http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 1 of 4  

PETITIONER: BIBI AISHA & ORS.

       Vs.

RESPONDENT: BIHAR SUBAI SUNNI MAJLIS AVAQAF & ORS.

DATE OF JUDGMENT: 24/07/1968

BENCH: BACHAWAT, R.S. BENCH: BACHAWAT, R.S. HEGDE, K.S.

CITATION:  1969 AIR  253            1969 SCR  (1) 417

ACT: Evidence Act (1 of 1872), s. 65(a) and (f)---Whether cl. (f) controls  cl. (a)---Case falling under both clauses--Whether certified copy should be produced as secondary evidence.

HEADNOTE:     The  1st  respondent-waqf  filed  a  suit  against   the appellants  ’and  the 3rd respondent, for  setting  aside  a lease  deed executed by the 3rd respondent in favour of  the appellants, on the ground that the properties covered by the lease deed were waqf properties dedicated by a deed of  waqf of  the  year 1827.  The existence of the deed of  waqf  was proved  by  numerous ’admissions by the 3rd  respondent  and others  who  were its mutawallis.  The  3rd  respondent  had produced  the original deed along with the return  filed  by him before the Waqf Board under rr. 6 and 11 made under  the Bihar  Waqfs  Act, 1948, and stated that the  properties  in dispute were waqf properties.  He also produced a plain copy in  Persian and an English translation of the original  deed of  waqf.  He attested the English translation and  made  an endorsement on the Persian copy that it corresponded to  the original.   The original, after comparison. was returned  to him,  and  the copy and translation were   retained  in  the office of Waqf Board.  At the triaL, the 3rd respondent  did not produce the original even though a notice was issued  to him  for its  production. No copy of the deed was  traceable in   the   registration  office.   The   first   respondent, therefore,  relied upon the copy and the translation in  the office  of the Waqf Board. The high Court decreed  the  suit and the High Court confirmed the decree.     In the appeal to this Court, on the question whether the copy  was admissible in evidence to show that  the  disputed properties were waqf properties,     HELD:  The case fell under s. 65(a) of the Evidence  Act and  so  the  copy  was  admissible,  since  any   secondary evidence   of  the  existence and contents of  the  original document  was  admissible.  Though the case  may  also  fall under  s. 65(f), it is not necessary to produce a  certified copy  of the deed as el. (a) is not controlled by  cl.  (f). The copy as well as other unimpeachable evidence established that the disputed properties were waqf properties. [419 D-E; 420 D]

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 2 of 4  

   In  the matter of a collision between the ’Ava’ and  the Brenhilda (1879) I.L.R. 5 Cal. 568, approved.

JUDGMENT: CIVIL APPELLATE JURISDICTION: Civil Appeal No. 323 of 1965.     Appeal  by  special leave from the judgment  and  decree dated  February 16, 1961 of the Patna High Court  in  Appeal from Original Decree No. 500 of 1955.     S.C.  Agarwal,  K.N.K. Nair, Anil Kumar Gupta  and  S.P. Singh, for the appellants. 418 Sarjoo Prasad and U.P. Singh, for respondent No. 1. The Judgment of the Court was delivered by     Bachawat,  J.  The Bihar Subai Sunni  Majlis-e-Awaqaf  a body  corporate established under the Bihar Wakfs Act,  1947 instituted  a suit or setting aside a  registered  mokarrari lease   deed dated November 18, 1949 executed  by  defendant No. 4 Sheikh Gholam Bari in favour of defendants 1 to 3  and for  restoration of possession of the properties covered  by the document, viz., the houses and shops being holdings Nos. 27  and  28 formerly  known  as holdings Nos. 22 and  23  in Ward  No. 8 at Mohalla Muradpore P.S. Pirbahore in the  city of  Patna  (Baakipur).   The plaintiff’s case  is  that  the properties were dedicated by way of waqf by a waqfnama dated August 20, 1827 executed by Mst. Bibi Mannu Khanam Jan.  The successive   Mutawallis   under  this   deed   were   Sheikh Azmatullah,  Sheikh  Ataullah, Sheikh Habibur  Rahman,  Bibi Zaibunnissa  and  Sheikh  Gholam  Bari.    The  Trial  Court decreed  the suit and this decree was confirmed by the  High Court.  Both  the courts concurrently found that  Mst.  Bibi Mannu Khanam Jan dedicated the  properties by way of waqf by a  deed  dated August 20, 1827.   The  correctness  of  this finding is challenged in this appeal.     In  Mohalla  Muradpore in the city of  Patna  (Baakipur) there is an ancient mosque known as the mosque of Mst.  Bibi Mannu  Khanam Jan.  It is not disputed now that  Mst.   Bibi Mannu Khanam Jan established this mosque.  There are  shops, rooms, katra and other structures to the east, west and  the south  of  the mosque.  To the east of the  mosque  are  the disputed  holdings  Nos. 27 and 28. On  September  25,  1948 Gholam   Bari  filed before the Waqf Board a return in  Form No. 1 under Rules 6 and 11 of the Bihar Waqfs Act, 1948.  In this return he stated that the properties were given in waqf to the mosque by Mst. Bibi Mannu Khanam/an under the deed of waqf  dated  August 20, 1827. With this return he  filed  an English  translation of the wakf deed. The  translation  was attested  by him. P.W. 5 Mehdi Hasan, the Nazir of the  Waqf Board  proved that Gholam Bari also filed the original  waqf nama  together with its copy in Persian. The copy  bore  the following  endorsement  signed  by Gholam  Bari:  ’The  copy corresponds  to  the original.’  The original  waqfnama  was returned  to  Gholam Bari and the copy was retained  in  the office of the Waqf Board.  At the trial Gholam Bari did  not produce the original deed.  Accordingly the copy of the deed and its translation were exhibited.     The Trial Court and in the High Court Misra J.  accepted the  testimony of Mehdi Hasan and held that the copy of  the original waqfnama was admissible in evidence.  We agree with this finding.  Tarkeshwarnath J. ruled that the copy was not admissible mainly  on the ground that paragraph 7 of the plaint  stated that  the deed of waqf was in the plaintiff’s  custody.   We agree  with Misra J. that the averment in the plaint  should

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 3 of 4  

be  regarded  as a general statement referring to  the  true copy  which was left in the plaintiff’s office.  Under  sec. 65(a) of the  Evidence  Act secondary evidence may be  given of  the  existence,  or  contents of  a  document  when  the original  is  shown or appears to be in  the  possession  or power  of the person against whom the document is sought  to be  proved, and when after the notice mentioned in sec.  66, such person does not produce it.  Where the case falls under s.  65(a)  any  secondary evidence of the  contents  of  the document is admissible.  In the present case the  conditions of s. 65(a) were satisfied.  The plain copy of the waqf  was therefore  admissible.   On behalf of the appellant  it  was argued ,that el. (f) of s. 65 was applicable and that as the certified  copy  of  the  deed dated  August  20,  1827  was permitted  by  the Evidence Act to be given in  evidence,  a certified copy alone was admissible in evidence. There is no substance  in  this  contention.  If the  case  falls  under clause  (a)  any  secondary  evidence  of  the  document  is admissible, though the case may also fall under clause  (f). Clause (a) is not controlled by clause (f).  In the case  of A   Collision   Between The Ava(1) a question  arose  as  to whether secondary evidence could be given of the contents of a  certificate granted by the Board of Trade.  The  loss  of the document attracted cl. (c) of sec. 65 and the failure to produce it after notice attracted cl. (a) Cl. (f) of sec. 65 was  also applicable. Wilson J. ruled that a certified  copy need  not  be  produced  and  any  secondary  evidence   was admissible. We agree with this decision.  Wilson J. said:                      "By s. 65 in cases under cls. (a)   and               (c)  any secondary evidence is admissible;  in               cases under cls. (e) and (f) only a  certified               copy.  The present case falls under cl. (a) or               (c) and also under (f).  In such a case  which               rule  applies ?  I think the words, ’In  cases               (a),  (c) and (d) any secondary   evidence               is  admissible,’ are too clear and too  strong               to be controlled by anything that follows, and               that,  therefore, in this case  any  secondary               evidence might be received."     The existence of the deed of waqf dated August 20,  1827 is  proved by numerous admissions made by Gholam  Bari   and his  predecessors-in-title.  The existence of the  deed  was admitted in a petition filed by Bibi Zaibunnisa before  ,the District  Judge,  Patna on January 13, 1928, in  the  return filed  before the plaintiff by Gholam Bari on September  25, 1948,  in  the  petition  dated  February  15,  1949  and  a statement  dated  March  21, 1949 filed by  him  before  the President of the Bihar Subai Sunni Majlis-e-Awaqaf. (1) I.L.R. 5 Cal. 568. 420 Other  documents and admissions also clearly show  that  the disputed holdings are waqf properties.     The  copy of the waqf deed shows that Bibi Mannu  Khanam Jan appeared before the Darulquazaya Azimabad for  admitting the execution and making a declaration and the Quazi  signed the  deed  and put the seal of the Registry office  on  21st Rabiul Awal. 1233 A.H.  The year 1233 is evidently a mistake for  1243. The deed was executed on 19th Muharram 1243  A.H. corresponding to 20th August 1827.  No copy of this deed  is now  found  in the records of the registration  office.   It appears  that  the document was presented  for  registration under  Regulation XXXIX of 1793. Under that  Regulation  the Quaz is were required to keep copies of all deeds and  other papers which they might draw up or attest, to keep a list of such  papers  and to deliver the list and  papers  to  their

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 4 of 4  

successors.   The  Regulation made  no provision   for   the maintenance  of a proper register book.  The  disputed  waqf deed  was registered in 1827.  At this distance of  time  no copy  of the deed is traceable in the  registration  office. But from other unimpeachable evidence, it is  satisfactorily established  that  Mst. Bibi Mannu Khanam Jan  executed  the waqf  deed  dated  August 20, 1827  and  that  the  disputed holdings are waqf properties.  In this view of the matter it is  not disputed that the courts below rightly  decreed  the suit. V.P.S.                                 Appeal dismissed. 421