(1.) In this case one of the incidental questions at issue was whether one Lakshminarasamma had authority to adopt the 3 defendant's father. The authority is said to have been given under a registered Will of 1873 and it has been found that the adoption actually took place in 1897. No specific issue was framed as to the validity of the adoption, the only issue on the point being the first issue: Is. the plaintiff the next reversioner entitled to sue or has Lakshminarasamma adopted any ?
(2.) The frame of the issue is such that the question raised is as regards the factum of the adoption rather than its validity. The validity having been questioned the defendants sought to prove the Will by secondary evidence. A registration copy of the Will was produced and was admitted in evidence and marked as Ex. XIII subject to proof. These words " subject to proof" apparently mean subject to proof that the defendants are entitled to adduce secondary evidence. Accordingly D.W. 3 was examined and he stated that at about the time the adoption deed, Ex. III, was drawn up he saw a registration copy of the Will in the hands of one Doddayacharlu, a brother of the widow and the father of the adopted boy, and that when he questioned Doddayacharlu the latter said that the Will had been burnt. The District Munsif did not expunge Ex. XIII from the record and apparently it was never rejected until the District Munsif pronounced his judgment. He then held that the loss of the original had not been proved and that Ex. XIII was inadmissible in evidence. In appeal the Subordinate Judge held that the defendants had shown sufficient reason for the production of secondary evidence. He states: I am really disposed to consider that the statement of D. W. 3 to Doddayacharlu having said at the time Ex. III came into existence that the original Will was lost is entitled to be regarded as sufficient basis for letting in evidence about the Will for admitting Ex. XIII as such evidence.
(3.) Under Section 65 of the Evidence Act secondary evidence may be adduced when the original 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. This statement of D. W. 2 even though it is mere hearsay evidence as to the loss, may be treated as offering reason for holding that the original could not be produced in reasonable time. Doddayacharlu was the son of the executor under the Will, brother of the widow, and the father of the adopted boy, and consequently was a person in whose custody the Will was likely to be. When he said that the original had been burnt, that afforded very good ground for supposing that any attempt to cause its production would be wasting the time of the Court. Similar evidence was held to be admissible in The Queen V/s. Braintree 120 E. Rule 827 where it was held that when enquiries had been made from parties who are likely to have the document in their possession the answers of such parties to the enquiries were admissible, although the parties themselves were not called, and that although such evidence might not be admissible as evidence on the main issue, it would be admissible upon the preliminary enquiry whether a proper search had been made. Similar evidence was acted upon in The Queen V/s. Kenilworth 115 E.R. 631.where it was held that the trial Court must exercise its own judgment as to the reasonablenes of the search and that in appeal the decision thereon could not be interfered with.