Topic: Kalyan Singh, London Trained Cutter, Johri Bazar, Jaipur vs. Smt.Chhoti and others

Kalyan Singh, London Trained Cutter, Johri Bazar, Jaipur vs. Smt.Chhoti and others
Equivalent citations: 1990 AIR 396, 1989 SCR Supl. (2) 356 - Bench: Shetty, K.J. (J), Mukharji, Sabyasachi (J), Ahmadi, A.M. (J) - Citation: 1990 Air 396 1989 Scr Supl. (2) 356, 1990 Scc (1) 266 Jt 1989 (4) 439, 1989 Scale (2)1238 - Citator Info: R 1990 Sc1742 (2) - Date Of Judgment 01/12/1989

ACT:

Indian Succession Act: Will--Execution     and validity--Open    to court to look into    surrounding circum- stances brought out in evidence.

Civil Procedure Code: Order I Rule 8--Representative Suit-Permission of court--Mandatory.

Indian Evidence Act: Sections 63 and 79--Secondary evidence-Correctness and proof of certified copy--Necessity of.

HEADNOTE:

This case is concerned with a garden with    temples     and other buildings at Jaipur claimed to be the property of Darjee    (Tailors) community popularly     known    as 'Bagichi Darjian'. It was claimed by different persons at different intervals on different grounds. One Narayan, Pujari on     the temples was said to have sold the Bagichi in favour of     one Khawas Bala Bux. Darjee community filed a suit for cancella- tion of that sale and declaration of its right to administer the property.    The Trial Court dismissed the suit but on appeal    District Judge decreed it and this decree was     af- firmed    by the Chief Court of Jaipur. But after 23 years on the death of Narayan his eldest son Bhonrilal-respondent No. 3 herein who became the Pujari attempted to get his    name mutated     in revenue records as owner of the    Bagichi. On behalf of the Darjee community the appellant herein together with one Khawas Suraj Narayan filed a suit in 1951 for     his ejectment. This suit was decreed in favour of     the Darjee community. Appeal against that decree by Bhonrilal     was dismissed by the Senior Civil Judge, Jaipur. Second appeal in the High Court too failed.

However, even before the disposal of the aforesaid Second    appeal,     Gangaram the younger brother of Bhonrilal started another round of litigation. He filed a     declaratory suit claiming the ownership of the Bagichi and     temples on the basis of sale deed dated Baishakh Sudi 12th Samvat    1932 (about 1875 A.D.) and a Will purported to be    executed in 1916 A.D. in his favour.

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The     Trial    Judge decreed the suit in his    favour.     The defendants' appeal was dismissed by    the District Judge upholding the validity of the said Sale Deed and the Will. On further appeal, the High Court rejected the validity of the Sale Deed as well as that of the Will which formed     the foundation of Ganga Ram's title. But instead of allowing the appeal    and dismissing the suit the High Court declined to interfere with the decree of the Court below though holding that the plaintiff's suit was a fruitless exercise. Kalyan Singh the defendant challenged the decree of     the High Court in this Court on two counts. Firstly that     the suit against Bhonrilal was of a representatives character which could not be nullified by the present suit against individuals. Secondly the High Court after discarding     the Sale Deed and the Will ought to have non-suited the plain- tiff since there was no other material whatever to support the title. While allowing the appeal     and modifying     the judgment and decree of the High Court, this Court, HELD: In the absence of permission under Order I Rule 8 CPC to     file a representative suit which is mandatory     any member    of the community may successfully bring a suit to assert his right in the community property or for protecting such property. Such a suit need not comply with the require- ments of Order I Rule 8 C.P.C. and the suit against Bhonri- lal even if it was not a representatives suit on behalf of the Darjee Community    would be a suit     of this category. [363D-E]

It    is essential that trust worthy and unimpeachable evidence should be produced before the Court to establish genuineness and authenticity of the Will. It must be stated that the factum of execution and validity of the Will cannot be determined merely by considering the evidence produced by the propounder. In order to judge the credibility of    wit- nesses    and disengage the truth from falsehood the Court is not confined only to their testimony and demeanour. It would be open to the court to consider circumstances brought     out in the evidence or which appear from the nature and contents of the documents itself. It would be also open to the Court to look into surrounding circumstances as well as inherent improbabilities of the case of reach a proper conclusion on the nature of the evidence adduced by the party. [366E-F] The Will in the instant case, constituting the plaintiff as a sole legatee with no right whatever to the testator's wife seems to be unnatural. It casts a serious doubt on     the genuineness of the Will. The Will has not been produced     for very many years before the Court or

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public    authorities even though there     were occasions to produce it for asserting plaintiff's title to the property. The plaintiff was required to remove these suspicious    cir- cumstances by placing satisfactory material on     record. He has failed to discharge his duty. This Court concurs    with the conclusion of the High Court and rejects the Will as not genuine. [368A-B]

Section 63 of the Evidence Act mentions five kinds of secondary evidence. Clauses (1), (2) and (3) refer to copies of documents; clause (4) refers to counter-parts of docu- ments and clause (5) refers to oral accounts of the contents of documents. Correctness of certified copies referred to in clause (1) is presumed under section 79 but that of other copies    must be proved by proper evidence. A certified    copy of a registered sale deed may be produced as secondary evidence in the absence of the original. [369B-C] H.    Venkatachala lyengar v. B.N. Thimmajamma & Ors., [1959] Supp. I SCR 426; Rani Purnima Devi & Anr. v. V. Kumar Khagendra Narayan Dev & Anr., [1962] 3 SCR 195; Smt.    Indu Bala Bose & Ors. v. Manindra Chandra Bose & Anr., [1982] 1 SCC' 20 and Mst. Biro v. Atma Ram & Ors., AIR 1937 PC 101.

JUDGMENT:

CIVIL APPELLATE JURISDICTION: Civil Appeal No. 135    I(N) of 1973.

From the Judgment and Decree dated 14.3.1973 of     the Rajasthan High Court in S.B. Civil Second Appeal No. 201 of 1966.

K.K Jain, Pramod Dayal and A.D. Sanget for the Appellant. U.N. Bachavat, Sushil Kumar Jain, Sudhanshu Atreya     and L.C. Agarwala for the Respondents.

The Judgment of the Court was delivered by K. JAGANNATHA SHETTY, J. This appeal by special leave is from the judgment of the Rajasthan High Court    dated March 14, 1973 in S.B. (Civil) 2nd Appeal No. 201of 1966. The     case has a long history. It is concerned with a garden    (baghichi) with temples of Sri    Satyanarayanji,     Sri Mahadeoji and other buildings at Motidungri Road in Jaipur. The local Darjees (Tailors) claim that it is their community property. According to them

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it is known as 'Baghichi Darjian' since it belongs to Darji community. The property however, was the subject-matter of several litigations. It was claimed by different persons at different intervals on different grounds. One    Narayan     was admittedly 'Pujari' of the Temples. There was allegation that Narayan purported to have sold the Baghichi in favour of one     Khawas Bala Bux. The Panchas of Darjian community filed a suit for cancellation of the sale-deed and posses- sion of the baghichi. The suit was also for declaration of the right to administer the trust of the temples and     the other properties. Narayan was the first defendant in    that suit. He did not contest the suit. He was, however, summoned and his statement was recorded on July 8, 1925, wherein he admitted that    he was only the Pujari of the temples.     The other defendants in the suit set up rival title to     the property relying upon the sale deed of Samvat 1932 in     the name of Raghunath. The trail court dismissed the suit but on appeal    the District Judge decreed it. That decree was     af- firmed by the former Chief Court, Jaipur by judgment Ex. A8 dated September 15, 1928.

Thereafter, for about 23 years there was no problem     and there was no rival claimant to the property. But the dispute started after the death of Narayan. His eldest son Bhonrilal respondent 3 herein, made attempts to get his name mutated in the revenue records as owner of the baghichi. It appears that Bhonrilal after the death of his father was acting as Pujari    of the temples. The Darjian community authorised Kalyan    Singh, the appellant herein, as well as     one khawas Suraj Narayan to bring an action for ejectment of Bhonrilal. In 1951 they instituted a suit for his ejectment. In    that suit Bhonrilal     admitted the    Panchayat's right to     the baghichi but raised a number of other pleas including     his title by adverse possession. In 1966 the Munsif Court (West Jaipur)     decreed the suit in favour of the Darji community. In 1958 the appeal against that decree was dismissed by     the senior civil Judge, Jaipur City. Bhonrilal preferred Second Apeal No. 8C of 1958 in the High Court of Rajasthan     and obtained stay of delivery of possession on depositing mesne profits at Rs.25 per month. On September 15, 1960, the    High Court dismissed the second appeal. Thus the title of     the Darjee community in respect of the baghichi was again recog- nised.

Even before disposal of the aforesaid second appeal, Ganga Ram the younger brother of Bhonrilal started another round of litigation. On December 12, 1959, he brought a declaratory suit claiming that he is owner of the property consisting of baghichi and temples. In this appeal we     are concerned with the fight claimed by him. The suit was    pri- marily against the present appellant Kalyan Singh and Suraj 360

Narayan, since deceased. Bhonrilal was also impleaded as the third defendant. Ganga Ram based his title to the property under a sale    deed dated Baishakh Sudi 12th    Samvat    1932 (about    1875 A.D.) and also on a will dated Asaj Sudi    12th Samvat    1973 (about 1916 A.D.). It was further alleged    that the bagichi belonged to Bhagala and Girdhari and they    sold the same to Raghunath Brahmin. Raghunath constructed     the temple    of Sri Satyanarainji and other buildings. Raghunath had only one son called Gaurilal and     he was issueless. Garuilal executed a will giving all his properties to Ganga Ram. It was alleged that the earlier suit against Bhonrilal was collusive between the parties. With these    allegations, Ganga Ram prayed for the following reliefs: "(a) the plaint of the plaintiff     be decreed and the plaintiff be declared as the owner of the aforesaid property. The plaintiff is     the owner of the property mentioned in Para No. 1. The decree which the defendant Nos. 1 and 2 had obtained on 20.8. 1956 against the Defend- ant No. 3 and was upheld by the Senior Civil Judge on 6.2. 1958, is null and void against the claim of the plaintiff."

The     appellant the first defendant in the    suit denied plaintiff's title to the baghichi. He also denied the title of Bhagala and Girdhari. It was maintained that the baghichi was community    property of Darjees and Narayan was only a 'Pujari' of the temples. Narayan continued as    Pujari    till his death in 1950 and thereafter his eldest son Bhonrilal was acting as Pujari. Reference was made to the judgment of the Chief Court of Jaipur in the first suit against Narayan and judgments in the second suit against Bhonrilal. In    view of those litigations and judgments rendered therein, it     was claimed that the present suit was barred by principle of res ]udicata. It was also specifically stated that the suit against Bhonrilal was not collusive but brought on behalf of the Darjee community in a representative capacity. The trial Judge on considering the evidence produced by the parties decreed the suit declaring the plaintiff as owner of the suit property. It was also declared that     the plaintiff is not bound by the judgment and decree dated September 15, 1928 of the Chief Court of the erstwhile State of Jaipur. But no reference was made to the judgment     and decree    obtained in the suit against Bhonrilal. No declara- tion was given that it was not binding on the plaintiff though that relief was specifically sought for. Perhaps     the plaintiff did not press that point. Kalyan Singh and Suraj Narayan appealed to the District Court. The 361

learned District Judge dismissed the appeal. He also did not refer to the judgment in the suit against Bhonrilal. He only examined the validity of the said Sale deed and Will     and held that they were proved to have been executed. The     de- fendants approached the High Court in     Second     Appeal     No. 201/41    Before the High Court, they sought to produce addi- tional    evidence. They moved an application under Order 41 Rule 27 C.P.C. to accept a certified copy of the judgment dated September 15, 1928 of the Chief Court of the erstwhile Jaipur State and a copy of the statement of Narayan recorded in that suit. The High Court accepted the judgment of     the Chief Court of Jaipur State, but rejected the Statement of Narayan.

During the     pendency of the appeal in the     High Court Suraj Narain died and his name was deleted from the appeal memo. Ganga Ram also died and his wife and son were brought on record as his legal representatives.

The     principal question argued before the     High Court related     to the validity of sale deed (Ex. 3) and will    (Ex. 4) which formed the foundation of Gangaram's title to     the suit property. The High Court rejected both the documents. The sale deed Ex. 3 was rejected as inadmissible in    evi- dence. The will Ex. 4 was disregarded in view of the suspi- cious circumstances surrounding its execution. These conclu- sions would have been sufficient for allowing the appeal and dismissing the suit. But the High Court did not do that     and instead rounded off the discussion as follows: "The plaintiff is undoubtedly in possesion of the Baghichi and it cannot be gainsaid that he was not a party to the previous litigation and he is not claiming the property     though     his father Narayan or his brother Bhonrilal. Apart from everything,     the suit does not seem to have been filed     against Kalyan Singh and another in a representative capacity in     ac- cordance    with Order 1 Rule 3 Civil Procedure Code. There was no application for permission to sue them in their representative capacity. Therefore, in spite of my having reached     the conclusion regarding the document Ex. 3 and 4 against the plaintiff respondents I am     not inclined    to interfere with the decree of     the court below though I do feel that the litiga- tion against Kalyan Singh and another in their individual capacity was a fruitless exercise. ' '

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Kalyan Singh the defendant has now appealed     challenging the decree of the High Court.

Counsel for the appellant has a two fold contention. In the first place, it was argued that the Darjee community in their representative suit against Bhonrilal has obtained a decree declaring their title to the property and that decree could not be nullified by the present suit against individu- als. The High Court instead of holding that the plaintiffs suit was a fruitless exercise, ought to have dismissed     the suit. Secondly, it was urged that the High    Court after discarding the sale deed Ex. 3 and will Ex. 4 ought to    have non-suited the plaintiff since there is no other material whatever to support his title to the property. Normally, these contentions would have been accepted without much discussion, but we have to consider the submis- sions of counsel for the respondents.     He challenged     the correctness of the findings on all material points. It     is, therefore, necessary to examine the judgment     in greater detail.

We will first consider whether the previous suit against Bhonrilal was a representative suit on behalf of the Darjee community. It    was argued for the respondents that it     was only a suit on behalf of the 'Panchayat Darjian' and not a representative    suit on behalf of the Darjee community.     Our attention was drawn to the trail court order dated November

16. 1962 in the present suit. Thereunder the trial court has rejected an application for amendment of written statement. It was observed that the defendants in the affidavit    have not denied allegations of the plaintiff that the    suit against Bhonrilal was not in a representative capacity.     But the Court made that observation only on perusing the affida- vits of parties for a limited purpose of considering     the amendment application    and not on an issue arising out of pleadings in the suit. In fact, the court has not framed any issue on that controversy although the defendant in     the written statement has asserted that it was a representative suit on behalf of the Darjee community. The view expressed in the order dated November 1962 is therefore, unacceptable. Counsel for the appellant however, relied    upon state- ments from judgments in the previous suit in support of     his contention that it was representative suit on behalf of     the Darjee    community. Ex.     A-2 is the judgment of the trial court. It begins with a sentence: "This is a representative suit by the plaintiffs Kalyan Singh and Suraj     Narayan on behalf    of the Panchayat Darjian for recovery of possession of the

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baghichi." But this statement may not help counsel for     the appellant, since the suit was said to be on behalf of     the 'Panchayat Darjian' and not Darjee community. Ex. A-4 is the High court judgment in the second appeal arising out of that suit. There the High court has stated: "That the suit     was brought by Kalyan Singh and another against Bhonrilal by the representatives     of Darjee community." Here again we do     not find much support to the appellant. The suit might have been instituted by representatives of the Darjee community,     but that by itself was not sufficient to constitute the suit as a representative suit. For a representative suit,     the court's permission under Order 1 Rule 8 of the Code of Civil Procedure is mandatory. One does not know whether any    such permission was obtained. The pleading in that suit or     the order obtained under Order 1 Rule 8 has not been produced. There is no other evidence to support     the contention of either of the parties. In the absence of necessery material the conclusion one way or the other as to the nature of     the previous suit will not be justified.

But that does not mean that the plaintiff could succeed ignoring the judgment and decree in the suit against Bhonri- lal. It must be stated that any member of a community     may successfully bring a suit to assert his right in the commu- nity property    or for protecting such property     by seeking removal     of encroachments thereform. Such a suit need     not comply    with the requirements of Order 1 Rule 8. The    suit against     Bhonrilal even if it was not a representative    suit on behalf of the Darjee community would be a suit of    this category. Kalyan Singh and another claimed that the baghichi was their community property and Bhonrilal was a trespasser. They brought the suit to recover possession from Bhonrilal. The suit was decreed. The rival title claimed by Bhonrilal by adverse possession was negatived. So long as that decree operates it would be futile to decree the present suit.     The observation of     the High Court that the present suit is a fruitless exercise could therefore, be sustained on    this ground if not for the reasons stated.

The validity of the will may now be considered. On    this question, the High Court said:

"Having read the evidence of these witnesses I am satisfied that according to the ordinary standard of proving a document the document Ex. 4 can be said to have been proved. Howev- er, there are two disturbing elements    sur- rounding the execution of the will. The first striking    feature     of this will is that    even though the wife of Gaurilal was living at 364

the time as she had survived him, no provision whatsoever had been made regarding her by Gaurilal    in the alleged will Ex. 4. Then     the second striking feature is that    even though litigation had been going on almost for years this will had not been referred to by anyone. In the first suit Narain was a defendant he had not contested the suit and the proceedings remained ex parte against him. However, he was called by the Court and     his statement     was recorded.     The judgment of the Jaipur Chief Court shows that he had laid no claim to     the property    and took the position that he was a Pujari at the baghichi. Then subsequently when suit was filed by the Darzi community against Bhonrilal, no reference came to be made to this will Ex. 4 Learned counsel for the     re- spondents, as I have already observed,    sug- gested that Narain or Bhonrilal could not be expected to make any reference to the will as that would be detrimental to the stand taken by them. The argument, no doubt, looks attrac- tive, but if it is examined in the light of none other than the statement of Ganga Ram himself it cannot stand the scrutiny. Gangaram had referred to the earlier litigation in     the plait, but when he entered the witnesses     box he had taken a somersault. He was asked wheth- er he was aware of the previous litigation and he said, he did not know of it. He was    then questioned with    reference to para 5 of     the plaint as to how the facts had been mentioned by him therein and he kept mum    and had no answer. He also admitted that it     was Narain who had given him the document, Ex. 4 some 5 or 7 years after the death of Gaurilal    i.e. some 30 or 35 years back. In that situation there was no mention of the alleged will in any of the two previous suits.    It is    also remarkable that    even upto the     High Court Bhonrilal had asserted his own possession over the property and had also obtained a    stay order on payment of mesne profits vide Ex. A-

7.

XXXXX     XXXXXX XXXXXXX

The will is, therefore, not free from suspi- cion and it has not been dispelled. My    con- science in this regard is not satisfied     and therefore, I am unable to hold that Ex. 4     was the last will of Gaurilal in favour of Ganga Ram".

Counsel     for the respondents however, urged that the plain- tiff has

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proved    its execution by producing one of the attestors     and the scribe and their evidence has not been disbelieved by the High Court. We were referred, in    particular, to     the evidence of plaintiff PW 3, Ramdeo PW 4 and Sham Sunder PW

7. We have perused their testimony and we are of the opinion that it is far from satisfactory. The plaintiff has deposed that Gaurilal    was issueless and hence     executed the    will bequeathing the property to him. Ramdeo claims to be     the attesting witness to the will. He has stated that the plain- tiff was 10-11 years old when the will was executed. But the plaintiff himself has deposed that he was then a boy of     2-3 years. Ramdeo has given his age as 55 years when he deposed in the court on January 5, 1962. If we go by that age Ramdeo must have been a boy of 9 years when he attested the will in 19 16 Sham Sundar claims to be the scribe of the will. He has deposed that after he wrote the will attestation     was made by witnesses but he has not named any one of them. He has not even referred to Ramdeo as an attesting witness. It was said that the plaintiff was adopted son of Gauri- lal, and was thus the object of his affection for the exclu- sive bequest. But there is no reference in the will that he was the adopted son. The plaint also makes no reference to his adoption by Gaurilal. Nor there is any other material to lend credence    to such relationship. On the contrary,     the Temple register shows that he was the son of Narayana. Even if we proceed on the plea that the plaintiff was adopted son of Gaurilal, there seems to be little reason to justify the bequest exclusively m his favour. It is now     not in dispute that Gaurilal's wife was living at the time of execution of the will, but no provision was made for     her maintenance. In the normal course, the wife would be     the first to be thought of by the husband executing a will.     She should    have been the first beneficiary of her husband's bounty unless there was odium or embittered feelings between them. But there is no such evidence and it was not even     the plaintiff's case that their relationship was strained.     Why then she should be excluded altogether? It is    indeed    baf- fling since it runs counter to our societal values. Yet     there is another circumstance    which tells against the genuineness of the will. The will purports to have    been executed in 1916 and Gangaram instituted the suit in 1959. The will had not seen the light of the day till the institu- tion of the suit. It is not as if Gangaram or his brother or father    had no opportunity to produce the will to assert rights    over the property in question.     The plaintiff     has stated    in his evidence that his father Narayan handed    over the will to

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him. Narayan was therefore, aware of the execution of     the will. Yet he did not disclose it to the court in the    suit against     him. His statement was recorded on July 8,    1925 wherein     he had admitted that he was only the Pujari of     the temple and the wife of Baldeo sold the property. He did     not say that his son Gangaram became owner of the property under the will executed by Gaurilal. In ,he second suit, Bhonrilal set up independent title to the property by adverse posses- sion. That claim was totally     destructive of Gangaram's title. It cannot be said that Gangaram was ignorant of    that litigation till he filed the suit. His evidence does     not lead to that inference. In fact the plaint averments and his statements in    the court lead to the    contrary. Gangaram, however, made no attempt to produce the will in that suit. In the     long period of 43 years, none made any     attempt to rely upon the will against the claim of the Darji community when the community representatives have successfully brought two suits. This would not have been the natural conduct of person if the will had been really in existence. It has been said almost too frequently to require repe- tition that a will is one of the most solemn documents known to law. The executant of the will cannot be called to deny the execution or to explain the circumstances in which it was executed. It is, therefore, essential that     trustworthy and unimpeachable evidence should be produced     before     the court to establish genuineness and authenticity of the will. It must be stated that the factum of execution and validity of the will cannot be determined merely by considering     the evidence produced by the propounder. In order to judge     the credibility of witnesses and disengage the truth from false- hood the court is not confined only to their testimony     and demeanour. It would be open to the court to consider circum- stances brought out in the evidence or which appear from the nature    and contents of the documents itself. It would be also open to the court to look into    surrounding circum- stances as well as inherent improbabilities of the case to reach a proper conclusion on the nature of the evidence adduced by the party.

In    H. Venkatachala lyengar v. B.N. Thimmajamma & Ors., [1959]    Supp. 1 SCR 426 Gajendragarkar, J., as he then    was, has observed that although the mode of proving a will     did not ordinarily differ from that of proving any other docu- ment, nonetheless it requires an element of solemnity in the decision on the question as to whether the document    pro- pounded is proved as the last will and testament of departed testator. Where there are suspicious circumstances, the onus would be on the propounder to explain them to the satisfac- tion of the court before the will could be    accepted as genuine. Where there are

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suspicious circumstances, the Court would naturally expect that all legitimate suspicions should be completely removed before    the document is accepted as the last will of     the testator. These principles have been     reiterated in     the subsequent decisions of this Court in Rani Purnima Devi & Anr. v. V. Kumar Khagendra Narayan Dev & Anr., [1962] 3     SCR 195 and Smt. Indu Bala Bose & Ors. v. Manindra Chandra    Bose & Anr., [1982] 1 SCC 20.

The     Privy Council in Mr. Biro v. Atma Ram & Ors.,     AIR 1937 PC 10 1 had an occasion to consider an analogous    case where the wife was practically disinherited and there     was unexplained delay in producing the will in public. There the alleged     will by a testator gave only a life estate to     his daughter who was the only child and who was to get    some property at her marriage. The bulk of the estate was vested in the widow of the testator and three other women, namely, his mother, his step-mother and his paternal    aunt. These women though entitled under the Hindu Law only     to mainte- nance, were made joint owners equally with the widow of     the testator. None of the devisees could get the estate parti- tioned or alienate it for necessity. It was however, provid- ed that the lady, who survived the other three devisees, would become the absolute owner of the estate. The widow of the testator would not get her husband's estate, if     she predeceased any of her co-devisees. The will was not    pro- duced until 22 years after its execution though there    were occasions to produce it, had it been in existence. Consider- ing these circumstances, the Privy Council observed (at 104):

"It is most unlikely that a person having a wife and     a minor unmarried daughter,     who should be the objects of his affection, would make a will which would practically disinherit them.

That the testament is unnatural     and

runs counter to the ordinary sentiments of persons, having a status in society similar to that of Harbans     Lal, cannot be seriously disputed.     But this is not the only circum- stances which tells against its    genuineness. The will     purports to have been    executed on 24th August 1900, and the testator died within a     month of that date. But it is strange    that it was not produced until 1922, after the com- mencement     of the present     litigation. During this long period of 22 years, which inter- vened, there were occasions when the widow or her advisers could have produced the document, if it had been in existence; but they did     not do so ...... "

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,The will in the present case, constituting the plaintiff as a sole legatee with no right whatever to the testator's wife seems to be unnatural. It casts a serious doubt on genuine- ness of the will. The will has not been produced for    very many years before the court or public authorities    even though there were occasions to produce it for asserting plaintiff's title to the property. The plaintiff was     re- quired    to remove these suspicious circumstances by placing satisfactory material on record. He has failed to discharge his duty. We therefore, concur with the conclusion of     the High Court and reject the will as not genuine. This takes us to the validity of the sale deed Ex. 3. The High Court rejected the document    with the following observations:

"Ex. 3 is neither a certified    copy

given under any     of the     provisions of     the Evidence    Act nor is it a copy made from     the original    by any mechanical process. It    also does not appear to have been made or compared from the original as there is no    verification or endorsement of the kind and it does     not come under clauses 1 or 5 of section 63     ei- ther. No one has given the oral account of the contents of the original document. If in place of primary evidence secondary    evidence is admitted    without any objection at the proper time then the parties    are precluded    from raising the question that the document has not been proved by primary evidence but by second- ary evidence. But where there is no secondary evidence as contemplated by Section 66 of     the Evidence Act then the document cannot be    said to have been proved either by primary evidence or by secondary evidence."

The     basis of the plaintiff's title relates back to     the sale deed dated Baisakh Sudi 12 Samvat 1932 (1875 A.D.). It was said to be a registered sale deed by which Bhagala Girdhari purported to have sold the baghichi to Raghunath Brahmin. The plaintiff has not produced the original    sale deed. Nor a certified copy of it has been produced. All that we find from the record is an ordinary copy of a sale deed Ex. 3 produced by Gopal Prasad PW 1. Gopal Prasad has stated that Ex. 3 was a copy submitted by the parties     along    with the original sale deed for registration. The original    sale deed was said to have been returned to the party after     its registration and a copy was kept in the file. But Gopal Prasad    has no personal knowledge about the registration of the sale deed, nor he has produced the register to indicate that that sale deed was registered and a copy was kept in the record. Ex. 3 produced

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by him does not bear any endorsement to the effect that it was a true copy of the original.

The     High Court said, and in our opinion very rightly, that Ex. 3 could not be regarded as    secondary evidence. Section     63 of the Evidence Act mentions five kinds of    sec- ondary evidences. Clause (1), (2) and (3) refer to copies of documents; clause (4) refers to counterparts of documents and clause (5) refers to oral accounts of the    contents of documents. Correctness of certified copies referred to in clause    (1) is presumed under Section 79; but that of other copies    must be proved by proper evidence. A certified    copy of a registered sale deed may be produced as secondary evidence in the absence of the original. But in the present case Ex. 3 is not a certified copy. It is just an ordinary copy. There is also no evidence regarding contents of     the original sale deed. Ex. 3 cannot, therefore, be considered as secondary evidence. The appellate Court has a right     and duty to exclude such evidence.

In    the result, the appeal is allowed, modifying     the judgment and decree of the High Court. The judgment     and decree of the trial court as affirmed by the District Court are set aside and the plaintiff's suit is dismissed. Since the    original plaintiff died leaving     behind     his widow during pendency of the appeal before the High Court, we make no order as to costs.

R.N.J.     Appeal

allowed.