Raj Kumar vs Daljit Kumar Punj and Others

D.V. Sehgal, J.—The defendant-petitioner moved an application before the Learned trial Court for allowing him to lead secondary evidence of the will dated 18.5.1979 allegedly executed by Shri Lakhpat Rai. He pleaded that the original will is not traceable. The will was a registered one. The prayer was opposed by the plaintiff-respondent No. 1 and defendant-respondents No. 2 to 6. The Learned trial Court dismissed this application vide its order dated 27.1.1987 holding that there is no allegation in the application that the will has either been lost or destroyed. The petitioner thus being aggrieved'' has filed the present revision petition.

I have heard the Learned Counsel for the parties. In the application the petitioner/specifically mentioned that the original will is not traceable. The Learned trial Court ought to have afforded him an opportunity to lead evidence to prove the requisites laid down in Section 65 of the Evidence Act. Only on receiving the evidence, it could record its satisfaction or otherwise regarding the existence of the original will and its being not traceable. When the petitioner pleaded that the original will is not traceable, what he naturally meant to say was that it had been lost. The application ought to have been decided on the basis of evidence of the parties for which no opportunity has been afforded to them.

Consequently, I allow this revision petition, set aside the order dated 27.10.1987 passed by the Learned trial Court. It shall now decide the application of the petitioner u/s 65 of the Evidence Act after receiving evidence of the contending parties on the question of existence and loss of the original will.

The parties are left to bear their own costs They are directed, through their Learned Counsel, to appear before the Learned trial Court on J 7.10.1988.