C.R. No. 4402 of 2008 [1] IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. C.R. No. 4402 of 2008 Date of Decision: July 21, 2009 Himat Singh and another …..Petitioners Vs. Tirlok Singh and others …..Respondents CORAM: HON’BLE MR. JUSTICE M.M.S. BEDI. -.- Present:- Mr. Ashok Jindal, Advocate for the petitioners. Mr.Yogesh Sharma, Advocate Mr.Avnish Mittal, Advocate for respondent No.8. -.- M.M.S. BEDI, J. Defendants’ application for allowing them to prove Will dated August 9, 1966 alleged to have been executed by Takhat Singh by secondary evidence has been dismissed vide impugned order dated August 6, 2006 by Additional Civil Judge (Senior Division), Malout. The legality of the impugned order cannot be appreciated without considering in brief C.R. No. 4402 of 2008 [2] the nature of the controversy involved between the defendant- petitioners and plaintiff- respondents. The plaintiff- respondent Tirlok Singh had filed a suit seeking a declaration that Takhat Singh, grand-father of plaintiff had not executed any Will much less alleged Will dated August 9, 1966 registered on May 16, 1968 in favour of Gurdial Singh son of Takhat Singh and the alleged Will is forged and fabricated document ineffective against the rights of the plaintiff- respondent and non-contesting defendants. Mutation of inheritance sanctioned in favour of Gurdial Singh on the basis of said Will was also challenged. The plaintiff- respondent had pleaded in para 4 of his plaint that in 1982 Gurdial Singh (now deceased) father of defendant- petitioners illegally got the properties started claiming himself to be absolute owner on the basis of alleged unregistered Will dated August 9, 1966, purported to have been executed by Takhat Singh in his favour. The said Will was got registered on May 16, 1968. It was pleaded in the plaint that the original Will be got produced from defendants No.1 to 6A (heirs of Gurdial Singh). In para 5 of the plaint it was pleaded that Takhat Singh in his life time and with a free and disposing mind, did not execute any will much less the Will dated August 9, 1966. The said Will, if any, is only a paper transaction and the same has been forged and fabricated by Gurdial Singh in connivance with scribe and witnesses as such the same is illegal, null and void. The cause of action arose in favour of plaintiff- respondents in the year 1982 when entry regarding the death of Takhat Singh was got made and in the year 1985 when mutation of inheritance was got sanctioned regarding the land in dispute. The suit was filed on August 31, 1990. It is C.R. No. 4402 of 2008 [3] pertinent to observe here that an application for allowing the defendants to prove Will dated August 9, 1966 executed by Takhat Singh by way of secondary evidence was filed on April 7, 1993. Copy of the application has been placed on record as annexure P-2. The application for leading secondary evidence has been decided vide impugned order dated August 6, 2008 i.e. after a period of 15 years. The petitioners alongwith other defendants have mentioned in the said application that the original Will has not been traced out by the defendants, however, after the death of Takhat Singh, the Will was got registered from the office of JSR and the plaintiffs have produced the certified copy on file. As the beneficiary of the Will i.e. father of the defendants has also died, there is no other via-media for the defendants to prove the said Will except by way of secondary evidence. Vide impugned order dated August 11, 2008, Additional Civil Judge, (Sr. Divn.) Malout, has dismissed the application for production of secondary evidence regarding the Will, observing that for the purpose to lead secondary evidence of alleged Will dated August 9, 2006, there is no prima facie evidence to establish the existence of the Will even the revenue record which reflected mutation sanctioned in favour of Gurdial Singh son of Takhat Singh, did not show anywhere that mutation of inheritance was sanctioned on the basis of the Will dated August 9, 1966. The Mutation No.2689 nowhere reflected date of execution of the Will dated August 9, 1966 but only reflected some registered Will dated May 16, 1968 which was registered after the death of alleged executant Takhat Singh, deceased. As mere existence of Will dated August 9, 1966 could not be established by the C.R. No. 4402 of 2008 [4] defendants, as such provisions of Sections 63 and 65 of the Indian Evidence Act, is not attracted. I have heard counsel for the petitioners as well as counsel for the respondents and carefully considered the facts of the present case. It is the case of the plaintiff- respondents themselves that there had not been any Will dated August 9, 1966 nor any such Will had been registered in the year 1968 but simultaneously it has been pleaded in the plaint that if any Will dated August 9, 1966 exists, it is a forged and fabricated document by Gurdial Singh in connivance with the scribe and witnesses. It is also an admitted fact that certain revenue entries have been made on the basis of a Will alleged to have been registered in the year 1968. A careful perusal of the pleadings and issues framed makes it clear that the existence and creation of a document purporting to be a Will of Takhat Singh in favour of Gurdial Singh is admitted but the validity, execution, authenticity and admissibility of the Will has not been admitted and it has been challenged that the rights claimed on the basis of document purporting to be Will registered after the death of the executor, certain rights have been claimed by the defendant- petitioners, which is wrong. The defendant- petitioners in the very beginning i.e. in the year 1993 about 15/16 years back had filed their application for leading secondary evidence. They had mentioned that the document which was sought to be proved was in possession of Gurdial Singh who had died, as such he was out of reach of the Court and was not subjected to the process of the Court. When a document is registered, it raises a presumption that a document actually existed. If said document is C.R. No. 4402 of 2008 [5] said to be a Will, it will not absolve the propounder of his liability to establish its execution in accordance with the provisions of law, not only that any suspicion regarding the execution of the document has to be explained. The effect of delay in filing of the suit by the plaintiff- respondents is also yet to be examined by the trial Court while adjudicating the case finally. After hearing counsel for both the parties and taking into consideration the circumstances of the present case, I am of the opinion that a misconception exists in the mind of the counsel for both the petitioners as well as the counsel for the respondents that granting of leave to lead secondary evidence would tentamount to admitting the document in evidence or it would tentamount to a presumption of existence of the conditions indicated in Section 65 of the Evidence Act. Section 65 of the Indian Evidence Act permits the leading of secondary evidence under circumstances enumerated thereunder which are as follows:- “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 C.R. No. 4402 of 2008 [6] 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 whole collection.” It is specifically pleaded in the application of the petitioners that the original Will was not in their possession, Gurdial Singh having C.R. No. 4402 of 2008 [7] died, the document was out of their reach. In the judgment of Ashok Kumar Sachdeva Vs. Harish Malik, 2007 (4) RCR (Civil) 311 a Coordinate Bench of this Court after considering relevant law pertaining to provisions of Sections 63 and 65 of the Evidence Act held as follows:- “5. After hearing learned counsel for the parties, I am of the view that to prove a document by way of primary or secondary evidence is a rule of evidence. Whether the party seeking leave of the Court to lead secondary evidence ultimately succeeds in proving the document or not is a question of fact and depends upon evidence. Petitioner has pleaded in the application the loss of original document. Under what circumstances document was lost is a question of fact and evidence. It is settled rule of pleadings that a party must disclose material facts and need not plead evidence. In the instant case material fact is loss of document and circumstances leading to loss is a question of evidence. This question can only be decided after providing opportunity to the party concerned to lead secondary evidence. To grant leave to lead secondary evidence does not mean the document is admitted in evidence nor it is a finding of the existence of any of the conditions indicated in Section 65 of the Evidence Act. It only amounts to holding an enquiry regarding existence of document and its loss under some C.R. No. 4402 of 2008 [8] circumstances. Failure or success to prove the existence of document or its loss cannot be pre- determined that too without providing opportunity. Whether it is proved or not, is to be seen after the leave is granted and the material/evidence produced, is evaluated. The question raised by learned counsel appearing for the respondent is premature at this stage.” Following the abovesaid ratio, this Court is of the opinion that proving a document by way of primary or secondary evidence, being a rule of evidence, whether a party seeking leave of the Court to lead secondary evidence ultimately succeeds in proving the document or not, would always be a question of fact depending upon the evidence and the material fact of loss of document or its non-availability being out of reach of a party can only be decided after an opportunity is provided, to party concerned to lead secondary evidence. It is again highlighted that when leave is granted to lead secondary evidence, it would not amount to a presumption that a document has been admitted in evidence or that the existence of condition indicated in Section 65 of the Evidence Act is established. In the present case, unless and until an opportunity is granted to the defendant- petitioners to prove the existence of the alleged Will, its loss cannot be predetermined. Whether the Will is proved or not will have to be seen after leave is granted and material evidence produced and is ultimately appreciated and evaluated. With the abovesaid observations, the impugned order denying an opportunity to the defendant- petitioners to establish their case cannot be C.R. No. 4402 of 2008 [9] said to be a valid order. It deserves to be set aside being unfair and illegal and is hereby set aside. However, taking into consideration the fact that the suit was filed by the plaintiff- respondent in the year 1990 and a period of 18 years have elapsed, a direction is issued that trial Court will give short adjournments in the present case and will try to dispose of the case expeditiously by giving short dates. It is made clear that in case an attempt is made by the defendants to delay the proceedings by raising lame excuses it will always be open to the trial Court to close the evidence and proceed to decide the case. Allowed in the aforesaid terms. July 21, 2009 (M.M.S.BEDI) sanjay JUDGE