RSA No.1050 of 2010(O&M) 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH RSA No.1050 of 2010(O&M) Date of decision: 11.3.2010 Sampat Singh ......Appellant(s) Versus Bhagwanti and others ......Respondent(s) CORAM:- HON'BLE MR.JUSTICE RAKESH KUMAR GARG * * * Present: Mr. Sudhanshu Makkar, Advocate for the appellant. Rakesh Kumar Garg, J. Defendant No.1 has filed the present appeal challenging the judgment and decrees of the Courts below whereby suit for declaration with consequential relief of permanent injunction filed by the plaintiff-respondent No.1, has been decreed. As per the averments made in the plaint, one Harchand Godara, father of the parties, was owner in possession of land measuring 106 kanals 13 marlas. After his death, mutation of inheritance was sanctioned vide mutation No.1843 dated 25.7.1995 in favour of three sons and six daughters (including the appellant) to the extent of 1/9th share each. However, said mutation was changed by virtue of order (Ex.D2) dated 31.3.2000 passed by S.D.O(C) exercising the powers of Collector, Siwani, and mutation dated 25.7.1995 was cancelled and fresh mutation was sanctioned on the basis of a registered Will dated 16.12.1985 in favour of only three sons of Harchand Godara i.e defendants No.1 to 3 vide Ex.D5 in equal shares. The plaintiff-respondent No.1 challenged the aforesaid mutation alleging that no Will was ever executed by her father Harchand RSA No.1050 of 2010(O&M) 2 and the Will dated 16.12.1985 was the result of fraud and misrepresentation. Thus, the plaintiff claimed herself to be the owner in possession to the extent of 1/9th share in the land in dispute and sought declaration that the Will dated 16.12.1985 was illegal, null and void having no binding effect upon her rights. On the other hand, the defendant-appellant submitted that Will dated 16.12.1985 was legally executed by Harchand himself. It was further submitted that the suit land was ancestral property and in case the Will is ignored then the plaintiff would not be having 1/9th share rather her share in the suit land would be 1/45th share. Thus, prayer for dismissal of the suit was made. After hearing both the counsel for the parties, the trial Court noticed the fact that the onus to prove the Will was upon the appellant however, the original Will was never produced on file and the Will was proved on record by leading secondary evidence without seeking the permission of the Court. It was also found by the trial Court that though certified copy of the Will had been placed on record of the case, however, the same was not a public document within the meaning of Section 74 of the Evidence Act and as such, the certified copy thereof was not per se admissible and unless loss of original Will is proved, the certified copy of the same cannot be taken into consideration and in this view of the matter, the appellant cannot be said to have proved the Will. The trial Court after discarding the Will and keeping in view the admitted facts that the land in dispute was ancestral property of the parties, held that the property in dispute being the coparcenary property was to devolve as per proviso of Section 6 of the Hindu Succession Act, 1956 and therefore, applying the principle of notional partition, each daughter of Harchand deceased was held entitled to get 1/36th share in land measuring 106 kanals 13 marlas RSA No.1050 of 2010(O&M) 3 and his sons i.e defendants No.1 to 3 were held entitled to get 1/36th share each in the aforesaid land. Thus, the suit of the plaintiff-respondent was decreed to the extent of 1/36th share in the suit land and the appellant and defendants No.2 and 3 were restrained from alienating the suit land exceeding their share i.e. 30/36th share of suit land. Not satisfied with the aforesaid judgment and decree of the trial Court, defendant No.1 i.e the appellant only, filed an appeal before the Lower Appellate Court which was dismissed vide impugned judgment and decree dated 3.12.2009. Still not satisfied, the appellant has approached this Court by filing the instant appeal. Learned counsel for the appellant has vehemently argued that both the Courts below have erred at law while not appreciating the fact that the contents of the Will in question were proved from the evidence on record. Elaborating further, learned counsel argued that the execution of the Will was duly proved and therefore, the Court should not have taken a hyper-technical view that the appellant failed to produce the original copy of the Will or that he should have taken permission for leading secondary evidence, which was a procedural defect and the same could be ignored for the advancement of justice. On the basis of the aforesaid argument, learned counsel for the appellant has submitted that the following substantial question of law arises for determination by this Court: “a) Whether the findings of Courts below are perverse, illegal, based on hyper-technical approach and are based on surmises and conjectures and as such are liable to be set aside? b) Whether it would be mandatory to take permission to lead secondary evidence when certified copy of the RSA No.1050 of 2010(O&M) 4 Will has been placed on record and it has been proved thoroughly i.e its execution, contents and registration?” I have heard learned counsel for the appellant and perused the impugned judgment and decrees of the Courts below. The facts are not in dispute. The original copy of the Will in dispute was not placed on record of the case and only a certified copy thereof was placed on record. Section 61 of the Evidence Act, provides that the contents of the document may be proved either by primary or by secondary evidence. The general principle is that if the original document exists and is available, it must be produced, however, if the original is lost/destroyed, secondary evidence is permissible. Section 65 of the Indian Evidence Act, 1872 envisages the situations where secondary evidence relating to a document may be permitted to be adduced. It is well settled that unless loss of a document as envisaged under Section 65 of the Indian Evidence Act is proved, secondary evidence of the same cannot be allowed to be adduced. Admittedly, in this case, at no stage, the appellant has sought permission of the Court to prove the Will in question by leading secondary evidence. Again, there is no dispute that certified copy of the Will is not a public document within the meaning of Section 74 of the Evidence Act and is not admissible per se in evidence. Thus, the certified copy produced on record of the case cannot be presumed to be primary document which could be adduced in evidence and the same could have been proved only while leading secondary evidence after taking permission of the Court and proving the loss, destruction etc. of the aforesaid document. In this view of the matter, certified copy of the Will on the record of the case cannot be taken into consideration. No fault can be found with the findings of the Courts below. RSA No.1050 of 2010(O&M) 5 No other point was urged. Thus, no substantial question of law arises in this appeal. Dismissed. March 11, 2010 (RAKESH KUMAR GARG) ps JUDGE