IN THE HON’BLE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. CMPMO 31 of 2008. Judgment Reserved on 10.3.2009. Date of decision 13.3.2009. Raghubir Singh …Petitioner/Defendant Versus Hira Singh & others …Respondents. Coram: The Hon’ble Mr. Justice Dev Darshan Sud, J. Whether approved for reporting?1 No. For the petitioner Shri Bimal Gupta, Advocate. For the respondents Ms. Jyotsna Rewal, Advocate. Dev Darshan Sud, J. This petition has been preferred by the defendant against the order passed by the learned trial Court rejecting the application filed by the petitioner seeking permission to lead secondary evidence. The allegations made in the application were that the plaintiff had challenged the will dated 29.5.1990 on the ground that its executor late Shri Mansha Ram was deaf and dumb and mentally retired (sic) retarded person. It was pleaded that on 19.6.1999 he produced the will before the Sub Registrar, (Naib Tehsildar), Paonta Sahib for registration. This was presented to him on 17.8.1999 1 Whether Reporters of Local Papers are allowed to see the judgment? Yes. - 2 - on which date the Sub Registrar had marked the application to the Reader. The will was never registered nor returned to the applicant despite various efforts and demands which were made. On 12.4.2004, a request was made by the petitioner that the original will be returned to him but he was informed that there was no entry in the record of the registrar on 19.6.1999, 17.8.1999. In the circumstances, permission was prayed for by the petitioner herein for permission to prove the execution and authenticity of the will by way of secondary evidence. This application was resisted by the respondent-plaintiff on the ground that no such will was executed, the testator was deaf and dumb and mentally retired (sic) retarded person and not in a position to execute any will. The reply avers that if the deceased testator had executed any will, it must have been in possession of the applicant and should have been produced at the time of filing of the written statement. Parties led their respective evidence on the issue. The learned Court while deciding the application held that the conditions under Section 65 (c ) of the Indian Evidence Act, 1872 (hereafter referred to as the Act) were not satisfied and therefore, the application was rejected. - 3 - I have heard the learned counsel for the parties and gone through the record. On the totality of the evidence on record by the petitioner herein, it is clear that Ex.AW-1/A, application dated 19.6.1999 was presented to the Sub Registrar and was marked with the remarks “Reader to check and report”. This is in the handwriting of the Sub Registrar as has been stated by two of the witnesses AW-3 and AW-4. Application Ex.AW-1/B, dated 12.4.2004 presented to the Sub Registrar requesting him that the original copy of the will has also been proved on record. The case of the respondent – plaintiff is one of denial simplicitor. Before I turn to the submissions made by the learned counsel for the parties, I must observe that the learned trial Court has framed an issue on the pleadings of the parties as to whether the testator was deaf and dumb and not possessed of mental faculties to execute the testamentary instrument. This of course is a matter for trial. I need not observe that in case this issue is decided against the petitioner herein, that is to say that the capacity of the testator to execute the will is negatived, the entire controversy as to whether secondary evidence should and ought to be allowed or not, would only be academic. In any event, the respective submissions made by the parties have to be considered. - 4 - Learned counsel appearing for the respondents has placed reliance on judgment of the Supreme Court in Sital Das v. Sant Ram and others, AIR 1954 SC 606 and in particular on the principle of law therein that Section 90 of the Act requires that the production of particular document in regard to which the Court is called upon to draw statutory presumption, the particular document is required to be proved. If such document is not produced, copy thereof can be produced if it satisfies the requirements of Section 65 of the Act. Mere production of the copy raises no presumption. All that need be said is that the mere production or permission to lead secondary evidence does not invite any statutory presumption. She then places reliance on a judgment of the Allahabad High Court in Hira Lal v. Ram Prasad and others, AIR (36) 1949 Allahabad 677 to urge that Sections 65 and 66 of the Act are not intended to grant any advantage to persons who deliberately or with sinister motive refuses to produce the original in Court. These are settled principles of law and the question of motive will be determined on the evidence in a particular case. She submits that there was no credible evidence on record to establish the loss of the original and for this purpose places reliance on a decision of the Andhra Pradesh High Court in Smt. Bobba Suramma v. Smt. Peddireddi Chandramma, AIR 1959 Andhra Pradesh 568. She also submits that it is the - 5 - trial Court’s jurisdiction to decide as to whether there is sufficient proof of loss of the original document and diligent search having been made. She relies upon Pandu v. Bapudas and others, AIR 1929 Nagpur 288. On the principles of law as urged there can be no dispute. However, in each of the judgments cited by the learned counsel for the respondent, it is the factual matrix which has to be considered before application of the principle of law. The learned trial Court has given short shrift to the principles of law applicable and ignored the provisions of Section 65 (c) of the Act. The learned Court notes that the application Ex.AW-1/B is not credible and that there is no other document to substantiate what has been written in that application. The Court also notes that the very fact that the petitioner herein did not take any action within five years itself renders the entire case put forth by the petitioner as doubtful. Section 65 (c ) of the Act reads: “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) ….. (b) …. (c) when the original has been destroyed or lost, or when the party offering evidence of its contents - 6 - cannot, for any other reason not arising from his own default or neglect, produce it in reasonable time…..” It was the duty of the Court to have considered as to whether these conditions are satisfied. The Court cannot be judgmental by inference but findings have to be arrived at after a thorough appraisal of the evidence. I do not find any such exercise having been undertaken by the Court below. A reading of Ex.AW-1/B and the evidence of AW-3 and AW-4 (both witnesses from the Court of Sub Registrar) leave no doubt in my mind that the application was made for registration of the will and that the original will was presented along with the application. There is nothing in cross examination of AW-3 and AW-4 which would discredit their testimonies. Merely asserting that there is negligence without any proof does not constitute sufficient ground to reject the application. Learned counsel then places reliance on a decision of the Supreme Court in Dr. Gurmukh Ram Madan v. Bhagwan Das Madan , (1998) 7 SCC 367. That case is confined to its facts and the Supreme Court negatived the contention of the claimant therein to lead additional evidence after a thorough consideration of facts brought on record. Learned counsel submits that the petitioner cannot take advantage of his own wrongs and that he had in fact presented the original will - 7 - before the Tehsildar. Learned counsel has drawn my attention to Ex.P-2. The patwari has made a note on 22.2.1999 that the petitioner herein had presented the original will for the purposes of having the mutation attested. Ex.AW-1/A was presented on 17.8.1999. Ex. P-2 does not advance the case of the respondents any further. Learned counsel then urges that by an order Ex.P-3, the Collector had set aside mutation Ex.P-2 for decision afresh. This decision was rendered on 18.12.2001 and the order states that the will is in possession of the petitioner herein. Nothing could be farther from the truth. The order only notes that the will had been presented before the patwari and nothing more. In the totality of the facts and circumstances of the case, I find that the trial Court has not at all considered the principles of law applicable nor has it applied its mind to the facts and circumstances of the case. Mere delay cannot be taken as conclusive proof of malafide. I do not find the Court dealing with the averments made in the application or the evidence of the witnesses in an analytical manner. In these circumstances, this petition is allowed and the order of the learned trial Court dated 26.10.2007 is quashed and set aside. Permission is granted to the petitioner herein to prove the will in accordance with law. It is also clarified that any observation made herein is confined - 8 - strictly to the question of granting permission to the petitioner to lead evidence and does not touch on the merits or the authenticity of the claims of the respective parties and shall have no bearing on the ultimate decision in the suit. Parties are directed to appear before the trial Court on 30.4.2009. The trial Court shall expedite the trial of the suit. The Registry is directed to send back the records immediately. There shall be no order as to costs. All interim orders shall stand vacated and applications dismissed. March 13, 2009 (PC). (Dev Darshan Sud), J.