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 20th 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 also the order passed by the same Court on 2nd 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 1/4th 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 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 20th 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 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 4th 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 Subhashvendor 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,
(2) H. Siddiqui (dead) by Lrs. vs. A. Ramalingam reported in (2011) 4 SCC 240,
(3) Luis Sales de Andrade e Souza (Jr.) and 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 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 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 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.) and 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 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 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 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 4thNovember, 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 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 counterpleading 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 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.