ORDER
V.P. Gupta, J.
1. This revision petition is directed against the order dated 25-9-1981 passed by the Senior Sub Judge, Kutu by which the application of the plaintiff petitioner under Section 65 of the Evidence Act, seeking permission to lead secondary evidence, was rejected.
2. The plaintiff-petitioner Sled a suit for
declaration to the effect that the plaintiff is owner and in possession of the suit property (detailed in the plaint) and in the alternative Cor possession of the property. The allegations are that Shayam Dass (now deceased) executed a gift deed (regarding disputed property) in plaintiff favour on 26-12-1974 The deed was registered on 27-12-1974 and the possession of the gifted property was delivered to the plaintiff. After execution of the gift deed, Shayam Dass (donor) re-ailed from the transaction. When the plaintiff was intimated about mutation proceedings an, the basis of the gift deed, he search-ed for the gift deed for showing the same to revenue authorities, but could not find the same. The plaintiff came to know that the original gift deed was stolen by the donor. During the mutation proceedings the donor denied the gift with the result that the mutation was rejected. The plaintiff filed an appeal but his appeal was also rejected. On these allegations the plaintiff filed this suit on 12-7-1977.
3. The suit was contested by the defendant/donor Shayam Dass and on the pleadings of the parties following issue were framed on 3-10-1977 : —
1. Whether the suit is maintainable in the present form.’ OPP
2. Whether the plaintiff is owner in possession of the suit property as alleged ? OPP
3. Whether Shayjun Dags donor was not in disposing mind at the time of making the impugned gift, as alleged ? OPD.
4. Whether the impugned gift was a result of fraud and misrepresentation etc, as alleged ? If so, its effect ? OPD.
5 Relief.
4. The plaintiff was examining his evidence when it transpired that the original gift deed was not on record. The plaintiff therefore, filed an application under Sections 65/66 of the Evidence Act seeking permissions to lead secondary evidence This application was contested by Shayam Dass (donor/defendant) and the following issue was framed on 7-4-1978: —
1. Whether the defendant took away the gift deed from the custody of the plaintiff? OPP
2 Relief.
5. During the pendency of the application, Shayam Dass donor-defendant died and his widow Smt. Bhikbi (now respondent) was brought on record as his legal representative. The parties led evidence on the application and after considering the evidence, the Senior Sub Judge rejected the application of the plaintiff-petitioner.
6. Shri S.S. Mittal the learned counsel for the plaintiff-petitioner, contended that a mention about the existence and the execution of the gift deed is in the plaint as also in plaintiff statement. It was contended that the existence and execution of the gift deed is not disputed by deceased defendant Shayam Dass. In these circumstances the statement of the plaintiff regarding the loss of the document should have been believed and the application for secondary evidence should have been allowed.
7. Shri R.C. Bakshi the learned counsel for the respondent, contended that the plaintiff-petitioner had alleged that the original gift deed was stolen by Shayarn Dass (donor) but there was no satisfactory evidence to prove the theft. Thus, the trial Court was justified in rejecting the application for secondary evidence.
8. I have considered the contentions of the learned counsel for the parties.
9. In the plaint it is specifically mentioned that Shayam Dass (deceased) executed the gift deed in plaintiff’s favour on 26-12-1974 and the same was registered on 27-12-1974. The further facts narrated are that Shayam Dass (donor) was living with the plaintiff and on the instigation of the plaintiffs enemies he wanted to resile from the gift, that plaintiff made a search about the gift deed at the time when he was informed about the date of the mutation proceedings, but could not find the same, that plaintiff came to know that Shayam Dass (donor) had taken away the gift deed in his (plaintiffs) absence.
10. In the written statement donor Sham Das (now deceased) stated that he did not execute any gift deed in a disposing state of mind, that no possession of the property was delivered to the plaintiff. The donor admitted that some documents were signed by him on 26-12-1974 and 27-12-1974 at Kulu, that he came to know about the execution of the gift deed after some days whereupon he executed a revocation deed on 5-3-1975 cancelling the gift deed. He also raised objections that the gift was not accepted by the plaintiff and that possession was not delivered to the plaintiff, and for these reasons the gift was incomplete and unenforceable. It was also asserted that the said gift deed was a result of fraud, misrepresentation etc.
11. In the application under Section 65, the plaintiff again stated that the gift deed was stolen by the defendant and the plaintiff was not in a position to produce the same.
12. In reply Shayam Dass (original defendant/donor) stated that the gift deed was a result of fraud and the same was not stolen by him. Further no notice of the production of gift deed was ever given to him.
13. In evidence, the plaintiff stated that Shayam Dass (donor) was staying with him and when he (Shayam Dass) was instigated to resile from the gift, then he (Shayam Dass) took away the original gift deed with him. He stated that Shayam Dase (deceased) told him that he had taken away the gift deed. Plaintiff admitted that be did not report the matter (of the loss of the gift deed) to the police and did not mention about it in the appeal filed against the mutation order. He also admitted that he did not give any notice. The plaintiff produced some witnesses to prove that the original gift deed was stolen by Shayam Dass deceased.
14. The relevant extract from Section 65 of the Evidence Act reads as follows:–
“65. Secondary evidence may be given of the existence, condition or contents of a document in the following cases—
(a) to (b) … … .. .. ..
(c) When the original has been destroyed or lost, or when the party offering evidence of its contents cannot, for any other reason not arising from his own default or neglect, produce it in reasonable time;
(d) to (g),.. … … .. …
In cases (a), (c) and (d), any secondary evidence of the contents of the document is admissible … .. … … …”
15. The alleged gift deed is dated 26-12-1974 which was registered on 27-12-1974. The defendant Shayam Dass (now deceased) in the written statement or in the reply to the application did not specifically plead that he had not executed the gift deed. On the other hand it the written statement as well as in the reply to the application Shay am Dass (deceased) asserted that his signatures on the document were obtained by fraud and misrepresentation during the time when he was not keep good health. In the written statement he admitted that when he came to know about this fraud and misrepresentation practiced upon him, then he cancelled the gift deed by executing a revocation deed on 5-3-1975.
16. Thus the existence of the original gift deed was not disputed by the donor Shayam Dass (now deceased.) In due course the gift deed should have been with the plaintiff as be is the donee. The plaintiff has stated that the original gift deed is not with him. The next question which arises for determination is as to whether the plaintiff has proved whether the original gift deed has been destroyed or lost or cannot, for any other reason not arising from his own default or neglect, be produced.
17. As plaintiff was in possession of the document therefore, his mere statement that the document has been lost or is un traceable should be deemed to be sufficient. The plaintiff has alleged these facts in the plaint as well as in the application. It is true that plaintiff did not lodge any report about its loss by theft. But it is not always necessary to lodge a report with the police. Simply that the plaintiff has not been able to prove the theft of the original by deceased Shayam Dass does not mean that the document has not been lost or destroyed. Loss can never be proved absolutely and evidence regarding loss of the document by the person in whose custody the document ought to be is enough to allow secondary evidence. The conduct of the plaintiff in not filing the original document in Court and alleging specifically about the loss of the document as having been taken away by the defendant coupled with his statement on oath, should be considered sufficient for proof that the gift deed has been lost. In the plaint it is also mentioned that plaintiff made a search for the gift deed but could not find the same, at the place where he had kept it and he was told by Shayam Dass (donor) that the same had been taken away by him (donor). This assertion of the plaintiff also could not be brushed aside lightly, especially in view of the fact that the document was a registered document and the defendant-donor had not denied its execution. The donor had admitted the execution and registration of the Same, in the revocation deed on 5-3-1975. This revocation deed was produced by Shayam Dass on 9-3-1977. In these circumstances, I am of the opinion that the gift deed alleged to have been executed in favour of the plaintiff by Shayam Dass deceased is either lost or destroyed and the plaintiff is unable to produce the same, in spite of his search and effort– without any default or neglect on his part to produce the same. In these circumstances, the condition of Section 65 (c) is fulfilled and the plaintiff’s application for leading secondary evidence should be allowed. I thus hold that the Senior Sub Judge has acted with material irregularity and illegality in the exercise of his discretion in rejecting the application of the plaintiff under Section 65 of the Evidence Act and as a consequence, set aside the order dated 25-9-1981 and accept this revision petition. The application under Section 65 filed by the plaintiff is accepted and the plaintiff is allowed to lead secondary evidence. The case is sent back to the Court of Senior Sub Judge, Kulu who shall proceed in the matter according to law and proceedings shall start from 25-9-1981. The parties are directed to appear in the Court of Senior Sub Judge, Kulu on 2nd Aug.. 1982. Parties are left to bear their own costs. Any remarks or observations made in this judgment shall have no effect on the merits of the case.
