Lajwanti B. Madhwani vs Jayshree P. Madhwani
2016 Latest Caselaw 7197 Bom

                                   3-TS-6-2004-REPORTABLE.DOC




     JSN


                                                                      REPORTABLE




                                                                                    
                                                            
           IN THE HIGH COURT OF JUDICATURE AT BOMBAY
           TESTAMENTARY AND INTESTATE JURISDICTION
                     TESTAMENTARY SUIT NO. 6 OF 2004




                                                           
                                              IN
                TESTAMENTARY PETITION NO. 44 OF 1994




                                             
     Lajwanti W/o. Bhagwandas Madhwani                                        ... Plaintiff
           Versus            
     Smt. Jayshree P. Madhwani and others                                ...Defendants
                            
     Mr. Amit H. Yadav, for the Plaintiff.
     Mr. V.T. Lulla, for the Defendants.
      


                                   CORAM:        G.S. PATEL, J
   



                                   DATED:        14th December 2016
     PC:-

     1.

Heard.

2. The Plaintiff seeks to prove 21 documents separately compiled. The first of these is the certified copy of the registered

Deed of Assignment dated 25th March 1954. It has already been marked Exhibit "P1" in evidence.

3. The document at Sr. No.6 has been previously marked as Exhibit "P2".

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4. The Will of which probate is sought is dated 7th April 1972.

The Will is already marked in evidence as Exhibit "P3". I will, therefore, take up the remaining documents.

5. Mr. Yadav seeks to introduce the remaining documents in evidence to establish the signature and handwriting of the deceased

in view of the stand taken in the Caveat regarding his signature. To this end, the documents at Sr. Nos. 2, 3, 4, 7 to 16 and 18 to 20 are sought to be produced. The document at Sr. No.17 is a death

certificate. It will be marked in evidence in sequence.

6.

Mr. Lulla for the Defendants states that the documents at Sr. No. 8 (a photocopy of an agreement of October 1957) and Sr. No.20

(photocopies of old rent receipts) cannot be received in evidence simply because they are photocopies. In support he cites the decision of the High Court in Shiolalsing Gannusing Rajput v

Shankar Motiram Nale.1 This decision is of no assistance.

7. His next submission is that the Plaintiff must make a formal application by way of a Chamber Summons or a Notice of Motion

for leave to lead secondary evidence. This is entirely incorrect. Vazifdar J (as he then was) in a reported decision in Indian Overseas Bank v Trioka Textile Industries & Ors2 held that no such separate

application is either maintainable or even desirable:

2. A party desiring to lead secondary evidence must do so before the Judge recording the evidence. It

1 AIR 1984 Bom 19.

     2       2006 (6) Bom CR 85 : AIR 2007 Bom 24.



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is the Judge recording evidence who must decide, if any objection as raised, whether or not to admit the

secondary evidence in evidence. If evidence is led before a Commissioner the objection to secondary

evidence naturally can only be recorded and not decided by the Commissioner. It is then the Judge hearing the suit who decides the objection.

8. Thus, the application must be made before the court taking evidence and not by way of a separate application. I followed this decision, as I was bound to, in MMTC Ltd v Samarth Auto Care Pvt

Ltd.,3 Anandji Virji Shah & Ors v Ritesh Sidhwani & Ors,4 and

Ajaykumar Krishnaprasad Seth v Maya Ramesh Belvetkar & Anr.5 In Sumati & Ors v Yashodhara & Ors,6 Shukre J considered the ambit of

Section 65(c) of the Evidence Act, while considering the orders in Trioka Textile Industries and Anandji Virji Shah. The challenge to orders granting permission to lead secondary evidence failed, and

Shukre J followed both those decisions on the limited point that the application for leave to lead secondary evidence is not to be a

separate application but must be made to the judge or court taking evidence. It is not in dispute that the conditions of Section 65(c)

must be satisfied. This says that a party may give secondary evidence "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

3 Suit No. 427 of 1997, order dated 1st October 2014. 4 Chamber Summons No. 1153 of 2015 in Suit No. 395 of 2007, decided on 27th June 2016.

5 Chamber Summons No. 17 of 2016 in Testamentary Suit No. 18 of 2003, decided on 13th October 2016.

6 Writ Petition No. 5984 of 2015 (Nagpur Bench), decided on 16th September 2016.

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time." That application has to be made to the Court taking

evidence. It does not need to be in a particular form. It can be made across the bar. This is what Mr. Yadav and the Petitioner have done

in their Evidence Affidavit in the first place. Now these two items in question before me are indeed very old. They were to the knowledge of the deceased testator. The original of the document at Sr. No. 8 is

of 1957, nearly 60 years old, and the rent receipts at Sr. No.20 are also very old. It is hardly reasonable to expect the Plaintiff to have the originals and, in my view, the evidence affidavit sufficiently

makes out a cause for allowing in evidence these copies. It is also entirely fallacious to assume that no photocopy can ever be admitted

into evidence.

9. I am satisfied that no prejudice will be caused to the Defendants if these documents are admitted in evidence. They will, after all, have the fullest liberty in cross examining the Plaintiff on all

these documents. I will also expressly leave open all defences to the

Defendants, including disputing the correctness of the documents and submitting at the final hearing of the Suit that these documents do not either prove the handwriting or signature of the deceased and

that they are not relevant in that regard. Mr. Lulla accepts that this is sufficient protection for the Defendants, and especially since Mr. Yadav states unequivocally that he is not relying on the contents of

these documents but merely on the deceased's signature on them. In view of this, the documents at Sr. Nos. 2 to 4 and 7 to 20 are taken on record and marked in evidence as Exhibit "P4" to P20".

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10. The document that is sought to be introduced as the

document at Sr. No.21 is a certified copy of an Indemnity Bond. This document is not received in evidence. The deceased has not

signed it. Mr. Yadav says it is necessary only to show title. These proceedings are only concerned with proof of the Will, not title to any property. The document can have no relevance to the issues

framed in the Suit.

11. List the matter for directions and for fixing the date on 10th

January 2017.

                              ig                                   (G. S. PATEL, J.)
                            
      
   







                                       14th December 2016