BANWARILAL SINGH Vs. DWARKANATH MISSIR

JUDGEMENT

(1.) This is an appeal on behalf of the plaintiff in an action in ejectment. The 1st defendant claims as purchaser of the right, title and interest of the other defendants, who were in possession of the disputed property by right of inheritance from the father. The original grant was in favour of the grandfather of these defendants and the question in controversy between the parties is, whether the tenancy was permanent and transferable. The District Judge, in concurrence with the Court of first instance, has found upon this question against the plaintiff. This decision has been challenged in this Court on the ground that it is based on evidence not admissible in law.

(2.) The first document to which exception has been taken is a dar-mokarari lease granted on the 20th February 1830 by Kanchan Singh, the first tenant. The original of this document is not in existence and a copy has been produced which was taken in 1861 and, since then, has been produced in Court on several occasions. It has been contended that as there is no proof of execution of the original, the copy cannot be received in evidence under Section 90 of the Indian Evidence Act. In support of this proposition reliance has been placed principally upon the terms of Section 90, and it has been argued with considerable force that by no stretch of language can it be said that in the case before us the presumption mentioned in Section 90 is applicable to the copy produced. Section 90 provides that where any document purporting or proved to be thirty 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 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 or attested by the persons by whom it purports to be executed and attested. It has been argued that this section contemplates the production of the original document, and that only upon such production can the Court presume that the signature and every other part of the document which purports to be in the handwriting of any particular person was in that person s handwriting. This view, it has not been disputed, may lead to hardship where the original of an ancient document has been lost (though a certified copy is in existence) and no witness is available who can speak to its actual execution; by way of analogy, it has been mentioned that a similar hardship arises in oases where an unstamped original has been lost and a certified copy cannot be received in evidence even upon payment of penalty [ Marine Investment Co. v. Haviside (1872) 5 H.L. 624 42 L.J. Ch. 173 and Kopasan v. Shamu 7 M. 440 : 2 Ind : Dec. (N.S.) 891 which is in conflict with Haran Chunder v. Russick Chunder 20 W.R. 63]. We do not think any question of hardship really arises for consideration; what we have to determine is, whether the interpretation of Section 90 suggested by the appellant is justified by its language; that, we think, must be conceded in his favour. But it is admitted that a different construction was placed upon Section 90 by Mr. Justice Wilson 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, which was accepted as good law though with some hesitation by Sir Arthur Strachey in the case of Ishri Prasad Singh v. Lalli as Kunwar 22 A. 294 at p. 303 : A.W.N. (1900) 82 : 9 Ind. Dec. (n.s.) 1227. The observations in Vasudeo v. Bhau 21 B. 528 : 11 Ind. Dec. (n.s.) 854 possibly tend in the same direction, while the observations in Appathura Pattar v. Gopala Panikkar 26 M. 674 support the contrary view. In view of this divergence of judicial opinion, it would have been our duty to construe the terms of section 90 of the Indian Evidence Act; but whatever our opinion might have been if the matter were res integra, we are bound by the decision of their Lordships of the Judicial Committee in the case of Shahzadi Begam v. Secretary of State 34 C. 1059 : 9 Bom. L.R. 1192 : 6 C.L.J. 678 : 2 M.L.T. 439 : 34 I.A. 194 (P.C.) which, we think, concludes the point against the appellant. As it has been contended, however, that the point which now requires consideration was not decided by their Lordships, we must examine the circumstances of that cage. In that case reliance was placed upon a deed of exchange, the original of which bad been lost. A certified copy, obtained in 1851, was produced at the trial. The genuineness of this certified copy was questioned. The District Judge found that the certified copy was genuine and admitted it in evidence. Upon appeal to this Court, the certified copy was pronounced a forgery* and the document was consequently rejected. When the matter went before the Judicial Committee, reliance was placed on behalf of the appellant upon the certified copy, and it was argued that the certified copy was not a forgery because it bore the same stamp and water marks as other contemporary documents, admittedly genuine and produced in a previous litiga tion between the parties. The respondents contended that the certified copy was a forgery, and also argued that the certified copy, even if genuine, was not admissible. On behalf of the appellant in reply, reference was made to the decision in Khetter Chunder Mookerjee v. Khetter Paul Sreeterutno 5 C. 886 : 6 C.L.R. 199 : 2 Ind. Dec. (n.s.) 1172 and it was contended that the certified copy was admissible without proof of execution of the original. Lord Collins in the course of his judgment first observed with regard to the deed of exchange that the certified copy was produced from the custody of Shahzadi Begum and was found to be written on paper bearing the same stamp and water marks as other documents on the record of that litigation; he then proceeded to state that their Lordships agreed with the District Judge that it was admissible in evidence and for the reasons given by him adopted his conclusions as to its genuineness. The learned Vakil for the appellant has contended that the only question before the Judicial Committee was, whether or not the certified copy was genuine and that their Lordships did not decide whether the certified copy, if genuine, could be received in evidence because the parties at the original trial had contended that there was a genuine original which had been lost, and the only question thus was whether what was produced as a certified copy was genuine or not. In our opinion it is clear from the report of the arguments before the Judicial Committee that the question of the admissibility of the certified copy was expressly raised before their Lordships and was treated by them as really not open to serious argument. But even if it be held that their Lordships assumed the document to be admissible because it was conceded that there was a genuine original, the case before us is not distinguishable from the one before the Judicial Committee, because the judgment of the District Judge shows that even according to the plaintiff there was a genuine original lease. Reference was made on behalf of the appellant to the decision of the House of Lords in Padwick v. Wittcomb (1853) 4 H.L.C. 425 : 94 E.R. 165 : 10 E.R. 527 to show that the certified copy would not be admissible, according to the rules of evidence recognised in English Law; that decision, however, is clearly distinguishable and is of no assistance to the appellant. On the other hand, the observations in Bullen v. Michel (1816) 4 Dow. 297 at pp. 321, 333 : 3 E.R 1171 : 2 Price 399 : 16 R.R 77 undoubtedly support the view taken by their Lordships of the Judicial Committee [see also Wigmore on Evidence, Volume III. Section 2143]. It is not necessary, however, to place reliance upon the rule of English Law on the subject; the question before us must be determined with reference to the statutory provisions contained in section ?0 of the Indian Evidence Act; and in view of the decision of their Lordships of the Judicial Committee in Shdhzadi Begum v. Secretary of State 34 C. 1059 : 9 Bom. L.R. 1192 : 6 C.L.J. 678 : 2 M.L.T. 439 : 34 I.A. 194 (P.C), we must hold that the certified copy was properly received in evidence.

(3.) A second objection has been taken to the admissibility of this document. Our attention has been invited to Section 18 A of the Bengal Tenancy Act, which was introduced by Section 8 of Act I of 1907 (B.C.). That section provides that nothing contained in any instrument of transfer to which the landlord is not a party shall be evidence against the landlord of the permanence, amount or fixity of rent, area, transferability or any incident of any tenure or holding referred to in such instrument. In our opinion, this section is of no assistance to the appellant. If it be assumed that the section is applicable, it merely lays down that nothing contained in the instrument to which exception is taken can be used as evidence as against the landlord of the permanence of the tenure mentioned in such instrument, This does not prevent the use of the document for an entirely different purpose, namely, to show that there was an assertion by the tenure-holder at the time that his tenancy was of a particular description. Exhibit 0 (the dar mokarari patta) must, therefore, be treated as admissible in evidence.