Kalia alias Kali Ram vs Smt. Channo Devi and Others

M.L. Singhiil, J.—This is a revision against the order dated 31.7.1999 passed by Civil Judge. Junior Division. Kamal where by etc dismissed the application moved by the defendants dated 6.10.1998 for permission to them to lead second an evidence.

Through this application, they sought permission to lead secondary evidence of registered Will dated 16.11.1974 said lo have been executed by Mansa Ram deceased in favour of Kalia alias Kali Ram defendant No. I It was alleged in this application that the original Will had been handed over to Chaudhary Ved Pal Advocate, who was counsel for Mansa Ram in civil suit bearing No 161 of 1979 titled Fatta Ram vs. Mansa etc. It was further alleged that the said Will had remained in the brief of Chaudhary Ved Pal Advocate. Despite best efforts, that Will could not be traced, as such, necessity has arisen to prove the said Will by adducing secondary evidence. This application was opposed by Fatta son of Mansa Rain {a person of unsound mind) since deceased represented by his legal representatives Suit Chhano Devi and others, wife and children of Fatta. who put in reply dated 27 10 98 denying the tenability of the grounds put forth in the application seeking permission to produce secondary evidence of that Will. It was alleged by the plaintiff that Mansa Ram never executed any Will nor he was competent to execute any Will. It was also alleged that the story was cooked up by the defendants that the said Will had been handed over by Mansa Ram to Ch. Ved Pal Advocate. Mansa Ram never executed any Will nor there was any occasion for him to have handed over that Will to Ch Ved Pal Advocate In order to make out case for secondary evidence, the defendants examined AW I Jag Ram Clerk of Shri Rajinder Mohan Sharma Advocate and AW2 KaJi Ram. In rebuttal, plaintiff "produced Smt. Kamla.

Civil Judge. Junior Division. Kamal dismissed this application and declined to allow them permission to prove that Will by secondary'' evidence, in view of his finding, that they had failed to prove the execution of any such Will by Mansa Ram on 16.11.74 in favour of Kali Ram alias Kalia and further they had failed to prove its loss. It was submitted by the Learned Counsel for the petitioner that Fatta, a person of unsound mind/deceased represented by his wife and daughters, filed suit for declaration to the effect that mutation No. 1409 of village Kheri Nam, Tehsil Kamal in favour of Kalia alias Kali Ram defendant in respect of land as detailed in para No.2 of the plaint was null and void and not binding on him and that he was owner to the extent of 1/5th share out of the share of Mansa Ram being his son. Kalia alias Kali Ram filed written statement saying that he was owner of the entire estate of Mansa Rain as Mansa Ram had executed registered Will in his favour dated 16.11.74 of his free will and volition. He had produced certified copy of the Will dated 16.11.74 on the record of the suit and moved application to prove execution of the registered-Will dated 16.11.74 by leading secondary evidence. It was submitted that the original Will had been handed over to Ch. Ved Pal. Advocate. who kept it in his brief of civil suit No. 161 of 1979 titled Fatta Ram vs. Mansa Ram etc. It was sub mined that despite best efforts, the original Will could not be traced in the briefs of the cases of Ch. Ved Pal. Advocate and. therefore, there was no alternative for Kalia alias Kali Ram to prove the execution of that Will but only by producing secondary evidence thereof. Jag Ram presently Clerk to Shri Rajinder Mohan Sharma. Advocate AW 1 stated that he was Clerk to Ch Ved Pal Advocate in the year 1979 In connection with the civil suit titled Fatta Ram vs. Mansa Rain for declaration, one registered Will of the year 1974 had been handed over to Ch. Ved Pal, Advocate, which he had kept carefully in the brief of the case. Mansa Ram had executed that Will in favour of Kalia alias Kali Ram. Its certified copy is mark-A. Ch. Ved Pal, Advocate, became Minister in the year 1982 in Haryana Government and then he became Deputy Speaker. He continued to be on the roll of the Advocates but did not resume actual practice. After 7/8 years. Kali Ram came to them and asked for the original Will. He searched the brief of the case titled Fatta Ram vs. Mansa etc. but could not locate the original will, Kali Ram AW2 stated that Mansa Rain was his father, who had executed registered Will in his favour. He had handed over the original registered Will to Ch. Ved Pal, Advocate in civil titled Fatta Ram vs. Mansa Ram etc. of the year 1979. That registered Will had been kept by Jag Ram AW1 in the brief of that civil suit. During the pendency of this suit, namely civil suit No.330 of 1999 titled Fatta vs. Kalia alias Kali Ram. he went to Jag Ram Clerk and Ch. Ved Pal Advocate and requested them to hand over that Will to him. He went to them almost 100 times. Despite frantic efforts by them that Will could not be traced and eventually he was told that Will was not traceable. Ch. Ved Pal, Advocate became Minister:. After becoming Minister, he stopped practising as an Advocate. Learned counsel for the petitioner submitted that it was a registered Will dated; 6.11.74 executed by Mansa Ram in his favour and he had produced certified copy of that Will and there was no reason to suppose that no such Will ever came into existence. Production of certified copy of Will dated 16.11,74. which purports to have been executed by Mansa Ram in favour of Kalia alias Kali Ram shows that some such Will was Lald before the Sub-Registrar and it was attested by him. It was submitted that there was no reason why the petitioner should not have been allowed to prove this registered Will by secondary evidence when he has stated on oath that he had handed over that Will to Ch. Ved Pal. Advocate in civil suit fio.16! of 1979 titled Fatta Ram vs. Mansa etc. and Ch. Ved Pal Advocate put the registered Will in the brief of that case and when he asked for that Will, that Will was not traceable in that brief. It was submitted that when Kali Ram alias Kalia petitioner had candidly stated that despite frantic efforts by Jag Ram clerk to Ch. Ved Pal, Advocate the said Will remained untraced. he should have been believed as to the loss of that Will and permission to adduce secondary evidence to prove that Will should have been given to him. It was submitted that the production of certified copy of the registered Will was a pointer to the fact that Will came into this world on 16.11.74.

Learned counsel for the respondents, on the other hand, submitted that the previous suit waff not based on Will. In the year 1979. when that suit was filed, in which Will as allegedly handed over to Ch. Ved Pal, Advocate, Mansa Ram was alive and when Mansa Ram was alive no rights could be found on that Will. If no rights could be founded on that Will, how could that Will be relied upon or handed over lo Ch. Ved Pal. Advocate. It was also submitted that Jag Ram has not been above to state, who was the executant of that Will and who was the beneficiary of that Will and Khai were the contents of the Will. It was also submitted that Ch. Ved Pal Advocate should have been produced. It was he who could say whether Kalia alias Kali Ram had handed over any registered Will to him in the year 1979 or not. Production of the certified copy of that Will from the office of Joint Registrar. Kanial shows that the original thereof had taken its birth on 16.11.74. It purports to have been executed by Mansa Ram in favour of Kalia alias Kali Ram. Production of certified copy of Will from the office of Joint Sub Registrar shows the existence of the original. When Kalia alias Kali Ram stated about the loss of the original at the hands of Ch. Ved Pal. Advocate of his staff. Jag Ram Clerk and Kalia alias Kali Ram should have been believed as to the loss of the original Will.

A Part'' seeking permission 16 produce secondary evidence regarding o-document is not required to prove the loss of the document in absolute terms haves held in Smt. Raj Kumari vs. Shri Lal Chand. 1994 (1) PLR 190. that" "in the statement of petition writer as well as in the statement of the plaintiff, it has come oil record that plaintiff was not in position to produce the document because the persons in whose possession the document could be found, are either dead or have denied the execution of the document. In this view of the matter, the order of the trial Court dismissing the application cannot be sustained.1'' In Surinder Kumar vs. Murari Lal, 1993 (2) RRR 535, it was held that "court would grant permission to lead secondary evidence only when it conies to conclusion that document has been lost or destroyed. Section 64 of the Evidence Act enjoins upon parties and Court that document must be proved by primary evidence (hat is by grant of producing original documents for inspection of Court. Court may dispense with production of primary evidence and permit a litigant to lead secondary evidence to prove documents. But before such a permission is granted, concerned party has to prove before Court that original cannot be produced for a cause of be shown to Court and Court has to be satisfied that under circumstances of a particular case, original cannot be produced, therefore, party may be permitted to lead secondary evidence to prove document instead of primary evidence." In AIR 1946 24 (Privy Council) . it was held that ''where loss of original was pleaded and copy offered in evidence, copy cannot be admitted unless loss of original is proved and copy is proved to be a correct copy." In AIR 1924 40 (Lahore) it was held that "where loss of the original has not been proved, copy cannot be accepted in evidence." In Jaspat Rai and Another Vs. Devi Dayal and Others, . it was held that "A Court should be very strict, before admitting secondary evidence tike a mortgage-deed or a special power-of-attorney authorising the creation of a mortgage."

hi this case, certified copy of the registered Will dated 16.11.74 was produced before the trial court alleged to have been executed by Mansa Ram in favour of Kalia alias Kali Ram, who is his son. Jag Ram and Kali Ram have both consistently stated that original registered Will had been handed over to Ch. Ved Pal, Advocate in the year 1979 in connection with civil suit No. 161 of 1979 titled Fatta vs. Mansa Rain and when Kali Ram asked for the registered Will, despite frantic efforts that registered Will could not be traced in the briefs of the cases of Ch. \\fed Pal, Advocate. I think statement of Kali Ram should have been accepted as to the loss of the original Will. He was not required to prove the loss of the original Will in absolute terms. All that, he could state was the existence of the original Will and the presumptive loss of that Will. In Gutari vs. Shiv Charan and others, 1980 HLR 273 it was held by a Full Bench of this Court that "Certified copy of original Will obtained from the office of the Registering Authority cannot be said to be a public document." It does not fall in category of Clauses (e) and (f) of Section 74 of the Evidence Act. Secondary evidence cannot be permitted unless where the case is pleaded that the original is lost and loss is accounted for to the satisfaction of the court.

In this case, Kalia alias Kali Ram had made'' out a case for secondary evidence of the registered Will dated 16.11.74 alleged to have been executed by Mansa Ram in his favour by producing certified copy thereof from the office of Joint Registrar. Karnal. He has accounted for the loss of the original Will by satisfactory evidence. He was not required to account for the loss of the original Will beyond reasonable doubt. He has proved that registered Will dated 16.11.74 which purports to have been executed by Mansa Ram in favour of Kalia alias Kali Ram did come into existence and subsequently it got lost

For the reasons given above, this revision is allowed and Kalia alias Kali Ram is allowed to prove the registered Will dated 16.11.74 alleged to have been executed by Mansa Ram in his favour by means of secondary evidence. It is after secondary evidence is adduced to prove the Will dated 16.1174 that the question of holding the Will to be genuine to have been executed by Mansa Ram in favour of Kali Ram will arise for the determination of the Court and the Court will determine this question after taking into account the entire pros and cons of the case of both the parties concerning that Will.