RAJENDRA @ DEENDHAR Vs. NINGAWWA W/O DODAPPA

JUDGEMENT

(1.) The petitioner has challenged the order dated 21.9.2011 passed on I.A.No.10 in O.S.No.110/2004, on the file of II Addl. Civil Judge (Sr.Dn.), Vijayapura (Annexure-E to the writ petition).

(2.) The respondent No.1 herein filed O.S. No.110/2004 seeking for declaration that the Will dated 13.11.1986 of Bhimappa is not genuine inter alia claiming for partition by metes and bounds of the suit property. The plaintiff produced the certified copy of the Will, which was marked as Ex.P-1. The said Will was registered on 13.11.1986. The defendant No.2/ petitioner herein filed written statement contending that, as per the registered Will deed, he has become the absolute owner of the suit properties. In the said proceedings, the petitioner filed an application (I.A.No.10) under Section 65 of the Indian Evidence Act, 1872 (the 'Act' for short) and prayed to lead secondary evidence based on the certified copy of the Will on non-production of the original Will to prove his case. Respondent No.1 herein objected the same. On appreciation of material available on record, the trial court rejected the application. Hence, this writ petition.

(3.) The learned counsel Sri Umesh V. Mamadapur, appearing for the petitioner contended that the court below grossly erred in rejecting I.A.No.10. Section 65 of the Act contemplates/permits the petitioner to produce the certified copy of the Will as secondary evidence, in the absence of primary evidence. In terms of the registered Will dated 13.11.1986, executed by the deceased Bhimappa in his favour, the petitioner has become the absolute owner of the suit property, non-consideration of the same by the trial court has resulted in miscarriage of justice. It was contended that the original Will is in the possession of the respondent No.1 which she has taken away along with the household articles, as such the necessary application filed by the petitioner before the trial court seeking production of original Will by the respondent No.1 also has not given any positive results. It is also contended that the mother of the petitioner had given varadi before the Tahsildar, Vijayapura to mutate the name of the petitioner on the basis of the original Will. An attempt was made by the petitioner to secure the original Will from the custody of the Tahsildar, Vijayapura, but in vain as the Tahsildar, Vijayapura supplied the certified copy of the varadi contending that only Xerox copy was produced. The factual aspects as aforesaid compelled the petitioner to file application to lead secondary evidence, but the same was not properly appreciated by the trial court. Application seeking permission for leading secondary evidence on the basis of certified copy of the Will ought to have been considered by the trial court in a proper prospective.