KANWARJITSINGH R. CHADHA Vs. SAHEBRAO GAJANAN SALVE

JUDGEMENT

(1.) Rule. Rule returnable forthwith. By consent of the parties, Rule called out and heard finally at the admission stage.

(2.) This petition challenges the order dated 12.9.2012 passed by the learned 6th Joint Civil Judge, Junior Division, Nashik. The petitioner is the original defendant No.1. The plaintiff has filed the suit for partition, possession and also challenged the sale deed executed in favour of Defendant No.1 i.e., the petitioner. In the course of evidence, the defendant has moved application for taking secondary evidence i.e., attested copy of the will on record. The trial Court has allowed the secondary evidence, however, subject to execution of the said will being proved as per section 68 of the Evidence Act.

(3.) The learned Counsel for the petitioner submits that the learned trial Court ought to have exhibited the will as it is admitted by the plaintiff in the averments. It is submitted in para 3 of the plaint that the plaintiff has averred that the deceased Gajanan Sambhaji Salve has made will dated 9.3.1993 in respect of the suit land and has admitted that a particular portion of the land had fallen to the share of Respondent No.2 - Laxmibai Gajanan Salve from whom the defendant No.1 has purchased the property. He further submitted that in the affidavit in lieu of examination in chief also, the same fact is reiterated. Thus, in view of this admission, the trial Court ought to have exhibited the said document as the contents in the document are proved. The learned counsel in support of his submission relied on the ruling in the case of Thayyulllathil Kunhikannan & Ors. vs. Thayyullathil Kalliani & Ors, 1990 AIR(Ker) 226.