1. This is plaintiff's first appeal from the judgment and decree dated 12-11-1990, passed by Sri K.R. Prasad Rao, XIV Additional City Civil Judge, (Mayo Hall), Bangalore in Original Suit No. 649 of 1980 (No. 7 of 74), dismissing the plaintiff's-appellant's suit for the reliefs mentioned hereinafter in toto.
2. That the plaintiff in the above suit claimed:
(a) Decree for declaration to the effect that the suit scheduled properties exclusively belong to plaintiff; and
(b)That any alienation of suit properties i.e., items 3 and 4 of schedule properties even made by defendant 1 in favour of defendants 2 and 3 are illegal, null and void and are not binding on plaintiff;
(c)Decree for permanent injunction;
3. That the plaintiff-defendant i.e., the appellant-respondents are related as below:
Govindappa Smt. Kenchamma (Defendant 1) Plaintiff (G.C. Papanna) (Defendant No. 2) (D. Chikkamma) (Defendant No. 3) (Puttalakshmamma) (Defendant No. 4) Govind Raj Natural son Auras putra given in adoption to Madke Anand C.
That plaintiff had three other brothers:
These three brothers of
plaintiff are now not alive.
4. That on 21-12-1933 deed of settlement was executed by T.B. Borajjannah (brother of defendant 1) and Smt, Kenchamma-defendant 1 (mother of plaintiff and defendants 2 to 4) whereunder property described in schedule to the plaint was transferred and settled in trust upon defendant 1, subject to condition that defendant 1, shall be at liberty to enjoy the said property during her lifetime with no power to transfer the same by sale, gift, mortgage or exchange etc., and that after her life interest expires and the said property shall be divided amongst the sons of defendant 1 as then surviving at the time of death of defendant 1 and Smt. Kenchamma. Defendant 1 is in possession of suit property by virtue of deed of settlement. The plaintiff alleged in the plaint that the deed of settlement dated 21-12-1933, to be in possession of defendant 1.
5. That plaintiff-appellant has alleged to have come to know in early 1973 that defendant 1-Kenchamma executed a sale deed on 5-10-1972 in defendant 2's favour of houses bearing No. 123-A and 123-B bearing (new Nos. 358 and 359), located at Old Poor House Road, Civil Station, Bangalore i.e., item 3 of Schedule for Rs. 20,000/- and the same have been now recorded in Municipal Corporation records in the name of defendant 2, after deleting the name of defendant 1.
That it has also come to the notice of plaintiff that properties item Nos. 3 and 4 of the schedule (premises 210, 210/A, 210/B) (new Nos. 262 and 261) Old Poor House Road, Bangalore have been changed and recorded in the name of defendant 3 from that of defendant 1, on account of the same alleged to have been sold by defendant 3. That defendants 2 and 3 claim themselves to be the owners of schedule items 3 and 4 properties respectively;
Plaintiff's case is that sale deed in favour of defendants 2 and 3 are illegal, null and void as defendant 1 being the only trustee could not transfer as per the terms of settlement deed dated 21-12-1933.
Said sale deeds are not binding on the plaintiff. Plaintiff claimed rights to have vested in him by virtue of settlement deed 21-12-1933, as regards schedule properties and that right cannot be defeated by sale deeds alleged to have been made by defendant 1 in favour of defendants 2 and 3.
Defendant had no legal right nor legal necessity to transfer or to execute the sale deed dated 5-10-1972. That the recital about legal necessity in sale deed is wrong and fictitious. That sale deed dated 5-10-1972 is without consideration and is void.
In sale deed dated 5-10-1972, defendant 1 has alleged herself to be owner of properties by virtue of deed dated 9-9-1924, but the plaintiff has alleged the same to be wrong and asserted that the property under deed dated 8-9-1924, was purchased by her brother Borajjannah. That the deed of settlement dated 21-12-1933 was jointly executed by defendant 1-Smt. Kenchamma and her brother and as per terms of settlement deed dated 21-12-1933, defendant 1 was entitled to only lifetime enjoyment thereof.
Whatever rights, title or interest, defendant 1 had under deed dated 9-9-1924, stood divested by deed dated 21-12-1933, so defendant 1 could not execute deeds of transfer i.e., sale deeds in favour of defendants 2 and 3.
Deeds made by defendant 1 in favour of defendants 2 and 3 have tendency to cast clouds on plaintiff's right and interest in suit schedule properties, so need arose for the suit for the reliefs for decree for declaration, and injunction as referred to above and the suit.
6. Defendants filed written statements and additional written statements. They admitted relationship inter se, the plaintiff and defendants 1 to 4 as alleged in the plaint.
Defendants denied plaintiffs claim and case as set up in the plaint. They denied the allegation that property in suit did not belong to defendant 1, as well as denied the alleged deed of settlement dated 21-12-1933, as well as its execution, its validity and its effect on defendant 1, and other defendants. The defendants asserted that defendant 1 was exclusive as well as full owner of suit schedule properties with rights to enjoy as well as to alienate on the basis of deeds i.e., sale deeds dated 8/9-9-1924, 16-12-1926, 16/18-12-1927 and 11-5-1931, whereunder defendant 1 claimed to have purchased the suit schedule properties. That defendants asserted that deed dated 21-12-1933 was neither executed by defendant 1, nor had ever been with defendant 1. They asserted the alleged deed dated 21-12-1933 was nothing but a fictitious and forged, fraudulent document and that plaintiff could not and did not acquire any right or title in suit properties on the basis thereof. Defendants further asserted execution of sale deed and that transfer was made of properties of items 3 and 4 by defendant 1, in favour of defendants 2 and 3 for valuable consideration and for legal necessity as mentioned in detail in the deeds and in written statements.
The defendants 2 and 3 asserted to be bona fide purchasers for value without notice of any such deed dated 21-12-1933, as set up in the plaint.
The defendants further alleged that by virtue of provision of Section 14 of the Hindu Succession Act, 1956, as well, defendant 1 has been the absolute and full owner of suit properties, in addition to the terms of sale deeds dated 9-9-1924, 16-12-1926, 11-5-1931, whereunder defendant 1 had purchased the said properties at the time defendant 1 executed the sale deed dated 1-8-1970 and deed dated 5-10-1972 in favour of defendants 3 and 2 respectively.
The defendants asserted the suit of plaintiff to be frivolous and vexatious and not maintainable as well as liable to be dismissed. The defendants denied that T.B. Borajjannah had anything to do with suit properties and asserted the suit properties did exclusively belong to defendant 1, and she enjoyed rights of full ownership therein with possession.
7. The Trial Court on the basis of the pleadings of the parties framed the following issues.-
1. Whether plaintiff proves that first defendant and her brother T.B. Borajjannah jointly executed a deed of settlement dated 21-12-1933 and whether under the above settlement deed the suit schedule properties were settled in trust upon first defendant subject to conditions that she should be at liberty to enjoy the suit schedule properties till her lifetime with no power to alienate the same and that the suit schedule property should be divided among her sons that may be surviving at the time or her death?
Or Whether defendants 1 to 3 prove that the above settlement deed dated 21-12-1933 is illegal, void, fictitious and whether the above deed of settlement was obtained by T.B. Borajjannah by fraud and misrepresentation, undue influence and without the consent of the first defendant and whether therefore the above settlement deed is not binding on the 1st defendant?
2. Whether defendants 2 to 3 prove that the suit schedule properties were and are 'Stridhana' properties of the 1st defendant and whether the 1st defendant is therefore the absolute owner of the suit schedule properties with power of disposition over them?
3. Whether the plaintiff proves that sale deeds executed by the 1st defendant in favour of defendants 2 and 3 in respect of the suit schedule items 3 and 4 property respectively, are illegal, void and of no effect and without any consideration and whether the 1st defendant had no power to execute the above sale deeds and whether the above sale deeds are not binding on the plaintiff and whether the above sale deeds were executed for no legal necessity?
4. Whether the plaintiff proves that he has vested rights in the suit schedule properties as contended by him (in) paras 7 and 11 of his plaint?
5. Whether the plaintiff is entitled to a declaration and permanent injunction as prayed for in the plaint?
6. Whether the C.F., paid is not sufficient?
7. Whether the suit is not maintainable without a prayer for cancellation of the sale deeds in favour of defendants 2 and 3?
8. Whether there is no cause of action for the suit?
9. Whether the suit is bad for misjoinder of the 4th defendant as a party in this case?
10. To what reliefs, the plaintiff is entitled?
8. That the Trial Court having appreciated the evidence lead by parties on record and dismissed the plaintiff's suit after having recorded the findings as under;
(a) Plaintiff failed to make out a case under Section 65 of the Indian Evidence Act for being entitled to lead secondary evidence and to file certified copy of settlement deed;
(b) Section 90 of the Evidence Act is not applicable to copy of document and presumption thereunder cannot be made applicable to the present case as regards proof of deed of settlement dated 21-12-1933, so no benefit of presumption under Section 90 of Evidence Act can be made applicable to certified copy in this case;
(c) The contention of plaintiff that all the items of properties were purchased by the father and brother of defendant 1-Smt. Kenchamma nominally in the name of defendant 1 (Kenchamma) and that Kenchamma was only benamidar in respect of the suit schedule properties cannot be accepted, in view of material on record. Further there is no specific plea of benami in respect of suit schedule properties. Custody of title deeds in respect of suit schedule properties has remained with Smt. Kenchamma, defendant 1 and the sale deeds of 1924 to 1931 are not benami ones;
(d) The plaintiff failed to prove the due execution of Exh. P-1. the settlement deed by first defendant-Kenchamma;
(e) Exh. P-1, the document cannot be deed of settlement, it. could be read and construed to be the Will, if due execution thereof would have been proved (54/131);
(f) Exh. D-18 and D-20 -- Sale deeds are valid and are for consideration and were executed for legal necessity;
(g) Plaintiff is not entitled to reliefs as claimed in the plaint.
9. The plaintiff-appellant having felt aggrieved has come before this Court by way of first appeal.
10. I heard Sri Shailendra Kumar, the learned Counsel for the appellant and Sri Bhawani Shankar, the learned Counsel for the respondent at length and the arguments were closed and the judgment was reserved on 3-4-1998. That later on the reopening of the Courts after Summer vacations on 25-5-1998, appellant's Counsel moved application for being spoken to i.e., to urge some additional point and application being allowed, I heard the party Counsels as above on 27-5-1998 and reserved the judgment.
11. The learned Counsel for the appellant submitted that the Court below has been wrong in dismissing the suit. The learned Counsel for the appellant submitted that the Trial Court erred in holding Smt. Kenchamma-original defendant 1 to be the sole and full owner of all the schedule properties entitled to alienate the properties items 2 and 3 in favour of defendants 2 and 3 as well as to execute the will.
The learned Counsel further urged that the Court below in view of Evidence on record ought to have held, that as regards schedule properties, which are purchased from 1924 to 1931, in the name of Kenchamma that said properties were purchased by the plaintiff-appellant's maternal grandfather and maternal uncle and they were real owners and not Smt. Kenchamma, She was only a name lender benamidar as per sale deed Exh. D-31 (16-12-1926); Exh. D-32 (16/18-12-1927), Exh. D-33 (dated 9-9-1924); Exh. D-34 (dated 11-5-1931).
The appellant's learned Counsel further submitted that Court below erred in holding that the plaintiff-appellant failed to prove Exh. P-l, i.e., the deed of settlement dated 21-12-1933, as well as erred in holding the same to be will and not as deed of settlement or trust.
Sri Shailendra Kumar, the appellant's learned Counsel urged that the Court below erred in holding the certified copy of deed of settlement dated 1933, was not admissible as secondary evidence of the original deed under Section 65 of the Evidence Act, as appellant has failed to prove loss of original. Learned Counsel Sri Shailendra Kumar urged that Exh. P-1 being certified copy of the registered deed of settlement, taken from record book of private document was admissible as secondary evidence under Section 65(e) and (f) of the Evidence Act.
Sri Shailendra Kumar, the learned Counsel further submitted that the deed being more than 30 years old, presumption under Section 90 of the Evidence Act, should have been raised and the learned Court below erred in law by not applying Section 90 of the Evidence Act, and laying too much emphasis on non-production of witnesses, including the attesting witnesses specially when attesting witnesses were already dead, since after 1933. Learned Counsel urged the endorsement of Sub-Registrar that Kenchamma admitted execution of Exh. P-l and under Sections 57 and 60 of Registration Act read with Section 114 of the Evidence Act, the endorsement was admissible to prove execution of Exh. P-l being the admission of defendant 1-Kenchamma.
Sri Shailendra Kumar, the learned Counsel for the appellant submitted that the Court below ought to have allowed the appellant's application for production of expert evidence after examination by it of L.T.I. of Kenchamma on Exh. P-9, from the record of office of Sub-Registrar and has erred in law by rejecting that application as well as in putting blame on the plaintiff-appellant that plaintiff failed to prove the signature and L.T.I. of the defendant 1 on the deed by non-examination of expert evidence of Handwriting and Finger Print Expert.
Learned Counsel for the appellant submitted Exh. P-l per se established that plaintiff-appellant was having limited life estate in suit properties and defendant 1-Kenchamma had no right to transfer and she was not entitled to make any alienation and alienations made by Kenchamma in favour of her daughters defendants 2 and 3 were null and void.
In the end Sri Shailendra Kumar, learned Counsel for the appellant submitted that application for expert evidence filed before the Trial Court be allowed and case be directed to be tried afresh after its being remanded. He pressed for remand of the suit to the Trial Court.
12. That the contentions of the learned Counsel for the appellant have hotly been contested on behalf of the respondents by their learned Counsel Sri Bhawani Shankar.
13. I have applied my mind to the contentions made by the learned Counsels for the parties.
14. The first question to be considered is, if Smt. Kenchamma was the sole and absolute owner of suit properties or she was only a name lender to transaction i.e., benamidar. This plea had been raised by the plaintiff-appellant in para 9 of the plaint dated 23-1-1974, in substance though expression benamidar has not been used.
15. That in view of the law laid down in the case of R. Rajagopal Reddy (dead) by L.Rs and Others v Padmini Chandrasekharan , interpreting Section 4(1) and 4(2) of Benami Transactions (Prohibition) Act, holding that Section 4(1) and 4(2) not to apply to suits pending on the date and from before the date of coming into force of the Act as well do not bar the trial of such a plea taken in defence in suit i.e., taken in the written statement filed before 19-5-1988, as in view of the reversal of the earlier decision in Mithilesh Kumari and Another v Prem Behari Khare, the plea had to be tried and determined.
16. That as has been laid down by their Lordships of the Supreme Court that plea of a transaction exhibited by a deed to be benami is to be established by the party raising it. Burden of proof to establish a transaction to be benami is to be discharged by party raising the plea. The party raising such a plea, either in the plaint or in the written statement as defence cannot succeed unless it proves that property under the deed of transfer though has been purchased in the name of a person in whose name the deed stands, but the real purchaser is a different person and that the same had not been purchased for the benefit of such person named in the deed as purchaser in addition to establishing the passing of sale consideration and conduct or dealing with property by the parties namely possession, control, etc., over property. Reference in this regard may be made to the cases of Jaydayal Poddar (deceased) through L.Rs and Another v Mst. Bibi Hazra and Others; Smt. Surasaibalini Debt v Phanindra Mohan Majumdar; Heirs of Vraj Lal G. Ganatra and Others v Heirs of Purshottam S. Shah and Others and Rebti Devi v Ram Dutta.
17. That Exh. D-31 is the copy of registered sale deed dated 16th December, 1926, executed by K.M. Abdul Suban Sahab and three others in favour of Smt. Kenchamma-defendant 1 (the mother of plaintiff-appellant and defendants 2 and 3 and mother of birth of defendant 4) i.e., respondents 2 to 4 and relates to suit schedule property Item 1, that Exh. P-32 relates to item 2 of suit schedule property. It is the sale deed dated 18-7-1927 executed by Abdul Suban Sahab and others in favour of Kenchamma, daughter of Sri T. Barmah, a purchaser. That Exh. D-33 is the sale deed relating to item 3 of the suit schedule properties. It is dated 9th September, 1924, executed by Municipal Commission of Civil Military Station, of Bangalore in favour of Smt. Kenchamma, the purchaser and Exh. D-31 is the sale deed dated 11-5-1931 executed by Abdul Rahim Sahab and others, with reference to item 4 of suit schedule properties transferring the said property to the vendee mentioned therein namely Smt. Kenchamma (or defendant 1) D/o late T. Barmah.
18. Thus the deeds of sale Exh. D-31 to Exh. D-33 per se reveal that Smt. Kenchamma (original defendant 1) has been the purchaser or vendee of the properties-subject-matter of respective sale deeds and she has been described as the purchaser. That as laid down in the case of Smt. Surasaibalini, supra, the Court may start with the presumption that an ostensible title is real title unless the plaintiff or the person who seeks to assert the contrary pleads and proves that the ostensible owner is not the real owner. So, I start with this basic and initial presumption which may be rebutted by pleading and proving to the contrary.
19. This is question of fact to be determined if the plaintiff in this case pleading to the contrary has been able to so establish. It is also well established principle of law that when both the parties have lead evidence in the case, it is question of appreciation of evidence and question of burden of proof remains one of academic importance. The defendant 1 who has died during the trial of the case on 11-6-1979 and has denied the plaint allegations in this regard and did assert herself to he the absolute owner of suit properties under the sale transactions exhibited by Exh. D-30 to Exh. D-33. -
20. Plaintiff in this regard has examined herself as P.W. 1. P.W. 1's evidence is neither reliable nor of any value. The suit properties were purchased vide Exh. D-30 to Exh. D-33, during the period of 1924 to 1931 as per own deposition of P.W. 1, and deeds itself. The transaction did take place after the marriage of defendant 1, Smt. Kenchamma who had been married in 1910; P.W. 1 was bora in 1927 vide, P.W. 1's deposition in the course of cross-examination, P.W. 1, plaintiff-appellant has very clearly admitted-I did not have any personal knowledge about these transactions (vide cross-examination dated 26-8-1988, P.W. 1 deposes "It is true items 1 and 3 were purchased prior to my birth. It is also true items 2 and 4 were purchased when I was very small boy of less than five years".
I did not have any personal knowledge of these transactions. He further deposes Borajjannah himself told me that he gave money to 1st defendant to purchase the suit property. Plaintiff-appellant as P.W. 1 further states, it is false to suggest that father of defendant 1 and Borajjannah did not pay any money to defendant 1 to purchase items 1 to 4 of suit schedule property".
21. This is the oral evidence led by the plaintiff. This evidence is inadmissible as well as to prove the benami nature of transactions exhibited by Exh. D-30 to D-33 or to rebut the presumption that an ostensible owner is owner i.e., real owner.
22. Learned Counsel for the appellant referred to Exhs. P-2, P 2-A, P-3 and P 3-A, relating to the public auction and submitted that these documents reveal that as regard item of properties 2 and 4, advance money was paid by Sri T. Boranna, the father of defendant 1 (Smt. Kenchamma) and as regards items 2 to 4 of schedule properties, Mr. T. Boranna was the real purchaser. In Exh. D-31, it is mentioned "held on 9th October, 1926, when Mr. T. Boranna's bid for Rs. 5,000/- for the sake of his daughter, the purchaser being the highest of the property was knocked down to the purchaser when Mr. Boranna on account of the purchaser hath paid the sum of Rs. 1,000/- (Rs. one thousand only) to the vendors through above auctioneers as earnest money deposit. Now thus indenture witnesseth that in pursuance of said auction sale deed in consideration of sale amount of Rs. 5,000/- (Rupees five thousand only) out of which deducting the payment of earnest money referred to above, the balance of sale amount i.e., Rs. 4,000/- (Rupees four thousand only) in good III money into vendors well and truly paid by Mr. T. Boranna for the purchase before the Sub-Registrar of the Station. The receipt of full amount of Rs. 5,000/- (five thousand) the vendor hereby acknowledge. . . The vendor in consequence do hereby grant, assign, convey, sell, transfer and get over to the purchaser all....".
23. The underlined and above quoted portions from the Exh. D-31, per se reveals the state of affairs that advance sum i.e., earnest money as well as balance sum of sale consideration was paid by Mr. T. Boranna not in his personal capacity but for and on behalf of purchaser, Smt. Kenchamma, original defendant-1. This reveals that real purchaser was defendant 1, Smt. Kenchamma and T. Boranna was acting for Smt. Kenchamma and he made payment on behalf of and for the benefit of his daughter the real purchaser. Similarly Exh. D-32 and its contents reveal that intention of purchase under this deed was to the effect that Bo-ranna's daughter be benefited and Mr. T. Boranna entered and acted with motive, in getting the property purchased even if he paid consideration and got the deed executed in favour of and in the name of Smt. Kenchamma defendant 1, for providing property to her i.e., vendee named in the deed. The material portion of deed Exh. D-32, reads-"Whereas Mr. Boranna, with intention of providing his daughter aforesaid purchaser with property have the highest bidder the property was knocked down for the sum of Rs. 1,300/- only who at the same time paid Rs. 100/- as earnest money to vendor through auctioneers. . . .".
The vendors acknowledging the receipt of full sale amount of Rupees one thousand three hundred only do hereby grant, assign, convey, sell, transfer and set over to purchaser all their rights. . ." to have hold and to enjoy the same for ever as her personal property. . . .". This deed per se shows whatsoever if any, payment was made by Mr. Boranna and it was with the motive and intention of providing the property to his daughter Smt. Kenchamma and so deed was executed or got executed in favour of Smt. Kenchamma the original defendant 1 in the suit.
24. Thus the perusal of Exh. D-31 and D-32 reveal the intent behind the transaction. In case transaction covered by Exh. D-31, Sri Boranna acted as agent of his daughter and made payment on behalf of his daughter Smt, Kenchamma and got the sale deed executed for and in the name of his aforesaid daughter who was real purchaser as contents of deed per se reveal and in the case of transaction covered by deed Exh. D-32, it reveals the motive and intention to confer benefit and title, right and interest in property to purchaser named therein i.e., his daughter Smt. Kenchamma. In view of the law laid in Surasaibalini's case, supra, defendant-Kenchamma cannot be declared or held to be benamidar. In Surasaibalini's case, supra, their Lordship of the Supreme Court observe as under.-
"Even where the plaintiff purchases properties with his own funds in the name of 'B', the surrounding circumstances, the mode of enjoyment might still indicate that it was intended to be a gift to 'B' and it would then not be a case of benami notwithstanding that the purchase money did not proceed from defendant".
25. As regards properties covered by Exh. D-30 and D-33 sale deed, there is no evidence of any funds being provided by father or brother of defendant 1-Kenchamma.
26. The evidence on record regarding possession, user etc., of suit properties and control and possession of title deeds is that, these were all with Smt. Kenchamma-defendant 1. P.W. 1 admits and says "No other person questioned the four sale deeds executed in favour of Kenchamma between 1924 and 1931". Further P.W. 1 has admitted "Kenchamma used to collect rent from tenants. She always dealt with suit schedule properties. This along with D.W. 1's evidence really establishes that Smt. Kenchamma has been the real owner and not benamidar. Plaintiff-appellant has failed to prove that Smt. Kenchamma-original defendant 1, was a benamidar. The Trial Court's finding on this aspect is affirmed.
27. That on behalf of the plaintiff-appellant great emphasis has been laid on Exh. P-1 i.e., alleged settlement deed dated 21-12-1933. The learned Trial Court has found that plaintiff has failed to prove its due execution. It has further found the deed to be will and not trust deed.
28. The plaintiff has primarily based his case and claim on this Exh. P-l i.e., the certified copy of deed of settlement dated 21-12-1933 and has asserted that in view of Exh. P-l, deed, original defendant 1-Smt. Kenchamma had no right to make transfer by way of sale, gift or mortgage etc., of suit schedule properties. The burden did lay on plaintiff-appellant to prove its execution and contents. The plaintiff has not filed the original deed of 1933 nor did he get it produced or summoned. Plaintiff-appellant has filed the certified copy of this deed from Registration office and summoned the official from the office of Sub-Registrar, along with Thumb Impression register for 21-12-1933, relating to document No. 1308 of Book No. 1. Thumb Impression Register from Sub-Registrar's Office is Exh. P-9 and the official examined is P.W. 2.
29. In this connection it has been urged that the Trial Court erred in holding that secondary evidence was inadmissible unless case is covered or made out under Section 65 of the Evidence Act and loss etc., or original deed of settlement dated 21-12-1933 was established. Learned Counsel for appellant submitted that certified copy was admissible under Section 65(e) and (f) of Evidence Act. This contention of appellant's Counsel has been hotly contested on behalf of respondent. The learned Counsel for the respondent submitted that the deed of settlement of 1933 being a private document, plaintiff-appellant could not cover his case for secondary evidence by Section 65(e) or (f) of the Evidence Act and that certified copy was inadmissible unless loss etc., of original is established as held by Court below.
30. It is trite principle of law as per Section 64 of the Evidence Act, that the documents are to be proved by primary evidence only with exception to cases for adducing secondary evidence is made out, established under Section 65 or 66 of the Act. The primary evidence as per Section 62 of the Act means the documents itself. It is thus if a document is to be proved, it has to be proved by production of the document in original itself except in cases or situations referred to or covered by Section 65 or 66 of the Act.
31. The learned Trial Court has considered the matter with reference to Exh. P-1, i.e., deed of settlement of 1933. It has observed in para 15 of the judgment -- "In the present case except for the version of the plaintiff there is no evidence to prove that original of Exh. P-l was in the custody of first defendant during her lifetime and that after her death, the said document came into the custody of third defendant, as claimed by plaintiff". The Trial Court further found that the plaintiff-appellant had admitted that in the year 1958 his mother (defendant 1) had given him the original of Exh. P-l i.e., deed of settlement but it is neither in pleading nor in evidence that Exh. P-l was lost after its having come in his custody and the plaintiff-appellant failed to make out any case for leading secondary evidence.
32. The Trial Court afer having appreciated the circumstances emerging from plaintiff's own evidence observed in para 19:
"In the circumstances, I am unable to believe the evidence of the plaintiff that the original of Exh. P-l remained with his mother during her lifetime and that after her death it came into the custody of his sister the third defendant".
33. In my opinion, the above finding of the Trial Court is substantially correct. This is further supported by the circumstances that the plaintiff did not call upon defendant 1 during her lifetime to produce the settlement deed alleged by plaintiff to have been executed by defendant 1. That P.W. 1 (plaintiff) states "I did not call upon her to produce settlement deed at any point of time" and gives the reason in earlier part of his statement that as defendant 1, Kenchamma denied the very execution of settlement deed in course of her written statement so he did do so. At another place P.W. 1 states, in 1966 my father asked me to give the documents so that he could give it to our elder brother.
34. These changing stands taken by P.W. 1-plaintiff, really falsify these explanations. His own admission that in 1958 he was given the possession of deeds including settlement deed only shows that the plaintiff could not dare to face defendant 1 as well as her denial of execution deed i.e., settlement deed, he could dare to call upon defendant 1 to produce the original of Exh. P-l. So the plaintiff-appellant has failed to make out any case under Section 65(c) of the Evidence Act and has been so rightly found by the Trial Court.
35. That as regards the appellant's plea or reliance on Section 65(e) or (f) of the Evidence Act, in my opinion, the plaintiff-appellant does not stand on any better or higher pedestral. Under clause (e) of Section 65 of the Evidence Act, secondary evidence may be given of existence, condition and contents of a document, if original is a public document within the meaning of Section 74 or if the original is document of which a certified copy is permitted by Evidence Act or any other law in force in the Country to be given in evidence.
36. The emphasis under clause (e) is on original being a public document i.e., the original is document of which certified copy is sought to be produced should itself be a public document as per Section 74 of the Evidence Act. It is well settled the documents such as sale deeds, mortgage deeds, gift deeds, leases, settlement deeds exhibiting settlements made by private parties are private documents. Under Section 74 of the Evidence Act, public documents have been defined, and as per sub-section (1) of Section 74, such documents as are said to form acts or record acts of public authorities as such, as indicated by clauses (i), (ii) and (iii) of sub-section (1) of Section 74, itself, not of private individuals. Sub-section (2) further provides the public records, kept in a state of private documents, are also taken to be public documents. All the other documents which are not public documents are private documents vide, Section 75 of the Evidence Act.
37. Thus Sections 74 and 75 indicate the distinction between public and private documents. The Books maintained in Sub-Registrar's Office during the course of registration, in which the document is copied out, may be said or termed to be public document, but that does not make the original deed a public document by itself. The sale deed, mortgage deed, gift deed, leases or settlement deed entered between private parties remain private documents and do not become public documents by reason of registration. When I so observe, I find support for my above view from the law laid by their Lordships of the Privy Council in Krishna Kishore Chowdhari v Kishore Lal Roy, as well as in the case of Gopal Das and Another v Sat Thakurji and Others.
38. In the case of Krishna Kishore, supra, their Lordships referring to Section 65 of the Evidence Act, observed as under:
"There are however cases under the Act in which secondary evidence is admissible even though the original is in existence, one of the cases is under Section 65, clause (e) when the original is a public document within the meaning of Section 74 and another under clause (f) when original is document of which certified copy is permitted by this Act or any other law in force in British India to be given in evidence but no other kind of secondary evidence is admissible. "If then the anumati patra was a public document within the meaning of Section 74 of the Act, which in their Lordships opinion it was not, no secondary evidence would have been admissible except a certified copy".
As an anumati patra even if registered is not a public document, as held by the Privy Council so the settlement deed will stand on same footing, it also cannot be said to be a public document.
39. In the case of Gopal Das, supra, the question before the Privy Council was whether if the original receipt, executed by an individual and got registered, would be deemed or considered to be a public document. The Privy Council answered the question in negative. Their Lordships observed at page 87 of the report.-
"It was contended by Sir Thomas Strangman, for respondents that the receipt comes within sub-section (2) of Section 74 and was a public document hence under Section 65(e), no such foundation is required as in cases coming within clauses (a), (b) and (c) of that section.
Their Lordships cannot accept this argument, since original receipt of 1881 is not a public record of private document. The original has to be returned to the party (see sub-section (2) of Section 61 of the Registration Act, 1908). A similar argument would appear at one time to have had some acceptance in India, but it involves a mis-construction of Evidence Act and Registration Act and later decisions have abandoned it".
Their Lordships made reference in this connection to an earlier decision in the case of Padman v Hanwanta, as well.
40. The private settlement deed or a trust deed executed by an individual stand on some footing as receipt executed by an individual or individuals or Anumati patra and it remains a private document even after registration. The plaintiff relied on Exh. P-l and urged it to be copy of settlement deed creating trust, even if trust as urged, its original was registered one but it was not a public document vide Ravindra N. Das v Santosh Kumar.
41. That as regards clause (f) of Section 65, it will be applicable in cases where the original is one, the certified copy of which is permitted under the Evidence Act or any other law. Sections 76 and 77 of the Evidence Act reveal that under these sections, the certified copies of public documents have been made permissible and admissible to prove the contents of public documents or the parts of public documents of which the copies they purport to be.
42. That as found earlier, the settlement deed of 1933 is and has been only private document and did not become public document, merely because of its having been registered, as after registration, as held by the Privy Council, the document (original) is returned and does not form part of public record, vide, Gopal Das case, supra, and as per Section 61(2) of the Registration Act.
43. The learned Counsel for appellant referred to Section 57(5) of the Registration Act and urged that the section permits filing of certified copies and make the certified copies issued under Section 57 of the Registration Act, to be admissible to prove the contents of original documents as such certified copy of settlement deed of 1933, Exh. P-1 was admissible as secondary evidence under Section 65(f) of the Evidence Act. He urged that the Court below erred in law in holding that the same was not admissible without proof of loss of the original or without original of Exh. P-1 being accounted for.
44. If a case for filing secondary evidence is established or sbown to be covered by clause (e) or (f), secondary evidence is admissible or permissible in the form of certified copy of such a document beyond doubt as held in the case of Krishna Kishore, referred to above by the Privy Council, hut the question is what Section 57 of Registration Act provides and whether it can be said to be a case covered under Section 65(f) of the Evidence Act.
45. Section 57 of the Registration Act, provides that registering office have to allow the inspection of certain books and indexes as well as to have to, or have been authorised to, give certified copies of the entries made in such books as are referred to in Section 57 of the Registration Act. Sub-section (11) of Section 57 provides that Book Nos. 1 and 2 and index relating to Book No. 1 shall be subject to payment fee payable at all times be open to inspection by any person applying for inspection. It further provides that subject to Section 62 of the Registration Act, all persons who apply for the supply of copies of entries contained in such books shall be given the copies of entries in such books.
45-A. Sub-sections (2) and (3) of Section 57 provides for copies of entries in Books 3 and 4 and indexes relating thereto to be given to person referred therein only or in circumstances specified therein i.e., in the sub-section concerned.
46. Sub-section (5) of Section 57 provides that all copies given under this section shall be signed and sealed by the registering officers and shall be admissible for the purpose of proving the contents of the original documents.
47. The entries made in Book No. 1 or Book No. 2 etc., are only entries of books. May it contain a copy of original document, i.e., copied in the book concerned but the said entry by itself is not the original document. The entry may be a copy, in register or book, from the original deed itself, which original deed is, as per Section 61(2) of Registration Act, returned to person presenting it. So the copy of entry which is given under Section 57 is not the copy from original deed itself but the copy from the copy of deed only. Sub-section (5) of Section 57 makes provision for copy from copy of document given under Section 57(1), (2) and (3), admissible only for limited purpose namely of proving the contents of the original document. Such a copy cannot be termed to be certified copy of the original document, but a copy of the entry or of the (copy) of the document. It may be a secondary evidence but not covered by clause (f) of Section 65 of the Evidence Act.
48. In the case of Karuppama v Kaland Swami, Madras High Court laid it down as under.-
"Section 57 of the Indian Registration Act deals with among other things, with the grant of certain certified copies and sub-section (5) lays down that all copies given under that section shall be signed and sealed by registration officer and shall be admissible for the purpose of proving the contents of the original documents. But the law is that a certified copy of what has been copied in the books of the Registration is admissible to prove the contents of the original document only when a case is made out for the introduction of secondary evidence i.e., by proof of loss of the original or where the original is withheld by a party in whose possession it is or is presumed to be".
49. Similar view has been expressed in the case of Badhawa Ram v Akbar Ali, by Hon'ble Mr. Justice Tek Chank, as he then was, as well as by the Division Bench of Nagpur High Court in the case of Kashinath Shankrappa v New Akol Cotton Ginning and Pressing Company, and also in the case of Gopal Das, supra, by the Privy Council, referred to above. The Punjab and Haryana High Court in the case of Paras Singh v Parkash Kaur, as well as Rajasthan High Court in the case of Motilal v Sardar Mal, have construed Section 57 of Registration Act, in the context of Section 65 of the Evidence Act on the same lines and way.
50. In the case of P. Ram Reddy v Land Acquisition Officer, their Lordships of the Supreme Court dealing with Section 51-A of the Land Acquisition Act and Section 57 of the Registration Act has been pleased to lay down:
"Certified copies of a registered document under Registration Act, 1908, but for the above provision (Section 51-A of the Land Acquisition Act) could have been only secondary evidence which could have been accepted by the Court when primary evidence relating to original documents were shown to be unavailable.
51. The observations made in the case of Nani Bai v Gita Bai Kom Rama Gunge, referred by learned Counsel for appellant are not of any assistance to appellant i.e., plaintiff. The material observations reveal that it only lays down that "the Sale deeds themselves are primary evidence of interest sold. If those sale deeds which are said to be registered document, were not available for any reasons, certified copies thereof could be adduced as secondary evidence, but no foundation has been laid in the pleading for the reception of other evidence which must always be a very weak character in place of the registered document evidencing those transactions".
The above marked portion clearly reveals that before leading secondary evidence, such as the certified copy thereof, the party concerned has to lay foundation and establish reason for non-production nor availability of original document.
52. In the present case, in my opinion as clauses (e) and (f) of Section 65 of the Evidence Act are not applicable therefore, in order to produce Exh. P-1, the certified copy of entry under Section 57 of the Registration Act, as secondary evidence the plaintiff-appellant had to make out case of foundation to lead secondary evidence, but as held earlier plaintiff-appellant has failed to lay the foundation therefor. Exh. P-l the certified copy of the entry relating to deed of settlement in the book of Sub-Registrar's Office, could not be admissible as secondary evidence under Section 65(e) or (f) of the Evidence Act, read with Section 57 of the Registration Act and has so rightly been held to be inadmissible by the Trial Court. Even otherwise also mere production of Exh. P-l could not lead to proof of due execution of the deed of settlement of 1933. The learned Counsel for the appellant urged that the Court erred in not raising the presumption under Section 90 of the Evidence Act though the deed of settlement was more than thirty years.
53. Section 90 of the Evidence Act, lays down the presumption regarding signature and every other part of a thirty year old document to be in that person's handwriting by whom it purports to be signed and executed and permits raising of presumption of its due execution and attestation provided the document is produced from the custody which is proper in Court's view, in the circumstances of the case. The presumption under Section 90 is available and can be raised if thirty years old original document is produced. It does not apply where original is not produced. It does not apply to copy of document even namely the certified copy thereof. Reference in this connection may be made to the following decisions:
(a) Basant Singh v Brij Raj Saran;
(b) Sital Prasad v Sant Ram;
(c) Harihar Prasad Singh v Deonarain Prasad and Others;
(d) Shiv Lal v Chetram;
(e) Harihar Pal v Sudhir K. Pal.
54. This above contention of learned Counsel as such is rejected and it is to be held that no presumption under Section 90 of the Evidence Act could be made about execution etc., as original deed of which Exh. P-1 purports to be copy, from copy, issued under Section 57 of the Registration Act happened to be.
55. A reference was made to the Full Bench decision of the Allahabad High Court in the case of Ram Jas v Sudendra Nath and it was urged that the presumption under Section 90 of the Evidence Act, as regards signature and execution and attestation of deed of settlement of 1933, may be applied even if original deed has not been filed but certified copy of registered deed has been filed as reason behind enactment of Section 90 of the Evidence Act is possibly of non-availability of witness to transaction due to natural causes of death during long span of time and likelihood of failure of justice on technical grounds and so to get rid of failure of justice, Section 90 of the Evidence Act was enacted. The learned Counsel as such urged that in the interest of justice, the presumption may be applied to such cases where copies, of original document more than thirty years old or copies under Section 57 of Registration Act, of such documents, are filed and expression document may be read as including their copies. There is no doubt the concept of justice is important but justice is to be done according to law. Expression 'document' has been defined by Section 3 of the Evidence Act. It means the document in its original and not the copy thereof. A reading of the definition of document and use of expression 'certified copies of document' in various sections of Evidence Act such as Sections 62, 63, 64 and 65, as well as of document in Section 90 of the Evidence Act is indicative of legislative intent to clearly express that the two mean differently and they do not mean the same. It is well settled when the legislature uses distinct expressions, it is to be presumed the legislature ordinarily intends to convey different meanings or ideas. Maxwell on interpretation of statute, page 282/283, and in "Interpretation and Legislation", it has been observed by learned author Sri Jagdish Swaroop:
"The legislature must always be presumed to aim at precision and in so doing would naturally follow the safe rule of always calling the same thing by same word, but if it has used two different expressions though analogous in nature in different parts of same clause, it must be assumed that they were intended to be used in different sense".
56. This is the view as expressed by Hon'ble Supreme Court in the case of Board of Revenue v A.P, Benthall, Income-tax, Commissioner, New Delhi v East West Import and Export Private Limited. That wherein Section 90 of Evidence Act, expression 'document' is used, it is to be taken as 'original document' and it does not apply in case of copies of documents. It will not be out of place to mention that the Full Bench decision of Allahabad High Court in Ham Jas case, supra, has been concerned, with and the law laid down therein is in the context of amendment introduced in Section 90 of the Evidence Act by Uttar Pradesh Civil Laws (Amendment) Act, 1954, introducing therein sub-section (2) to Section 90 of the Act and by special provision made the presumption available to original Section 90 (which was numbered as Section 90(1)), applicable to a case where even certified copy is produced. This amendment was introduced after the decision in Sant Ram's case, supra. As regards State of Karnataka, there is no such amendment made in Section 90 of the Evidence Act, as such Allahabad High Court's decision in the case of Ram Jas, supra, is of no help to plaintiff-appellant and Section 90 or presumption thereunder cannot be applied in this case with reference to Exh. P-1.
57. There is no evidence lead on behalf of the plaintiff-appellant to prove the execution of Exh. P-l (settlement deed) by Smt. Kenchamma, original defendant 1, at all, nor to show or establish that Smt. Kenchamma did execute and sign the same with her free will, sound disposing mind after understanding the same. Neither of the two attesting witnesses have been produced and it has been vaguely stated that attesting witnesses Anand Mudaliar and A. Parasuram Mudaliar are no more and they have expired and breathed their last.
58. The attesting witnesses being alleged to have died, but when did they die, nothing has been indicated, nor any corroborative evidence has been adduced in this regard. P.W. 1 states "I do not know when they died". There is nothing on record to show how and from whom and when this P.W. 1 i.e., plaintiff-appellant came to know about the death of the two attesting witnesses. The plaintiffs evidence does not indicate such circumstances create confidence. Even otherwise as well, there is no explanation for nonproduction nor examination of Sri K.S. Krishna Murthy who is said to have identified the person or the lady who was introduced as Kenchamma and there is no evidence to show the person introduced as Kenchamma was real person and not an impostor, specially when from very beginning Smt. Kenchamma has been denying the execution of any such deed of settlement in 1933, in its pleading i.e., written statement. The burden did lay on the plaintiff to establish the identity of person executing the deed, the copy from copy (entry) of which has been issued under Section 57 of the Registration Act. In the absence of proof of identity of person introduced as 'Kenchamma' to Registrar, that she was defendant 1, no such presumption can be raised that defendant 1 had made the admission to the effect that she executed any such deed of settlement before the Sub-Registrar, under Section 60 of the Registration Act. Further Exh. P-l being not admissible on record as recording evidence under Section 65 of the Evidence Act, as well endorsement thereof, cannot be considered. The decision relied by appellant's Counsel namely Ravanna Devaru v Ranga Rao, and of Rajasthan High Court as such are not applicable. Further primary evidence of document alleged to be executed on 21-12-1933 as settlement deed not having been produced and no case having been established under Section 65 of the Evidence Act as found by the Trial Court as well by me above, no secondary evidence was admissible in the form of certified copy, of the copy i.e., entry from Book No. 1 under Section 57 of the Registration Act.
59. That learned Counsel for the plaintiff-appellant laid great stress on the point that Trial Court did not issue expert commission to examine the T.I., and signatures alleged to be of Smt. Kenchamma, with reference to document No, 1308 from her admitted signature and thumb impression on Exh. P-4(a) and Exh. P-9(a) and urged that Trial Court acted illegally and to the great prejudice of plaintiff-appellant by rejecting plaintiff's LA. No. 28, vide, order dated 16-7-1990. The learned Trial Court dismissed the application on the ground of delay. It held and observed the suit having been filed in 1974, but no such step was taken earlier and after the evidence has been closed by both the parties and plaintiff not having reserved any right to lead in rebuttal and as plaintiff had not filed any application for reopening of the case, there is no basis for present application H.W.F.P. experts commission being issued and no purpose would be served by sending Exh. P-9(a) and Exh. P-4(a) to handwriting and finger prints expert, for comparison of signature and thumb impression on Exh. P-9 with Exh. P-4.
60. Exh. P-9 is book of Registration Office summoned on which Exh. P-9(a) are alleged signature and Thumb Impression of Mrs. Kenchamma (defendant 1), The learned Counsel for the appellant urged this was necessary to establish that Smt. Kenchamma had gone to Registration office for registration of Exh. P-1 i.e., Do. No. 1308 of I, and that would along with Exh. P-1 establish that original document of Exh. P-1 was executed by Mrs. Kenchamma who had denied its execution. This would have been only circumstantial secondary evidence. Only Exh. P-1, the certified copy of entry containing copy of deed in registration office books having been found inadmissible, in view of Sections 63, 64 and 65 of the Evidence Act and so in my opinion the Trial Court was justified in holding that no useful purpose would have served by allowing that application and in rejecting I.A. 28 on this ground in addition to the ground of delay. In this case the real position has been the plaintiff-appellant had closed his evidence. Defence evidence was being recorded at the time the order dated 16-7-1990 had been recorded. But in every case I.A. 28 was made much delayed i.e., after the closure of plaintiffs evidence and no such request or I.A., was made either after the filing of written statement of original defendant 1, denying the execution of alleged deed of 1933, or before or after the framing of issue nor before the commencement of recording of plaintiffs evidence. When Exh. P-1 copy of deed is found inadmissible as secondary evidence as no case could be made out by appellant (plaintiff) under Section 65 or 66 of the Evidence Act, as held earlier, in face of original deed not being filed no useful purpose would have been served by allowing I.A. 28 as neither contents of alleged deed nor its due execution could be established thereby. Thus considered in my opinion, the Trial Court was as such amply justified in passing the order dated 16-7-1990, rejecting plaintiff-appellant's application I.A. 28. The contention of appellant's Counsel made in regard to I.A. 28 challenging order dated 16-7-1990, is without merits and as such is rejected for these reasons (as mentioned above) as well.
61. Lastly as mentioned earlier, it was strenuously urged that Exh. P-1 on record discloses that a trust was created whereunder limited interest was created in favour of original defendant 1, Smt. Kenchamma and she had been conferred life interest in all the suit properties by virtue of deed of settlement dated 21-12-1933 (copy of which Exh. P-1 is alleged to be) and Smt, Kenchamma was not given right to alienate or transfer any of the said properties as mentioned in that deed and it was further provided that after the death of Smt. Kenchamma, original defendant 1, her sons will get the same as absolute owner and property was to go to her sons in proportion mentioned in the deed and plaintiff-appellant being the only son alive plaintiff has been entitled to decree as claimed and transfer deed (sale deeds) made in favour of defendants-respondents i.e., daughters are invalid and void.
62. I find myself unable to accept this contention for reasons hereinafter:
Firstly, the alleged settlement deed dated 21-12-1933 (Exh. P-1 is the copy of the same from copy of said deed maintained in Registration Office) has not been proved according to law as mentioned above in detail i.e., neither the contents nor its execution.
Secondly, even if for the sake of argument if contents of Exh. P-1 be taken note of the contents do not satisfy the requirements of a trust deed. Mere mention of 'intrust' in Exh. P-1 does not satisfy the requirements of the trust.
A trust in wider sense of term indicates obligation annexed to the ownership of property, which arises out of the confidence reposed in and accepted by transferee, ownership for the benefit of another.
63. Indian Trust Act defines 'trust' vide, Section 3 of the Trust Act as under:
"A trust is an obligation annexed to the ownership of property, arising out of a confidence reposed in and accepted by the owner or declared and accepted by him for the benefit of the another or another and the owner".
The person who reposes and declares confidence is called the 'author of trust' and the person who accepts the confidence is called the trustee, the person for whose benefit the trust is accepted is called the beneficiary, the subject-matter of trust is called the trust property or trust money, the beneficial interest on the interest of beneficiary is his right against the trustee and the owner of trust property.
64. Thus in case of Trust or under deed of Trust there are three parties namely.--(i) Settlor i.e., Author of trust; (ii) The trustee; and (iii) the beneficiary. In the case of Commissioner of Income-tax, Kanpur v Kamla Town Trust, at page 627, their Lordships of the Supreme Court laid it down:
"Infact the learned Senior Counsel went to the extent of submitting that there are no two parties in an instrument of Trust. It is difficult to agree. Settlor is one party to the trust who settles his property for the benefit of others who become beneficiaries and the legal ownership of the property is transferred to trustees. Thus not only there are more than one party in the instrument of trust, but in fact there would atleast be two main parties namely, the settlor on the one hand and trustees on the other and also there will be beneficiaries who would be indirectly third parties to the instrument though not being direct parties thereto. Thus it would be almost a tripartite transaction".
65. Thus it comes out trust or instrument of trust is tripartite transaction, parties thereto are settlor or author of trust, the trustee, and the beneficiaries and under the transaction legal ownership is transferred by settlor to trustee in which beneficiary have or do get right or interest which right or interest is available against the trustees and the owner of property.
66. In the present case as per Exh. P-1 T.B. Borajjannah and Smt. Kenchamma (defendant 1) are shown as owner settlor; Smt. Kenchamma (defendant 1) is shown and described as the lone beneficiary and the deed and the settlors as full absolute owners of property do convey, assign and transfer the said properties to Smt. Kenchamma (defendant 1) the party on the other part upon trust".
67. That so far T.B. Borajjannah mentioned in Exh. P-1 as settlor is concerned is neither shown nor proved nor established to be or to have ever been the owner of suit properties. To the contrary as per deeds of transaction between 1924 to 1931, namely sale deeds dated 10-12-1926; 20-7-1927; 9-10-1924 and 11-5-1931, Exhs. D-31, 32, 33 and 34 on record, which relate to suit properties (say properties mentioned in Exh. P-1) the sole transferee and purchaser is and has been Smt. Kenchamma (original defendant 1) and sole owner thereby of suit property and the plaintiff-appellant has failed to prove his case as such, Smt. Kenchamma has been held to be real owner of the suit properties covered by Exhs. D-31 to 34. Thus Smt. Kenchamma is the sole owner of properties in suit which are mentioned in Exh. P-1 as well and Shri T.B. Borajjannah had nothing to do with the said properties nor did he have any right or interest in the said properties which he could be said to be transferring in Trust in any manner to Smt. Kenchamma (defendant 1), described therein as another settlor who no doubt has always been the owner of all the suit properties.
68. The deed does not indicate the second party namely the trustee to whom the property said to have been transferred or in whose favour ownership of property was being transferred by Smt. Kenchamma the settlor. In the deed it is said that settlors convey, assign and transfer the said properties to Kenchamma (defendant 1) the party of other part in trust. It means settlor, transferor and trustee is one and the same person. It is not like that trustees are other persons than owner of the property i.e., settlor. So owner of property and sole trustee if at all are one and same person. It shows really there is no transfer of ownership in property by settlor to other party or person and further beneficiary shown in Exh. P-1 is none else but only settlor herself i.e., Smt. Kenchamma. Thus it reveals that under transaction Exh. P-1 there is no disposition or transfer of ownership in property by owner settlor in favour of other person for the benefit of another person i.e., third party or other person and owner. Exh. P-1 shows that no other person and owner. Exh. P-1 shows that no property or title in property is intended to pass during the lifetime of Smt. Kenchamma, the owner of the property to any one else at present, as such the deed Exh. P-1, even in law makes if at all the deed revokable as will. Thus considered this deed Exh. P-1 when it provided how property will pass after her death could amount to be a will only, not affecting the right, title or interest of Smt. Kenchamma as owner thereof under Exhs. D-31, 32, 33 and 34 on record. She continued to be the full and absolute owner of properties entitled to make transfer thereof by sale, gift or mortgage or lease.
69. This view of mine find support from the Division Bench decision of Madras High Court in the case of Commissioner of Gift-tax, Madras-II v C. Thiruvenkata Mudaliar.
70. Thus considered the Trial Court did not commit any error of facts or law by holding that Exh. P-1 and its contents did not reveal any trust transaction and atmost it might be a will which is revokable. It rightly held that during her lifetime Smt. Kenchamma was the sole, full and absolute owner of properties in suit with right to alienate or transfer the same. The judgment and decree of the Trial Court dismissing the plaintiff-appellant's suit does not call for any interference.
No other contention has been raised. Thus considered there is no substance or force in appeal and it deserves to be dismissed.
71. Before parting with the judgment, I may observe that the problem placed and urged with reference to Section 90 of the Evidence Act as held not to be applicable to certified copies of deeds, even of more than thirty years period and there may be cases where after expiry of long period of thirty years or more, no witnesses of the deed being available, inspite of original having been lost or destroyed and on certified copies of said private deed, such as sale deed etc., being filed and admitted in evidence as secondary evidence under Section 65 of the Evidence Act and presumption under Section 90 of Evidence Act being not available and applicable, the parties may suffer irreparably and the object and provision of Section 65 of Evidence Act, allowing filing of secondary evidence 'Certified copy of deed' may be rendered illusory, may be said to be genuine grievance or problem. In Uttar Pradesh by introducing amendment to Section 90 of the Evidence Act vide, Uttar Pradesh Civil Laws (Amendment) Act No. 24 of 1954 and by enacting sub-section (2) to Section 90 of Evidence Act and introducing Section 90-A as well the Uttar Pradesh Legislature provided such a presumption being applicable to cases where certified copies of such old documents are filed. This amendment was made on 30-11-1954 after the decision of Hon'ble Supreme Court in the case of Sital Prasad, supra.
The law, Department of Union of India and State of Karnataka and State Legislature may be advised by the learned Advocate General or law secretary, Union of India and State to take needful steps to consider and amend Section 90 of Evidence Act in the light of Uttar Pradesh Civil Laws (Amendment) Act No. 24 of 1954 to obviate and remove or mitigate the difficulties of litigants in such a situation. Let the copy of this judgment be forwarded to the learned Advocate General and Law Secretary of Union of India and the State for needful being considered and done in the matter by legislature.
This appeal having been found to be without merits and one being without substance is hereby dismissed in toto and the judgment and decree of Trial Court, dismissing the suit of plaintiff-appellant is affirmed. The cost of the parties in appeal is to be borne by the respective parties.
No cost is allowed in the appeal.