Rambha Bai & Ors vs Nanibai & Ors.

The petitioners have filed the present petition under Article 227 of the Constitution of India challenging the order dated 5/10/2019, passed by IInd

Civil Judge, Class-II, Khachrod(M.P.) in Civil Suit No.1A/18 thereby, dismissing the application preferred by the petitioners.

The respondent No.2, who is plaintiff before the Court below has filed a suit for declaration and permanent injunction against the petitioners with

regard to land bearing Survey No.750 Rakba 2.250 hectare situated at village Lekoda Anjana, Tehsil Nagda, District Ujjain(M.P.).

The defendants/petitioners has filed their written statements in the suit. That, during pendency of the said suit, the petitioners have filed an

application under Order 13 Rule 10 of C.P.C. before the Court below for calling of the record related to the registered “Will†from the Registrar

Office, Khachrod. The application has been filed with the contention that the suit has been filed on the basis of a “Willâ€. It is further contended

that various overwriting are there in the “Will†and it appears that the overwriting was done after its registration and, therefore, the original record

related to the alleged “Will†is required to be summoned. It was specifically contended that since the “Will†is not a public document, they

cannot obtain the certified copy of the same.

The plaintiffs/defendants has filed their reply to the application and opposed the prayer made in the application.

After hearing both the parties, the trial Court vide impugned order dated 5/10/2019 has rejected the said application. Being aggrieved by that order,

the petitioners have filed the present petition.

Learned counsel for the petitioners submits that the trial Court has committed grave error in dismissing the application filed by the petitioners under

Order 13 Rule 10 of C.P.C. The trial Court has erred in dismissing the said application on the ground that the certified copy of the “Will†can be

obtained and that can be produced to compare the same. The Court below has further failed to establish that the certified copy cannot be obtained as

the same is not a public document. To this effect, he further placed reliance on the judgment passed by the Punjab and Haryana Court in the case of

Sampat Singh Vs. Bhagwanti & Ors. reported in AIR 2010(NOC) 701 as well as the judgment passed by the Division Bench of this Court in the case

of Smt. Rekha Rana & Ors. Vs. Smt. Ratnashree Jain reported in AIR 2006 M.P. 107.

On the other hand, learned counsel for the respondents supports the order passed by the Court below and submits that the Court below has not

committed any error in dismissing the application preferred by the petitioner under Order 13 Rule 10 of C.P.C.

Heard learned counsel for the parties and perused the record.

In the present case, the petitioners have filed a Civil Suit for declaration as well as permanent injunction. The respondents have filed their written

statements. That, as the suit was based on a “Will†and there was some overwriting in the said “Willâ€, therefore, the petitioners have filed an

application for calling of the record from the Registrar Office for verifying the same. However, the Court below after hearing both the parties has

rejected the said application. Being aggrieved by that order, the petitioner has filed the present petition.

Learned counsel for the petitioner submitted that the impugned order is illegal and arbitrary. He submits that the Court can call only the public

documents before the Court. In the present case, the “Will†which is sought to be produced although has registered documents, but not a public

document. Therefore, it was specifically contended that the record of the same could not be produced before the Court. He further asked the

respondents to produce the certified copy of the “Will†before the Court below. The said Will is a private document, therefore, the certified copy

of the same could not be produced before the Court.

The Division Bench of this Court in the case of Smt. Rekha Rana(supra) has held as under :-

A sale deed (or any other deed of conveyance) when presented for registration under the Registration Act, is not retained or kept in any public office of a State after

registration, but is returned to the person who presented such document for registration, on completion of the process of registration, An original registered

document Is not therefore a public record kept in a state of a private document, Consequently, a deed of sale or other registered document will not fall under either of

the two classes of documents described in Section 74, as 'public documents'. Any document which is not a public document is a private document. We therefore

have no hesitation in holding that a registered sale deed (or any other registered document) is not a public document but a private document.

(i) Production and Marking of a certified copy as secondary evidence of a public document under Section 65(e) need not be preceded by laying of any foundation for

acceptance of secondary evidence. This is the position even in regard to certified copies of entries in Book I under Registration Act relation to a private document

copied therein.

(ii) Production and marking of a certified copy as secondary evidence of a private document (either a registered document like a sale deed or any unregistered

document) is permissible only after laying the foundation for acceptance of secondary evidence under Clause (a), (b) or (c) of Section 65.

(iii) Production and marking of an original or certified copy of a document does not dispense with the need for proof of execution of the document. Execution has to

be proved in a manner known to law (Section 67 and 68 and ensuing sections in chapter V of Evidence Act).

Thus, in view of the aforesaid judgment, the “Will†being not a public document and is private document, the record of the same could not be

produced before the Court below.

In the light of the aforesaid, the miscellaneous petition is allowed. The impugned order dated 5/10/2019 is hereby set aside and I.A. filed by the

petitioners under Order 13 Rule 10 of C.P.C. is allowed.