THE HONOURABLE DR. JUSTICE G. RADHA RANI CIVIL REVISION PETITION No.1269 of 2022

ORDER:

This Civil Revision Petition is filed by the petitioner - respondent -

plaintiff aggrieved by the order dated 27.04.2022 passed in I.A.No.477 of 2022 in O.S.No.42 of 2015 by the learned XII Additional Chief Judge, City Civil Court, Secunderabad for allowing the petition filed by respondents - defendants 1 and 2 under Section 65-A of the Indian Evidence Act, 1872 for receiving the Certified Copy of the Will as secondary evidence.

2. The facts of the case in brief are that the petitioner - plaintiff filed a suit for partition bearing O.S.No.42 of 2015 on the file of the XII Additional Chief Judge, City Civil Court, Secunderabad claiming that the suit schedule properties were the joint family properties. The defendant No.1 was the father of the plaintiff, defendants 3 and 4 are the brother and sister of the plaintiff and defendant No.2 is the wife of defendant No.1 and mother of plaintiff and defendants 3 and 4. The defendants 1 and 2 filed written statement contending that the suit schedule properties were the self-acquired properties and defendant No.1 acquired the same by virtue of a registered Will executed by his father late Sri J.Chitta Reddy bequeathing the properties in favor of his four sons. He also further contended that his elder brother executed a release deed dated

09.12.1982 bearing document No.3026/1982 bequeathing his share in favor of his three other brothers.

3. The defendants 1 & 2 filed I.A.No.477 of 2022 submitting that the original registered Will dated 12.01.1981 was in the custody of his elder brother Mr.J.Narsimha Reddy and he came to know about the same only two months ago. Earlier, he was under bonfide impression that the original Will dated 12.01.1981 was with him and that the same could be produced at the time of his evidence. After thorough search, he could not find the same and realized that it was with his elder brother Mr.J.Narsimha Reddy. He requested Mr.J.Narsimha Reddy to furnish the original registered Will deed dated 12.01.1981 to enable him to file the same in the above case. Mr.J.Narsimha Reddy promised to furnish the same, but however, under the influence of the plaintiff, started dodging the matter. In such circumstances, he addressed a registered letter dated 03.11.2021 through RPAD requesting his brother Mr.J.Narsimha Reddy to furnish the original registered Will deed dated 12.01.1981, but he failed to respond. In the said circumstances, the original Will could not be produced before the Court. The Court also while deciding I.A.No.196 of 2021 filed by them to incorporate such subsequent events in the written statement by way of amendment, while dismissing the same observed that the petitioners could mark the Certified Copy of the Will as secondary evidence and that no amendment was necessary for the said purpose. As such, prayed to receive the Certified Copy of the Will dated 12.01.1981 as secondary evidence.

4. The respondent (plaintiff) to the above I.A. filed her counter contending that in the written statement filed by defendants 1 and 2, no where it was stated in whose possession the original Will was. When there was no foundation made in the pleadings on record in the written statement, the question of receiving the Certified Copy of the alleged Will as secondary evidence would not arise. If a party wanted to lead secondary evidence, he should lay foundation in the written statement. But as seen from the written statement, the petitioner had not stated anything so far as the original Will was concerned. Only after the evidence was over, the petitioner was intending to improvise his case by filing application for amendment. The parameters of secondary evidence were very strict to be followed. There could not be any casual application improving the case during the pendency of the suit. Merely issuing a letter dated 03.11.2021 would not create a right in favor of the petitioner to file an application