The judgment establishes the importance of complying with the evidentiary requirements under the Indian Evidence Act for admitting secondary evidence, emphasizing the need for primary evidence or proper notice for the admissibility of secondary evidence.

Annie John, J.

This appeal is filed against the judgment and decree dated 12.03.2013 passed in O.S. No. 365 of 2009 on the file of the Additional Subordinate Court, Palakkad. The appellant herein is the plaintiff and the respondents are the defendants in the aforesaid suit.

2. The appellant and the respondents are the mother and children. On 22.07.1995, six documents were executed in the family of the parties and all those documents were produced and marked in the aforesaid suit. As per Ext.B1, the appellant and respondents 2 and 3, the sons, had executed a release deed in favour of their father. By Ext.A6, certain properties were assigned to the appellant by the first respondent (the mother). By Ext.A5 (Ext.B2), certain other items were sold out to the second respondent by the first respondent. By Ext.A4 (Ext.B3), some items of properties were assigned in favour of the third respondent by the first respondent. On the same day, through Ext.B4, a Will was executed by the first respondent in favour of her sons, who are the appellant and respondent Nos. 2 and 3.

3. It is further alleged that on 22.07.1995, an agreement was executed between the appellant and respondent Nos. 1 to 3 regarding certain items of properties mentioned in the said agreement, which belongs to the first respondent. About 1.58 acres were dealt with therein and that document was marked as Ext.A1 in the suit. As per Ext.A1, the first respondent had to sell out the said properties and the proceeds therein had to be divided among them equally. If she fails to sell off the properties, the Mediators can initiate steps to see that the properties are sold out and the proceeds are divided among the said parties as agreed. The original of Ext.A1 was kept in the custody of the first respondent and the other executants were given the xerox copies of the same. Eventhough the properties were sold out as stated in Ext.A1, the sale proceeds were not divided among them. It is alleged that the entire amounts were either in the custody of the first respondent or misappropriated by respondent Nos. 2 and 3 and that, no share had been given to the fourth respondent. It is also submitted that the appellant was not aware of the actual sale proceeds of the property and therefore, he assessed it as Rs.50,00,000/- for the purpose of suit. The suit has been filed claiming Rs.12.5 lakhs as the share of the appellant.

4. Per contra, the respondents have denied the execution of Ext.A1; but they admitted that the entire properties of the mother were sold out. No documents has been produced by the respondents to prove how much amount has been received as the sale consideration of the properties mentioned in Ext.A1. The witnesses to Ext.A1 were the Mediators. Among them, Sundaresan is dead. The other witness namely Radhakrishnan is antagonistic to the appellant and hence, he was not examined. Sri. K. Anandan, the scribe of the above documents including Ext.A1 was examined as PW2 in the suit. On the side of the appellant, Exts.A1 to A6 were marked and PWs 1 and 2 were also examined. On the side of the respondents, Exts.B1 to B4 were marked. After evaluating the entire evidence, oral as well as documentary, the lower court has ultimately dismissed the suit. Aggrieved by the same, this appeal is filed.

5. The learned counsel for the appellant argued that the court below ought to have found that I.A. No. 3386 of 2010 was filed invoking Order 11 Rule 4 (interrogatories) of the Code of Civil Procedure. In answer to this petition, it was specifically stated that no document like Ext.A1 was signed and executed by respondent Nos. 1 to 3 along with the appellant. According to the appellant, since the respondents have denied execution of Ext.A1, there was no need to file an application for production of the original document of Ext.A1. Ext.A1 was produced and marked subject to proof on the side of the appellant. It was also argued that the court below ought to have found that the execution of Ext.