MUNI AMMAL Vs. GOVINDARAJAN AND ANR.

JUDGEMENT

(1.) THE first defendant -petitioner relied on a will to support her case. The will is in the possession of D.W. 1 who describes himself as a notaire in French territory. He lives in French territory. He states that, under the French Law, he is under an obligation not to produce the will in any Court in the Indian Union. In the witness -box he states that he would not produce the will. The first defendant -petitioner produces an authenticated copy of the will. It is not denied that, if the original will were lost, the copy can be used to prove the existence and contents of the original will, under Section 65 of the Indian Evidence Act. The learned District Munsif held that, because the original will is in the possession of the notaire, the copy could not be received in evidence under Section 65 of the Evidence Act. The order of the learned District Munsif cannot be supported. Either the notaire is a person who can legally be compelled by the District Munsif to produce the document or is a person who cannot be legally compelled to do so. If he is not a person who can be legally compelled, then he is not subject to the process of the District Munsif's Court in the matter of the production of the will and secondary evidence in the form of the authenticated copy becomes admissible under the second clause of Section 65(a) of the Evidence Act. On the other hand, if he is a person who is legally bound to produce the will, he refuses to produce it notwithstanding notice to do so, and on these facts, the existence and contents of the original will can be proved under the third clause of Section 65 (a) of the Evidence Act by proof of the authenticated copy.

(2.) THE order of the District Munsif is set aside. He will permit the first defendant petitioner to prove the existence and contents of the will by proving the authenticated copy that is produced. The Civil Revision Petition is allowed. The parties will bear their own costs.