- 1 - NC: 2025:KHC-D:2025 WP No. 107218 of 2024 IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH DATED THIS THE 1ST DAY OF FEBRUARY, 2025 BEFORE THE HON'BLE MR. JUSTICE SURAJ GOVINDARAJ WRIT PETITION NO. 107218 OF 2024 (GM-CPC) BETWEEN 1. K. GURUBASAVARAJ S/O. K. SHANKARGOUDA, AGE: 25 YEARS, R/O. UTTANGI VILLAGE, HADAGALI TALUK, DISTRICT: BALLARY-583219. 2. K. TATANAGOUDA S/O. K. CHIDANANDAGOUDA, AGE: 23 YEARS, R/O. UTTANGI VILLAGE, HADAGALI TALUK, DISTRICT: BALLARY-583219. ...PETITIONERS (BY SRI. J.S. SHETTY, ADVOCATE) AND 1. SUSHEELAMMA W/O. SHIVAPUTRAPPA TIMMALAPURAD, AGE: 47 YEARS, R/O. UTTANGI VILLAGE, HADAGALI TALUK, DISTRICT: BALLARY-583219. 2. K. SHEKARA GOUDA S/O. K. CHANDRAGOUDA, AGE: 52 YEARS, R/O. UTTANGI VILLAGE, HADAGALI TALUK, DISTRICT BALLARY-583219. 3. K. SHANKARGOUDA S/O. K. CHANDRAGOUDA AGE: 46 YEARS, ASHPAK KASHIMSA MALAGALADINNI Digitally signed by ASHPAK KASHIMSA MALAGALADINNI Location: High court of Karnataka, Dharwad Bench, Dharwad Date: 2025.02.04 15:45:15 +0530 - 2 - NC: 2025:KHC-D:2025 WP No. 107218 of 2024 R/O. UTTANGI VILLAGE, HADAGALI TALUK, DISTRICT: BALLARY-583219. 4. K. CHIDANANDGOUDA S/O. K. CHANDRAGOUDA, AGE: 49 YEARS, R/O. UTTANGI VILLAGE, HADAGALI TALUK, DISTRICT: BALLARY-583219. ..RESPONDENTS (BY SRI.N.P. VIVEKMEHTA, ADVOCATE FOR R1; NOTICE TO R2-R4 IS DISPENSED WITH) THIS WRIT PETITION IS FILED UNDER ARTICLE 227 OF THE CONSTITUTION OF INDIA PRAYING TO ISSUE A WRIT OF CERTIORARI TO QUASH THE ORDER DATED 15.11.2024, PASSED ON I.A.NO.8, FILED BY THE PETITIONERS UNDER SECTION 65 AND 66 OF INDIAN EVIDENCE ACT IN R.A.NO.24/2022, BY THE SENIOR CIVIL JUDGE AND J.M.F.C., AT HAGARIBOMMANAHALLI, THE COPY OF WHICH HAS BEEN PRODUCED HERE WITH AT ANNEXURE-A; ANY OTHER WRIT OR DIRECTION WHICH THIS HONORABLE COURT DEEMS FIT TO GRANT MAY KINDLY BE GRANTED IN FAVOUR OF THE PETITIONER BY ALLOWING THIS WRIT PETITION WITH THE COST THROUGHOUT IN THE ENDS OF JUSTICE AND EQUITY. THIS PETITION HAVING BEEN HEARD AND RESERVED FOR ORDERS ON 01.02.2025, COMING ON FOR PRONOUNCEMENT OF ORDERS THIS DAY, THE COURT MADE THE FOLLOWING: ORAL ORDER 1. The petitioners are before this Court seeking for the following reliefs : (a) Issue a writ of certiorari to quash the order dated 15.11.2024 passed on I.A.no.8 filed by the petitioners under Sections 65 and 66 of Indian Evidence Act in R.A.No.24/2022 by the Senior Civil Judge and JMFC, Hagaribommanahalli the copy of which has been produced herewith at Annexure-A. - 3 - NC: 2025:KHC-D:2025 WP No. 107218 of 2024 (b) Any other writ or direction which this Hon’ble Court deems fit to grant may kindly be granted in favour of the petitioners by allowing this writ petition with the cost throughout in the ends of justice and equity. 2. Respondent No.1 had filed a suit in O.S.No.57 of 2010 for partition and separate possession of the suit schedule properties, which came to be decreed holding that the plaintiff is entitled to 1/5th share so also defendants No.1 to 4 are also entitled to 1/5th share directing drawing of the preliminary decree on 02.04.2011. 3. Challenging the said Judgment, the 1st defendant had filed an appeal in R.A.No.48 of 2011. During the pendency of which, the 1st defendant expired, allegedly leaving a Will in favour of his grandchildren bequeathing his share in the suit properties in favour of those grandchildren and as such, they were brought on record as his legal representatives in the first appeal. - 4 - NC: 2025:KHC-D:2025 WP No. 107218 of 2024 4. The first appellate Court had confirmed the Judgment and Decree passed by the original Court. Challenging the same, a second appeal in RSA No.6135 of 2012(PAR) was filed by the defendants. The plaintiff has also filed a cross-objection in RSA Crob. No.100001 of 2014 (POR and POS) disputing the Will and findings thereon. 5. This Court was pleased to set aside the Judgment insofar as the finding recorded, declaring that the petitioner Nos.1 and 2 are entitled to the share of deceased-defendant No.1 as legatees and remanding the matter to the first appellate Court to provide an opportunity to the parties to adduce evidence. Evidence having been led, the petitioners were unable to produce the original of the Will and therefore filed an application in I.A.No.8 under Sections 65 and 66 of the Indian Evidence Act now Section 58 of the Bharatiya Sakshya Adhiniyam, 2023 seeking for secondary evidence on the Will by - 5 - NC: 2025:KHC-D:2025 WP No. 107218 of 2024 production of certified copies. The said application was objected to and the Trial Court, vide its impugned order dated 15.11.2024 dismissed the application on the ground that the Will by itself has also the signature of the Testator and the attesting witnesses, those signatures being denied and disputed, the signatures, would have to be sent for expert opinion, which would have to be in the form of the original Will. 6. The original Will not having been produced by the petitioners, secondary evidence could not be permitted to be laid insofar as such disputed Will is concerned. It is challenging the same, the petitioners are before this Court. 7. Learned counsel Sri J.S.Shetty, appearing for the petitioners would submit that this Court in RSA.No.6135 of 2012 having permitted the petitioners to lead evidence on the Will, it was the bounden duty on part of the trial Court to have - 6 - NC: 2025:KHC-D:2025 WP No. 107218 of 2024 permitted secondary evidence on the Will when the original Will was not available. The Will being a registered document, the registration not being in dispute, a certified copy of the registered document ought to be permitted to be produced as secondary evidence. 8. In this regard, he relies upon a decision of Hon’ble Apex Court in the case of Jagmail Singh and Another vs. Karamjit Singh and Others, reported in (2020) 5 SCC 178. More particularly, in paragraph Nos.11, 14, 15 and 16 thereof, which are reproduced herein for easy reference. “11. A perusal of Section 65 makes it clear that secondary evidence may be given with regard to existence, condition or the contents of a document when the original is shown or appears to be in possession or power against whom the document is sought to be produced, or of any person out of reach of, or not subject to, the process of the court, or of any person legally bound to produce it, and when, after notice mentioned in Section 66 such person does not produce it. It is a settled position of law that for secondary evidence to be admitted foundational evidence has to be given being the reasons as to why the original evidence has not been furnished. 14. It is trite that under the Evidence Act, 1872 facts have to be established by primary evidence - 7 - NC: 2025:KHC-D:2025 WP No. 107218 of 2024 and secondary evidence is only an exception to the rule for which foundational facts have to be established to account for the existence of the primary evidence. In H. Siddiqui v. A. Ramalingam, this Court reiterated that where original documents are not produced without a plausible reason and factual foundation for laying secondary evidence not established it is not permissible for the court to allow a party to adduce secondary evidence. 15. In the case at hand, it is imperative to appreciate the evidence of the witnesses as it is only after scrutinising the same opinion can be found as to the existence, loss or destruction of the original will. While both the revenue officials failed to produce the original will, upon perusal of the cross-examination it is clear that neither of the officials has unequivocally denied the existence of the will. PW 3 Rakesh Kumar stated during his cross-examination that there was another patwari in that area and he was unaware if such will was presented before the other patwari. He went on to state that this matter was 25 years old and he was no longer posted in that area and, therefore, could not trace the will. Moreover, PW 4 went on to admit that, “there was registered will which was entered. There was a katchi (unregistered) will of Babu Singh was handed over to Rakesh Kumar Patwari for entering the mutation…”. Furthermore, the prima facie evidence of existence of the will is established from the examination of PW 1, Darshan Singh, who is the scribe of the will in question and deposed as under: “I have seen the will dated 24-1-1989 which bears my signature as scribe and as well as witness.” 16. In view of the aforesaid factual situation prevailing in the case at hand, it is clear that the factual foundation to establish the right to give secondary evidence was laid down by the appellants and thus the High Court ought to have given them an opportunity to lead secondary evidence. The High Court committed grave error of law without - 8 - NC: 2025:KHC-D:2025 WP No. 107218 of 2024 properly evaluating the evidence and holding that the prerequisite condition i.e. existence of will remained unestablished on record and thereby denied an opportunity to the appellants to produce secondary evidence.” 9. By relying on Jagmail Singh’s case, he submits that the original of the Will not being available, secondary evidence ought to be permitted. 10. The learned counsel for respondent No.1 would however submit that the Will has come to light only after the Decree was passed by the trial Court. The original of the Will has never been produced before any Court or authority. In fact, even before this Court in the RSA, a copy of the Will had been produced and it is taking note of the same that this Court had permitted the appellants therein, the petitioners herein, to lead evidence in order to establish the Will. 11. He submitted that instead of producing the original Will and leading cogent evidence in relation thereto, the petitioners have only filed an application for - 9 - NC: 2025:KHC-D:2025 WP No. 107218 of 2024 secondary evidence, which is not maintainable. On this ground, it is submitted that the above petition is required to be dismissed. 12. Heard, Sri J. S. Shetty, learned counsel for the petitioners, Sri N. P. Vivek Mehta, learned counsel for respondent No. 1 and perused the papers. 13. The short question that would arise for consideration is whether secondary evidence could be permitted to be led in respect of a Will. 14. Section 68 of the Indian Evidence Act now Section 67 of the Bharatiya Sakshya Adhiniyam, 2023 mandates that a document like a Will requiring attesting witnesses is required to be approved in the manner as per the law. Thus it would be required for the original Will to be produced and for the attesting witnesses to identify their respective signatures and the contents of the document. Section 65 of the Indian Evidence Act, now Section 58 of the Bharatiya - 10 - NC: 2025:KHC-D:2025 WP No. 107218 of 2024 Sakshya Adhiniyam, 2023 provides for leading of secondary evidence in certain circumstances. 15. As held by the Hon’ble Apex Court in Jagmail Singh’s case, secondary evidence could be given with regard to existence, condition or the contents of a document, when the original is shown or appears to be in possession or power against whom the document is sought to be produced i.e., to say, the petitioners could lead the secondary evidence on the Will, if they were to show that the original of the Will was in possession of the respondents herein or if the said Will was in possession of a person out of reach of, or not subject to, the process of the Court, or of any person legally bound to produce it, and when, such person does not produce it. 16. On repeated enquiry with learned counsel Sri J.S. Shetty as to where the original Will is and who has the custody of the original Will, he is unable to make - 11 - NC: 2025:KHC-D:2025 WP No. 107218 of 2024 any statement, except to state that the original Will is not available. 17. It is required for a party seeking to lead secondary evidence, which is an exception to the rule of producing the original document, to make out foundational facts. It was required therefore for the petitioners to categorically aver and establish as to who has possession of the Will and why the petitioners are unable to produce the same. Merely stating that the petitioners are unable to produce would not adhere to the benefit of the petitioners. 18. It is required for the person seeking to produce secondary evidence to clearly aver and establish that the original of the document sought cannot be produced, due to the same being in the custody of a person, who cannot be directed to so produce or that it is in the custody of a person against whom it is proposed to be used, in the suit, such person not - 12 - NC: 2025:KHC-D:2025 WP No. 107218 of 2024 having produced the document despite being duty bound. 19. The foundational facts are essential to be established at the time of filing of an application for leading secondary evidence, in absence whereof, no application for secondary evidence can be considered. 20. Thus, I answer point formulated by holding that though secondary evidence in respect of a Will can be permitted; it would be required for the person seeking to produce the secondary evidence to establish the foundational facts as afore detailed. Firstly, that such person is not in possession of the original document. Secondly, the said document is in custody of a person who cannot be directed to produce or that document is in the custody of the person against whom it is proposed to be used in the suit, who has not produced the same, despite having custody and being called upon to produce it. - 13 - NC: 2025:KHC-D:2025 WP No. 107218 of 2024 21. In view of my finding above, the petitioners in the present case not having established as to who is in possession of the original Will. Let alone such person not producing the Will, the basic foundational facts have not been established by the petitioners to permit them to lead secondary evidence. No grounds being made out, the petition stands dismissed. Sd/- (SURAJ GOVINDARAJ) JUDGE CKK List No.: 1 Sl No.: 2