C.R. No. 48 of 2011 -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH C.R. No. 48 of 2011 Date of Decision: 20.9.2011 Balwinder Kaur and another ....Petitioners. Versus Santokh Singh and others ...Respondents. CORAM:- HON'BLE MR. JUSTICE AJAY KUMAR MITTAL. PRESENT: Mr. Veneet Sharma, Advocate for the petitioners. Mr. Karanjit Singh, Advocate for respondent No.1. AJAY KUMAR MITTAL, J. 1. In this petition filed under Article 227 of the Constitution of India, the petitioners have prayed for setting aside the order dated 29.11.2010 (Annexure P-3) passed by the trial court whereby application filed by them under Section 65 of the Indian Evidence Act (in short “the Act”) for producing secondary evidence for proving unregistered Will dated 20.4.1995, was dismissed. 2. Briefly stated, the facts necessary for adjudication of the present petition are that Karnail Singh was owner of the property in dispute. He died on 9.6.1995 leaving behind his two sons, i.e. Santokh Singh-respondent No.1 and Jagir Singh, husband and father of the petitioners. Prior to his death, Karnail Singh executed a Will dated C.R. No. 48 of 2011 -2- 20.4.1995 in favour of his grandsons, i.e. petitioner No.2 and the sons of respondent No.1 in equal shares. Respondent No.1 set up a Will dated 5.8.1991 allegedly executed by Karnail Singh in his favour regarding the entire property and on the basis of the said Will, applied for sanction of mutation which was objected to by the petitioners. The said mutation was referred to the Assistant Collector Ist Grade, Ajnala for adjudication. Vide order dated 29.11.2001 (Annexure P-1), the Assistant Collector Ist Grade, Ajnala held the said Will to be a forged document and ordered that mutation No. 5860 be sanctioned on the basis of the Will dated 20.4.1995 in favour of the grandsons of Karnail Singh, i.e. petitioner No.2 and the sons of respondent No.1 in equal shares. Against the order dated 29.11.2001, respondent No.1 filed an appeal before the Collector, Amritsar which was dismissed vide order dated 11.8.2005. Thereafter, respondent No.1 filed a revision petition before the Commissioner, Jalandhar Division, Jalandhar which was also dismissed vide order dated 27.2.2009. Respondent No.1 also filed a suit against the petitioners and others for declaration to the effect that he was owner in possession of the land measuring 104 kanals 10 marlas and mutation No. 5860 sanctioned in favour of his sons and petitioner No.2 on the basis of the Will dated 20.4.1995 was illegal, null and void. During the pendency of the suit at the stage of defendants' evidence, the petitioners moved an application under Section 65 of the Act to place on record a photo copy of the unregistered Will dated 20.4.1995 by way of secondary evidence pleading that the original Will had been misplaced from the court file of the mutation proceedings and the said fact already finds mention in the order dated 29.11.2001 C.R. No. 48 of 2011 -3- (Annexure P-1). The trial court vide order dated 29.11.2010 dismissed the said application holding that the order dated 29.11.2001 passed by the Assistant Collector Ist Grade and a copy of the unregistered Will dated 20.4.1995 were not placed on record along with the application. Hence, the present revision petition. 3. I have heard learned counsel for the parties. 4. The defendant-petitioners had claimed that there was an unregistered Will executed by Karnail Singh on 20.4.1995 who died on 9.6.1995. He submitted that there was reference to the said Will which was produced before the revenue authorities as Assistant Collector Ist Grade in the order of mutation and subsequent proceedings thereto had made reference and sanctioned mutation on that basis which order had been upheld in appeal and revision by the revenue authorities. It was urged that once the existence of the Will was there and the same having been lost thereafter, the secondary evidence ought to have been allowed by the trial court. Learned counsel for the petitioners placed reliance on the judgments in Ashok Kumar Sachdev v. Harish Malik, 2007(4) RCR (Civil) 311, Meena Sharma v. Rama Sharma and others, 2007(4) RCR (Civil) 413, Kuldip Kaur v. Chattar Singh and another, 2008(3) RCR (Civil) 463 and Kirpa Ram @ Kishana v. Ishwar Singh, 2009(5) RCR (Civil) 613. 5. Learned counsel for respondent No.1, on the other hand controverted the submissions made by the learned counsel for the petitioners. It was argued that the registered Will dated 5.8.1991 was executed by deceased Karnail Singh in favour of Santokh Singh and further that the original unregistered Will was never produced by the C.R. No. 48 of 2011 -4- defendant-petitioners before the revenue authorities. It was also submitted that in the absence of production of original Will before the revenue authorities, the question of loss thereof did not arise. It was further submitted that in the alleged unregistered Will dated 20.4.1995, it was specifically stated that the testator has not executed any other Will whereas the registered Will dated 5.8.1991 was very much in existence. On this premise, it was argued that the subsequent unregistered Will was a procured document and that is why the secondary evidence was sought to be led in respect thereof. It was also contended that in cases of unregistered Will, the Court should be circumspect in allowing secondary evidence in the form of photostat copy because in these days of advance technology, a photo copy can be manipulated. 6. After giving thoughtful consideration to the respective submissions made by learned counsel for the parties, I do not find any merit in the revision petition. 7. Section 65 of the Act relates to leading of secondary evidence under the conditions and circumstances specified therein. It reads thus:- “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:- (a) When the original is shown or appears to be in the possession or power- of the person against whom the document is sought to be proved, or C.R. No. 48 of 2011 -5- of any person out of reach of, or not subject to, the process of the Court, or of any person legally bound to produce it, and when, after the notice mentioned in Section 66, such person does not produce it; (b) when the existence, condition or contents of the original have been proved to be admitted in writing by the person against whom it is proved or by his representative in interest; (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; (d) when the original is of such a nature as not to be easily movable; (e) when the original is a public document within the meaning of Section 74; (f) when the original is a document of which a certified copy is permitted by this Act, or by any other law in force in India to be given in evidence; (g) when the originals consists of numerous accounts or other documents which cannot conveniently be examined in Court, and the fact to be proved is the general result of the C.R. No. 48 of 2011 -6- whole collection. In cases (a), (c) and (d), any secondary evidence of the contents of the documents is admissible. In case (b), the written admission is admissible. In case (e) or (f), a certified copy of the document, but no other kind of secondary evidence, is admissible. In case (g), evidence may be given as to the general result of the documents by any person who has examined them, and who is skilled in the examination of such documents.” 8. This section enumerates seven cases in which secondary evidence is admissible. According to this Section, cases falling in clauses (a), (c) & (d) any secondary evidence of the contents of the documents is admissible. However, written admission is admissible in respect of case coming under clause (b). In cases of applicability of clauses (e) & (f), certified copies of the document alone are admissible as secondary evidence. So far as clause (g) is concerned, secondary evidence may be given by any person who has examined them or who is skilled in the examination of such document. Secondary evidence cannot be permitted without the non-production of the original being first accounted for in such a manner so that the case may fall within one or more of the situation enumerated therein. 9. The facts as noticed create doubt about the production of C.R. No. 48 of 2011 -7- original unregistered Will during mutation proceedings. A perusal of order of mutation dated 29.11.2001 clearly spells out that only photo copy of Will dated 20.4.1995 had been produced. Further, the photo copy of alleged unregistered Will no where refers to earlier registered Will dated 5.8.1991, rather to the contrary it states that no Will had been executed by the executant prior thereto. Still further, the executant died within one and half months of execution of alleged unregistered Will. Under the circumstances and in these days of computerization when signatures and other material can be super imposed by lifting from one place and putting it on another document and the fact of the very existence and execution of the alleged original document is not free from doubt, allowing of secondary evidence would be giving handle to perpetuate fraud. Moreover, there is no definite material produced by the petitioners to suggest with certainty that the original of the alleged unregistered Will dated 20.4.1995 was in existence but had been lost lateron. On a question being put to the learned counsel for the defendant-petitioners whether there was any reference to loss of original unregistered Will dated 20.4.1995 in the written statement, learned counsel candidly admitted that there was no such reference. The present application for leading secondary evidence is a device so as to get out of the rigours of proving the original Will. The trial court had, thus, focussing on totality of facts and circumstances rightly declined allowing secondary evidence with the following observations:- “From the respective submissions made by the parties and from the perusal of the file it shows that no copy of the will has been attached by the C.R. No. 48 of 2011 -8- applicant along with the application. Even no order of SDM is produced on the file from which it can be clarified that the original Will was misplaced from the mutation proceedings file. From this, it transpires that the existence of the document i.e. will is not proved on the file and it was not pleaded by the defendants in the written statement that the original will was misplaced from the mutation proceedings file. Even during the evidence of the defendant it has not come that the original will was mis-placed. Therefore, in view of these circumstances, the ingredients of section 65 of the Indian Evidence Act are not fulfilled. Therefore, in my view the application in hand is devoid of any merits. Hence dismissed.” 10. Referring to the judgments relied upon by the learned counsel for the defendant-petitioners, the proposition of law laid down therein is well recognized. In view of the factual matrix in the present case as noticed hereinabove, they do not advance the case of the petitioners. 11. Accordingly, there is no merit in this revision petition and the same is hereby dismissed. September 20, 2011 (AJAY KUMAR MITTAL) gbs JUDGE