NARENDRA KUMAR Vs. DEEPCHAND

JUDGEMENT

(1.) This petition has been filed under Article 227 of the Constitution of India by the petitioner/plaintiff against the order dated 12.04.2022, passed in Case No. 51-A/2020 by the Fifth Civil Judge, Senior Division, District Ujjain, whereby the application filed by the respondents/defendants under Section 65 of the Evidence Act, 1872 (hereinafter referred to as 'the Evidence Act') has been allowed (Annexure-P-1).

(2.) Brief facts of the case are that the petitioner has filed a suit for declaration, injunction, and partition against the respondents/defendants. According to the plaint, the disputed property belonged to one Sumitrabai, who happens to be the mother of the plaintiff, wife of defendant No.1, and mother of defendants No. 2 and 3. Plaintiff's contention is that the property is purchased by Sumitrabai from her joint family's income. The suit is at the stage of recording evidence, and defendants' evidence is being recorded. In contrast to the plaintiff's case, in their written statement, the defendants' contention is that late Sumitrabai left behind a Will dtd. 25/8/2012, on the basis of which they are claiming their rights. Thus, to bring the original Will on which the reliance has been placed by the defendants, an application under Order 11 Rule 14 of C.P.C. was filed by the plaintiff, seeking a direction to the defendants to produce the original Will dtd. 25/8/2012. The aforesaid application was allowed by the trial court vide order dtd. 17/8/2015, and the defendants were directed to produce the original Will. However, on 8/10/2015, an affidavit was filed by the defendants, stating that the aforesaid Will is lost somewhere, and they have also made a complaint at the Police station, Dewas, a copy of which was also filed along with the affidavit.

(3.) During the course of hearing of this affidavit, counsel for the defendants also submitted before the trial Court that since the photo copy of the Will is already on record, the same may be considered as secondary evidence of the original Will, and the Court, vide its order dated 08.10.2015 has also accepted the aforesaid submission to accept the aforesaid Will as secondary evidence.