Madras High Court
Rajathi vs Arukkani Ammal on 25 January, 2001
Equivalent citations: (2001)2MLJ364
Author: F.M. Ibrahim Kalifulla
Bench: F.M. Ibrahim Kalifulla
ORDER
1. This revision petition has been preferred against the order of the court below dated 29.3.2000 made in I.A.No.23 of 2000 in O.S.No.22 of 1994, rejecting the petitioner's application to receive the document styled as partition list between one Ganapathy Udayar and his sons dated 10.6.1992 as the secondary evidence. The court below while rejecting the application was of the view that the said document was not a registered one, that when no share was allotted to the respondent as per the said document, and the said document said to have been contained thump impression of the respondent, it is doubtful as to whether the document would bind the respondent, that the document does not disclose as to with whom the original has been entrusted, that the contents of the said document can be proved only by examining the persons who are concerned with the said document, that the said document can be proved only by examining the vendor of the petitioner namely, Mr.Ravichandran and therefore, the said document cannot be accepted as the secondary evidence under Section 65 of the Indian Evidence Act. Assailing the said order of the court below, learned counsel for the petitioner contended that while rejecting the petitioner's application to receive the document in question, the court below unnecessarily went into the merits of the document, that when the vendor of the petitioner was not cooperating in the matter of production of original, the petitioner had no other option, except to rely upon the said document as the secondary evidence by marking a photo copy of it, that marking of the said document, subject to proof, would not have caused any prejudice to the respondent, that the petitioner complied with the provision under Section 66 of the Indian Evidence Act and therefore, he was entitled to rely upon the said document, by virtue of application or the provision under Section 65(a) of the Indian Evidence Act.
2. As against the said contention, learned counsel for the respondent would contend that when the respondent was not allotted any share under the document in question and in the absence of issuance of notice to the vendor of the petitioner namely, Mr.Ravichandran, it cannot be held that the petitioner has complied with the provision under Section 66 of the Indian Evidence Act, that admittedly no share was allotted as per the document in question to the respondent, in such circumstances, when the thumb impression of the respondent was not required, it how it is claimed that the document in question contains the thumb impression of the respondent. According to the learned counsel the said document being not registered one, the original itself could not have been admitted in evidence and therefore, a photo copy of the said document cannot be permitted to be taken. According to the learned counsel, at best, the said document can be proved only through Mr.Ravichandran.
3. The prayer of the petitioner in the application was only to receive the document by way of secondary evidence. The relevant part of Section 65 of the Indian Evidence Act reads as under:-
" Cases in which secondary evidence relating to documents may be given. Secondary evidence may be given of the existence, condition or contents or a document in the folio wing-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 or 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;"
The provision under Section 65 of the Indian Evidence Act rulers that one who propose to rely upon a document by invoking Section 65(a) of that Act should give proper notice to the person concerned to produce it before the court. It is not in dispute that there was a notice issued to the respondent herein under Section 66 of the Indian Evidence Act for the production of the original of the ' document in question. It is also not in dispute that the respondent came forward with the reply to the notice that there is no scope for producing the original, inasmuch as according to the respondent, there is no such document in existence. The expression used under Section 65(a) of the Indian Evidence Act is; when the original is shown or appears to be in the possession or power...... .of any person legally bound to produce it. The statute does not say specifically show that for the purpose of invoking Section 65(a) of the Act, one should assert that the document in question is, in the possession of the party concerned. It is sufficient, if the petitioner is able to demonstrate that'the said, document is appeared to have been possessed or by the concerned person. The whole basis of which the petitioner laid the suit was that there was a partition between the respondent and the other members of her family including the first defendant namely, Ravichandran, that it was by virtue of the said partition entered into between the parties, the suit schedule property fell, to the share of the said Ravichandran, who in turn conveyed to the petitioner. According to the petitioner, at the time of the execution of the sale deed by the said Ravichandran in favour of the petitioner, the original partition deed was produced and shown to the petitioner by the vendor. Therefore, going by the above factors, it is beyond doubt that every facet of clause (a) of Section 65 of the Indian Evidence Act is fully satisfied in the case on hand.
Therefore, there should not be any impediment for the court below to receive the document in question subject to the proof of the said document, so as to rely upon the same at later point of time, I am of the view that to reject the receipt of the very document at the threshold, under the facts and circumstances of the case is totally unjustified and not in accordance with law.
In fact as contended by the learned counsel for the petitioner, the court below unfortunately concentrated it's whole attention towards the validity of the said document, instead of finding out as to whether it could be received as secondary evidence under Section 65(a) of the Indian Evidence Act. The mere receipt of the said document subject to the proof as rightly contended by the learned counsel for the petitioner would not, in any way, cause prejudice to the respondent.
4. In the result, this revision petition is allowed. The order impugned in this petition is set aside. The court below is directed to receive of it the document, subject to proof/by the petitioner in the manner known to law. No costs. Consequently, no order is necessary in C.M.P.No. 13951 of 2000.