KALYAN SINGH, LONDON TRAINED, CUTTER, JOHRI BAZAR, JAIPURversusSMT. CHHOTI AND ORS.

          KAL YAN SINGH, LONDON TRAINED, CUTTER,
A
                    JOHRI BAZAR, JAIPUR
                             v.
                   SMT. CHHOTI AND ORS.

                            DECEMBER I, 1989
B
      [SABYASACHI MUKHARJI, K. JAGANNATHA SHETTY
                  AND A.M. AHMADI, JJ.]

          Indian Succession Act: Will-Execution and validity-Open to
    court to look into surrounding circumstances brought out in evidence.
c        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.
D
          This case is concerned with a garden with temples and other
    buildings at Jaipur claimed to be the property of Darjee (Tailors) com-
    munity popularly known as 'Bagichi Darjian'. It was claimed by diffe-
    rent persons at different intervals on different grounds. One Narayan,
    Pujari on the temples was said to have sold the Bagichi in favour of one
E   Khawas Bala Bux. Darjee community filed a suit for cancellation of
    that sale and declaration of its right to administer the property. The
    Trial Court dismissed the suit bnt on appeal District Judge decreed it
    and this decree was affirmed 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
F   revenue records as owner of the Bagichi. On behalf of the Darjee com-
    munity 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.
G
           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
H   1916A.D.inhisfavour.

                                       356
                    KALYAN SINGH v. SMT. CHHOTI                       357

      The Trial Judge decreed the suit in his favour. The defendants'
                                                                              A
appeal was dismissed hy 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 wit_h the decree
of the Court below though holding that the plaintiff's suit was a fruitless   B
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 discard-
ing the Sale Deed and the Will ought to have non-suited the plaintiff         c
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          D
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 requirements of Order I Rule 8 C.P.C. and the suit
against Bhonrilal even if it was not a representatives suit on behalf of
the Darjee Community would be a suit of this category. [363D-EJ               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        F
of witnesses 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       G
the nature of the evidence adduced by the party. [366E-FI

      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            H
        358         SUPREME COURT REPORTS                 [ 1989] Supp. 2 S.C.R.

        public authorities even though there were occasions to produce it for
    A
        asserting plaintiff's title to the property. The plaintiff was required
        to remove these suspicious circumstances by placing satisfactory
        material on record. He bas failed to discharge his duty. This Court
        concurs with the conclusion of the High Court and rejects the Will
        as not genuine. [368A-B I
    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 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
    c   registered sale deed may be produced as secondary evidence in the
        absence of the original. [369B-C]

           H. Venkatachala Iyengar v. B.N. Thimmajamma & Ors., [1959]
      Supp. I SCR 426; Rani Purnima Devi & Anr. v. V. Kumar Khagendra
    D Narayan Dev & Anr., [1962] 3 SCR 195; Smt. lndu Bala Bose & Ors. v.
      Manindra Chandra Bose & Anr., [1982] 1 SCC- 20 and Mst. Biro v.
      Atma Ram & Ors., AIR 1937 PC 101.

              CIVIL APPELLATE JURISDICTION: Civil Appeal No.
        135 l(N) of 1973.
"
    E
             From the Judgment and Decree dated 14.3.1973 of the Rajas-
        than High Court in S.B. Civil Second Appeal No. 201of1966.

              K.K Jain, Pramod Dayal and A.D. Sanger for the Appellant.

    F        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
    G   from the judgment of the Rajasthan High Court dated March 14, 1973
        in S.B. (Civil) 2nd Appeal No. 201 of 1966.

            The case has a long history. It is concerned with a garden
      (b11ghichi) with temples of Sri Satyanaraya'nji, Sri Mahadeoji and
      other buildings at Motidungri Road in Jaipur. The local Darjees
    H (Tailors) claim that it is their community property. According to them
             KALYAN SINGH v. SMT. CHHOTI [SHETTY, J.]                359

it is known as 'Baghichi Darjian' since it belongs to Darji community.
The property however, was the subject-matter of several litigations. It      A
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 possession of the         B
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           c
dismissed the suit but on appeal the District Judge decreed it. That
decree was affirmed by the former Chief Court, Jaipur by judgment
Ex. A 8 dated September 15, 1928.

       Thereafter, for about 23 years there was no problem and there         D
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              E
Narayan to bring an action for ejectment of Bhonrilal. ln 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      F
Judge, Jaipur City. Bhclnrilal preferred,Second Apeal No. SC of 1958
in the High Court of Rajksthan and obtained stay of delivery of posses-
sion on depositing mesfie 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 recognised.
                                                                             G
     Even before dispasal of the aforesaid second appeal, Ganga Ram
the younger brother of I;lhonrilal:started another round of litigatiop.
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 right claimed by him. The suit was
primarily against the present appellant Kalyan Singh and Suraj               H
    360         SUPREME COURT REPORTS               I J989) Supp. 2 S.C.R.
  Narayan, since deceased. Bhonrilal was also impleaded as the third
A 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 s~me to Raghunath Brahmin. Raghunath construc-
B ted the temple of Sri Satyanarain ji 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:

c              "(a) the plaint of the plaintiff be decreed and the plaintiff
               be declared as the owner of the aforesaid propety. The
               plaintiff is the onwer of the property mentioned in Para
               No. 1. The decree which the defendant Nos. I and 2 had
               obtained on 20.8. 1956 against the Defendant No. 3 and was
D              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
E
    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 judg-
    ments in the second suit against Bhonrilal. In view of those litigations
    and judgments rendered therein, it was claimed that the present suit
F   was barred by principle of res judicata. 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
G 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 judg-
  ment and decree obtained in the suit against Bhonrilal. No declaration
  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.
H Kalyan Singh and Suraj Narayan appealed to the District Court. The
             KALYAN SINGH v. SMT. ClilidTI lSHE'lTY, J.]               361

'learned District Judge dismissed the appeal. He also did' not refer to       A
 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 defendants approached the High Court in
 S.econd Appeal No. 201/41 Before the High Court, they sought to
 produce additional evidence. They moved an application under Order
                                                                              B
 41 Rule 27 C.P.C. to accept a certified copy of the judgment dated
 September 15, 1928 of the Chief Court of tfie erstwhile jai!iur State
 and a copy of the sfaiement of Narayan re·corded in that suii. The High
 Court accepted the judgment of the Chief Court of Jaipui State, but
 rejected ihe Statement cif Narayan.

      During the pendency of the appeal in tlie High C6iiii Sura j            c
Narain died and his name was deleted from the appeal·meino. Ganga
Ram also died and his, wife and foil were broilghf 6ilieoofd' as !\is legal
representatives.

      The principal question argued before the High Court iel~ted to
the validity of sale deed (Ex. 3) and will (Ex. 4) which fOhned 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 evidence. The will Ex. 4 was disregarded ii:i view of the
suspicious circumstances surrounding iis execution. These corldusions
would. have been sufficient for allowing the appeal anii dismissing the
suit. But the High Court. did not do that and instead rounded off the         E
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 Bhonrilat Apart          F
            from everything, the suit d6es not seein to have beeri filed
            against Kalyan Singh and another iri a representative
            capacity in accordance with Order !Rule 3 Civil Procedure
            Code. There was no appicatiori f'M permission fo sue ilietn
            in their representative capacity. Therefore, in spite Of my
            having reached the conclusion· regarding· the document
            Ex. 3 and. 4 against tl\e plaintiff respondents I am not
            ipclined to interfere with the decree of the court below
            though I do feel that the litigation againstKalyan Singh"ahd
            another in their individual capacity was a' fruitless
          . exercise."
                                                                              H
    362          SUPREME COURT REPORTS                · [1989] Supp. 2 S.C.R.

A        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 representa-
    tive suit against Bhonrilal has obtained a decree declaring their title to
R   the property and that decree could not be nullified by the present suit
    against individuals. The High Court instead of holding that the
    plaintiff's suit was a fruit'l:ss exercise, ought to have dismissed the suit.
    Secondly, it was urged that the High Court after discarding the sale
    ideed 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.
c         Normally, these contentions would have been accepted without
    much discussion, but we have to consider the submissions of counsel
    for the respondents. He challenged the correctness of the findings 011
    all material points. It is, therefore, necessary to examine the judgment
    in greater detail.
D
          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
E   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 affidavits of parties for a limited purpose of considering
F   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 con-
    troversy 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.
G
         Counsel for the appellant however, relied upon statements 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 .rep-
    resentative suit by the plaintiffs Kalyan Singh and Suraj Narayan on
H   behalf of the Panchayat Darjian for recovery of possession of the
             KALYAN SINGH v. SMT. CHHOTI [SHETTY, J.]                3(i3

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      A
not Darjee community. Ex. A-4 is the High court judgment in the
second appeal arising out of that suit. There th.e 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 mucl:i support to the appellant. The suit might have         B
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 I
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 I Rule 8 has not been pro-
duced. There is no other evidence to support the contention of either       c
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 D
the judgment and decree in the suit against Bhonrilal. It must be stated
that any member of a community may successfully bring a suit to assert
his right in the community prqperty or for protecting such property by
seeking removal of encroachments thereform. Such a suit need not
comply with the requirements of Order I Rule 8. The suit against
Bhonrilal even if it was not a representative suit on behalf of the E
                                     of
Darjee community would be a suit 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 F
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:
                                                                            G
           "Having read the evidence of these witnesses I am satisfied
           that according to the ordinary standard of proving a docu-
           ment the document Ex. 4 can be said to have been proved.
           However, there are two disturbing elements surrounding
           the execution of the will. The first striking feature of this
           will is that even though the wife of Gaurilal was living at      H
    364        SUPREME COURT REPORTS                [ 1989] Supp. 2 S.C.R.

               the time as she had survived him, no provision whatsoever
A              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 th~ suit and the proceed-
B              ings remained _ex parte against him. However, he was called
               by the Court and his statement was recorded. The judg-
               ment of the Jaipur Chief Court shows that he had laid no
               claim to the property and took the position that he was a



c
               Pujari at the baghichi. Then subsequently when suit was
               filed by the Darzi community against Bhonrilal, no refe-
               rence came to be made to this will Ex. 4 Learned counsel
                                                                                ..
               for the respondents, as I have already observed, suggested
               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
               attractive, 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 litiga-
               tion in the plait, but when he entered the witnesses box he
               had taken a somersault. He was asked whether he was
               aware of the prevous litigation and he said, he did not know
               of it. He was then questioned with reference to para 5 of
E              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 docu-
               ment, 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.
F              It is also remarkable that even upto the High Court Bhonri-
               lal had asserted his own possession over the property and
               bad also obtained a stay order on payment of mesne profits
               vide Ex. A-7.

                               xxxxx                   xxxxx
G
               The will is, therefore, not free from suspicion and it bas not
               been dispelled. My conscience 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 plaintiff has
             KALYAN SINGH v. SMT. CHHOTI [SHETTY, J.]                 365

proved its execution by producing one of the attestors and the scribe
and their evidence has not been disbelieved by the High Court. We            A
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 bequea-
thing the property to him. Ramdeo claims to be the attesting witness to      B
the will. He has stated that the plaintiff 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 attesteC: the will in 1916
Sham Sundar claims to be the scribe of the wilt. He has deposed that
after he wrote the will attestation was made by witnesses but he has not     c
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 Gaurilal, and was
thus the object of his affection for the exclusive bequest. But there is     D
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 ofNarayana.

       Even if we proceed on the plea that the plaintiff was adopted son     E
of Gaurilal, there seems to be little reason to justify the bequest exclu-
sively in 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      F
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 baffling since
it runs counter to our societal values.

        Yet there is another circumstance· which tells against the           G
 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 institution . 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     H
    366.        SUPREME COURT REPORTS                [ 1989] Supp. 2 S.C.R.

    him. Narayan was therefore, aware of the execution of the will. Yet he
A
    did not disclose it to the court in the suit against him. His statement
    was recorded Qn 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 ,the second suit, Bhonrilal set
B   up independent title tq the property by adverse possession. 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, ilone'made any attempt to rely upon the will against
c   the claim of the !Jarji commumty when the community representatives
    have successfully orought two suits. This would not have been the
    natural conduct of person if the will had been really in existence.
                          I
                          1
           It has been said almost too frequently to require repetition that a
D   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 pr_oduced before
    the court ~o .establish genuineness and authenticity of the will. It must
    be stated that the factum of execution and validity of the will cannot be
E   determined merely by considering the evidencne produced by the pro-
    pounder. In order to judge the credibility of witnesses 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
F   the court to look into surrounding circumstances as well as inherent
    improbabiiities of the case to reach a proper conclusion on the nature
    of the evidence adduced by the party.

          In H. Venkatachala Iyengar v. B.N. Thimmajamma & Ors.,
    [ 1959] Supp. 1 SCR 426 Gajendragarkar, J., as he then was, has
G   observed that although the mode of proving a will did not ordinarily
    differ from that of proving any other document, nonetheless it requires
    an element of solemnity in the decision on the question as to whether
    the document propounded 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 satisfaction of the
H   court before the will could be accepted as genuine. Where there are
             KALYAN SINGH v. SMT. CHHOTI [SHETTY, J.I                367

suspicious circumstances, the Court would naturally expect that all
legitimate suspicions should be completely removed before the docu-         A
ment 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.,
Tl962J 3 SCR 195 and Smt. Indu Bala Bose & Ors. v. Manindra
Chandra Bose & Anr., [1982] l SCC 20.                                       B

       The Privy Council in Mt. Biro v. Atma Rarlr & Ors., AIR 1937
PC 101 had an occasion to consider an analogous case where the wife
was practically disinherited and there was unexplained delay in pro-
ducing 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     c
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 maintenance, were made joint owners
equally with the widow of the testator. None of ihe devisees could get
the estate ·partitioned or alienate it for necessity. It was however,       D
provjded 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 produced until 22 years after its ex-
ecution though there were occasions to produce it, had it been in
existence. Considering these circumstances, the Privy Council obser-        E
ved (at 104):

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

                  That the testament is unnatural and runs counter to
            the ordinary sentiments of persons, having a status in soci-
            ety similar to 1that of Harbans Lal, cannot be seriously dis-
            puted. But this is not the only circumstances which tells
            against its genuineness. The will purports to have been         G
            executed on 24th August 1900, and the testator died within
            a month of thai date. But it is strange that it was not pro-
            duced until 1922, after the commencement of the present
            litigation. During this long period of 22 years, which Inter-
            vened, there were occasions when the widow or her advis-
           .ers could have produced the document, if it had been in         JI
            existence; but they did not do so ...... "
    368         SUPREME COURT REPORTS                [1989] Supp. 2 S.C.R.

    The will in the present case, ccnstituting the plaintiff as a sole legatee
A   with no right whatever to the testator's wife seems to be unnatural. It
    casts a serjous doubt on genuineness 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 plaintiffs
    title to the property. The plaintiff was required to remove these
B   suspicious .circumstances by placing satisfac!ory material on record.
    He has failed to discharge his duty. We therefore, ccncur 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:

c                     "Ex. 3 is neitl!er a certified copy given under any of
                the provisions of the Evjdence Act nor is it a copy made
                from the original by any mecjianical process. It also does
                pot appear to have been made or compared from the origi-
                nal as there is no verification or endorsement of the kind
D               and it does not come under clauses 1 or 5 of section 63
                either. 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
E               primary evidence but by secondary evidence. But where
                there is no seccndary evidence as contemplated by Section
                66 of the Evidence Act then the document cannot be said to
                have been proved either by primary eviden~ or by secon-
                dary evidence."

F       The basis of the plaintiffs title relates back to the sale deed dated
  8aisakh Sudi 12 Samvat JQ.32 ( 1875 A.O.). It was said to be a
  registered ~ale deed by whic.!t Bhagala Girdhari purported to have sold
  the baghichi co Raghunath Brahmin. The plaintiff has not produced
  the original sale deed. Nor a certified ccpy of it has been produced. All
  that we find from the record is an ordinary copy of a sale deed Ex. 3
G 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
  Gopi!I Prasad has no personal know)edge about the registration of the
  sale deed, nor he has producetl 1he register to indicate that that sale
H deed was registered -aim a copy was kept in th_e_ record. Ex. 3 produced
              KAL)'AN SINGH v. SMT. CHl;!OT~ JSHETfY, J.]                369

by him does not bear any e.ndorseme.nt to ,tbe .effect that it was a .u.ue      A
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 sec011dary evidences. Clause ( 1),
(2) and (3) refer to copies of documents; clause (4) refers to co.unter-        B
parts of documents and clause (5) refers to oral accounts of the .con-
tents pf documents. Correctness of certified copies referred to in
cl1111se 0) is presµmed 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 $e present case E]!:. 3 is not a certified copy. It is just   c
a11 ordinary copy. Tl)ere is also no evidence regarding contents of the
qfiginal sale deed. px. 3 .cannot, therefore, be considered as secondary
evi.dence. The appellate CQµrt has a right and duty to .exclude such
evjden~e·           ·

      In the result, the appeal is allowed, modifying the judgment and          D
de.cree qf the High Court. The judgment and decre.e 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            E
costs.

R.N.J.                                                     Appeal allowed.