vil Appeal No 135 IN of 1973
From the Judgment and Decree dated 1431973 of the Rajasthan High Court in SB Civil Second Appeal No 201 of 1966
KK Jain Pramod Dayal and AD Sanget for the Appellant
UN Bachavat Sushil Kumar Jain Sudhanshu Atreya and LC Agarwala for the Respondents
The Judgment of the Court was delivered by K JAGANNATHA SHETTY J
This appeal by special leave is from the judgment of the Rajasthan High Court dated March 14 1973 in SB Civil 2nd Appeal No 201of 1966
The case has a long history
It is concerned with a garden baghichi with temples of Sri Satyanarayanji Sri Mahadeoji and other buildings at Motidungri Road in Jaipur
The local Darjees Tailors claim that it is their community property
According to them 359 it is known as Baghichi Darjian  since it belongs to Darji community
The property however was the subject matter of several litigations
It was claimed by different persons at different intervals on different grounds
One Narayan was admittedly Pujari  of the Temples
There was allegation that Narayan purported to have sold the Baghichi in favour of one Khawas Bala Bux
The Panchas of Darjian community filed a suit for cancellation of the sale deed and posses sion of the baghichi
The suit was also for declaration of the right to administer the trust of the temples and the other properties
Narayan was the first defendant in that suit
He did not contest the suit
He was however summoned and his statement was recorded on July 8 1925 wherein he admitted that he was only the Pujari of the temples
The other defendants in the suit set up rival title to the property relying upon the sale deed of Samvat 1932 in the name of Raghunath
The trail court dismissed the suit but on appeal the District Judge decreed it
That decree was af firmed by the former Chief Court Jaipur by judgment exhibit A8 dated September 15 1928
Thereafter for about 23 years there was no problem and there was no rival claimant to the property
But the dispute started after the death of Narayan
His eldest son Bhonrilal respondent 3 herein made attempts to get his name mutated in the revenue records as owner of the baghichi
It appears that Bhonrilal after the death of his father was acting as Pujari of the temples
The Darjian community authorised Kalyan Singh the appellant herein as well as one khawas Suraj Narayan to bring an action for ejectment of Bhonrilal
In 1951 they instituted a suit for his ejectment
In that suit Bhonrilal admitted the Panchayat s right to the baghichi but raised a number of other pleas including his title by adverse possession
In 1966 the Munsif Court West Jaipur decreed the suit in favour of the Darji community
In 1958 the appeal against that decree was dismissed by the senior civil Judge Jaipur City
Bhonrilal preferred Second Apeal No 8C of 1958 in the High Court of Rajasthan and obtained stay of delivery of possession on depositing mesne profits at Rs25 per month
On September 15 1960 the High Court dismissed the second appeal
Thus the title of the Darjee community in respect of the baghichi was again recog nised
Even before disposal of the aforesaid second appeal Ganga Ram the younger brother of Bhonrilal started another round of litigation
On December 12 1959 he brought a declaratory suit claiming that he is owner of the property consisting of baghichi and temples
In this appeal we are concerned with the fight claimed by him
The suit was pri marily against the present appellant Kalyan Singh and Suraj 360 Narayan since deceased
Bhonrilal was also impleaded as the third defendant
Ganga Ram based his title to the property under a sale deed dated Baishakh Sudi 12th Samvat 1932 about 1875 AD and also on a will dated Asaj Sudi 12th Samvat 1973 about 1916 AD
It was further alleged that the bagichi belonged to Bhagala and Girdhari and they sold the same to Raghunath Brahmin
Raghunath constructed the temple of Sri Satyanarainji and other buildings
Raghunath had only one son called Gaurilal and he was issueless
Garuilal executed a will giving all his properties to Ganga Ram
It was alleged that the earlier suit against Bhonrilal was collusive between the parties
With these allegations Ganga Ram prayed for the following reliefs a the plaint of the plaintiff be decreed and the plaintiff be declared as the owner of the aforesaid property
The plaintiff is the owner of the property mentioned in Para No 1
The decree which the defendant Nos 1 and 2 had obtained on 208
1956 against the Defend ant No 3 and was upheld by the Senior Civil Judge on 62
1958 is null and void against the claim of the plaintiff
 The appellant the first defendant in the suit denied plaintiff s title to the baghichi
He also denied the title of Bhagala and Girdhari
It was maintained that the baghichi was community property of Darjees and Narayan was only a Pujari  of the temples
Narayan continued as Pujari till his death in 1950 and thereafter his eldest son Bhonrilal was acting as Pujari
Reference was made to the judgment of the Chief Court of Jaipur in the first suit against Narayan and judgments in the second suit against Bhonrilal
In view of those litigations and judgments rendered therein it was claimed that the present suit was barred by principle of res udicata
It was also specifically stated that the suit against Bhonrilal was not collusive but brought on behalf of the Darjee community in a representative capacity
The trial Judge on considering the evidence produced by the parties decreed the suit declaring the plaintiff as owner of the suit property
It was also declared that the plaintiff is not bound by the judgment and decree dated September 15 1928 of the Chief Court of the erstwhile State of Jaipur
But no reference was made to the judgment and decree obtained in the suit against Bhonrilal
No declara tion was given that it was not binding on the plaintiff though that relief was specifically sought for
Perhaps the plaintiff did not press that point
Kalyan Singh and Suraj Narayan appealed to the District Court
The 361 learned District Judge dismissed the appeal
He also did not refer to the judgment in the suit against Bhonrilal
He only examined the validity of the said Sale deed and Will and held that they were proved to have been executed
The de fendants approached the High Court in Second Appeal No 20141 Before the High Court they sought to produce addi tional evidence
They moved an application under Order 41 Rule 27 CPC to accept a certified copy of the judgment dated September 15 1928 of the Chief Court of the erstwhile Jaipur State and a copy of the statement of Narayan recorded in that suit
The High Court accepted the judgment of the Chief Court of Jaipur State but rejected the Statement of Narayan
During the pendency of the appeal in the High Court Suraj Narain died and his name was deleted from the appeal memo
Ganga Ram also died and his wife and son were brought on record as his legal representatives
The principal question argued before the High Court related to the validity of sale deed exhibit 3 and will exhibit 4 which formed the foundation of Gangaram s title to the suit property
The High Court rejected both the documents
The sale deed exhibit 3 was rejected as inadmissible in evi dence
The will exhibit 4 was disregarded in view of the suspi cious circumstances surrounding its execution
These conclu sions would have been sufficient for allowing the appeal and dismissing the suit
But the High Court did not do that and instead rounded off the discussion as follows The plaintiff is undoubtedly in possesion of the Baghichi and it cannot be gainsaid that he was not a party to the previous litigation and he is not claiming the property though his father Narayan or his brother Bhonrilal
Apart from everything the suit does not seem to have been filed against Kalyan Singh and another in a representative capacity in ac cordance with Order 1 Rule 3 Civil Procedure Code
There was no application for permission to sue them in their representative capacity
Therefore in spite of my having reached the conclusion regarding the document exhibit 3 and 4 against the plaintiff respondents I am not inclined to interfere with the decree of the court below though I do feel that the litiga tion against Kalyan Singh and another in their individual capacity was a fruitless exercise   362 Kalyan Singh the defendant has now appealed challenging the decree of the High Court
Counsel for the appellant has a two fold contention
In the first place it was argued that the Darjee community in their representative suit against Bhonrilal has obtained a decree declaring their title to the property and that decree could not be nullified by the present suit against individu als
The High Court instead of holding that the plaintiffs suit was a fruitless exercise ought to have dismissed the suit
Secondly it was urged that the High Court after discarding the sale deed exhibit 3 and will exhibit 4 ought to have non suited the plaintiff since there is no other material whatever to support his title to the property
Normally these contentions would have been accepted without much discussion but we have to consider the submis sions of counsel for the respondents
He challenged the correctness of the findings on all material points
It is therefore necessary to examine the judgment in greater detail
We will first consider whether the previous suit against Bhonrilal was a representative suit on behalf of the Darjee community
It was argued for the respondents that it was only a suit on behalf of the Panchayat Darjian  and not a representative suit on behalf of the Darjee community
Our attention was drawn to the trail court order dated November 16
1962 in the present suit
Thereunder the trial court has rejected an application for amendment of written statement
It was observed that the defendants in the affidavit have not denied allegations of the plaintiff that the suit against Bhonrilal was not in a representative capacity
But the Court made that observation only on perusing the affida vits of parties for a limited purpose of considering the amendment application and not on an issue arising out of pleadings in the suit
In fact the court has not framed any issue on that controversy although the defendant in the written statement has asserted that it was a representative suit on behalf of the Darjee community
The view expressed in the order dated November 1962 is therefore unacceptable
Counsel for the appellant however relied upon state ments from judgments in the previous suit in support of his contention that it was representative suit on behalf of the Darjee community
exhibit A 2 is the judgment of the trial court
It begins with a sentence This is a representative suit by the plaintiffs Kalyan Singh and Suraj Narayan on behalf of the Panchayat Darjian for recovery of possession of the 363 baghichi
 But this statement may not help counsel for the appellant since the suit was said to be on behalf of the Panchayat Darjian  and not Darjee community
exhibit A 4 is the High court judgment in the second appeal arising out of that suit
There the High court has stated That the suit was brought by Kalyan Singh and another against Bhonrilal by the representatives of Darjee community
 Here again we do not find much support to the appellant
The suit might have been instituted by representatives of the Darjee community but that by itself was not sufficient to constitute the suit as a representative suit
For a representative suit the court s permission under Order 1 Rule 8 of the Code of Civil Procedure is mandatory
One does not know whether any such permission was obtained
The pleading in that suit or the order obtained under Order 1 Rule 8 has not been produced
There is no other evidence to support the contention of either of the parties
In the absence of necessery material the conclusion one way or the other as to the nature of the previous suit will not be justified
But that does not mean that the plaintiff could succeed ignoring the judgment and decree in the suit against Bhonri lal
It must be stated that any member of a community may successfully bring a suit to assert his right in the commu nity property or for protecting such property by seeking removal of encroachments thereform
Such a suit need not comply with the requirements of Order 1 Rule 8
The suit against Bhonrilal even if it was not a representative suit on behalf of the Darjee community would be a suit of this category
Kalyan Singh and another claimed that the baghichi was their community property and Bhonrilal was a trespasser
They brought the suit to recover possession from Bhonrilal
The suit was decreed
The rival title claimed by Bhonrilal by adverse possession was negatived
So long as that decree operates it would be futile to decree the present suit
The observation of the High Court that the present suit is a fruitless exercise could therefore be sustained on this ground if not for the reasons stated
The validity of the will may now be considered
On this question the High Court said Having read the evidence of these witnesses I am satisfied that according to the ordinary standard of proving a document the document exhibit 4 can be said to have been proved
Howev er there are two disturbing elements sur rounding the execution of the will
The first striking feature of this will is that even though the wife of Gaurilal was living at 364 the time as she had survived him no provision whatsoever had been made regarding her by Gaurilal in the alleged will exhibit 4
Then the second striking feature is that even though litigation had been going on almost for years this will had not been referred to by anyone
In the first suit Narain was a defendant he had not contested the suit and the proceedings remained ex parte against him
However he was called by the Court and his statement was recorded
The judgment of the Jaipur Chief Court shows that he had laid no claim to the property and took the position that he was a Pujari at the baghichi
Then subsequently when suit was filed by the Darzi community against Bhonrilal no reference came to be made to this will exhibit 4 Learned counsel for the re spondents as I have already observed sug gested that Narain or Bhonrilal could not be expected to make any reference to the will as that would be detrimental to the stand taken by them
The argument no doubt looks attrac tive but if it is examined in the light of none other than the statement of Ganga Ram himself it cannot stand the scrutiny
Gangaram had referred to the earlier litigation in the plait but when he entered the witnesses box he had taken a somersault
He was asked wheth er he was aware of the previous litigation and he said he did not know of it
He was then questioned with reference to para 5 of the plaint as to how the facts had been mentioned by him therein and he kept mum and had no answer
He also admitted that it was Narain who had given him the document exhibit 4 some 5 or 7 years after the death of Gaurilal ie some 30 or 35 years back
In that situation there was no mention of the alleged will in any of the two previous suits
It is also remarkable that even upto the High Court Bhonrilal had asserted his own possession over the property and had also obtained a stay order on payment of mesne profits vide exhibit A 7
XXXXX XXXXXX XXXXXXX The will is therefore not free from suspi cion and it has not been dispelled
My con science in this regard is not satisfied and therefore I am unable to hold that exhibit 4 was the last will of Gaurilal in favour of Ganga Ram
Counsel for the respondents however urged that the plain tiff has 365 proved its execution by producing one of the attestors and the scribe and their evidence has not been disbelieved by the High Court
We were referred in particular to the evidence of plaintiff PW 3 Ramdeo PW 4 and Sham Sunder PW 7
We have perused their testimony and we are of the opinion that it is far from satisfactory
The plaintiff has deposed that Gaurilal was issueless and hence executed the will bequeathing the property to him
Ramdeo claims to be the attesting witness to the will
He has stated that the plain tiff was 10 11 years old when the will was executed
But the plaintiff himself has deposed that he was then a boy of 2 3 years
Ramdeo has given his age as 55 years when he deposed in the court on January 5 1962
If we go by that age Ramdeo must have been a boy of 9 years when he attested the will in 19 16 Sham Sundar claims to be the scribe of the will
He has deposed that after he wrote the will attestation was made by witnesses but he has not named any one of them
He has not even referred to Ramdeo as an attesting witness
It was said that the plaintiff was adopted son of Gauri lal and was thus the object of his affection for the exclu sive bequest
But there is no reference in the will that he was the adopted son
The plaint also makes no reference to his adoption by Gaurilal
Nor there is any other material to lend credence to such relationship
On the contrary the Temple register shows that he was the son of Narayana
Even if we proceed on the plea that the plaintiff was adopted son of Gaurilal there seems to be little reason to justify the bequest exclusively m his favour
It is now not in dispute that Gaurilal s wife was living at the time of execution of the will but no provision was made for her maintenance
In the normal course the wife would be the first to be thought of by the husband executing a will
She should have been the first beneficiary of her husband s bounty unless there was odium or embittered feelings between them
But there is no such evidence and it was not even the plaintiff s case that their relationship was strained
Why then she should be excluded altogether It is indeed baf fling since it runs counter to our societal values
Yet there is another circumstance which tells against the genuineness of the will
The will purports to have been executed in 1916 and Gangaram instituted the suit in 1959
The will had not seen the light of the day till the institu tion of the suit
It is not as if Gangaram or his brother or father had no opportunity to produce the will to assert rights over the property in question
The plaintiff has stated in his evidence that his father Narayan handed over the will to 366 him
Narayan was therefore aware of the execution of the will
Yet he did not disclose it to the court in the suit against him
His statement was recorded on July 8 1925 wherein he had admitted that he was only the Pujari of the temple and the wife of Baldeo sold the property
He did not say that his son Gangaram became owner of the property under the will executed by Gaurilal
In he second suit Bhonrilal set up independent title to the property by adverse posses sion
That claim was totally destructive of Gangaram s title
It cannot be said that Gangaram was ignorant of that litigation till he filed the suit
His evidence does not lead to that inference
In fact the plaint averments and his statements in the court lead to the contrary
Gangaram however made no attempt to produce the will in that suit
In the long period of 43 years none made any attempt to rely upon the will against the claim of the Darji community when the community representatives have successfully brought two suits
This would not have been the natural conduct of person if the will had been really in existence
It has been said almost too frequently to require repe tition that a will is one of the most solemn documents known to law
The executant of the will cannot be called to deny the execution or to explain the circumstances in which it was executed
It is therefore essential that trustworthy and unimpeachable evidence should be produced before the court to establish genuineness and authenticity of the will
It must be stated that the factum of execution and validity of the will cannot be determined merely by considering the evidence produced by the propounder
In order to judge the credibility of witnesses and disengage the truth from false hood the court is not confined only to their testimony and demeanour
It would be open to the court to consider circum stances brought out in the evidence or which appear from the nature and contents of the documents itself
It would be also open to the court to look into surrounding circum stances as well as inherent improbabilities of the case to reach a proper conclusion on the nature of the evidence adduced by the party
In H Venkatachala lyengar vs BN Thimmajamma  Ors 1959 Supp 1 SCR 426 Gajendragarkar J as he then was has observed that although the mode of proving a will did not ordinarily differ from that of proving any other docu ment nonetheless it requires an element of solemnity in the decision on the question as to whether the document pro pounded is proved as the last will and testament of departed testator
Where there are suspicious circumstances the onus would be on the propounder to explain them to the satisfac tion of the court before the will could be accepted as genuine
Where there are 367 suspicious circumstances the Court would naturally expect that all legitimate suspicions should be completely removed before the document is accepted as the last will of the testator
These principles have been reiterated in the subsequent decisions of this Court in Rani Purnima Devi  Anr
vs V Kumar Khagendra Narayan Dev  Anr and Smt
Indu Bala Bose  Ors
vs Manindra Chandra Bose  Anr  The Privy Council in Mr Biro vs Atma Ram  Ors AIR 1937 PC 10 1 had an occasion to consider an analogous case where the wife was practically disinherited and there was unexplained delay in producing the will in public
There the alleged will by a testator gave only a life estate to his daughter who was the only child and who was to get some property at her marriage
The bulk of the estate was vested in the widow of the testator and three other women namely his mother his step mother and his paternal aunt
These women though entitled under the Hindu Law only to mainte nance were made joint owners equally with the widow of the testator
None of the devisees could get the estate parti tioned or alienate it for necessity
It was however provid ed that the lady who survived the other three devisees would become the absolute owner of the estate
The widow of the testator would not get her husband s estate if she predeceased any of her co devisees
The will was not pro duced until 22 years after its execution though there were occasions to produce it had it been in existence
Consider ing these circumstances the Privy Council observed at 104 It is most unlikely that a person having a wife and a minor unmarried daughter who should be the objects of his affection would make a will which would practically disinherit them
That the testament is unnatural and runs counter to the ordinary sentiments of persons having a status in society similar to that of Harbans Lal cannot be seriously disputed
But this is not the only circum stances which tells against its genuineness
The will purports to have been executed on 24th August 1900 and the testator died within a month of that date
But it is strange that it was not produced until 1922 after the com mencement of the present litigation
During this long period of 22 years which inter vened there were occasions when the widow or her advisers could have produced the document if it had been in existence but they did not do so   368 The will in the present case constituting the plaintiff as a sole legatee with no right whatever to the testator s wife seems to be unnatural
It casts a serious doubt on genuine ness of the will
The will has not been produced for very many years before the court or public authorities even though there were occasions to produce it for asserting plaintiff s title to the property
The plaintiff was re quired to remove these suspicious circumstances by placing satisfactory material on record
He has failed to discharge his duty
We therefore concur with the conclusion of the High Court and reject the will as not genuine
This takes us to the validity of the sale deed exhibit 3
The High Court rejected the document with the following observations exhibit 3 is neither a certified copy given under any of the provisions of the Evidence Act nor is it a copy made from the original by any mechanical process
It also does not appear to have been made or compared from the original as there is no verification or endorsement of the kind and it does not come under clauses 1 or 5 of section 63 ei ther
No one has given the oral account of the contents of the original document
If in place of primary evidence secondary evidence is admitted without any objection at the proper time then the parties are precluded from raising the question that the document has not been proved by primary evidence but by second ary evidence
But where there is no secondary evidence as contemplated by Section 66 of the Evidence Act then the document cannot be said to have been proved either by primary evidence or by secondary evidence
 The basis of the plaintiff s title relates back to the sale deed dated Baisakh Sudi 12 Samvat 1932 1875 AD
It was said to be a registered sale deed by which Bhagala Girdhari purported to have sold the baghichi to Raghunath Brahmin
The plaintiff has not produced the original sale deed
Nor a certified copy of it has been produced
All that we find from the record is an ordinary copy of a sale deed exhibit 3 produced by Gopal Prasad PW 1
Gopal Prasad has stated that exhibit 3 was a copy submitted by the parties along with the original sale deed for registration
The original sale deed was said to have been returned to the party after its registration and a copy was kept in the file
But Gopal Prasad has no personal knowledge about the registration of the sale deed nor he has produced the register to indicate that that sale deed was registered and a copy was kept in the record
exhibit 3 produced 369 by him does not bear any endorsement to the effect that it was a true copy of the original
The High Court said and in our opinion very rightly that exhibit 3 could not be regarded as secondary evidence
Section 63 of the Evidence Act mentions five kinds of sec ondary evidences
Clause 1 2 and 3 refer to copies of documents clause 4 refers to counterparts of documents and clause 5 refers to oral accounts of the contents of documents
Correctness of certified copies referred to in clause 1 is presumed under Section 79 but that of other copies must be proved by proper evidence
A certified copy of a registered sale deed may be produced as secondary evidence in the absence of the original
But in the present case exhibit 3 is not a certified copy
It is just an ordinary copy
There is also no evidence regarding contents of the original sale deed
exhibit 3 cannot therefore be considered as secondary evidence
The appellate Court has a right and duty to exclude such evidence
In the result the appeal is allowed modifying the judgment and decree of the High Court
The judgment and decree of the trial court as affirmed by the District Court are set aside and the plaintiff s suit is dismissed
Since the original plaintiff died leaving behind his widow during pendency of the appeal before the High Court we make no order as to costs
RNJ Appeal allowed


Summary:
The Respondent Company was in the business of dyeing acrylic yarn received from traders and manufacturers of hosiery goods on job basis
It was paying duty at the rate of Rs 10 per KG in terms of Notification No 12575 CE dated 1251975 on the presumption that base yarn had dis charged duty liability before it was received for dyeing
A show cause notice under section 92 of the Central Excise Rules 1944 was issued by the Assistant Collector of Central Excise demanding an amount of Rs4300 as central excise duty C Rs24 per KG on 180 Kgs
for the period May 1976 to July 1976
The demand was resisted by the Respondent Company contending that duty on base yarn was payable by the Manufacturers and the burden of showing that this had not been paid by the Manufacturers was on the Revenue which was not accepted and on appeal by the Assessee the Appellate Collector of Central Excise confirmed the demand
On further appeal however the Appellate Tribunal upheld the conten tion of the Respondent holding that the Manufacturer was liable to pay duty on the base yarn since purchasers could naturally assume that the duty on base yarn would have already been paid by the Manufacturer and that it was for the Department to verify the fact of such payment and take action against the manufacturer if duty had not been paid particularly when in this case the Assessee had disclosed the names of personsmanufacturers from whom it had received the yarn for dyeing while the matter was pending before the Collector
Dismissing the appeals preferred by the Revenue this Court HELD Excise is a duty on manufacture
The liability of payment of this duty is on the manufacturer
The language of the Notification No 12575 dated 12th May 1975 indicates that only the duty for the time being leviable on the base yarn if not already paid plus ten rupees per kg
was the liability
The description of manufacture was textured yarn produced out of base yarn
434B 431 It would be intolerable if the purchasers were required to ascertain whether excise duty had already been paid as they have no means of knowing it
It has to be borne in mind that duty of excise is primarily a duty levied on a manufac turer or a producer in respect of the commodity manufactured or produced
A processor is in the similar position as purchaser of the goods
434D E Sulekh Ram  Sons vs Union of India  Ors 1978 ELT J 525 and Governor General in Council vs Province of Madras 72 Indian Appeals 91 referred to