Research › Search › Judgment

Telangana High Court · body

2025 DIGILAW 845 (TS)

K. Jyothi v. J. Ram Reddy

2025-06-09

G.RADHA RANI

body2025
ORDER : G. RADHA RANI, J. This Civil Revision Petition is filed by the petitioner - respondent - plaintiff aggrieved by the order dated 27.04.2022 passed in I.A.No.477 of 2022 in O.S.No.42 of 2015 by the learned XII Additional Chief Judge, City Civil Court, Secunderabad for allowing the petition filed by respondents - defendants 1 and 2 under Section 65 -A of the Indian Evidence Act, 1872 for receiving the Certified Copy of the Will as secondary evidence. 2. The facts of the case in brief are that the petitioner - plaintiff filed a suit for partition bearing O.S.No.42 of 2015 on the file of the XII Additional Chief Judge, City Civil Court, Secunderabad claiming that the suit schedule properties were the joint family properties. The defendant No.1 was the father of the plaintiff, defendants 3 and 4 are the brother and sister of the plaintiff and defendant No.2 is the wife of defendant No.1 and mother of plaintiff and defendants 3 and 4. The defendants 1 and 2 filed written statement contending that the suit schedule properties were the self-acquired properties and defendant No.1 acquired the same by virtue of a registered Will executed by his father late Sri J.Chitta Reddy bequeathing the properties in favor of his four sons. He also further contended that his elder brother executed a release deed dated 09.12.1982 bearing document No.3026/1982 bequeathing his share in favor of his three other brothers. 3. The defendants 1 & 2 filed I.A.No.477 of 2022 submitting that the original registered Will dated 12.01.1981 was in the custody of his elder brother Mr.J.Narsimha Reddy and he came to know about the same only two months ago. Earlier, he was under bonfide impression that the original Will dated 12.01.1981 was with him and that the same could be produced at the time of his evidence. After thorough search, he could not find the same and realized that it was with his elder brother Mr.J.Narsimha Reddy. He requested Mr.J.Narsimha Reddy to furnish the original registered Will deed dated 12.01.1981 to enable him to file the same in the above case. Mr.J.Narsimha Reddy promised to furnish the same, but however, under the influence of the plaintiff, started dodging the matter. In such circumstances, he addressed a registered letter dated 03.11.2021 through RPAD requesting his brother Mr.J.Narsimha Reddy to furnish the original registered Will deed dated 12.01.1981, but he failed to respond. Mr.J.Narsimha Reddy promised to furnish the same, but however, under the influence of the plaintiff, started dodging the matter. In such circumstances, he addressed a registered letter dated 03.11.2021 through RPAD requesting his brother Mr.J.Narsimha Reddy to furnish the original registered Will deed dated 12.01.1981, but he failed to respond. In the said circumstances, the original Will could not be produced before the Court. The Court also while deciding I.A.No.196 of 2021 filed by them to incorporate such subsequent events in the written statement by way of amendment, while dismissing the same observed that the petitioners could mark the Certified Copy of the Will as secondary evidence and that no amendment was necessary for the said purpose. As such, prayed to receive the Certified Copy of the Will dated 12.01.1981 as secondary evidence. 4. The respondent (plaintiff) to the above I.A. filed her counter contending that in the written statement filed by defendants 1 and 2, no where it was stated in whose possession the original Will was. When there was no foundation made in the pleadings on record in the written statement, the question of receiving the Certified Copy of the alleged Will as secondary evidence would not arise. If a party wanted to lead secondary evidence, he should lay foundation in the written statement. But as seen from the written statement, the petitioner had not stated anything so far as the original Will was concerned. Only after the evidence was over, the petitioner was intending to improvise his case by filing application for amendment. The parameters of secondary evidence were very strict to be followed. There could not be any casual application improving the case during the pendency of the suit. Merely issuing a letter dated 03.11.2021 would not create a right in favor of the petitioner to file an application. When there was no material placed before the Court in the form of pleadings, granting permission for secondary evidence would prejudice the rights of the plaintiff and prayed to dismiss the application. 5. The trial court on considering the provision under Section 65 of the Indian Evidence Act, 1872 with regard to leading of secondary evidence, observed that as per the said provision, if the original document was in possession of the person against whom the document was sought to be proved, secondary evidence is admissible and held that: "7. 5. The trial court on considering the provision under Section 65 of the Indian Evidence Act, 1872 with regard to leading of secondary evidence, observed that as per the said provision, if the original document was in possession of the person against whom the document was sought to be proved, secondary evidence is admissible and held that: "7. It is the contention of the petitioner that his elder brother was under the influence of the plaintiff. As such, inspite of issuing letter, his brother did not respond to produce the original Will. It is not out of place to mention that in the written statement in para-7 (ii) the petitioners mentioned that late Chitta Reddy executed and registered a Will dated 12.01.1981, bequeathing all his properties. So, petitioners have already mentioned in the written statement about the execution of Will by Chitta Reddy in favour of his sons. Now the petitioners are stating that the original Will is in the hands of their elder brother. This foundation is sufficient to admit the document i.e. certified copy of the Will allegedly executed by J.Chitta Reddy in favour of his four sons. The above said Will is relevant. 8. Since the Original Will is in the hands of his brother, certified copy of the said Will is admissible in evidence. Admissibility of the document and marking of document are different than that of the proof. Merely because the Will is filed before the Court and marked before the Court, It cannot be considered by this Court unless the said document is proved as contemplated under Indian Evidence Act. Therefore, the respondent will have every opportunity to disprove the contentions of the petitioners during the evidence. Consequently, there will be no prejudice to the rights of the respondents. Hence, I hold this point in favor of the petitioners." and allowed the petition. 6. Aggrieved by the said order passed by the learned XII Additional Chief Judge, City Civil Court, Secunderabad, the plaintiff preferred this revision. 7. Heard Sri R.A.Achuthanand, learned counsel for the revision petitioner - plaintiff and Sri Srinivas Velagapudi, learned counsel for the respondents - defendants 1 and 2. 8. Learned counsel for the revision petitioner contended that the court below failed to appreciate the parameters for leading secondary evidence. 7. Heard Sri R.A.Achuthanand, learned counsel for the revision petitioner - plaintiff and Sri Srinivas Velagapudi, learned counsel for the respondents - defendants 1 and 2. 8. Learned counsel for the revision petitioner contended that the court below failed to appreciate the parameters for leading secondary evidence. The court observed that there was reference of the registered Will dated 12.01.1981 in the written statement filed by defendants 1 and 2. But the moot question that would fall for consideration was that whether defendant No.1 stated in the written statement as to in whose possession the original Will was. There was no whisper in the written statement so far as where the original Will was. When there was no foundation laid in the pleadings on record, the Court granting permission to lead secondary evidence was erroneous and relied upon the judgments of the Hon'ble Apex Court in Sital Das v. Sant Ram and Others , [MANU/SC/0156/1954] Dhanpat v. Sheo Ram (deceased) through LRs. and Others , [ AIR 2020 SC 2666 ] and of the judgment of the High Court of Andhra Pradesh in Namburu Bulli Veera Bhadra Prasad and Others v. Vegi Venkata Satyanarayana and Others , [MANU/AP/0098/1998] in C.R.P.No.3670 of 1997 dated 16.12.1997. 9. Learned counsel for the respondents - defendants 1 and 2 contended that there were pleadings in the written statement about the execution of a Will dated 12.01.1981 by late J.Chitta Reddy bequeathing all the properties in favor of his four sons. The defendant No.1 was under a bonafide impression that the original Will was with him and that the same could be produced at the time of evidence. But after thorough search, he could not find the same and realized that it was with his elder brother Mr.J.Narsimha Reddy, as such, issued a notice to him, but as the said J.Narsimha Reddy was under the influence of the plaintiff, he had not furnished the original registered Will. As such, filed the petition to receive the Certified Copy of the Will dated 12.01.1981 as secondary evidence. The Court also observed in I.A.No.196 of 2021 that the defendants 1 and 2 could mark the Certified Copy of the Will as secondary evidence. There was no illegality or infirmity in the order of the trial court to set aside the same and prayed to dismiss the revision. 10. The Court also observed in I.A.No.196 of 2021 that the defendants 1 and 2 could mark the Certified Copy of the Will as secondary evidence. There was no illegality or infirmity in the order of the trial court to set aside the same and prayed to dismiss the revision. 10. Section 65 of the Indian Evidence Act, 1872 outlines when secondary evidence of a document can be admitted instead of original. It specifies various circumstances under which secondary evidence could be given of the existence, condition or contents of a document. 11. Section 65 of the Indian Evidence Act, 1872 reads 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 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 documents is admissible. In case (b), the written admission is admissible. In cases (a), (c) and (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 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 documents. 12. As per Section 65 (a) of the Indian Evidence Act, 1872 , the party who intended to lead secondary evidence has to show that the original was in the possession or power of the person against whom the document was sought to be proved. As per the facts of the present case, the original document was alleged to be in the possession of his brother Mr.J.Narsimha Reddy, but not in the possession of the plaintiff against whom the document is sought to be proved. 13. For the applicability of Section 65(c), the party has to show that the original has been destroyed or lost, which was not the present case. 14. In case of Section 65(a), any secondary evidence of the contents of the document is admissible subject to the condition that the party has to specifically plead as to in whose possession, the document is. No secondary evidence exists without the original. The existence of the original has to be proved before a party is entitled to give secondary evidence of the contents of the original. The non-production of the original must be satisfactorily accounted for. Where the original was not produced nor any foundation was laid for giving secondary evidence, the certified copies of it were not admissible. The existence and execution of the original document and the reason for non-availability of original is required to be proved to lead secondary evidence. 15. The High Court of Andhra Pradesh in Namburu Bulli Veera Bhadra Prasad and Others v. Vegi Venkata Satyanarayana and Others (cited supra) held that: "4. What should be kept in mind while leading secondary evidence is that the party which seeks to lead secondary evidence, should lay a proper foundation for reception of such secondary evidence. While drafting the plaint itself, the plaintiffs knew that they were not in a position to produce the original agreement of sale, since according to them the same was with the defendants. While drafting the plaint itself, the plaintiffs knew that they were not in a position to produce the original agreement of sale, since according to them the same was with the defendants. They also knew that by reply notice, the defendants had denied the execution of agreement of sale in their favour. If that is so, they should have laid foundation for leading secondary evidence clearly stating who was the scribe, that wrote the contents of the documents. The plaint though being a very detailed plaint running about 30 pages, does not give the information who was the person that drafted the agreement of sale. In the absence of that, it is difficult to hold that the plaintiffs laid the foundation for examining the scribe by the secondary evidence. However, the learned Counsel for the plaintiffs relied upon the judgment of the Rajasthan High Court reported in Mohanlal v. Kurkul Utpadak Sahakari Samiti [MANU/RH/0012/1989], in support of his contention that the matters of evidence need not be pleaded. That was a decision in which the High Court of Rajasthan held that even without disclosing names and amounts of rent, the tenant could prove the amount of rent with reference to receipts. That was a case for leading secondary evidence. Hence, facts of that case do not apply to the facts of the present case. Even the judgment of the Punjab and Haryana High Court reported in Kirpal Singh v. Aas Kaur [MANU/PH/0033/1997], also does not apply to the facts of this case. These two judgments pertain to a general principle that the matters of evidence need not be pleaded and there cannot be any dispute regarding such a principle. But in the instant case, the plaintiffs have to lay proper foundation for leading secondary evidence. 5. For that purpose they must specifically plead that they were not in a position to produce the document in question or the primary evidence and for that purpose they must state the nature of the document and the person who attested it and the person who scribed it etc., since they know that defendants have denied the execution of the agreement of sale, as on the date of the filing the plaint itself. In such circumstances, all the necessary surrounding circumstances for the purpose of leading evidence must be specifically pleaded. In such circumstances, all the necessary surrounding circumstances for the purpose of leading evidence must be specifically pleaded. In fact, the Hon'ble Supreme Court in Sitaldas v. Santram [MANU/SC/0156/1954 : AIR 1954 SC 606 ] , clearly laid down the law that proper foundation must be laid for reception of such secondary evidence and for laying such a foundation, the plaintiffs should specifically plead the contents of the document viz., the person who attested, the person who scribed it, whether original is either lost or they were not in a position to produce it, so as to inspire confidence of the Court to receive the secondary evidence. Moreover, leading secondary evidence is not a matter of course. Under Section 62 of the Act, the document must be proved by producing the primary evidence and under Section 91 of the Act, when the document is reduced in writing, no other evidence can be given except by way of producing the document itself. However, as contemplated by, Sections 61, 64 and 91 of the Act, secondary evidence also can be lead by complying the other provisions, of the Act i.e., by complying the conditions imposed under Sections 65 and 66 of the Act. However, as contemplated by, Sections 61, 64 and 91 of the Act, secondary evidence also can be lead by complying the other provisions, of the Act i.e., by complying the conditions imposed under Sections 65 and 66 of the Act. The relevant portion of Section 65 provides as under: "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.'' From this, it is clear that under Section 65(b) the party seeking to produce secondary evidence should prove the existence, 'condition' or 'contents' of the original. In order to show such an existence, conditions and contents of the document, the party seeking to adduce secondary evidence should plead and prove all the attendant circumstances, so as to invoke discretion of the Court in his favour, permitting him to lead secondary evidence. In other words, he should necessarily plead who executed the document, in whose favour it was executed, what are the contents of the documents, who are the attestors, who was the scribe of the document etc. Section 65 of the Act is an exception to the general rule that the primary evidence shall be produced to prove a fact in issue. Hence, the party producing such a secondary evidence should necessarily plead and prove all the special circumstances for permitting him to lead secondary evidence. Section 65 of the Act is an exception to the general rule that the primary evidence shall be produced to prove a fact in issue. Hence, the party producing such a secondary evidence should necessarily plead and prove all the special circumstances for permitting him to lead secondary evidence. In these circumstances, it is clear that plaintiffs should have stated in the plaint, as to who was the scribe of the document, who could possibly speak regarding the contents of the document that was written by him. In the absence of such a proof of special circumstances for leading secondary evidence, the party cannot be permitted to lead the secondary evidence." 16. Thus, foundation need to be laid in the pleadings for leading secondary evidence. There could not be any receipt of document as secondary evidence without there being a foundation laid by the party. 17. The observation of the Court that there was a pleading in the written statement about the execution of the alleged Will, is not sufficient for the purpose of receiving secondary evidence. It was for the defendant No.1 to plead in the written statement as to in whose possession the original Will was. Without that foundational fact laid by defendant No.1 in the written statement, the Court ought not to have received the same as secondary evidence. No diligent efforts were made by defendant No.1 to locate where the original Will was from the year 2015 till the filing of the petition in the year 2022. No foundational facts were pleaded by them as to in whose possession the original Will was and no reasonable steps were taken by them to retrieve the original Will during the period from 2015-2021. Only when the defendants could prove that the original was lost or that they were unable to obtain the same with reasonable diligence, the secondary evidence could be permitted. Leading secondary evidence without establishing foundational facts could not be allowed. As such, the order of the trial court in allowing the application is considered as erroneous and the same is liable to be set aside. 18. In the result, the Civil Revision Petition is allowed setting aside the order dated 27.04.2022 passed in I.A.No.477 of 2022 in O.S.No.42 of 2015 by the learned XII Additional Chief Judge, City Civil Court, Secunderabad. No order as to costs. 18. In the result, the Civil Revision Petition is allowed setting aside the order dated 27.04.2022 passed in I.A.No.477 of 2022 in O.S.No.42 of 2015 by the learned XII Additional Chief Judge, City Civil Court, Secunderabad. No order as to costs. As a sequel, miscellaneous applications pending in this petition, if any, shall stand closed.