The Hon’ble Smt. Justice Renuka Yara Civil Revision Petition No.1636 of 2024

Order:

This is a Revision Petition filed aggrieved by the order dated 29.04.2024 passed by the learned II Additional District Judge, Nizamabad in I.A.No.744 of 2023 in O.S.No.27 of 2016, wherein, a petition filed under Section 65 of Indian Evidence Act with a prayer to permit to mark the xerox copy of Will Deed dated 18.01.1993 as Ex.B1 as secondary evidence on their behalf, has been dismissed.

2. Heard Sri G. Rajeshwar Rao, learned counsel for the revision petitioners/defendant Nos.1 and 6 and Sri P. Vishnuvardhana Reddy, learned counsel for the respondent No.1/plaintiff. Perused the record.

3. The case of revision petitioners is that paternal grandfather of revision petitioner No.2 namely Dr. Laxman Rao Ambekar was the owner and possessor of suit schedule properties ‘A’ and ‘B’. The said Laxman Rao Ambekar died in the year 2016. He executed a Will Deed in the presence of Sri Hari Har Rao, a Senior Advocate and Sri B. Laxmi Narayana and attested by Advocate Sri Narsimha Reddy on 18.01.1993. The respondent No.1 who was divorced used to reside with his grandfather and assist him. Late Laxman Rao Ambekar allotted a share of the property to respondent No.1 as mentioned in the Will Deed. The respondent No.1 was collecting rents and original Will Deed was handed over to her and it is in her possession. The revision petitioners got a legal notice date 22.10.2016 issued requesting to hand over the Will Deed but she intentionally denied the same. Therefore, present petition under revision is filed, i.e. to permit to lead secondary evidence.

4. The respondent No.1 filed counter denying the execution of Will Deed dated 18.01.1993 and therefore, the question of possessing it does not arise. The respondent No.1 pleaded that false story is created for the purpose of the case and denied the possession of Will Deed by her. Since no Will Deed was executed by Dr. Laxman Rao Ambekar, no xerox copy can be received and marked as secondary evidence. In this regard, the respondent No.1 referred to judgment of this Court in case between Keshava Reddy v. Bal Reddy and others in CRP No.1846 of 2012 {2017 (1) ALD 624 (TS)} wherein, it is held that when a document existence and execution is in dispute, secondary evidence cannot be taken and said copy cannot be exhibited.

5. Upon considering the version of both the parties, the learned II Addl. District Judge, Nizamabad referring to judgment of Shalimar Chemical Works Limited v. Surendra Oil and Dal Mills and others {2010 AIR SCW 5200} held that xerox copies are not admissible in evidence and that once xerox copies are not admitted, xerox copy of Will Deed cannot be permitted to be marked in evidence. As such, dismissed the petition, leading to filing of the present Civil Revision Petition.

6. In grounds of revision, the facts of the main case i.e. Dr. Laxman Rao Ambekar being the owner of suit schedule ‘A’ and ‘B’ properties, execution of a Will Deed dated 18.01.1993 in the presence of witnesses, its possession by respondent No.1 are reiterated. Legal notice was issued to produce the original Will Deed but the same is not produced by respondent No.1 herein. Since the original is not available, it is pleaded that the xerox copy be permitted to be marked in evidence to prove the case of the revision petitioners, failing which, they will suffer irreparable loss. The case of the revision petitioners is that their paternal grandfather Dr. Laxman Rao Ambekar executed Will Deed dated 18.01.1993 in the presence of witnesses and said Will Deed is necessary to prove their case. However, the original is allegedly in the custody of respondent No.1 and therefore, got issued a legal notice to her to produce the original Will Deed. When respondent No.1 denied existence of the Will Deed, a xerox copy thereof is sought to be marked as secondary evidence by invoking provision under Section 65 of Indian Evidence Act.

Said Section 65 is extracted and p