Madras High Court
Radhamani vs S.Kumaraswami on 7 July, 2023
C.R.P.No.3890 of 2018
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 07.07.2023
CORAM:
THE HONOURABLE Mr. JUSTICE V. LAKSHMINARAYANAN
Civil Revision Petition.No.3890 of 2018
and
C.M.P.No.21628 of 2018
1.Radhamani
2.Chitra ... Petitioners
Vs.
1.S.Kumaraswami
2.S.Kuppuraj
3.S.Mageshkumar
4.Syamala ...Respondents
Prayer: Civil Revision Petition filed under Article 227 of Constitution of
India, to set aside the fair and final order passed in I.A.No.335 of 2018 in
O.S.No.337 of 2010 on the file of the IV Additional District Munsif Court,
Coimbatore, dated 01.08.2018.
For Petitioners : Mr.Muthu Kumar
For Respondents : M/s.Kalpana Devi
st
: for 1 respondent
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C.R.P.No.3890 of 2018
ORDER
Heard Mr.Muthu Kumar, the learned counsel for the petitioners and
M/s.Kalpana Devi for Mr.V.Sivakumar, learned counsel for the respondents.
2.The learned IVth Additional District Munsif, Coimbatore, has
allowed an application under Section 65 (a) of the Indian Evidence Act,
1872. The case of the plaintiff is that the property belonged to one Chellamal
who died on 08.10.1988, leaving behind her only son Mr.Sundaram Chettiar.
The plaintiffs and defendants are the daughters and sons of Mr.Sundaram
Chettiar. The said Sundaram Chettiar died on 13.12.2009. After his death,
property had been administered by Rajammal, the first defendant. As per the
Will, written by Chellamal on 30.09.1987, according to the first respondent,
the property belongs to the fourth defendant S.Mageshkumar and
Kumaraswami.
3.During the course of trial, one S.Kuppuraj was examined as P.W.1.
He had stated that original Will is available with the first
defendant/Rajammal. The 1st respondent had given notice to produce the
Will on 08.06.2018. However, the respondents issued a reply to the same
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C.R.P.No.3890 of 2018
stating that they are not in possession of the document. The 3 rd defendant,
not being in possession of the document, has filed an application to let in
evidence by way of secondary evidence.
4. Mr.G.K.Muthu, learned counsel for the petitioner would submit that
the order of the trial court is contrary to the principles laid down in Smt. J.
Yashoda vs Smt. K. Shobha Rani 2007 (5) SCC 730. He would state that :-
(I).The 1st Respondent has not proved the existence of the original.
(II). It has not shown that the original is available with the Civil
Revision Petitioners as mandated under Section 65 (a) of the aforesaid Act.
(III). Since the 1st Defendant was residing with Defendants 3 and 4,
the application ought not to have been allowed.
5.The general principle of law is that a party must always produce the
best evidence in the case. In other words, it is always preferable to produce
the original. There are instances where the original Will not be available
with a party. Therefore, the Indian Evidence Act, 1872 has created an
exception and states secondary evidence can be proved when the original or
the higher evidence is not available. This principle was laid down in Smt. J.
Yashoda vs Smt. K. Shobha Rani 2007 (5) SCC 730 and the Court held that
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C.R.P.No.3890 of 2018
secondary evidence can be given in the absence of primary evidence.
6.As to what are secondary evidences is clear from Section 63 of the said
Act. As per Section 63, copies made from the original by mechanical process,
which in themselves ensure the accuracy of the copy and copies compared with
such copies are treated as secondary evidence. The argument of the learned
Counsel for the Petitioner is that unless and until the original is shown to be in
possession of the person against whom the document is sought to be proved,
secondary evidence is inadmissible. This interpretation is only partly true.
Under Section 65 (a) of the Act, where it appears to be in possession or power
of the person against whom the document is sought to be proved “or of any
person out of reach, or not subject to, the process of the Court or of any person
legally bound to produce it" are also essential ingredients. In the case on hand,
DW1, Kumarasamy had stated that the document is in possession of the mother,
the first defendant.
7.In order to satisfy the requirements, under Section 65 (a) of the
aforesaid Act, the petitioner had filed a notice to produce the original Will on
08.06.2008. To this, the response was that the same is not available. The entire
claim of the plaintiff is based on the Will. If the Will is available with the
defendants and I were to prevent the first respondent from producing a copy of
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C.R.P.No.3890 of 2018
the document, then I will be shutting out vital evidence from the case.
8.Rules of evidence and procedure incorporate principles of fairness.
Sections 63 and 65 of the aforesaid Act, permits production of secondary
evidence because in all cases the party will not be having primary evidence. If
the Legislature wanted only primary evidence to be brought in, they would not
have incorporated Section 65 (a) of the aforesaid Act. Prior to a person
producing secondary evidence, the Act contemplates certain conditionalities.
One such conditionality is that he must give an opportunity to the other side to
produce it on issuing a notice to produce. This but is fair because the court
requires and when the original is not available with the person, he calls upon his
opponent or the person in whose custody it is available to produce it. It is not
unusual for the person in possession of the document to refuse the same. This is
because he would not want to assist the opposing party by producing the
document. The parties do not realize that by not producing the original, while
they are trying to torpedo their opponents's case, they are not helping the court
to reach a just conclusion. It is in that light, Section 65 (a) of the said Act has
been incorporated.
9.A perusal of the written statement shows that the 1st respondent herein
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C.R.P.No.3890 of 2018
had taken a specific plea that the document is not in his possession but in the
custody of the mother, the first defendant. To call upon a party to produce a
document which he is not in possession of, is to expect an impossibility. Law
does not require a party to do the impossible. Therefore, in compliance with
law, the first respondent had issued a notice to defendants 2 and 4 on
08.06.2012, calling upon the parties to produce the documents. Defendants 2
and 4 had taken a stand that they are not in possession of the same. Being left
with no other opportunity, this petition has been filed.
10.A reading of Smt. J. Yashoda vs Smt. K. Shobha Rani 2007 (5)
SCC 730 shows that where a party has laid a foundation for leading secondary
evidence, then the Court should permit that person to adduce the same. It is not
as if by the mere production of a Will, the suit is going to go in favour of the
party, producing it. A bigger burden lies on the party who is propounding the
Will to prove the same in terms of the Evidence Act and the Indian Succession
Act, 1956.
11.I am satisfied in reading the judgment of Smt. J. Yashoda vs Smt.
K. Shobha Rani 2007 (5) SCC 730 that if a party complies with the conditions
under Section 65 (a) of the said Act, then he must be permitted to let in
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C.R.P.No.3890 of 2018
secondary evidence. I concur with the finding of the Trial Court that the
condition precedent for invoking Section 65 (a) has been complied with.
12.On the argument that the document must be shown to exist, it
overlooks the fact that even when it is shown or appears to be in possession of
the third party, secondary evidence is admissible. I cannot demand the 1st
respondent to let in better evidence when he is not in possession of the same.
He has fulfilled the requirements of Section 65 (a) of the said Act. Therefore,
there can be no reason to interfere with the orders passed by the learned IV th
Additional District Munsif, Coimbatore. Hence, the Civil Revision petition
is dismissed. No costs. Consequently, connected C.M.P.No.21628 of 2018 is
closed.
07.07.2023
jai/nst
Index :Yes/No
Speaking Order :Yes/No
Neutral Citation Case : Yes/No
https://www.mhc.tn.gov.in/judis
C.R.P.No.3890 of 2018
V. LAKSHMINARAYANAN
jai/nst
To
The IV Additional District Munsiff Court,
Coimbatore.
https://www.mhc.tn.gov.in/judis
C.R.P.No.3890 of 2018
Civil Revision Petition.No.3890 of 2018
and
C.M.P.No.21628 of 2018
07.07.2023
https://www.mhc.tn.gov.in/judis
