HON'BLE SRI JUSTICE A.SANTHOSH REDDY
C.R.P.No.5764 of 2018
ORDER:
This Civil Revision Petition is directed under Article 227 of Constitution of India aggrieved by the order dated 08.12.2017 passed in I.A.No.153 of 2017 in O.S.No.175 of 2011 on the file of XXVI Additional Chief Judge, City Civil Court at Hyderabad.
2. During the pendency of revision, since the petitioner died, his legal representatives were brought on record as petitioner Nos.2 to 7.
3. Petitioner No.1, who is the father of petitioner Nos. 2 to 7 filed above suit for cancellation of gift settlement deed, dated 14.11.2007, Will deed dated 29.11.2007 and affidavit dated 17.12.2007 as sham, bogus, null and void and also for partition of schedule D to L properties etc., Written statement was filed by respondents opposing the suit claim and contending that the suit is bad on account of territorial jurisdiction and the property mentioned in the schedule L is not a joint family property and the second respondent admitted that there was an agreement 2 dated 05.06.1989 and the properties shown therein were partitioned and decided between the families. Sri L.K.Sivappa, brother of petitioner No.1 was the owner of the property and was entitled to deal with the same and had executed a gift settlement deed in favour of respondent No.11 and also executed a Will in respect of the property.
4. Petitioner No.1 filed I.A.No.153 of 2017 under Section 65 of the Indian Evidence Act, 1872 (for short "the Act") seeking permission of the Court to permit him to mark the documents i.e. copy of memo of partition, dated 15.06.1989, and a copy of affidavit dated 17.12.2007 as secondary evidence.
5. In the affidavit filed in support of the said application, it was contended that at the time of filing of the suit, he filed Xerox copy of memo of partition dated 15.06.1989 and Xerox copy of affidavit dated 17.12.2007. It is also stated that the said two original documents are in possession of respondent No.2. But with malafide intention, respondent No.2 denied the said documents, which are in his custody and failed to produce the same. Therefore, petitioner No.1 contended that he may be permitted to 3 lead secondary evidence and to receive the Xerox copies of the said documents as secondary evidence.
6. Counter affidavit was filed by respondent No.2 opposing the said application. He denied that there was any partition deed, dated 15.06.1989, or it was in his custody. Therefore, there is no question of suppressing the said document. Having considered the contentions of both sides, the trial Court by order, dated 08.12.2017, dismissed the said application holding that the documents produced by the first petitioner are Xerox copies of partition deed and partition agreement, which are unregistered and for want of registration, they are in admissible in evidence and they cannot be treated as secondary evidence under Section 65 of the Act. Assailing the said orders, this civil revision petition is filed.
7. Learned counsel for the petitioners contends that the Court below erred in holding that the Xerox copy of partition deed dated 05.06.1989 cannot be received as secondary evidence.
8. Learned counsel for the respondents refuted the said contention and submits that the secondary evidence is admissible in 4 the absence of primary evidence and further submits that Section 65 of the Act permits secondary evidence to be given of the existence, condition or contents of documents and the conditions laid down in the said Section must be fulfilled before secondary evidence can be admitted. He further submits that there was no original of the memo of partition deed and as such, the trial Court has rightly refused to receive the documents and dismissed the petition.
9. In the instant case, petitioner No.1 has laid the foundation that they have entered into oral partition and got drawn a partition memo dated 05.06.1989 between K.Shivappa, K.N.Bhumanna and K.Ch.Bhumanna, petitioner No.1 herein. Respondent Nos.1, 2, 3, 6 are the sons and respondent No.5 is the daughter of Shivappa. Respondent No.2 in the counter affidavit specifically denied the existence of memo of partition and the said documents cannot be received nor can be looked into by way of secondary evidence as they are only Xerox copies. However, petitioner No.1 has mentioned about the memo of partition in the plaint pleadings and also in the affidavit filed in support of the application filed to 5 receive Xerox copies of memo of partition deed and affidavit as secondary evidence.
10. Chapter V of the Act mandates that the contents of the documents can be proved through primary or secondary evidence. It is true that by and large, the documents themselves in their original form are permitted to be received in evidence. However, instances are not lacking when it becomes impossible for the parties to place the primary evidence before the Court. Section 63 of the Act classifies the secondary evidence into various categories. The circumstances, under which the secondary evidence can be received, are enunciated under Section 65 of the Act.
11. Section 63(2) of the Act recognizes copies made from original by mechanical process, which ensures the accuracy of the copy as one of the categories of secondary evidence. The trial Court did not express any doubt as to the authenticity of the Xerox copy of the document placed by the petitioners, since it was the reproduction through a mechanical process. Further, the petitioners have already pleaded in the plaint and filed Xerox copies of two documents along with the plaint at the time of filing of the suit. 6 Apart from that, a notice was also issued to learned counsel for the second respondent under Section 66 of the Act for production of original memo of partition dated 15.06.1989 and original affidavit dated 17.12.2007, which are alleged to be in the custody/possession of the second respondent. However, the second respondent denied the same. The second respondent failed to produce the original document and there was no response to the notice issued to his counsel on 06.07.2015. Thereby, the circumstances, provided for under Section 65(a) of the Act emerge, enabling the Court to receive the secondary evidence.
12. It is not in dispute that the trial Court did not receive the Xerox copy of memo of partition, dated 15.06.1989, for want of registration of the same and the same was not received as secondary evidence. Whatever be the reason for non-registration of document, which is required in law to be registered, it can not be received in evidence to prove the transaction. However, under the provisions of Indian Registration Act, 1908, it can be received for collateral purpose viz., to establish the severance of status and nature of possession.
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13. In Amangenti Prameela v.P.Venkat Reddy (Died) by Lrs1, this Court held at para No.11 as under:
" A partition gives rise to or brings about three phases or legal consequences viz., (a) severance of status, (b) stipulation of condition of partition, and (c) indicating the nature of possession. Through a catena of decisions, this Court held that existence of a registered document is necessary only for the second aspect indicated above and that the other two aspects can be established even through an unregistered documents. It is in this context that an unregistered partition deed becomes admissible in evidence for collateral purposes viz., to establish the severance of status and nature of possession. Reference in this context can be made to the Judgment of this Court in Pattapothu Naga Prasad v. Pallapothu Venkata Krishna Rao2. Even if the document referred to above cannot be received in evidence to establish the factum of partition as such, it can be received in evidence for collateral purposes as indicated above. Therefore, there did not exist any basis for the Trial Court in refusing to receive the said document. It is not as if the receiving of documents is going to establish any facts by itself. The respondents can rebut the same by leading oral and documentary evidence."
14. The observations of this Court in the above judgment squarely apply to the facts and circumstances of the present case. Therefore, permitting the trial Court to receive Xerox copies of documents stated supra does not mean that it establishes the factum of partition as such, it can be received in evidence for collateral purposes, as the respondents are at liberty to rebut the contents of 1 2004 (3) ALD 66 2 2003(1) ALD 251 8 memo of partition by leading evidence oral and documentary if required. Therefore, the order impugned warrants interference.
15. In view of the above reasons, the Civil Revision Petition is allowed. The order impugned in I.A.No.153 of 2017 in O.S.No.175 of 2011 is hereby set aside. Consequently, I.A.No.153 of 2017 stands allowed. The trial Court is directed to receive the documents as secondary evidence, subject to any rebuttal by the respondents. There shall be no order as to costs. Miscellaneous applications, if any, pending shall stand closed.
_______________________ A.SANTHOSH REDDY, J 11.10.2022 Nvl