Telangana High Court
Dilip Kumar Jatkar vs Smt. Jayasree Jatkar on 5 March, 2020
Author: Shameem Akther
Bench: Shameem Akther
HON'BLE Dr. JUSTICE SHAMEEM AKTHER
Civil Revision Petition No.4376 of 2018
ORDER:
This Civil Revision Petition, under Article 227 of the Constitution of India, is filed by the petitioner/defendant, challenging the order, dated 10.07.2018, passed in I.A.No.903 of 2017 in O.S.No.1026 of 2013 by the X Additional Chief Judge, City Civil Court, Hyderabad, whereby, the subject interlocutory application filed by the revision petitioner/defendant under Section 65(A) & (C) of the Indian Evidence Act, 1872 (for short 'Evidence Act'), seeking permission of the Court below to lead secondary evidence in respect of Photostat copy of Will Deeds, dated 14.06.1999 and 08.09.2000, purported to have been executed by Late Dr.Vasudev Rao Jatkar, was dismissed.
2. Heard the learned counsel for both the sides and perused the record.
3. The learned counsel for the revision petitioner/defendant would contend that the respondents/plaintiffs have filed the suit against the revision petitioner/defendant for partition and separate possession of the suit schedule property. The suit is coming up for defendant side evidence. At that juncture, the revision petitioner/defendant filed the subject interlocutory application seeking permission of the Court below to receive the Photostat copy of the Will Deeds, dated 14.06.1999 and 08.09.2000, purported to have been executed by Late Dr. Vasudev Rao Jatkar, as secondary evidence. Under the said Will Deeds, dated 14.06.1999 and 08.09.2000, the father of the 2 Dr.SA, J CRP No.4376/2018 revision petitioner/defendant, i.e., Late Dr. Vasudev Rao Jatkar, bequeathed part of the suit schedule property in favour of the revision petitioner/defendant. The originals of the Will Deeds, dated 14.06.1999 and 08.09.2000, are with the respondents/plaintiffs. Photostat copy of the said Will Deeds were furnished to the revision petitioner/defendant by the testator of the said Will Deeds, i.e., his father. This fact was mentioned in the written statement filed in the subject suit. The revision petitioner/defendant had laid foundation to lead secondary evidence. Though there is denial on the part of the respondents/plaintiffs with regard to the execution of the subject Will Deeds, dated 14.06.1999 and 08.09.2000, the Court below ought to have allowed the subject interlocutory application as prayed for. The Court below erroneously dismissed the subject interlocutory application and ultimately prayed to set aside the order under challenge and allow the Civil Revision Petition as prayed for. In support of his contentions, the learned counsel had relied on a decision of the Division Bench of the High Court of Karnataka at Bangalore in P.Somasundaram Vs. Devaki Srinivasan and others1 and a decision of Rajasthan High Court in Rajesh Kumar Bhati Vs. Additional District Judge, Jodhpur and others2.
4. On the other hand, the learned counsel for the respondents/plaintiffs would contend that no foundation was laid by the revision petitioner/defendant to lead secondary evidence. Photostat copy of a document cannot be received in evidence. 1 2014 SCC Online Kar 12700 = (2015) 3 ICC 736 2 AIR 2009 Rajasthan 137 3 Dr.SA, J CRP No.4376/2018 Further, the Photostat copy of the subject Will Deeds, dated 14.06.1999 and 08.09.2000, are fabricated documents and invented to defeat the claim of the respondents/plaintiffs. The respondents/plaintiffs denied that the father of the parties, i.e., Late Dr. Vasudev Rao Jatkar, had handover the Photostat copy of the subject Will Deeds to the revision petitioner/defendant. The originals of the subject Will Deeds are not in the possession of the respondents/plaintiffs. A notice under Section 66 of the Evidence Act is required to be issued before seeking permission to lead secondary evidence. No such notice is issued in the instant case. The Court below is justified in dismissing the subject interlocutory application. There is no material irregularity in the order under challenge and ultimately prayed to sustain the order under challenge and dismiss the Civil Revision Petition. In support of his contentions, the learned counsel had relied on two decisions of the Hon'ble Apex Court in U.Sree Vs. U.Srinivas3 and Smt. J. Yashoda Vs. Smt. K. Shobha Rani4 and a decision of the erstwhile common High Court for the States of Telangana and Andhra Pradesh in Keshava Reddy Vs. Bal Reddy and others5.
5. In view of the above rival contentions, the point that arises for determination in this Civil Revision Petition is as follows:
"Whether the revision petitioner/ defendant had laid foundation to lead secondary evidence in respect of Photostat copy of Will Deeds, dated 14.06.1999 and 08.09.2000?"3
AIR 2013 Supreme Court 415 4 AIR 2007 Supreme Court 1721 5 Decided on 01.02.2016 in CRP No.1846 of 2012 4 Dr.SA, J CRP No.4376/2018
6. The material placed on record reveals that the subject suit in O.S.No.1026 of 2013 is filed by the respondents/plaintiffs for partition and separate possession of the suit schedule property. The revision petitioner/defendant is claiming part of the suit schedule property under the subject Will Deeds, dated 14.06.1999 and 08.09.2000. It is the case of the revision petitioner/defendant that his father, Late Dr.Vasudev Rao Jatkar, executed two Will Deeds, dated 14.06.1999 and 08.09.2000 and handed over the originals of the said Will Deeds to the respondents/plaintiffs. However, he had furnished a Photostat copy of the said Will Deeds to the revision petitioner/defendant. The originals of the subject Will Deeds are with the respondents/plaintiffs. Hence, the revision petitioner/defendant had filed the subject interlocutory application seeking permission to lead secondary evidence in respect of Photostat copy of the subject Will Deeds, dated 14.06.1999 and 08.09.2000 purported to have been executed by Late Dr. Vasudev Rao Jatkar. It is also the case of the revision petitioner/defendant that when specific questions were put to P.W.1 (plaintiff No.2) in his cross- examination with regard to the Photostat copies of the subject Will Deeds and when the Photostat copies of the subject Will Deeds were confronted with P.W.1, P.W.1, with mala fide intention, denied the execution of the subject Will Deeds as well as the existence of the originals of the subject Will Deeds and also the possession of originals with the respondents/plaintiffs.
7. Here, it is apt to extract Section 65 of the Indian Evidence Act, 1872, which reads as follows:
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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 document 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."
8. Thus, as per clause (a) of Section 65 of the Evidence Act, the secondary evidence of the existing condition or contents of the document can be given in three situations, FIRSTLY, when the original is shown or appears to be in possession or power of the person against whom the document is sought to be produced, SECONDLY, when it is in possession and power of any person who is out of reach of or not subject to the process of the Court, and THIRDLY, when it is in possession of any person legally bound to produce it, but he fails to produce the same even after the service of notice in terms of Section 66 of the Evidence Act.
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9. In the instant case, the revision petitioner/defendant has taken the specific stand that the original Will Deeds, dated 14.06.1999 and 08.09.2000 purported to have been executed by Late Dr. Vasudev Rao Jatkar, are in the possession of the respondents/plaintiffs, but, they are deliberately not producing the same and therefore, the revision petitioner/defendant may be permitted to lead secondary evidence with regard to the Photostat copies of the said Will Deeds. As per clause (a) of Section 65 of the Indian Evidence Act, the secondary evidence of the contents of the document may be given when the original is in possession or power of the adversary. However, the satisfaction of the Court to that effect is necessary before the party is allowed to adduce secondary evidence. The revision petitioner/defendant had laid clear foundation in the written statement filed by him in the subject suit that his father executed two Will Deeds, dated 14.06.1999 and 08.09.2000; he was furnished with Photostat copy of the said Will Deeds; the originals of the said Will Deeds are with the respondents/ plaintiffs; the respondents/plaintiffs, with mala fide intention, denied the execution, existence and possession of the said Will Deeds.
10. In Rajesh Kumar Bhati's case (2 supra) relied upon by the learned counsel for the revision petitioner/defendant, the Hon'ble High Court of Rajasthan, dealing with a similar situation, observed that the petitioner therein has taken a specific stand that the original Will is in possession of the plaintiff, therefore, petitioner-defendant's claim to produce the secondary evidence 7 Dr.SA, J CRP No.4376/2018 is covered by clause (a) of Section 65 of the Evidence Act and accordingly held that the document sought to be produced by the defendant as secondary evidence deserves to be taken on record.
11. In P.Somasundaram's case (1 supra) relied by the learned counsel for the revision petitioner/defendant, the defendant therein has taken a specific stand that his father has executed a Will in his favour and in favour of his brother (plaintiff No.5) on 19.08.1990 and his brother, i.e., plaintiff No.5, while retaining the original Will with him, furnished a Xerox copy of the same to him. Subsequently, the plaintiff No.5 therein filed a suit for partition and separate possession. While decreeing the said suit, the Court below therein held that no foundation is laid to lead secondary evidence as contemplated under Section 65 of the Evidence Act and that mere production of Will would be insufficient and it should be proved by the hilt by warding off all suspicious circumstances. The defendant therein carried the matter to the Hon'ble High Court and the High Court, while modifying the order of the trial Court, held that the oral and documentary evidence on record clearly laid firm foundation in respect of leading evidence under Section 65 of the Evidence Act and that the Court below failed to exercise its jurisdiction to dispense with production of the original Will and that the appellant was successful in placing acceptable and cogent evidence on record and therefore, the appellant was entitled to lead secondary evidence of Will.
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12. The learned counsel for the respondents/plaintiffs had relied on U.Sree's case (3 supra), wherein, the Hon'ble Apex Court, while examining the issue as to whether the Photostat copy of the letter alleged to have been written by the wife to her father could have been admitted as secondary evidence, held that the secondary evidence must be authenticated by foundational evidence that the alleged copy is in fact a true copy of the original and that in a case where the original documents are not produced at any time, nor has any factual foundation been laid for giving secondary evidence, it is not permissible for the Court to allow a party to adduce secondary evidence.
13. The learned counsel for the respondents/plaintiffs had also relied on Smt. J. Yashoda's case (4 supra), wherein, the Hon'ble Apex Court held that in order to enable a party to produce secondary evidence, it is necessary for the party to prove existence and execution of the original document. Under Section 64 of Evidence Act, documents are also to be proved by primary evidence. Section 65 of Evidence Act however permits secondary evidence to be given of the existence, condition or contents of documents under the circumstances mentioned. The conditions laid down in the said Section must be fulfilled before secondary evidence can be admitted. Secondary evidence of the contents of a document cannot be admitted without production of the original being first accounted for in such a manner as to bring it within one or other of the case provided for in the section.
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14. There cannot be any dispute with regard to the preposition of law laid down by the Hon'ble Apex Court in the aforementioned decisions. In the instant case, as indicated above, the revision petitioner/defendant had laid clear factual foundation to receive the Photostat copies of the subject Will Deeds, dated 14.06.1999 and 08.09.2000 as secondary evidence.
15. The Court below, in the impugned order observed that the original Wills are not produced nor has any factual foundation being laid for giving secondary evidence and that normally, the original Will itself is viewed as a suspicious document until it is proved as per law and accordingly, declined to permit the revision petitioner/defendant to adduce the Photostat copies of the subject Will Deeds as secondary evidence.
16. Similar situation came up for consideration before the Hon'ble Apex Court in a case reported in Nawab Singh vs. Inderjit Kaur6. The appellant therein, who was a tenant, filed a suit for permanent injunction preventing the defendant from interfering with his possession. The tenancy was disputed. Then, the appellant filed an application seeking production of rent-note from the custody of the respondent. The trial Court rejected the said application. Thereafter, the appellant filed another application seeking leave of the Court to produce secondary evidence of the rent-note. That application was also rejected by the trial Court. The appellant was also unsuccessful in the 6 AIR 1999 SC 1668 10 Dr.SA, J CRP No.4376/2018 revision before the High Court and the matter was carried to the Hon'ble Apex Court. The Hon'ble Apex Court, however, allowed the appeal granting leave to the appellant therein to adduce secondary evidence. The relevant observations are as under.
Having heard the learned Counsel for the parties, we are of the opinion that the trial Court was not justified in rejecting the prayer seeking leave of the Court for production of secondary evidence. The prayer has been rejected mainly on the ground that the copy of the rent note sought to be produced by the appellant was of doubtful veracity. The trial Court was not justified in forming that opinion without affording the appellant an opportunity of adducing secondary evidence. The appellant has alleged the original rent note to be in possession of the respondent. The case was covered by Clause (a) of Section 65 of the Indian Evidence Act, 1872."
17. In the instant case, as noted above, the petitioner- defendant has taken the specific stand that the original Wills, dated 14.06.1999 and 08.09.2000 are in the possession of the plaintiff and therefore, his claim to produce the secondary evidence is covered by clause (a) of Section 65 of the Act. Under these circumstances, the Photostat copies of the subject Will Deeds, dated 14.06.1999 and 08.09.2000, can be permitted to mark as secondary evidence, subject to proof and relevancy, as contemplated under Sections 68 and 69 of the Evidence Act, since the subject documents are Will Deeds. There is no hard and fast rule that a Photostat copy cannot be received in evidence. The only requirement is that a factual foundation has to be laid for adducing a Photostat copy as secondary evidence. As mentioned above, the revision petitioner/defendant had laid a clear foundation with regard to the adducing the Photostat copies of the subject Will Deeds, dated 14.06.1999 and 08.09.2000, as secondary evidence. The subject Will Deeds, 11 Dr.SA, J CRP No.4376/2018 dated 14.06.1999 and 08.09.2000, are also material documents. The factum of execution of the subject Will Deeds, as rightly contended by the learned counsel for the revision petitioner/ defendant, will certainly have a bearing over the final adjudication of the subject matter of the suit. In the cross- examination of P.W.1, he denied the execution of the subject will deeds dated 14.06.1999 and 08.09.2000 by late Dr. Vasudev Rao Jatkar. Further, possession of the same was also denied by him. Therefore, notice as contemplated under Section 66 of the Evidence Act, is waived. Even if notice was issued in terms of Section 66 of the Evidence Act, no purpose would have been served. There is no impediment to mark the Photostat copies of the subject Will Deeds, dated 14.06.1999 and 08.09.2000, as secondary evidence. The revision petitioner/defendant had satisfied the requirements contemplated under sub clauses (a) and (c) of Section 65 of the Evidence Act for adducing the subject Will Deeds, dated 14.06.1999 and 08.09.2000, as secondary evidence. Under these circumstances, the Court below ought to have permitted the revision petitioner/defendant to lead secondary evidence in respect of Photostat copies of the subject Will Deeds, dated 14.06.1999 and 08.09.2000. The order under challenge is unsustainable and is liable to be set aside.
18. In the result, the Civil Revision Petition is allowed and the impugned order, dated 10.07.2018, passed in I.A.No.903 of 2017 in O.S.No.1026 of 2013 by the X Additional Chief Judge, City Civil Court, Hyderabad, is set aside. The Court below is directed to receive the Photostat copy of the subject Will Deeds, 12 Dr.SA, J CRP No.4376/2018 dated 14.06.1999 and 08.09.2000, as secondary evidence. It is made clear that it is open for the respondents/plaintiffs to question the genuineness of the subject Will Deeds, dated 14.06.1999 and 08.09.2000, sought to be produced as secondary evidence, at the appropriate stage. It is further made clear that the observations and findings recorded in this order shall not have any bearing over the final determination of the subject matter of the suit in relation to the subject Will Deeds, dated 14.06.1999 and 08.09.2000.
Miscellaneous Petitions, if any, pending in this revision, shall stand closed. No order as to costs.
______________________ Dr. SHAMEEM AKTHER, J 05th March, 2020 Bvv