4.
By this petition, the petitioners-original plaintiffs have
2016(6) ALL MR 507
IN THE HIGH COURT OF JUDICATURE AT BOMBAY (NAGPUR
BENCH)
S. B. SHUKRE, J.
Smt. Sumati @ Asha w/o. late Anil Subhedar & Ors. Vs.
Yashodhara w/o. late Sunil Subhedar & Ors.
Writ Petition No.5984 of 2015
16th September, 2016.
Petitioner Counsel: Shri S.V. BHUTADA
Respondent Counsel: Shri S.P. DHARMADHIKARI, Sr. Adv. along
with Shri A.G. GHAROTE and Shri A.M. DESHPANDE
Evidence Act (1872), S.65(c) - Secondary evidence - Grant of
permission to adduce photostat copy of will - Without recording
satisfaction of Court about existence or otherwise of Will - Legality
- Impugned order is only grant of permission to adduce secondary
evidence which has not been admitted in evidence so far - Stage of
fulfillment of necessary conditions of existence or execution of
original document is yet to arrive and will arrive when parties stand
before Court for admitting and exhibiting such evidence - Failure to
record satisfaction of Court about existence or otherwise of will,
has not caused any prejudice to rights of petitioners - In fact,
recording of such finding at this stage would be premature - No
illegality in impugned order. 2007(3) ALL MR 823 (S.C.), 2014(5)
ALL MR 589, 2007(5) ALL MR 554, 2008(3) ALL MR 629 Ref. to.
(Para 13)
Cases Cited:
J. Yashoda Vs. K. Shobha Rani, 2007(3) ALL MR 823 (S.C.)=(2007) 5
SCC 730 [Para 8,11]
H. Siddiqui (dead) by Lrs. Vs. A. Ramalingam, 2011(2) ALL MR 938
(S.C.)=(2011) 4 SCC 240 [Para 8,11]
Luis Sales de Andrade e Souza (Jr.) & Anr. Vs. Jijabai Namdev
Satardekar & Ors., 2014(5) ALL MR 589 [Para 8,11]
Yeshwant Rambhau Chondhe Vs. Vilas Bapurao Shinde, 2007(5)
ALL MR 554 [Para 8,11]
Indian Overseas Bank Vs. M/s. Trioka Textile Industries and Ors., AIR
2007 Bom. 24 [Para 8,11]
Anandji Virji Shah & Ors. Vs. Ritesh Sidhwani & Ors., Chamber
Summons No.1153/2015 in Suit No.395/2007, Dt.27.06.2016 [Para
8,11]
Bank of Baroda, Bombay Vs. Shree Moti Industries, Bombay & Ors.,
2009(1) Mh.L.J. 282 [Para 8,11]
Ganpat Pandurang Ghongade & Ors. Vs. Nivrutti Pandurang
Ghongade, 2008(3) ALL MR 629=2008(5) Mh.L.J. 153 [Para 8,11]
M. Chandra Vs. M. Thangamuthu & Anr., 2011(4) ALL MR 445
(S.C.)=(2010) 9 SCC 712 [Para 9,11]
JUDGMENT
JUDGMENT :- Heard.
2. Rule. Rule made returnable forthwith.
3. Heard finally by consent of learned counsel appearing for
the parties.
challenged the legality and correctness of the order dated
20th July, 2015 passed by the Joint Civil Judge, Senior
Division, Nagpur, below Exh.-209 in Special Civil Suit
No.126/2006 thereby allowing the application for adducing
the secondary evidence in respect of Will dated 6.11.1997
and also the order passed by the same Court on 2nd
September, 2015 refusing to review the order dated 20th
July, 2015.
5. The petitioners filed civil suit being Special Civil Suit
No.126/2006 seeking reliefs of declaration and permanent
and mandatory injunction. In this suit, the respondent Nos.1
to 6 are the original defendants. The respondents appeared
before the trial Court and filed their written statement. The
respondent Nos.1 to 3 along with their written statement also
filed counter claim seeking 1/4th share in the suit property.
They also filed an application for amendment of their written
statement and counter-claim which came to be allowed by
the trial Court. Upon completion of the pleadings issues were
framed and the petitioners led their evidence. When the
case was pending at the stage of respondents/defendants'
evidence, the respondent Nos.1 to 3 moved an application
under Section 65 of the Indian Evidence Act, 1872 (in short,
"the Evidence Act") for permission to lead secondary
evidence in respect of photostat copy of Will of late Smt.
Sushila wd/o. Kashinath Subhedar dated 6.11.1997. The
application was marked as Exh.-209. It was claimed in the
application that the original Will was handed over by late
Smt. Sushila Subhedar to her son late Shri Sunil Subhedar
and its copies were supplied to her other sons which fact
was mentioned in the Will. One of the sons to whom such a
copy was supplied was the respondent No.4 Shri Subhash
Subhedar. The respondent Nos.1 to 3 claimed that the
respondent No.2 had searched belongings of late Shri Sunil
Subhedar for the original Will, however, could not find it. The
petitioners filed their reply to the application marked as
Exh.-209 thereby strongly opposing it. They contended that it
was contrary to the mandate of Section 65 of the Evidence
Act. However, after hearing both sides, learned Joint Civil
Judge, Senior Division, Nagpur allowed the application by
his order passed on 20th July, 2015. The review of this order
was sought by the petitioners, but it was turned down by the
learned Joint Civil Judge, Senior Division, Nagpur by his
order passed on 2nd September, 2015.
6. Being aggrieved by both these orders, the petitioners are
before this Court through this petition.
7. I have heard Shri Bhutada, learned counsel for the
petitioners, Shri S.P. Dharmadhikari, learned senior counsel
along with Shri Gharote and Shri A.M. Deshpande, learned
counsel for the respondent Nos.1 to 3.
8. Learned counsel for the petitioners submits that the
impugned orders are bad in law for the reason that even
though the condition necessary for adducing of secondary
evidence, the condition of proving of foundational facts of
existence of a document and its loss or destruction, has not
been fulfilled by the respondent Nos.1 to 3. He further
submits that the trial Court has erred in law by only saying
that prima facie there might be in existence the alleged Will
dated 6.11.1997 when in fact the law requires an unequivocal
finding regarding satisfaction of the Court that the original
document does exist or does not exist owing to its loss or
destruction. He submits that the stands taken by the
respondent Nos.1 to 3 and respondent No.4 are
contradictory and the respondent No.4 by his own admission
ought to have been held as not speaking the truth before the
Court. He points out that in the agreement to sell dated 4th
November, 2005, in respect of which a declaration that it is
bad in law has been sought, executed between the
respondent Nos.1 to 4 on the one hand and respondent
Nos.5 and 6 on the other, the respondents in the recital parts
have clearly admitted that Smt. Sushila Kashinath Subhedar
left intestate for heavenly abode on 15.12.2001, leaving
behind her four sons, namely, Shri Sunil, Shri Anil, Shri
Subhash- vendor No.1 in the agreement and Shri Nishikant,
who jointly inherited the property in question together with
house structure thereon by intestate succession as per Hindu
Succession Act 1956. He further submits that the trial Court
has committed a grave error of law in not recording a clear
cut finding about the existence or otherwise of the original
Will. He also submits that the secondary evidence sought to
be led is in respect of a photostat copy of the copy of the
alleged original Will, which could not have been adduced in
evidence. Thus, he urges that the impugned orders be
quashed and set aside. He places his reliance upon the
following cases :
(1) J. Yashoda vs. K. Shobha Rani, reported in (2007) 5
SCC 730 : [2007(3) ALL MR 823 (S.C.)],
(2) H. Siddiqui (dead) by Lrs. vs. A. Ramalingam
reported in (2011) 4 SCC 240 : [2011(2) ALL MR 938
(S.C.)],
(3) Luis Sales de Andrade e Souza (Jr.) & Anr. vs.
Jijabai Namdev Satardekar and others, reported in
2014(5) ALL MR 589,
(4) Yeshwant Rambhau Chondhe vs. Vilas Bapurao
Shinde, reported in 2007(5) ALL MR 554,
(5) Indian Overseas Bank vs. M/s. Trioka Textile
Industries and Ors., reported in AIR 2007 Bombay 24,
(6) Anandji Virji Shah and others vs. Ritesh Sidhwani
and others order passed by this Court on 27th June, 2016,
in Chamber Summons No.1153/2015 in Suit No.395/2007,
(7) Bank of Baroda, Bombay vs. Shree Moti Industries,
Bombay and others, reported in 2009(1) Mh.L.J. 282,
(8) Ganpat Pandurang Ghongade and others vs.
Nivrutti Pandurang Ghongade, reported in 2008(5)
Mh.L.J. 153 : [2008(3) ALL MR 629].
9. Shri S.P. Dharmadhikari, learned Senior Counsel submits
that the impugned orders are legal and correct as they
consider the admitted facts and properly come to the
conclusion that there may be in existence Will dated
6.11.1997 executed by deceased Sushila which now is not
traceable. He submits that the respondent Nos.1 to 4, in their
written statements have taken the necessary pleadings and
that the notice to produce documents issued by the
petitioners to the respondents and the notice to produce the
documents issued by the respondent No.4 to the petitioners
clearly indicate the fact that the parties admit existence and
execution of the Will in question and, therefore, the
necessary foundation has already been led. He further
submits that there is no restriction in law on the form in
which secondary evidence must be led. He submits that it
could be in any form, like photostat copy of a copy of the
original document, duplicate copy of the copy of the original
document, oral evidence of the contents or in any other form
and that the only prerequisites are that the secondary
evidence must be authenticated by the foundational
evidence about existence and loss of the original and the the
alleged copy being a true copy of the original, which can
always be done at the time of adducing of the evidence. He
places his reliance upon the case of M. Chandra vs. M.
Thangamuthu and another, reported in (2010) 9 SCC 712 :
[2011(4) ALL MR 445 (S.C.)].
10. Having regard to the nature of controversy involved the
question that arises in this petition is: Whether the stage of
proving the foundational facts necessary for leading of the
secondary evidence of the original Will has arrived now ?
Before answering the question, it would be appropriate to
know what could be the foundational facts from the
perspective of this case. They could be ascertained from
Section 65(c) of the Indian Evidence Act 1872 which lays
down that secondary evidence may be given of the
existence, condition or contents of a document 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.
11. In the cases relied upon by the learned counsel for the
petitioners and referred to in the earlier paragraphs, it has
been held that for adducing secondary evidence it is
necessary for the party to prove existence and execution of
the original document and that conditions laid down in
Section 65 must be fulfilled before secondary evidence can
be admitted. This can be seen from the law settled by the
Hon'ble Apex Court in the cases of J. Yashoda, [2007(3) ALL
MR 823 (S.C.)] and H. Siddiqui, [2011(2) ALL MR 938 (S.C.)]
(supra). Following this law only that learned Single Judges of
this Court in the judgments rendered in Luis Sales de
Andrade e Souza (jr.) & Anr. (supra) and Yeshwant Rambhau
Chondhe (supra) have held that foundational evidence must
be led and the Court should record a satisfaction on the
basis of such evidence that the originals are lost or
destroyed before admitting the secondary evidence. In the
cases of Indian Overseas Bank (supra) and Anandji Virji
Shah (supra), learned single judges of this Court have held
that any objection to secondary evidence must be decided
by the Judge recording the evidence. In the cases of Bank of
Baroda (supra) and Ganpat Ghongade, [2008(3) ALL MR
629] (supra) learned Single Judges of this Court have
followed the settled principle of law regarding necessity of
proving the existence and execution of the original
document before secondary evidence is admitted. In the
case of M. Chandra, [2011(4) ALL MR 445 (S.C.)] (supra), the
Hon'ble Apex Court has cleared doubt about the form of
secondary evidence holding that it may be adduced in any
form in which it is available, whether a copy, or copy of copy
or any other form subject to the condition that the copy is
proved to be a true copy of the original. Hon'ble Supreme
Court also observed that the exceptions to the rule requiring
primary evidence are designed to provide relief in a case
where a party is genuinely unable to produce the original
though there is no fault on its part.
12. The law discussed above would show that in order that
secondary evidence is admitted, form of the secondary
evidence is not material, it could be in any form as for
example copy or duplicate copy of the copy of the original
document, oral evidence or any other form and that three
conditions, which constitute foundational facts, must be
fulfilled while pressing into service the provision of Section
65(c) of the Indian Evidence Act, namely, (a) the original
document is in existence and has been executed by its
executants, (b) it has been lost or destroyed or cannot be
produced in reasonable time for any other reason not arising
from own default or neglect of the party leading secondary
evidence, and (c) the copy is the true copy of the original.
If these conditions or any one of them are or is not proved,
the secondary evidence cannot be admitted.
13. In the instant case, what has been done by the impugned
orders is only grant of permission to adduce secondary
evidence. The secondary evidence, which is a copy of
photostat copy of the original Will has not been admitted in
evidence so far. For such secondary evidence to be
admitted, the party interested in adducing the secondary
evidence would have to satisfy the above referred
conditions by leading necessary evidence in that regard. So,
the party would be required to be given an opportunity to
lead necessary evidence in order to satisfy the Court about
fulfilling of the necessary conditions so that the Will in
question can be admitted in evidence and marked as an
exhibit. That stage has not reached so far. As and when it
reaches, the petitioners will have all the opportunity to prove
the respondent Nos.1 to 3 wrong or satisfy the Court that the
Will in question in fact does not exist and that it has never
been executed by late Smt. Sushila. Therefore, learned Joint
Civil Judge, Senior Division has rightly held that, by allowing
the application granting permission to adduce secondary
evidence, no prejudice would be caused to the rights of the
petitioners. The petitioners would certainly have a right to
controvert the respondent Nos.1 to 3 as well as respondent
No.4 when they will say, subject to necessary pleadings, that
the original Will dated 6.11.1997 is in existence and has been
lost for the reasons not known to them. Therefore, failure to
record a clear cut finding regarding satisfaction of the Court
about existence or otherwise of the Will in question has not
caused any prejudice to the rights of the petitioners and in
fact recording of such a finding at this stage would have
been premature. After all the parties are required to be
given full opportunity for proving their respective
contentions and this is what seems to be the import and
effect of the impugned orders. Then, giving of permission to
adduce secondary evidence by itself would not lead to an
inference that secondary evidence has been admitted. As
stated earlier, for admitting the secondary evidence the
necessary conditions must be fulfilled and the stage of
fulfillment of those conditions or otherwise is yet to arrive
and will arrive when the parties stand before the Court for
adducing necessary evidence.
14. It may be true that in the agreement to sell dated 4th
November, 2005 there may be some admissions given by
respondent Nos.1 to 4, indicating that late Smt. Sushila died
intestate and that these respondents along with late Shri
Anil jointly inherited the property involved in dispute
together with house structure thereon by intestate
succession as per Hindu Succession Act, 1956. It may also be
true that the respondent No.4, when he submitted an
application dated 14.9.2004 to the assessor Nagpur
Municipal Corporation, Nagpur praying for mutating the
names of all the legal representatives in the record of the
Nagpur Municipal Corporation, Nagpur did not make any
mention of the Will dated 6.11.1997 of Smt.Sushila. It is also
true that when the written statement dated 29.4.2006 was
filed by the respondent Nos.1 to 3, they did not mention
anything about the date of Will of Smt. Sushila as being of
6.11.1997. It may also be that their pleadings, might be
suggesting as these respondents having knowledge about
the Will of late Smt. Sushila and yet no specific pleading was
raised then that inspite of their best of efforts, they could
not trace out the Will. It may also be true that in the
amendment application dated 29.10.2004, there is no
pleading raised in a specific manner that the Will in question
has been lost. But, one cannot lose sight of the fact that as
against these circumstances, there also exist some other
circumstances, as for example, stand of respondent Nos.1 to
4 about existence of Will in question and exchange of
notices between the parties on production of the Will in
question, which would warrant appreciation of all the facts
and circumstances together on merits of the case. That
would be possible only when the evidence is actually
adduced to prove the existence of conditions so necessary
for admitting secondary evidence.
15. With such facts and circumstances of the case, in my
opinion, the parties will have to be given full opportunity to
prove or disprove the conditions necessary for admitting
secondary evidence at the time of actually adducing
evidence, which stage is yet to arrive. The question is
answered accordingly.
16. A word of caution, at this stage, seems necessary.
Considering the pleadings and the counter-pleading of the
parties, a care would have to be taken by the trial Court in
recording its finding regarding admitting or not admitting
the secondary evidence then and there only so that the
aggrieved party can take necessary steps in the matter.
Recording of such a finding before admitting or refusing to
admit the secondary evidence immediately would also go a
long way in preventing prejudice being caused to either of
the parties.
17. In the result, I see no illegality or incorrectness in the
orders impugned herein. Writ petition, therefore, deserves to
be dismissed in the light of the observations made herein
above.
18. Writ Petition stands dismissed.
19. However, the learned Joint Civil Judge, Senior Division, 20. Rule is discharged accordingly. No costs.
Nagpur shall bear in mind the observations made in this
petition while admitting or refusing to admit the secondary Petition dismissed.
evidence in respect of alleged Will date 6.11.1997.