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Civil Appeal No. 35 of 1957, decided on 17th October 1957, from the order of the District Judge, Mirpur, dated the 16th March 1957.
, 6. 76‑Object of appending certificate is to ensure that copy is true copy of original document ‑Certificate need not be in particular form.
The object of appending a certificate as required by section 76 of the Evidence Act is to ensure that it is a true copy. The requirements of the section would, therefore, be perfectly met, if there is an endorsement of the Officer issuing the copy which satisfies the Court that it is a true copy.
According to section 76 of the Evidence Act, a public officer who issues a copy has got to certify the copy as true copy', but then it is not necessary that the certificate should be in a particular form. All that is required is that it must be a true copy of the original and there must be something to denote that it was so.
, S. 90‑Evidentiary value of ancient document how to be judged.
To judge the evidentiary value of an ancient document, one of the criteria is that it must have been produced on previous occasions on which it would have been naturally produced, if in existence at that time and some act must have been done under it. [p. 5] C
There can be no presumption of correctness in favour of the contents of an ancient document. When produced from proper custody, these documents are admitted into evidence but their value as evidence depends in each case upon the corroboration
Vallabhdas v. Pranshankar A I R 1944 All. 114 and Suraj Narain v. Thabbu Lall A I R 1929 Bom. 24 ref.
, S. 1 65 (e)‑Secondary evidence may tie given of contents of public document by pro ducing its trice copy.
According to section 65 part (e), secondary evidence may be given of the contents of a public document by producing its true copy.
Siraj‑ul‑Haq, Advocate for Appellants.
Abdul Ghafoor for Respondents.
---‑ This is a second appeal against the order of District Judge, Mirpur, dated the 16th April 1957, whereby the judgment of the trial Court dated the 24th November 1956, granting the plaintiffs a declaratory decree with consequential relief for joint possession for 19/24th share of the suit land was upheld and it was also up held that the decree of the Sub‑Judge, Mirpur, dated the 11th November 1956, in the case "Ghulam Qadir v. Allah Rakha etc., and the mutation dated the 28th January 1955, consequ ent upon this decree were ineffective against them.
To understand the suit brought by the plaintiffs in the lower Court, the following pedigree‑table is given at the out set
| PHOLLA
_____________________
Noor Mahi Jiya
Karim Bakhsh ____________
Ali Bakhsh Faqir (issueless)
__________________ ______________________________ Sardara Hassan Mohd. Ilam Din Sahib Din Chanan Din (died issuless) ________________ _____________________
Fazal Ahmad Fazal Ellahi Ahmad Hasan Mohd. Din Din Din
_____________________________________
Hussain Bibi Ghulam Bibi Alam Bibi Fazlan (widow)
___________________
Allah Rakha Gulab Din
|
It was alleged by the plaintiff:‑respondents 1, 2 and 3 that their father Hassan Muhammad had on his death left property of the following description :‑
(a) land measuring 49 Kanals and 7 Marlas comprised of Khasra Nos. 295, 456, 327, 414, 367 and 456 min situate in village Nagyal, Tehsil Mirpur ;
(b) land measuring 13 Kanals and 7 marlas, comprised of Khasra Nos. 701 and 661, situate in village Dhtyal, Tehsil .Mirpur ;
(c) occupancy rights in land measuring 6 Kanals and 19 marlas, comprised of Khasra Nos. 280 and 279, situate in village Nagyal, Tehsil Mirpur ; and
(d) one house with a verandah and a court‑yard,
that this property was mutated in the name of his widow Mst, Fazlan as a limited owner who gifted away the whole of this property to her grandsons Allah Rakha and Gulab Din, by a deed dated the 31st Chet Sambat year 2001, though she could not do so and that since Mst. Fazlan was dead, the succession had opened up and they were entitled to 19/24th share in the above mentioned property as daughters of Hassan Muhammad under Shariat. It was, further, alleged that after the death of Fazlan, defendants 3 to 7 had brought a suit against the defendants 1 and 2 which was compromised on the 11th January 1951;, and the whole of the property was distri buted by the parties amongst themselves according to the com promise to the exclusion of the plaintiffs and that that decree and the mutation effected in consequence of that decree was not binding on the plaintiffs. It was in the end prayed that the plaintiffs be granted a declaratory decree with a conse quential relief for joint possession to the effect that they were owners of 19/24th share of the suit land arid that the compro mise decree of the Sub‑Judge's Court dated the 11th January 1956, and the mutation dated the 28th January 1955, were not binding on them.
The defendants‑appellants 3 to 7 contested the suit on the ground that the whole of the suit land did not belong to the plaintiffs' father Hassan Muhammad, but that half of the suit land which only they were entitled to inherit and not the plaintiffs belonged to one Fazal Ahmad who had died after Hassan Muhammad. As regards 19/24th share in the property left by Hassan Muhammad, they conceded the claim of the plaintiffs.
The defendants 1 and 2 (respondents 4 and 5) contested the suit only on the ground that Mst. Fazlan was competent to gift away the property to them. The following issues were framed by the trial Court :‑
(1) Whether the suit land left behind by Hassan Muhammad on his death belonged to him (O. P. P.)
(2) Whether Fazal Ahmad son of Sardar had died after Hassan Muhammad and the property left by him was mutated in the name of Mst. Fazlan widow of Hassan Muhammad (O. P. D. 3 to 7.)
(3) Whether Fazlan was competent to execute the gift deed regarding the suit land in favour of defendants 1 and 2 (O. P. D. 1 and 2.)
(4) Relief.
The trial Court found that Fazal Ahmad had died after Hassan Muhammad and that the property in suit belonged to Hassan Muhammad. On issue No. 3, it held that Mst. Fazlan was not competent to gift away the suit property to defendants 1 and 2, The plaintiffs were, therefore, granted a declaratory decree as prayed for by them. It may be remarked that besides the oral evidence produced by the parties, the plaintiffs also produced a copy of 'jamabandi' of Sambat year 1969‑1970 of village Nagyal Exh. P. X. and a copy of the pedigree‑table of village Nagyal marked Exh. P. Z. In these copies, there is mention of mutation No. 109 about the death of Fazal Ellahi and the mutation of his land in the name of Fazal Ahmad (his brother) of mutation No. 140 about the death of Fazal Ahmad and the mutation of his land in the name of his uncle Hassan Muhammad and of mutation No. 141 about the death of Hassan Muhammad and the mutation of his land in the name of his widow Mst. Fazlan. These copies were admittedly produced by the plaintiffs at a late stage but just before closing their evidence and were admitted by the trial Court. The trial judge has in so many words admitted that the oral evidence in the case does not lead him anywhere to determine whether Fazal Ahmad died before or after Hassan Muhammad. He, however, relied mainly on documents Exhs. P. X. and Exh. P. Z. in coming to a decision on this point. It appears that no objection was taken to the production of these documents in the lower Court at a late stage by the defendants. On appeal to the District Judge, an objection was taken to the admissibility of these documents by the defendants but their objection was turned down and the finding of the trial Court up held.
In this second appeal, the learned counsel for the appel lants has mainly confined himself to the question of admissibility of these documents. He has discussed sections 90 and 76 of the Evidence Act at length. His objections to the admissibility of these documents are as under :‑
(a) that the copies are not duly certified as required by section 76 of the Evidence Act;
(b) that these documents have not been produced from proper custody ;
(c) that there can be no presumption as to the correctness of the contents of the documents even if the copies are 30 years old.
No doubt, according to section 76 of the Evidence Act, a public officer who issues a copy has got to certify the copy as 'true copy', but then it is not necessary that the certificate should be in a particular form. All that is required is that it A must be a true copy of the original and there must be some thing to denote that it was so. In the present case, it is given in the head‑lines of Exh. P. X. that it is a copy of 'jamabandi'
"At the request of Mst. Fazlan this 'fird' has been given. She wants to execute a will.
Dated 20th Baisakh Sambat year 1978.
(Sd.) Fazal Ellahi, Patwari."
It may be kept in view that this document is shown to have been copied about 37 years back when probably the procedure of issuing copies of documents was not, strictly speaking, the same as in these days. The object of appending a certificate as required by section 76 of the Evidence Act is to ensure that it is a true copy. The requirements of the section would, therefore, be perfectly met, if there is an 1 endorsement of the officer issuing the copy which satisfies the Court that it is a true copy. In the present case, the endorsement duly signed by the Patwari satisfies one that it is a correct copy of the original. It was even produced along with the will that was executed and presented for registration before the Sub‑Registrar and bears the Seal and Signature of the Sub‑Registrar. This means that this copy was even acted upon. To judge the evidentiary value of an ancient docu ment, one of the criteria is that it must have been produced on previous occasions on which it would have been naturally produced, if in existence at that time and some act must have been done under it. This copy, as stated above, and copy Exh. P. Z. was produced along with the will for registration before the Sub‑Registrar and were acted upon as the Seal and Signature of the Sub‑Registrar show. I, therefore, hold that though the certificates appended to the copies Exh. P. X. and P. Z. are not strictly in accordance with the requirements of section 76 of the Evidence Act, yet the endorsements of the Patwari on these documents denote that they are true copies. In this connection A I R 1929 Bom. 24 and A I R 1944 All. 114 may be referred to.
According to the endorsement of the Patwari on the copies, these were issued to Mst. Fazlan, mother of the plaintiffs, for the execution of a will. The Seal and the Signature of the Sub‑Registrar shows that these were produced before him for that purpose on the 27th Baisakh Sambat year 1978. This will along with these copies should ordinarily be in the custody of the plaintiffs and, therefore, if they produced these copies in this particular case in the trial Court, it can be safely said that they were produced from proper custody.
As regards point No. (c) raised by the learned counsel for the appellants, it is correct that there can be no presump tion of correctness in favour of the contents of an ancient document. When produced from proper custody, these documents are admitted into evidence but their value as evidence depends in each case upon the corroboration that can be derived from external circumstances. The documents produced in the present case and relied upon by the Courts below were already once produced before the Sub‑Registrar the execution of a will and acted upon by him for the execution and registration of the will. Such documents cannot, therefore, be said to have no evidentiary value. I, therefore, hold that the Courts below were right in treating and the contents of these documents as correct. It will be in place to mention here that according to section 65 Part (e) secondary evidence may be given of the contents of a public document by producing its true copy. In the present case, the copies Exh. P. X. and P. Z, are true copies of the public record and, therefore, their production is enough to prove the contents of the original documents. As marked above, these documents were rightly relied upon by the Courts below in coming to a final decision in the case. I see no reason to disturb those findings and, therefore, dismiss the appeal. In the special circumstances of the case, the parties are left to bear their own costs.
K. M. A. Appeal dismissed.
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