Case Note & Summary
The appeal arose from a suit filed by the first respondent, a waqf board, against the appellants and the third respondent to set aside a lease deed executed by the third respondent in favour of the appellants. The ground was that the properties covered by the lease were waqf properties dedicated under a deed of waqf of 1827. The third respondent, who was a mutawalli, had produced the original deed before the Waqf Board under the Bihar Waqfs Act, 1948, and admitted the properties were waqf. He also produced a plain copy in Persian and an English translation. After comparison, the original was returned to him, while the copy and translation were retained in the Waqf Board office. At trial, despite a notice, the third respondent failed to produce the original. No copy was traceable in the registration office. The first respondent relied on the copy and translation from the Waqf Board. The trial court decreed the suit, and the Patna High Court confirmed the decree. The appellants challenged the admissibility of the copy. The Supreme Court held that the case clearly fell under Section 65(a) of the Evidence Act, 1872, because the original was proved to be in the possession of the third respondent who did not produce it despite notice. Under clause (a), any secondary evidence of the existence and contents of the original document is admissible. The court further held that even if the case also fell under Section 65(f), clause (a) is not controlled by clause (f), so it was not necessary to produce a certified copy of the deed. The copy from the Waqf Board records, together with other unimpeachable evidence including admissions, established the waqf nature of the properties. The Supreme Court dismissed the appeal, affirming the decree of the High Court.
Headnote
A) Evidence - Secondary Evidence - Admissibility of Copy of Waqf Deed - Section 65(a) and Section 65(f) of Evidence Act, 1872 - The original deed of waqf was produced by the third respondent before the Waqf Board but was not produced at trial despite notice. The copy retained by the Waqf Board was held admissible under Section 65(a) as any secondary evidence of the original’s contents is permissible. The court clarified that clause (f) does not control clause (a), so a certified copy was not required. Held, the copy along with other evidence sufficiently proved the properties were waqf properties. (pp. 419 D-E, 420 D)
Issue of Consideration
Whether the copy of the deed of waqf was admissible in evidence under Section 65 of the Evidence Act, 1872, when the original was not produced despite notice, and whether clause (a) is controlled by clause (f).
Final Decision
The Supreme Court held that the case fell under Section 65(a) of the Evidence Act, and any secondary evidence of the original document was admissible. Section 65(f) did not mandate a certified copy because clause (a) is not controlled by clause (f). The copy from the Waqf Board records, along with other evidence, proved the waqf nature of the properties. The appeal was dismissed.
Law Points
- Section 65(a) of the Evidence Act
- 1872 permits secondary evidence when the original is proved to be in the possession of a party who fails to produce it despite notice
- Section 65(f) does not control Section 65(a) and does not mandate production of a certified copy where the case falls under clause (a).
