Sri Muni Reddy vs Smt Sarojamma
2022 Latest Caselaw 11406 Kant

     IN THE HIGH COURT OF KARNATAKA AT BENGALURU

         DATED THIS THE 17TH DAY OF AUGUST, 2022

                          BEFORE

         THE HON'BLE MRS. JUSTICE K.S. HEMALEKHA

        WRIT PETITION No.16305/2018 (GM-CPC)

BETWEEN:

1.     SRI MUNI REDDY
       S/O. LATE CHIKKAMUNISWAMAPPA,
       AGED ABOUT 74 YEARS,
       R/AT NO.25, 1ST CROSS,
       BHUVANAPPA LAYOUT,
       TAVAREKERE MAIN ROAD,
       D.R.C. POST,
       BANGALORE - 560 029.

       SRI S.M. JEEYANNA REDDY,
       SINCE DECEASED REP. BY HIS LR's,

2.     SMT. GEETHA JAYARANNA REDDY,
       W/O. S.M. JEEYANNA REDDY,
       AGED ABOUT 55 YEARS,

3.     SMT. J. JAYANATHI REDDY
       D/O. LATE SRI S.M. JEEYANNA REDDY,
       AGED ABOUT 27 YEARS,

4.     SRI J. MITHESH KUMAR
       S/O. LATE SRI S.M. JEEYANNA REDDY,
       AGED ABOUT 24 YEARS,

       PETITIONER 2 TO 4 ARE
       RESIDING AT NO.14, 3RD A CROSS,
       21ST MAIN, BTM LAYOUT,
       1 PHASE, II STAGE,
       BANGALORE - 560 076.                 ... PETITIONERS

(BY SRI B. SHARATH KUMAR, ADVOCATE)
                           -2-



AND:

1.     SMT. SAROJAMMA
       W/O. LATE S.M. CHANDRAPPA,
       MAJOR IN AGE,
       R/AT NO.3, 1ST MAIN ROAD,
       SUDDAGUNTEPALYA, D.R.C. POST,
       BANGALORE - 560 029.

2.     SRI LOKANATH ALIAS LOKANATH REDDY
       S/O. LATE CHIKKAMUNISWAMAPPA,
       MAJOR IN AGE,
       R/AT NO.39, 2ND CROSS,
       KAVERI HOUSE BUILDING
       CO-OPEATIVE SOCIETY LAYOUT,
       D.R.C. POST, BANGALORE - 560 029.

3.     SMT. VIDYAVATHY A. SHETTY
       W/O. SRI ASHOK SHETTY,
       MAJOR IN AGE,
       R/AT NO.164/D,
       II MAIN ROAD, SESHADRIPURAM,
       BANGALORE - 560 020.

4.     SRI K.N. RAO
       S/O. LATE K.V. RAO,
       MAJOR IN AGE,
       R/AT NO.2, LAKE VIEW,
       DEFENCE COLONY, JALAHALLI WEST,
       BANGALORE - 560 015.

5.     SRI N.H. SHIVAMURTHY
       S/O. LATE HANUMANTHAPPA,
       AGED ABOUT 48 YEARS,

6.     SRI A. KRISHNA MURTHY
       S/O. LATE HANUMANTHAPPA,
       AGED ABOUT 40 YEARS,

       RESPONDENT NOS.5 AND 6 ARE
       RESIDING AT NO.96,
       NAGENAHALLI,
                           -3-


     SINGANAYAKANAHALLI POST,
     YELAHANKA HOBLI, BANGALORE,
     NORTH TALUK - 560 064.

7.   S.C. DASUARATHA
     S/O. LATE S.M. CHANDRAPPA,
     AGED ABOUT 38 YEARS,
     R/AT SITE NO.27, 7TH CROSS,
     MARUTHINAGAR,
     MAIN ROAD, MADIVALA,
     BANGALORE - 560 068.

8.   SRI S.C. THRIBHUVANESH
     S/O. LATE S.M. CHANDRAPPA,
     AGED ABOUT 36 YEARS,
     R/AT NO.3, 1ST MAIN ROAD,
     SUDDAGUNTEPALYA,
     D.R.C. POST,
     BANGALORE - 560 029.

9.   S.C. SHASHIKALA
     D/O. LATE S.M. CHANDRAPPA,
     W/O. SRI BABU,
     AGED ABOUT 32 YEARS,
     R/AT NO.3, 1ST MAIN ROAD,
     SUDDAGUNTEPALYA,
     D.R.C. POST,
     BANGALORE - 560 029.               ... RESPONDENTS

(BY SRI S. RAJESH, ADVOCATE FOR SRI S.B. MUKKANNAPPA,
ADVOCATE FOR R-1 AND R-2 (NOC); V/O. DATED 07/03/2019,
NOTICE TO R-3 TO R-9 DISPENSED WITH)

      THIS PETITION IS FILED UNDER ARTICLES 226 AND 227
OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE
IMPUGNED ORDER i) DATED 21.11.2017 PASSED IN O.S.NO.
7384/2007 ON THE FILE OF THE XXVIII ADDL. CITY CIVIL AND
SESSIONS JUDGE, BANGALORE AT ANNEX-A; AND ii) ALLOW
THE I.A.NO.6 BY PERMITTING TO LEAD SECONDARY EVIDENCE
IN RESPECT OF THE AGREEMENT OF SALE DATED 18.05.1988
TO SHOW THAT PLAINTIFFS AND DEFENDANTS 1 AND 2
JOINTLY EXECUTED THE AGREEMENT IN FAVOUR OF VENDOR
TO SELL THE ITEM NO.1 OF THE SUIT SCHEDULE PROPERTY.
                                -4-



    THIS WRIT PETITION COMING ON FOR PRELIMINARY
HEARING IN 'B' GROUP, THIS DAY, THE COURT MADE THE
FOLLOWING:-

                          ORDER

The plaintiffs have preferred the present writ

petition assailing the Order dated 21.11.2017 passed

on I.A. No.6 in O.S. No.7384/2007 on the file of the

XXVIII Additional City Civil and Sessions Judge,

Bengaluru (hereinafter referred to as 'the Trial Court'

for short), whereby the application filed by the

plaintiffs under Section 65 of the Indian Evidence Act

seeking permission to adduce the secondary evidence

in respect of Agreement of Sale dated 18.05.1988 has

been rejected by the Trial Court.

2. The plaintiffs have filed suit in OS

No.7384/2007 for partition and separate possession

seeking 1/4th share each in the suit schedule

properties, ½ share in Item Nos.1 and 2 and also for

declaration that the Sale Deeds executed by

defendant Nos.5 and 6 along with their father in

favour of defendant No.3 is not binding on the

plaintiffs on their 1/4th share each and other reliefs.

Pursuant to the service of summons, defendant No.2

has filed written statement denying the suit schedule

properties are the joint family properties of plaintiffs

and defendants.

3. This being so, the plaintiffs filed I.A. No.6

under Section 65 of the Indian Evidence Act seeking

permission to produce the Xerox copy of the

Agreement of Sale by way of secondary evidence. It

is the contention of the plaintiffs that in the said

Agreement, it has been stated that the suit schedule

properties are the joint family properties of the

plaintiffs and defendants and as such, the agreement

is relevant for the proper adjudication of dispute

between the parties.

4. The said application has been rejected by

the Trial Court.

5. Aggrieved by the rejection of I.A. No.6, the

present petition is by the plaintiffs.

6. Heard the learned counsel for the

petitioners and learned counsel for the respondents

and perused the material on records.

7. Sri. B. Sharath Kumar, learned counsel for

the petitioners would submit that the rejection of I.A.

No.6 filed under Section 65 of the Indian Evidence Act

is contrary to the material and settled proposition of

law. It is contended that though the document -

Agreement of Sale sought to be produced is an

unregistered document, it is only for collateral

purpose to show that the properties are the joint

family properties and said Agreement dated

18.05.1988 is not disputed by the defendants and

thus, the application under Section 65 of the Indian

Evidence Act needs to be allowed for adducing

evidence for collateral purpose and sought to allow the

writ petition.

8. Per contra, Sri. S. Rajesh, learned counsel

on behalf of Sri. S.B. Mukkannappa, learned counsel

for respondent Nos.1 and 2/defendant Nos.1 and 2

would justify the order on I.A.No.6 and contend that

the order passed by the Trial Court on I.A. No.6 is just

and proper and does not call for interference. It is

contended that the document sought to be produced

is an unregistered document, which cannot be relied

even for collateral purpose and the said Agreement of

Sale has been cancelled and therefore, sought to

dismiss the petition.

9. It is not in dispute that the Agreement of

Sale sought to be produced by the plaintiffs is

admitted but it is the contention of the defendants

that Agreement of Sale dated 18.05.1988 has been

cancelled. Perusal of the order on I.A. No.6 would

depict that the Trial Court has dismissed the

application on the ground that the said agreement is

not relevant for the decision in the suit and also held

that the mere execution of the unregistered

Agreement of Sale, the ownership cannot be

transferred to the Vendee.

10. It is relevant to note that the

petitioners/plaintiffs are not seeking right over by way

of Agreement of Sale but sought to rely on the

Agreement of Sale to show that the properties are the

joint family properties of the plaintiffs and defendants

and it is only for collateral purpose that the

Agreement of Sale is sought to be produced, as per

Section 65 of the Indian Evidence Act, which reads as

under:

"65. Cases in which secondary evidence relating to documents may be given.-- Secondary evidence may be given of the existence, condition, or contents of a document in the following cases:--

xxxxxxx

(c) 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. The Apex Court in the case of M. Chandra

Vs. M. Thangamuthu and Another reported in

(2010) 9 SCC 712 has held that secondary evidence

is admissible in exceptional cases, it may be adduced

in any form in which it may be available, whether by

production of a copy, duplicate copy of a copy, by oral

evidence of the contents or in another form and at

paragraph Nos.47 and 48 held as under:

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"47. We do not agree with the reasoning of the High Court. It is true that a party who wishes to rely upon the contents of a document must adduce primary evidence of the contents, and only in the exceptional cases will secondary evidence be admissible. However, if secondary evidence is admissible, it may be adduced in any form in which it may be available, whether by production of a copy, duplicate copy of a copy, by oral evidence of the contents or in another form. The secondary evidence must be authenticated by foundational evidence that the alleged copy is in fact a true copy of the original. It should be emphasized 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 through no fault of that party.

48. In the instant case, it is the specific case of the appellant that in the year 1994, that is, much before the assembly elections which were held in the year 2006, she had undergone all the rituals in Arya Samaj only for the purpose of reaffirmation of Hindu faith and

- 11 -

the conversion certificate issued by Arya Samaj was received and acknowledged by her uncle Santhakumar who had accompanied her. It is also her specific case that she did not take back the certificate from her uncle, since she was of the view the same may not be required for her purpose. It is only when the election petition was filed, in order to prove her case of reaffirmation of her faith in Hinduism, she came to know that her uncle has lost the certificate, which necessitated her to obtain a duplicate copy of conversion certificate from Arya Samaj, Madurai. This part of her evidence is not even challenged by the petitioner. In fact the contents of the documents would clearly establish that it was issued for the second time on the request made by the appellant, after she was told by her uncle Santhakumar that the original certificate received by him in the year 1994 is lost by him. In our view, a perusal of the conversion certificate (Ext. R-13) would amply demonstrate that the appellant has successfully proved her claim of reaffirmation of Hindu faith by undergoing rituals of conversion in the Arya Samaj, Madurai."

- 12 -

12. A conjoint reading of Section 65 of the

Indian Evidence Act shows that when the existence of

the original document is not disputed by the person

against whom it is proved and the provisions of

Section 65 of the Indian Evidence Act is applicable in

present peculiar facts and circumstances of the case

where the Agreement of Sale dated 18.05.1988 was

executed by the parties and same is sought to be

taken on record looking into the scope and ambit of

Section 65 of the Indian Evidence Act is wide.

13. In the light of the provisions of Section 65

of the Indian Evidence Act and in view of the

judgment of the Hon'ble Apex Court stated supra,

rejection of the application-I.A.No.6 by the Trial Court

is not justified. Accordingly, this Court is of the

considered view that I.A. No.6 needs to be allowed.

14. In the result, this Court pass the following:

- 13 -

                            ORDER

  i.     The writ petition is allowed.

  ii.    Order dated 21.11.2017 passed by the Trial

Court on I.A. No.6 in O.S. No.7384/2007 is

hereby set-aside and I.A. No.6 is allowed and

plaintiffs are permitted to produce the

Agreement of Sale dated 18.05.1988 for

collateral purpose.

iii. It is needless to observe that liberty is always

reserved to the respondents/defendants to

cross-examine the plaintiffs in respect of

Xerox copy of the Agreement of Sale.

No order as to costs.

SD/-

JUDGE

MBM