Narpat Singh vs Bhanwar Singh

Arun Monga, J

The challenge in this petition pertains to an order dated 18.10.2024 (Annex.6) passed by the learned Additional District Judge, Sojat City, Pali, in Civil Original Case No.5/2020, vide which, the application filed by the petitioner-plaintiff under Section 60 of the Bharatiya Sakshya Adhiniyam, 2023 (inadvertently cited as Section 65 of the Indian Evidence Act, 1872 before the trial court), seeking to place a copy of the Will on record, was rejected.

Case set up in the petition is that the petitioner-plaintiff filed a suit against the respondent-defendant, seeking a declaration of ownership over Plot No. 21 based on a Will dated 10.3.2009, executed by his father, along with a prayer for a perpetual injunction. The plaintiff averred that the plot was owned by his father, as evidenced by a patta issued by the Sojat Municipality vide allotment sale letter No. 68/2002-2003.

2.1. The plaintiff further averred that his brother, the defendant, operates a stationery shop in Hyderabad, established with financial assistance from their father, and resides there for business purposes. The plaintiff's parents resided with him. The plaintiff claimed that his father executed a duly notarized Will dated 10.3.2009 in his favor for the disputed plot. Following the father’s death, the Will came into effect, but the defendant allegedly interfered with the plaintiff’s possession and threatened to evict him, prompting the filing of the suit.

2.2. The defendant filed a written statement denying the plaintiff’s claims. He contended that, although the plot is in their father’s name, he contributed Rs.50,000 toward its purchase and Rs. 1,00,000 for the construction of the house, asserting that the property is not the father’s self-acquired property. The defendant further alleged that the plaintiff forged the Will dated 10.3.2009 and claimed to have filed an FIR, which is under investigation.

2.3. Based on the pleadings, the learned trial court framed the issues, and the plaintiff submitted his affidavit for examination-in-chief.

2.4. The plaintiff filed an application under Order 11 Rule 12 and 14 CPC, stating that the suit was at the evidence stage and that the original patta of Plot No. 21 and the original Will dated 10.3.2009 were in the defendant’s possession. The plaintiff requested that these documents, critical to the suit, be summoned and placed on record.

2.5. On 21.2.2024, the learned trial court dismissed the application, noting that the defendant denied possessing the original Will and had submitted an affidavit to that effect.

2.6. On 28.8.2024, the plaintiff filed another application, this time under Section 65 of the Indian Evidence Act, 1872 (inadvertently cited, as it should have been under Section 60 of the Bharatiya Sakshya Adhiniyam, 2023), requesting permission to mark a photocopy of the Will dated 10.3.2009 as an exhibit and produce it as secondary evidence, as the original was allegedly in the defendant’s possession. The plaintiff had submitted photocopies of all documents, including the Will, along with his affidavit.

2.7. The defendant opposed this application, arguing that the plaintiff failed to provide details of the document, that a prior application under Order 11 Rule 12 and 14 CPC was dismissed, and that the present application was filed to delay proceedings. The defendant also reiterated that an FIR had been lodged for the alleged forged Will, though it was stayed by the Hon’ble High Court.

2.8. On 18.10.2024, the learned trial court dismissed the plaintiff’s application, holding that the earlier application for summoning the original Will was dismissed, an FIR for the alleged forged Will was under investigation, and the plaintiff failed to demonstrate whether the original document was lost or its whereabouts. Consequently, the plaintiff has filed this writ petition challenging the order dated 18.10.2024.

In the aforesaid backdrop, I have heard learned counsel for the petitioner and have perused the case file.

Given the nature of order, which I proposed to pass, I do not deem it necessary to issue notice to the respondent, as no prejudice would be caused to them by the nature of order which I propose to pass. In any case, it will only further delay the trial proceedings.

Learned counsel for the petitioner inter alia argues that the learned trial court failed to consider that the petitioner explicitly stated that the original Will dated 10.3.2009 is in the power and possession of the respondent-defendant. In the absence of the original Will being summoned, the petitioner sought permission to produce its photocopy as secondary evidence. However, the learned trial court’s finding that the respondent denied possession of the original Will and that the petitioner failed to establish the basis for secondary evidence is misconceived and unjust, warranting the quashing of the order dated 18.10.2024.

5.1. He further argues that learned trial court erred in overlooking the fact that the suit is at the evidence stage, and the refusal to admit the photocopy of the Will as secondary evidence severely prejudices the petitioner’s case, potentially leading to the dismissal of the suit. The photocopy of the Will is critical to substantiate the petitioner’s claim of ownership over Plot No. 21, as pleaded in the plaint. The trial court’s failure to consider this necessity and its summary dismissal of the application vide the order dated 18.10.2024 renders the order unsustainable and liable to be set aside.

For ease of reference, English translation (as provided) of the relevant part of impugned order dated 18.10.2024, is as below:

“After considering the arguments of both parties, the case file was again carefully examined. In the present case, an earlier order dated 21.02.2024 regarding the Will was passed rejecting the plaintiff's application, in which the defendant stated that the Will is not in his possession. An affidavit was also filed, after which permission has been sought to exhibit this Will under Section 65 of the Evidence Act and other documents are also sought to be exhibited, but no description has been given in the application about what these other documents are. Permission has been sought only to exhibit the original Will as secondary evidence, and the application to summon this original Will was rejected by this court based on the defendant's reply. A criminal case is also registered regarding this document being forged, which is pending investigation. It does not appear from the record that this Will is with the defendant and he is deliberately not producing it. It also does not appear that this document is missing or lost, nor has it been stated in the application that this document is missing or lost. This document is stated to have been written in favor of plaintiff Narpatsingh, therefore the plaintiff himself must explain where and with whom the original document is. The plaintiff has also not stated that this document is lost. The plaintiff is legally bound to produce this document, not the defendant, because the defendant has registered a criminal case against the plaintiff and the defendant has also not accepted this document. The said case that the defendant has registered against the plaintiff is 17/2018 Anwan Bhawarsing vs. Narpatsingh, in which the application to summon the said document from Bhawarsing was also rejected. In such circumstances, granting permission for secondary evidence of this document does not appear justified. Therefore, the plaintiff's said application under Section 65 of the Evidence Act is rejected and dismissed. The case file for plaintiff's evidence is posted for 16/12/2024.”

Having perused the case file and order impugned, it appears that the petitioner-plaintiff has taken all diligent steps to ensure that relevant evidence is brought on record, which would aid not only the learned trial court to unravel the truth but also in the proper adjudication of the dispute concerning the estate of Lt. Bhawani Singh (father of the plaintiff and defendant, who are stated to be real brothers).

Previously, an application under Order 11 Rule 12 & 14 CPC was filed seeking to summon the original Will from the defendant, specifically requiring the defendant-respondent to produce the original Will on record, which the plaintiff has pleaded and seeks to rely upon, but which was allegedly in the possession of his brother. This application was dismissed vide order dated 21.02.2024, on the ground that the defendant denied possessing the said Will, rendering the application without merit.

Subsequently, the petitioner-plaintiff filed another application on 28.08.2024 under Section 60 of the Bharatiya Sakshya Adhiniyam, 2023 (though inadvertently citing old Act i.e. Section 65 of the Indian Evidence Act in the application before the trial court), seeking to place on record a photocopy of the aforesaid Will. However, this application was dismissed vide order dated 18.10.2024 (Annex.6) on the basis that the original Will was not produced by the plaintiff.

Be that as it may, the petitioner now contends that the defendant has deliberately withheld or destroyed the said Will and asserts that the petitioner-plaintiff possesses a photocopy of the same, which should be permitted to be adduced as secondary evidence on record.

Considering the entirety of the matter, I am of the opinion that the onus of proving the Will (document in question) sought to be adduced by the petitioner-plaintiff rests solely on him. Subject to this, if the petitioner-plaintiff succeeds in proving the document, it will assist the learned trial court in properly adjudicating the issues. Conversely, if the petitioner fails to prove the document, no prejudice will be caused to the defendant.

Accordingly, subject to the strict onus on the petitioner-plaintiff to prove the document sought to be adduced, and preserving the defendant’s right to object in accordance with the law, the petition is allowed.

The impugned order dated 18.10.2024 (Annex.6) is hereby set aside. The petitioner-plaintiff’s application under Section 60 of the Bharatiya Sakshya Adhiniyam, 2023 (though inadvertently cited as Section 65 of the Indian Evidence Act before the trial court), is allowed, and the photocopy of the Will is permitted to be taken on record as secondary evidence.

Pending application(s), if any, stand disposed of.