DHANPAT versus SHEO RAM (DECEASED) THROUGH LRS. & ORS.

Citation: [2020] 7 S.C.R. 131 · Decided: 19-03-2020 · Supreme Court of India · Bench: L. NAGESWARA RAO · Disposal: Appeal(s) allowed

Cited by 2 judgment(s) · cites 6 · see the full citation network in Lexace

Judgment (excerpt)

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DHANPAT
v.
SHEO RAM (DECEASED) THROUGH LRS. & ORS.
(Civil Appeal No. 1960 of 2020)
MARCH 19, 2020
[L. NAGESWARA RAO AND HEMANT GUPTA, JJ.]
Indian Succession Act, 1925:
s. 63 – Will – Admissibility of – Suit seeking declaration that
the plaintiff, his mother and his sisters had equal share in the suit
land which was given to defendant No. 5 by way of a Will – The Will
was challenged as being result of fraud and misrepresentation –
Trial Court as well as first Appellate Court dismissed the suit holding
that plaintiff had no share in the property as partition of the property
had already been done during lifetime of the testator and that the
Will had been duly proved – High Court in second appeal decreed
the suit on the ground that Will was surrounded by suspicious
circumstances and its execution was not proved in accordance with
the requirement of s. 63 of the Act – Appeal to Supreme Court –
Held: The statement of the attesting witness and that of the scribe
of the Will and the official from the Sub-Registrar’s Office prove
the due execution of the Will – Exclusion of natural heirs would not
make the Will surrounded by suspicious circumstances – High Court
erred in law in interfering with the concurrent finding of facts
recorded by Courts below.
Evidence Act, 1872:
ss. 65 and 68 – Secondary evidence – Admissibility of – s. 65
permits secondary evidence where original document has been
destroyed or lost – In the present case execution of the Will was not
disputed, but only proof of the Will was subject matter of dispute –
Once the evidence was brought by the opposite party that original
Will was lost and certified copy thereof was produced, sufficient
ground has been made out for leading of secondary evidence –
There is no requirement for filing application in terms of s. 65(c)
before leading secondary evidence.
[2020] 7 S.C.R. 131
131
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SUPREME COURT REPORTS
[2020] 7 S.C.R.
Punjab Courts Act, 1941:
s. 41 – Second appeal – Scope of – Held: High Court in
terms of s. 41 cannot interfere with finding of fact.
Allowing the appeal, the Court
HELD: 1. Substantial question of law may not be required
to be framed in Punjab and Haryana but still, the finding of fact
recorded cannot be interfered with even in terms of Section 41
of the Punjab Courts Act, 1918. [Para 11][139-A-B]
Pankajakshi (D) through LRs & Ors. v. Chandrika & Ors.
(2016) 6 SCC 157 : [2016] 3 SCR 1018 – followed.
Randhir Kaur v. Prithvi Pal Singh and Others [2019] 9 SCR
776 – relied on.
2.1 Section 65 of the Evidence Act permits secondary
evidence of existence, condition, or contents of a document
including the cases where the original has been destroyed or
lost. If the witness in whose custody the deed should be deposed
to its loss, unless there is some motive suggested for his being
untruthful, his evidence would be accepted as sufficient to let in
secondary evidence of the deed. And if in addition he was not
cross-examined, this result would follow all the more. In the
present case, the Will was in possession of the beneficiary and
was stated to be lost. The Will is dated 30th April, 1980 whereas
the testator died on 15th January, 1982. There is no cross-
examination of any of the witnesses of the defendants in respect
of loss of original Will. The plaintiff had admitted the execution
of the Will though it was alleged to be the result of fraud and
misrepresentation. The execution of the Will was not disputed
by the plaintiff but only proof of the Will was the subject matter in
the suit. Therefore, once the evidence of the defendants is that
the original Will was lost and the certified copy is produced, the
defendants have made out sufficient ground for leading of
secondary evidence. [Paras 15 and 17][141-A-B, F-H; 142-A]
M. Ehtisham Ali for himself and in place of M. Sakhawat Ali,
since deceased v. Jamna Prasad, since deceased & Ors. AIR
1922 PC 56 – relied on.
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Aher Rama Gova & Ors. v. State of Gujarat (1979) 4
SCC 500 – referred to.
2.2 There is no requirement that an application is required
to be filed in terms of Section 65(c) of the Evidence Act before
the secondary evidence is led. A party to the lis may choose to
file an application which is required to be considered by the trial
court but if any party to the suit has laid foundation of leading of
secondary evidence, either in the plaint or in evidence, the
secondary evidence cannot be ousted for consideration only
because an application for permi

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