High Court · 2025

This Civil Revision Petition is filed by the petitioner - respondent - ptaintifl 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 fbr allowing the petition filed by respondents - defendants I and2under Section 65-,4 ofthe Indian Evidence Act' 1872 lor 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 lor parlition bearing O'S'No'42 of 2015 on the file of the XII Additionat Chief Judge,CityCivilCourt,secunderabadclaimingthatthesuitschedulepropcrties were the joint family properties' The defendant No'l was the father of the plaintiif,defendants3and4arethebrotherandsisteroftheplaintiffand defendant No.2 is the wife of defendant No'l and mother of ptaintiff and defendants3and4.Thedefendantsland2lrledwrittenStatementcontending that the suit schedule properties were the self-acquired properties and defendant No. I 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' LIe also further contended that his elder brother executed a release deed dated Dr.GRR, J c rp _1269 _2O22 F 09'12'1982 berr.inp t ocument No.3026/r9g2 bequeathi.g h s sl are in favor of. his three other trrtlt: -s

3. The defi:n:lartr I & 2 filed I.A.No.477 of 2022 s-rbrritting that rhe original regisle.cri \\ ilr dated r2.0r.r9g1 was in the custod).rr['h s erder brother Mr.J.Narsimha R.:dC1 and he came to know about the srame on y two months ago' Earrier, trc \\ i s under bonfide impression that trre o-igir al will dated l2'01.1981 vi'as u rttL r im and that the same could be prodr.rce<r at. he time of his evidence. After rlrorrrrrgh search, he could not find the same rLncr ealized that it was with his elder b''r'hcr Mr.J.Narsimha Reddy. He request:d l lr.J.Narsimha Reddy to fumish ht'.riginar registered will deed dated 12,0l r )g1 to enable him to file the sarn,: n the above case. Mr.J.Narsimlr. Re.cldy promised to fumish the samr:, b,r - however, under the influence ol the pla ntifl, started dodging the matter'. In such circumstances, he addressr:d a reg istered letter dated 03'i1.2021 trrr'rugh R.AD requesting his brother r\{r.J.Narr imrra Reddy to furnish the original 'egisrered will deed dared 12.01.1,)g1, br.rr he failed to respond. In the sard : ircumstances, the original will corrd ror re produced before the courr. 'r'hc court also while deciding I.A.No.r96,r1'2 )21 filed by them to incorporate srr,: r subsequent events in the written jtatetrer t bv way of amendment, while c is rrrssing the same observed that the petitioners could mark the certified cop r r1' rlre will as secondary evidence and that no amencrment . a.?sxi&$&itrtr:&i , 4 ,t/ DT.GRR' J crp-1269 1022 was neaessary for the said purpose' As such' prayed to receive the Cerlified Copy of the Will dated 12'01'1981 as secondary evidence' 4. The respondent (plaintiffl to the above I'A' filed her counter contending that in the wriften statement hled by defendants I arrd Z'no where it was stated in whose possession the original Will was' When there was no foundation rnade in the pteadings on record in the written statement' the question of receiving the Certihed Copy of the alleged Will as secondary evidence would not arise' If a pafiy 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 concemed' Only after the evidence was over, the petitioner was intending to improvise his case by filing of secondary evidence were very application lor amendment The Parameters 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 wouldnotcreatearightinfavorofthepetitionertofileanapplication.When there was no material placed before the Court in the form of pteadings' granting pemission for secondary evidence would prejudice the rights of the plaintilf and prayed to dismiss the application'

5. The trial court on considering the provision under section 65 of the Indian Evidence Act, 1872 with regard to leading of secondary evidence, \ 4 observed that ar, r3r rhe said provision, if the Dr.GRR, J crp_1269 _2022 orig nal do. 1r.n, was in possession of the p : ",;on against whom the document w.s sc,,gh to be proved, secondary er,.idr:n:e rs admissible and held that: .../ "7. lt is the contention of the petitioner that his elder bloth:r war L ncer the influence of the plaintiff. As such. ins|rte ,f issrtin{ l(.lter. his brother did not respond to prodtr,:e tl e originrl \vill It is not out of place to mention that in tl e wrilte| stitlement in para-7 (ii) the petitioners mentioned rh t late ('hitra Rcddy executed and registered a ,VilI date t 12.01. I9rl I bcqueathing all his properties. So, petitioner: her : alrerLd' ntr:trtioned in the written statement about the executto r of \l'i I t1 {--hitta Reddy in favour of his sons. Norv rh. petit olers rrre stating that the original Will is in tht: hards o their e ler rrother. This foundation is sufficient to aclmit rh docunr,:nt .:. certified copy of the Wilt allegedly execur0d b. J.Chittr Reodv in favour of his four sons. The above sard \\'il is rel:r'rn .

8. Sinc,,' t r : Original Will is in the hands of hir; brr,thel ce(itierl ,:o,ry of the said Will is admissible in evid:nce Admrssibil;t; of the document and marking of document ar€ diflerer r I r nr that of the proof. Merely because the Will is filed befor: .he ('ourt and marked before the Court, It t:annot be consi le'ei 1v this Courl unless the said document i5 lrpvr:d as contemrlat,:rl under Indian Evidence Act' Therefore' the Igsponc lllr. riill have every opportunity to disprove tire ;,",j:Il ::;:$ll : " r ho\d rhis point \n far or t't ' "''" ',"t*,'l'-.i:'l',," llence' r ' ':*'"::]. Cot.se,lut:'t; Ie:l( 1-\0e $ ')' P'1lrOr:'S"' t/ J". 5 DT.GRR' J tp-1269 2022 and allowed the Petition' the leamed XII Additional Chief Aggrieved by the said order passed by 6 '7 Judge, City Civit Court' Secunderabad' the plaintiff prefened this revtston' Heard Sri R'A'Achuthanand, learned counsel for the revision petitioner - Velagapudi, learned counsel for the respondents - ptaintiff and Sri Srinivas defendants 1 and 2'

8. Learned counsel for the revision petitioner contended that the court below failed to appreciate the parameters for leading secondary evidence; The coutl observed that there was reference of the registered Will dated 12'01'1981 in the written statement filed by defendants I and2' But the moot question that would fall for consideration was that whether defendant No'l stated in the written statement as to in whose possession the original Will was' There was no whisper in the written statement so far as where the original Will was' When there was no foundation taid in the pleadings on record' the Court granttng permission to lead secondary evidence was erroneous and relied upon the judgments of the Honble Apex Court in Sital Das v' Sant Ram and Othersl' Dhanpat v. Sheo Ram (deceased) through LRs' and Others2 and of the judgment of the High Court of Andhra Pradesh in Namburu Bulli Veera ' MANU/SC/0156/1954 ' ArR 2020 sc 2666 6 Bhadra prasad a nd others v Va-i r/^-r-^. ^ ers v. Vegi Venkata Sat5rana rav,a na and Others3 in ..1 C.R.P.No.367 0 trf | )97 dated, 16.12.t997. Dr.GRR, J crp-1269 2022 9' Learned cou'i'|-'l tbr the respondents - defendants l and 2 rontended that there were prea,ri.rgs in the written statement about the executi.n rf a wilr dated 12'01'1981 by lat: ' ohitta Reddy bequeathing a1 the prrperies n favor of his four sons' Th': rref :ndant No' 1 was under a bonafidr: irrprer sion that the original wi' was r''''it r him and that the same courd be produ,:ed rt the time of evidence' But aft':r tho'ough search, he courd not Iind the same and rea,zed that it was with his eic cr brother Mr.J.Narsimha Reddy, as such, is to him, but as the szrid .l Narsimha Reddy was under the inf.luenr;e o he had not fumisheC rlrt: original registered Will. As such filed th: peririon to receive the certifie<'r (',,1'of the will dated 12.01.rggras seccncJa y evidence. The Court also o's':r.,,:,1 in I.A.No.l96 of 2021 that the defendar rs I and 2 could mark the certiricc' copy of the wilr as secondary evid,:nce. Tr ere was no illegality or infirmit' ir the order of the trial court to set asid. tht same and rued a notice the plaintifl prayed to dismiss tlrc rt r ision.

10. section 65 cfl the Indian Evidence Act, 1g72 outlint.s *hen secondary evidence ofa docurnr:nr :an be admitted instead of original. It spggil es various circumstances under iirlr r h secondary evidence could be giv,:n o f the existence, condition or contents ol' l document. 3 MANU/AP/0098/19! lt ,- t

11. 7 DT.GRR' J crp-1269 2072 Section 65 of the lndian Evtdence Act, 1872 reads as follows: ,,65. cases in which secondarv evidence ttt':::,. t" of the existence' condition' or contents of a document in the (a) When the original is shown or appears to be in the be given - Secondarv evidence ,n':." following cases:- ;r";;--', 'n-""^ 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 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; (b) When the existence' condition or contents of the original have been proved to be admitted in writing by the person against whom it is proved or by his r"p'esentative in interestl (c) When the original has been destroyed or lost' or when the party offering evidence ol its contents cannot' for any other reason not arising from his own default or neglect, produce it in reasonable time (d) When the original is of such a nature as not to be easily movable; 8 .: l4hen the origrnal is a pub ot s :chon 74; lic document r"ithur the meanlng Dr.GRR, J crp-1269_2022 r\. (1. ,//hen the origrnal is a docr ::*:'J.:[^:; ;;,:;"]:i,:::; :,,,;; ;:i : (11)'1lren the originals consis ( c(:urrents which cannoi ao;t a rd I Lc fact to be proved ,r'tu'u'tt r-t 1116 61 o,.,. o",^u.nrs a(.courrts o be exa.rrun. J in the genera'l result of lh.,' () ther iou r t, ln :as r ; (a), (c) and (d), any secondary evidence of rh -, .. )r lents ,r[ thc locumenb is admissible. Ir ( asc (b), the written admission is admissible. In r ase e) or (f), a certified copy of document, but no o rrer k.nrl oi s ,condary evidence, is admissible. In crst ';), evidence may be given as to the gen,]ral res(rl of th: lc.,-rr nents by any person who has examine,l tht m, ; ld tyho is s < lled rn the examinafion of such documents.

12. As per Se,:tr -,r 65(a) of the Indian Evidence Acr, 1E72, rhe party who intended to leaj sr:::ndary evidence has to show that ttre c,rigi ral was in the possession or pov el : f rhe person against whom the docunrert rvi s sought to be proved. As per tlrc ':.]ts of the present case, the original docurne rt was alleged tO bg in the pc,stie:siln of his brother Mr.J.Narsimha l{ed<lr. r,ut not in ttre possession of the pJ I lrtiff against whom the document is r;ought tr be proved' 9 Dr'GRR' J 2027 crP -1269 of Section 65(c)' the party has to show that the : -" .:::;:::::::

13. For the applicability original has been destroyed or lost' which was not the present case' 14. ln case of Section 65(a)' any secondary evidence of the contenB o[ the document is admissible t"Ul"tt," *,t:"::': pread as to in whose possession' * "::":rt,,nu, nu, to be proved before a without the original' The existence of the ongtr party is entitled to give secondary evidence ofthe contents of the original' The of the original must be satisfactorily accounted.for' *l':: -' original was not produced nor any foundation was laid for giving secondary evidence, the certified copies of it were not admissible' The existence and execution of the original document and the reason for non-availabiliry original is required to be proved to lead secondary evidence' 15. The High Courl of Andhra Pradesh in Namburu Bulli Veera Bhadra Prasad and Others v' Vegi Venkata Satyanarayana and Others (cited supra) non-production held that: "4. What should be kept in mind while leading secondary evidence is that the party which seeks to lead secondary evidence, should tay a proper foundation for reception of such secondary evidence. While drafting the plaint itself' the plaintiffs krew that they were not in a position to produce the original agreement of sale, since according to them the same was with the defendants. They also knew that by reply notice' the defenclants had denied the execution of agreement of sale in --/ l I 10 r- Dr.GRR, J crp_1269_2022 t\ 'n? "rro.'' o,r,:L'le nce clearly stating who th::ir tbvour. If that is sr 'ei dr r,; secondary lher r\'r)te the contents bei rg r ,,,6111,.0",u,,"0 g'v. th: information *r"nt atrir(L'nr(rrt of sale. In ,n"'o th rt :ht, should have laid loundarit r for 'r'as the r-r .ibe. documents The plair,r rh, ugh t*',g about 30 pages. rloi.s ,ot 'ut the person tha drate'l the uot"n"" of that' it is difriculr ro t rld J lainriffs ,uro ,n. foundation for examini.g lh'' si:r be by trre ;,:,:ordary evidencr the ; lai nt ffs relied upon ;"ir.rr";,ti, ;ffl ,|,:::1,, l; Co.lr r,1;,rrted in Mohant Kurkur urpadarr Sahakr.i sarniri rviANU/R *oorr)u'v' in support of his conrenrir n "n]' that trre orrrtlers o, .",,l#,*luif,oni,.t:,l '::: ' decisit n ir uhich ,n. withtut di.lclosing names and amounts of rent, the telanl :..)Ltl( prov: thc ir.rount ofrent with reference to receipts. l.hat \\,as i case fo. l,rruling secondary evidence. Hence, lacts of that cast do nct trp; lv to the facts of the present case. Even the judgrnent of th,: [)u tir b and Haryana High Court reported i;r Kirpal "u,..r., ",rn appll' to th: lacts of this case. These two judgmenrs perrain ro 1r generiLl pr rriple that the matters of evidence nee(t not bil pleaded arc there cannot be any dispute regarding such a principle llt in the instant case, the plaintiffs har,-- rci Iar proper i<rur c i tion for leading secondary evidence.

5. For thut purpose they must specifically plead that ttet. u erc not in ir p( srlion to produce the document in questiot or rhc prirnarr. :r.i,1,:nce and for that purpose they must state rhe nature ol' tl r .locument and the person who attested it and rhr: persor r"h I ;cribed it etc', since they know that delenilrLnt' havcrle...iedheexecutionoftheagreementofsalc,isontlr.j date t l' th, I ling the plaint itseli In such circumsttrnces all the n:c.rs:arr' surrounding circumstances for the pr-'rpos: of 11 Dr.GRR, J crp-1769 2O22 leading evidence must be specifically pleaded. In fact, the Hon'ble Supreme Court in Sitaldas v' Sentram IMANU/SC/O156/1954 : AIR 1954 SC 6061 , clearly laid down the law that proper foundation must be laid for reception of such secondary evidence and lor laying such a foundation, the plaintiffs should specifically ptead the contents of the document viz., the person who attested, the person who scribed it, whether original is either lost or they were not in a position to produce it, so as to inspire confidence of the Court to receive the secondary evidence. Moreover, leading secondary evidence is not a matter of course. Under Section 62 of the Act, the document must be proved by producing the primary evidence and under Section 9l ofthe Act, when the document is reduced in writing, no other evidence can be given except by way of producing the document itself. However, as contemplated by, Sections 61, 64 and 91 of the Act, secondary evidence also can be lead by complying the other provisions, of the Act i.e., by complying the conditions imposed under Sections 65 and 66 of the Act. The relevant portion of Section 65 provides as under: "Cases in which secondary evidence relating to documents may be given:- Secondary evidence may be given of the existence, condition or contents of a document in the following cases : (a) 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; >?'" Dr.GRR, J crp 1269 2022 ,"\ .. \ L2 .h) rvhen the existence, condition, or contenls rl1' : I l original have been proved to be admitted in ""rting by the person against whom it is prt,ved . r iry his representative in interest; ,lr ) wlren the original has been destroyed or [ost. : r u'hen the party offering evidence of its ., r tents. cannot lor any other reason not ari;inp [r,rn his own default or neglect, produce t ilr :c r ionable time." From th s, it is clear that under Section 65(b) the pz'rt1' seekit g to pr rdrLr:r: secondary evidence should prove th€ exiitr-n( I, 'conti tir: r ' or 'contents' of the original. In order to sho$' sucli n exiitorcr conditions and contents of the document, thr: par y see(ilrg t,) adduce secondary evidence should plea<L and pt,r c all ln art: rdant circumstances, so as to invoke discretior L)l't e Clorrrt in lris favour, permitting him to lead secondary evidenc:. In r)tlLer .\ords, he should necessarily plead who cxccrtted t e docur rerrt, in whose favour it was executed, wlrat a t'r-- t e - thc documents, who are the attestors, uho u'as tl e cof te rts ,) scribr , 1 the document etc. Section 65 of the Act is in cxcefrion o the general rule that the primary evidetice srall I e prolu0e,l to prove a fact in issue. Hence, the partl prolucir g srrch r s:: rndary evidence should necessarily pleati and plrl e all rlLe I l,ecial circumstances for permitting him t0 iei d secrn:la ' cvidence. In these circumstances, it is clcrrr th rt pla;ntiflr; shor.rld have stated in the plaint, as to who u'as tl e scrjbc ol l e document, who could possibly speak regard nr tl e conte rrs cf the document that was written by him. ln tl e abs:n.:e r,l such a proof of special circumstances for l.-adir g sec,)n.lar) evidence, the party cannot be permitted to lead tl e seci)n.lar ) :vidence." 13 Dr.GRR, J crp _1269 -2022

16.Thus,foundationneedtobetaidinthepleadingsforleadingSecondary evidence. There could not be any receipt of document as secondary evidence without there being a foundation laid by the party' l7 . The observation of the Court that there was a pleading in the written statement about the execution of the alteged will, is not sufficient for the purposeofreceivingsecondaryevidence.ItwasforthedefendantNo.ltoplead inthewrittenstatementastoinwhosepossessiontheoriginalWillwas. without that foundational fact taid by defendant No. I in the written statement, the Court ought not to have received the same as secondary evidence' No ditigent efforts were made by defendant No.1 to locate where the original will was from the year 2015 till the hting of the petition in the year 2022' No foundational facts were pleaded by them as to in whose possession the original Will was and no reasonable steps were taken by them to retrieve the original will during the period from2015-2021. Only when the defendants could prove that the original was lost or that they were unable to obtain the same with reasonable diligence, the secondary evidence could be permitted' Leading secondary evidence without establishing foundational facts could not be allowed. As such, the order of the trial cour.t in allowing the application is considered as enoneous and the same is tiable to be set aside' t4 Dr.GRR, J up_1269 _2022 1 .\ l8 In the res u t. tlr: Clivil Revision Petition is allowed settinu Lside the order .1 dated 27.04.20112 passed in I.A.No.477 of 2022 in O.S.No.,12 c l'2015 by the leamed XII Adii ionrl Chief Judge, City Civil Court, Secunrlcra ,ad. No order as to costs As a secl:c . nr iscellaneous applications pending in this p tition, if any, shall stand closrrd //TRUE COPY// SDI K, BH,\VANI SWAMY aA\SlSrAr,r REGTSTRAR '1 SEC TION OFFICER To,

1. Xll Addit orral I hief Judge, City Civil Court. Secunderrabad 2. One CC ro Sc I R A ACHUTHANAND Advocate IOPUCI 3. One CC o lSFl SRINIVAS VELAGAPUDI Advocate [CPUC] 4. Two CD C:p r::; GSA,/gh YI- HtGH COlJtil'r DATED:09 t06tZ0.Zs ORDER CRP.No.1269 of 2OZz ALLOWNGI (])F THE CRP WTHOUT COSTS ,J ,) U ( R rh: ,t \( 0 1 ,tlli 2rr * .a \- s oa 1,; ,.t r j -::::_::, c,-fd W ({a5