Telangana High Court
Juluri Uma Maheswari vs Mittapalli Jayalakshmi on 5 December, 2018
THE HON'BLE SRI JUSTICE C.PRAVEEN KUMAR
CIVIL REVISION PETITION No. 6499 of 2018
ORDER:
1) Aggrieved by the order, dated 06.07.2018, passed in I.A.No.563 of 2018 in O.S.No.173 of 2010 on the file of the IV Additional District Judge, Guntur, wherein an application filed to de-exhibit Ex.A2-photostat copy of Will, dated 23.11.1996, was dismissed, the present Civil Revision Petition came to be filed.
2) The facts in issue are as under:
Respondents 1 to 4 herein filed the above suit seeking partition of plaint Item No.1 schedule property into four equal shares by metes and bunds and to allot one such share to the plaintiffs and for separate possession and for partition of pliant Item No.2 schedule property into six equal shares by metes and bounds and to allot one such share to the plaintiffs and for separate possession. Defendants 1 to 5 filed their written statement. PW.1 was examined and Exs.A1 and A2 were marked. When the suit was posted for cross-examination of PW.1, defendants 6 to 11, who are claiming right over the property, came on record and filed their written statement. At the time of 2 cross-examination of PW.1, and on verification of the documents filed by the plaintiff, the petitioners noticed that attested copy of the Will dated 23.11.1996 was marked as Ex.A2. Hence, they filed the above petition stating that without de-exhibiting Ex.A2-Will, they cannot cross- examine PW.1.
3) The plaintiffs filed counter contending that Ex.A2 was marked in the presence of defendants 1 to 3, who got notarized the Will and delivered the same to the plaintiff.
At the time of marking, defendants 1 to 3 did not question the admissibility of the said documents. In order to stall the proceedings the petitioners approached this Court and that the validity or otherwise of Ex.A2, is to be considered at the time of trial.
4) After considering the rival submissions, the trial Court dismissed the petition. Challenging the same, the present Civil Revision Petition came to be filed.
5) Learned counsel for the petitioners would submit that the petitioners came on record in the year 2018 and immediately thereafter raised objection with regard to marking of Ex.A2-xerox copy of the Will. He further submits that though the evidence of PW.1 was eschewed, but the document Ex.A2 marked through him, was not de-exhibited 3 by the trial Court. He also submits that Xerox copy of the Will cannot be marked as exhibit even as secondary evidence since the original is not produced before the Court.
6) Learned counsel for the plaintiffs would submit that the suit is of the year 2010 and the document was marked through PW.1 in the presence of defendants 1 to 4 and that no objection was raised by them at that point of time. He further submits that the original document is in the custody of the defendants 1 to 4 and in spite of repeated requests they have not produced the same but instead furnished the xerox copy of the Will. Hence, the plaintiffs marked the said Will as secondary evidence. He also submits that there is no provision in the CPC regarding de-exhibiting of a document which has been exhibited. He further submits that the admissibility or otherwise of the Will can be dealt with at a later point of time or at the time of final hearing.
7) As seen from the record, the sole ground urged by the learned counsel for the petitioners for de-exhibiting the Will, is that the same is Xerox copy and without producing the original, the Xerox copy of the Will cannot be marked. Further the petitioners were not on record when the said document was marked. The document now in question is no 4 doubt a xerox copy, but, the same was not suspected by defendant No.4 at the time of marking of the document. Since the document which sought to be de-exhibited is a Xerox copy of Will, the genuineness or otherwise of the document can be decided at later stage and that question is left open to be decided by the trial Court on evidence during the trial. Apart from that though the petitioners are not parties to the suit at the time of marking of Ex.A2-Will, but the other defendants, who are parties to the suit at the time of marking Ex.A2-Will, did not raise any objection with regard to marking of the said document. In Isra Fatima vs Bismillah Begum And another1 a learned Single Judge of this Court held that "it is settled principle of law that once a document is admitted in evidence, without objection, there cannot be any challenge as to its admissibility subsequently."
8) In the instant case, admittedly the suit is filed for partition basing on the partition deed dated 16.01.2007. It is pleaded in the plaint that in the partition deed there is a reference of the Will executed by Mittapalli Venkata Kotaiah on 23.11.1996, as such the plaintiffs marked the Xerox copy of the Will, since the original is in the custody of the defendants. Having regard to the fact that the 1 (2006) 4 ALT 216 5 document in question is already marked as Ex.A2 and the said document is filed for collateral purpose, I do not find any illegality in marking the Xerox copy of the Will as Ex.A2, as the marking is subject to reliability, admissibility and genuinty.
9) Accordingly, the Civil Revision Petition is dismissed. There shall be no order as to costs.
10) As a sequel thereto, Miscellaneous Petitions pending if any, shall stand closed.
________________________ JUSTICE C.PRAVEEN KUMAR 05.12.2018 gkv