C.M. PRASAD Vs. CHANNAVAIJHALA POORA CHANDRA PRASAD

JUDGEMENT

(1.) This Civil Revision Petition is filed by the petitioner/2 nd defendant under Article 227 of Constitution of India against the orders passed by the learned I Additional Senior Civil Judge, Guntur, in I.A.No.280 of 2016 in O.S.No.134 of 2014 wherein and whereby the learned trial Judge dismissed the petition filed by the petitioner/defendants 2, 4, 5 and 6 under Sec. 65 of Evidence Act and refused to receive Photostat copy of the Will Deed as secondary evidence.

(2.) Before the trial Court R5/D6 filed petition on her behalf and also on behalf of D2, D4, D5 under Sec. 65 of Evidence Act stating that suit is filed by R1/plaintiff with false averment that plaint schedule property was the self-acquired property of late Sri C.L.N.Murthy, who died intestate and thereafter R1 and other defendants succeeded the suit schedule property with equal rights. She submits that plaint schedule property is never a joint property of R1 and themselves as after the death of late Sri C.L.N.Murthy, who executed a Will in his own handwriting during his lifetime sent the copies of said Will to all his children, i.e. to herself and all the respondents. It is the contention of R5/D6 that after the death of late Sri C.L.N.Murthy, on the 12th day, R1/plaintiff has also read over the Will executed by Sri C.L.N.Murthy, in front of all family members. It is the contention of R5/D6 that as per the contents of said Will there were several fixed deposits stood in the name of R1/plaintiff or he was nominated which were taken over by R1 and there are other properties in the name of late Sri C.L.N.Murthy on the date of his death, which properties were given to his other children also and they are under exclusive possession and enjoyment of said property shown in the Will. She further submits that R1/plaintiff cannot seek the partition of the plaint schedule property contending that those are joint properties. The main contention of R5/D6 is that original Will is not available as on date and as per her knowledge and other respondents, the same is in the custody of R1/plaintiff, but R1 deliberately denied the said fact, due to that it has become necessary for them to file photostat copy of Will dtd. 1/8/1993 executed by late Sri C.L.N.Murthy as exhibit and mark the same by treating it as secondary evidence. Hence she prays to allow the petition.

(3.) The learned trial Judge after hearing both sides dismissed the petition filed by R5/D6 along with D2, D4 and D5 on the ground that petitioners/defendants failed to lay foundation as required under Sec. 65(a) of Indian Evidence Act to accept the xerox copy of the Will dtd. 1/8/1993 and petition filed under Sec. 65 of Indian Evidence Act, which is substantial law but not under procedural law, which is not maintainable.