Prem Chand vs Tripta Devi and others

Deepak Gupta, J.—By means of this petition, the petitioner (hereinafter referred to as the defendant) has challenged the order dated 9th May, 2011, passed by the learned Civil Judge (Junior Division)-I, Dharamshala, whereby the application filed by the defendant for leading secondary evidence to prove the Will dated 03.02.1995, allegedly executed by his father, Shri Birbal, in his favour, has been rejected.

The learned trial Court rejected the application only on two grounds. Firstly, that except for the bald statement of the applicant-defendant that he has lost the original Will dated 03.02.1995, there is nothing else to show that the same was actually lost and secondly, the applicant-defendant has not produced any of the marginal witnesses and any other person to prove this fact.

In my opinion, the order passed by the learned trial Court is totally illegal. One fact about which there can be no dispute is that a mutation was attested in favour of the defendant qua the estate of Shri Birbal on the basis of a Will. Therefore, such a Will must have been produced before the revenue authorities. This is the case set up by the defendant. According to the defendant, after he received notice in the present suit, he got prepared a photocopy of the Will dated 03.02.1995 and handed over the same to his counsel and the same was filed alongwith the written statement in the suit itself. Therefore, obviously the document has not been manufactured thereafter. If a person loses a document, it is only he who can state that he has actually lost the same and there can be corroborative evidence of the same. Examination of the marginal witnesses is not required at the stage of deciding the application u/s 65 of the Indian Evidence Act.

In this case, there is prima facie, evidence that such a Will was produced before the revenue authorities. A case is made out for grant of permission to lead secondary evidence to prove the Will. Therefore, the petition is allowed and the defendant-petitioner is permitted to lead secondary evidence to prove the Will. It is made clear that by allowing this petition, this Court has not made any observation qua the validity of the Will and it is the learned trial Court who has to decide this issue on the basis of the evidence led before it.

The petition is disposed of in the aforesaid terms. No costs.