Laltaprasad Balashankar Pande vs Ramsajivan Balashankar Pande

Umesh A. Trivedi, J

This petition is filed under Article 227 of the Constitution of India challenging an order passed below Exh.16 in Regular Civil Appeal No.109 of 2019 whereby 7th Additional District Judge, Surat vide an order dated 8.9.2021 rejected the application Exh.16 filed by the petitioner – original plaintiff praying for production of certified copy of a ‘Will’.

Mr.Anukur Oza, learned advocate for the petitioner – original plaintiff submitted that though certified copy of a ‘Will’ produced before the trial Court, it found that there are no proof to establish that the said ‘Will’ is a certified copy issued by competent authority as it does not bear any seal or even note reflecting it being a certified copy. It is further observed that it does not bear the signature of even executant of a ‘Will’. Therefore, he has submitted that certified copy of a ‘Will’ obtained from the office of the Sub-Registrar is now attempted to be produced by way of this application, which came to be refused. He has further submitted that it is the very same copy of ‘Will’ which is not believed by the Court to be certified copy and therefore, for pronouncing the judgment, the said certified copy of ‘Will’ is required without which judgment cannot be pronounced and therefore, though application is not mentioning any provision under which it is filed, it may be under Order XLI Rule 27 (1)(aa) or (b) of the Code of Civil Procedure, 1908 (for short, the Code’) and therefore, it should have been permitted by the trial Court. In support of his submission, Mr.Oza, learned advocate for the petitioner – original plaintiff relied on a decision in the case of Sanjay Kumar Singh V/s. State of Jharkhand reported in (2022) 7 SCC 247 to submit that admissibility of an additional evidence under Order XLI Rule 27 of ‘the Code’ does not depend upon the relevancy of the issue on hand or whether the applicant had an opportunity for adducing such evidence at an earlier stage or not. Another decision in the case of Satnam Singh V/s. Malook Singh reported in AIR 2017 SC 3749 for a proposition that remand of a case passed by Competent Court giving opportunity to adduce the additional evidence with respect to ‘Will’ in mutation case is a discretionary and justified and therefore, setting aside thereof is held to be erroneous. Decision in the case of Jayaramdas & Sons V/s. Mirza Rafatullah Baig & Ors. reported in ( 2004) 10 SCC 507 is relied on for a proposition that certified copy of a public documents at variance and for that purpose alone comparing with the same when documents already on record, certified copies of a public documents should be permitted to be adduced as additional evidence under Rule 27 (1)(aa) of Order XLI of the ‘Code’.

On the aforesaid submissions and precedents relied on by Mr.Ankur Oza, learned advocate for the petitioner- original plaintiff submitted that this petition be admitted and allowed.

Having heard the learned advocate for the petitioner as also going through the order impugned and the documents annexed along with the petition, it emerges that petitioner-plaintiff filed a suit claiming right in the suit property based on a ‘Will’ of his grandfather claiming to be registered in Utttar Pradesh. It further appears that before trial Court also, as claimed by the learned advocate for the petitioner, certified copy of a ‘Will’ was produced but Court has not believed the same as it did not bear legible stamps and registration number of a registering authority. Therefore, learned advocate for the petitioner submitted that certified copy with legible stamps and registration number be permitted to be produced by way of additional evidence either under Rule 27 (1)(aa) or (b) of Order XLI of ‘the Code’. However, what is found from the impugned order as also the judgment and decree passed by the trial Court that the petitioner -plaintiff has failed to prove the existence of ‘Will’ itself. At the same time, as observed by the trial Court in the impugned judgment and decree though Exh.73 claimed to be the certified copy of ‘Will’ of the executant, it does not bear any rubber stamp of any office wherein, it is registered or any note appended thereto. It is further recorded by the trial Court that it does not bear even signature of the executant as also suit property is also not reflected in the said ‘Will’ having been disposed of by way of said ‘Will’. Not only that, the said certified copy on which the reliance was placed by the petitioner - plaintiff of a ‘Will’ does not reflect that there are any witnesses to the said ‘Will’ nor signature of them is found over the same considering the requirement of ‘Will’ and proof thereof, learned trial Judge has concluded that Exh.73’Will’ which is claimed to be a certified copy of a ‘Will’ of the executant, petitioner -plaintiff has failed to prove the said ‘Will’ and therefore, there is no question of now permitting production of certified copy of a ‘Will’ at this stage, that too, by way of additional evidence as it does not fall within Rule 27 (1)(aa) or (b) of Order XLI of ‘the Code’. Petitioner- plaintiff has not come out with a case that certified copy of the ‘Will’ which is now sought to be produced by way of additional evidence, it was not within his knowledge and despite the exercise of due diligence, it could not be found or produced at the relevant time and therefore, he wants to produce the same. He has also failed to show how the production of this certified copy of a ‘Will’ would enable the Court to pronounce on the judgment. According to me, there is ample evidence based on which the trial Court has concluded that petitioner-plaintiff has failed to prove the ‘Will’ on an analysis of the evidence adduced documents produced and even appellate Court also may be able to pronounce the judgment. He has not made out a case that without this certified copy of ‘Will’ even appellate Court is unable to pronounce the judgment and therefore, it should be permitted under Rule 27(1)(b) of Order XLI of ‘the Code’.

The decisions relied on by the learned advocate for the petitioner -plaintiff are not relevant so far as issueSinghvolved in the present case. As in the case of Sanjay Kumar (Supra) wherein reference Court rejected the sale-deed from the consideration for determination of market value of the land which was acquired. Considering the compulsory acquisition of land of a litigant determination of market value, the Court permitted production of certified copies of previous judgment and award of reference Court which may have a bearing to determine the market value of the land concerned and in absence of any other material available with the Court when it rejected from consideration, the sale-deed which was the only document produced for the determination of a market value. In that case, for determination of market value, no other evidence was available to pronounce the judgment and therefore, Supreme Court permitted the same, which is not the case here.

Decision in the case of Satnam Singh and Another (Supra) was determined on its own facts. In the said case, revenue officer brought the original documents, record of mutation along with registered ‘Will’ and after recording his deposition and his signature on it, the said documents, as reflected from the deposition itself that it was returned back to him and therefore, since on record there was nothing available despite the deposition in respect of existence of a registered ‘Will’ and mutation entry, certified copy of that public document permitted to be produced by way of additional evidence and therefore, the said decision has also no relevance so far as point at issue in this case.

Last decision relied on by the learned (Supra)advocte for the petitioner-plaintiff in Jayaramdas & Sonsis again determined on its own facts as certified copy of public documents were at variance and later set of some documents sought to be adduced as additional evidence, the Court considering the fact that by comparing certified copies of a public document with the documents already on record, Supreme Court held it to be a case falling under Rule 27 (1)(aa) of Order XLI of ‘the Code’. In that case, both the sets of documents were certified copies of public documents and therefore, it was permitted. However, in the present case, though petitioner -plaintiff claimed Exh.73 ‘Will’ to be certified copy issued from office of Sub Registrar of Uttar Pradesh on ultimate analysis of evidence led before it concluded that it cannot be said to be even certified copy of document from any public authority for reasons assigned therein. In that view of the matter, while exercising the jurisdiction under Article 227 of the Constitution of India, more particularly when, discretion is well exercised by the appellate Court rejecting the application Exh.16 which is filed for production of documents, I see no reason to entertain the same. Hence, this petition is rejected.