LexN. SRIHARI (D) THROUGH LRS. & ORS. versus N. PRAKASH & ORS.
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A B [2008] 3 S.C.R. 62 N. SRIHARI (D) THROUGH LRS. & ORS. v. N. PRAKASH & ORS. (Civil Appeal Nos.1420-1421 of 2008) FEBRUARY 19, 2008 (DR. ARIJIT PASAYAT AND P. SATHASIVAM, JJ.) Evidence Act, 1872: ss. 62 and 63 - Primary evidence and secondary C evidence - Suit claiming title to properties through a will - Executor of the will herself enjoying the property under another earliest will - Original of earliest will not produced before court - Parties and courts referring to the earliest will - Neither trial 0 court nor High Court recording any finding with regard to the earliest will - Held: In the absence of a specific finding as to the earliest will, matter remitted to High Court - Defendants would place the original of the earliest will for consideration of High Court - If original will is not available, a certified copy E thereof may be placed on record - High Court would consider the same as also the objections that may be raised, in accordance with law - The matter being old, High Court would decide it expeditiously- Till then parties would maintain status quo - Practice and Procedure. F One 'NS', who had two sons, was stated to have bequeathed all his properties including 19 acres and 15 guntas of land in favour of his wife 'C' and 'P', the wife of his elder son 'NB', by a will d~ted 2.1.1956. The G beneficiaries of the will were to enjoy the properties jointly. 'C' was given life time interest under the will. Later 'C' and 'P' jointly purchased 1 acre 30 guntas of land raising their joint holding to 2~ acres and 5 guntas. On 6.3.1969, 'C' H executed a registered settlement deed transferring 2982 62 N. SRIHARI (D) THROUGH LRS. & ORS. v. 63 N. PRAKASH & ORS. sq. yards of land from the joint holding in favour of 'S', A the wife of the second son 'SG'. By another registered release deed she transferred her undivided share in favour of 'P'. On the same day 'S' executed a registered disclaimer deed disclaiming any right over the property B that vested with 'C' and 'P'. In the year 1970, the second son of 'P' and 'NB', pledged the documents of the suit land with Andhra Bank against a loan. On failure of payment of the loan amount, the Bank successfully filed O.S.No.403 of 1976 wherein the will dated 2.1.1956 and c the release deed dated 6.3.1969 were marked as exhibits. After the death of 'NB' in 1981 and 'C' in 1984, the sons of 'SG' filed a suit claiming the entire share of 'C' through a will dated 28.9.1979. The suit was decreed. The .J:. defendants-appellants filed A.S.No.78 of 1994 and CMP D No.17581 of 2001 before the High Court, which dismissed the appeal and disposed of the CMP. Aggrieved by the judgment in A.S.No.78of1994 and the order in the CMP, the defendants filed C.A.Nos.1420-1.421 of 2008. The incidental orders gave rise to C.A.Nos.1422 to 1429 E which were filed by the other defendants and some third parties. It was contended for the main appellants-defendants that the trial court as also the High Court failed to consider F the earliest will dated 2.1.1956 merely because the original thereof was not placed before the court and, therefore, the judgments of both the courts below could not be sustained. G Disposing of the appeals, the Court HELD: 1.1 The pleadings as well as the discussion by the trial court clearly show about existence of the earliest Will dated 2.1.1956 executed by 'NS'. The fact H 64 SUPREME COURT REPORTS [2008] 3 S.C.R. A remains that though the plaintiffs themselves placed a certified copy of the said Will, original of the same has not been produced by the defendants. It is their case that the original had been filed in O.S. No. 403 of 1976 filed by B Andhra Bank. Though steps had been taken by the High Court fol' transfer of the said document, till its final decision, the same was not reached and ultimately the High Court disposed of the appeal on the basis of the available materials and confirmed the judgment and c decree of the trial court. [Para 13) [73-G; 74-A, BJ 1.2 It is significant to note that the plaintiff themselves referred tc1 the Will dated 2.1.1956 in their plaint, contesting defendants asserted the same in their written statement D and specific reference to the same was made by the trial court as well as the High Court in their judgments. But, in the absence of specific finding as to the Will dated 2.1.1956, in the interest of justice, the matter has to go back to the High
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