RAJ KUMARI Vs. LAL CHAND

JUDGEMENT

(1.) THIS revision petition is directed against the order of the trial Court whereby application filed by the plaintiff to prove Memorandum of partition dated 4. 2. 1978 by way of secondary evidence, was dismissed.

(2.) PLAINTIFF (petitioner herein) filed a suit, against her brother, Lal Chand, for possession by way of partition of the properties as fully detailed in the body of the plaint, on the allegation that her father, Hem Raj, was the owner and on his death, she became entitled to inherit the property to the extent of half share. Defendant (respondent herein) in his written statement set up a Will alleged to have been executed by the deceased-father, in his favour. In the replication plaintiff alleged that the defendant along with his father and uncle executed memorandum of partition dated 4. 2. 1978. During the course of evidence, an application was filed by the plaintiff to prove memorandum of partition by way of secondary evidence. On contest, this application was dismissed by the trial Court primarily on the ground that plaintiff had no-where alleged in her application that as to how the document was lost, destroyed or was in possession of the defendant. The trial Court further held that "secondary evidence can only be lead in-case the original is in possession of the person, against whom the document is sought to be produced or the original has been lost or destroyed. But there is no such plea of the plaintiff in her application. This order is now being impugned by the plaintiff in the present revision petition.

(3.) HAVING heard the learned counsel for the parties, I am of the view that the revision petition deserves to succeed. Plaintiff in her pleadings made a specific mention of the memorandum of partition. In her application to prove that document by way of secondary evidence, she stated that there is no other person alive except the defendant, who executed and signed the document and the entry of the same in the petition-writer's register. In reply to this application, defendant denied having executed this document. On the application, the trial Court framed an issue "whether the applicant is entitled to secondary evidence regarding the memo of partition dated 4. 2. 1978. " In support of this issue, plaintiff gave her statement as A. W. 1 and also examined the petition-writer in whose register the entry of this document was made. Petition-writer in his statement, stated that the document in original, along with its copy, was given to Hem Raj and Ram Nath, i. e. father and uncle of the parties. Plaintiff in her statement stated that She made enquiries from the sons and daughters of Ram Nath, but they showed their ignorance with regard to whereabouts of the document in question. Hem Raj, father, is dead and the defendant has denied the execution of the document. Thus, the plaintiff has successfully proved on record that the original document has been lost. Secondary evidence is permissible when the original document has been destroyed or lost or when the party offering evidence of its contents, cannot for any reason, not arising from his own default or neglect, produce it in reasonable time. A party seeking permission to produce secondary evidence regarding a document, is not required to prove the loss of document in absolute terms. The trial Court while dismissing the application seems to have lost sight of the fact that once it allowed the parties to lead evidence on the issue framed on the basis of allegations made in the application, then the averments made therein have to be read in the light of evidence produced on the said issue. In the statement of the petition-writer as well as in the statement of the plaintiff, it has come on record that plaintiff was not in a position to produce the document because the persons in whose possession the document could be found, are either dead or have denied the execution of the document. In this view of the matter, the order of the trial Court cannot be sustained.