No Prayer For Secondary Evidence Should Have Been Allowed Without Seeking Proof Of Existence And Loss Of Original Will: HP HC

While exercising its civil jurisdiction, the Himachal Pradesh High Court directed the Trial Court to allow the Respondents further opportunity to prove the existence and loss of alleged original Will, strictly in accordance with law and thereafter pass orders afresh on the application seeking leave to prove the Will by way of secondary evidence.

Finding that the Respondents had failed to show due compliance to the provisions of Section 66 of the Evidence Act,1872, a Single Judge Bench of Justice Satyen Vaidya observed that “the plaintiffs, on one hand, had failed to produce sufficient credible material before learned trial Court to prove the existence of original Will executed by Smt. Pushpa Rani and on the other they had also failed in proving its receipt by Ms. Renu Gupta, Patwari Halqua and her refusal to return the same to the plaintiffs”.

Advocate Karan Singh Kanwar appeared for the Petitioner, whereas Advocate Rupinder Singh appeared for the Respondent.

Going by the background of the case, the parties were real siblings wherein the Respondents had filed a suit for declaration that they had inherited the share of their late mother in the subject property based on her unregistered Will. Petitioners by way of their written statement had specifically denied the execution of Will by their mother in favour of Respondents who had not even produced the original Will on record. It was alleged that Respondents visited the Patwari for mutation of the subject property and handed over the original Will to her after which the documents were attested in favour of all the parties in equal shares. Despite repeated requests, the Patwari had not returned the original Will to the Respondents and thus, they had placed a photocopy of the alleged Will of their late mother on record and had filed an application under Section 65 of the Evidence Act seeking leave of the Court to prove the Will of their late mother by way of secondary evidence. The Petitioners contested the application by specifically denying the execution of Will by their late mother and stated that the contentions of the respondents with respect to the original Will being in possession of the Patwari was fabricated. The Trial Court however allowed the application of the Respondents and granted them permission to prove the Will by leading secondary evidence. Hence, present petition.

After considering the submission, the Bench navigated through Section 65 of the Evidence Act which provided that the secondary evidence may be given of the existence, conditions or contents of a document, when the original is shown or appears to be in the possession or power of any person legally bound to produce it, and when, after the notice mentioned in Section 66, such person does not produce it.

The Bench further observed that the present case could also have been covered under Section 65(c) of the Evidence Act, according to which the secondary evidence may be given when the original had been destroyed or lost or when the party offering evidence of its contents could not, for any other reason not arising from his own default or neglect, produce it in reasonable time.

The High Court noted that the Respondents had allegedly issued a notice to the Patwari when the original Will was not returned to them under Section 66 of the Evidence Act, but the said notice was not placed on record.

Finding that the Respondents had failed to show due compliance to the provisions of Section 66 of the Evidence Act, the Bench clarified that no presumption could have been raised in respect of the issuance of notice to the Patwari, and hence for non-compliance of provisions of Section 66 of the Evidence Act only, the prayer as made for secondary evidence could not have been allowed.

Therefore, the Bench concluded that the Trial Court had erred in allowing the prayer of the Respondents for secondary evidence without seeking proof of the factum of existence and loss of the original document, in accordance with law.

Cause Title: Rakesh Kumar Duggal v. Rajeev Kumar Duggal and Ors.

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