BIBI AISHA Vs. BIHAR SUBAI SUNNI MAJLIS AVAQAF

JUDGEMENT

(1.) The Bihar Subai Sunni Majlis-e-Awaqaf a body corporate established under the Bihar Waqfs Act, 1947 instituted a suit for setting aside a registered mokarrari lease deed dated November 18, 1949 executed by defendant No. 4 Sheikh Gholam Bari in favour of defendants 1 to 3 and for restoration of possession of the properties covered by the document, viz., the houses and shops being holdings Nos. 27 and 28 formerly known as holdings Nos. 22 and 23 in Ward No. 8 at Mohalla Muradpore P. S. Pirbahore in the city of Patna (Baakipur). The plaintiffs case is that the properties were dedicated by way of waqf by a Waqfnama dated August 20, 1827 executed by Mist. Bibi Mannu Khanam Jan. The successive Mutawallis under this deed were Sheikh Azmatullah, Sheikh Ataullah, Sheikh Habibur Rahman, Bibi Zaibunnissa and Sheikh Gholam Bari. The Trial Court decreed the suit and this decree was confirmed by the High Court.

(2.) In Mohalla Muradpore in the city of Patna (Baakipur) there is an ancient mosque known as the mosque of Mst. Bibi Mannu Khanam Jan. It is not disputed now that Mst. Bibi Mannu Khanam Jan established this mosque. There are shops, rooms, katra and other structures to the east, west and the south of the mosque. To the east of the mosque are the disputed holdings Nos. 27 and 28. On September 25, 1948 Gholam Bari filed before the Waqf Board a return in Form No. 1 under Rules 6 and 11 of the Bihar Waqfs Act, 1948. In this return he stated that the properties were given in waqf to the mosque by Mst. Bibi Mannu Khanam Jan under the deed of waqf dated August 20, 1827. With this return he filed an English translation of the waqf deed. The translation was attested by him. P. W. 5 Mehdi Hasan, the Nazir of the Waqf Board proved that Gholam Bari also filed the original waqfnama together with its copy in Persian. The copy bore the following endorsement signed by Gholam Bari. "The copy corresponds to the original." The original waqfnama was returned to Gholam Bari and the copy was retained in the office of the Waqf Board. At the trial Gholam Bari did not produce the original deed. Accordingly the copy of the deed and its translation were exhibited.

(3.) The Trial Court and in the High Court Misra J. accepted the testimony of Mehdi Hasan and held that the copy of the original waqfnama was admissible in evidence. We agree with this finding. Tarkeshwarnath J. ruled that the copy was not admissible mainly on the ground that paragraph 7 of the plaint stated that the deed of waqf was in the plaintiff's custody. We agree with Misra J. that the averment in the plaint should be regarded as a general statement referring to the true copy which was left in the plaintiff's office. Under Section 65 (a) of the Evidence Act secondary evidence may be given of the existence, or contents of a document 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, and when after the notice mentioned in Section 66, such person does not produce it. Where the case falls under S. 65 (a) any secondary evidence of the contents of the document is admissible. In the present case the conditions of S. 65 (a) were satisfied. The plain copy of the waqf was therefore admissible. On behalf of the appellant it was argued that Cl. (f) of S. 65 was applicable and that as the certified copy of the deed dated August 20, 1827 was permitted by the Evidence Act to be given in evidence a certified copy alone was admissible in evidence. There is no substance in this contention. If the case falls under clause (a) any secondary evidence of the document is admissible, though the case may also fall under clause (f). Clause (a) is not controlled by clause (f). In the case of A Collision Between The Ava, (1879) ILR 5 Cal 568 a question arose as to whether secondary evidence could be given of the contents of a certificate granted by the Board of Trade. The loss of the document attracted Cl. (c) of Section 65 and the failure to produce it after notice attracted Cl. (a). Clause (f) of Section 65 was also applicable. Wilson J. ruled that a certified copy need not be produced and any secondary evidence was admissible. We agree with this decision. Wilson J. said: