Jyotsna Rewal Dua,J. -
(1.) The petitioners/plaintiffs have laid challenge to the order dated 15.06.2018 passed by the learned Trial Court, whereby the application moved by respondent No.1/ Defendant No.1 under Section 65 of the Indian Evidence Act was allowed and the photocopy of original will dated 07.11.1987 was permitted to be placed on record. Aggrieved, the petitioners have preferred instant petition under Article 227 of the Constitution of India.
(2.) Bare minimum facts required to be noticed for adjudication of this petition are:-
2(i). Suit was filed by the petitioners for declaration to the effect that they are joint owners in possession with the defendants to the extent of specified shares over the suit land and further that mutation No.54, dated 15.03.1988, with respect to estate of late Sh. Sudama Ram, sanctioned and attested in favour of the defendants, was illegal, null and void. Consequential relief of permanent injunction was also prayed for.
2(ii). Defendant No.1 (respondent No.1 herein) resisted the suit, inter alia, putting forth the claim that father of the plaintiffs and defendants had executed a will on 07.11.1987 in favour of the defendants. The mutation of the property of the deceased was accordingly sanctioned and attested in favour of the defendants in equal shares. The original will was shown to the revenue officers at the time of sanctioning of the mutation. It was further set out that mutation No.54, dated 15.03.1988, was sanctioned and attested in presence of the plaintiffs, who never objected to the same being based on genuine will. Copy of the will dated 07.11.1987 was enclosed with the written statement.
2(iii). On 11.05.2017, defendant No.1 moved an Application under Section 65 of the Indian Evidence Act for taking on record the photocopy of the original will dated 07.11.1987 as secondary evidence. The application was moved on the premise that after the attestation of mutation No.54 on the basis of the original will by the revenue officers, the same was handed over by defendant No.1 to defendant No.2. Defendant No.2 is now hand in gloves with the plaintiffs and despite repeated requests of defendant No.1, has not produced the original will. It was further stated that an application under Order 12 Rule 8 read with Section 151 of the Code of Civil Procedure (CPC) was also moved on 08.06.2016 by defendant No.1 in this regard. Notice of the application was also given to defendant No.2, who in his reply to the application, refused that the original will was handed over to him. Accordingly, the learned Court below disposed of this application on 09.05.2017 and fixed the case for defendants' evidence. It was further the submission of defendant No.1 that since his entire defence is based upon the will dated 07.11.1987, therefore, the same is required to be placed on record to prove its execution. In light of these submissions, prayer was made to lead secondary evidence in respect of photocopy of the original will dated 07.11.1987.
2(iv). The application was opposed by the petitioners. It was denied that during his lifetime, father of the parties executed the will dated 07.11.1987. Petitioners submitted that defendant No.1 had intentionally withheld the document to save himself from the criminal proceedings as the same was a forged document. Another contention raised was that in the written statement, defendant No.1 had not stated about handing over the original will to defendant No.2.
2(v). Upon hearing the parties, learned Trial Court vide order dated 15.06.2018, allowed the application, thereby permitting defendant No.1 to lead secondary evidence in respect of original will dated 07.11.1987. It is in the above background that the instant petition has been filed by the petitioners.
(3.) After hearing learned counsel for the parties and perusing the record available on the file, in my considered view, the impugned order suffers from no infirmity for the following reasons:-
3(i). Defendant No.1 (respondent No.1 herein) had based his entire defence on the will dated 07.11.1987 allegedly executed by father of the parties. He had taken a plea in the written statement that mutation No.54 was sanctioned and attested in favour of the defendants on 15.03.1988 on production of original will.
3(ii). It is also an admitted fact that an application under Order 12 Rule 8 read with Section 151 CPC was moved by respondent No.1 on 08.06.2016, calling upon defendant No.2 to produce the original will. In his reply filed on 09.05.2017, defendant No.2 refused that the original will was handed over to him by defendant No.1. Considering this reply, the application was disposed of on 09.05.2017. From the documents on record, the inclination of defendant No.2 towards the case of the petitioners is apparent.
3(iii)(a). It will also be apposite to refer to Section 65 of the Indian Evidence Act at this stage:-
"65. Cases in which secondary evidence relating to documents may be given.- Secondary evidence may be given of the existence, condition, or contents of a documents in the following cases:-
(a) 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, or of any person out of reach of, or not subject to, the process of the Court, or of any person legally bound to produce it, and when, after the notice mentioned in section 66, such person does not produce it;
(b) when the existence, condition or contents of the original have been proved to be admitted in writing by the person against whom it is proved or by his representative in interest;
(c) when the original has been destroyed or lost, or when the party offering evidence of its contents cannot, for any other reason not arising from his own default or neglect, produce it in reasonable time;
(d) when the original is of such a nature as not to be easily movable;
(e) when the original is a public document within the meaning of section 74;
(f) when the original is a document of which a certified copy is permitted by this Act, or by any other law in force in [India] to be given in evidence;
(g) when the originals consists of numerous accounts or other documents which cannot conveniently be examined in Court, and the fact to be proved is the general result of the whole collection.
In cases (a), (c) and (d), any secondary evidence of the contents of the document is admissible.
In case (b), the written admission is admissible.
In case (e) or (f), a certified copy of the document, but no other kind of secondary evidence, is admissible.
In case (g), evidence may be given as to the general result of the documents by any person who has examined them, and who is skilled in the examination of such documents."
3(iii)(b). Relying upon the judgments rendered by the Hon'ble Supreme Court in cases of J. Yashoda Vs. K. Shobha Rani , 2007 5 SCC 730, M. Chandra Vs. M. Thangamuthu , 2010 9 SCC 712, H. Siddiqui Vs. A. Ramalingam , 2011 4 SCC 240 and U. Sree Vs. U. Srinivas , 2013 2 SCC 114, it can be concluded that secondary evidence in respect of an ordinary document can be allowed in case following requirements inter-alia amongst others are met :-
(i) For leading secondary evidence, non production of the document in question has to be properly accounted for by giving cogent reasons inspiring confidence.
ii) The party should be genuinely unable to produce the original of the document and it should satisfy the Court that it has done whatever was required at its end. It cannot for any other reason, not arising from its own default or neglect produce it.
iii) Party has proved before the Court that document was not in his possession and control, further that he has done, what could be done to procure the production of it.
iv) The secondary evidence must be authenticated by foundational evidence that the alleged copy is in fact a true copy of the original."
3(iii)(c). titled Jagmail Singh and another Versus Karamjit Singh and others , 2020 5 SCC 178 was a case where the appellants had filed a suit for declaration that they are owners of the land and that mutations attested in favour of the respondents were null and void having been sanctioned on the basis of a forged will. During pendency of the suit, an application under Sections 65/66 of the Evidence Act was moved seeking permission to prove copy of the will by way of secondary evidence. The Trial Court allowed the application, however, in revision, this order was set aside by the High Court. Thereafter, another application under Sections 65/66 of the Act was moved before the learned Trial Court for issuance of notice to the revenue officers for production of original will on the ground that the original will was handed over to the revenue officials for sanctioning the mutation. In this background, the Hon'ble Apex Court held that in terms of Section 67 of the Indian Evidence Act, the secondary evidence may be given with regard to existence, condition or the contents of a document when the original is shown or appears to be in possession or power against whom the document is sought to be produced, or of any person out of reach of, or not subject to, the process of the court, or of any person legally bound to produce it, and when, after notice mentioned in Section 66 such person does not produce it. Settled legal position was reiterated that for secondary evidence to be admitted foundational evidence has to be given being the reasons as to why the original evidence has not been furnished. Further relying upon Ashok Dulichand v. Madahavlal Dube , 1975 4 SCC 664 and Rakesh Mohindra v. Anita Beri , 2016 16 SCC 483, it was held as under:-
"14. It is trite that under the Evidence Act, 1872 facts have to be established by primary evidence and secondary evidence is only an exception to the rule for which foundational facts have to be established to account for the existence of the primary evidence. In the case of H. Siddiqui v. A. Ramalingam, this Court reiterated that where original documents are not produced without a plausible reason and factual foundation for laying secondary evidence not established it is not permissible for the court to allow a party to adduce secondary evidence.
16. In view of the aforesaid factual situation prevailing in the case at hand, it is clear that the factual foundation to establish the right to give secondary evidence was laid down by the appellants and thus the High Court ought to have given them an opportunity to lead secondary evidence. The High Court committed grave error of law without properly evaluating the evidence and holding that the pre-requisite condition i.e., existence of Will remained unestablished on record and thereby denied an opportunity to the appellants to produce secondary evidence."
3(iii)(d). In titled Dhanpat Versus Sheo Ram (Deceased) through Legal Representatives and others , 2020 16 SCC 209 it was held that there is no requirement that an application is required to be filed in terms of Section 65(c) of the Evidence Act before the secondary evidence is led. A party to the lis may choose to file an application which is required to be considered by the trial court but if any party to the suit has laid foundation of leading of secondary evidence, either in the plaint or in evidence, the secondary evidence cannot be ousted for consideration only because an application for permission to lead secondary evidence was not filed. Relevant paras of the judgment are as under:-
"18. In another judgment reported as Aher Rama Gova v. State of Gujarat, the secondary evidence of dying declaration recorded by a Magistrate was produced in evidence. This Court found that though the original dying declaration was not produced but from the evidence, it is clear that the original was lost and was not available. The Magistrate himself deposed on oath that he had given the original dying declaration to the Head Constable whereas the Head Constable deposed that he had made a copy of the same and given it back to the Magistrate. Therefore, the Court found that the original dying declaration was not available and the prosecution was entitled to give secondary evidence which consisted of the statement of the Magistrate as also of the Head Constable who had made a copy from the original. Thus, the secondary evidence of dying declaration was admitted in evidence, though no application to lead secondary evidence was filed.
19. Even though, the aforesaid judgment is in respect of the loss of a sale deed, the said principle would be applicable in respect of a Will as well, subject to the proof of the Will in terms of Section 68 of the Evidence Act. In the present case as well, the Will was in possession of the beneficiary and was stated to be lost. The Will is dated 30th April, 1980 whereas the testator died on 15th January, 1982. There is no cross-examination of any of the witnesses of the defendants in respect of loss of original Will. Section 65 of the Evidence Act permits secondary evidence of existence, condition, or contents of a document including the cases where the original has been destroyed or lost. The plaintiff had admitted the execution of the Will though it was alleged to be the result of fraud and misrepresentation. The execution of the Will was not disputed by the plaintiff but only proof of the Will was the subject matter in the suit. Therefore, once the evidence of the defendants is that the original Will was lost and the certified copy is produced, the defendants have made out sufficient ground for leading of secondary evidence.
22. There is no requirement that an application is required to be filed in terms of Section 65(c) of the Evidence Act before the secondary evidence is led. A party to the lis may choose to file an application which is required to be considered by the trial court but if any party to the suit has laid foundation of leading of secondary evidence, either in the plaint or in evidence, the secondary evidence cannot be ousted for consideration only because an application for permission to lead secondary evidence was not filed."