Production of document from proper custody is necessary for presumption u/s 90.

1. The plaintiffs filed a suit for declaration and injunction. The trial court decreed the suit and on appeal, the same was confirmed by the sub-Judge and hence the 1st defendant has preferred this appeal.

.2. The property belongs to the 1st defendant is admitted in emphatic terms by the plaintiff, when examined as P.W.1. The plaintiff witnesses P.Ws.2 and 3 also admit that the suit property belongs to the 1st defendant temple viz,, the appellant. The documents produced in this case, which have been marked as Exs.Al, A3 and A4 to A32 would all go to show that the plaintiffs have accepted the title of the temple to the suit property. The plaintiffs claimed to be the tenants of the suit property under the 1st defendant. They have paid rent to the temple, accepting the temples title to the suit property. It is the case that the suit property was settled upon the temple by the plaintiffs grand father. But, it is not established.

3. The trial court as well as the lower appellate court has held that the Will executed by the grand father under Ex.A2 is true, valid and binding upon the defendants. The Will is dated 26. 1981. What is produced into Court is only a registration copy. The will does not make mention of the survey Number of the property dealt with under the will. It only mentions patta number and the extent. The survey number of the property is nowhere mentioned in the document and it is not correlated with reference to the suit property. Therefore, the premise that the suit property was the one endowed by the grand-father in favour of the temple is not established. Further, the plaintiff has stated clearly in his evidence when about the original of the will, in the course of cross-examination as follows:-

.4. Thus it is not established that all the attestors to the will are dead. It is not established that the original has been lost or that it is in possession and custody of a person, who is not subject to the jurisdiction of this Court. Nor it is the case that inspite of diligence, the plaintiffs are not able to produce the original. In such circunstances, the trial court as well as the lower appellate court erred in admitting the secondary evidence of the same. under Section 65 of the Evidence Act, secondary evidence is permissible only when the conditions set out in the said section are satisfied. It is not the plaintiffs case that the original is in possession or power of person against whom, the document is sought to be proved, or that it is in the possession of a person out of reach. Nor it is stated that it is in the possession of the person who is not subject to the process of the Court. It is also not stated that it is in the possession of a person who is not legally bound to produce it, and even after the notice mentioned under Section 66, such person failed to produce it. It is also not the case that the original has been destroyed or lost. Nor it is the evidence of the plaintiff that the non production is on account of any other reason not arising from his own default or neglect. When the conditions laid down in Section 65 of the Evidence Act are not satisfied, in the face of the evidence of P.W.1, the courts below erred in accepting the secondary evidence of the said document. Moreover, the courts below applied the presumption arising under Section 90 of the Act. The presumption will arise only when it is produced from proper custody. As to the proper custody, the plaintiffs have not adduced any evidence. The evidence adduced does not advance the case of the plaintiffs with regard to proper custody. Further, what is produced is only a certified copy. The presumption arising under Section 90 of the Act cannot be applied to a certified copy. Therefore, both the courts erred in holding that the will has been proved and that it is binding upon the defendants.

5. I have already referred to the fact that the plaintiffs have admitted title of the temple to the property. Having admitted the title in the