In CMPMO 321 of 2021- HP HC- On failure of compliance with Sec 65 & 66 of Evidence Act, the Trial Court erred in allowing respondent to produce copy of Will as secondary evidence, rules Himachal Pradesh High Court
Justice Satyen Vaidya [24-05-2023]

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Simran Singh

New Delhi, May 29, 2023: The Himachal Pradesh High Court, while exercising its civil jurisdiction, allowed the petition and set aside the impugned order dated 26-08-2021 with directions to the Trial Court to allow the respondents further opportunity to prove the existence and loss of alleged original Will, strictly in accordance with law and thereafter pass orders afresh on the application of the respondents seeking leave to prove the Will by way of secondary evidence.

It was held that the respondents had failed to show due compliance to the provisions of Section 66 of the Evidence Act,1872 (Evidence Act), failed to produce sufficient credible material before the Trial Court to prove the existence of original Will executed by the late mother of the parties and also failed in proving receipt of Notice by Ms. Renu Gupta, Patwari Halqua (Patwari) and her refusal to return the the Will to the respondents.

In the matter at hand, the petitioner challenged the order dated 26-08-2021 passed by the Senior Civil Judge, Sirmour District. The parties were real siblings wherein the respondents had filed a suit for declaration that they had inherited the share of their late mother in the subject property on the basis of her unregistered Will dated 25-02-2017. Petitioners by way of their written statement had specifically denied the execution of Will by their mother in favour of respondents who had not even produced the original Will on record.

It was alleged that on 13-06-2017, they had visited the Patwari for mutation of the subject property and had handed over the original Will to her subsequent to which the documents were attested in favour of all the parties in equal shares. Despite their repeated requests, the Patwari had not returned the original Will to the respondents thus, they had placed a photocopy of the alleged Will of their late mother on record and had filed an application under Section 65 of the Evidence Act seeking leave of the Court to prove the Will of their late mother by way of secondary evidence. The factum of original Will having been handed over to the Patwari on 13-06-2017 was reiterated and that she had admitted to having misplaced the Will and had promised to return the original to the respondents after tracing the same.

The petitioners had contested the application by specifically denying the execution of Will by their late mother and stated that the contentions of the respondents with respect to the original Will being in possession of the Patwari was fabricated. It was alleged that the petitioners were never shown the original will and hence did not believe the version of the respondents.

The Trial Court however allowed the application of the respondents vide impugned order dated 26-08-2021 and granted them permission to prove the Will by leading secondary evidence.  Trial Court had placed reliance on the contents of copies of mutation Nos. 407 and 947 which prima facie showed that the Will was produced before the Patwari. Aggrieved by the same, petitioner had preferred the instant petition.

The Bench navigated through Section 65 of the Evidence Act which provided for the instances when secondary evidence could be given. “Section 65 (a) of the Act will be relevant, which provides that the secondary evidence may be given of the existence, conditions or contents of a document, when the original is shown or appears to be in the possession or power of any person legally bound to produce it, and when, after the notice mentioned in Section 66, such person does not produce it”

The Court was of the view that the present case could also have been covered under Section 65 (c) of the Evidence Act, according to which the secondary evidence may be given when the original  had been destroyed or lost or when the party offering evidence of its contents could not, for any other reason not arising from his own default or neglect, produce it in reasonable time.

The Court noted that the respondents had allegedly issued a notice dated 16-04-2020 to the Patwari when the original Will was not returned to them under Section 66 of the Evidence Act. However, the said notice was not placed on record. The Court perused the original postal receipts dated 16-04-2020 purportedly issued to “Ms. Renu Gupta, Patwari, Patwar Circle Mian-Mandir, Nahan, District Sirmour, H.P. Noticeably, it was also mentioned that ‘Now Renu Gupta is serving as Kanungo Nahan, District Sirmour, H.P.’” On the face of it, the Court stated that the notice was not sent on the correct address as Ms. Renu Gupta was not posted as Patwari at the relevant time but was posted as Kanungo. Therefore, it was stated that the respondents had failed to show due compliance to the provisions of Section 66 of the Evidence Act. In such situation, no presumption could have been raised in respect of the issuance of notice to Ms. Renu Gupta. For non compliance of provisions of Section 66 of the Evidence Act only, the prayer as made for secondary evidence could not have been allowed.

The Court further stated that the recitations in Mutation Nos. 407 and 947 also could not be said to be sufficient compliance of the requirement of Section 65 of the Evidence Act for the reasons that:

1. The contents of above noted mutations was allegedly scribed by the then Patwari which were not per-se admissible and could be proved by the said official.
2. There was no recital in mutation Nos. 407 and 947 to the effect that the Will was allegedly produced by plaintiffs and was the original document.

It was thus held that the Trial Court had erred in allowing the prayer of the respondents for secondary evidence without seeking proof of the factum of existence and loss of the original document, in accordance with law.