Telangana High Court

Karney Chinna Bhumanna vs Dr K Ganga Ram on 11 October, 2022

Bench: A.Santhosh Reddy

        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

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

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

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

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.

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.

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

2004 (3) ALD 66

2003(1) ALD 251

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