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Present: Lascelles C.J. and Middleton J.
ABDUL RAHIMAN et al. v. KANI UMMA et al.
17—D. C. Kalutara, 4,072.
Evidence—Proof of lost deed by a translation—Not admissible—Secondaryevidence—Ordinance No. 14 of 1895, s. 63.
A translation of a deed of conveyance would not be admissibleas secondary evidence to prove the contents of the original deed.
Section 63 of the Evidence Ordinance is exhaustive of thedifferent kinds'of secondary evidence that are admissible to provethe contents of a document.
rpHE facts are set out in the judgment of Middleton J.
Bawa, for the appellants.—The document OA 2 is only a transla*tion of a document alleged to .have been lost. A translation is notsecondary evidence of the contents of a document. A sworn transla-tion can only be admitted as a translation ; it is no proof of theoriginal. Section 63 of the Evidence Ordinance is exhaustive of thedifferent kinds of secondary evidence that are admissible to provethe contents of a document. The word “ means ” in section 63shows that the section gives an exhaustive definition of whatsecondary evidence is. Counsel referred to Amir Ali’s Law ofEvidence, p. 372.
Pieris (with him Fernando), for the respondents, referred to theEvidence Ordinance, sections 32 and 35.
Bawa, in reply.
Cur. adv. vult.
May 30, 1911. Lascelles C.J.—
This case was remitted to the District Court for any further. evidence which could be adduced of the authenticity of the docu-ment OA 2, the case being returnable to this Court for judgment.The document OA 2 purports to be a translation of a deed ofconveyance dated January 14, 1821, executed by Mustaffa LebbeCumister, from whom all the parties trace title. It is commonground between the parties that a deed of that date was executed,that the grantor conveyed to his own son, Sultan Marikar, a two-third share. But the appellants contend that the deed conveyedtwo-thirds of the eastern half only, whilst the case for the respondentsis that, the deed conveyed two-thirds of the whole property, Noorina-lotam. The translation OA 2 is thus produced to determine the
May 30, ml
Abdul Rahi-man v. KantUmma
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issue whether the conveyance to Sultan Marikar comprised two-thirds of the whole property or two-thirds of the eastern half only.An attempt has been made to prove that the original deed hasperished from natural causes, but in my opinion the loss of the deedhas not been sufficiently established to allow the contents to beproved by secondary evidence. But even if the loss of the originaldeed were properly proved, the document OA 2 would not, in myopinion, be admissible as secondary evidence to prove the contentsof the original deed.
The different kinds of secondary evidence that are admissible toprove the contents of a document are enumerated in section 63 ofthe Evidence Ordinance, and the enumeration does not includetranslations. That section 63 is intended to be exhaustive is clearfrom the language of the section ; and in India the section has beenso construed (Ram Prasad v. RaghunandanPrasad1). The case musttherefore be determined on the footing that the translation OA 2is not admissible in evidence.
It is of importance to consider the effect of the extract OA 1 fromthe register of old deeds. If the deed had been registered underthe original Ordinance of 1866, it would have been the duty of theRegistrar of Lands to have preserved an exact copy, which wouldhave been admissible as secondary evidence. But the deed inquestion was registered after the amending Ordinance of 1867,which allowed the Governor, in proclaimed districts, to authorizethe Registrar of Lands to register the. substance only of the deedsin a prescribed form.
It is clear that a certified copy of the registration of the substanceonly of the deed is not secondary evidence within the meaning ofsection 63, inasmuch as it is not a copy of the original document.Although the certified copy of the entry in the register is notadmissible as secondary evidence of the contents of the original, itdoes not follow that the entry has no probative value as regardsthe issue now under consideration.
Under section 35 an entry in an official register stating a fact inissue or a relevant fact, made by a public servant in the dischargeof his official duty, is itself a relevant fact. The entry then, forthe purpose of deciding the question at issue, is a relevant fact,which should not be excluded from consideration.
Upon the evidence in the record, much of which is not of asatisfactory character, it is by no means easy to determine whetherthe basis of partition set . up by the plaintiffs or that put. forwardby the respondents is the right one. On the whole, and after givingfull weight to the careful judgment of the District Judge, I havecome to the conclusion that the District Judge has arrived at acorrect conclusion.
I would dismiss the appeal with costs.
1 /. L. R. 7 Ail. 743.
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The question in this case is involved in the first issue : Did the May 30,1911deed of 1821 convey to Sultan Marikar two-thirds of the entire land Abdul Rahi-called Noorina totam or two-thirds of the eastern portion ?man v- Kani
Both sides admitted that Mustaffa Lebbe Cumister executed the Ummadeed of 1821, but the dispute is, what was conveyed by the deed ?
This deed was put in evidence in District Court, Kalutara, 31,273, ina suit between parties who are not all privies to the parties in thepresent action. A translation of it was also used in that action,which, still remains on that record, and a certified copy of thattranslation is on the record of this case, marked OA 2. That trans-lation purports to be made by a sworn translator. There is besidesa certified extract from the register of old deeds marked OA 1 ofKalutara, made in 1872 under the authority of Ordinance No. 15of 1867.
It. is objected for the appellants that neither OA 1 nor OA 2 areadmissible in evidence under section 63 of the Evidence Ordinance toprove the contents of the deed of 1821, and this appears to be the case.
There is no strict proof that the deed of 1821 is lost or destroyed,or comes under any of the cases according to section 65, in whichsecondary evidence may be given of its contents.
Under section 35 I think, however, that the entry in the registeras to the substance of the deed is relevant and admissible, andaccording to it two-thirds of the whole, and not two-thirds of ahalf, were conveyed. .
The objection to this is that as the boundaries do not appear itmay have reference to what was considered Noorina totam in 1821,and so not include what is said to be the western portion of it now.
There is no evidence, however, of any alteration of the corpus ofthe land in claim. ' Both sides admit that before the deed of 1821the original owner granted to Meera Lebbe Marikar, of whom theadded defendants are the successors in title, a one-third share, theplaintiffs and the added defendants say of the whole, and theappellants say only of the eastern half. The appellants’ deedAA1 of 1848 ignores this grant to Meera Lebbe altogether, andproceeds to donate the western half on the footing that the wholeeastern half had been granted already to Sultan Marikar, therebydisclosing an inconsistency with the present position adopted bythe appellants. This deed of 1848 does not conserve to the addeddefendants even one-third of the eastern half which the appellantsnow admit.-is theirs,-.and it is argued for the plaintiffs, a.nd held bythe District Judge, that this deed was executed with a fraudulentintent, for which he gives his reasons.
On a careful consideration of the points raised by Mr. Bawa, 1 amnot disposed to interfere with the judgment of the District Judge,and would dismiss the appeal with costs.
ABDUL RAHIMAN et al v. KANI UMMA et al