Skip to content


Parsa Singh Vs. Smt. Parkash Kaur and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtPunjab and Haryana High Court
Decided On
Case NumberCivil Revn. No. 44 of 1974
Judge
Reported inAIR1976P& H235
ActsEvidence Act, 1872 - Sections 65 and 74(2); Registration Act, 1908 - Sections 57(5)
AppellantParsa Singh
RespondentSmt. Parkash Kaur and ors.
Appellant Advocate Baldev Singh Jawandha, Adv.
Respondent Advocate K.S. Raipuri, Adv.
DispositionPetition dismissed
Cases ReferredPunjab Jullundur v. Dev Raj Vir Bhan
Excerpt:
.....dismissed the application on the ground that the plaintiffs had failed to make out a case to lead secondary evidence in accordance with the provisions of section 65 of the indian evidence act (hereinafter referred to as the act). parsa singh plaintiff, has come up in revision against the order of the subordinate judge 1st class, dated december 12, 1973. 3. the only contention of the learned counsel for the petitioner is that the petitioner is entitled to produce the certified copy of the will obtained from the office of the registrar, to prove it in spite of the fact that the loss of the original will is not established. --it is well settled that certified copies of registered deeds evidencing private transactions are admissible only when a case for reception of secondary evidence has..........evidence has in any way been introduced, as by proof of the loss of the original document, a copy certified by the registrar shall be admissible for the purpose of proving the contents of the original.'the same view is further supported by the decision of the privy council in gopal das's case (air 1943 pc 83) (supra).7. the learned counsel for the petitioner has placed reliance on nani bai v. gita bai, air 1958 sc 706 and arya pratinidhi sabha, punjab jullundur v. dev raj vir bhan, air 1963 punj 208, in support of his contention that even without the proof of loss of the original, the secondary evidence can be led under section 65 (e) and (f) of the act. in the former case it was observed that the sale deeds themselves were the primary evidence of the interest sold. if the sale.....
Judgment:
ORDER

Rajendra Nath Mittal, J.

1. This revision petition has been filed by Parsa Singh, plaintiff against the order of the Subordinate Judge 1st Class, Batala, dated December 12, 1973.

2. Briefly the facts of the case ere that the property in dispute originally belonged to Bal Singh, deceased, resident of village Sagarpura. Smt. Tej Kaur, the predecessor-in-interest of the plaintiffs, was the owner of land situated in village Basrai. She exchanged the land in dispute with Bal Singh. The said Smt. Tej Kaur executed a will in favour of the plaintiffs on April 18, 1958, regarding the property in dispute. They instituted a suit for possession of the land in dispute as heirs of Smt. Tej Kaur. The defendants contested the suit and denied the allegations of the plaintiffs, inter alia, pleading that no will was executed by Smt. Tej Kaur in favour of the plaintiffs. When the evidence was being led, the plaintiffs made an application seeking permission to lead secondary evidence regarding the will which was alleged to have been executed by Smt. Tej Kaur in their favour on the ground that the original one had been lost. The application was contested by the defendants. The trial Court dismissed the application on the ground that the plaintiffs had failed to make out a case to lead secondary evidence in accordance with the provisions of Section 65 of the Indian Evidence Act (hereinafter referred to as the Act). Parsa Singh plaintiff, has come up in revision against the order of the Subordinate Judge 1st Class, dated December 12, 1973.

3. The only contention of the learned counsel for the petitioner is that the petitioner is entitled to produce the certified copy of the will obtained from the Office of the Registrar, to prove it in spite of the fact that the loss of the original will is not established. In order to determine this controversy, it will be necessary to refer to some provisions of the Act and the Indian Registration Act.

4. Part II of the Act relates to 'On Proof. Chapter V, which starts with Section 61 and ends with Section 90, deals with documentary evidence. Section 61 says that the contents of documents may be proved either by primary or by secondary evidence. Section 62 relates to primary evidence; Section 63, to secondary evidence; Section 64, to proof of documents by primary evidence; Section 65, to cases in which secondary evidence relating to documents may be given; and Section 74, to public documents. Section 64 says that the documents must be proved by primary evidence except in the cases thereinafter mentioned. Section 65 is as follows:--

'65. 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;

(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 representative-in-interest;

(c) when the original has been destroyed or lost, or when the party offering evidence of its contents cannot, for any other reason not arising from his own default or neglect, produce it in reasonable time;

(d) xx xx xx xx

(e) when the original is a public document within the meaning of Section 74;

(f) when the original is a document of which a certified copy is permitted by this Act, or by any other law in force in India, to be given in evidence;

(g) XX XX XX XX

In cases (a) (c) and (d), any secondary evidence of the contents of the document is admissible.

In case (b), the written admission is admisible.

In case (e) or (f), a certified copy of the document, but no other kind of secondary evidence, is admissible.

xx xx xx xx.'

Relevant clause of Section 74 is as under:--

74. The following documents are public documents:--

(1) XX XX XX XX

(2) public records kept in any State of private documents.'

Section 57 of the Indian Registration Act relates to registering officers to allow inspection of certain books and indexes, and to give certified copies of entries. The said section is as follows:--

'57. (1) xx xx xx xx

(2) xx xx xx xx

(3) xx xx xx xx

(4) xx xx xx xx

(5) All copies given under this section shall be signed and sealed by the registering officer, and shall be admissible for the purpose of proving the contents of the original documents.' A reading of Sections 64 and 65 of the Act goes to show that contents of documents except those falling under Section 65, can be proved by primary evidence.

5. Now the question is under which clause of Section 65, the present case falls. Mr. Jawanda, the learned counsel for the petitioner admits that it does not fall under Clauses (a), (b), (c), (d) and (g). According to him it falls either under Clause (e) or (f) read with Section 74(2) of the Act and Section 57(5) of the Registration Act. The said sections have already been reproduced above. Under Clause (e), secondary evidence can be given of the contents of a document, if the original is a public document. Therefore, it is to be seen as to whether the original registered will is a public document. After going through Sections 65 and 74, it cannot be held that it is so. The aforesaid sections do not warrant conclusion that an original will becomes a public document after its registration. Such a document even after registration, will remain a private document. The matter is not res Integra. I get support for the above view from observations of the Privy Council in Gopal Das v. Sri Thakurji, AIR 1943 PC 83. In that case, a copy of the receipt registered under the Registration Act, was admitted by the trial Court without any objection from the other side. It was rejected by the High Court on the ground that no foundation was laid by the defendants for the admission of secondary evidence. An argument was raised before the Privy Council that the receipt falls within Section 74(2) of the Act and was a public document and, therefore, under Section 65(e) no such foundation was required to be laid as in cases coming within Section 65 (a), (b) and (c). The contention was rejected and it was observed by their Lordships as follows:--

'Their Lordships cannot accept this argument since the original receipt of 1881 is not 'a public record of a private document'. The original has to be returned to the party -- see Sub-section (2) of Section 61, Registration Act, 1908. A similar argument would appear at one time to have had some acceptance in India but it involves a misconstruction of the Evidence Act and Registration Act and later decisions have abandoned it. The line of cases may be found in the text-books (cf. Rustomji's Law of Registration, Edn. 3, 1939, p. 353), but it will suffice for their Lordships to refer to 19 Cal WN 929 = (AIR 1915 PC 111), Pad-man v. Hanwanta, a case about a registered will. It was said in the judgment of the Board delivered by Mr. Ameer All:

It was urged in the course of the argument that a registered copy of the will of 1898 was admitted in evidence without sufficient foundation being laid for its admission. No objection however appears to have been taken in the first Court against the copy obtained from the Registrar's Office being put in evidence. Had such objection been, made at the time, the District Judge, who tried the case at first instance, would probably have seen that the deficiency was supplied.'

For the aforesaid reasons, Clause (e) of Section 65 is of no assistance to the learned counsel for the petitioner.

6. Clause (f) of Section 65 also does not help the petitioner. The original document in the present case is the registered will and not the books maintained in the office of the Registrar. The registered original will is not a document of which a certified copy is permitted by law to be given in evidence without laying down foundation for introducing secondary evidence. On reading the aforesaid clause along with Section 74 of the Act and Section 57 of the Registration Act, no doubt is left in my mind that the present case is not covered by it. A certified copy from the Registrar is admissible for proving the contents of the original, but is not sufficient to dispense with the production and proof of the original document. I am fortified in the aforesaid view from the observations of a Division Bench judgment of the Nagpur High Court, presided over by Bose C. J., as he then was, in Kashinath Shankarappa v. New Akot Cotton Ginnng and Pressing Co. Ltd., AIR 1951 Nag 255. The observations are as follows:--

'Section 65 applies Section 74 only when the original is a public document. It would, for example, be absurd to contend that a private sale-deed or mortgage can be proved by the production of a certified copy obtained from the Sub-Registrar's office and nothing more.'

A similar question arose in Badhawa Ram v. Akbar Ali, AIR 1927 Lah 817. Tek Chand, J., while speaking for the Court, observed as follows:--

'It is well settled that certified copies of registered deeds evidencing private transactions are admissible only when a case for reception of secondary evidence has been made out. Section 57, Registration Act, only shows that when secondary evidence has in any way been introduced, as by proof of the loss of the original document, a copy certified by the Registrar shall be admissible for the purpose of proving the contents of the original.'

The same view is further supported by the decision of the Privy Council in Gopal Das's case (AIR 1943 PC 83) (supra).

7. The learned counsel for the petitioner has placed reliance on Nani Bai v. Gita Bai, AIR 1958 SC 706 and Arya Pratinidhi Sabha, Punjab Jullundur v. Dev Raj Vir Bhan, AIR 1963 Punj 208, in support of his contention that even without the proof of loss of the original, the secondary evidence can be led under Section 65 (e) and (f) of the Act. In the former case it was observed that the sale deeds themselves were the primary evidence of the interest sold. If the sale deeds, which are said to be registered documents, are not available for any reasons, certified copies thereof could be adduced as secondary evidence, but no foundation had been laid in the pleadings for the reception of other evidence. In the latter case, Mahajan, J., as he then was, while dealing with the matter, observed that a certified copy of the will was admissible in evidence in view of the fact that the original was not forthcoming and was being withheld by the persons who were interested to deny it. The learned Judge further observed that under Section 65(f), Evidence Act, read with Section 57 of the Registration Act, the certified copy of the will was sufficient proof of the will. The aforesaid observations clearly go to show that those cases are distinguishable, and the observations in them are of no help to the petitioner. I am, therefore, not con-vinced that the petitioner is entitled to produce the certified copy of the will to prove the document without proving loss of the original document. Consequently, I reject the contention of the counsel for the petitioner being devoid of merit.

8. For the reasons recorded above, the revision petition fails and the same is dismissed with no order as to costs.


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //