S. Rathnammal vs Mottadu and 5 others

S.S. Subramani, J.—Plaintiff in O.S. No. 255 of 1983, on the file of District Munsif�s Court, Hosur, is the appellant. Suit filed by her is

one for declaration of title and for recovery of possession. Brief facts which are necessary for the disposal of the Second Appeal may be

summarised as follows:-

Plaintiff and fifth defendant are sisters and are daughters of late Surayya Chetty. The plaint properties were acquired by him on 1.3.1994 as

evidenced by Ex.A-1. certified copy of the sale deed. It is her case that the schedule property was in possession of Surayya Chetty till 1953 when

he died. Then they continued to be in the possession of his widow, and on mother''s death, plaintiff and fifth defendant inherited the property and

came into possession. At the time when their father died, plaintiff and fifth defendant were minors and their affairs were looked after by their uncle

Narayana Chetty, who was also cultivating the properties on their behalf. At the time when the properties were purchased by their father, the suit

lands were having Zamindari Survey Numbers, i.e.. S. No. 254/1 A and S. No. 254/3A. Thereafter, as per survey and settlement, the old

Zamindari Survey Numbers were renumbered as Survey Nos. 254/5 and 254/2 respectively. Since Narayana Chetty. their uncle, was managing

the affairs of the plaintiff and fifth defendant, settlement patta was also issued in his name. He was paying kist on behalf of the plaintiff. It is said that

the old kist receipts are in the possession of one Samiah Chetty, who was friendly with plaintiffs uncle, and now on inimical terms with plaintiffs

family, and who is now siding with defendants 2 to 4. It is said that after the death of Narayana Cherry, plaintiff is in possession of the properties

with her son and husband. It is also said that in the sale deed Ex.A-1. the survey number is mentioned as Survey No. 254/1 by mistake for Survey

Number 254/1 A. After the death of Narayana Chetty. plaintiff got the patta transferred in her name and in the name of her sister. It is said that

during the life lime of Surayya Chetty. fourth defendant and Muniamma, second wife of father of defendants 1 to 3. usufructuary mortgaged the

adjoining land, now bearing Survey No. 254/4. corresponding to old Zamindari Survey No. 254 2. That property lies on the east of the suit land

Survey No. 254/2. Even though the property is outstanding on a mortgage with plaintiff, defendants forcibly trespassed into the same some seven

years ago alleging that the mortgage has been wiped out in view of long possession by the plaintiff and her father. The original mortgage deed is

also filed along with the plaint. Defendants 1 to 4 wanted the plaint properties to be sold to them, which the plaintiff refused, and. therefore, they

are not on good terms.

Due to the said enmity, defendants 1 to 4 tried to trespass into the suit property, cut the ridges separating Survey No. 254/2 and Survey No.

254/5 from. Survey No. 254/4 and also tried to illegally occupy the suit land Survey No. 254/5. Plaintiff and fifth defendant, on 4.9.1982, issued a

notice warning them not to interfere with their possession and also asserting their enjoyment over the suit lands. A reply was sent on 21.9.1982 by

defendants 1 to 4 claiming that the suit properties are then ancestral properties. While so. plaintiff as well as her uncle Narayana Chetty jointly

executed a sale deed in respect of a portion of Survey No. 254/5 in favour of one Muniappa Chetty. and the remaining portion is scheduled to the

plaint. After the institution of the suit. defendants 1 to 4 forcibly entered into the suit properties.

After the institution of the suit, plaintiff moved for an injunction. Though interim injunction was granted, it was vacated subsequently. When the

injunction application was dismissed, taking advantage of the dismissal, defendants trespassed into the property. The plaint was subsequently

amended as one for recovery of possession of the property on the basis of title.

In the written statement filed by defendants 1 to 4 they disputed the claim of the plaintiff. According to them, the description of property is not

correct. Neither plaintiff, nor her father or Narayana Chetty referred to in the plaint were ever in possession of the suit property as owners.

According to them, plaint properties are their ancestral properties, and they are enjoying the same along with other items. It is their case that they

and their ancestors have been in possession of the plaint items for more than 80 to 100 years, and, even the possession of defendants 1 to 4 is for

more than 30 years. In regard to the adjoining property bearing Survey No. 254/4 in respect of which plaintiff alleges a usufructuary mortgage by

4th defendant and Muniammal, the allegation is denied. They also dispute the sale of portion of Survey No. 254/5 to Muniappa Chetty. According

to them, the suit is frivolous, and that the same is only an attempt to take possession of their property. They pray for dismissal of the suit.

After the plaint was amended as on for recovery of possession of the suit properties, an additional written statement was filed wherein also, the

earlier contentions were reiterated by defendants 1 to 4.

Trial Court took oral and documentary evidence. Ex.A-1 to A-16 were marked on the said of plaintiff. Exx.B-1 to B-4 were marked on the

said of defendants. Plaintiff examined herself as P.W. 1. and on the side of defendants, first defendant was examined as D.W.1 and three other

witnesses were also examined. The trial Court elaborately discussed the evidence and came to the conclusion that plaintiff has proved her title in

respect of the suit properties, and the defendants 1 to 4 have trespassed into the suit properties only after institution of the suit. It found that the

plaintiffs father has purchased the property and he was in possession. It also found that Narayana Chetty was in possession for some time acting as

guardian on behalf of plaintiff and thereafter plaintiff also obtained patta for the plaint properties and was in possession. Trial Court also found that

the adjoining property in Survey No. 254 was mortgaged by 4th defendant Mumammal in favour of plaintiffs father. It further found that the claim

of defendants 1 to 4 that they and their predecessors were in possession of the suit properties for more than 80 to 100 years is a blatant falsehood,

and not even a scrap of paper has been produced to prove their possession. Ex.B-1 patta was found to be invalid since it was obtained after

dismissal of the injunction application and after suit, and even the revenue receipts were produced only later. With regard to Ex.A-1, the trial Court

found that though only registration copy was filed, plaintiff has substantiated her case that she is entitled to lead secondary evidence u/s 65 of the

Evidence Act. and taking into consideration the various revenue receipts, patta, adangal extracts, etc. it found that the trial Court has proved the

title, and Ex.A-1 is a valid document. The trial Court further found that even though Section 90 of the Evidence Act may not apply, since Ex.A-1 is

a registered document, there is no ground to doubt the genuineness of the transaction as well as the deed, taking into consideration the certificate of

registration u/s 60 of the Indian Registration Act.

Aggrieved by the judgment, defendants 1 to 4 preferred A.S. No. 8 of 1991, on the file of Sub Court, Krishnagiri. The lower appellate Court

set aside the judgment of the trial Court and held that the plaintiff is not entitled to invoke Section 90 of the Evidence Act. If she is not entitled to

invoke Section 90, the consequence is, there is no evidence regarding proof of title. The suit was, therefore, dismissed. That was the main reason

for dismissal of the suit, by allowing the Appeal even though certain other circumstances were also considered, which are not of much importance

in this Second Appeal.

It is against the said judgment, plaintiff has preferred this Second Appeal.

At the time of admission of the Second Appeal, the following substantial question of law was raised for consideration:-

Whether the lower appellate Court erred in law in reversing the well-considered judgment of the trial Court mainly on the ground that there can be

no presumption u/s 90 of the Evidence Act as to execution and attestation available to the original documents and not to its certified copies without

reference to other evidence on record?

According to me, the judgment of the lower appellate Court is perverse and the same requires interference. I give the following reasons for my

conclusion.

While narrating the facts, I have said that the plaintiff was examined as P.W.1. Even while she was examined in chief-examination she has

stated why she could not produce the original of Ex. A-1. She has said thus:-

A reason has been mentioned why the original is not filed, i.e., the original is lost, or could not be traced. The executant is dead, and the attestors

are also no more. At the time when the document was marked, no objection was raised by the defendants, though in regard to some other

documents, an objection was raised. u/s 65 of the Evidence Act, secondary evidence may be given, regarding the existence, condition or contents

of a document. Sub-section (c) of Section 65 reads thus-

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.

In one of the early decisions of the Privy Council reported in AIR 1922 P.C. 56 =15 L.W. 104 (M. Ihtishan Ali v. Jamna Prasad), their Lordships

said that the evidence of a witness, who deposes to the loss of a deed which should be in his custody, is sufficient to allow secondary7 evidence.

The statement in chief-examination was not questioned in cross examination. That means, sufficient grounds were made out by P.W.1, why she is

entitled to lead secondary evidence. Even though plaintiff was permitted to lead secondary evidence, that will not follow the proof of execution of

the document. It is there, the importance of the certificate of registration u/s 60 of the Registration Act requires consideration. P.W.1 has asserted

that neither the executant, nor the attestors were available for examination. Ex.A-1 is a document which does not require attestation and, therefore,

the special proof contemplated u/s 68 of the Evidence Act is not necessary. Under the above circumstances, the evidentiary value of the certificate

of registration requires consideration.

Section 60 of the Indian Registration Act reads thus:-

(1) 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 there on a certificate containing the word ""registered"", together with the number and page of the book in which the

document has been copied.

(2) 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 this Act and that the facts mentioned in the endorsement referred to in Section 59 have

occurred as therein mentioned.

In one of the earlier decisions of the Bombay High Court, in AIR 1931 Bombay 105 (Vishvanath v. Rahim) in the question that came for

consideration was, regarding the execution of an adoption deed which also did not require attestation. Registration copy of the adoption deed was

produced, and a Division Bench of that High Court held the certificate of endorsement by the Sub Registrar that such and such person admitted

execution is a piece of evidence regarding execution. In that case, the Division Bench held thus:-

The question whether secondary evidence in any given case is rightly admitted is one which is proper to be decided by the Judge of the first

instance and depends very much on his discretion and his conclusion should not be overruled except in a very clear case of miscarriage.

Their lordships further went on and said thus:-

The facts mentioned in the endorsement may be proved by those endorsements provided the provisions of S 60 have been complied with.

Similar is the case in AIR 1943 P.C.83 =56 L.W. 593 (Gopal Das and another v. Sri Thakurji and others) where also, their Lordships relied on

the endorsement of the Sub Registrar and certificate of registration as a piece of evidence. Their Lordships said that when the Registrar''s

endorsement shows that a particular person has executed the deed and he has admitted execution and two other persons have also identified the

execution, that is a good piece of evidence regarding execution of the deed, and that is a pure question of fact.

In AIR 1954 Madras 486 = (1953) 66 L.W. 1055 (Karuppanna v. Kolandaswami). a learned Judge this Court has held thus:-

When once the case for the introduction of secondary evidence is made out. certified copy got from the Registrar''s Office can be admitted under

S.57, Sub-s. (5) of the Registration Act without other proof than the Registrar''s certificate of the correctness of the copy and shall be taken as a

true copy. As the certified copy obtained from a Registrar''s office is admissible under S.57 (5), Registration Act, for the purpose of proving the

contents of the original documents, the mere production of such copy, without any further oral evidence to support it, would be enough to show

what the original document contained.

Again, the learned Judge said that in the case of registration copies, what is applicable is not S.90, Evidence Act but Sub-s. (5) of S.57,

Registration Act.

In AIR 1946 Bombay 193 (V. Pandappa v. Shivalingappa) also, a similar view was taken. Of course in that case, the certified copy itself was

more than 30 years old. Therefore, apart from the presumption u/s 60 of the Registration Act, Section 90 of the Evidence Act was also held to be

applicable, and it was held that the document was properly proved. Their lordships held thus:-

It is true that when a certified copy is allowed to be produced under S 65, no presumption can be drawn under S.90 as to the genuineness or

execution of the original and the Court should not admit a document merely on the ground that it is a certified copy of a document more than thirty

years old and should call for proof of the execution of the document. But when the document is registered, such proof is to be found in the certified

copy itself. The deed being registered, the certified copy bears the necessary endorsements of the Sub Registrar before whom the executant

acknowledged the execution and was duly identified. Sections 58, 59 and 60, Registration Act, provide that the fact mentioned in the

endorsements may be proved by those endorsements, provided the provisions of S.60 have been complied with.

In AIR 1950 Nagpur 6 (Kalu v. Bapurao) a learned Judge held thus:-

Where the original deed is lost, a certified copy of it is admissible under S.65 (c) where the original is more than 30 years old the certified copy

can prove the contents of the document but not its execution as S.90 requires production, in Court, of the particular documents in regard to which

it is asked to draw the statutory presumption of execution.

Their Lordships further went on and said thus:-

In answering the question whether a certificate of registration wherein is noted the admission of execution by a party is prima facie evidence of the

execution of the document, documents which are required by law to be attested must be distinguished from documents which are not so required

to be attested. As regards the latter class the certificate or registration is some evidence of execution against the party making the admission.

In AIR 1956 Bombay 65 (Kashibai v. Vinayak), a Division Bench of the Bombay High Court consisting of Gajendragadkar and Shah, JJ.,

considered the question in detail. That was a deed of mortgage requiring attestation. In paragraph 7 of the judgment, the Division Bench held that in

regard to documents which do not require attestation, and certified copy of registered documents, the endorsement of the Sub-Registrar is a piece

of evidence regarding execution. It was held thus:-

In the case of certified copy of registered document, however, the party would be justified in contending that under the provisions of S.60, Sub-s.

(2), Registration Act, 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, bears and the said endorsement must be given its due legal effect

having regard to the provisions of S.60, Sub-s. (2).

In AIR 1958 Andhra Pradesh 720 (Putti Lakshmayya v. Garlapati Tirupathamma), the case was in relation to a Will, wherein, the registration

copy itself was more than 30 years old. In those circumstances their Lordships said that where the certified copy shows that the original contained

an endorsement by the Sub-Registrar under S.60 of the Registration Act, it can be taken as evidence of the fact that the original contained the

attestator''s signature.

In 1964 K.L.T. 945 (Sumathi Amma v. Kunjulakshmi Amma), this question was considered in detail. It was held thus:-

In cases where S.69 of the Evidence Act has no application the certificate of registration in the light of the presumption in S.114, Illustration (e) of

the Evidence Act is evidence of execution, and can, in fit causes, be accepted as proof thereof. The facts required to be proved under S.67 can be

proved by any kind of evidence and there is nothing in the section to indicate that the evidence furnished by the registration certificate and by the

presumption in Illustration (e) of S. 114 of the Evidence Act is to be excluded. The Court is not bound to accept the certificate as sufficient proof,

and where better evidence is available, can insist on better evidence, drawing the presumption in Illustration (g) of S. 114 of the Evidence Act.

That decision was approved by a Division Bench of Kerala High Court in the decision reported in AIR 1977 Kerala 41 (Kunhamina Umma v.

Special Tahsildar).

In AIR 1978 Punjab and Haryana 285 (Shiv v. David), the question was regarding gift. There, the original document itself was filed. But the

learned Judge considered the effect of certificate by the Sub Registrar. It was held that the certificate endorsed on the deed as to its due execution

by the registering officer is a strong piece of evidence to prove the execution of the deed.

In AIR 1988 Calcutta 68 (Harihar Pai v. Sudhir Kumar Pai), a Division Bench held that ""the statutory presumption under S.90 is not

applicable to the certified copies of the documents which are 30 years old. But in such a case, the certified copy of the registered document may,

however, be received as secondary evidence of the original documents under S.65 (c) when it transpires from evidence that the original is lost and

not traceable and that non-production of the original is not due to any default or neglect on the part of the party producing the certified copy.''

In Rustomji on Registration - 4th Edition, commenting on Section 58 to 60, (at page 493), the learned author says thus:-

..... A ""document registered in and brought from a public registry office requires to be proved when it is desired that it should be used as evidence

against any party who does not admit it, quite as much as if it came out of private custody"". This does not, however, mean (as has sometimes been

supposed) that the admission of execution proved by the registration endorsement is no evidence what ever of execution. As held by Jenkins, CJ.,

the question whether the admission of execution made before the Registrar is sufficient to prove execution of the document, is primarily a question

of fact, i.e., it is a question which has to be decided by a tribunal of fact (e.g. by the first appellate Court) and cannot be disposed of by the High

Court in second appeal as a matter of law. Moreover, in view of the pronouncements of the Privy Council, the certificate of registration would

raise the general and important presumption usually embodied in the maxim, omnia praesumuntur rite el sole/unite acts (as to which, see illustration

(e) to Section Evidence Act). In other words, though the registration endorsement is not the conclusive proof of the fact of execution, it is at least

prima facie evidence of such execution, i.e., the registration endorsement is (under Sec.58 a relevant piece of evidence for proving the execution of

the document. But if the original registered document is not before the Court and there are suspicious circumstances attending the execution of the

document, the registration endorsement cannot be resorted to for the purpose of holding that execution has been proved. Moreover, though the

registration endorsement (as to admission of execution) is prima facie evidence of execution as against the person executing the document, it is not

evidence as against a third party, e.g., a stranger who was not a party to the transaction. When a registered document is more than 30 years old

(as to which, see Sec.90, Evidence Act), execution will usually be presumed from the registration endorsement alone....

(Emphasis supplied)

In this case, I have already stated that a case has been made out by plaintiff for admitting secondary evidence, and statement made by her in

her chief-examination has never been attempted to be controverted. In the evidence of D. W. 1, the first defendant does not speak anything about

Ex.A-1. He only contends about his possession or the possession of his predecessors. Whether the person who executed Ex.A-1 had title to the

property, and whether he has executed such a document was not spoken to by D.W. 1. In fact, if we go by his evidence in chief-examination, he

even says that he does not know that what is the schedule property. He does not know even the boundaries of the property. Even though he

attempted to give details of the property, when question was put to him, he gets confused, and inconsistent answers have been elicited. Further,

D.W.1 is also incompetent to adduce contrary evidence from what is seen in Ex.A-1. At the time when he was examined, he was only 40. That

means, at the time when Ex.A-1 was executed, he was not even born. None of the other witnesses also speaks about Ex.A-1. When grounds

have been made out to adduce secondary evidence, and taken along with the endorsement by the Sub Registrar that the executant admitted the

execution and the requirement under Sec.60 of the Registration Act has also been complied with, it is a piece of evidence u/s 65 of the Evidence

Act. Further, the Court also took into consideration the presumption under Sec. 114 of the Evidence Act, namely, that all official acts can be

presumed to have been done in accordance with law. The Sub Registrar also can be presumed to have identified the executant and also might have

put the question regarding execution. According to me, the lower appellate Court discarded Ex.A-1 only relying on Sections 90 of the Act. Even if

Sec.90 of the Act is not applicable, plaintiff can treat Ex.A-1 as a title deed, and on that basis it can be found that her father obtained valid title.

The lower appellate Court has not considered the other circumstances which also prove plaintiffs title to the property.

Originally the property was a zamin, and, after the abolition of Zamindari system, patta was granted in favour of plaintiff''s uncle Narayana

Chetty. The fact that patta stood in the name of Narayana Chetty is not disputed. Defendants 1 to 4 also have a case that Narayana Chetty is in no

way related to them. Their case is that the suit properties are ancestral properties, and they have been in possession for more than 80 to 100 years.

After Narayana Chetty''s death, patta also changed in the name of plaintiff and fifth defendant. If in fact defendants 1 to 4 were interested in the

properties, they would not have allowed the plaintiff to get patta for the property.

The various kist receipts and also adangal extracts for years together, all stand in the name of plaintiff and fifth defendant. May be if the kist

receipt and adangal extracts are for one or two years, there may not be any presumption of possession. But, taken along with the patta, and the

continuous payment of kist and the name appearing in the adangal registers, a presumption of possession also arises. In this connection when patta

is granted after the abolition of Zamindari, the patta also could be looked into for the purpose of title. Till the date of suit, plaintiff was having the

patta, she was paying the revenue, and adangal extracts and documents of title also stand in the name of the father of plaintiff and fifth defendant.

As against the said documentary evidence, much reliance is placed on Ex.B-1. i.e., patta granted by revenue authorities after the injunction

order went against the plaintiff. It has no legal validity. Even in the plaint, plaintiff has said that she and the fifth defendant have been paying revenue

from the date of the document, namely Ex.A-1. But some of the receipts are in the possession of Samiah, a friend of Narayana Chetty, who

subsequently became inimical towards them, and is now siding with defendants 1 to 4. The evidence of D.W.1 also shows that even though he said

that the patta stood in the name of his mother the document is before Court. He also said that himself and his predecessors were possession for

more than 80 years. Not even a scrap of paper is produced before Court to prove the same. On a comparative assessment of the evidence the

reasoning of the trial Court seems to be more probable and could be accepted. The lower appellate Court has not assessed the evidence. On

discarding Ex.A-1, it held that the plaintiff has no title. The lower appellate Court has held that since the suit is based on Ex.A-1, and when that

cannot be admitted, or that is not properly proved, plaintiff has to fail. It refused to consider the other evidence adduced by plaintiff. The material

evidence was omitted to be considered. For the reasons stated above, I am constrained to set aside the judgment of the lower appellate Court.

Even though Section 90 of the Evidence Act may not apply in regard to the proof of Ex.A-1, the same could be admitted in evidence u/s 65 of the

Evidence Act, and the plaintiffs are also entitled to rely on the Certificate of Registration as seen in Ex.A-1. The other documents support the

inference that Ex.A-1 might have come into effect, and the plaintiff''s father obtained title and the same was inherited by plaintiff. Since the lower

appellate Court has not considered the law in that regard and has omitted to consider the material evidence, I set aside to judgment by allowing this

appeal. In the result, the Second Appeal is allowed by setting aside the judgment of the lower appellate Court, and restoring the judgment of the

trial Court. O.S. No. 255 of 1983, on the file of District Munsif''s Court, Hosur, is decreed with costs in all the three Courts. C.M.P. No. 13717

of 1994 for injunction is dismissed.