Allowed

Kishan Dev Sharma v. Kasur Begum

Telangana HC2 Sept 2014CRP/1239/2014

Case brief

AI extract

What is this about?

In a civil revision petition regarding a suit for declaration of title and recovery of possession, the High Court allowed the revision. The trial court had permitted a respondent to file a xerox copy of a Will as secondary evidence without recording satisfaction under Section 65 of the Evidence Act or following procedures under Section 65 regarding attestation. The High Court set aside the order.

What did the court decide?

The civil revision petition is allowed. The order of the trial court allowing I.A.No.3489 of 2010 is set aside. No order as to costs. Miscellaneous petitions disposed.

Kishan Dev Sharma Vs Kasur Begum — Property and Title | Telangana HC (2014)

¶1

THE HON’BLE SRI JUSTICE L.NARASIMHA REDDY

¶2

CIVIL REVISION PETITION No.1239 of 2014

¶3

ORDER: (per the Hon’ble Sri Justice L.Narasimha Reddy)

¶4

The respondents filed O.S.No.137 of 2006 in the Court of the I Additional Chief Judge, City Civil Court, Secunderabad against the petitioner for the relief of declaration of title and recovery of possession of the suit schedule premises. The petitioner entered appearance and filed a written statement opposing the suit. After the trial of the suit commenced, the respondents filed I.A.No.2804 of 2009 under Order 6 Rule 17 C.P.C. with a prayer to permit them to amend the plaint to incorporate the ground pertaining to an alleged Will, dated 24.09.1982, said to have been executed in favour of respondent No.1. The I.A. was dismissed by the trial Court on 30.04.2010, on the ground that the trial of the suit has already commenced. C.R.P.No.4255 of 2010 filed by the respondents was dismissed by this Court against the said order on 22.09.2010.

¶5

In the course of trial of the suit, the respondents filed I.A.No.3489 of 2010 with a prayer to permit them to file a xerox copy of the Will, dated 24.09.1982, as secondary evidence. It was pleaded that the original is not with the respondents and it is in the custody of the plaintiff in O.S.No.1217 of 1996. The petitioner opposed the I.A. by filing a counter. The trial Court allowed the I.A. through order, dated 15.04.2014. Hence, this revision.

¶6

Heard Sri Siddarth Sarma, learned counsel representing Sri P.Venugopal, learned counsel for the petitioner. Though the respondents are served with notice, they have not entered appearance.

¶7

The suit is for the relief of declaration of title and recovery of possession. Though certain facts were pleaded by the respondents in support of their claim for title, at a later stage, they wanted to rely upon a Will, said to have been executed in favour of respondent No.1. An attempt made by them to get the plaint amended did not fructify.

¶8

I.A.No.3489 of 2010 is filed with a prayer to permit them to file a Xerox copy of the Will, dated 02.04.1983, as secondary evidence. Section 65 of the Evidence Act stipulates the conditions under which a Court can permit a party to adduce secondary evidence. Before permitting a party to adduce secondary evidence, the Court is under obligation to record its satisfaction in that behalf. The order passed by the trial Court does not indicate any such finding.

¶9

Whatever may the the circumstances under which the secondary evidence can be permitted in relation to other documents, the documents which require attestation and where the proof is involved, a cautious approach is warranted. In the context of proving a document, the signature or thumb impression on a Xerox copy cannot be taken into account. The requirement is still acute in relation to the documents which are required to be

¶10

attested. The procedure prescribed under Section 68 of the Evidence Act needs to be followed. An accurate finding as to the genuinity of the signature either of the executant or the attestor would be possible only when the original document is available. If, in fact, the original of the Will is in the custody of a third party, the concerned party can be required to file it. If on the other hand, it is filed in another suit in different Court, an application can be filed for sending the document. None of these aspects were taken into account by the trial Court.

¶11

Hence, the civil revision petition is allowed and the order under revision is set aside. It is, however, left open to the respondents to take necessary steps in accordance with law in relation to the alleged Will. There shall be no order as to costs.

¶12

The miscellaneous petitions filed in this revision shall also stand disposed of.

¶13

_____________________ L.NARASIMHA REDDY,J

¶14

Dt:02.09.2014

¶15

kdl

Kishan Dev Sharma v. Kasur Begum

Case brief

What is this about?

What did the court decide?

Kishan Dev Sharma v. Kasur Begum

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Statutes considered

Parties & counsel

Coram

Case details

Similar cases

K.S.Venkata Raman Vs Prem Jeevan

B.Yellesh Yadav Vs R.Rajeshwar Goud

Pradeep Kumar Baresia Vs Radha Baresia

Jagdish Chander Dacha, Vs The Vinayaka Residency Welfare Association

Hareesh Kakarla Vs E.Setha

Hasan Maqdoom (died) Vs Asghar Shareef (died)