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2025 DIGILAW 47 (TS)

Dodla Swamy Reddy v. Dodla Bal Reddy

2025-02-14

K.SARATH

body2025
ORDER : K.Sarath, J. 1. This Civil Revision Petition is filed under Article 227 of the Constitution of India questioning the order dated 20.03.2024 passed in I.A.No.135 of 2023 in O.S.No.32 of 2014 on the file of Senior Civil Judge, Nagarkurnool, whereby the petition filed by the petitioner/petitioner under Section 63 and 65 of the Indian Evidence Act, to receive certified copy of registered will deed No.21/1985, dated 13.09.1985 and the Orders passed by the Joint Collector, Mahabubnagar in Revision Petition No.D1/2/1999 dated 12.01.2009 as secondary evidence, was dismissed. 2. Heard Sri M.Damodar Reddy, learned Counsel for the petitioner and the Sri N.Bhujanga Rao, learned counsel for the respondents and perused the record. 3. The petitioner is the plaintiff and the respondent No.1 herein is the sole-defendant in the suit in O.S.No.32 of 2014 on the file of Senior Civil Judge, Nagarkurnool, Mahabubnagar District. During the pendency of the suit, the sole defendant died and his L.Rs were brought on record as defendant Nos.2 to 4. 4. The plaintiff filed the suit against the defendant for declaration of title in respect of the suit schedule property. 5. The learned Counsel for the Revision Petitioner would submit that the petitioner/plaintiff and the respondent No.1/defendant No.1 are the sons of D.Bakka Reddy, who was the absolute owner and possessor of the lands admeasuring to an extent of Ac.13.15 Guntas covered by various survey numbers situated at Vanapatla Village of Nagarkurnool Mandal and the said property was the self-acquired property of their father. The respondent No.1, being elder brother of the petitioner, got married in the year, 1970 and ever since the date of marriage he was residing at his in-laws’ house and the petitioner had been looking after his parents and younger brother, D.Bhasker Reddy. Therefore, the father of the petitioner executed a Will Deed in respect of the subject lands in favour of the petitioner vide registered document No.21/1985 dated 13.09.1985. Consequent on death of parents of the petitioner, the Will Deed came into force. 6. The learned Counsel for the petitioner would further submit that after death of his father, the petitioner filed application before the Mandal Revenue Officer, Nagarkunool for implementation of the Will Deed and for issuance of pattadar pass Book in respect of the property covered by Will Deed. 6. The learned Counsel for the petitioner would further submit that after death of his father, the petitioner filed application before the Mandal Revenue Officer, Nagarkunool for implementation of the Will Deed and for issuance of pattadar pass Book in respect of the property covered by Will Deed. On receiving the notices in the said application, the respondent No.1 appeared and raised objection and without examining any witnesses, the Mandal Revenue Officer dismissed the petition filed by the petitioner in file No.ROR No.373/1995 dated 01.03.1996. Being aggrieved by the same, the petitioner filed appeal before the RDO, Nagarkunool vide Case No.F/1235/1996 and the same was allowed on 14.12.1998 by setting aside the order passed by the MRO and ordered to implement the Will Deed and accordingly Will Deed was implemented and Pattadar Pass Books and Title Deed were also issued in favour of the petitioner. Aggrieved by the orders passed by the RDO, the respondent No.1 filed Revision before the Joint Collector, Mahabubnagar vide Revision Case in file No.D1/2/1999 and the same was disposed of on 12.01.2009 directing both the parties to adjudicate their dispute before the competent Civil Court, leading to file the suit. 7. The learned Counsel for the petitioner further submits that, thereafter the petitioner filed O.S.No.32 of 2014 before Trial Court, the petitioner could not file the Original Will Deed along with the suit as it was misplaced in the office the Joint Collector and the order passed by the Joint Collector in ROR proceedings. During the pendency of the suit, the petitioner filed I.A.No.135 of 2023 in O.S.No.32 of 2014 to receive the secondary evidence i.e. certified copy of Will Deed and the Order passed in Revision Case No.D1/2/1999, but the trial Court dismissed the said application and therefore the present Civil Revision Petition is filed and requested to allow the Civil Revision petition. 8. The learned Counsel for the respondents would submit that, during his life time late D.Bakka Reddy never executed the alleged registered Will Deed No.21/1985 dated 13.09.1985 in favour of the petitioner and the respondent No.1/defendant No.1 never left the house and started living at his in-laws’ house. At the time of filing of the suit, the petitioner obtained certified copy of Will Deed and the petitioner suppressing the same and produced same by creating a story of misplacement. There are no merits and requested to dismiss the Civil Revision Petition. At the time of filing of the suit, the petitioner obtained certified copy of Will Deed and the petitioner suppressing the same and produced same by creating a story of misplacement. There are no merits and requested to dismiss the Civil Revision Petition. 9. After hearing both sides and perusing the records, this Court is of the considered view that the petitioner herein, who is the plaintiff, filed suit in O.S.No.32 of 2014 on the file of the Senior Civil Judge, Nagarkunool against the respondent No.1, who is none other than his elder brother, for declaration of title in respect of the suit schedule property basing on the Will Deed executed by his father. During the pendency of the suit, the petitioner herein filed I.A.No.135 of 2022 to receive certified copy of registered Will Deed No.21/1985 dated 13.09.1985 and the Certified copy of the Orders passed by the Joint Collector in Revision Case No.D1/2/1999 dated 12.01.2004 as secondary evidence, but the trial Court declined to receive the same. 10. The contention of the petitioner is that the original Will Deed No.21/1985 dated 13.08.1985, was subject matter before the Joint Collector, Mahabubnagar in Revision Case No.D1/2/1999 and the same was misplaced by the staff of office of the Joint Collector and therefore the petitioner obtained certified copy thereof and also copy of orders passed by the Joint Collector in ROR Revision proceedings and filed petition to receive the said documents as secondary evidence. 11. It is an admitted fact that before filing the suit by the petitioner in O.S.No.32 of 2014, the respondent No.1 filed Revision Petition under Section 9 of the ROR Act in Case No.D1/2/1999 on the file of Joint Collector, Mahabubnagar against the petitioner and the same was disposed of on 12.01.2009 with an observation that the parties are at liberty to seek redressal from the competent Civil Court regarding the genuineness of Will Deed Document No.21 of 1985, dated 13.09.1985 and thereafter to submit application for mutation as per the Judgment. 12. After disposal of the Revision under ROR Act, 1971 the petitioner filed suit in O.S.No.32 of 2014 for declaration. The petitioner pleaded about the execution of registered Will Deed No.21/1985 dated 13.09.1985 and ROR Proceedings in the plaint. 13. 12. After disposal of the Revision under ROR Act, 1971 the petitioner filed suit in O.S.No.32 of 2014 for declaration. The petitioner pleaded about the execution of registered Will Deed No.21/1985 dated 13.09.1985 and ROR Proceedings in the plaint. 13. The trial Court in the impugned order held that without filing the acknowledgment issued by the office of the Joint Collector and without any certification by the said office, the Court cannot consider the vague contentions of the petitioner as true and further held that the defendant is totally denying execution of the registered will deed by their father and the signature on the registered will deed shall also be compared by the Court which is not possible on production of copy of the said will deed. 14. In ROR Revision proceedings in case No.D1/21/1999, dated 12.01.2009, the Joint Collector specifically given directions to both the parties to seek redressal from the competent Civil Court regarding the genuineness of the Will Document No.21 of 1985 dated 13.09.1985. Without production of said Will Deed by the petitioner in the Revision proceedings before the Joint Collector, the question of giving such direction by the Joint Collector does not arise. Merely basing on the opposition by the other side, the rights of the petitioner cannot be curtailed for producing the secondary evidence. 15. The relevant Sections of the Indian Evidence Act are extracted as under: Section 61: Proof of contents of documents. The contents of documents may be proved either by primary or by secondary evidence. Section 63: Secondary Evidence means and include 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. 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. Section 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, orof 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 part 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 moveable; (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 original 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) & (d) any secondary evidence of the contents of the documents 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 cases (a), (c) & (d) any secondary evidence of the contents of the documents 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. Section 68: P roof 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 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. 16. In similar circumstances, this Court in B.Poornima Vs. Thoomu Ramadasu and others, 2006 SCC online AP 175 held as follows: “ 11. Reliance also was placed on S. Madasamy Thevar v. A.M. Arjuna Rajit, AIR 2000 Mad. 465 and in Kuruppanna v. Kolanda Swamy, AIR 1954 Mad. 486 . Before parting with the case it is made clear that admissibility of secondary evidence of certified copy of a document given by the Sub-Registrar or Registrar's office and the procedure specified under Sections 65 and 66 of the Act are more procedural in nature and on procedural technicalities the substantive rights of the parties cannot be defeated. Here is a case where the daughter who is fighting a suit for partition, had taken a specific stand that the present heirs representing Varadarajulu branch are also hand-in-glove with the defendants, on the ground that a futile exercise of notice, had not been exercised by the petitioner, to record a finding to that effect and declining to receive the document in question, in the facts and circumstances of the case, is not warranted. This Court is thoroughly satisfied that in the facts and circumstances of the case, the petitioner is entitled to adduce the document in question as secondary evidence. This Court is thoroughly satisfied that in the facts and circumstances of the case, the petitioner is entitled to adduce the document in question as secondary evidence. But, however, all other questions as to how far the recitals would be helpful and the proof thereof, these questions are left open to be decided by the learned Judge at the appropriate stage. (Emphasis added) In the instant case also, the petitioner filed petition for receiving the Registered Will Deed and order of the Joint Collector in ROR proceedings as secondary evidence and validity of the said documents has to be decided basing on the evidence adduced by both the parties in the trial. 17. In Vijay Vs. Union of India and others, 2023 (SCC ONLINE) SC 1585 the Hon’ble Supreme Court of India held in relevant portion, as under: “ After perusing various judgments of this Court, we can deduce the following principles relevant for examining the admissibility of secondary evidence: 33.1 Law requires the best evidence to be given first, that is, primary evidence. 33.2 Section 63 of the Evidence Act provides a list of the kinds of documents that can be produced as secondary evidence, which is admissible only in the absence of primary evidence. 33.3 If the original document is available, it has to be produced and proved in the manner prescribed for primary evidence. So long as the best evidence is within the possession or can be produced or can be reached, no inferior proof could be given. 33.4 A party must endeavor to adduce primary evidence of the contents, and only in exceptional cases will secondary evidence be admissible. The exceptions are designed to provide relief when a party is genuinely unable to produce the original through no fault of that party. 33.5 When the non-availability of a document is sufficiently and properly explained, then the secondary evidence can be allowed. 33.6 Secondary evidence could be given when the party cannot produce the original document for any reason not arising from his default or neglect. 33.7 When the copies are produced in the absence of the original document, they become good secondary evidence. Still, there must be foundational evidence that the alleged copy is a true copy of the original. 33.6 Secondary evidence could be given when the party cannot produce the original document for any reason not arising from his default or neglect. 33.7 When the copies are produced in the absence of the original document, they become good secondary evidence. Still, there must be foundational evidence that the alleged copy is a true copy of the original. 33.8 Before producing secondary evidence of the contents of a document, the non-production of the original must be accounted for in a manner that can bring it within one or other of the cases provided for in the section. 33.9 Mere production and marking of a document as an exhibit by the Court cannot be held to be due proof of its contents. It has to be proved in accordance with the law. (Emphasis added) Para Nos.33.6 to 33.9 of the above Judgment apply to the instant case. The relevancy of the documents can be examined by the Trial Court on the basis of evidence to be let in the suit. 18. In the written statement filed by the respondent No.1 in O.S.No.32 of 2014, admitted that the matter of implementation of the Will Deed went up to the Joint Collector in Revision proceedings under ROR Act and the Joint Collector after hearing both sides directed the petitioner-plaintiff to get his rights decided by the Civil Court on the basis of the said Will Deed. When once the respondent No.1 is admitting dispute with regard to the Will Deed was fell for consideration in the ROR proceedings, now contending that the said document was not produced by the petitioner before the Joint Collector and the said contention is not acceptable. Furthermore, the trial Court has not given any finding with regard to receiving of order passed by the Joint Collector in Revision Petition No.D1/2/1999 dated, 12.01.2009, which is a material paper of an official order for secondary evidence along with Will Deed. The Trial Court ought to have allowed the petition for receiving of documents for secondary evidence and the same have to be examined after concluding the trial as per evidence. Therefore, the impugned order dated 20.03.2024 passed by the Trial Court is liable to be set aside and the petition filed by the petitioner has to be allowed. 19. The Trial Court ought to have allowed the petition for receiving of documents for secondary evidence and the same have to be examined after concluding the trial as per evidence. Therefore, the impugned order dated 20.03.2024 passed by the Trial Court is liable to be set aside and the petition filed by the petitioner has to be allowed. 19. In view of the above facts and circumstances, the Civil Revision Petition is allowed by setting aside the impugned order dated 20.03.2024 passed in I.A.No.135 of 2023 O.S.No.32 of 2014, and consequently the I.A.No.135 of 2023 in O.S.No.32 of 2014 on the file of Senior Civil Judge, Nagarkurnool, stands allowed. There shall be no order as to costs. 20. Miscellaneous Petitions pending, if any, shall stand dismissed.