Gurdev Singh vs Gejo Devi and Others

L.N. Mittal, J.—Defendant No. 1 Gurdev Singh has filed the instant revision petition under Article 227 of the Constitution of India impugning order dated 10.09.2009 (Annexure P-2), passed by learned Civil Judge (Junior Division), Pehowa, thereby dismissing petitioner''s application for secondary evidence.

Suit has been filed by respondent No. 1 Gejo Devi against petitioner and proforma respondents No. 2 and 3. The petitioner is brother of all the three respondents, who are his sisters. The petitioner has set up Will dated 03.06.1999 allegedly executed by his mother, whereas plaintiff- respondent No. 1 has based her claim on the basis of natural inheritance.

Petitioner, in application Annexure P-1, moved for permission to lead secondary evidence of the Will, alleged that he had produced the Will before the revenue authorities at the time of entry and attestation of mutation No. 3358, but now the said Will is not available in the record of the revenue authorities, as stated by Sadar Kanungo, examined as DW-2.

I have heard learned Counsel for the parties and perused the case file.

Learned Counsel for the petitioner vehemently contended that loss of original Will is proved inasmuch as the Will was produced by the petitioner before the revenue authorities and the same is not now available in the record of the revenue authorities. Learned Counsel for the petitioner has relied on a judgment of this Court in the case of Simarpal Singh v. Hakam Singh reported as 2009 (2) LH (P&H) 1533.

On the other hand, learned Counsel for respondent No. 1-plaintiff contended that loss of alleged original Will is not proved and therefore the petitioner cannot be permitted to lead secondary evidence of the Will. In support of his contention, learned Counsel for respondent No. 1 has relied on a judgment of Hon''ble Supreme Court in the case of Smt. J. Yashoda v. Smt. K. Shobha Rani reported as 2007 (2) R.C.R. (Civil) 840 and two judgments of this Court i.e. Ved Parkash v. Rattan Lal Ahharwal reported as 2005 (1) R.C.R. (Civil) 366 and Hari Singh v. Shish Ram reported as 2002 (4) R.C.R. (Civil) 830.

I have carefully considered the rival contentions.

From the material brought on record by the petitioner, it is prima facie not established that the original Will was produced by him before the revenue authorities and has been lost from the record of revenue authorities. There is only reference to the alleged Will in the mutation sanctioned on the basis thereof. However, there is no reference that the original Will was retained by the revenue authorities in the record. In the case of Simarpal Singh (supra), relied on by learned Counsel for the petitioner, it was simply held that the party applying for secondary evidence has to be allowed to lead evidence to make out justification for production of secondary evidence. In the instant case, however, the petitioner has already led such evidence, but the same is not sufficient to make out case for production of secondary evidence.

On the other hand, in the case of Smt. J. Yashoda (supra), Hon''ble Apex Court observed that secondary evidence of a document can be permitted u/s 65 of the Evidence Act, if the conditions laid down in the said Section are fulfilled and secondary evidence of the contents of the document cannot be admitted without non-production of the original being first accounted for in such a manner as to bring it within one or the other provision provided for in the Section. Similarly, in the case of Ved Parkash (supra), it was held that party seeking to produce secondary evidence can be permitted to prove the execution of the document by secondary evidence, if loss or destruction of the original document is proved. In the case of Hari Singh (supra), it was held that before a party is permitted to adduce secondary evidence, it is sine qua non for it to show that document is in existence and has not been produced despite notice by party, in whose custody it is.

In the instant case, the petitioner has failed to establish prima facie that the original Will was placed on the record of mutation before the revenue authorities and has been lost from the said record. In other words, prima facie loss of the alleged original Will is not established and therefore, the petitioner cannot be permitted to lead secondary evidence of the said Will.

The obvious result of the aforesaid discussion is that the petitioner has not made out a case for permitting him to lead secondary evidence of the alleged Will. There is, therefore, no illegality in the impugned order of the trial court. The revision petition is found to be without any merit and is accordingly dismissed.