IN THE HIGH COURT OF KARNATAKA
DATED THIS THE 28TH DAY OF AUGUST 2017
THE HON’BLE MRS. JUSTICE S.SUJATHA
WRIT PETITION No. 84322/2011(GM-CPC)
Rajendra @ Deendhar,
Genitive S/o Bhimappa Huttarkihal,
Adoptive Son of Sri Kapur,
Age: 39 Years,
R/o Building No.5, R. No.210
GTB Nagar, Panjabi Colony,Mumbai-400 0037 …Petitioner
(By Sri. Umesh V. Mamadapur, Advocate)
1. Smt. Ningawwa W/o Dodappa
Manganur @ Mangannawar
Age: 56 Years,
Occ: Household Work
R/o Kumatagi, Tq. & Dist: Bijapur
2. Gollal @ Gollalappa
S/o Bhimappa Hattarakihal
Age: 41 Years
R/o Kumatagi, Tq. & Dist. Bijapur
S/o Gollal Hattarakihal
Age: 24 Years,
Tq. & Dist. Bijapur.
4. Gulappa S/o Amogeppa
Tq. & Dist. Bijapur. …Respondents
(R-1 by Sri D.P. Ambekar & Sri. V.M. Biradar, Advocates;R-4 by Sri Ashok S. Kinagi, Advocate;Notice to R-2 and 3 dispensed with V/C/O Dtd.11.6.2015)
This writ petition is filed under Articles 226 and 227 of Constitution of India, praying to issue a writ of certiorari thereby quashing the impugned order dated 21.09.2011 passed in I.A.No.10 filed under Section 65 of The Evidence Act in O.S.No.110/2004, on the file of the II Addl. Civil Judge (Sr.Dn.),Bijapur vide Annexure-E, etc.
This petition coming on for Preliminary Hearing ‘B’ Group and having been reserved on 18.8.2017, this day, the court pronounced the following;
The petitioner has challenged the order dated 21.9.2011 passed on I.A.No.10 in O.S.No.110/2004, on the file of II Addl. Civil Judge (Sr.Dn.), Vijayapura (Annexure-E to the writ petition).
2. The respondent No.1 herein filed O.S.No.110/2004 seeking for declaration that the Will dated 13.11.1986 of Bhimappa is not genuine inter alia claiming for partition by metes and bounds of the suit property. The plaintiff produced the certified copy of the Will, which was marked as Ex.P-1. The said Will was registered on 13.11.1986. The defendant No.2/ petitioner herein filed written statement contending that, as per the registered Will deed, he has become the absolute owner of the suit properties. In the said proceedings, the petitioner filed an application (I.A.No.10) under Section 65 of the Indian Evidence Act, 1872 (the ‘Act’ for short) and prayed to lead secondary evidence based on the certified copy of the Will on non-production of the original Will to prove his case. Respondent No.1 herein objected the same. On appreciation of material available on record, the trial court rejected the application. Hence, this writ petition.
3. The learned counsel Sri Umesh V. Mamadapur, appearing for the petitioner contended that the court below grossly erred in rejecting I.A.No.10. Section 65 of the Act contemplates/permits the petitioner to produce the certified copy of the Will as secondary evidence, in the absence of primary evidence. In terms of the registered Will dated 13.11.1986, executed by the deceased Bhimappa in his favour, the petitioner has become the absolute owner of the suit property, non-consideration of the same by the trial court has resulted in miscarriage of justice. It was contended that the original Will is in the possession of the respondent No.1 which she has taken away along with the household articles, as such the necessary application filed by the petitioner before the trial court seeking production of original Will by the respondent No.1 also has not given any positive results. It is also contended that the mother of the petitioner had given varadi before the Tahsildar, Vijayapura to mutate the name of the petitioner on the basis of the original Will. An attempt was made by the petitioner to secure the original Will from the custody of the Tahsildar, Vijayapura, but in vain as the Tahsildar, Vijayapura supplied the certified copy of the varadi contending that only Xerox copy was produced. The factual aspects as aforesaid compelled the petitioner to file application to lead secondary evidence, but the same was not properly appreciated by the trial court. Application seeking permission for leading secondary evidence on the basis of certified copy of the Will ought to have been considered by the trial court in a proper prospective.
4. The learned counsel for the petitioner in order to substantiate his case has placed reliance on the judgment of this court in the case of Gafarsab @ Sati Gafar Sab Vs. Ameer Ahmed reported in ILR 2006 KAR 169.
5. The learned counsel Sri D.P. Ambekar appearing for the plaintiff/1st respondent justifying the impugned order submitted that the deceased Bhimappa died intestate and no Will was executed by the deceased Bhimappa. The registered Will on the basis of which entries were mutated, is fake and set up by the petitioner to deny the rights of the plaintiff in the suit properties. The original Will, if produced before the trial court, the real facts would come to light. Apprehending the same, petitioner is avoiding to place the original Will before the court and has filed application to lead secondary evidence which cannot be permitted. The petitioner has not made out any grounds to accord permission for leading secondary evidence in terms of Section 65 of the Act.
6. The learned counsel Sri Ashok S. Kinagi appearing for respondent No.4 supporting the arguments advanced at the hands of the learned counsel for respondent No.1, submitted that the petitioner has set up a fake document i.e., registered Will. In the absence of the production of the original Will, no permission can be granted to lead the secondary evidence on the basis of the certified copy of the Will.
7. Heard the learned counsel appearing for the respective parties and perused the material on record.
8. Section 63 of the Act contemplates, secondary evidence means and includes certified copies even under the provisions hereinafter contained viz., Copies made from the original by mechanical processes which in themselves insure the accuracy of the copy, and copies; compared with such copies, copies made from are compared with the original; counter parts of documents as against the parties who did not executed them; oral accounts of the contents of the document given by some person who himself has seen it. Section 65 of the Act provides for cases in which secondary evidence relating to documents may be given. Clause (a) of Section 65 of the Act indicates the circumstances when the secondary evidence may be given i.e., when the original is shown or appears to be in the possession or power of the person against whom the document is sought to be proved, or of any person out of reach of, or not subject to, the process of the court, or of any person legally bound to produce it, and when, after the notice mentioned in Section 66, such person does not produce it.
9. The Will has a distinguishable feature from the normal documents. It is a declaration made by a deceased testator expressing his intention with regard to the matters, which he wishes to be effected upon after his death. It is the document entrusted by a dead testator to the living to implement his intention or the wishes. It is the last wish of the dead person. This wish of a dead person has to be implemented according to his wishes with utmost respect and sanctity. However, to prove a Will, the dead person may not be available to speak the truth as to whether he has executed the Will or not. Hence, in appreciating the evidence of the parties a greater degree of care has to be taken by the Courts while deciding the genuineness of the Will. It is the disinheritance of the legal heirs which otherwise the legal heirs would have inherited to. A departure to the law of succession calls the court to scrutinize the evidence with abundant caution.
10. Though Section 65 of the Act contemplates the cases in which secondary evidence relating to documents may be given, as regards the Will, it has to be read along with Section 68 of the Act which reads thus:
” 68. Proof of execution of document required by law to be attested.- If a document is required by law to be attested, it shall not be used as evidence until one attesting witness at least has been called for the purpose of proving its execution, if there be an attesting witness alive, and subject to the process of the Court and capable of giving evidence:
Provided that it shall not be necessary to call an attesting witness in proof of the execution of any document, not being a Will, which has been registered in accordance with the provisions of the Indian Registration Act, 1908 (16 of 1908) unless its execution by the person by whom it purports to have been executed is specifically denied.”
In terms of Section 68 of the Act, it is mandatory that one attesting witness atleast has to be examined for the purpose of proving the execution of the Will. The execution and attestation are two different aspects, one following the other. If due attestation is not proved, the fact of execution is of no avail. Merely attesting to a Will by the witness is not suffice to prove the Will unless the attesting witness has seen the testator signing the document or the acknowledgment of the testator to that effect. Two attesting witnesses are necessary to a Will executed by the testator. Unless the same is proved, the genuineness of the Will cannot be accepted.
11. This court in the case of Sri J.T.Surappa and another -v- Sri Satchidhanandendra Sarawathi Swamiji Public Charitabel Trust and Others reported in ILR 2008 KAR 2115 has laid down the five steps to be considered to prove the Will, viz., under the Indian Succession Act, 1925, the Will to be valid, should be reduced into writing, signed by the testator and shall be attested by two or more witnesses and atleast one attesting witnesses shall be examined. If these legal requirements are not found, in the eye of law there is no Will at all. The second step is that when the legal heirs are disinherited, the court has to scrutinize the evidence with greater degree of care than usual, the third step would be to find out whether the testator was in a sound state of mind at the time of executing the Will. Fourth step is whether there exist any suspicious circumstances surrounding the execution of the Will. Fifth step is to consider whether the Will that is executed is in accordance with Section 63 of the Indian Succession Act, r/w Section 68 of Evidence Act. In the light of the said judgment, examination of the attesting witness is sine qua non to prove the Will.
12. As could be seen from the certified copy of the registered Will, neither the signature of the testator can be verified nor the signature of the attesting witnesses can be examined. Thus it would be a futile exercise to accord permission for leading secondary evidence on the basis of certified copy of the Will.
13. It is well settled law that the entries made in the revenue records would not confer any title and right to the parties. Any entry mutated in the revenue register also would not come to the assistance of the petitioner herein unless the original Will is produced before the Court.
14. Yet another aspect to be considered is that the Will is not a public document under Section 74 of the Act. It can be held that certified copy of the Will is not admissible per se in evidence. It cannot be presumed to be a primary document, which could be adduced in evidence.
15. The Judgment relied upon by the learned counsel for the petitioner was rendered in the context of the plaintiff filing a suit for declaration of title and possession, wherein the defendant contesting the said claim had set up a title by himself to the schedule property on the basis of a grant certificate issued. The defendant filed IA and sought permission of the court to lead secondary evidence in support of the documents mentioned therein by producing xerox copies of the same. In such circumstances, this court held that the contents of the document may be proved either by primary or secondary evidence. If the primary evidence is not available, for the reasons set out in Section 65 of the Act, only then the secondary evidence is admissible. Only after the non-production of the primary evidence is satisfactorily explained the secondary evidence would be permitted to be adduced. However, as aforesaid, the Will having distinguishable feature than the other documents, Section 65 of the Act permitting the secondary evidence inasmuch as the certified copies of the Will cannot stand on the same footing as the other documents. Hence, the said Judgment is not applicable to the facts of the present case.
16. No irregularity or infirmity found in the impugned order. Accordingly, the rejection of IA-10 by the court below cannot be found fault with.
Writ petition stands dismissed as devoid of merits.