Bombay High Court
Smt. Sumati @ Asha W/O Late Anil ... vs Yashodhara W/O Late Sunil ... on 16 September, 2016
Bench: S.B. Shukre
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR
WRIT PETITION No.5984 OF 2015
1. Smt. Sumati @ Asha w/o. Late Anil Subhedar,
Aged 67 years,
Occupation : Retired.
2. Deodatta s/o. Late Anil Subhedar,
Aged 42 years,
Occupation : Self Employed.
3. Nishikant s/o. Late Kashinath Subhedar,
Aged 68 years,
Occupation : Service.
Resident of Q-21, Laxminagar,
Nagpur-440 022. : PETITIONERS
...VERSUS...
1. Yashodhara w/o. Late Sunil Subhedar,
Aged adult,
Occupation : Retired.
2. Rutvik s/o. Late Sunil Subhedar,
Aged adult,
Occupation : Advocate.
Sr. No.1 and 2 resident of 82, Laxmi Nagar,
Nagpur.
3. Smt. Gayatri w/o. Amit Pande,
Aged adult,
Occupation Housewife,
R/o. 7, Bhagwaghar Layout, Dharampeth,
Nagpur.
4. Subhash s/o. Late Kashinath Subhedar,
Aged Adult, Occupation Retired,
R/o. N-5, Shreerang Apartments,
Laxmi Nagar, Nagpur.
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5. Satish s/o. Sudarshan Lade,
Aged Adult,
Occupation : Business.
6. Smt. Pratibha w/o. Satish Lade,
Aged Adult,
Occupation : Business.
Sr. No.5 & 6, Resident of Plot No.4,
Public Co-operative Housing Society,
Atre Layout, Nagpur-440 022. : RESPONDENTS
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Shri S.V. Bhutada, Advocate for the Petitioners.
Shri S.P. Dharmadhikari, Senior Advocate along with Shri A.G. Gharote and
Shri A.M. Deshpande, Advocate for the Respondent Nos.1 to 3.
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CORAM : S.B. SHUKRE, J.
th
DATE : 16
SEPTEMBER, 2016.
ORAL JUDGMENT :
1. Heard.
2. Rule. Rule made returnable forthwith.
3. Heard finally by consent of learned counsel appearing for the
parties.
4. By this petition, the petitioners-original plaintiffs have
challenged the legality and correctness of the order dated 20 th 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
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also the order passed by the same Court on 2 nd 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 1/4 th 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
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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 20 th 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
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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 4 th 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,
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(2) H. Siddiqui (dead) by Lrs. vs. A. Ramalingam
reported in (2011) 4 SCC 240,
(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
ig 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.
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
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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.
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
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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 and H. Siddiqui (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 (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 (supra), the
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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
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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
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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 4 th
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
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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
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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,
Nagpur shall bear in mind the observations made in this petition while
admitting or refusing to admit the secondary evidence in respect of
alleged Will date 6.11.1997.
20. Rule is discharged accordingly. No costs.
JUDGE
okMksns
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