Kashibai Martand vs Vinayak Ganesh And Ors.

on 22 February, 1955

Bombay High Court

Kashibai Martand vs Vinayak Ganesh And Ors. on 22 February, 1955
Equivalent citations: AIR 1956 Bom 65, (1955) 57 BOMLR 918, ILR 1955 Bom 999
Author: Gajendkagadkar
Bench: Gajendragadkar, Shah
JUDGMENT Gajendkagadkar, J.

1. This is an appeal by the plaintiff whose claim to redeem the suit mortgage has been dismissed by
both 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
Radhabai. 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 Nathmal Rajmal oh
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 on 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.

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 Kashibai Martand vs Vinayak Ganesh And Ors. on 22 February, 1955

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 mort-

gage-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 Section 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 Sections 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 ask the Court to draw a presumption in favour of his claim under Section 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.

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The certified copy itself can be regarded as more than 30 years old and so under the provisions of
Section 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', , it must now be taken to be settled that,
where a document which is produced is a copy admitted under Section 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 Section 90.

Even so, under Section 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. Section 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 Section 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 docu-

ment 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 the
presumption permissible under the provisions of Section 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 Section 65 of the Evidence Act.

That conflict has now been resolved and it has been decisively held that the presumption under
Section 90 cannot apply to a copy though it may have been admitted under the provisions of Section
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 Section 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. Section 58 of that Act provides for particulars to be endorsed on documents admitted to

registration. Under Sub-section (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 Section 39, there
shall be endorsed from time to time the particulars mentioned in Clauses (a), (b) and (c) of the said
sub-section.

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Under Clause (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 Clause (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. Clause (b) deals with the signature and addition of every person
examined in reference to such document under any of the provisions of the Act.

Section 59 requires the registering officer to affix the date and his signature to all endorsements
made under Section 58. Lastly, Section 60 provides that, after such of the provisions of Sections 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-section (2) of
Section 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 facts mentioned in
the endorsements referred to in Section 58 have occurred as therein mentioned.

It would thus be seen that the effect of Sub-section (2) of Section 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 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 Section 60, Sub-section
(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 Section 60, Sub-section (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 Section 60(2), Registration Act, and it has no reference to Section 90, Evidence Act.

In order to draw the inference under Section 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

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 Kashibai Martand vs Vinayak Ganesh And Ors. on 22 February, 1955

certified copy should be admissible, and if it is admitted, it should bear the endorsement required by
Section 58 of the Registration Act.

Whenever a certified copy of a registered document bearing endorsements made under Section 58 is
produced before a Court, Section 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 Section 60(2), Registration Act and it need
not be connected or confused with a presumtion or inference that may arise under Section 90 of the
Indian Evidence Act.

The provisions of Section 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. Section 90 refers to al 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 Section 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 Section 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 Section 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 Section 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,
Section 60(2), Registration Act, would be powerless to give any help to the appellant. Section 60(2)
is confined to the endorsements made under Section 58 of the Act and it provides for the raising of a
statutory presumption or inference in respect of the said endorsements alone.

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10. Mr. Kotwal, however, contends that in the present case it would be open to him to rely upon the
provisions of Section 89 Evidence Act, and it is this point which needs to be considered by us in the
present appeal. Section 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 Section 89 is in respect of the legal
requirements as to attestation, stamping and execution. In other words, wherever the provisions of
Section 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 under Section 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 Section 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 Section 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 Section 63 of the Act. This expression means and includes certified copies given
"under the provi-

sions 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 Section 65, secondary evidence may be given of the existence, condition or contents of a
document in the cases mentioned in that section, Section 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 he given of the existence, condition or
contents of a document, are specified in Clauses (a) to (g) of Section 65. We are more directly
concerned in the present case with Clause (a) of Section 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 Section 66, such person does not produce it, secondary evidence may be
given of the existence, condition or contents of a document.

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Section 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 Section 65, Clause (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 Section 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 Section 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 Section 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 Section 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 Section 65(a) and Section 66, Evidence Act. I have already indicated that there
are several exceptional cases in which secondary evidence is permissible to be produced under
Section 65; but in none of the cases other than those falling under Clause (a) of that section is notice
required to be given under Section 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 Section 65,
Clause (c); and yet, before he is allowed to produce secondary evidence, he is not required by Section
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 Section 89 may not be applied.

The condition precedent for the application of Section 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 Section
89 can be raised are cases which fall under Section 65(a) and Section 66, Evidence Act.

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The principle underlying the provisions of Section 89 is sometimes described as the "necessity"
principle. If a 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 Section 89, it may be relevant to remember
that once a presumption is drawn under Section 89, it cannot be easily rebutted by the production of
the original document at a later stage. Section 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 Section 89
with the presumption which is permissible to be raised under Section 114, Evidence Act, ill. (g). If a
person fails to produce a document in his possession, an inference can be drawn under Section 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 Section 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 Section 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 is the matter of proving the proper and valid execution of documents, Sections
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 Section 90, is permissible only in regard to original documents and not their copies.
But the presumption which is permissible to be raised under Section 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 Section 89 should be drawn in his favour because the lower appellate

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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 Section 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 whenever 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 Radhabal, 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 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
appears 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

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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 propertied 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 Section 68, Evidence Act Section 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

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 Kashibai Martand vs Vinayak Ganesh And Ors. on 22 February, 1955

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 of his heirs would be required to lead some evidence to show that the document was
not with them nor was it in their power.

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 Section 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 Section 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 (sic)aran Singh', (A). After this judgment was reported, the question as to the scope and
effect of the provisions of Section 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 Section 89 fall to be considered.

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In 'Vithoba Savlaram v. Shrihari Narayan', AIR 1945 Bom 319 (B), Chagla J. as he then was, held
that the statutory presumption under Section 90 of the Evidence Act can be raised only with regard
to 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 Savlaram'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 Section 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 under Section 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 Section 59 occurred as indicated in the endorsements.

The words of Section 60, Sub-section (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 Section 60 have been complied with.

To the same effect is the decision of Baker J. who delivered the judgment of the Bench in --
'Vishvanath 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 o£ Properly 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-section (2), of the Registration
Act, would be enough to prove the valid execution of the said mortgage-deed altogether; and it does

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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 betore 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 1940 Bom 193 (E) and he has considered the effect of the said provisions at length
and has held that, in, regard to 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-section (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 under Section 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', (F), has, with respect, correctly pointed out the distinction
between the statutory presumption which can be raised under Section 90, Evidence Act and that
which can be raised under Section 60, Sub-section (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-section (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-section (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
Section 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.

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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 Section 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 instrument 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 Rs. 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 pf the original mortgagor cannot be expected
to be in possession of the mortgage-deed. The mortgage-deed would normally be 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
clue execution which arises under Section 90, Evidence Act, in respect of documents more than 30
years old and coming from proper custody. He held that the presumption cannot arise on
production of a certified copy or 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 Section 90 of due
execution arose when a certified copy of the mortgage-deed alone was produced, arid that the
plaintiff could also not rely upon the presumption under Section 89 Evidence Act. The learned
appellate Judge, therefore, agreed with the conclusion of the trial Court and dismissed the appeal.

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 (p. 136):.

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"In face of the clear language of Section 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 Section 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 terms of a grant, which had admittedly been made".

It, must, therefore, be held, that the plaintiff cannot rely upon the presumption under Section 90,
Evidence Act, when the original mortgage-deed has not been produced. But the fact that the
presumption under Section 90 does not avail the plaintiff is not sufficient to non-suit her. The
planitiff 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 Section 65 Evidence Act to prove the
existence, condi-

tion 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 haying, 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 Section 59 Transfer of Property Act, and that the same
was registered. On production of a certified copy containing endorsements required by Sections 58
and 59 and the certificate of registration under Section 60, Clause (1) of the Registration Act, due
registration of the document must be regarded as proved.

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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-section (2) of Section 60, Registration Act. That sub-section, in so far as it is
material, provides that where a certificate of registration under Sub-section (1) of Section 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 Section 59 have occurred as
therein mentioned. Section 59 requires the registering officer to affix the date and his signature to
all endorsements made under Sections 52 and 58.

Section 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 Sections 58, 59 and 60, Registration Act provide that the facts
mentioned in the endorsements may be proved by those endorsements provided the requirements
of Section 60 have been 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 Section 60 of the Registration 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 Section 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 Sections 65 and 66 of the Act.

Section 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 Section 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 teamed 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

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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 hi 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 27-11-1913. 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, slated
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 Section 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 Section 89, Evidence Act.

The plaintiff, therefore, must be deemed to have proved, by the presumption under Sub-section (2)
of Section 60, Registration Act, the signature of the mortgagor Baburao on the deed of mortgage and
the due attestation of that deed by the presumption arising under Section 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 Section 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 Section 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.

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In coining to that conclusion, the teamed 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 case 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 Section 60,
Registration Act. Chagla J. observed in the course of his judgment (p. 320):

"....All that the Indian Evidence Act does is that it permits secondary evidence to be given of a
registered document because it is a public document within the meaning of Section 74, and under
Section 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 (p. 319):

"......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 hook kept in the office of the
Sub-Registrar. Therefore if the book from the Sub-Registrar's office had been produced, the copy in
that book would certainly be more than thirty years old.

The Indian Evidence Act and also Section 57, Sub-clause (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 Sections 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 Section 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 after referring to the judgment of the
Privy Council in -- 'Basant Singh y. 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

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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 he proved, the party relying upon the
certified copy would, in the view taken by the learned Judge, be entitled to succeed. In the ease
before Lokur T. 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 Section 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 (F).
The learned Judge pointed out in that case that the presumption raised by Section 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 requited by law to be
attested. The learned Judge held that, even if the presumption under Sections 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 he established, the presumption under Section 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 Section 89 of the Evidence Act was made. In the
present case, however, the plaintiff is not only entitled to rely upon the presumption under Section
60, Registration Act, but she is also entitled, for reasons already stated to rely upon the presumption
arising under Section 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.

Appeal allowed.

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