witnesses and that the instrument was duly registered.

Now, the plaintiff was unable to produce the original deed of mortgage and that is easily explained. The
plaintiff being a devisee under the will of the heir of the original mortgagor cannot be expected to be in
possession of the mortgage-deed. The mortgage-deed would normally he in the possession of the
mortgagee. The plaintiff, therefore, filed with her plaint a certified copy of the mortgage-deed. In the course
of the trial, the plaintiff by notice called upon defendants Nos. 2 to 6, in whom the rights of the mortgagee
had vested by reason of diverse conveyances from defendant No. 1 who was the heir of the original
mortgagee, to produce the original mortgage-deed.

The defendants denied the mortgage, but they did not specifically deny execution of the mortgage-deed set
up by the plaintiff. The trial Judge held that the plaintiff was not entitled to rely upon the presumption of due
execution which arises under Section 90, Evidence Act, in respect of documents more than SO years old
and coming from proper custody. He held that the presumption cannot arise on production of a certified copy
of the document to be proved, and dismissed the suit.

The plaintiff appealed to the District Court against the decree passed by the trial Court dismissing her claim.
In appeal, the learned appellate Judge held that no presumption under S. 90 of due execution arose when a
certified copy of the mortgage-deed alone was produced, and that the plaintiff could also not rely upon the
presumption under S. 90 Evidence Act. The learned appellate Judge, therefore, agreed with the conclusion
of the trial Court and dismissed the appeal.
15/10/2020 Delivery | Westlaw India Page 13

(22) Now, in view of the decision of the Privy Council in 'AIR 1935 PC 132 (A)', the presumption of due
execution of a deed cannot be raised on production of a certified copy thereof. A large number of decisions
of the Courts in India were cited before their Lordships of the Privy Council in 'Basant Singh's case (A)' and it
was contended that the presumption under Section 90, Evidence Act, arises on production of a certified copy
of the original document. Their Lordships observed:

"In face of the clear language of S. 90 their Lordships are unable to accept these decisions as sound. The
section clearly requires the production to 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 S. 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 'Seethayya v. Subramanya
Somayajulu', AIR 1929 PC 115 (G); in that case the dispute was as to the tenns of a grant, which had
admittedly been made".

It, must, therefore, be held that the plaintiff cannot rely upon the presumption under S. 90, Evidence Act.
when the original mortgage-deed has not been produced. But the fact that the presumption under S. 90 does
not avail the plaintiff is not sufficient to nonsuit her. The plaintiff would still be entitled otherwise to prove the
mortgage set up by her in her plaint. Under Section 64, Evidence Act, the original document on which a party
relies must ordinarily be produced.

But if the original document cannot be produced it is open to a party relying upon a document to lead
secondary evidence within the strict limits provided by S. 65 Evidence Act to prove the existence, condition
or contents of the document; and one form of secondary evidence of a document is a certified copy given
under the provisions contained in the Evidence Act.

As I have stated earlier the plaintiff called upon the defedants to produce the original mortgage-deed but
they denied the mortgage. The plaintiff having called upon the defendants to produce the original
mortgage-deed, which would normally be in their possession, it was open to the plaintiff to produce a
certified copy of the mortgage-deed as secondary evidence of the contents of the document.

It is true that the burden of proving that a document is in the possession of the opposite side in a litigation
lies upon the person so alleging. But where, having regard to the circumstances and the relation between
the parties, the probability of the document being with the other side is high, it would be open to the Court, in
the absence of direct evidence, to hold that the document is shown or appears to be in the possession of
that party; and if notice to produce the original document is given and the document is not produced, the
party giving the notice may prove the contents of the document or its condition or existence by secondary
evidence. In the present case, the plaintiff has produced a certified copy of the document, and she may be
regarded as having proved the contents of the document.

(23) But mere proof of the contents of the document does not prove due execution of the mortgage deed.
The plaintiff has not only to prove the contents of the document, but she has to prove that the document was
duly executed as required by S. 59 Transfer of Property Act, and that the same was. registered. On
production of a certified copy containing endorsements required by Ss. 58 and 59 and the certificate of
registration under S. 60, Cl. (1), of the Registration Act, due registration of the document must be regarded
us proved.

Due execution of the mortgage-deed can, however, be proved only if the plaintiff is able to show that the
mortgagor signed the document with intent to execute the same and the deed was attested in the manner
required by law. For proving the signature of the mortgagor on the deed the plaintiff relied upon sub-s. (2) of
S. 60, Registration Act. That subsection, in so far as it is material, provides that where a certificate of
registration under sub-s. (1) of S. 60 has been signed, sealed and dated by the registering officer, it shall be
admissible for the purpose of proving that the facts mentioned in the endorsements referred to in S. 59 have
occurred as therein mentioned. S. 59 requires the registering officer to affix the date and his signature to all
endorsements made under Ss. 52 and 58.

S. 58(1)(a) requires the registering officer to-endorse the signature and addition of every person admitting
execution of every document, and, if such execution has been admitted by the representative, assign or
agent of any person, the signature and addition of such representative, assign or agent. In this case, from
the endorsement made on the deed of mortgage by the Sub-Registrar it is clear that the mortgage deed was
admitted to have been executed by the mortgagor and it was duly presented by him for registration.

The plaintiff is, therefore, entitled to rely upon the certificate of registration to prove the fact that the deed of
mortgage was duly signed by the mortgagor. Where the original mortgage deed has not been produced and
a suit has been filed to enforce rights under the mortgage relying upon a copy, the signature of the
mortgagor may be proved by relying upon the certificate of registration. That view is supported by a decision
of this Court reported in 9 Bom LR 401 (C).

The head-note in that case states that Ss. 58, 59 and 60, Registration Act, provide that the facts mentioned
in the endorsements may be proved by those endorsements provided the requirements of S. 60 have been
15/10/2020 Delivery | Westlaw India Page 14

complied with. That was a case in which the mortgage-deed was of 1877 and at that time a mortgage-deed
was not required by law to be attested. The Court in that case held, relying upon the certificate of registration
under S. 60 of the Regis-t"sition Act, that the mortgage-deed was duly proved and on that footing a decree
was given in favour of the mortgagee.

(23a) For proving attestation of the document, the plaintiff has relied upon S. 89, Evidence Act. The plaintiff
served a notice upon the defendants calling upon them to produce the mortgage-deed, but it was not
produced. The notice was in the form required by Ss. 65 and 66 of the Act.

S. 89 requires a Court to presume that every document, called for and not produced after notice to produce,
was attested, stamped and executed in the manner required by law. The presumption under S. 89, that the
document was duly attested in the manner required by law, will arise in favour of the plaintiff if notice is
served calling upon the defendants to produce the document and the same is not produced.

It is true that the learned appellate Judge has taken the view that it was not established that defendants Nos.
2 to 6 were in possession of the original mortgage-deed. But, in coming to that conclusion, the learned
appellate Judge appears to have misconceived the effect of the evidence. He assumed that defendants Nos.
2 to 6 were mere auction-purchasers of the interest which originally vested in defendant No. 1 and that is
was unlikely that the title-deeds had come into their possession.

But it is conceded before us that Nathmal, the predecessor-in-interest of Govind, had purchased by private
treaty the right, title and interest of defendant No. 1 after the conveyance in favour of Dhanraj was set aside
in Suit No. 214 of 1939. It is also conceded that Nathmal had conveyed his right, title and interest to Govind
by deed dated 27-11-1943. Defendants Nos. 2 to 6, being the legal representatives of Govind, may
reasonably be expected to have the custody of the title-deeds.

The defendants made no attempt to produce before the trial Court the conveyance in favour of Govind by
Nathmal, nor did they produce their earlier title deeds. It is true that the attention of the parties does not
appear to have been specifically directed to the necessity of producing the earlier documents of title. But
defendant No. 4, who alone was examined on behalf of the defendants, stated that he had with him only the
sale certificate issued by the Court, and that he had not with him any other documents of title.

He stated that Govind was merely a court-purchaser and that Govind did not get the other documents of title.
If, Govind was not merely a court-purchaser but was also a purchaser of the right, title and interest of
Nathmal, and if the defendants have not produced the documents of title which normally would be in their
possession, it would not be unreasonable to infer that the documents were in the possession of defendants
Nos. 2 to 6 at the date when they were called upon to produce the same.

The documents of title would include the previous mortgage-deed as well, and when the plaintiff called upon
defendants Nos. 2 to 6 to produce the mortgage-deed by her notice exh. 61 and the same was not
produced, the requirements of S. 66, Evidence Act, which enable a plaintiff to lead secondary evidence of
the contents of a document, must be deemed to have been fulfilled. When after notice to produce the
document, the defendants failed to produce it, the Court would be justified in raising the presumption of due
attestation and execution under S. 89, Evidence Act.

The plaintiff, therefore, must be deemed to have proved, by the presumption under sub-s. (2) of S. 60,
Registration Act, the signature of the mortgagor Eaburao on the deed of mortgage and the due attestation of
that deed by the presumption arising under S. 89, Evidence Act. The plaintiff has, therefore, discharged the
burden of proving that the document of mortgage executed by Baburao in favour of Malwadkar was
executed in the manner required by S. 59, Transfer of Property Act.

(24) I may at this stage refer to some of the decisions which have been brought to our notice bearing on the
question as to the presumption which may arise from certified copies of documents produced before the
Court when the originals are not forthcoming. In AIR 1945 Bom 319 (B) Chagla, J. as he then was, held that
the statutory presumption permitted by S. 90, Evidence Act, 1872, can be raised, only with regard to the
original document if produced to the Court and that it does not apply to a certified copy when the original
document is not before the Court.

In coming to that conclusion, the learned Judge followed the decision of AIR 1935 P.C. 132 (A). So far as
that part of the decision is concerned, it must be held unexceptionable: But it must be pointed out that the
mortgage-deed, on which the plaintiff relied in that case, was of the year 1891, and the Transfer of Property
Act having been applied to the Presidency of Bombay in 1893, the mortgage-deed in that ease was not
required by law to be attested, and the plaintiff, who relied upon a certified copy of the mortgage-deed, could
prove execution of the deed by merely relying upon the certificate of registration under the Registration Act.

But, the attention of the Court does not appear to have been drawn to the provisions of S. 60, Registration
Act. Chagla J. observed in the course of his-judgment:

"....All that the Indian Evidence Act does is that it permits secondary evidence to be given of a registered
 15/10/2020 Delivery | Westlaw India Page 15

document because it is a public document within the meaning of S. 74, and under S. 77 it. provides that
certified copies may be produced in proof of the contents of the public documents. All that a certified copy
does is that it authenticates the genuineness of the copy. The Court presumes that the original document
had the same contents as the copy. It certainly does not prove the actual execution of the original
document."

It was also observed in an earlier part of the judgment:

"......The question is whether by producing a certified copy of this registered document can it be said that the
plaintiff has proved that the mortgage-deed was executed by the mortgagor? This is a certified copy of the
original mortgage-deed which was entered in the book kept in the office of the Sub-Registrar. Therefore if
the book from the Sub-Registrars office had been produced, the copy in that book would certainly be more
than thirty years old.

The Indian Evidence Act and also S. 57, sub-el. (5). of the Indian Registration Act, make it permissible for a
party, instead of producing the original public document, to prove that public document by a certified copy;
and, therefore, I will assume that the copy which the plaintiff proved was a copy more than thirty years old."

It does not appear to have been argued that a certified copy of a registered instrument does not merely
establish the contents of the original document of which it purports to be a certified copy, but by reason of
the provisions contained in Ss. 58, 59 and 60 of the Indian Registration Act it enables a party to prove that
the facts mentioned in the endorsement referred to in S. 59 have occurred as there in mentioned, and that
one of the facts which is included in the endorsement is the admission of the signature by the executant of
the document.

(25) The other case is AIR 1946 Bom 193 (E). That is a judgment of Lokur J. The learned Judge, on a
consideration of the authorities of this and other Courts and alter referring to the judgment of the Privy
Council in 'Basant Singh v. Brijraj Saran Singh', (A) observed that a presumption of due execution in respect
of a document which is by law required to be attested cannot be raised merely by production of a certified
copy of that document, but that relying upon the certificate of registration it would be open to the party who
has produced the copy to prove that the signature on the original was admitted by the executant in the
presence of the Registrar and from that circumstance to ask the Court to presume that the document was
signed by that person.

If, for establishing the transaction which is incorporated in the document, mere admission of the signature is
necessary and no further requirement has to be proved, the party relying upon the certified copy would, in
the view taken by the learned Judge, be entitled to succeed. In the case before Lokur J. the mortgage was of
the year 1878 and the plaintiff sought to rely, in proof of the mortgage, upon a certified copy of the
mortgage-deed. For proving due execution of a mortgage-deed of the year 1878, proof of attestation was not
necessary, and Lokur J. held that the certificate of registration was sufficient to prove due execution of the
mortgage-deed.

The question whether a presumption under S. 90, Evidence Act, in respect of a deed which was by law
required to be registered and also required by law to be attested arose before Dixit J. in AIR 1953 Bom 338
(F). The learned Judge pointed out in that case that the presumption raised by S. 90, Evidence Act of due
execution of a document does not apply to a certified copy of a document required by law to be executed
and attested.

In 'Mahamad Saheb's case (F)' the mortgage-deed was of 1895, i.e., after the Transfer of Property Act was
applied to the Bombay Presidency, and the mortgage-deed was required by law to be attested. The learned
Judge held that, even if the presumption under Ss. 58, 59 and 60 of the Registration Act arose in favour of
the mortgagor, and by the presumption the signature of the mortgagor may be deemed to be established,
the presumption under S. 90, Evidence Act, about due attestation of the document could not be raised when
the original was not produced and merely a certified copy of the document was produced.

It does not appear that in that case any notice to produce the original document was served, and no attempt
to rely upon the presumption arising under S. 89 of the Evidence Act was made. In the present case,
however, the plaintiff is not only entitled to rely upon the presumption under S. 60, Registration Act, but she
is also entitled, for reasons already stated, to rely upon the presumption arising under S. 89, Evidence Act;
and by the combined operation of those two presumptions the plaintiff has, in my judgment, proved that the
document was duly executed in the manner required by law.

(26) I, therefore, agree with the order proposed by my learned brother.

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