VISHVANATH RAMJI KARALE Vs. RAHIBAI RAMJI KARALE

JUDGEMENT

(1.) The plaintiff sued to recover possession of the plaint property alleging that he was the adopted son of one Ramji Mayaji, husband of defendant No. ]. Defendant No. 1 the widow contested the factum and validity of the adoption. Defendant No. 2 was the husband's brother's wife of defendant No. 1. The trial Judge awarded the plaintiff's claim, holding the adoption proved, but on appeal the decree was reversed by the District Judge of Ahmednagar on the ground that the trial Court had improperly admitted into evidence a certified copy of the adoption deed executed by Ramji, and that the adoption was not proved. Against this decision a second appeal was presented. That appeal was summarily dismissed, and under the Letters Patent an appeal against that decision has been admitted.

(2.) The sole point in this appeal is whether the first Court acted improperly in admitting into evidence the certified copy of the adoption deed. According to the plaintiff's natural father Ganu the adoption deed after registration was returned to the executant the adoptive father and was taken away by him for the purpose of getting the names transferred in the record of rights and that it was never seen again. The first Court held that it was proved by Ganu that Ramji took away the deed on the pretext that he wanted it for transferring the lands in the name of the adopted boy. He says :- On this point, Exhibit 28 Ganu Vyanku is not cross-examined and there is no reason why this story should be disbelieved. The possession of the original document is therefore proved to have been with Ramji and defendant No. 1 being his widow must naturally be in possession of it. She was summoned to produce the original deed, but says she has not got it It may be pointed out that Ganu Vyanku can have no ulterior motive in keeping back the original document if he had it. The original not coming forward, the plaintiff is entitled to prove the document by producing secondary evidence, namely, the certified copy. The learned Judge further held :- A reference to Secs.63, 65, 86, 76 and 89 of the Evidence Act will show that when the secondary evidence produced is a certified copy allowed by law, no further proof of its execution is required. I hold that the certified copy. Exhibit 63, is admissible in evidence. I am satisfied from the oral and documentary evidence that the plaintiff's adoption is proved.

(3.) The view of the learned District Judge on appeal was that-- the plaint says nothing about the adoption deed, but one year and seven months after the plaint, the respondent asks for a summons to the first appellant to produce it. The lower Court places implicit reliance on the plaintiff and allows him to put in a certified copy. The lower Court's argument is that if he had the original he would no doubt produce it. This argument appears to ma to assume that the original is a genuine document-a point upon which there is very considerable room for doubt. I think the lower Court was wrong in allowing secondary evidence of the document. The lower Court has not even insisted on proof that any such document was ever executed by the deceased Ramji. The person who is said to have identified him before the Sub-Registrar is not examined. The respondent cited the writer and witnesses, but did not examine them. The result of this extraordinary conduct of the case is that the plaintiff is allowed to accuse his adversary without any proof of having a certain document, and is allowed to take every advantage of this accusation, being exempted thereby from his obligation to prove the execution of the document. I find that the certified copy of the adoption deed was wrongly admitted.