S. B. MAJMUDAR, J. ( 1 ) THIS second appeal is preferred by the heirs of the original plaintiff of Regular Civil Suit No. 283 of 1967 filed in the Court of the learned Third Joint Civil Judge Junior Division Porbandar seeking a preliminary decree for partition and separate possession of the suit properties. The plaintiff claimed a partition decree pertaining to the two suits immovable properties namely a house consisting of three floors ground floor first floor and second floor situated near Madhi in Porbandar while the second immovable property was situated in Navapada to the east of the fish market. ( 2 ) OUT of the aforesaid two properties the learned Trial Judge on the admission of the defendants to the effect that Navapada property was the joint family property of the parties granted a preliminary decree for partition but dismissed the suit so for as Madhi immovable property was concerned on the ground that the plaintiff had failed to establish that it was a joint family property. This partial rejection of the prayer of the plaintiff by the trial court prompted the plaintiff to prefer a regular civil appeal No. 16/72 before the learned Assistant Judge Porbandar. The original plaintiff expired during the pendency of the appeal before the District Court and his heirs were brought on record of the said appeal. The learned Assistant Judge was pleased to dismiss the said appeal. The appellants who are the heirs of the original plaintiff have preferred this second appeal and have prayed for grant of their prayer for partition and separate possession of the said immovable property namely the Madhi house. 3 A few facts leading to this proceeding between the near relatives may now be stated. 4 Relevant pedigree showing the relationship of parties is as under: Kala Khirnji @@@ kala Khimji | - -- shamji Jadav Pama = Bai Ratna _ _ -- D. 13. Devji Babu Gokal Ramji P. D. 7 D1 1 x Hira = Bai Lilu D3. - d2. D4 D5 D6 D8 D9 D10 D11 D12. @@@ ( 3 ) THE parties are Kharavas or fisher men. Their original ancestor was one Kala Khimji. He had three sons Shamji Jadav and Pama. Pamas widow is Bai Ratna who was the original defendant No. 13. Shamji had two sons Devji and Babu. - d2. D4 D5 D6 D8 D9 D10 D11 D12. @@@ ( 3 ) THE parties are Kharavas or fisher men. Their original ancestor was one Kala Khimji. He had three sons Shamji Jadav and Pama. Pamas widow is Bai Ratna who was the original defendant No. 13. Shamji had two sons Devji and Babu. Devji was the original plaintiff before the trial court while Babu was the original defendant No. 7. Jadav had three sons one Gokul who was original defendant No. 1 second son was Ramji who died issue less and the third son was Hira who died leaving his widow Bai Lilu defendant No. 3 and his sons and daughters defendants Nos. 2 4 to 6 and 8 to 12 respectively. The contention of the plaintiff is that the Madhi house belonged to the joint family of Kala Khimji. After his death his three sons Shamji Jadav and Pama had become the coowners of this house and the excoowners and the children of Jadav and Shamji had actually occupied the house in question. ( 4 ) IT may be stated here that the original plaintiff was residing on the top floor of this disputed house on the one hand and the ground floor and first floor were occupied by the other contesting defendants on the other hand. The plaintiffs further case was that even though he was occupying the top floor as one of the coowners he wanted his share to be separated and consequently he had filed the aforesaid suit for partition and separate possession of his share in the said joint family house. ( 5 ) IT may be stated that originally daughters of Hira Jadav Kala and widow of Pama were not joined as parties to the suit but they were brought on record by an application Exh. 67 dated 1st July 1971 whereby the original defendants No. 8 to 13 had joined as codefendants. ( 6 ) IT will thus be seen that the plaintiff had sought partition of the suit disputed house because it was in his joint possession along with his cousin brothers who are the Sons of uncle Jadav and the heirs of other cousin brother Hira Jadav. ( 7 ) THE suit was resisted by the contesting defendants and their contention was that the suit house was not a joint family property at all. ( 7 ) THE suit was resisted by the contesting defendants and their contention was that the suit house was not a joint family property at all. According to them the house in question belonged to their father Jadav Kala and uncle Pama Kala and the father of Shamji Kala had no share in them and the house in question belonged to them and they had become the owners thereof. They do not deny the allegation of the plaintiff that he was in occupation of the room at the top floor but they contended that his occupation is not that of an owner or a joint owner but merely as a licensee. The learned Trial Judge negatived the contention of the plaintiff that the disputed house was joint family property. The plaintiff in order to prove that the disputed property was joint family property relied upon the certified copy of the mortgage deed at Exh. 91 produced on the record of the case before the Trial Court. This document was held to be inadmissible in evidence by the learned Trial Judge as it was not legally proved on the record and hence the suit for partition of the disputed house was dismissed. The learned Appellate Judge also took the same view namely that the copy of the mortgage deed Exh. 91 which pertained to the suit property was inadmissible as not being legally proved on the record of this case. Consequently the Appellate Judge confirmed the decree of the Trial Court in so far as it dismissed the plaintiffs prayer for partition of the disputed suit house. ( 8 ) AS stated above the heirs of the original plaintiff have filed the present second appeal challenging the decrees and decisions rendered by both the courts below in so far as the suit disputed house is concerned. ( 9 ) IT maybe stated at the out set that the entire fate of the appeal hinges on the short question as to whether the certified copy of the mortgage deed Exh. 91 is legally proved on the record of this case and is admissible in evidence or not. If it is held that the said document is legally proved on the record of the case then the heirs of the original plaintiff are entitled to succeed as a matter of course as the said document Exh. 91 is legally proved on the record of this case and is admissible in evidence or not. If it is held that the said document is legally proved on the record of the case then the heirs of the original plaintiff are entitled to succeed as a matter of course as the said document Exh. 91 pertains to the same suit property and it purports to be a simple mortgage deed in favour of one Natha Rama and it is said to have been executed by defendant No. 1 his deceased brother Ramji Jadav and Hira Jadav through their guardian mother Bai Hira and also by the father of the plaintiff. The said mortgage deed clearly recites that the house in question was joint family property of all the executants of the mortgage deed and all the three children of Kala Khimji had equal share in the said house and that is how they had joined as coexecutants of the mortgaged deed Thus if the aforesaid document is legally admissible on the record of this case the plaintiffs heirs would necessarily succeed. The learned Appellate Judge himself has noted in paragraph 12 of his judgment that if this document is given full credence one has to say that the case of the plaintiff stands proved only on the basis of this document and no more proof would he required. But the real controversy between the parties is whether this document is admissible in evidence or not. As the learned Appellate Judge took the view that the document Exh. 91 was not legally admissible on the record of this case he was constrained to non suit the plaintiff. In paragraph 19 of his judgment the learned Appellage Judge notes with regret that as this document has been technically not proved in this case the plaintiff has failed to prove his case which otherwise glowingly stands in his favour and it appears to be an unconscionable position but it cannot be helped. ( 10 ) THUS it is clear that the fate of the present dispute between the parties hinges in balance depending upon the answer to the legal question as to whether document Exh. 91 is legally admissible on the record of this case or not. ( 11 ) I have already referred to the nature of the said document. ( 10 ) THUS it is clear that the fate of the present dispute between the parties hinges in balance depending upon the answer to the legal question as to whether document Exh. 91 is legally admissible on the record of this case or not. ( 11 ) I have already referred to the nature of the said document. It is a certified copy of a mortgage deed which reflects a simple mortgage. The plaintiffs father as well as his uncle had executed the said document in favour of the mortgagee. The document was executed during the regime of the then Porbandar State and it is shown to be duty registered and recorded in Book No. 1 in the office of the Registrar Porbandar City in 1925 Exh. 91 which is a certified copy of the said registered mortgage deed was sought to be produced by the plaintiff when his oral evidence was to be recorded in the trial court. He tendered it with a list Exh. 55 dated 18-1-71. The learned Advocate for the contesting defendant No. 1 made an endorsement below the said list that he had no objection to the production of the document mentioned in the said list. At Sr. No. 2 of Exh. 55 was mentioned that disputed document Exh. 91. The list Exh. 55 was produced also with an application Exh. 56 of even date praying that he may be permitted to produce this document. The learned Advocate of defendant No. 1 made an endorsement below the said application Exh. 56 to the effect that he had no objection if the documents in question were exhibited subject to his objection regarding the proof of their contents. As stated earlier out of the various documents tendered along with the list Exh. 55 at Sr. No. 2 was the document in question namely Exh 91 Thus at the stage at which the document was tendered the learned Advocate for the contesting defendant No. 1 only kept open his objection regarding the proof of the contents of the said document. Thereafter it appears that on that very day i. e. 18-1-71 the plaintiff was examined in the trial court and in para 10 of his deposition he sought to rely upon the said document which was a mortgage deed Exh. 56/2 and it was exhibited at Exh. Thereafter it appears that on that very day i. e. 18-1-71 the plaintiff was examined in the trial court and in para 10 of his deposition he sought to rely upon the said document which was a mortgage deed Exh. 56/2 and it was exhibited at Exh. 91 subject to a latter decision of the court regarding the admissibility of the said document after hearing the arguments of the concerned Advocates. It appears that at the stage of argument before the trial court the contesting defendants contended that the said document which was the certified copy of the registered document could not go in evidence as the requirement of sec. 65 of the Indian Evidence Act 1872 which permitted leading of secondary evidence was not satisfied in the case. It was also contended by the defendants that the document in question was a mortgage deed that required attestation and it could not go in evidence under sec. 68 of the Indian Evidence Act without the examination of atleast one attesting witness to the said document and in the present case none of the attesting witnesses was examined by the plaintiff nor had he led any evidence on the record to show that the attesting witnesses were dead or not traceable. Under these circumstances it was contended by the defendants that sec. 68 also barred the entry of the said document on the record of the present case. The learned Trial Judge accepted the said contention of the defendants and held the document to be inadmissible in evidence. The learned Appellate Judge has endorsed the aforesaid reasoning of the learned Trial Judge on the aspect of the admissibility of the said document. As I have already stated above because the appellate Judge took the view that the document in question is not legally proved he was constrained to hold against the plaintiff. ( 12 ) MR. D. D. Vyas the learned Advocate appearing for the heirs of the original plaintiff contended on behalf of the appellants that the Appellate Judge had committed an apparent error of law in holding that the document in question Exh. 91 was not legally proved on the record of this case. Mr. ( 12 ) MR. D. D. Vyas the learned Advocate appearing for the heirs of the original plaintiff contended on behalf of the appellants that the Appellate Judge had committed an apparent error of law in holding that the document in question Exh. 91 was not legally proved on the record of this case. Mr. Vyas further contended that when the document in question was tendered in the trial court by the plaintiff the learned Advocate of the contesting defendant No. 1 made an endorsement to the effect that he had no objection if the document was accepted subject to the proof of its contents. Thus the dispute which was kept alive so far as the document in question was concerned by the contesting defendant was regarding the proof of the contents of the document and there was no dispute regarding the method or manner of the proof of the execution of the said document. Mr. Vyas submitted that the document in question is a certified copy of the mortgage deed and hence it was a public document. Its contents were presumed to be proved under sec. 77 of the Indian Evidence Act read with sec. 57 (5) of the Indian Registration Act. Mr. Vyas further submitted that it was true that under sec. 68 of the Indian Evidence Act a document which was required to be registered would be proved by examining one of the attesting witnesses. As the defendant No. 1 by endorsement at the time when the document was tendered in evidence had limited the controversy between the parties to the proof of the contents of the document only and as no controversy pertaining to the proof of execution remained on the anvil of disputes between the parties no attention seems to have been focussed by the plaintiff on the aspect either of examining the attesting witness or proving the impossibiility of examining the concerned attesting witnesses to the said document. Mr. Vyas further submitted that Exh. 91 which was a certified copy of the mortgage deed purports to have been executed by the concerned heirs of the original predecessor Kala Khimji who was the owner of the suit house. Mr. Vyas further submitted that Exh. 91 which was a certified copy of the mortgage deed purports to have been executed by the concerned heirs of the original predecessor Kala Khimji who was the owner of the suit house. As it is clearly brought out from the record of this case that the plaintiff was only six years old at the time of the execution of the document in 1925 the contesting defendants who were occupying the suit property since the beginning must have obtained possession of the mortgage deed on redemption of the mortgage and the original mortgage deed must be in possession of the contesting defendants and they were with. holding it. Under these circumstances it can easily be presumed that the original document Exh. 91 must have been duly attested and executed in the manner required by law and consequently according to Mr. Vyas sec. 68 of the Indian Evidence Act cannot be successfully relied upon by the other side for getting the disputed document Exh. 91 removed from the record of this case. Thus in short it is contended on behalf of the appellants that the due execution of the document as well as the proof of the contents of the document have been established in view of the combined operation of secs. 77 and 89 of the Indian Evidence Act and sec. 57 (5) of the Indian Registration Act. ( 13 ) MR. J. R Nanavaty the learned Advocate appearing for the contesting defendants on the other hand contends that even though the learned Advocate for the contesting defendant No. 1 bad made an endorsement below Exh. 56 as extracted by me earlier the learned Advocate had really not waived the proof of the execution of the said document on behalf of the concerned defendant. Mr. Nanavaty further contended that in any case defendants Nos. 8 to 13 were joined subsequently in the present proceedings by an application at Exh. 67 dated 1st July 1971 Consequently so far as the application Exh. 56 is concerned it can be said that the Advocate of the defendant No. 1 could not have made an endorsement which would bind the newly added defendants who were not even on the record of this case at the relevant time. Mr. 67 dated 1st July 1971 Consequently so far as the application Exh. 56 is concerned it can be said that the Advocate of the defendant No. 1 could not have made an endorsement which would bind the newly added defendants who were not even on the record of this case at the relevant time. Mr. Nanavati further submitted that it has been found by both the courts below that the mortgage deed in question copy of which was produced on the record of this case at Exh. 91 was not proved to be in possession of the contesting defendants. Under these circumstances and especially when the contesting defendants were alleging that no such mortgage transaction had ever taken place sec. 89 of the Indian Evidence Act cannot be pressed in aid by the appellant and consequently it cannot be presumed that the document in question was duly executed and attested in the manner required by law. ( 14 ) HAVING given my anxious consideration to the rival contentions of the learned Advocates of the respective parties I am inclined to hold that the document in question is legally admissible in evidence and has been duly proved on the record of this case and it is wrongly excluded from evidence by both the courts below. Consequently the findings reached by the courts below on this legal aspect are required to be reversed. ( 15 ) IT is clear that the document Exh. 91 is a certified copy of a mortgage deed produced from the record of the Registrar of Documents Thus the said certified copy is of a registered mortgage deed. The caption of this document shows that it was duly registered in Book No. I of 1925 in the office of the City Registrar of Porbandar and the said book pertains to registration of mortgages and sales and the said book was maintained by Porbandar State for registering the transactions of sales and mortgages. While the certified copy of this registered mortgage deed was sought to be produced before the trial court the learned Advocate for the contesting defendants then on the record of this case did not object to the production of this document as the secondary evidence of the original mortgage document. On the contrary the endorsement shows that he did not object to the production of the document. On the contrary the endorsement shows that he did not object to the production of the document. But he kept in tact his objection as to the proof of the contents of the document. Thus the controversy between the parties was narrowed down before the trial court from the very inception of the entry of the said document on the record of this case and the controversy centered round only the proof of the contents of the document and nothing more. The said document was sought to be proved and brought on record by the plaintiff on the very day on which this document was tendered in evidence by him on 18-1-75. I have already mentioned that portion of his deposition wherein the plaintiff sought to prove the document and it was tentatively marked as Exh. 91 subject to the contentions of the parties which had to be advanced at a later stage presumably at the time of arguments. But the controversy which was kept open and alive so far as this document was concerned was regarding the proof of its contents as the learned Advocate of the contesting defendant at the relevant time had made it clear that save and except his objection regarding the contents being proved he had no other objection to the document being exhibited. Thus at the subsequent stages of the trial the only controversy between the parties as to Exh. 91 lay in a very narrow compass whether the contents of the said document were legally proved or not. Only question left open by the learned Trial Judge when he tentatively marked the document at Exh. 91 in para 10 of the deposition of the plaintiff was regarding the proof of the contents of the document. If it is found that the contents were legally proved then the document would go in whole hog as a legally proved document on the record. If the contents were not legally proved it would not be exhibited as a completely proved document on the record. What is to be emphasised at this stage is that there was no controversy between the parties when the document in question was tendered in evidence and was sought to be proved by the plaintiff to the effect that the document was not properly executed and that its execution was to be proved by the plaintiff. What is to be emphasised at this stage is that there was no controversy between the parties when the document in question was tendered in evidence and was sought to be proved by the plaintiff to the effect that the document was not properly executed and that its execution was to be proved by the plaintiff. I therefore find that the contesting defendant through his Advocate had waived the controversy regarding the formal proof of the execution of the document in question and consequently it would naturally follow that the court had only to consider a limited question as to whether the contents of document Exh. 91 were duly proved on the record of the case or not. In that view of the matter the question whether sufficient evidence was led by the plaintiff to enable him to introduce secondary evidence of the mortgage deed in the form of certified copy of the registered deed at Exh. 91 as per the provisions of sec. 65 of the Evidence Act or the further question as to whether its due execution was proved by by examining one of the attesting witnesses as required by sec. 68 of the Evidence Act really did not survive for consideration and both the courts below ought not to have gone into this larger question when the contesting defendant at the proper stage had not raised that contention and had thus waived that objection. It is true that at the time of arguments before the learned Trial Judge the controversy between the parties seems to have been enlarged and the defendants Advocate was permitted to address the court on the question of due compliance with secs. 65 and 68 of the Act. But this appears to be an unjustified course which the learned Trial Judge had adopted. It is now well settled that if a party waives proof of circumstances justifying the giving of secondary evidence at a subsequent a stage it cannot turn round and contend that secondary evidence had wrongly been permitted to enter on the record. In the case of Ajjarapu Subbarao v. Pulla Venkata Rama Rao and ors. A. I. R. 1964 Andhra Pradesh 53 a Division Bench of the Andhra Pradesh High Court in this connection observed that the rule in sec. In the case of Ajjarapu Subbarao v. Pulla Venkata Rama Rao and ors. A. I. R. 1964 Andhra Pradesh 53 a Division Bench of the Andhra Pradesh High Court in this connection observed that the rule in sec. 65 of the Evidence Act excluding the secondary evidence is not so rigid as to be enforced even if no objection has been taken at the trial by the party against whom the secondary evidence has been offered. When a party has waived proof of circumstances justifying the giving of secondary evidence and the secondary evidence is allowed he cannot raise the objection to its admissibility in appeal. It has been further observed that the question of proof of a document is a question of procedure and can be waived But a question of relevance of document is a question of aw and can be raised at the appellate stage as well. The learned Judges of the Andhra Pradesh High Court have placed reliance on a judgment of the Bombay High Court in the case of Bacharbhai Narabhai v. Mohanlal Ranchhoddas reported in A. I. R. 1956 Bombay 196 and also a judgment of the Madras High Court in the case of Latchayya Subudhi v. Seetharamayya reported in A. I. R. 1925 Mad. 257. Justice J. C. Shah as he then was sitting as Single Judge in the Bombay High Court considered this question in the case of Bacharbhai Narabhai v. Mohanlal Ranchhoddas (supra ). It was held by the learned Judge in the aforesaid decision that secondary evidence under sec. 65 of the Act can always be given if the failure to produce the original document is supported by proper reasons. When the defendant has waived proof of circumstances which justified the plaintiff in leading secondary evidence it is not open to him in second appeal to raise a contention that the secondary evidence of the contents of the document was inadmissible. ( 16 ) THUS it is well settled that whether the basic requirements of sec. 65 of the Evidence Act for leading secondary evidence are met with or not will depend upon the further fact whether the contesting party puts the tendering party to such proof as per the requirement of sec. 65. ( 16 ) THUS it is well settled that whether the basic requirements of sec. 65 of the Evidence Act for leading secondary evidence are met with or not will depend upon the further fact whether the contesting party puts the tendering party to such proof as per the requirement of sec. 65. I have already narrated the circumstances under which the document in question was tendered in the trial court and bow at the stage when it was tendered its production was not objected to by the contesting parties. The limited question left open was whether the contents of the document were legally proved or not. The contesting defendant could not have subsequently urged that the secondary evidence of the mortgage deed ought not to have been led and the original should have been produced at that time. I find that the said objection was waived by the contesting defendants through the endorsement by their advocate below application ( 17 ) REALISING this difficulty Mr. Nanavaty for the respondents made a futile attempt to submit that at the time when the endorsement was made by the learned Advocate of the contesting defendants below application Exh. 56 same newly added defendants Nos. 8 to 13 were not still on record and they were brought on record by an order dated 1st July 1971 Exh. 67. Thus the endorsement of the learned Advocate of the contesting defendants prior to their entry could not bind these newly added defendants. This submission of Mr. Nanavaty though apparently attractive is devoid of any substance. It is pertinent to note that the newly added defendants were sailing in the same boat as the main contesting defendants. The newly added defendants were the daughters of Hira Jadav whose son defendant No. 2 was already on the record previously. His another son Kana Hira was already an existing defendant No. 4 while the main defendant No. 1 was also on the record from the very beginning but the fact is that his learned Advocate has made an endorsement below Exh. 56 representing all the contesting defendants and he continued to represent them at the subsequent stages of the trial. The defence of the defendants including the newly added daughters of deceased Hira Jadav was one and the same defence. 56 representing all the contesting defendants and he continued to represent them at the subsequent stages of the trial. The defence of the defendants including the newly added daughters of deceased Hira Jadav was one and the same defence. Even after their entry on the record these daughters of deceased Hira Jadav adopted the written statement filed by the main contesting defendant. Thus they were also sailing in the same boat in which the contesting defendant was sailing They continued to be represented by the same Advocate throughout the trial. Even apart from that if it was felt that the newly added defendants wanted to put the plaintiff to proof of the circumstances under which the secondary evidence of Exh. 91 could have been led and if they wanted to get over the prior endorsement below Exh. 56 of the learned Advocate who continued to represent them they could have filed a pursis to that effect or could have raised a contention in that regard independently of the main contesting defendant No. 1. But no attempt was made by them in that direction. On the contrary they seem to have adopted the same contentions as originally taken out by the main contesting defendants. Even before me the learned Advocate Mr. Nanavaty has appeared for the respondents including the defendants Nos. 8 to 13. His submission is that the defendants Nos. 8 to 13 were brought on the record subsequently by an order dated 1st July 1971 Exh. 67 and that the endorsement below application Exh. 56 made by the learned Advocate for the contesting defendant prior to the entry of the newly added defendants could not bind these newly added defendants. This submission though appears to be technically attractive is devoid of any real substance and consequently it must be held that really all the Contesting defendants have waived their objection regarding the proof of execution of the document in question and also regarding the manner of ing secondary evidence of Exh. 91. Hence the requirements of secs. 65 and 68 of the Evidence Act did not really survive for consideration and Consequently it must be held that both the courts below were apparently in error while they ruled out the document on the supposition that the requirements of secs. 65 and 68 were not complied with in this case ( 18 ) EVEN assuming that Mr. 65 and 68 of the Evidence Act did not really survive for consideration and Consequently it must be held that both the courts below were apparently in error while they ruled out the document on the supposition that the requirements of secs. 65 and 68 were not complied with in this case ( 18 ) EVEN assuming that Mr. Nanavaty is right that the dispute between the parties regarding the admissibility of the document was a question that could have been enlarged at the time of the arguments before the trial court even then Mr. Nanavaty cannot successfully urge that the provisions of secs. 65 and 68 are not complied within the present case. Sec. 65 of the Evidence Act provides that secondary evidence may be led of the original document in a given set of circumstances. Leaving aside for the time being the controversy whether sec. 65 (a) was attracted to the facts of the present case or not I find that the present case can squarely be covered by sec. 65 (c) 65 as well as section 65 (f ). Under sec. 65 (c) secondary evidence of original can be led when the party cannot find document within a reasonable time. The plaintiffs case throughout is that he is not in possession of this document. He was only aged 6 years when the mortgage in question in 1925 took place. He has been contending that the original mortgage deed on redemption was taken back by the contesting defendants along with the title deed of the property both of which were handed over to the mortgagee at the time of the execution of the mortgage deed. Thus the plaintiff for no fault of his or any neglect on his part could not produce the original document which was not in his possession. His case was that it was in the possession of the contesting defendants. Under these circumstances when the plaintiff produced a certified copy of the registered document from the Registry of Documents it cannot be said that he could rot do so. Hence it must be held that the plaintiff had made out a sufficient ground for the production of secondary evidence in view of sec. 65 (c ). Under these circumstances when the plaintiff produced a certified copy of the registered document from the Registry of Documents it cannot be said that he could rot do so. Hence it must be held that the plaintiff had made out a sufficient ground for the production of secondary evidence in view of sec. 65 (c ). If the plaintiff from the very beginning is clamouring that he is not in possession of the original document and if the defendant who is alleged to be in possession of the document adopts totally a negative approach and contends that there is no such document in existence I fail to understand as to what the plaintiff can do save and except produce a certified copy of the said document if he was fortunate enough to get it from Registry. In the present case the plaintiff has been able to get a certified copy of the document If the document was not a registered document this course would not have been open to the plaintiff. Once a certified copy of the registered mortgage deed is tendered in the face of a complete negative posture adopted by the contesting defendants it cannot be said that the plaintiff has not made out a ground to lead secondary evidence as required by sec. 65 (c) of the Evidence Act. ( 19 ) AT this juncture it is worthwhile to refer to a Division Bench judgment of this court consisting of Justices J B. Mehta and A. D. Desai JJ. in Letters Patent Appeal No. 98 of 1970 decided on 13-2-75. The Division Bench in the aforesaid decision had an occasion to consider the question whether a certified copy of a mortgage deed was legally admissible in evidence in that case. It has been held by the Division Bench in the aforesaid decision that the mortgage document is a public document and hence its certified copy could be produced in evidence. It has further been held that under sec. 77 of the Indian Evidence Act certified copies may be produced in proof of the contents of the public documents. Thus it is clear that Exh. 91 which is also a certified copy of the mortgage deed which is held to be a public document by the Division Bench of this court can be tendered in evidence in proof of its contents. Thus it is clear that Exh. 91 which is also a certified copy of the mortgage deed which is held to be a public document by the Division Bench of this court can be tendered in evidence in proof of its contents. The contents of the said document are also necessarily proved once it is shown that it is the certified copy of a public document. The certified copy of the registered mortgage deed at Exh. 91 could be admitted in evidence also by virtue of sec. 65 (e) of the Evidence Act. Consequently it cannot be said that the document in question was liable to be held inadmissible in evidence on account of non compliance of sec. 65 of the Evidence Act. ( 20 ) EQUALLY a case is made out by the plaintiff under sec. 65 (f) under which provision when the original was a registered mortgage deed a certified copy thereof was legally admissible in evidence. Thus it cannot be said that the plaintiff had not made out proper grounds under sec. 65 of the Evidence Act for the production of secondary evidence of the mortgage deed astried to be urged by Mr. Nanavaty. . ( 21 ) THAT takes me to sec 68 of the Indian Evidence Act. Mr. Nana vaty has contended that sec. 68 of the Evidence Act clearly applies to the facts of the present case as Exh. 91 evidences a mortgage transaction which is required to be effected by a registered document. Mr. Nanavatys submission as a corollery to the aforesaid legal position is that the plaintiff without examining atleast one attesting witness could not be permitted to introduce such a document in evidence at all as properly proved. As I have already stated above this contention is not open to the contesting defendants as they had waived their objection regarding the proof of execution of the document. But on an assumption that it is still open to them to contend to that effect it is found that the said contention is of no assistance to Mr. Nanavaty. It is true that the proviso to sec. 68 cannot be pressed in service by the plaintiff in the present case as the defendants specifically denied the execution of the said document by the concerned executors. Nanavaty. It is true that the proviso to sec. 68 cannot be pressed in service by the plaintiff in the present case as the defendants specifically denied the execution of the said document by the concerned executors. It is equally true that the plaintiff has made no effort to show that it was not possible to trace out any of the attesting witnesses as per the requirement of sec. 69. In fact he did not press in service the procedure provided by sec. 69 of the Act. Mr. Nanavaty was right when he contends that sec. 70 of the Evidence Act was also out of picture. But still the difficulty which according to him was insurmountable for the plaintiff was really not so. As per sec. 77 of the Indian Evidence Act Exh. 91 being a certified copy of a public document was sufficient by itself to prove the contents of the said document. The contents on the document naturally cover all the recitals and averments made in the said document and encompass the document from top to bottom. That would naturally bring in its wake the attestation part of the document. Sec. 57 (5) of the Indian Registration Act also will squarely apply to the facts of the case and will show that contents of the registered document were duly proved moment the certified copy of the same was produced on the record to this case. Thus a combined reading of sec. 77 of the Evidence Act and sec. 57 (5) of the Indian Registration Act shows thatthe recitals in the said certified copy were duly proved with the result that due attestation of the said document can easily be held to be proved. Consequently the requirement of sec. 68 of the Indian Evidence Act would not really remain effective against the document Exh. 91 especially on account of two salient facts which are well established in the case namely firstly it was a certified copy of a public document and secondly it was a certified copy of a registered document. In the case of Patel Manilal Chhaganlal v. Municipal Corporation Surat reported in 19 G. L. R. 412 a learned single judge of this Court Mr. Justice A. M. Ahmadi had to decide a similar question as to whether certified copies of certain old mortgage deeds were legally admissible in evidence or not. In the case of Patel Manilal Chhaganlal v. Municipal Corporation Surat reported in 19 G. L. R. 412 a learned single judge of this Court Mr. Justice A. M. Ahmadi had to decide a similar question as to whether certified copies of certain old mortgage deeds were legally admissible in evidence or not. It has been held in the aforesaid decision by this court that a conjoint reading of secs. 61 and 64 of the Evidence Act shows that ordinarily the contents of a document must be proved by the production of the original document except in cases mentioned in the sections immediately following. According to sec. 65 secondary evidence may be given of the existence condition or contents of a document in certain circumstances. Sec. 66 however enjoins upon the party seeking to tender secondary evidence to serve the party in whose possession the original document is or appears to be with a notice before tendering the secondary evidence. However in cases where the adverse party is expected to know from the facts of the case that the document is required to be produced and fails to produce the same or in cases which the court considers appropriate the non service of notice shall not preclude the party from leading secondary evidence. So also when the loss of the document is admitted by the adverse party or his agent there would be no need to serve a notice before tendering secondary evidence. If the plaintiff states before the court that the original title deeds are lost and he is not in a position to produce the same it would be futile to insist on a notice of production to bring into play sec. 89 of the Evidence Act. While referring to sec 89 of the Evidence Act in the aforesaid decision it has been held that sec. 89 entitles the court to presume that the document was attested stamped and executed in the manner required by law. Sec. 57 (5) of the Registration Act next provides that all copies of documents given under sub-sec. (1) shall be admissible for the purpose of proving the contents of the original document. 89 entitles the court to presume that the document was attested stamped and executed in the manner required by law. Sec. 57 (5) of the Registration Act next provides that all copies of documents given under sub-sec. (1) shall be admissible for the purpose of proving the contents of the original document. A combined reading of these provisions leaves no doubt that once it is established that the original title deeds are lost or destroyed or are being deliberately withheld by the party against whom they are sought to be used secondary evidence in respect of those title deeds can be tendered and if the secondary evidence in respect of those title deeds can be tendered and if the secondary evidence happens to be certified copies of registered documents entered in book No. 1 the contents thereof can be read in evidence by virtue of sub-sec (5) of sec. 57 of the Registration Act. ( 22 ) IN the present case also it is found that the plaintiff inspite of his best endeavour was not in a position to find out the original mortgage deed certified copy of which was produced by him at Exh. 91. It is true that he had not given a notice to the defendants to produce the original document but due to the negative posture adopted by the defendants and their consistent denial of the very existence of the mortgage deed it was futile to ask the plaintiff to serve any notice to the defendants to produce such a document which according to them was non-existent. It is therefore clear that no notice to produce the document was required to be given to the contesting defendants on the facts of the present case. Mr. Nanavaty has contended that sec. 89 of the Evidence Act can never apply to the facts of the present case as the defendant was not in possession of the disputed document. Mr. Nanavati is partly right on this aspect but still it cannot be said that sec. 89 cannot apply to the facts of the present case as held or. similar facts by this court in the case of Patel Manilal Chhaganlal (Supra ). Under the circumstances sec. 89 can well apply even though a notice to produce the original was not served on the contesting defendants. 89 cannot apply to the facts of the present case as held or. similar facts by this court in the case of Patel Manilal Chhaganlal (Supra ). Under the circumstances sec. 89 can well apply even though a notice to produce the original was not served on the contesting defendants. It the defendant takes up a totally negative attitude and states that there is no such document in existence there was no sense in serving any notice to the defendant to produce such a document. Under these circumstances the plaintiff could easily lead secondary evidence by way of a certified copy of the said registered document. In that view of the matter sec. 89 will squarely apply to the facts of the present case. Once sec. 89 applies it must be held that the document was duly attested and stamped as per the manner required by law But Mr. Nanavati contended that sec. 89 of the Evidence Act cannot apply to the facts of the present case as the defendants were not in possession of the disputed document. So far as the finding of the appellate court on this aspect is concerned it is found that the learned Appellate Judge has not made a clear cut finding on this aspect. The learned Appellate Judge has considered the evidence of witness Kanji Devji Exh 98 who was leader of the caste and who was examined by the plaintiff to prove the fact that the original mortgage deed was with the contesting defendant. The said witness Kanji Devji Exh. 98 who was the leader of the caste and who was a reputed person stated in his evidence that he was the leader of the caste to which the parties belonged and in the year 1925 some of the contesting defendants had mortgaged the suit house that the plaintiff had approached him for the partition of the suit house and at that time he had called defendant No. 1. He told him that the document was in the name of his father and hence the plaintiff had no interest in the said property. He told him that the document was in the name of his father and hence the plaintiff had no interest in the said property. At that time he had asked defendant No. 1 to bring the document and he had seen the endorsement below the said document and the said endorsement was to the effect that Bai Hira had mortgaged her 1/4th share and there were shares of Shamji Kala and Pama Kala in the said property. The learned Appellate Judge has accepted the evidence of this witness but has still found him to be a person having no personal knowledge either of the mortgage transaction or of the redemption transaction and consequently according to the appellate court the evidence of this witness does not help the plaintiff as this witness had only stated that the original Lekh given by the Porbandar State was shown by defendant No. 1 to him and not the mortgage deed. That may be so. He did say categorically that he had seen the endorsement about the mortgage transaction below the original title deed which was shown to him. It is pertinent to note that even the defendant No. 1 was called upon by the plaintiff to produce the original title deed and instead he produced a certified copy thereof which did not show the endorsement. It is apparent that the defendant No. 1 was deliberately keeping back the original with a view to secret the endorsement below it from the court. Once the learned appellate Judge placed reliance on the evidence of witness Kanji claiming that he had seen the endorsement pertaining to mortgage of 1925 below the original title deed it must necessarily follow from the said finding of the learned Appellate Judge that the mortgage deed must have been with the contesting defendant who was in possession of the original title deed and the endorsement below the title deed was pertaining to the mortgage in question which was reflected in the document Exh. 91. It must therefore be held that the learned Appellate Judge came to a haulting inconsistent and a perverse finding when he ultimately held that the defendant was not put in possession of the original mortgage document at the time of redemption. 91. It must therefore be held that the learned Appellate Judge came to a haulting inconsistent and a perverse finding when he ultimately held that the defendant was not put in possession of the original mortgage document at the time of redemption. It is obvious that if the mortgagee on redemption returned to defendant No. 1 the original title deed of the suit property containing due endorsement about mortgage below the title deed the mortgage deed must of necessity have been returned by him to defendant No. 1 duly discharged. If defendant No. 1 could be in possession of original title dead bearing endorsement of mortgage of 1925 an inevitable inference must follow that the original mortgage deed duly discharged must have been given back in his possession by the mortgagee at the time of redemption of the mortgage of 1925. If the learned Appellate Judge himself placed reliance on the evidence of the veteran caste leader Kanji Exh. 98 for holding that the defendant was in possession of the title deed of the property with an endorsement of the mortgage of 1925 below it it must necessarily follow as a logical corollery to his own finding that the mortgage deed of the suit property must have been with the defendant since redemption of that mortgage and for obvious oblique motive he was secreting the said document from the court. Under these circumstance it must be held that the original document of mortgage was in possession of the contesting defendant No. 1 and he had kept it back from the court. To that extent the aforesaid haulting and inconsistent and in a way perverse finding of the appellate Judge to the contrary will have to be reversed. But even without going that far I have already held that sec. 89 of the Indian Evidence Act can squarely be pressed in service by the appellant even while holding that the original mortgage deed was not in possession of the contesting defendant. But the; application of sec. 89 can equally be justified on the basis of the finding to which 1 have reached namely that the original mortgage deed copy of which is at Exh. But the; application of sec. 89 can equally be justified on the basis of the finding to which 1 have reached namely that the original mortgage deed copy of which is at Exh. 91 must have been with the contesting defendant when he was found to be in possession of the original title deed pertaining to the suit property and which fact the learned Appellate Judge found to be well established from the evidence of witness Kaniji Exh. 98. As a result of the aforesaid discussion it must be held that the plaintiff duly proved the requirement of leading secondary evidence in the shape of a certified copy Exh. 91 of the original mortgage deed and he had fully complied with sec. 65 of the Evidence Act. It is also well established that the contents of the said copy of the mortgage deed were duly proved by the plaintiff as per sec. 77 of the Indian Evidence Act read with sec. 89 of the Act and in the light of sec. 57 (5) of the Indian Registration Act. Thus all the legal requirements and formalities for proving the said document were well complied with by the plaintiff sec. 68 of the Evidence Act notwithstanding. In that vies of the matter an inevitable conclusion has to be reached that the document Exh. 91 was duly proved on the record of the case and was; legally admissible in evidence and both the courts below were apparently in error when they ruled out the said document from evidence as not legally proved. [rest of the judgment is not material for the reports. ]appeal allowed: Preliminary decree passed. .