Point of Law: Section 65(c) of Evidence Act states that secondary evidence of a destroyed or lost document can be produced.

JUDGMENT :

This second appeal is filed by defendants 2, 3 and 4 in a suit for partition which was decreed by the trial court holding that the plaintiff was entitled to 5/12 share in suit properties. The said judgment being challenged in an appeal preferred in the court of Senior Civil Judge resulted in its dismissal and hence this second appeal.

2. The substance of the pleadings is this: Chaluve Gowda, Narasimha Gowda and Ugre Gowda were the sons, and Singamma, Lakshamma and Narasamma were the daughters of Singre Gowda. Chaluve Gowda was the son born to the first wife of Singri Gowda and the rest to his second wife. Plaintiff is the daughter of Chaluve Gowda, and she averred that since all the suit properties were ancestral joint family properties, she had more than 1/8 share in them; and when she demanded for her share, defendants 2 and 3 not only denied her share but also treated her cruelly. The third defendant obtained mutation of revenue records of land in survey No.37 of Dugganahalli in favour of his wife i.e., the fourth defendant and it was to be cancelled. With these allegations she claimed the reliefs of partition and cancellation of mutation of revenue records made in the name of 4th defendant.

3. The third and fourth defendants admitted the relationship as stated by the plaintiff, but denied plaintiff’s right to claim partition on the premise that in the year 1948 itself the plaintiff’s father separated from the joint family by relinquishing his right over suit properties having received a sum of Rs.350/- and 21 guntas of wet land situate at Dugganahalli. They also stated that after the death of Chaluve gowda, his widow i.e., the first defendant, who is also the mother of the plaintiff sold 21 guntas of land to her father-in-law by executing a registered sale deed; and the plaintiff being aware of all these transactions was not entitled to claim partition in the suit properties.

4. The trial court recorded the findings that the contesting defendants failed to prove both the transactions of release and sale as contended by them in as much as Ex.D.1 and Ex.D.2 were the certified copies of the release deed and the sale deed, and since the plaintiff in her evidence denied those transactions, by mere production of certified copies, it was not possible to hold that the release and the sale were proved. The 3rd defendant who adduced evidence as DW.1 ought to have examined the attestors to or the scribes of Ex.D.1 and Ex.D.2 and if they were not available due to their death, anybody acquainted with transactions should have been examined by DW.1 and in the absence of evidence to this effect, the specific defence put forward by third and fourth defendant would fail. The trial court also held that no presumption under section 90 of the Evidence Act could be drawn in regard to Ex.D.1 and Ex.D.2, the certified copies, as they appeared to have been obtained from the office of Sub-Registrar some time back before DW.1 adduced evidence, and therefore they were not 30 year old documents. These were the main reasons for decreeing the suit in favour of the plaintiffs.

5. The first appellate court also confirmed the findings of the trial court. Regarding limitation affecting the suit, the first appellate court held that the defendants had not contended about it in the written statement.

6. On 23.9.2010, this second appeal was admitted to examine the following two substantial questions of law.

“1. Whether the appellants were in a position to rely upon Exhibits D1 and D2 produced as secondary evidence, in support of the contention that there was a release deed by a co-parcener namely, Cheluvegowda, the father of the plaintiff and the sale deed Exhibit D2, which was executed in respect of such property, which was received as his share under the release deed?

2. Whether the share determined as 5/12th was in accordance with law?”

7. I heard the argument of Sri. Nitin, learned counsel for the appellants on 17.3.2023. Learned counsel for respondents w