LAWS(CHH)-2018-7-127

ANIRUDDHA KUMAR AASRA Vs. GAJENDRA KUMAR AASRA

Decided On July 12, 2018
Aniruddha Kumar Aasra Appellant
V/S
Gajendra Kumar Aasra Respondents

JUDGEMENT

(1.) Heard.

(2.) The present petition is against the order dated 17.11.2015 whereby an application filed by the petitioner/defendant to lead secondary evidence to prove two WILLs dated 17.11.1972 & 04.11.1973, was dismissed.

(3.) Learned counsel for the petitioner/defendant submits that the defendant has made a categorical submission that a suit was filed by the plaintiff for title & permanent injunction for the property owned by Late Kasturba Ben. According to the plaintiff, the property was bequeathed in favour of the plaintiff by a WILL dated 17.11.1984. It is submitted that the property was was initially owned by one Thakarsi Bhai, the husband of Kasturba Ben, who bequeathed the property by WILL dated 17.11.1972 which was the first WILL. Subsequently, Kasturba Ben after became the owner after death of her husband, bequeathed the property in favour of Vijaya Ben by a WILL dated 04.11.1973 subsequently Aniruddha Kumar Aasra S/o Amrit Lal Asra became the owner of property, therefore, the devolution of the property is through the WILL dated 04.11.1973 and inheritance. It is further submitted that the plaintiff has admitted the fact in his written-statement to the counter claim that WILL dated 17.11.1972 exists and with respect to other WILL dated 04.11.1973 he stated that the defendant had made the submission that the WILL has been taken away by fraud and thereby the existence of the WILL is proved by the averments of the plaint at para 7. It is submitted that in the circumstances when the existence of the WILL has been made clear and averment is made that it is been taken away by fraud, the trial Court should have allowed the application under Section 65 (b) of the Indian Evidence Act, 1872 (for short 'the Act, 1872) to lead the secondary evidence and the notice is not required under Section 66 of the Act, 1872, consequently, the order may be set aside.