JUDGMENT

Misra, A J C - This is the plaintiff's appeal in a suit for declaration. One Amanat Ali, the father of the plaintiff, was admittedly the owner of the property in dispute. He had three daughters, Mt. Zaibunnissa, the plaintiff, Mt. Chittan and Mt. Rahmatan. The defendant No. 1, Irshad Husain, is the son of Mt. Chittan and defendant No. 2, Muhammad Amin, is the son of Mt. Rahmatan. Mt Chittan and Mt. Rahmatan had predeceased Amanat Ali. It is alleged that prior to his death in October, 1921, Amanat Ali had made a gift of his property in favour of the plaintiff, Mt. Chittan, the mother of defendant No. 1 and Mohamed Amin defendant No. 2, on the 8th November, 1918. The gift comprised the lands situate in village Tiri Machhrauli, pargana Bharanusa, district Sultanpur owned by Amanat Ali and a dwelling house and some miscellaneous trees in the same village. Relying upon this deed of gift the defendants 1 and 2 applied to the Revenue Court for partition of their two-thirds share in the said lands. The plaintiff raised an objection in the Revenue Court to the partition, denying the alleged gift and contending that she was the owner of the entire property. The Revenue Court referred her to the Civil Court to get her title adjudicated upon and it is in pursuance of that order that the plaintiff has brought the present suit.

2. The Munsif of Musafirkhana held that the gift was not established even if established was invalid and thereupon decreed the plaintiffs suit. The defendants appealed against the said decision and the learned Subordinate Judge of Sultanpur accepted the appeal and dismissed the plaintiff's suit. It is against that decision that the present appeal has been lodged by the plaintiff in this Court.

3. In appeal it is contended before me that the learned Subordinate Judge was wrong in accepting secondary evidence of the deed of gift. I do not agree with this contention. The defendants relied upon the deed of gift and stated in their written statement that it was in the possession of the plaintiff. The learned Subordinate Judge has, after considering all the circumstances of the case come to the conclusion that in his opinion the deed of gift appeared to be in the possession of the plaintiff and consequently he admitted secondary evidence under Section 65 of the Indian Evidence Act. That section lays down that secondary evidence may be given of the 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. The document executed by Amanat Ali, as stated above, was in favour of three individuals, the plaintiff being one of them. It is only reasonable to infer that the said deed must have been in the possession of the donees, one of whom is the plaintiff herself. If the deed of gift had been in the possession of the defendants I fail to see what reason there could be for their not producing the document on which their title to the property in dispute rested. I am therefore compelled to infer that the document is in the possession of the plaintiff. The law as laid down in Section 65 does not require that in all cases it must be definitely proved that the document is in possession of the other side against whom it is sought to be proved it being sufficient if it is proved that the document appears to be in his possession. I think the learned Subordinate Judge has rightly allowed the defendants to give secondary evidence of the deed of gift and I reject the plaintiff's contention.

4. The second contention raised before me by the learned Counsel for the plaintiff-appellant is that the deed of gift is invalid on the doctrine of mushaa. It is clear from the record that although the deed of gift did not in so many terms state the shares which the donees were to have in the property gifted to them yet it is clear from the kewat (Exhibit A-7) that mutation of names was effected in favour of Mt. Chittan, Mt. Zaibunnisa, the plaint