Abdul Rahiman Et Al. V. Kani Umma Et Al.

Present: Lascelles C.J. and Middleton J.   May.30,1911

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-Secondary evidence-Ordinance No. 14 of 1895, s. 63.

A translation of a deed of conveyance would not be admissible as secondary evidence to prove the contents of the original deed.

Section 63 of the Evidence Ordinance is exhaustive of the different kinds of secondary evidence that are admissible to prove the contents of a document.

THE facts are set out in the judgment of Middleton J.

Bawa, for the appellants.-The document OA 2 is only a translation of a document alleged to have been lost. A translation is not secondary evidence of the contents of a document. A sworn translation can only be admitted as a translation; it is no proof of the original. Section 63 of the Evidence Ordinance is exhaustive of the different kinds of secondary evidence that are admissible to prove the contents of a document. The word " means " in section 63 shows that the section gives an exhaustive definition of what secondary evidence is. Counsel referred to Amir. Ali's Law of Evidence, p. 372.

Pieris (with him Fernando), for the respondents, referred to the Evidence 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 document OA 2, the case being returnable to this Court for judgment. The document OA 2 purports to be a translation of a deed of conveyance dated January 14, 1821, executed by Mustaffa Lebbe Cumister, from whom all the parties trace title. It is common ground 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 conveyed two-thirds of the eastern half only, whilst the case for the respondents is that the deed conveyed two-thirds of the whole property, Noorinatotam. The translation OA 2 is thus produced to determine the

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 has perished from natural causes, but in my opinion the loss of the deed has not been sufficiently established to allow the contents to be proved by secondary evidence. But even if the loss of the original deed were properly proved, the document OA 2 would not, in my opinion, be admissible as secondary evidence to prove the contents of the original deed.

The different kinds of secondary evidence that are admissible to prove the contents of a document are enumerated in section 63 of the Evidence Ordinance, and the enumeration does not include translations. That section 63 is intended to be exhaustive is clear from the language of the section; and in India the section has been so construed (Ram Prasad v. Raghunandan Prasad1). The case must therefore be determined on the footing that the translation OA 2 is not admissible in evidence.

It is of importance to consider the effect of the extract OA 1 from the register of old deeds. If the deed had been registered under the original Ordinance of 1866, it would have been the duty of the Registrar of Lands to have preserved an exact copy, which would have been admissible as secondary evidence. But the deed in question was registered after the amending Ordinance of 1867, which allowed the Governor, in proclaimed districts, to authorize the Registrar of Lands to register the substance only of the deeds in a prescribed form.

It is clear that a certified copy of the registration of the substance only of the deed is not secondary evidence within the meaning of section 63, inasmuch as it is not a copy of the original document. Although the certified copy of the entry in

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