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2012 Supreme(P&H) 1604
IN THE HIGH COURT OF PUNJAB AND HARYANA
Before
The Hon’ble Mr. Justice A.N. Jindal
Civil Revision No. 6991 of 2011 (O&M)
Mohan Lal & Ors.
v.
Smt. Ishwar Devi & Ors.
{Decided on 13/12/2012}
For the Petitioners:Mr. R.S. Mittal, Sr. Advocate with Mr. C.S. Singh, Advocate.
For the Respondents No.1 & 2:Mr. Sudeep Mahajan, Advocate.
For the Respondents No.10 to 13 and 15:Mr. R.S. Sharma, Advocate.
Headnote:Secondary Evidence--Copy of registered will--The science of handwriting may not be a perfect one but that is not so with the science of thumb impressions.
Secondary Evidence--Copy of registered will--Since the Will has been produced before the Mutation Officer, therefore, it cannot be said that it was concealed--The document which once has been made the part of the public record, cannot subsequently be fabricated or manipulated at a later stage.
(A) Evidence Act, 1872, S.65--Secondary Evidence--Copy of registered will--The science of handwriting may not be a perfect one but that is not so with the science of thumb impressions--In order to prove the genuineness of the Will, thumb impressions on the second copy of the Will kept in the custody of the Sub Registrar could be proved by comparing the standard thumb marks of executor, on some other document--Application for leading secondary evidence allowed--Succession Act, 1963, S.63. (Para 6)
(B) Evidence Act, 1872, S.65--Secondary Evidence--Copy of registered will--Existence and Loss of Original document--Loss of original registered will contended on the ground that some was in possession of beneficiary who died at the young age and same could not be traced--Existence of will proved by certified copy of will--Application for leading secondary evidence allowed--Succession Act, 1963, S.63.
The petitioners could not be benefited by concealing the original document became the second copy of the Will bearing the thumb impressions of Chanann Dass could also be proved to be forged by comparing the thumb impression of Chanan Dass on the second copy of the Will lying in the office of the Sub-Registrar. Even otherwise, the loss of the document has been proved by way of affidavit filed by the petitioners along with the application for leading secondary evidence. The copy of the Will, through which the existence of the same is proved, is certified copy obtained from the office of the Sub Registrar, containing the recital that it was true copy of the original, therefore, existence and loss of the original stand accounted for. (Para 7)
(C) Evidence Act, 1872, S.65--Secondary Evidence--Copy of registered will--Establishing foundational evidence by proving the certified copy of the Will which is sought to be produced by way of secondary evidence--The true copy received from the record maintained by the public authorities in the ordinary course of business is an authenticated proof of the secondary evidence--Succession Act, 1963, S.63. (Para 8)
(D) Evidence Act, 1872, S.65--Secondary Evidence--Copy of registered will--Since the Will has been produced before the Mutation Officer, therefore, it cannot be said that it was concealed--The document which once has been made the part of the public record, cannot subsequently be fabricated or manipulated at a later stage--Succession Act, 1963, S.63. (Para 7)
(E) Evidence Act, 1872, S.65--Secondary Evidence--Copy of registered will--The mere leading of secondary evidence of a Will is not itself a proof of its execution but a party has to go a long way to prove its execution by leading cogent evidence--Secondary evidence is not admissible until the production of primary evidence is satisfactorily proved--Succession Act, 1963, S.63. (Para 8)
(F) Evidence Act, 1872, S.65--Secondary Evidence--Copy of registered will--The existence and loss of the original Will has been duly explained, in such situation, non production of the original Will cannot deprive the defendant to prove the said Will by way of secondary evidence--Succession Act, 1963, S.63. (Para 9)
(G) Evidence Act, 1872, S.65--Secondary Evidence--The value of the secondary evidence if so led, has to be determined at the conclusion of the trial only--Succession Act, 1963, S.63. (Para 9)
(H) Evidence Act, 1872, S.65--Secondary Evidence--Copy of registered will--Loss of registered document--Proof of--Held; As regards loss, in case of a registered document, one way or the other, it does not require the proof of loss, in such a stricter sense that it must be accompanied by definite evidence of loss when once the plea of los is set up and is proved by way of affidavit or otherwise, then it should normally be considered particularly when the validity, genuineness, admissibility and proof are to be seen at the time of trial--Succession Act, 1963, S.63. (Para 11)
Mr. A.N. Jindal, J.:- This judgment shall dispose of two connected revision petitions, one bearing No.6991 of 2011, filed by the petitioners against the order dated 3.11.2011, whereby the trial court dismissed the application for leading secondary evidence and another bearing No.135 of 2012, filed by the petitioners against the order dated 22.12.2011 whereby the trial court closed their evidence by order.
2. In the suit filed by Ishwar Devi and Kailash Rani plaintiffsrespondents No.1 and 2 (herein referred as, ‘the respondents No.1 and 2’) claim 1/4th share in the suit land measuring 229 kanals as fully detailed in the head note of the plaint, being the legal heirs of Chanan Dass son of Vasanda Ram and the mutation No.1454 sanctioned on 13.6.1980 in respect of the aforesaid land in favour of the defendants No.1 and 2 and Yashpal predecessor in interest of the defendants No.3 to 6, on the basis of the alleged Will dated 10.1.1979, is illegal. They had also challenged the transfer of the land bearing khasra No.88//16 (8-0), 17/1 (7-12) by the defendants No.1 land 2 and aforesaid Yashpal in favour of defendants No.10 to 13 and also further transfer of the same in favour of defendants No. 14 to 16.
3. At the time when the case was fixed for defendant’s evidence, the defendants No.2, 5 and 7 moved an application for leading secondary evidence of the registered Will on the grounds that the original Will could not be traced as it was in possession of Yashpal son of Gian Chand, but he had died at very young age, therefore, the Will could not be recovered. They also placed reliance on the judgment delivered in case Smt. Sobha Rani and others vs. Ravi Kumar and others AIR 1999 P & H 21 in order to contend that secondary evidence could be produced. The relevant observations are reproduced as under :-
“After hearing the learned counsel for the parties and having perused the impugned order, Ii do not find any infirmity or illegality in the order passed by the learned trial Court. Prima facie P-3 the existence of the document has been proved in view of the facts mentioned in para 8 of the plaint and reply of the defendants to the said paragraph. As regards the loss of the document, in the application itself, the loss has been pleaded and the loss is not required to be proved in absolute terms at this stage. The learned counsel for the respondent has submitted that the other brother of the plaintiff who is also signatory to the alleged agreement is yet to be examined.”
4. The plaintiffs respondents filed reply to the application stating that Chanan Dass did not execute any Will and the alleged Will is a forged document as such in order to conceal the forgery, the original Will is not being produced. Chanan Dass used to fix his signatures in “landa” script, but copy of the Will bears his thumb impression. In this regard reliance was placed on the judgment delivered in case Mukesh Kumar alias Motta vs. State of Haryana, [2011(2) Law Herald (P&H) 1108] : 2011 (1) RCR (Civil) 675, Om Parkash and others vs. Som Nath and another 1999 (2) PLJ 54 (P&H) and Jagta vs. Ruldu and another 1993 PLJ 203 (P&H).
5. The trial court dismissed the application.
6. Heard. The Will sought to be proved is a registered document, registered in the office of Sub Registrar, Fatehabad, on 10.1.1979, certified copy of which has been place on record. The science of handwriting may not be a perfect one but that is not so with the science of thumb impressions. In order to prove the genuineness of the Will, thumb impressions on the second copy of the Will kept in the custody of the Sub Registrar could be proved by comparing the standard thumb marks of Chanan Dass, on some other document. The Will was executed way back on 10.1.1979, whereas, the suit was filed on 13.8.2009 i.e. after 30 years of the execution of the Will. The mutation was sanctioned on the basis of the Will immediately on the death of Chanan Dass and various transactions were made by the petitioners
