RAJATHI Vs. ARUKKANI AMMAL

JUDGEMENT

(1.) THIS revision petition has been preferred against the order of the court below dated 29.3.2000 made in I.A.No.23 of 2000 in O.S.No.22 of 1994, rejecting the petitioner's application to receive the document styled as partition list between one Ganapathy Udayar and his sons dated 10.6.1992 as the secondary evidence. The court below while rejecting the application was of the view that the said document was not a registered one, that when no share was allotted to the respondent as per the said document, and the said document said to have been contained thump impression of the respondent, it is doubtful as to whether the document would bind the respondent, that the document does not disclose as to with whom the original has been entrusted, that the contents of the said document can be proved only by examining the persons who are concerned with the said document, that the said document can be proved only by examining the vendor of the petitioner namely, Mr.Ravichandran and therefore, the said document cannot be accepted as the secondary evidence under Section 65 of the Indian Evidence Act. Assailing the said order of the court below, learned counsel for the petitioner contended that while rejecting the petitioner's application to receive the document in question, the court below unnecessarily went into the merits of the document, that when the vendor of the petitioner was not cooperating in the matter of production of original, the petitioner had no other option, except to rely upon the said document as the secondary evidence by marking a photo copy of it, that marking of the said document, subject to proof, would not have caused any prejudice to the respondent, that the petitioner complied with the provision under Section 66 of the Indian Evidence Act and therefore, he was entitled to rely upon the said document, by virtue of application or the provision under Section 65(a) of the Indian Evidence Act.

(2.) AS against the said contention, learned counsel for the respondent would contend that when the respondent was not allotted any share under the document in question and in the absence of issuance of notice to the vendor of the petitioner namely, Mr.Ravichandran, it cannot be held that the petitioner has complied with the provision under Section 66 of the Indian Evidence Act, that admittedly no share was allotted as per the document in question to the respondent, in such circumstances, when the thumb impression of the respondent was not required, it how it is claimed that the document in question contains the thumb impression of the respondent. According to the learned counsel the said document being not registered one, the original itself could not have been admitted in evidence and therefore, a photo copy of the said document cannot be permitted to be taken. According to the learned counsel, at best, the said document can be proved only through Mr.Ravichandran.