Tej Singh vs Bhagwan Singh

Deepak Gupta, J.—This petition is directed against the order dated 30.7.2010 whereby the learned Trial Court rejected the application filed by the petitioner (hereinafter referred to as the ''defendant'') to produce and prove on record the Will dated 16.4.1987.

It would be pertinent to mention here that earlier the defendant had filed an application u/s 65 of the Indian Evidence Act in which it was alleged that the defendant be given permission to lead secondary evidence to prove the Will, certified copy of which was on record. The only ground set out for allowing this application was that the original Will is not in the custody of the applicant-defendant. The learned Trial Court vide its order dated 7.11.2008 rejected this application mainly on the ground that the defendant had failed to prove that the Will had not been destroyed or lost and, therefore, the circumstances which are required to attract the provisions of Section 65 of the Indian Evidence Act had not been proved on record.

Thereafter, evidence was led by both the parties and at the stage of final hearing, another application was filed under Order 8 Rule (1) (2) (3) read with Section 151, CPC in which the prayer made was that the applicant-defendant may be allowed to produce and prove the Will dated 16.4.1987. There is no averment in this application as to where the original Will is and as to who are the witnesses who shall prove the Will? When a party wants that the Court should permit it to lead evidence after trial is complete, it must specifically state what is sought to be proved and who are the persons who are required to be examined to prove such documents. Once the applicant himself had stated that he is not in possession of the Will, he had to make an averment as to where he has found the original Will. There is no such averment in the application. Therefore, the learned Trial Court was fully justified in rejecting the application.

The parties are directed to appear before the learned Trial Court on 13th December, 2010. The Registry is directed to send the record of the learned Trial Court back so as to reach well before the said date.

With these observations, the petition is disposed of. No order as to costs.