The High Court · 2025

Order

1. This Civil Revision Petition is filed under Article 227 of the Constitution of India questioning the order dated 2C.O3.2O24 passed in I.A.No.135 of 2023 in O.S.No.32 of 2074 on the hle of Senior Civil Judge, Nagarkurnooi, whereby the petition hled b-rr the petitioner/petitioner under Section 63 and 65 of the Indian E}.idence Act, to receive certihed copy of registered will deed No.21/1985, dated 13.09 1985 and the Orders passed by the Joint Collector, Mahabutrnagar in Revision Petition No.Dll2i 1999 dated 72.O1.2OO9 as secondarSr evidence, was dismisse,l

2. Heirrd Sri M.Damodar Reddy, learned Corrnsel for the petitioner ald the Sri N.Bhujanga Rao, t 2 learned counsel for the respondents and perused the record.

3. The petitioner is the plaintiff and the respondent No.l herein is the sole-defendant in the suit in O.S.No.32 of 2Ol4 on the hle of Senior Civil Judge, Nagarkurnool, Mahabubnagar District. During the pendency of the suit, the sole defendant died and his L.Rs were brought on record as defendant Nos.2 to 4.

4. The plaintiff frled the suit against the defendant for declaration of title in respect of the suit schedule i property.

5. The learned Counsel for the Revision Petitioner would submit that the petitioner/plaintiff and the respondent No.l/defendant No.1 are the sons of D.Bakka Reddy, who was the absolute owner ald I I 3 possessor of the lands admeasuring to an extent of Ac. 13. 15 Guntas covered by various sulr/ey numbers situated at Vanapatla. Village of Nagarkurnool Manda-l and the said property s73s t1re self-acquirerd property of their father. The respondr:nt No. 1, being elder brother of the petitioner, got married in the year, 1970 and ever since the datc, of marriage he was residing at his in-laws' house and the petitior.er had been looking after his parents ald younger brother, D.Bhasker Reddy. Therefore; tJee father of l-he petitioner executed a Will Deed in respect of the subject lands in favour of the petitioner vide registered document No.21/ 1985 dated 13.09.1985. Consequent on death of parents of the petitioner, the Will Deed came into force.

6. The l:arned Counsel for the petitioner worrld further submit that after death of his father, the I

1..,. -. 4 petitioner filed application before the Manda_l Revenue Officer, Nagarkunool for implementation of the Will Deed and for issualce of pattadar pass Book in respect of the propert5r covered by Will Deed. On receiving the notices in the said application, the respondent No.1 appeared and raised objection and without exarnining arry witnesses, the Mandal Revenub Ofhcer dismissed the petition hled by the petitioner in h1e No.ROR No.373/ i995 dated 01.03.1996. Being aggrieved by the same, the petitioner hled appeal before the RDO, Nagarkunool vide Case No.F/1235/1996 and the sarne was allowed on 14. 12.1998 by setting aside the order passed by the MRO and ordered to implement the Will Deed and accordingly Will Deed was implemented and Pattadar pass Books and Title Deed were also issued in favour of the petitioner. Aggrieved by the orders passed by the RDO, the ! J { ---- -J - ) 5 responde nt No.1 frled Revision before the Joint Collector, Mahabubnagar vide Revision Case in hle No.Dll2l1999 and the salne was dibposed ,rf on l2.Ol.2OO9 directing both the parties to adjutlicate their dispute before the competent Civil C:ourt, leading t,r hle the suit.

7. Tht: learned Counsel for the petitioner further submits that, thereafter the petitioner liled O.S.No.32 of 2Ol4 before Trial Court, the petitioner could not file the Original Will Deed along witJe the suit as it was misplaced in the office the Joint Collector ar-rd the order passed by the Joint Collector in ROR proceedings. During the pendency of the suit, thr: petitioner filed I.A.No.135 ol 2023 in O.S.No.32 of 2Ol4 to receive the secondary evidence i.e. certifiecl copy of Will Deed ald the Order pzrssed in Revisi,rn Case No.D1 /2/1999, but the tria-l Court 6 dismissed the said application and therefore the present Civil Revision Petition is filed ald requested to allow the Civil Revision petition.

8. The learned Counsel for the respondents would submit that, during his life time late D.Bakka Reddy never executed the alleged registered Will Deed No.21/1985 dated 13.09.1985 in favour of the .::' petitioner and the respondent No.1/defendant No.1 never left the house and started living at his in-laws' house. At the time of filing of the suit, the petitioner obtained certified copy of Will Deed and the petitioner suppressing the same and produced same by creating a story of misplacement. There are no merits and requested to dismiss the Civil Revision Petition.

9. After hearing both sides and perusing the records, this Court is of the considered view that the I ) 7 petitioner herein, who is the plaintiff, filed suit in O.S.No.32l of 2074 on the frle of the Senior Civil Judge, Nagarkunool against the respondent No'1, who is lrone other than his elder brother, for d eclaratic n of title in respect of the suit schedule property basing on the Will Deed executed b-r' his father. During the pendency of the suit, the petitioner herein hled I.A.No.l35 of 2022 to receive certif,red copy of registered Will Deed No.21/1985 dated 1:,.09.1985 and the Certihed copy oi ttre Orders passed by the Joint Collector in Revision Case No.f 112/1999 dated 12.01.20O4 as secorLdarlr evidence, but the tria-l Court declined to receiv,: the

10. The contention of the petitioner is that the original tvil1 Deed No.21l1985 dated 13.08.1985, subject matter before the Joint Collector, \\ r 8 Mahabubnagar in Revision Case No.DL/2/1999 and the same was misplaced by the staff of oflice of the Joint Collector and therefore the petitioner obtained certified copy thereof and also copy of orders passed by the Joint Collector in ROR Revision proceedings and frled petition to receive the said documents as secondar5r evidence. 1 1. It is an admitted fact that before liling the suit by the petitioner in O.S.No.32 of 2074, the respondent No.1 frled Revision Petition under Section 9 of the ROR Act in Case No.Dl/2/1999 orr the file of Joint Collector, Mahabubnagar against the petitioner and the sarne was disposed of on l2.Ol.2OO9 with an observation that the parties are at liberty to seek redressa-l from the competent Civil Court regarding the genuineness of Will Deed Document No.21 of 1985, dated 13.09.1985 and , I I 9 thereafter t,r submit application for mutation as per the Judgrnent.

12. Aftr:r disposal of the Revision under ROR Act, ),971 the petitioner frled suit in O.S.No.32 of 2Ol4 for deciaration. The petitioner pleaded aboul- the executior of registered Will Deed No.21/1985 dated

13.09.1985 and ROR Proceedings in the plaint.

13. The tria-l Court in the impugned order held that without hling the acknowledgment issued b1' the office of .-he Joint Collector and without any certificatior.,. by the said offrce, the Court czrnnot consider th.e vague contentions of the petition er as true and firrther held that the defendant is t,otally denying t:xecution of the registered will deed by their father ard the signature on the registered will deed shall a-1s,r be compared by the Court which irs not possible on production of copy of the said will deed. 7 l0

14. In ROR Revision proceedings in case No.Dl/21/1999, dated l2.Ol.2OOg, the Joint Collector specifically given directions to both the parties to seek redressal from the competent Civil Court regarding the genuineness of the Will Document No.21 of 19gS dated 13.09.19g5. Without production of said Will Deed by the petitioner in the Revision proceedings before the Joint Collector, the question of giving such direction by the Joint Collector does not arise. Merely basing on the opposition by the other side, the rights of the petitioner cannot be curtailed for producing the secondar5r evidence. 15 The relevant Sections of the Indian Evidence Act are extracted as under: Sectlon 67: Proof oJ contenLs of document1 The contents of documents may be proved either by primar5r or by secondary evidence. I I \ l i r frSrrc;Z - rr .T...-1= :;i.:'-:': -..1v' . ': - -,t' 1l $e9ri9!! A3: Secondary Daidence .,].eo'ns qnd iaclude r:opies given under the provisions hereinaft':r Certified contain€d 2. Copies rracle from the original by mechanical processes which Ln themsel..es insure the accuracy of the copy, and copi':s comparr d \irh such coPies:

3. Copies r.racle from or compared rvith the original; 4. Counterparts of documents as agalnst the parties rvho did not 5. Oral ac,:ounts of the contents of a document givcr.i by sorne execute them; person rvlio has himself seen it Section 65 : coses ln which secondary euid'ence telatlng to documents mag be gloen:- Secondary evidence may be grven of the existen(:e. conrlition or contents of a document in the followirlg C SCS: (a) u.l.ren tlre original is shown or appears to be in the possessir)n or power of the person against whom the document is sought to be pro.,"d. o. of any person out of reach of, or not subject to, the process of thc Court, orof any person legally bound lo-produce it,and u'hen after the notice mentioned in Section 66, such pers')n does not prldrtce it; (b) s4rerr the existence, condition or contents of the original hrrve been proverl to be admitted in writing by the person agaiust u'hor-rr it is proved or- bv his representative in-interest; (c) s.he a the originat has been destroyed or lost, or when the part offering Cvidence of its contents cannot, for any other rcason not .rising from his o\a,n default or neglect, produce it in reasona lrle time: (d) \vhen the original is of such a nature as not to be easily moveable; (e) uhr:n the origuat is a public document within the meaning of Section :'4; (f) when the original is a document of which a certified copl is permitted l)) this Act, or by any other law in force in lndia, to be given in evidence; (g) u'h(n the original consist of numerous accounts or other documents rvhich cannot conveniently be examined in Court and the fact to bc proved is the general result of the whole collection. In cases (al, (c) & (d) any secondary evidence of the contents. of the docum:nts is admissible. In case (b), the wdtten admission rs admissible. r 12 . In case (e) or (f), a certihed copy of the document, but no other kind of secondary evidence, is admissible. Sectloa 68; Proof oJ executlon oJ docwment. requlred. bg lana 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 tl-re Court and capable of giving evidence; Provided that it shall 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 RegistratiDn Act, 1908 (16 of 1908), unless its execution by the person by whom it purports to have been executed is specihcally denied.

16. In similar circumstalces, this Court B.Poontima Vs. Thoomu Rama,dosu and othersl held as follows: " ll. Reliance also was placed on S. Madasqmg Theuar v. A.M. Arjuna Rojit, AIR 2OOO Mad_ 465 and in Kuntppanna v. Kolanda Stuamg, ltIR 1954 Mad. 486. Before parting with the case it is made clear that admissibility of secondary evidence of certified copy of a document grven by the Sub Registrar or Registrar,s office and the procedure specihed under Sections 65 and 66 of the Act are more procedural in nature and on procedural technicalities the substantive rights of the parties cannot ' zooe I" I online AP 175 ''' l;a':i.air'i r..r,-,.-.'..,r. rj.**rl!.-.$ fff;,,:,i.irrc" .an(x4t : 13 be cefeated. Here is a case where the daughter who is fighting a suit for partition, had taken a specific stand that thc present heirs representing Varadarajulu branch are aLso hand-in glove with the defendants, on the ground that a futile exercise of nolice. had nol bren exer:ised by the petitioner, to record a finding to that effect and declining to receive the document in question, in the facts arrd circumstalces of the case. is not r.r,an anted. This Court is thoroughly satisfied that in the facts and circumstalces of the case, the petitioner is entilled to adduce the document in question as seconclirry evidence. But, however, all other questions as to ho\r far the recitals would be hetpful and the proof thereof these questions are left open to be decided by the learrrecl Judge at the appropriate stage. (Emphasis added) In the instant case also, the petitione r fi1ed petition for receiving the Registered Will Deed and order of the Joint Collector in ROR proceedings as secondary evidence and validity of the said documerts has to be decided basing on the evidence adducec by both the parties in the trial. I r t4 .t t,

17. In Vtjag Vs. tlnion of India and other{ tlrc Hon1cle Supreme Court of India held in relevant portion, as under: " After perusing various judgments of this Court, we cal deduce the following principles relevant for examining the admissibility of secondar5r evidence:

33.1 Law requires the best evidence to be given first, ttrat is, primary evidence.

33.2 Section 63 of the Evidence Act provides a list of tJle kinds of documents that can be produced as secondar5z evidence, which is admissible only in tJlti absence of prirnary evidence.

33.3 If the original document is available, it has to be produced and proved in the manner prescribed for prirnary evidence. So iong as the best evidence is within the possession or can be produced or can be reached, no inferior proof could be given.

33.4 A party must endeavor to adduce primary evidence of the contents, and only in exceptional cases will secondary evi.dence be admissible. The exceplions are designed to provide relief when a party is genuinely unable to produce the original through no fault of that party.

33.5 When the non-availability of a document is suffrciently and properly explained, tJren the secondar5r evidence can be allowed.

33.6 Secondary evidence could be given when the party cannot produce the original document for any reason not arising from his default or neglect.

33.7 When tJ:e copies are produced in the absence of the original document, they become good secondar5r evidence. Still, there must be foundational evidence that the alleged copy is a true copy of the original. I I ' zoz: 1scc ot tLtNE) sc 1585 l5

113.8 Before producing secondar5r evidence of the conrents of a document, tlle non-production of the criginal must be accounted for in a manner that can I,rir.g it within one or other of the cases provided 1br in the section. .13.q Mere production and marking of a iocrrment as an exhibit by the Court cannot be hcld tr be due proof of its contents. It has to be proved in accordance with the law. (Emphasis added) Para Nos.33.6 to 33.9 of the above Judgment apply to the instant case. The relevancy of the documer-'.ts can be exarnined by the Tria,l Court on the basis of evidence to be let in the suit.

18. In the written statement frled by the respondent No.1 in O.S.No.32 of 2014, adrnitted that th e matter of implementation of the Will Deed went ul) to the Joint Collector in Re vision procee,lings under ROR Act and the Joint Collector after hearing both sides directed the petitione::-piaintiff to get his rights decided try the Civil C)or-rrt on the basis of the said Will Deed. Il l I I l6 ,1 When once the respondent No.l is admitting dispute with regard to the Will Deed was fell for consideration in the ROR p.o"..dirg", now contending that the said document was not produced by the petitioner before the Joint Collector ald the said contention is not acceptable. Furthermore, the trial Court has not given any hnding'with regard to receiving of order passed by the Joint Collector in Revision petition No.Dl/2/L999 dated, l2.O\.2OOg, which is a material paper of an ofhcial order for secondar5z evidence along with Wilt Deed. The Trial Court ought to have a,llowed the petition for receiving of documents for secondary evidence and the same have to be examined after concluding the tria_1 as per evidence. Therefore, the impugned order dated 2O.O3.2O24 passed by the Trial Court is liable to be t I t1 set asi(lc ald the petition hled by the petitioner has to be al1ou,ed.

19. In view of the above facts and circumstances, the Cirdi Revision Petition is allowed by sctting aside tlre impugned order dated 20.O3"2024 passed in I.A.No.135 of 2023 O.S.No.32 of 2074- and consequently the I.A.No.135 of 2023 in O.S.No.32 of 2O14 on the Iile of Senior Civil Judge, Nagarkurnool, stalds a11owed. There shali tre no order as to costs.

20. Miscellaneous Petitions pending, if any, shall stand disrnissed Sd/-L. VIIAYA LAXMI ASSISI'ANT REGISTRAR //rRUE COPv// ) SECTION OFFICER One Fair Copy to the Hon'ble Sri |ustice K.SARATH (For I{is Lordship's Kind Perusal) To,

1. The Senior Crvil Judge at Nagarkurnool. 2. One CC to Sri \f.Damodar Reddy, Advocate [OPUC] 3. One CC to Sri N.Bhujanga Rao, Advocate [OPUC] 4. 11 LR Copies 5. The Under Sr:cretary, Union of India Minisky of law, Justice and Company Affairs, New Delhi

6. The Secretarl' 'felangana Advocates Associatiory Library, Iligh Court Buildings Hydelabad

7. Tuo CD Copie:. ]CK/ PR ,{ HIGHCOURT DATED:l4/02/2021 ORDER CRP.No.2871 of 20?-4 )\ k,,( ---a , !'- S ,-^l /{' 5.. l' t, t -b 4+ o e 6 ilA:t 2025 t rE-o .11r SPll t i=:=-.. Allowing the C.R.P. r,r,ithout costs