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Telikicherla Kandalai Venkataramanujacharyulu Vs. Telikicherla Kandalai Appalacharyulu and ors. - Court Judgment

LegalCrystal Citation
SubjectFamily
CourtChennai
Decided On
Reported inAIR1926Mad1003; 97Ind.Cas.785
AppellantTelikicherla Kandalai Venkataramanujacharyulu
RespondentTelikicherla Kandalai Appalacharyulu and ors.
Cases Referred and The King v. Benio
Excerpt:
- .....had not been proved and that ex. xiii was inadmissible in evidence. in appeal the subordinate judge held that the defendants had shown sufficient reason for the production of secondary evidence. he states:i am really disposed to consider that the statement of d. w. 3 to doddayacharlu having said at the time ex. iii came into existence that the original will was lost is entitled to be regarded as sufficient basis for letting in evidence about the will for admitting ex. xiii as such evidence.3. under section 65 of the evidence act secondary evidence may be adduced 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. this statement of d......
Judgment:

1. In this case one of the incidental questions at issue was whether one Lakshminarasamma had authority to adopt the 3rd defendant's father. The authority is said to have been given under a registered Will of 1873 and it has been found that the adoption actually took place in 1897. No specific issue was framed as to the validity of the adoption, the only issue on the point being the first issue:

Is. the plaintiff the next reversioner entitled to sue or has Lakshminarasamma adopted any ?

2. The frame of the issue is such that the question raised is as regards the factum of the adoption rather than its validity. The validity having been questioned the defendants sought to prove the Will by secondary evidence. A registration copy of the Will was produced and was admitted in evidence and marked as Ex. XIII subject to proof. These words ' subject to proof' apparently mean subject to proof that the defendants are entitled to adduce secondary evidence. Accordingly D.W. 3 was examined and he stated that at about the time the adoption deed, Ex. III, was drawn up he saw a registration copy of the Will in the hands of one Doddayacharlu, a brother of the widow and the father of the adopted boy, and that when he questioned Doddayacharlu the latter said that the Will had been burnt. The District Munsif did not expunge Ex. XIII from the record and apparently it was never rejected until the District Munsif pronounced his judgment. He then held that the loss of the original had not been proved and that Ex. XIII was inadmissible in evidence. In appeal the Subordinate Judge held that the defendants had shown sufficient reason for the production of secondary evidence. He states:

I am really disposed to consider that the statement of D. W. 3 to Doddayacharlu having said at the time Ex. III came into existence that the original Will was lost is entitled to be regarded as sufficient basis for letting in evidence about the Will for admitting Ex. XIII as such evidence.

3. Under Section 65 of the Evidence Act secondary evidence may be adduced 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. This statement of D. W. 2 even though it is mere hearsay evidence as to the loss, may be treated as offering reason for holding that the original could not be produced in reasonable time. Doddayacharlu was the son of the executor under the Will, brother of the widow, and the father of the adopted boy, and consequently was a person in whose custody the Will was likely to be. When he said that the original had been burnt, that afforded very good ground for supposing that any attempt to cause its production would be wasting the time of the Court. Similar evidence was held to be admissible in The Queen v. Braintree 120 E. R 827 where it was held that when enquiries had been made from parties who are likely to have the document in their possession the answers of such parties to the enquiries were admissible, although the parties themselves were not called, and that although such evidence might not be admissible as evidence on the main issue, it would be admissible upon the preliminary enquiry whether a proper search had been made. Similar evidence was acted upon in The Queen v. Kenilworth 115 E.R. 631.where it was held that the trial Court must exercise its own judgment as to the reasonablenes of the search and that in appeal the decision thereon could not be interfered with.

4. It is contended for the respondent on the strength of Harripria Debi v. Rukmini Debi [1892] 19 Cal. 438 that it was the trial Court alone that could come to a conclusion on this point and that the Subordinate Judge should not have interfered with its discretion, but in that case it was held that interference would be allowed in order to prevent a clear case of miscarriage of justice. Here we have the fact that until the trial was concluded the defendants were under the impression that secondary evidence was admissible for Ex. XIII had been admitted and filed as an exhibit and the Court had not subsequently rejected it as evidence. The defendants, therefore, had no opportunity of adducing other proof of their case and were seriously prejudiced by the District Munsif's procedure. This would be sufficient to justify the appellate Court's interference.

5. Two other English cases were relied on by the respondents The King v. Castleton 101 E.R. 530 and The King v. Benio 10 E. Rule 854 but in both these cases the decisions went upon the question of whether there was sufficiency of evidence to prove proper enquiry.

6. Under the Evidence Act hearsay evidence is inadmissible to prove a fact which is deposed to on hearsay, but does not necessarily preclude euidence as to a statement having been made upon which certain action was taken or certain results followed.

7. Although the evidence of P.W. 3 cannot be held to prove the actual loss of the document, it is something upon which a party may act in concluding that further search for the original document is useless. That is the view taken by the Subordinate Judge and there' seems to be DO reason why his finding should not be accepted in second appeal.

8. Apart from that, the learned Judge in second appeal has stated that the judgment of the Subordinate Judge is based entirely on a. document inadmissible in evidence, but he has overlooked the following statement in the Subordinate Judge's judgment:

Even if it were not so I should hold that there is in this case presumptive evidence about the loss.

9. In saying so he apparently considers that secondary evidence would be admissible under Section 64 although the actual loss of the document is excluded, there is evidence that adoption took place and was all along treated by the family as valid during the whole of the lifetime of the adopted son and the validity was admitted by the brother of the testator, and, apparently, the Subordinate Judge was of opinion that the validity had been proved without Ex. XIII; because he says:

If Lakshminarasamma was openly holding out shat she had made an adoption, and if the adopted son was in possession of the property of the adoptive father, unless the plaintiff was perfectly well aware that the adoption was duly and validly made he would have sued long ago for a declaration.

10. This aspect of the case has not been considered by the learned Judge who heard the second appeal. We think therefore that both on the ground that the Subordinate Judge was of opinion that the necessary proof had been given to justify the production of secondary evidence, and that the validity of the adoption had been otherwise proved,' the finding is one which should not be interfered with in second appeal. If the finding were deemed to be unsatisfactory because it was based on an inadmissible document a fresh finding on the rest of the evidence could have been called for, more especially in view of the fact that the procedure of the District Munsif had seriously prejudiced the defendant.

11. As we consider that the finding of the Subordinate Judge should be accepted, we must allow this appeal and restore the judgment of the Subordinate Judge with costs both here and in second appeal.


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