CR No.2069 of 2011 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. DATE OF DECISION: 30.8.2011 Surinder Kumar ...Petitioner VERSUS Ashok Kumar and others …Respondents CORAM HON'BLE MR.JUSTICE PERMOD KOHLI PRESENT: Mr.Vikas Kumar, Advocate for the petitioner Mr.P.S.Jammu, Advocate for the petitioner Permod Kohli, J. (Oral) This revision is directed against the order dated 16.3.2010 passed by Civil Judge (Junior Division), Sirsa rejecting the application of the petitioner (defendant no.1) in the suit for secondary evidence to prove the will dated 15.3.1995 allegedly executed by the father of the petitioner. The petitioner herein is defendant no.1 in the suit for declaration filed by respondent no.1. The petitioner filed an application seeking indulgence of the court for leading secondary evidence in respect of the will referred to here-in-above. It was, inter alia, pleaded that the father of the petitioner had executed the will in his favour. This will was produced before the Assistant Collector 1st Grade, Ellenabad at the time of entering the succession mutation no.1977 in respect of the suit land situated in village Ottu Tehsil CR No.2069 of 2011 2 Rania, Sirsa. It is further alleged that the Assistant Collector 1st Grade recorded the compromise statement of the parties and decided the mutation as compromised . It is further the case of the petitioner that photocopy of the will was prepared before the same was submitted to the Assistant Collector. The petitioner further pleaded in the application that the said will has not been returned by the Office of Assistant Collector and seems to have been lost or misplaced in the office of Tehsildar, Rania. The petitioner accordingly prayed for permission to lead secondary evidence to prove the will, copy whereof was placed on record. This application was, however, resisted by the plaintiff alleging that the will is result of fraud and manipulation. It was also pleaded that the petitioner has failed to establish the loss of the will. It was also contended that the will is chargeable with duty. The petitioner relied upon the statement contained in the order dated 26.7.2006 passed by the Assistant Collector 1st Grade Ellenabad on mutation no.1977 in respect of the suit land situated in village Ottu, Tehsil Rania, District Sirsa, as also the statement of Lachhman Dass Office Kanoongo who had appeared as a witness (PW1). This witness stated that alongwith record relating to Mutation No.1977, a photocopy of the will dated 15.3.1995 is attached. His further statement was that normally will is returned to the beneficiary and that must be with the defendant no.1 i.e. the petitioner herein. The Assistant Collector 1st Grade, Ellenabad in his order dated 26.7.2006 referred to a compromise between the petitioner and other persons in respect of mutation. On the basis of the compromise, mutation has been entered in favour of the petitioner in respect of the estate of Jagdish Rai, his father. The parties appearing before the Assistant Collector CR No.2069 of 2011 3 admitted the genuineness of the will which formed the basis of mutation. The trial court rejected the application for leading secondary evidence only on the ground that the loss of the will has not been proved. Further reasoning recorded is that if the secondary evidence is allowed and later if the original will is traced, the same cannot be produced in any subsequent proceedings. I have heard learned counsel for the parties and perused the impugned order as also the order dated 26.7.2006 passed by the Assistant Collector 1st Grade, Ellenabad on mutation no.1977 in respect of the suit land situated in village Ottu, Tehsil Rania, District Sirsa (Annexure P-2). The trial court has not only misinterpreted the provisions of Section 65 of the Indian Evidence Act, 1872 but also misdirected itself in arriving at the conclusion that the absolute loss of the document is to be established. The trial court has also committed a glaring illegality by holding that if the original will is subsequently found, the same cannot be produced in any other proceedings. Section 65 of the Indian Evidence Act, 1872 reads as under:- “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 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; CR No.2069 of 2011 4 (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 1*[India] to be given in evidence; (g) when the originals consist 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 whole collection. In cases (a), (c) and (d), any secondary evidence of the contents of the document 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.” From the reading of the aforesaid Section, it transpires that secondary evidence of a document is permissive where the document is not traceable or is lost. It is not necessary that the loss of the document is to be established before the secondary evidence is allowed. Loss could be a temporary phenomena where the document is not traceable and can be presumed to be lost. The essential ingredient of the secondary evidence is that the existence of the original document must not be in doubt, though its availability may be even a transitional situation. In the instant case, the existence of the will has been established by the petitioner which is evident from the order dated 26.7.2006 passed by the Assistant Collector 1st Grade, Ellenabad. This order refers to the will relied upon by the petitioner and also its genuineness having been accepted by the parties before him. Even PW-1 Lachman Dass, Office of Kanoongo who appeared as a witness also established the existence of the original will at the time of entering into mutation and availability of its copy on the official record of the mutation. The findings of the trial court that the loss of the document has not been established, though the existence is not in dispute, are not sustainable in law being erroneous. The other reason of the trial court that in future such a CR No.2069 of 2011 5 document cannot be produced, is not only irrelevant, but also misplaced. A document may not be traceable at a particular point of time and secondary evidence of its existence can be given in the absence of the original document. However, if the document is subsequently traced, no law prohibits its production in any proceedings, if it is established that it is the original document which was earlier allowed in some judicial proceedings. In any case, this question was irrelevant for the purpose of deciding the application of the petitioner. In this view of the matter, the findings of the trial court are erroneous and are not sustainable in law. This petition is accordingly allowed. Impugned order dated 16.3.2010 passed by the Civil Judge (Jr.Division), Sirsa is hereby set aside and the petitioner is permitted to lead secondary evidence in respect of the will dated 15.3.1995. Parties to appear before the trial court on 30.9.2011 at 10.00 a.m. (PERMOD KOHLI) JUDGE 30.8.2011 MFK Note: Whether to be referred to Reporter or not?/NO CWP No.10585 of 2010 6