Raj Kumar and Others vs Dinesh Kumar and Others

K. Kannan, J.—All the three civil revisions are connected and they arise out of the proceedings in the same suit between the same parties. Civil Revision No. 6338 of 2011 is against an order allowing an application for impleadment of legal representatives; Civil Revision No. 5577 of 2011 is against an order rejecting permission to produce secondary evidence of a Will dated 01.01.1985 and the Civil Revision No. 5578 of 2011 is against an application seeking for permission to recall and provide additional evidence on the defendants'' side. The defendants are the revision petitioners in all the three cases. The petitioner does not want to prosecute the petition (Civil Revision No. 6338 of 2011) impleading the grandchildren of the deceased plaintiff as legal representatives. He seeks for dismissal of the said civil revision as withdrawn. I take the statement and dismiss the Civil Revision No. 6338 of 2011 as withdrawn, but this does not mean that the defendants will be barred from contending that the applicants were not entitled to make any claim as regards the estate of Kreshan Lal. The suit related to the estate of Kreshan Lal. The suit had been filed by his brother-Shadi Ram on a contention that he was the sole surviving heir to Kreshan Lal, the latter having died issueless, his other brothers and widow having pre-deceased him. The suit was contested by the children of other brothers of Kreshan Lal, who claimed that they have a right to the property under a Will executed by Kreshan Lal on 01.01.1985. There were other contentions as well regarding their manner of entitlement to the estate. Shadi Ram died pending suit and his wife filed an application for impleadment as the only surviving legal heir, setting up a case of a family settlement between herself and her children that the property inherited by Shadi Ram from Kreshan Lal was to be exclusively enjoyed by her. Even when this application was pending, his widow also died and the grandchildren of the widow filed an application for treating themselves as legal representatives on the basis of a document styled as a Special Power of Attorney. The applicants were, however, making out a case that the document which is styled as power of attorney also contained recitals of a disposition through a Will and the estate of widow survived to them through the document.

The petition had been filed by the defendants for reception of secondary evidence, the justification was that the original Will dated 01.01.1985 was lost in mutation proceedings and the registration copy alone was being filed. They were seeking for reopening of the case and lead additional evidence on the ground that even registered copy was omitted to be filed and proof thereof was necessary to stave off a claim to right by Shadi Ram and his representatives as the only legal heirs to the estate of Kreshan Lal. Although the court below has held that there was no justification for not filing the original or not giving sufficient explanation at the appropriate time for bringing witnesses, I am of the view that the trouble arose only on account of the absence of appropriate issue at the trial. In a suit relating to a claim to the estate of Kreshan Lal at the instance of one of his brothers and children of other brothers were contesting the plaintiff''s claim by setting up a Will, the Court was bound to frame an issue regarding the truth and validity of the Will. When there was no issue framed, it is obvious that the party missed out of an appropriate focus of what was required to be adjudicated in suit. That itself ought to be a justification for bringing additional evidence and allowing for parties to produce the Will or its copy. I will not make a pre-judgment of whether it constitutes a secondary evidence at all and whether there was any justification for production of photocopy of the Will. The admission of the document into evidence ought not to be taken as either proof of the Will or proof of the genuineness of the Will. The plaintiff will not be forced to give up a contention that the defendants did not have a justification for non-production of the original. It shall be a matter that the Court will consider, while examining the truth and genuineness of the Will and the admissibility of the document in the manner required to be done u/s 65 of the Evidence Act. The defendant has to be given an opportunity to provide appropriate evidence and to that extent, the application for reopening and recalling of the witness should also be allowed. It is not merely the lapse of Court in not framing an issue, but as pointed out by the counsel for the plaintiff, the evidence commenced in 2005 and for all these years, the defendants have not even produced the alleged copy of the Will. A witness, who was said to be a witness to the Will, has been examined and surprisingly, even without reference to the Will. There has been an unexplained delay on the part of the defendant for such a long time and I am of the view that the defendants shall be directed to pay Rs. 10,000/- to the petitioners for being afforded an opportunity of reopening and recalling witnesses for the Will. The civil revisions for admission of secondary evidence and for recalling and reopening defendants'' side are allowed, but subject to the observations made above. The amount directed to be paid as cost shall be paid within a period of 2 weeks from the date of receipt of copy of this order. If the amount is not paid, the orders passed already by the court below shall stand restored.