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2019 DIGILAW 492 (UTT)

NUPUR SINGH @ NUPUR CHAUHAN v. SHALINI PREM

2019-09-12

SUDHANSHU DHULIA

body2019
JUDGMENT Hon'ble Sudhanshu Dhulia, J. (Oral) This first appeal arises out of judgment and decree of the Trial Court dated 27.05.2016 passed by the Civil Judge (Senior Division) Roorkee, District Haridwar in O.S. No.158 of 2012 “Smt. Shalni Prem Vs. Nupur Singh and others", whereby the suit for partition of the plaintiff/respondent no.1 has been decreed by giving 1/4th equal share of the property to the four legal heirs. 2. Brief facts of the case are that a piece of land was purchased by Shri Yudhisthir Singh way back in the year 1959, on which later a hotel called “Motel Polaris" was constructed in the year 1961-1962, and since then the hotel was being run on the said place. Shri Yudhisthir Singh and his wife Smt. Madhu Singh had four children, three daughters namely Shalini Prem, Shivani and Sunaina and one son Dhruv Singh. 3. The parties are related to each other as indicated by the subjoined pedigree given below. 4. Shri Yudhisthir Singh passed away in the year 1980 and his wife Smt. Madhu Singh later passed away on 15.03.1999. Admittedly the motel was being run by their son Dhruv Singh, at the relevant point of time. Dhruv Singh was married to Nupur Singh (the present appellant no.1), on 27.11.2000 and out of the said wedlock there is a daughter called Namya (Appellant No.2), who was born on 09.05.2008. Dhruv Singh died on 18.08.2012 and after his death a dispute arose regarding the property between the present appellants on the one hand and the three sisters of the deceased (Dhruv Singh) on the other. 5. Initially a suit for declaration and injunction was filed by Smt. Nupur Singh (Appellant no. 1 here), which was registered as Suit No.94 of 2012 before the civil court at Roorkee, which was dismissed for non prosecution. Admittedly no application for restoration or appeal was filed against the dismissal. 6. In the year 2012, another suit was filed by Shalini Prem (one of the three sisters) for partition of the property i.e. Motel Polaris, which was registered as Suit No.158 of 2012 “Shalini Prem Vs. Nupur Singh and others" in which she made her two sisters as defendant nos.3 and 4 respectively and her sister-in-law Nupur Singh as defendant no.1 and the minor daughter of Nupur Singh as defendant no.2. Nupur Singh and others" in which she made her two sisters as defendant nos.3 and 4 respectively and her sister-in-law Nupur Singh as defendant no.1 and the minor daughter of Nupur Singh as defendant no.2. The contention of the plaintiff was that the property which was purchased by Shri Yudhistir Singh in the year 1959, on which the hotel called “Motel Polaris" was constructed in the year 1962 has to be equally divided between the three sisters and the appellant Nupur Singh i.e. her sister-in-law into four equal shares. It was also stated that there had been previous litigation regarding the said property where the property has always been shown to be a joint property of the family. 7. Inter alia, the contention of the plaintiff was that after the death of her father Shri Yudhistir Singh (in the year 1980), the loan which he had taken for the construction of the hotel was to be repaid to the UP Financial Corporation and since the loan was to be repaid, part of the property was sold in order to repay the loan for which permission was sought by Smt. Madhu Singh (his widow), on her behalf as well as on behalf of her minor children, to sell the property so that loan be repaid. At this point the property was described to be in joint ownership of the family. 8. The suit filed by plaintiff Shalini Prem being Suit No. 158 of 2012 was not contested by defendant nos. 3 & 4 who were the sisters of the plaintiff. The suit was contested by defendant nos.1 & 2 (from hereinafter for defendant nos. 1 & 2, the reference will be as defendant no. 1 alone which shall include defendant no. 2). Initially the stand taken by defendant no.1 in her written statement was that the entire property belonged to Shri Yudhisthir Singh i.e. her father in law, and thereafter it of the portion of the property and after his death the entire 2/5came to the share of his wife Smt. Madhu Singh and his son Shri. Dhruv Singh and the mother and the son had 50% share each on the property. Later vide an amendment to the written statement it was said that Dhruv Singh was the owner of the entire property, on the basis of the “Will" executed by Madhu Singh dated 25.02.1999, by which the testatrix gave her entire share to Dhruv Singh i.e. her son. Later again vide an amendment, the stand was that the entire property belongs to Madhu Singh and by the Will dated 25.02.1999, the entire property was given to her son Dhruv Singh and now the sisters have no claim on the said property. Finally an amendment was made in the written statement that it was a joint property of the family and as there were five claimants on the property, after the death of Yudhisthir Singh the property was equally divided into five parts i.e. one part belonging to the wife and the remaining four equal parts to the remaining four children and since Madhu Singh had given her share i.e. 1/5th share of the property to her son i.e. Dhruv Singh, on the basis of her Will dated 25.02.1999, Sri Dhruv Singh became the owner of the 2/5th th share of the property will devolve on his wife i.e. Nupur Singh and her daughter. This is admittedly the final stand taken by the defendant nos.1 and 2 after the amendment in the written statement. 9. In short therefore ultimately after more than one amendments in their written statement, the claim of defendant nos. 1 and 2 is for the 2/5th share of the property, which rests entirely on the Will dated 25.02.1999 of Ms. Madhu Singh. The original copy of the “Will" was never produced before the Court. 10. Meanwhile during the trial, an application was moved by the defendant no. 1 before the court concerned for giving direction to the plaintiff and defendant nos. 3 & 4 to produce the copy of the original Will, as defendant no. 1 claimed that the original Will is in possession of defendant nos. 3 & 4. This application was rejected by the court below and being aggrieved by the order passed by the learned trial court, the defendant nos. 1 & 2 moved a civil revision before this Court being Civil Revision No. 134 of 2015, which was also dismissed. However, in that order liberty was given to defendant no. 3 & 4. This application was rejected by the court below and being aggrieved by the order passed by the learned trial court, the defendant nos. 1 & 2 moved a civil revision before this Court being Civil Revision No. 134 of 2015, which was also dismissed. However, in that order liberty was given to defendant no. 1 to adduce secondary evidence in order to substantiate her stand, in accordance with law. Admittedly what has been produced as “Will" is a photocopy by defendant no. 1 before the court below. This copy has been admittedly received by defendant no.1 from the office of Nagar Nigam, Haridwar under the Right to Information Act, 2005. 11. The learned counsels for the plaintiff contested the admissibility of this document as a “secondary evidence", as they would submit that it does not fall within the definition of “secondary evidence" under Section 3 of the Evidence Act, nor is it a case where there is a situation as given in Section 65 of the Evidence Act where the court can appreciate the secondary evidence. We will come to this aspect in a while. 12. Meanwhile, the court though did not accept the “Will" to be a secondary evidence but nevertheless allowed the defendant nos.1 & 2 to produce witnesses in order to prove the veracity of the “Will". 13. The following issues were framed by the Trial Court:- “1. Whether the disputed property i.e. hotel was constructed by the father of the plaintiff late Yudhisthir Singh and the plaintiff has inherited 1/4 share in the property? 2. Whether the ancestor of the parties Late Yudhishtir Singh in his life time had divided the entire property and had given the disputed property to his wife Madhu Singh? 3. Whether Smt. Madhu Singh has executed a Will dated 25.02.1999 regarding disputed property in favour of her son Dhruv Singh? 4. Whether the plaintiff and defendant nos. 3 and 4 have admitted the sole business of Sri Dhurv Singh on the property on the basis of the Will and for this reasons the plaint is barred by the principle of acquiescence and estoppel? 5. Whether on the basis of averments made in para 23 of the written statement of defendant nos. 1 and 2, the rights of plaintiff and defendant nos. 5. Whether on the basis of averments made in para 23 of the written statement of defendant nos. 1 and 2, the rights of plaintiff and defendant nos. 3 and 4 on the property in dispute have closed in view of Section 27 of the Limitation Act, 1963? 6. Whether the suit is less evaluated? 7. Whether the court fee paid is insufficient? 8. Relief. 9. Whether the ancestor of the parties Sri Yudhisthir Singh had got the property purchased through his father and consequently it was a coparcenary property? 10. Whether the property being a coparcenary property, the plaintiff and defendant nos. 3 & 4 had no rights on the property? 11. Whether Sri Yudhisthir Singh was the sole owner of the property?" 14. Issue nos. 9 and 10 were taken up together and the findings of the Trial Court is that the property in question was not an ancestral property, but this property was purchased by the own resources of the father of the plaintiff, defendant nos. 3 & 4 and father-in-law of defendant no. 1, late Sri Ydhisthir Singh and since he died intestate, the property would be equally divided amongst his heirs on which plaintiff and defendant nos. 1, 3 & 4 will have equal share. 15. In any case, the determination on issue nos. 9 and 10 whether it is a coparcenary property or a property purchased by Sri Yudhisthir Singh from his own resources has little relevance, inasmuch as this is an admitted case that the parties before this Court are Hindus and Sri Yudhisthir Singh who had purchased the property died intestate. Therefore, the property has to be divided equally amongst the class I heirs. Even if it is assumed for the sake of argument that there were any coparcenary rights on the property then too it would be equally divided between the wife and the four children i.e. 1/5th share of the property to each. The daughters could not have been denied their coparcenary rights. 16. As regarding issue no. 2 which was to the effect as to whether the ancestor of the parties late Yudhishtir Singh in his life time had divided the entire property and had given the disputed property to his wife Madhu Singh, the findings of the Trial Court are that he did not partition the property during his life time. 16. As regarding issue no. 2 which was to the effect as to whether the ancestor of the parties late Yudhishtir Singh in his life time had divided the entire property and had given the disputed property to his wife Madhu Singh, the findings of the Trial Court are that he did not partition the property during his life time. There was no written or even oral family settlement between the parties. 17. So far as issue nos. 1 & 11 are concerned, which were taken up together, the findings of the Trial Court are that the hotel i.e. Motel Polaris was constructed on the said property by late Yudhisthir Singh and at the time of his death he was the sole owner of the property and after his death the property would be equally divided amongst his legal heirs, which includes his wife, three daughters and a son. 18. As far as issue no. 4 is concerned, which was whether the plaintiff and defendant nos. 3 and 4 have admitted the sole business of Sri Dhurv Singh on the property on the basis of the Will and for this reasons the plaintiff is barred by the principle of acquiescence and estoppel, the findings of the Trial Court are that the plaintiff as well as defendant nos. 3 & 4 never accepted the claim of the deceased Dhruv Singh on the property on the basis of the Will. The findings are simply that the deceased Dhruv Singh was the brother of the plaintiff and defendant nos. 3 and 4, they had no objection on his running the hotel, being his siblings. 19. Issue no. 5 was regarding whether the claim of the plaintiff is barred by limitation and the law of adverse possession would apply as the plaintiff has no right to seek possession of the property. On this the finding of the Trial Court was that the possession of the property of Dhruv Singh, who is brother of the plaintiff and defendant nos. 3 & 4 was with the consent of plaintiff and defendant nos. 3 and 4 and even if they were not sharing the rent or the profits of the property, it would not relinquish the claim of the plaintiff or the defendant nos. 3 & 4 over the property. 20. As far as the main issue i.e. issue no. 3 & 4 was with the consent of plaintiff and defendant nos. 3 and 4 and even if they were not sharing the rent or the profits of the property, it would not relinquish the claim of the plaintiff or the defendant nos. 3 & 4 over the property. 20. As far as the main issue i.e. issue no. 3 is concerned, which is whether Smt. Madhu Singh has executed a Will dated 25.02.1999 regarding disputed property in favour of her son Dhruv Singh, the Trial Court came to a finding that it is not proved that the testatrix Madhu Singh executed a Will dated 25.02.1999 in favour of her son Dhruv Singh. 21. The suit was ultimately decreed giving 1/4 share of the property to each i.e. 1/4 share to the plaintiff, 1/4 share each to other two sisters i.e. Shivani and Sunaina and 1/4 share to defendant no. 1. 22. Learned Senior Counsels for the appellant Mr. V.K. Kohli and Mr. Rajendra Dobhal have made a submission in the very beginning that their stand is confined to the last amended written statement, which is their claim on 2/5th share of the property. 23. With the consent of rival parties and keeping in mind the provisions of Order 41 Rule 31 CPC, the points which fall for determination of this Court are as follows:- “(1) Whether the veracity of the Will can be challenged or even questioned by the plaintiff having made no objection to it earlier, having full knowledge of it? (2) Whether the Will produced by the defendant nos. 1 & 2 can be read as a “secondary evidence"? (3) Whether Smt. Madhu Singh executed a Will dated 25.02.1999 in favour of her son Dhruv Singh regarding the property in dispute? (4) What is the legally sustainable claim of defendant nos.1 & 2 on the property? (5) What are the actual shares which can be given to plaintiff and the defendants in accordance with law?" POINT FOR DETERMINATION NO. 1 : “(1) Whether the veracity of the Will can be challenged or even questioned by the plaintiff having made no objection to it earlier, having full knowledge of it?" 24. First and foremost, it is not the plaintiff, which was relying upon the Will. It is the defendant nos. 1 and 2, who have set up their claim based on the Will dated 25.02.1999. First and foremost, it is not the plaintiff, which was relying upon the Will. It is the defendant nos. 1 and 2, who have set up their claim based on the Will dated 25.02.1999. A Will has to be proved in a court of law. The propounder in this case is defendant no. 1, who has to show to the satisfaction of the court the genuineness and the veracity of the Will. This Will has been denied by the plaintiff and defendant nos. 3 & 4. According to defendant no. 1, her husband Dhruv Singh had presented the original copy of the Will in the local Municipality from where ultimately a photocopy was obtained. Nagar Palika, Roorkee or the Municipality, does not have the original copy of the Will. Moreover, the presentation of the Will with the local authority was only for the purposes of change of name in the municipal records, which has a limited purpose, as to who will pay the taxes to the Municipality. Once Dhruv Singh's name is recorded in the Nagar Palika, it is his liability to pay taxes. It does not make him the owner of the property. 25. Moreover, as per the plaintiff and defendant nos. 3 & 4, their brother continued to run the motel, after the death of their mother in 1999, with their consent. They had no objections on his running the motel. That this consent was based on their knowledge of the alleged Will has been denied by them. The onus was purely on defendant no. 1 to prove that the consent of plaintiff and defendant nos. 3 & 4 was due to their knowledge of the Will. This has not been discharged. 26. It has been proved before the trial court that the property was purchased by Sri Yudhisthir Singh from his own resources, who died intestate. The property will therefore devolve equally on all class I heirs i.e. his wife and her four children, including her daughter. The marriage of the daughters will not extinguish their claim on the property. 27. The knowledge of the Will dated 25.02.1999 on part of plaintiff and defendant nos. 3 & 4 has not been proved. They in fact deny the very existence of this Will. Therefore there is no question of their acquiescence in the matter or the application of the principle of estoppel, as argued by the appellant. 27. The knowledge of the Will dated 25.02.1999 on part of plaintiff and defendant nos. 3 & 4 has not been proved. They in fact deny the very existence of this Will. Therefore there is no question of their acquiescence in the matter or the application of the principle of estoppel, as argued by the appellant. POINT FOR DETERMINATION NOS. 2 & 3: “(2) Whether the Will produced by the defendant nos. 1 & 2 can be read as a “secondary evidence"? (3) Whether Smt. Madhu Singh executed a Will dated 25.02.1999 in favour of her son Dhruv Singh regarding the property in dispute?" 28. The second and third point for determination are being taken up together since they are closely linked. 29. The admitted case is that the “Will" on which the entire case of the defendant no.1 depends, was never produced before this Court. What was also to be seen by the court was the veracity of the Will dated 25.02.1999, and whether what was produced before the court can be read as an evidence. 30. Section 61 of the Evidence Act says that the contents of the documents can be proved by either primary or secondary evidence. Hence in case there was no primary evidence available with defendant no. 1, the law gives her the right to prove the same by means of secondary evidence. However, there are limitations with the secondary evidence, inasmuch as the propounder has to first set up a foundation, satisfying the court that the circumstances are such that only secondary evidence can be produced. What amounts to a secondary evidence, would also be a question, which has to be determined next by the Court. 31. Under Section 61 of the Evidence Act, contents of a document can be proved either by primary or secondary evidence. “Primary evidence" is defined under Section 62 of the Evidence Act, 1872 which reads as under:- “Primary evidence. – Primary evidence means the document itself produced for the inspection of the court. Explanation 1. – Where a document is executed in several parts, each part is primary evidence of the document. Where a document is executed in counterpart, each counterpart being executed by one or some of the parties only, each counterpart is primary evidence as against the parties executing it. Explanation 2. Explanation 1. – Where a document is executed in several parts, each part is primary evidence of the document. Where a document is executed in counterpart, each counterpart being executed by one or some of the parties only, each counterpart is primary evidence as against the parties executing it. Explanation 2. – Where a number of documents are all made by one uniform process, as in the case of printing, lithography, or photography, each is primary evidence of the contents of the rest; but where they are all copies of a common original, they are not primary evidence of the contents of the original. Illustration A person is shown to have been in possession of a number of placards, all printed at one time from one original. Any one of the placards is primary evidence of the contents of any other, but no one of them is primary evidence of the contents of the original. 32. “Secondary evidence" is defined under Section 63 of the Evidence Act, 1872, which reads as under:- “Secondary evidence.- Secondary evidence means and includes- (1) certified copies given under the provisions hereinafter contained. (2) copies made from the original by mechanical processes 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. Illustrations (a) A photograph of an original is secondary evidence of its contents, though the two have not been compared, if it is proved that the thing photographed was the original. (b) A copy compared with a copy of a letter made by a copying machine is secondary evidence of the contents of the letter, if it is shown that the copy made by the copying machine was made from the original. (c) A copy transcribed from a copy, but afterwards compared with the original, is secondary evidence; but the copy not so compared is not secondary evidence of the original, although the copy from which it was transcribed was compared with the original. (d) Neither an oral account of a copy compared with the original, nor an oral account of a photograph or machine-copy of the original, is secondary evidence of the original. 33. (d) Neither an oral account of a copy compared with the original, nor an oral account of a photograph or machine-copy of the original, is secondary evidence of the original. 33. All the same, ordinarily a document must be proved by primary evidence except in cases given in Section 65 of the Evidence Act, 1872. 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 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 document." 34. 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 document." 34. In view of the above position of law, defendant nos. 1 and 2 had first to show, to the satisfaction of the court, that they are not in possession of the primary evidence i.e. the original copy of the Will and there are circumstances such as given under Section 65 of the Evidence Act in their case where law permits them to place secondary evidence before the court. In other words, they had to set up a foundation to lead this secondary evidence. Before a secondary evidence can be appreciated. A foundation for the right to lead secondary evidence has to be established (Roman Catholic Mission v. State of Madras and another, AIR 1966 1457). 35. After making a conflicting statements as to what portion of the property would devolve on them, defendant no. 1 ultimately settled their claim for 2/5th of the property. Their entire case depends upon the Will dated 25.02.1999 of the testatrix late Madhu Singh. All the same, though defendant no. 1 was the propounder of the Will and her entire case depends upon the appreciation of this 17 document by the court, this document was never produced before the court, when she first filed her written statement, nor were any reasons stated in her written statement, as to the non-supply of the document. This is an important flaw in terms of Rule 1-A of Order 8 of C.P.C. Rule 1-A reads as under: “1-A. Duty of defendant to produce documents upon which relief is claimed or relied upon by him. – (1) Where the defendant bases his defence upon a document or relies upon any document in his possession or power, in support of his defence or claim for set-off or counter-claim, he shall enter such document in a list, and shall produce it in Court when the written statement is presented by him and shall, at the same time, deliver the document and a copy thereof, to be filed with the written statement. (2) Where any such document is not in the possession or power of the defendant, he shall, wherever possible, state in whose possession or power it is. (3) A document which ought to be produced in Court by the defendant under this rule, but, is not so produced shall not, without the leave of the Court be received in evidence on his behalf at the hearing of the suit. (4) Nothing in this rule shall apply to documents – (a) produced for the cross-examination of the plaintiff's witness, or (b) handed over for to a witness merely to refresh his memory." 36. Subsequently, however, defendant no. 1 moved an application before the court stating that the document is in possession of defendant nos. 3 and 4 and the court must direct them to produce the document. The existence of the Will itself was denied by defendant nos. 3 & 4, leave aside their being in possession of that Will. The application of defendant no. 1, for production of document from defendant nos. 3 & 4, was rejected by the court vide order dated 01.12.2016. Against the said order dated 01.12.2016, defendant no. 1 had filed a civil revision before this Court being Civil Revision No. 134 of 2015 which was dismissed by a learned Single Judge of this Court, however, a liberty was granted to defendant no. 1 to adduce secondary evidence in respect of the will, in question, in accordance with law. A learned Single Judge of this Court while dismissing the revision of defendant nos. 1 & 2 observed as follows:- “Civil revision is dismissed as withdrawn with liberty to the revisionists to adduce secondary evidence in respect of the will, in question, in accordance with law. It is made clear that this Court has not said anything on the admissibility of secondary evidence. It is for the Trial Court to decide the same after hearing both the sides in accordance with law." 37. Consequently what was produced by defendant no. 1 was a photocopy of the Will dated 25.02.1999. 38. First and foremost, before the court reads the photocopy as a secondary evidence in terms of Section 63 of the Evidence Act, what has first to be seen by the court is whether the circumstances exist which may enable a party to lead secondary evidence. 1 was a photocopy of the Will dated 25.02.1999. 38. First and foremost, before the court reads the photocopy as a secondary evidence in terms of Section 63 of the Evidence Act, what has first to be seen by the court is whether the circumstances exist which may enable a party to lead secondary evidence. These circumstances are given under Section 65 of the Evidence Act, which have already been referred above. There are a limited number of contingencies where foundation exists for leading secondary evidence. As far as Section 65 (a) is concerned, this aspect has already been rejected by the court and also in revision by this Court, in as much as it is not a case that the original Will was in possession of either the plaintiff or defendant nos. 3 and 4. No foundations have been set up under the remaining clause from (b) to (g) as well. In other words, the propounder of the Will has not been able to set up the foundations by which an opportunity ought to have been granted to them for producing secondary evidence. 39. The Hon'ble Apex Court in the case of H. Siddiqui (Dead) by LRs. Vs. A. Ramalingam reported in (2011) 4 SCC 240 , relying upon a catena of decisions have stated this in para 12 of its judgment: “12. The provisions of Section 65 of the 1872 Act provide for permitting the parties to adduce secondary evidence. However, such a course is subject to a large number of limitations. In a case where the original documents are not produced at any time, nor has any factual foundation been laid for giving secondary evidence, it is not permissible for the court to allow a party to adduce secondary evidence. Thus, secondary evidence relating to the contents of a document is inadmissible, until the non-production of the original is accounted for, so as to bring it within one or other of the cases provided for in the section. The secondary evidence must be authenticated by foundational evidence that the alleged copy is in fact a true copy of the original. Mere admission of a document in evidence does not amount to its proof. Therefore, the documentary evidence is required to be proved in accordance with law. The court has an obligation to decide the question of admissibility of a document in secondary evidence before making endorsement thereon. Mere admission of a document in evidence does not amount to its proof. Therefore, the documentary evidence is required to be proved in accordance with law. The court has an obligation to decide the question of admissibility of a document in secondary evidence before making endorsement thereon. (Vide Roman Catholic Mission v. State of Madras AIR 1966 SC 1457 , State of Rajasthan v. Khemraj AIR 2000 SC 1759 , LIC v. Ram Pal Singh Bisen (2010) 4 SCC 491 and M. Chandra v. M. Thangamuthu (2010) 9 SCC 712 )." 40. Whether a document can be read as a secondary evidence in terms of Section 61 and 63 of the Evidence Act is a matter to be appreciated subsequently by the court once the foundation for leading secondary evidence have been set up under Section 65 of the Evidence Act. This has evidently not been done. 41. The next question, in any case here would be whether the photocopy of the Will produced by defendant no. 1 can be read as a secondary evidence. What has been produced by defendant no. 1 is actually not even a photocopy of the original Will but a photocopy of a photocopy, as this copy was obtained from the Nagar Palika record where the photocopy of the alleged original Will was on record. Therefore, in order to prove this photocopy as a secondary evidence, it was necessary to have produced either the clerk or the person in whose possession the document was there in the Nagar Palika record or any one who had seen the original Will at the time when it was presented before the Nagar Palika. This would have been a compliance under the illustration given in third illustration i.e. illustration (c) to Section 63, which reads as under: “(c) A copy transcribed from a copy, but afterwards compared with the original, is secondary evidence; but the copy not so compared is not secondary evidence of the original, although the copy from which it was transcribed was compared with the original." 42. This has evidently not been done as no official of the Nagar Palika was produced to verify the veracity of the Will. 43. The veracity of the Will which has been attested by the witnesses is again liable to be proved. It is necessary for a Will to be attested and attested by two witnesses. This has evidently not been done as no official of the Nagar Palika was produced to verify the veracity of the Will. 43. The veracity of the Will which has been attested by the witnesses is again liable to be proved. It is necessary for a Will to be attested and attested by two witnesses. These provisions are given under Section 63 of the Succession Act, 1925 read with Section 68 of the Evidence Act, 1872, which are reproduced below: “Section 63 of the Succession Act, 1925 - 63. Execution of unprivileged wills. – Every testator, not being a soldier employed in an expedition or engaged in actual warfare, or an airman so employed or engaged, or a mariner at sea, shall execute his will according to the following rules:- (a) The testator shall sign or shall affix his marks to the will, or it shall be signed by some other person in his presence and by his direction. (b) The signature or mark of the testator, or the signature of the person signing for him, shall be so placed that it shall appear that it was intended thereby to give effect to the writing as a will. (c) The will shall be attested by two or more witnesses, each of whom has seen the testator sign or affix his mark to the will or has seen some other person sign the will, in the presence and by the direction of the testator, or has received from the testator a personal acknowledgement of his signature or mark, or of the signature of such other person; and each of the witnesses shall sign the will in the presence of the testator, but it shall not be necessary that more than one witness be present at the same time, and no particular form of attestation shall be necessary." “Section 68 of the Evidence Act, 1872 - 68. Proof of execution of document required by law to be attested.-If a document is required by law to be attested, it shall not be used as evidence until one attesting witness at least has been called for the purpose of proving its execution, if there be an attesting witness alive, and subject to the process of the Court and capable of giving evidence. Provided that it shall not be necessary to call an attesting witness in proof of the execution of any document, not being a will, which has been registered in accordance with the provisions of the Indian Registration Act, 1908 (16 of 1908), unless its execution by the person by whom it purports to have been executed is specifically denied." 44. Since the testator or testatrix is not available to testify the Will, stringent measures have been put in law to check cases of fraud and manipulations. The Will dated 25.02.1999 is evidently an unprivileged Will. Therefore, it was necessary that it should have been attested by two or more witnesses, though even if one could have proved to the satisfaction of the Court that he was an attesting witness to the Will, the compliance of law has been completed. 45. It is an admitted case that the testatrix i.e. Madhu Singh passed away within twenty days of signing the alleged will i.e. on 15.03.1999. It has nowhere come on record that the testatrix was suffering from any illness or what was her state of mind, and under what circumstances she passed away. At the time of her death, she was only 55 years of age. The contents of the Will also did not inspire confidence, inasmuch as it has been stated that though evidently the testatrix had only 1/5th share of the property, she gave the entire hotel to her son Dhruv Singh stating that her three daughters have relinquished their claim! This looks unlikely. All this therefore casts a doubt on the veracity of the Will, propounded by defendant no. 1. 46. There are three witnesses to the “will", namely, M.D. Mittal, Raj Bahadur Singh and Satish Kumar Garg. By the time of the institution of the suit, one of the witnesses to the “Will", namely, Raj Bahadur Singh had passed away and the other two witnesses to the “Will" i.e. M.D. Mittal and Satish Kumar Garg were produced by defendant no. 1. Sri Satish Kumar Garg in his examination-in-chief said that he had signed the “Will" in the presence of the testatrix, but in his cross-examination, he states that he had met the testatrix only once or twice, prior to being a witness of the Will, and he was a casual customer in the motel. 1. Sri Satish Kumar Garg in his examination-in-chief said that he had signed the “Will" in the presence of the testatrix, but in his cross-examination, he states that he had met the testatrix only once or twice, prior to being a witness of the Will, and he was a casual customer in the motel. However, on being questioned as to whether he had met the testatrix after being a witness to the Will, he says in his cross-examination that he had met the testatrix after six months of the signing of the Will as a witness. Evidently this statement of the witness Satish Kumar Garg cannot be true as it is an admitted case that the testatrix had passed away after 20 days of her signing the Will! The other witness Sri Mittal had also said that Mr. Satish Kumar Garg had signed as a witness in his presence. This casts doubt on the veracity of the other witness as well. 47. What therefore follows is only logical. Ms. Madhu Singh did not sign the Will and the document produced as a “Will" cannot be read as a secondary evidence. POINT FOR DETERMINATION NOS. 4 & 5 “(4) What is the legally sustainable claim of defendant nos.1 & 2 on the property? (5) What are the actual shares which can be given to plaintiff and the defendants in accordance with law? 48. The claim of the plaintiff i.e. Shalini Prem was that she was owner of the 1/4th share of the property as the property was purchased by her father, who died intestate. After his death the property fell equally 1/5th to the share of the legal heirs of the deceased i.e. wife and four children, and after the death of her mother, the property would again be divided 1/4th equal to the share of her four children. This claim was resisted by the wife of the deceased, who had set up an initial claim that the sisters had absolutely no claim on the property, as the property belonged to Sri Dhruv Singh and his mother after the death of Yudhistir Singh in the year 1980. This claim was resisted by the wife of the deceased, who had set up an initial claim that the sisters had absolutely no claim on the property, as the property belonged to Sri Dhruv Singh and his mother after the death of Yudhistir Singh in the year 1980. Later this stand was amended, and it was stated that the entire ownership of the property was of mother of the Dhruv Singh, who by the Will dated 25.02.1999 gave her entire property to her son i.e. Dhruv Singh and consequently the sisters have no claim on the property. This stand was again amended and finally what was settled was that after the death of Shri Yudhisthir Singh, the property had fell as 1/5th share to each of the legal heirs i.e. 1/5th share to his wife Madhu Singh, the rest 1/5th each to the children/legal heirs. Smt. Madhu Singh gave her 1/5th share to her son Dhruv Singh by means of the Will dated 25.02.1999 and this Will remained uncontested and is a part of record. Since 1999 the veracity of the Will was never challenged and therefore it is not given to the respondents to challenge that Dhruv Singh was not the owner of 2/5th share of the property and after his death his wife and the daughter will have the same right, which is of 2/5share of the property. 49. As far as this determination is concerned, it is absolutely clear that the parties before this Court are admittedly “Hindus". What governs the field of succession in this case would be the Hindu Succession Act, 1956 read with the Will dated 25.02.1999 depending upon the veracity of the Will or whether it can be read as an evidence. Admittedly Sri Yudhisthir Singh, the owner of the property died intestate in the year 1980. In a case where a male Hindu dies intestate, his property shall devolve according to Section 8 of the Hindu Succession Act, 1956. Section 8 of the Hindu Succession Act, 1956 reads as under:- “8. General rules of succession in the case of males. Admittedly Sri Yudhisthir Singh, the owner of the property died intestate in the year 1980. In a case where a male Hindu dies intestate, his property shall devolve according to Section 8 of the Hindu Succession Act, 1956. Section 8 of the Hindu Succession Act, 1956 reads as under:- “8. General rules of succession in the case of males. – The property of a male Hindu dying intestate shall devolve according to the provisions of this Chapter – (a) firstly, upon the heirs, being the relatives specified in class I of the Schedule; (b) secondly, if there is no heir of class I, then upon the heirs, being the relatives specified in class II of the Schedule; (c) thirdly, if there is no heir of any of the two classes, then upon the agnates of the deceased; and (d) lastly, if there is no agnate, then upon the cognates of the deceased." 50. This provision has to be read with Section 9 of the Hindu Succession Act, 1956 which gives the order of succession among heirs in the Schedule. Section 9 of the Hindu Succession Act, 1956 reads as under: “Order of succession among heirs in the Schedule. – Among the heirs specified in the Schedule, those in class I shall take simultaneously and to the exclusion of all other heirs; those in the first entry in class II shall be preferred to those in the second entry; those in the second entry shall be preferred to those in the third entry; and so on in succession." 51. Admittedly both the plaintiff as well as defendants are all Class I heirs as per the Hindu Succession Act. 52. Consequently, as per Hindu law of inheritance after the death of Shri Yudhishtir Singh, 1/5th share of the property belong to each of the legal heirs. Since it is evident from the record that the property itself was purchased by Shri Yudhisthir Singh out of his own resources and he died intestate, the property will devolve equally on his legal heirs. 53. After the death of Ms. Madhu Singh on 15.03.1999, her share, which was 1/5th of the entire property will be equally distributed to the four surviving class I heirs at the time which are her four children i.e. – 1. Shalini Prem (Daughter) 2. Shivani (Daughter) 3. Sunaina (Daughter) 4. 53. After the death of Ms. Madhu Singh on 15.03.1999, her share, which was 1/5th of the entire property will be equally distributed to the four surviving class I heirs at the time which are her four children i.e. – 1. Shalini Prem (Daughter) 2. Shivani (Daughter) 3. Sunaina (Daughter) 4. Dhruv Singh (Son) This would mean that her four surviving heirs will now have 1/4th share of the property. The share which was 1/4th of the property will devolve on his widow and his daughter, after the death of Dhruv Singh on 18.08.2012. This is what has precisely been determined by the court below. 54. This Court finds no ground for interference in the decree and order dated 27.05.2016. The appeal stands dismissed. 55. No order as to costs.