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2025 DIGILAW 1859 (TS)

Meena Devi v. K. Avinash Kumar Singh

2025-12-17

NARSING RAO NANDIKONDA

body2025
ORDER : 1. This Civil Revision Petition is filed by the petitioners/plaintiffs being aggrieved by the order dated 19.06.2025 in I.A.No.251 of 2025 in O.S.No.21 of 2022 passed by the learned Principal District & Sessions Judge, Kamareddy (for short the trial Court) in allowing the petition filed by the respondent Nos.1 and 2/defendant Nos.1 and 2 herein praying the trial Court to receive the photo copy/Xerox copy of the unregistered will deed dated 23.08.2020 and photo copy/Xerox copy of legal notice dated 13.12.2021 as secondary evidence under Section 60(C) of the Bharatiya Sakshya Adhiniyam. For the sake of convenience and clarity, the parties herein shall be referred to, as they are arrayed before the trial Court. 2. Heard Mr. Aadesh Varma, learned counsel for the revision petitioners and Mr. S. Srinivasa Chary, learned counsel for respondent Nos.1 and 2. Perused the record. 3. The brief facts of the case are that the revision petitioners are the plaintiffs before the trial Court, who have filed suit in O.S.No.21 of 2022 before the trial Court, seeking to declare them as owners of the suit schedule property as per the registered will deed document No.171/III/2018 dated 10.07.2018; to dispossess defendant Nos.1 to 7 from the suit schedule property and induct the plaintiffs through Bailiff of the Court; to declare the unregistered Will Deed dated 23.08.2020 as null and void and to grant future mesne profits for the suit schedule property @ Rs.25,000/- per acre, per annum from defendants from the date of the suit till plaintiff Nos.1 to 5 are inducted in possession of the suit schedule property and award costs of the suit. 4. During the pendency of the suit, defendant Nos.1 and 2 filed an application under Section 60 (c) of the Bharatiya Sakshay Adiniyam in I.A.No.251 of 2025 in O.S.No.21 of 2022 seeking to receive xerox copy of the unregistered will deed dated 23.08.2020 and xerox copy of legal notice dated 13.12.2021 and mark the same as secondary evidence. 5. The gist of the affidavit is that the plaintiffs have filed the present suit seeking a declaration of ownership over the suit schedule property on the strength of a registered Will Deed dated 10.07.2018, which is disputed by the defendants through a written statement filed in O.S. No. 21 of 2022. 5. The gist of the affidavit is that the plaintiffs have filed the present suit seeking a declaration of ownership over the suit schedule property on the strength of a registered Will Deed dated 10.07.2018, which is disputed by the defendants through a written statement filed in O.S. No. 21 of 2022. It is stated that prior to the present suit, Defendant No.4 and his elder brother late K. Akshay Kumar Singh had instituted a suit for partition in O.S.No.5 of 2022 (old) O.S.No.50 of 2022 (new) based on an alleged unregistered Will Deed dated 23.08.2020 said to have been executed by their grandfather late K. Jagath Singh, but due to the death of Akshay Kumar Singh the said suit was not prosecuted by the legal heirs and was dismissed for default. In the affidavit it is further asserted that the plaintiffs filed the present suit with full knowledge of the existence of the unregistered Will dated 23.08.2020. It is alleged that during the pendency of the earlier suit, Defendant Nos.1 and 2 were residing at their native village and that Defendant No.2, who was in custody of all original documents, had kept them at his house, from where they were allegedly stolen between 08.03.2022 and 10.03.2022 during his absence, including the original unregistered Will dated 23.08.2020 and the legal notice dated 13.12.2021. It is further stated that a complaint in this regard was eventually lodged before the Superintendent of Police, Kamareddy on 14.04.2022. The affidavit also claims that while carrying documents to hand over to his Advocate at Bodhan, the documents were lost, and owing to such loss of the originals, the deponent seeks permission to receive Xerox copies of the unregistered Will Deed dated 23.08.2020 and the legal notice dated 13.12.2021 as secondary evidence. 6. Opposing the said application, the plaintiffs filed a counter denying all the averments made in the affidavit and contended that they have instituted the present suit for declaration of title, recovery of possession, future mesne profits, and for a declaration that the unregistered Will Deed dated 23.08.2020 is null and void and not binding on them. It is further contended that the defendants failed to produce the original documents or lay any legal foundation for seeking permission to adduce secondary evidence, rendering the prayer vague, improper, and liable to be dismissed with exemplary costs. It is further contended that the defendants failed to produce the original documents or lay any legal foundation for seeking permission to adduce secondary evidence, rendering the prayer vague, improper, and liable to be dismissed with exemplary costs. The plaintiffs also pointed out fundamental infirmities in the applications filed by the defendants, namely that the copies of the petitions served on the plaintiffs contained an incorrect cause title and that one of the petitions was filed under an incorrect provision of law. 7. The plaintiffs assert that the certified copy of the plaint and the docket order dated 03.05.2024 passed in the collusive partition suit have already been marked as Exs. A-15 and A-16 in the present suit, clearly establishing the defendants’ active involvement in the earlier proceedings. The plaintiffs contend that the petitioners/defendants are falsely projecting themselves as innocent and unaware of the collusive partition suit, whereas in reality they deliberately did not pursue it as their falsehood and ill intention would have been exposed had the suit been contested. While admitting that the present suit has been filed based on the registered Will dated 10.07.2018, the plaintiffs emphatically deny any knowledge of or existence of an unregistered Will dated 23.08.2020, asserting that late Jagat Singh never executed such a Will and that the same has been forged, fabricated, and created in collusion by the defendants to unlawfully deprive the plaintiffs of their rightful property. The plaintiffs further allege that the police complaint relied upon by the defendants appears to be fabricated, as it was lodged on 14.04.2022 before the Superintendent of Police, Kamareddy, and contains contradictions within the affidavit itself, rendering the defendants’ version unbelievable. According to the plaintiffs, these contradictory statements demonstrate a deliberate attempt to keep the forged Will away from the scrutiny of the trial Court, knowing that it would not withstand judicial examination. Consequently, the prayer to receive Xerox copies of the alleged Will and legal notice as secondary evidence is termed as misrepresented, misconceived, vexatious, and devoid of merit. The plaintiffs further contend that the photocopies were mechanically obtained and cannot be presumed to be true or accurate, and that the failure of the defendants to mention the alleged loss of the documents in their written statement goes to the root of the matter, warranting an adverse inference against Defendant Nos. 1 and 2. 8. The plaintiffs further contend that the photocopies were mechanically obtained and cannot be presumed to be true or accurate, and that the failure of the defendants to mention the alleged loss of the documents in their written statement goes to the root of the matter, warranting an adverse inference against Defendant Nos. 1 and 2. 8. It is further averred that the alleged police complaint is fabricated and brought into existence only to mislead the trial Court, and that Defendant Nos. 1 and 2 have thereby rendered themselves liable for perjury. The plaintiffs contend that it is a settled proposition of law that a photocopy cannot be admitted or marked as secondary evidence unless the mandatory conditions prescribed under Section 60(c) of the Bharatiya Sakshya Adhiniyam are strictly satisfied, and in the absence of such compliance, photocopies are inadmissible in evidence. On these grounds, the plaintiffs prayed for dismissal of the petition. 9. After hearing the learned counsel for both the plaintiffs and the defendants, and upon considering the entire material on record as well as the decisions cited, the learned trial Judge opined that the judgments relied upon by the plaintiffs were not applicable to the facts of the present case. The trial Court further observed that the plaintiffs themselves had filed a Xerox copy of the unregistered Will Deed dated 23.08.2020, which was found to tally with the Xerox copy produced by Defendant Nos.1 and 2. It was also noted that the plaintiffs had sought a declaration to declare the said unregistered Will Deed as null and void and not binding on them. In view of these circumstances, the Trial Court allowed I.A. No. 251 of 2025 in O.S. No. 21 of 2022 and permitted the Xerox copies of the unregistered Will Deed dated 23.08.2020 and the legal notice dated 13.12.2021 to be received as secondary evidence on behalf of Defendant Nos. 1 and 2, without costs. 10. Being aggrieved by the impugned order dated 19.06.2025, the plaintiffs have filed the present Civil Revision Petition. Learned counsel for the plaintiffs contended that the learned trial Court committed serious errors of law and fact by misreading and misunderstanding the pleadings and by erroneously permitting defendant Nos.1 and 2 to produce photocopies of the alleged unregistered Will Deed dated 23.08.2020 and the legal notice as secondary evidence under Section 60(c) of the Bharatiya Sakshya Adhiniyam. Learned counsel for the plaintiffs contended that the learned trial Court committed serious errors of law and fact by misreading and misunderstanding the pleadings and by erroneously permitting defendant Nos.1 and 2 to produce photocopies of the alleged unregistered Will Deed dated 23.08.2020 and the legal notice as secondary evidence under Section 60(c) of the Bharatiya Sakshya Adhiniyam. It was argued that the trial Court failed to appreciate that no foundational pleading regarding the loss or destruction of the original Will Deed was made in the written statement, despite it having been filed after the alleged loss, and that mere reference to a disputed document in the pleadings does not satisfy the mandatory legal requirements for admitting secondary evidence. The learned counsel further submitted that the trial Court erred in treating the alleged Will as a necessary document solely on the ground that the plaintiffs sought a declaration declaring it null and void, even though the plaintiffs have consistently asserted that the document is forged and fabricated. It was also contended that the trial Court ignored material and contradictory statements made by the defendants regarding the alleged loss of the original Will, alternately claiming theft from their native village and loss in transit while going to their Advocate and wrongly brushed aside such mutually destructive stands as typographical errors, despite the fact that these inconsistencies go to the root of the matter and were sufficient to reject the application. 11. The main grievance of the plaintiffs is that the learned trial Judge ought not to have allowed the petition seeking to receive the said documents as secondary evidence under Section 60(c) of the Bharatiya Sakshya Adhiniyam, in view of the clear inconsistencies in the averments made by Defendant Nos. 1 and 2 before the trial Court. It is pointed out that, according to the affidavit filed by the defendants, their initial case was that a theft had occurred at their native house between 08.03.2022 and 10.03.2022, allegedly committed by unknown persons, during which several original documents including pattadar passbooks, passbooks belonging to their grandfather, the original unregistered Will Deed dated 23.08.2020, and the copy of the legal notice dated 13.12.2021 were stated to have been stolen. 12. 12. It is further contended that defendant Nos.1 and 2 initially approached the Jukkal Police Station to lodge a complaint, but as the Station House Officer allegedly refused to register the same, they were constrained to approach the Superintendent of Police, Kamareddy, before whom they lodged a complaint dated 14.04.2022, which was received under acknowledgment No. KMRDY/SPKMD/KMRDY/140422/00078. It is also contended that, pursuant to the said complaint before the Superintendent of Police, the Jukkal Police received the report on 15.03.2022. 13. Learned counsel for the plaintiffs vehemently argued that the dates mentioned in the affidavit demonstrate that the story of theft narrated by defendant Nos. 1 and 2 is fabricated and false. According to the defendants, the alleged theft occurred between 08.03.2022 and 10.03.2022, when they discovered that the house lock broken open by unknown persons. The plaintiffs’ counsel pointed out that, if this were true, the defendants ought to have immediately reported the incident to the police, as house-breaking in the absence of residents constitutes a serious offence. The delay of nearly one month in approaching the Superintendent of Police, Kamareddy on 14.04.2022, raises serious doubts about their version. Furthermore, the plaintiffs contended that the sequence of events regarding the Jukkal Police Station receiving the report on 15.03.2022, prior to the defendants approaching the Superintendent of Police, Kamareddy, is contradictory and unexplained. No satisfactory explanation has been provided for these inconsistencies in the complaint. Additionally, the plaintiffs highlighted contradictory statements in the defendants’ affidavit, wherein Defendant No.2 claimed to have lost the original documents, including the unregistered Will Deed dated 23.08.2020 and the legal notice dated 13.12.2021, while carrying them to Bodhan to hand over to his Advocate. This alleged loss, occurring during transit, is said to have prevented the defendants from filing the originals before the trial Court, which the plaintiffs argue is implausible and inconsistent. 14. Learned counsel for the plaintiffs contended that the Will Deed dated 23.08.2020, which the defendants sought to bring on record as secondary evidence, is itself the subject matter of the suit, being disputed by the plaintiffs as false, forged, and fabricated. He further argued that even for the purpose of proving or disproving the authenticity of the Will, including forensic examination, the original document is essential; a mere Xerox copy cannot be subjected to forensic testing. He further argued that even for the purpose of proving or disproving the authenticity of the Will, including forensic examination, the original document is essential; a mere Xerox copy cannot be subjected to forensic testing. The plaintiffs also pointed out that the learned trial Judge failed to consider the contradictory statements made by the defendants in their affidavit while allowing the Xerox copies as secondary evidence. The Judge relied on the fact that the Xerox copy the defendants sought to mark was identical to the copy filed by the plaintiffs, who were seeking a declaration that the Will is null and void, and therefore concluded that it could be received in evidence. According to the plaintiffs, this reasoning ignored the material inconsistencies and contradictions in the defendants’ statements, which undermined their credibility. 15. On the other hand, learned counsel for the defendants argued that no prejudice would be caused to the plaintiffs and that the Xerox copy satisfies the requirements for secondary evidence. However, upon perusal of the affidavit and the contents relied upon by the defendants, this Court finds multiple contradictions and inconsistencies that render their version unbelievable. Consequently, it cannot be held that the documents can be properly received as secondary evidence. For these reasons, the Court concludes that the learned trial Judge erred in allowing the Xerox copies of the Will Deed and legal notice as secondary evidence, and that the order passed by the trial Judge deserves to be set aside. 16. Accordingly, the Civil Revision Petition is allowed setting aside the order dated 19.06.2025 in I.A.No.251 of 2025 in O.S.No.21 of 2022 passed by the learned Principal District & Sessions Judge, Kamareddy. Consequently, I.A.No.251 of 2025 in O.S.No.21 of 2022 is liable to be dismissed. There shall be no order as to costs. As a sequel, miscellaneous petitions, pending if any, shall stand closed.