Singh Vs. Smt. Chhoti & Ors  INSC 369 (1 December 1989)
K.J. (J) Shetty, K.J. (J) Mukharji, Sabyasachi (J) Ahmadi, A.M. (J)
1990 AIR 396 1989 SCR Supl. (2) 356 1990 SCC (1) 266 JT 1989 (4) 439 1989 SCALE
INFO : R 1990 SC1742 (2)
Succession Act: Will--Execution and validity--Open to court to look into
surrounding circumstances brought out in evidence.
Procedure Code: Order I Rule 8--Representative Suit-Permission of
Evidence Act: Sections 63 and 79--Secondary evidence-Correctness and proof of
certified copy--Necessity of.
case is concerned with a garden with temples and other buildings at Jaipur
claimed to be the property of Darjee (Tailors) community popularly known as 'Bagichi
Darjian'. It was claimed by different persons at different intervals on
different grounds. One Narayan, Pujari on the temples was said to have sold the
Bagichi in favour of one Khawas Bala Bux. Darjee community filed a suit for
cancellation of that sale and declaration of its right to administer the
property. The Trial Court dismissed the suit but on appeal District Judge
decreed it and this decree was affirmed by the Chief Court of Jaipur. But after
23 years on the death of Narayan his eldest son Bhonrilal-respondent No. 3
herein who became the Pujari attempted to get his name mutated in revenue
records as owner of the Bagichi. On behalf of the Darjee community the
appellant herein together with one Khawas Suraj Narayan filed a suit in 1951
for his ejectment. This suit was decreed in favour of the Darjee community.
Appeal against that decree by Bhonrilal was dismissed by the Senior Civil
Judge, Jaipur. Second appeal in the High Court too failed.
even before the disposal of the aforesaid Second appeal, Gangaram the younger
brother of Bhonrilal started another round of litigation. He filed a
declaratory suit claiming the ownership of the Bagichi and temples on the basis
of sale deed dated Baishakh Sudi 12th Samvat 1932 (about 1875 A.D.) and a Will
purported to be executed in 1916 A.D. in his favour.
The Trial Judge decreed the suit in his favour. The defendants' appeal was
dismissed by the District Judge upholding the validity of the said Sale Deed
and the Will.
further appeal, the High Court rejected the validity of the Sale Deed as well
as that of the Will which formed the foundation of Ganga Ram's title. But
instead of allowing the appeal and dismissing the suit the High Court declined
to interfere with the decree of the Court below though holding that the
plaintiff's suit was a fruitless exercise.
Singh the defendant challenged the decree of the High Court in this Court on
two counts. Firstly that the suit against Bhonrilal was of a representatives character
which could not be nullified by the present suit against individuals. Secondly
the High Court after discarding the Sale Deed and the Will ought to have
non-suited the plaintiff since there was no other material whatever to support
the title. While allowing the appeal and modifying the judgment and decree of
the High Court, this Court,
In the absence of permission under Order I Rule 8 CPC to file a representative
suit which is mandatory any member of the community may successfully bring a
suit to assert his right in the community property or for protecting such
property. Such a suit need not comply with the requirements of Order I Rule 8
C.P.C. and the suit against Bhonrilal even if it was not a representatives suit
on behalf of the Darjee Community would be a suit of this category.
It is essential that trust worthy and unimpeachable evidence should be produced
before the Court to establish genuineness and authenticity of the Will. It must
be stated that the factum of execution and validity of the Will cannot be
determined merely by considering the evidence produced by the propounder. In
order to judge the credibility of witnesses and disengage the truth from
falsehood the Court is not confined only to their testimony and demeanour. It
would be open to the court to consider circumstances brought out in the
evidence or which appear from the nature and contents of the documents itself.
It would be also open to the Court to look into surrounding circumstances as
well as inherent improbabilities of the case of reach a proper conclusion on
the nature of the evidence adduced by the party. [366E-F] The Will in the
instant case, constituting the plaintiff as a sole legatee with no right
whatever to the testator's wife seems to be unnatural. It casts a serious doubt
on the genuineness of the Will. The Will has not been produced for very many
years before the Court or 358 public authorities even though there were
occasions to produce it for asserting plaintiff's title to the property.
plaintiff was required to remove these suspicious circumstances by placing
satisfactory material on record. He has failed to discharge his duty. This
Court concurs with the conclusion of the High Court and rejects the Will as not
genuine. [368A-B] Section 63 of the Evidence Act mentions five kinds of
secondary evidence. Clauses (1), (2) and (3) refer to copies of documents;
clause (4) refers to counter-parts of documents and clause (5) refers to oral
accounts of the contents of documents. Correctness of certified copies referred
to in clause (1) is presumed under section 79 but that of other copies must be
proved by proper evidence. A certified copy of a registered sale deed may be
produced as secondary evidence in the absence of the original. [369B-C] H. Venkatachala
lyengar v. B.N. Thimmajamma & Ors.,  Supp. I SCR 426; Rani Purnima Devi
& Anr. v. V. Kumar Khagendra Narayan Dev & Anr.,  3 SCR 195; Smt.
Indu Bala Bose & Ors. v. Manindra Chandra Bose & Anr.,  1 SCC' 20
and Mst. Biro v. Atma Ram & Ors., AIR 1937 PC 101.
APPELLATE JURISDICTION: Civil Appeal No. 135 I(N) of 1973.
the Judgment and Decree dated 14.3.1973 of the Rajasthan High Court in S.B.
Civil Second Appeal No. 201 of 1966.
Jain, Pramod Dayal and A.D. Sanget for the Appellant.
Sushil Kumar Jain, Sudhanshu Atreya and L.C. Agarwala for the Respondents.
Judgment of the Court was delivered by K. JAGANNATHA SHETTY, J. This appeal by
special leave is from the judgment of the Rajasthan High Court dated March 14,
1973 in S.B. (Civil) 2nd Appeal No. 201of 1966.
case has a long history. It is concerned with a garden (baghichi) with temples
of Sri Satyanarayanji, Sri Mahadeoji and other buildings at Motidungri Road in Jaipur.
local Darjees (Tailors) claim that it is their community property. According to
them 359 it is known as 'Baghichi Darjian' since it belongs to Darji community.
The property however, was the subject-matter of several litigations. It was
claimed by different persons at different intervals on different grounds. One Narayan
was admittedly 'Pujari' of the Temples. There
was allegation that Narayan purported to have sold the Baghichi in favour of
one Khawas Bala Bux. The Panchas of Darjian community filed a suit for
cancellation of the sale-deed and possession of the baghichi. The suit was also
for declaration of the right to administer the trust of the temples and the
other properties. Narayan was the first defendant in that suit. He did not
contest the suit. He was, however, summoned and his statement was recorded on July 8, 1925, wherein he admitted that he was
only the Pujari of the temples. The other defendants in the suit set up rival
title to the property relying upon the sale deed of Samvat 1932 in the name of Raghunath.
The trail court dismissed the suit but on appeal the District Judge decreed it.
That decree was affirmed by the former Chief Court, Jaipur by judgment Ex. A8 dated September 15, 1928.
for about 23 years there was no problem and there was no rival claimant to the
property. But the dispute started after the death of Narayan. His eldest son Bhonrilal
respondent 3 herein, made attempts to get his name mutated in the revenue
records as owner of the baghichi. It appears that Bhonrilal after the death of
his father was acting as Pujari of the temples. The Darjian community authorised
Kalyan Singh, the appellant herein, as well as one khawas Suraj Narayan to
bring an action for ejectment of Bhonrilal.
1951 they instituted a suit for his ejectment. In that suit Bhonrilal admitted
the Panchayat's right to the baghichi but raised a number of other pleas
including his title by adverse possession. In 1966 the Munsif Court (West Jaipur) decreed the suit in favour of the Darji community.
1958 the appeal against that decree was dismissed by the senior civil Judge, Jaipur City. Bhonrilal preferred Second Apeal No. 8C of 1958 in the
High Court of Rajasthan and obtained stay of delivery of possession on
depositing mesne profits at Rs.25 per month. On September 15, 1960, the High Court dismissed the second appeal. Thus the title
of the Darjee community in respect of the baghichi was again recognised.
before disposal of the aforesaid second appeal, Ganga Ram the younger brother
of Bhonrilal started another round of litigation. On December 12, 1959, he brought a declaratory suit
claiming that he is owner of the property consisting of baghichi and temples.
In this appeal we are concerned with the fight claimed by him. The suit was
primarily against the present appellant Kalyan Singh and Suraj 360 Narayan,
since deceased. Bhonrilal was also impleaded as the third defendant. Ganga Ram
based his title to the property under a sale deed dated Baishakh Sudi 12th Samvat
1932 (about 1875 A.D.) and also on a will dated Asaj Sudi 12th Samvat 1973
(about 1916 A.D.). It was further alleged that the bagichi belonged to Bhagala
and Girdhari and they sold the same to Raghunath Brahmin. Raghunath constructed
the temple of Sri Satyanarainji and other buildings. Raghunath had only one son
called Gaurilal and he was issueless.
executed a will giving all his properties to Ganga Ram. It was alleged that the
earlier suit against Bhonrilal was collusive between the parties. With these
allegations, Ganga Ram prayed for the following reliefs:
the plaint of the plaintiff be decreed and the plaintiff be declared as the
owner of the aforesaid property. The plaintiff is the owner of the property
mentioned in Para No. 1.
decree which the defendant Nos. 1 and 2 had obtained on 20.8. 1956 against the
Defendant No. 3 and was upheld by the Senior Civil Judge on 6.2. 1958, is null
and void against the claim of the plaintiff." The appellant the first
defendant in the suit denied plaintiff's title to the baghichi. He also denied
the title of Bhagala and Girdhari. It was maintained that the baghichi was
community property of Darjees and Narayan was only a 'Pujari' of the temples. Narayan
continued as Pujari till his death in 1950 and thereafter his eldest son Bhonrilal
was acting as Pujari. Reference was made to the judgment of the Chief Court of Jaipur
in the first suit against Narayan and judgments in the second suit against Bhonrilal.
In view of those litigations and judgments rendered therein, it was claimed
that the present suit was barred by principle of res ]udicata. It was also
specifically stated that the suit against Bhonrilal was not collusive but
brought on behalf of the Darjee community in a representative capacity.
trial Judge on considering the evidence produced by the parties decreed the
suit declaring the plaintiff as owner of the suit property. It was also
declared that the plaintiff is not bound by the judgment and decree dated
September 15, 1928 of the Chief Court of the erstwhile State of Jaipur. But no
reference was made to the judgment and decree obtained in the suit against Bhonrilal.
No declaration was given that it was not binding on the plaintiff though that
relief was specifically sought for. Perhaps the plaintiff did not press that
point. Kalyan Singh and Suraj Narayan appealed to the District Court. The 361
learned District Judge dismissed the appeal. He also did not refer to the
judgment in the suit against Bhonrilal. He only examined the validity of the
said Sale deed and Will and held that they were proved to have been executed.
The defendants approached the High Court in Second Appeal No.
Before the High Court, they sought to produce additional evidence. They moved
an application under Order 41 Rule 27 C.P.C. to accept a certified copy of the
judgment dated September 15, 1928 of the Chief Court of the erstwhile Jaipur
State and a copy of the statement of Narayan recorded in that suit. The High
Court accepted the judgment of the Chief Court of Jaipur State, but rejected
the Statement of Narayan.
the pendency of the appeal in the High Court Suraj Narain died and his name was
deleted from the appeal memo. Ganga Ram also died and his wife and son were
brought on record as his legal representatives.
principal question argued before the High Court related to the validity of sale
deed (Ex. 3) and will (Ex. 4) which formed the foundation of Gangaram's title
to the suit property. The High Court rejected both the documents.
sale deed Ex. 3 was rejected as inadmissible in evidence. The will Ex. 4 was
disregarded in view of the suspicious circumstances surrounding its execution.
These conclusions would have been sufficient for allowing the appeal and
dismissing the suit. But the High Court did not do that and instead rounded off
the discussion as follows:
plaintiff is undoubtedly in possesion of the Baghichi and it cannot be gainsaid
that he was not a party to the previous litigation and he is not claiming the
property though his father Narayan or his brother Bhonrilal. Apart from
everything, the suit does not seem to have been filed against Kalyan Singh and
another in a representative capacity in accordance with Order 1 Rule 3 Civil
Procedure Code. There was no application for permission to sue them in their
in spite of my having reached the conclusion regarding the document Ex. 3 and 4
against the plaintiff respondents I am not inclined to interfere with the
decree of the court below though I do feel that the litigation against Kalyan
Singh and another in their individual capacity was a fruitless exercise.
362 Kalyan Singh the defendant has now appealed challenging the decree of the
for the appellant has a two fold contention. In the first place, it was argued
that the Darjee community in their representative suit against Bhonrilal has
obtained a decree declaring their title to the property and that decree could
not be nullified by the present suit against individuals. The High Court
instead of holding that the plaintiffs suit was a fruitless exercise, ought to
have dismissed the suit. Secondly, it was urged that the High Court after
discarding the sale deed Ex. 3 and will Ex. 4 ought to have non-suited the
plaintiff since there is no other material whatever to support his title to the
these contentions would have been accepted without much discussion, but we have
to consider the submissions of counsel for the respondents. He challenged the
correctness of the findings on all material points. It is, therefore, necessary
to examine the judgment in greater detail.
will first consider whether the previous suit against Bhonrilal was a
representative suit on behalf of the Darjee community. It was argued for the
respondents that it was only a suit on behalf of the 'Panchayat Darjian' and
not a representative suit on behalf of the Darjee community. Our attention was
drawn to the trail court order dated November 16. 1962 in the present suit. Thereunder
the trial court has rejected an application for amendment of written statement.
observed that the defendants in the affidavit have not denied allegations of
the plaintiff that the suit against Bhonrilal was not in a representative
capacity. But the Court made that observation only on perusing the affidavits
of parties for a limited purpose of considering the amendment application and
not on an issue arising out of pleadings in the suit. In fact, the court has
not framed any issue on that controversy although the defendant in the written
statement has asserted that it was a representative suit on behalf of the Darjee
community. The view expressed in the order dated November 1962 is therefore,
for the appellant however, relied upon statements from judgments in the
previous suit in support of his contention that it was representative suit on
behalf of the Darjee community. Ex. A-2 is the judgment of the trial court. It
begins with a sentence: "This is a representative suit by the plaintiffs Kalyan
Singh and Suraj Narayan on behalf of the Panchayat Darjian for recovery of
possession of the 363 baghichi." But this statement may not help counsel
for the appellant, since the suit was said to be on behalf of the 'Panchayat Darjian'
and not Darjee community. Ex. A-4 is the High court judgment in the second appeal
arising out of that suit. There the High court has stated: "That the suit
was brought by Kalyan Singh and another against Bhonrilal by the
representatives of Darjee community." Here again we do not find much
support to the appellant. The suit might have been instituted by
representatives of the Darjee community, but that by itself was not sufficient
to constitute the suit as a representative suit. For a representative suit, the
court's permission under Order 1 Rule 8 of the Code of Civil Procedure is mandatory.
One does not know whether any such permission was obtained. The pleading in
that suit or the order obtained under Order 1 Rule 8 has not been produced.
is no other evidence to support the contention of either of the parties. In the
absence of necessery material the conclusion one way or the other as to the
nature of the previous suit will not be justified.
that does not mean that the plaintiff could succeed ignoring the judgment and
decree in the suit against Bhonrilal. It must be stated that any member of a
community may successfully bring a suit to assert his right in the community
property or for protecting such property by seeking removal of encroachments thereform.
Such a suit need not comply with the requirements of Order 1 Rule 8. The suit
against Bhonrilal even if it was not a representative suit on behalf of the Darjee
community would be a suit of this category. Kalyan Singh and another claimed
that the baghichi was their community property and Bhonrilal was a trespasser.
brought the suit to recover possession from Bhonrilal.
suit was decreed. The rival title claimed by Bhonrilal by adverse possession
was negatived. So long as that decree operates it would be futile to decree the
present suit. The observation of the High Court that the present suit is a
fruitless exercise could therefore, be sustained on this ground if not for the
validity of the will may now be considered. On this question, the High Court
read the evidence of these witnesses I am satisfied that according to the
ordinary standard of proving a document the document Ex. 4 can be said to have
been proved. However, there are two disturbing elements surrounding the
execution of the will. The first striking feature of this will is that even
though the wife of Gaurilal was living at 364 the time as she had survived him,
no provision whatsoever had been made regarding her by Gaurilal in the alleged
will Ex. 4. Then the second striking feature is that even though litigation had
been going on almost for years this will had not been referred to by anyone.
first suit Narain was a defendant he had not contested the suit and the
proceedings remained ex parte against him. However, he was called by the Court
and his statement was recorded. The judgment of the Jaipur Chief Court shows
that he had laid no claim to the property and took the position that he was a Pujari
at the baghichi. Then subsequently when suit was filed by the Darzi community
against Bhonrilal, no reference came to be made to this will Ex. 4 Learned
counsel for the respondents, as I have already observed, suggested that Narain
or Bhonrilal could not be expected to make any reference to the will as that
would be detrimental to the stand taken by them. The argument, no doubt, looks
attractive, but if it is examined in the light of none other than the statement
of Ganga Ram himself it cannot stand the scrutiny. Gangaram had referred to the
earlier litigation in the plait, but when he entered the witnesses box he had
taken a somersault. He was asked whether he was aware of the previous
litigation and he said, he did not know of it. He was then questioned with
reference to para 5 of the plaint as to how the facts had been mentioned by him
therein and he kept mum and had no answer. He also admitted that it was Narain
who had given him the document, Ex. 4 some 5 or 7 years after the death of Gaurilal
i.e. some 30 or 35 years back. In that situation there was no mention of the
alleged will in any of the two previous suits. It is also remarkable that even upto
the High Court Bhonrilal had asserted his own possession over the property and
had also obtained a stay order on payment of mesne profits vide Ex. A7.
XXXXXX XXXXXXX The will is, therefore, not free from suspicion and it has not
been dispelled. My conscience in this regard is not satisfied and therefore, I
am unable to hold that Ex. 4 was the last will of Gaurilal in favour of Ganga
for the respondents however, urged that the plaintiff has 365 proved its
execution by producing one of the attestors and the scribe and their evidence
has not been disbelieved by the High Court. We were referred, in particular, to
the evidence of plaintiff PW 3, Ramdeo PW 4 and Sham Sunder PW
have perused their testimony and we are of the opinion that it is far from
satisfactory. The plaintiff has deposed that Gaurilal was issueless and hence
executed the will bequeathing the property to him. Ramdeo claims to be the
attesting witness to the will. He has stated that the plaintiff was 10-11 years
old when the will was executed. But the plaintiff himself has deposed that he
was then a boy of 2-3 years. Ramdeo has given his age as 55 years when he
deposed in the court on January 5, 1962. If we go by that age Ramdeo must have
been a boy of 9 years when he attested the will in 19 16 Sham Sundar claims to
be the scribe of the will. He has deposed that after he wrote the will
attestation was made by witnesses but he has not named any one of them. He has
not even referred to Ramdeo as an attesting witness.
said that the plaintiff was adopted son of Gaurilal, and was thus the object of
his affection for the exclusive bequest. But there is no reference in the will
that he was the adopted son. The plaint also makes no reference to his adoption
by Gaurilal. Nor there is any other material to lend credence to such
relationship. On the contrary, the Temple register shows that he was the son of
if we proceed on the plea that the plaintiff was adopted son of Gaurilal, there
seems to be little reason to justify the bequest exclusively m his favour. It
is now not in dispute that Gaurilal's wife was living at the time of execution
of the will, but no provision was made for her maintenance. In the normal
course, the wife would be the first to be thought of by the husband executing a
will. She should have been the first beneficiary of her husband's bounty unless
there was odium or embittered feelings between them. But there is no such
evidence and it was not even the plaintiff's case that their relationship was
strained. Why then she should be excluded altogether? It is indeed baffling
since it runs counter to our societal values.
there is another circumstance which tells against the genuineness of the will.
The will purports to have been executed in 1916 and Gangaram instituted the
suit in 1959.
will had not seen the light of the day till the institution of the suit. It is
not as if Gangaram or his brother or father had no opportunity to produce the
will to assert rights over the property in question. The plaintiff has stated
in his evidence that his father Narayan handed over the will to 366 him. Narayan
was therefore, aware of the execution of the will. Yet he did not disclose it
to the court in the suit against him. His statement was recorded on July 8,
1925 wherein he had admitted that he was only the Pujari of the temple and the
wife of Baldeo sold the property. He did not say that his son Gangaram became
owner of the property under the will executed by Gaurilal. In ,he second suit, Bhonrilal
set up independent title to the property by adverse possession. That claim was
totally destructive of Gangaram's title. It cannot be said that Gangaram was
ignorant of that litigation till he filed the suit. His evidence does not lead
to that inference. In fact the plaint averments and his statements in the court
lead to the contrary. Gangaram, however, made no attempt to produce the will in
long period of 43 years, none made any attempt to rely upon the will against
the claim of the Darji community when the community representatives have
successfully brought two suits. This would not have been the natural conduct of
person if the will had been really in existence.
been said almost too frequently to require repetition that a will is one of the
most solemn documents known to law. The executant of the will cannot be called
to deny the execution or to explain the circumstances in which it was executed.
It is, therefore, essential that trustworthy and unimpeachable evidence should
be produced before the court to establish genuineness and authenticity of the
must be stated that the factum of execution and validity of the will cannot be
determined merely by considering the evidence produced by the propounder. In
order to judge the credibility of witnesses and disengage the truth from
falsehood the court is not confined only to their testimony and demeanour. It
would be open to the court to consider circumstances brought out in the
evidence or which appear from the nature and contents of the documents itself.
It would be also open to the court to look into surrounding circumstances as
well as inherent improbabilities of the case to reach a proper conclusion on
the nature of the evidence adduced by the party.
In H. Venkatachala
lyengar v. B.N. Thimmajamma & Ors.,  Supp. 1 SCR 426 Gajendragarkar,
J., as he then was, has observed that although the mode of proving a will did
not ordinarily differ from that of proving any other document, nonetheless it
requires an element of solemnity in the decision on the question as to whether
the document propounded is proved as the last will and testament of departed
testator. Where there are suspicious circumstances, the onus would be on the propounder
to explain them to the satisfaction of the court before the will could be
accepted as genuine. Where there are 367 suspicious circumstances, the Court
would naturally expect that all legitimate suspicions should be completely
removed before the document is accepted as the last will of the testator. These
principles have been reiterated in the subsequent decisions of this Court in Rani
Purnima Devi & Anr. v. V. Kumar Khagendra Narayan Dev & Anr.,  3
SCR 195 and Smt. Indu Bala Bose & Ors. v. Manindra Chandra Bose & Anr.,
 1 SCC 20.
Privy Council in Mr. Biro v. Atma Ram & Ors., AIR 1937 PC 10 1 had an
occasion to consider an analogous case where the wife was practically
disinherited and there was unexplained delay in producing the will in public. There
the alleged will by a testator gave only a life estate to his daughter who was
the only child and who was to get some property at her marriage. The bulk of
the estate was vested in the widow of the testator and three other women,
namely, his mother, his step-mother and his paternal aunt. These women though
entitled under the Hindu Law only to maintenance, were made joint owners
equally with the widow of the testator. None of the devisees could get the
estate partitioned or alienate it for necessity. It was however, provided that
the lady, who survived the other three devisees, would become the absolute
owner of the estate. The widow of the testator would not get her husband's
estate, if she predeceased any of her co-devisees. The will was not produced until
22 years after its execution though there were occasions to produce it, had it
been in existence. Considering these circumstances, the Privy Council observed
is most unlikely that a person having a wife and a minor unmarried daughter, who
should be the objects of his affection, would make a will which would
practically disinherit them.
the testament is unnatural and runs counter to the ordinary sentiments of
persons, having a status in society similar to that of Harbans Lal, cannot be
seriously disputed. But this is not the only circumstances which tells against
will purports to have been executed on 24th August 1900, and the testator died
within a month of that date. But it is strange that it was not produced until
1922, after the commencement of the present litigation. During this long period
of 22 years, which intervened, there were occasions when the widow or her
advisers could have produced the document, if it had been in existence; but
they did not do so ...... " 368 ,The will in the present case,
constituting the plaintiff as a sole legatee with no right whatever to the
testator's wife seems to be unnatural. It casts a serious doubt on genuineness
of the will. The will has not been produced for very many years before the
court or public authorities even though there were occasions to produce it for
asserting plaintiff's title to the property. The plaintiff was required to
remove these suspicious circumstances by placing satisfactory material on
record. He has failed to discharge his duty. We therefore, concur with the
conclusion of the High Court and reject the will as not genuine.
takes us to the validity of the sale deed Ex. 3.
High Court rejected the document with the following observations:
3 is neither a certified copy given under any of the provisions of the Evidence
Act nor is it a copy made from the original by any mechanical process. It also
does not appear to have been made or compared from the original as there is no
verification or endorsement of the kind and it does not come under clauses 1 or
5 of section 63 either. No one has given the oral account of the contents of
the original document. If in place of primary evidence secondary evidence is
admitted without any objection at the proper time then the parties are
precluded from raising the question that the document has not been proved by
primary evidence but by secondary evidence. But where there is no secondary
evidence as contemplated by Section 66 of the Evidence Act then the document
cannot be said to have been proved either by primary evidence or by secondary
evidence." The basis of the plaintiff's title relates back to the sale
deed dated Baisakh Sudi 12 Samvat 1932 (1875 A.D.). It was said to be a
registered sale deed by which Bhagala Girdhari purported to have sold the baghichi
to Raghunath Brahmin. The plaintiff has not produced the original sale deed.
Nor a certified copy of it has been produced. All that we find from the record
is an ordinary copy of a sale deed Ex. 3 produced by Gopal Prasad PW 1. Gopal
Prasad has stated that Ex. 3 was a copy submitted by the parties along with the
original sale deed for registration. The original sale deed was said to have
been returned to the party after its registration and a copy was kept in the
file. But Gopal Prasad has no personal knowledge about the registration of the
sale deed, nor he has produced the register to indicate that that sale deed was
registered and a copy was kept in the record. Ex. 3 produced 369 by him does
not bear any endorsement to the effect that it was a true copy of the original.
High Court said, and in our opinion very rightly, that Ex. 3 could not be
regarded as secondary evidence.
63 of the Evidence Act mentions five kinds of secondary evidences. Clause (1),
(2) and (3) refer to copies of documents; clause (4) refers to counterparts of
documents and clause (5) refers to oral accounts of the contents of documents.
Correctness of certified copies referred to in clause (1) is presumed under
Section 79; but that of other copies must be proved by proper evidence. A
certified copy of a registered sale deed may be produced as secondary evidence
in the absence of the original. But in the present case Ex. 3 is not a
certified copy. It is just an ordinary copy. There is also no evidence
regarding contents of the original sale deed. Ex. 3 cannot, therefore, be
considered as secondary evidence. The appellate Court has a right and duty to
exclude such evidence.
result, the appeal is allowed, modifying the judgment and decree of the High
Court. The judgment and decree of the trial court as affirmed by the District
Court are set aside and the plaintiff's suit is dismissed.
the original plaintiff died leaving behind his widow during pendency of the
appeal before the High Court, we make no order as to costs.