JUDGMENT Sunil Ambwani, J.
1. Shri Ghan Shyam Das Soni S/o Late Badri Prasad Soni, (the deceased) resident of House No. 659, Malviya Nagar, Allahabad died in a car accident at Mohan Lal Ganj, Lucknow on 10.2.2004 leaving behind his widow Smt. Sarswati Soni @ Anuradha at Kasba Kishanpur District Fatehpur. The deceased did not have any issue.
2. Shri Satish Kumar Soni son of Kundan Lal Soni and nephew of the deceased, filed Testamentary Case No. 11 of 2004 for grant of 'Letters of Administration', of the property of the deceased mentioned in Schedule 1 on the basis of an alleged will dated 24.1.2004, which was shown to the plaintiff Shri Satish Kumar Soni as the last will of the deceased. It is alleged that the original will was lost from the chamber of Shri K.B. Srivastava, Advocate on 24.5.2004 when the earlier Testamentary Case No. 6 of 2004 filed by the plaintiff was dismissed with liberty to file a fresh testamentary petition.
3. It is alleged in the application, which was converted into Testamentary Suit No. 11 of 2005 after Smt. Sarswati Soni, the widow put in the contest, that the will dated 24.1.2004 was duly executed by the deceased in the presence of two marginal witnesses namely Shri Ratan Kumar Verma and Shri Amitabh Verma, who signed in the presence of each other and in the presence of the deceased, the contents of which were read over and understood by him through out. The property given in the schedule includes house No. 659, Malviya Nagar, Allahabad, GPF and other benefits, life insurance policies (three in numbers) ICICI Tax Saving Bond and saving bank account totaling Rs. 15,14,640/-.
4. In her objections and in her own plaint in Testamentary Suit No. 12 of 2005 the widow Smt. Sarswati Soni @ Anuradha claiming 'Letters of Administration', as the widow and only surviving Schedule I heir under the Hindu Succession Act, 1956 alleges that her husband was not pleased with her on account of the fact that no issue was born to them. The deceased did not execute any will in favour of any person. The execution of the will dated 24.1.2004 is denied. It was not signed by the executor or the witnesses. When she applied for mutation in respect of House No. 659, Malviya Nagar, Allahabad, she came to know that a forged will has been set up, on which enquiries were made and a complaint was lodged with Addl. District Magistrate (Revenue and Finance), Allahabad about the purchase of stamp papers of Rs. 10/- each from Shri Dakkhi Lal Jaiswal, Stamp Vendor on which it was found that stamps were purchased in connivance with the stamp vendor to prepare the forged will. The brothers and nephews of her deceased husband are involved in a conspiracy to grab his properties.
5. An interim order was passed on 10.8.2004 granting injunction in Testamentary Case No. 20 of 2004 in favour of widow. These orders have operated throughout the pendency of the case.
6. The suits were connected and following issues were struck between the parties on 19.12.2005:
(1) Does the plaintiff Shri Satish Kumar Soni prove the Will dated 24.1.2004 executed by late Ghanshyam Das Soni to be a validly executed Will?
(2) Docs the Will dated 24.1.2004 was executed by late Ghanshyam Das Soni in favour of Shri Satish Kumar Soni in his free will and disposing mind?
(3) Whether Smt. Sarswati Soni @ Anuradha is widow of late Ghanshyam Das Soni and is entitled to 'Letters of Administration'?
(4) Whether original Will was actually lost by the counsel for the applicant?
7. Both the parties filed their documents and led oral evidence. Shri Satish Kumar Soni, the plaintiff in suit No. 11 of 2005 examined himself as PW-1, Shri Ratan Kumar Verma, the attesting witness as PW-2, Shri Amitabh Verma, the other attesting witness as PW-3, Shri Hari Mohan Swarnkar, a person known to the deceased as PW-4. Smt. Sarswati Soni, the plaintiff in T.S. No. 11 of 2005 examined herself as DW-1 and her brother Shri Ram Chandra Verma as DW-2.
8. The due execution, attestation and free and disposing mind of the testator to be decided issue Nos. l and 2 are interconnected facts and are thus taken up together.
9. The original unregistered will dated 24.1.2004 alleged to be executed by the deceased is stated to be lost. A photostat copy of the will is annexed to the petition (paper No. A-3/17-19) as Annex. No. l, the document is copy of three papers of which first two papers are typed on stamp paper of Rs. 10/- each and is alleged to be purchased from Shri Dakkhi Lal Jaiswal, Stamp Vendor, license No. 474, Civil Court Compound, Allahabad by Shri Ghan Shyam Das Soni on 22.1.2004, for execution of will.
10. Shri Narendra Mohan, learned Counsel of Smt. Sarswati Soni @ Anuradha submits that Shri Satish Kumar Soni, the plaintiff has not denied that she is the wife of the deceased, living at Kasba Kishanpur District Fatehpur, though she has been described as alleged wife, in paragraph 7 of his petition. The will is said to be handed over by the Administrative Officer in the office of the Commissioner, Ministry of Social Justice and Empowerment, National Commissioner Linguistic Minorities Office at 40, Amar Nath Jha Marg, Allahabad, where the deceased was posted as Research Officer. An application was moved by the plaintiff to the Commissioner, in reply to which the Administrative Officer wrote a letter on 22.3.2004 addressing the petitioner asking him to produce succession certificate from the competent Court. Shri Narendra Mohan, Advocate submits that Shri Satish Kumar Soni has cooked up a false story of discovery of will from the documents of the deceased in the office of National Commissioner Linguistic Minorities at Allahabad and then to have lost the will from the custody of Shri K.B. Srivastava, Advocate from his chamber on 24.5.2004. He submits that there was no such will, which was lost. It was never filed with the previous petition numbered as T.C . No. 6 of 2004, whereas there was a recital in that petition of filing of original will, and that the story that when the counsel went to do some other work for a moment, the original will with envelope, the entire record of the case and two books of Mr. Dinesh Kakkar, Advocate disappeared from there. The theft was never reported to the police, Bar Association or to the court administration. He submits that loss of the will has not been proved either by the pleading or by evidence and thus secondary evidence of the will a private document in the shape of photocopy is not admissible in evidence.
11. Shri Dinesh Kakkar, learned Counsel for Shri Satish Kumar Soni, the plaintiff states that the earlier testamentary case No. 6 of 2004 was filed in the registry on 06.5.2004. It was fixed for 10.5.2004 and again on 18.4.2004, 19.5.2004 and then on 24.5.2004. The Hon'ble Court formulated questions for determination about the circumstances in which a Probate or Letters of Administration may be granted. Shri K.B. Srivastava, learned Counsel discussed the matter with Mr. Dinesh Kakkar, Advocate and requested him to attend the Court. On 24.5.2004 the case was taken up at about 2.40 p.m. and after hearing the argument the Court directed the counsel to file fresh testamentary petition with necessary averments. When the proceedings were closed and the counsel returned to chamber on 3.30, and kept his file, the original will in a paper cloth envelope and books related to the cases disappeared when the counsel went to do some other work for a moment along with record of the case and two books of Shri Dinesh Kakkar. Immediately a search was started by the Advocate and their clerks and the persons present there were informed about the happenings and missing of the record and original will, but despite of possible efforts, it could not be traced out. The file was deliberately taken away by some one with oblique motive. Notices were pasted on notice board and passages of Court room and all possible efforts were made but nobody responded in the matter. It appears that some person highly interested had stolen the entire record with the intention to destroy the original will. The petitioner is continuously searching from 24.5.2004 the papers and original will but despite his best efforts it could not be traced out till date.
12. Shri K.B. Srivastava, learned Counsel for the plaintiff Shri Satish Kumar Soni has not filed his affidavit or appeared as witness for proof of loss of the will. Shri Satish Kumar Soni, PW-1, the plaintiff stated in his affidavit (examination-in-chief) of the loss of will:
10. That, when upon advice received the applicant proceeded with the matter, the relevant documents along with the original will were handed over to Mr. K.B. Srivastava, Advocate for preparation and filing of the application.
11. That, after the application had been prepared it came up for argument on various dates before the Testamentary Court and it appears that during the course of these proceedings the original will, which was carefully kept in a paper cloth envelope disappeared along with the complete file and books.
12. That, the above application was, thereafter, filed for grant of letters of administration along with a photostat true copy of the will.
13. In his cross-examination Shri Satish Kumar Soni, PW-1 stated that in earlier case as well as in the present case Shri K.B. Srivastava was engaged by him as his counsel. He does not remember whether any permission was given for return of the original will or that he had taken back the original will. He had applied for mutation over the property in Nagar Palika. He had not filed the original will in that case. It is wrong to say that he had not filed original will in legal cell of Nagar Palika after the order dated 06.4.2004. The original will was shown to the officer of the Nagar Palika and after verification it was returned back. He does not remember the date on which the Original will was shown to the officer of Nagar Palika and the date it was taken back. On being asked as to how he could show the original will in Nagar Palika, when he filed it in the High Court, the witness stated that he had taken the original will from his counsel Shri K.B. Srivastava and had shown the same in Nagar Palika.
14. The secondary evidence of the contents of private documents is admissible only if the original document is not in existence or is not available. Before secondary evidence is tendered it is necessary to account for the absence of the original, unless the document is admitted. For this purpose proof that primary evidence is not available is required. The secondary evidence can be accepted by the Court for the existence, condition or contents of a document, if the original has been destroyed or lost. The loss of the original document must be proved. The party must establish that he has exhausted all the sources in the search for the document, which were available to him.
15. Section 64 of the Indian Evidence Act provides that the documents must be proved by primary evidence except in the cases mentioned. Section 65(c) of the Act provides that secondary evidence may be given of the existence, condition or contents of a document, where the original has been destroyed or lost or when the party offering evidence of its content cannot, for any other reason nor arisen from his own default or neglected to produce it in reasonable time.
16. In order to produce the loss of the document and that the search has been unsuccessfully made for it in the place or places where it was most likely to be found and all persons likely to have possession of the same the degree or diligence is necessary in the search. Each case depends upon his own particular circumstances. The party, however, is expected to show that he has in good faith exhausted in a reasonable degree all the sources of information and means of discovery, which the nature of the case would naturally suggest, and which are accessible to him. The hearsay evidence of loss, is not to be received by the Court.
17. In Saudal Azeez v. District Judge, Gorakhpur 2000 ACJ 1165 and in Badrunissa Begum v. Mohamooda Begum AIR 2001 AP 394, the Courts have held that a copy transcribed from the copy and compared with the original is secondary evidence, but the copy not so compared with the original, is not a secondary evidence, vide illustration C to Section 63. In the present case the plaintiff has not made any statement to prove the comparison of the copy with the original.
18. The execution of the will has been denied. It is stated that Shri Satish Kumar Soni had handed over the original will, which was received by him from the Administrator in the office of the Commissioner, Linguistic Minority from the almirah of the deceased to his counsel Shri K.B. Srivastava. He had shown it in the legal cell of Nagar Palika on 06.4.2004 after taking it back from his counsel where it was compared and returned to him and that the will was actually lost on 24.5.2004 from the chamber of his counsel Shri K.B. Srivastava along with original file and books, when they were brought back from the Court on the same day after the Hon'ble Judge had dismissed the case with liberty to file a fresh testamentary case. The counsel or his clerk have neither certified nor given any affidavit in proof of the loss. They have not chosen to appear as witness to prove the loss of the original will. It is stated in the previous petition that the original will was filed along with petition but now it is contended that the will was not filed and was kept in an envelope and was retained by the counsel. The plaintiff did not lodge any report with the Registrar General or the Court Officer and did not choose to report to Bar Association or file any First Information Report.
19. In the testamentary case it is not stated as to when the plaintiff had handed over the original will to his counsel. In his deposition it is stated by the plaintiff that after the death of his uncle the will in his original form with other papers of his uncle were handed over to his father by the officials of the office where the deceased was employed at A.N. Jha Marg, Allahabad. Whereas in para 10 of the plaint (pleading) it is stated that in response to the payment of service benefits the Administrative Officer had written to the petitioner on 22.3.2004 asking for producing succession certificate from the competent Court as somebody else was also claiming the amount of the deceased. The date on which the plaintiff had handed over the original will to his counsel Shri K.B. Srivastava is not given in the petition. The document with the endorsement of the officer in Nagar Palika, who had compared the copy of the will filed in Nagar Palika with the original will taken by the plaintiff or his counsel Shri K.B. Srivastava has not been produced. The witness did not remember as to when the original will was shown to the officer in the Nagar Palika. Shri K.B. Srivastava or his clerk have not given any affidavit or appeared as the witness to prove the loss of the will, nor the notice, which is stated to be put in the corridors has been annexed to the petition. They have not even cared to give a certificate of the loss of original will from their custody.
20. In the facts and on the evidence adduced, I find that Shri Satish Kumar Soni, the plaintiff has not proved the loss of the original will and that in the circumstances the secondary evidence in the shape of the photostat copy, which is not even stated or proved to be a copy of the original will, is not admissible in evidence. Section 63 read with Section 65(c) of the Evidence Act does not permit the Court to rely upon the secondary evidence unless the loss of the primary evidence of a private document is proved. The plaintiff has failed to sufficiently plead or prove the loss and the due diligence in search of the document.
21. Further I find that there is not averment in the plaint or in the statement of Shri Satish Kumar Soni, the plaintiff or the attesting witness that the photocopy of the will filed along with the petition, is the copy of the original will. The copy has not been proved to be the true and correct copy, prepared from the original.
22. In the facts and the circumstances and on the discussion of the evidence led by the parties, I am not satisfied that the handing over of the original will by the Administrator in the office of the Commissioner of Linguistic Minority to the father of the plaintiff, or the plaintiff, from the documents of the deceased in his office; the loss of the original will from the custody of his counsel, and search thereof by adopting due diligence, and further the fact that the copy annexed to the petition is true photocopy of the original will, has been proved on record. The secondary evidence in proof of the validity, execution and attestation of the document is, therefore, not admissible. Issue Nos. l and 2 are as such decided against Shri Satish Kumar Soni, the plaintiff in Testamentary Suit No. l1 of 2005.
23. Shri Satish Kumar Soni, the plaintiff in T.S. No. 11 of 2005 is the nephew of the deceased. He has admitted in his plaint and in his cross-examination that Smt. Sarswati Devi is wife of the deceased. In para 6 of his plaint it is stated that Smt. Sarswati Soni voluntarily deserted her husband after marriage in the year 1975 and Shri Ghan Shyam Das Soni died issueless. The deceased had no relation with Smt. Sarswati Soni, since the year 1975. She permanently resided with her father at Village Kishanpur District Fatehpur.
24. Smt. Sarswati Soni @ Anuradha aged 48 years, widow of the deceased has stated in her affidavit in evidence that her maiden name was Saraswati but her husband used to call her Anu or Anuradha by affection. Her husband was keeping good health, when he died in an accident on 10.2.2004. She was married to the deceased in 1975 according to the Hindu rites and had good relation with her husband. She, however, discovered in 1989-90 that her husband had an affair with her Jethani (elder brother's wife) on which a dispute arose between the husband and wife. In January 1993 her husband and her jethani threw her of the house, after beating her, only in the clothes, which she was wearing and since then she was living with her father. There were talks of compromise but the matter could not be solved. She filed an FIR and also filed a case under Section 125 CrPC for maintenance in which her husband appeared and filed vakalatnama and his reply. There was no other cause of dispute between her and her husband. She was not informed of the death of her husband and that when she received the information on 13.2.2004, she went along with her brother, father and mother and members of other family but was not allowed to enter the house at Malviya Nagar. Her husband's brother and his family lodged FIR against her for forcibly entering the house, which was not lodged by the police. He had performed all the Vedic rites after the death of her husband. She denied the execution of the will by her husband and has claimed that the fraudulent document dated 24.1.2004 has been set up to deprive her of the house and other properties. She has proved the document of the sale of house No. 659, Malviya Nagar, Allahabad in the name of her husband; a copy of FIR; an order in the matter under Section 498A IPC; the application for maintenance; the death certificate; the post mortem report; and claims to the Life Insurance Corporation and the cheque issued by the corporation in her favour as well as a letter for producing succession certificate.
25. She has also proved the application for mutation in Nagar Palika, the complaint made of the stamp vendor to the Addl. District Magistrate, Finance and Revenue and other documents, which are not relevant for the purposes of deciding the case.
26. In the cross-examination she has given the circumstances in which she was living with her husband and was thrown out of the matrimonial house and other details with regard to the information given about the death of her husband and the fact that she was not allowed to enter the matrimonial house after his death.
27. Shri Ram Chandra Verma, DW-2 is the brother of Smt. Sarswati Soni. He has proved the marriage of the deceased with her sister performed with Vedic rites in 1975 and the dispute between her sister and brother in law in 1993. He has denied the execution of the will dated 24.1.2004, and has pointed out to the spelling mistake in the signatures of the deceased made by forgery on the will. The deceased, he stated, was an educated person and could never commit such a mistake.
28. The evidence on record proves the fact that Smt. Sarswati Soni @ Anuradha, the plaintiff in T.S. No. 12 of 2005 was legally wedded wife of the deceased. There were some disputes on account of which she was forced to leave the house and had claimed maintenance from her deceased husband under Section 125 CrPC. There is no allegation that the deceased had initiated any divorce proceedings. She is, therefore, held to be the widow of the deceased, entitled to administer his estate as an class I heir in the First Schedule of the Hindu Succession Act, 1956.
29. On the findings recorded about the fact that photocopy of the will is inadmissible in evidence and is not proved to be the copy of the original will and further the finding that Smt. Sarswati Soni @ Anuradha is the widow of the deceased, and is entitled to the letters of administration of the assets and credits of the deceased Shri Ghan Shyam Das Soni son of Late Shri Badri Prasad Soni, the testamentary suit No. 11 of 2005 is dismissed with exemplary costs quantified at Rs. 20,000/- to be paid by Shri Satish Kumar Soni, the plaintiff to the defendant.
30. The Testamentary Suit No. 12 of 2005 is decreed with directions that the office shall issue Letters of Administration to Smt. Sarswati Soni @ Anuradha, as widow of the deceased to administer the estate and credits after payment of the Court fees to be worked out by the office to the satisfaction of the Registrar General of the Court and after execution of the Administrator Bonds. She will also be entitled to amount claimed by her of the Life Insurance Corporation Policies of the deceased with interest; to operate the bank account and for mutation over the residential house No. 659, Malviya Nagar, Allahabad.