RSA No.949 of 1982 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH RSA No.949 of 1982 Date of decision: 5.3.2010 Chaman Lal ............Appellant Versus David and another .........Respondents CORAM: HON'BLE MR. JUSTICE ALOK SINGH -.- Present: Mr. Ashwani Talwar, Advocate for the appellant. Mr. J. S. Bhatia, Advocate for the respondents. --- ALOK SINGH, J. 1. This is a second appeal filed by the plaintiff/appellant, assailing the judgment and decree dated 29.7.1981 passed by the learned trial Court in Suit No.74 of 1981 and judgment and decree dated 4.3.1982 passed by the learned first Appellate Court/Addl. District Judge, Ambala, thereby dismissing the first appeal of the plaintiff. 2. The brief facts of the present case are that plaintiff/appellant has filed a suit for partition seeking 1/4th share in the property in dispute. Defendants No.1 to 3 are the real brothers of the plaintiff. Sonny Narsingh, Christian who was the owner of the RSA No.949 of 1982 2 property in dispute had died living behind four sons i.e. plaintiff and the defendants No.1 to 3. During the pendency of the case, defendant No.2 – Samuel died, hence, by way of amendment plaintiff claimed 1/3rd share in the property in dispute left behind by his father Sonny Narsingh, deceased. 3. Defendants contested the suit by way of filing the written statement and contended that their father Sonny Narsingh during his lifetime has executed the Will bequeathing entire property in favour of defendants No.1 and 2. It has further been pleaded by the defendants that plaintiff has taken original Will from the defendants on the pretext of showing the same to his advocate and the plaintiff did not return the said Will. 4. On the pleadings of the parties, learned trial Court has formulated following issues:- “1. Whether the plaintiff is joint owner of the property in suit with defendant and has 1/3rd share therein as alleged?OPP. 2. Whether defendants No.1 and 2 are exclusive owners of the suit property on the basis of a Will executed by Sonny Narsingh, deceased?OPD. 3. Whether the suit in the present form is not maintainable?OPD. 4. Whether the plaintiff has no locus standi to file the present suit?OPD. 5. Whether the suit has been properly valued for the purposes of court-fee and jurisdiction?OPP. 6. Relief.” 5. Undisputedly, neither original Will nor copy thereof was ever produced in the Court. Undisputedly, no notice was ever issued RSA No.949 of 1982 3 to the plaintiff to produce the original Will which allegedly was in his possession to produce the same in the Court before adducing oral evidence to prove the factum of the Will. In the trial Court Krishan Lal Sawhney, petition writer (DW1) and Brij Rak Saran Cowshish, Advocate (DW3) were produced. Learned trial Court on the basis of oral testimony of Krishan Lal Sawhney, DW1, and Brij Rak Saran Cowshish, DW3, decided issue No.2 in favour of the defendants and has held that in fact Sonny Narsingh, father of the parties, executed the Will in favour of the defendants No.1 and 2 bequeathing his entire property in their favour. Learned first Appellate Court also concurred with the findings recorded by the learned trial Court. Hence the present appeal. 6. I have heard learned Counsel for the parties and perused the record. 7. As per office report dated 21.10.2009, lower Court record has been lost in fire on 10.7.2004 and hence could not be produced before this Court. Both the Counsel agreed, since case is more than 28 years old, hence, same can be decided on the basis of facts mentioned in the judgments of both the Courts below. Hence, I proceed to decide the appeal with the help of learned Counsel for the parties. 8. In the present appeal, following substantial questions of law were formulated:- 1. As to whether a will can be proved, without producing the original will or copy thereof, merely by oral evidence (secondary evi- dence). 2. As to whether findings of both the Courts be- low are perverse and illegal in view of the RSA No.949 of 1982 4 Sections 65 and 66 of the Indian Evidence Act. 9. Undisputedly, Will was unregistered and neither produced before any Court nor copy of the Will was ever produced. Undisputedly, none of the witnesses could state on oath entire language of the Will. Undisputedly, no notice was ever served to the plaintiff to produce the alleged Will which was said to be in his possession as per the pleadings of the defendants. Undisputedly, no permission was ever sought from the trial Court to lead secondary evidence to prove the factum of the Will. In view of the above, merely because Subscriber, DW1 and Notary, DW3 stated that Sonny Narsingh had executed the Will, which could not see light of the day, would not prove the terms and conditions and contents of the alleged Will. 10. Section 63 of the Evidence Act defines the secondary evidence which reads as under:- “63. Secondary evidence – Secondary evidence means and includes – 1. Certified copies given under the provisions hereinafter contained; 2. Copies made from the original by mechanical process which in themselves insure the accuracy of the copy, and copies compared with such copies; 3. Copies made from or compared with the original; 4. Counterparts of documents as against the parties who did not execute them; 5. Oral accounts of the contents of a document given by some person who has himself seen it.” RSA No.949 of 1982 5 11. Section 64 of the Evidence Act provides that documents must be proved by primary evidence except in the cases hereinafter mentioned. Section 65 of the Evidence Act defines the situation under which secondary evidence relating to a document may be given. Section 65 of the Evidence Act 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; (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 RSA No.949 of 1982 6 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 whole collection.” 12. From the perusal of Section 65(a) of the Evidence Act, it can safely be said that secondary evidence may be given when the original document is shown or appears in possession or power of the person against whom the document is sought to be proved and when, after the notice mentioned in Section 66, such person does not produce it. 13. In the present case, case of the defendants as pleaded in the written statement is that plaintiff has taken the original Will on the pretext of showing it to his lawyer, and thereafter, did not return it. In my humble opinion, before taking into account the secondary evidence produced by the defendants, a notice under Section 66 ought to have been served to the plaintiff to produce the Will before the Court, which admittedly defendants never issued. Moreover, defendants never lodged an FIR or complaint against the plaintiff except to take pleadings in the written statement. In my humble opinion, in such a situation, where Will has not seen light of the day and defendants are taking plea that Will was taken by the plaintiff on the pretext of showing it to the lawyer, a strong evidence is required to prove, beyond doubt, that in fact plaintiff has taken the Will on the pretext of showing it to his lawyer. Once by primary evidence it is proved that person against whom the document is sought to be proved is in possession of the document then only secondary RSA No.949 of 1982 7 evidence would be admissible that too after notice under Section 66 of the evidence Act. 14. Section 66 of the Evidence Act reads as under:- “66. Rules as to notice to produce – Secondary evidence of the contents of the documents referred to in Section 65, clause (a), shall not be given unless the party proposing to give such secondary evidence has previously given to the party in whose possession or power the document is, [or to his attorney or pleader], such notice to produce it as is prescribed by law; and if no notice is prescribed by law, then such notice as the Court considers reasonable under the circumstances of the case: Provided that such notice shall not be required in order to render secondary evidence admissible in any of the following cases, or in any other case in which the Court thinks fit to dispense with it:- 1. when the document to be proved is itself a notice; 2. when, from the nature of the case, the adverse party must know that he will be required to produce it; 3. when it appears or is proved that the adverse party has obtained possession of the original by fraud or force; 4. when the adverse party or his agent has the original in Court; 5. when the adverse party or his agent has admitted the loss of the document; 6. when the person in possession of the document is out of reach of, or not subject to, the process of the Court. RSA No.949 of 1982 8 15. From the perusal of Section 66, it can safely be said that notice under Section 66 shall not be required when any of the six conditions mentioned in Section 66 is in existence. 16. In the present case, Will is not a notice; plaintiff is not supposed to produce the Will. It could not be proved beyond doubt by positive evidence that plaintiff has obtained the original Will by playing fraud. Plaintiff did not admit that he had original Will at the time of his evidence in the Court; plaintiff never admitted that Will was ever lost; plaintiff had always been within the jurisdiction of the Court. Hence, none of the six exception of Section 66 of the Evidence Act was available before the defendants claiming exemption of notice under Section 66 of the Act to the plaintiff to produce the Will. 17. In view of the discussion made herein above, I hold that without notice under Section 66 of the Evidence Act factum and contents of the Will cannot be proved by secondary evidence by producing Subscriber and Notary. 18. Moreover, in the present case, undisputedly, plaintiff and defendants are real brothers. I find no evidence on record to show as to why father has deprived two of his sons from the property and has decided to bequeath his property in favour of defendants No.1 and 2 (another two sons). It is unnatural circumstance giving rise to suspicion in the case of the defendants. In the matter of dispute between the brothers on the question of inheritance, best course is to accept that all the brothers would have inherited the property from the parent unless otherwise is proved by cogent evidence. In the present case, defendants failed to prove the factum of Will depriving the plaintiff from the natural inheritance. RSA No.949 of 1982 9 19. Moreover, if terms and conditions and entire contents of the Will could not be stated by any of the witnesses, then it would be difficult to say, as to whether alleged bequeathing of the property was subject to any condition or Will was contingent or what was the real intention of the person executing the Will. Hence, both the questions of law are answered in favour of the plaintiff and against the defendants. 20. In view of the above, judgments passed by both the Courts below cannot be sustained in the eyes of law. The appeal is allowed with costs through out and plaintiff is declared entitled to 1/3rd share in the property in dispute. Preliminary decree be prepared accordingly. (ALOK SINGH) 5.3.2010 JUDGE ashish