SANTOSH KUMARI Vs. SHADI LAL MANCHANDA

JUDGEMENT

(1.) Defendant No. 4/petitioner is assailing the order dated 15.1.2010, passed by Civil Judge (Junior Division), Jagadhri, whereby application moved by defendant No. 4/petitioner, seeking permission to lead secondary evidence to prove 'Will' dated 5.6.1970, was rejected.

(2.) Brief facts of the case are that defendant No. 4/petitioner is claiming title over the property in dispute on the basis of sale deed dated 6.12.2000 executed by defendant No. 2. The further case of defendant No. 4/petitioner is that defendant No. 1 has acquired title over the entire property, including the property purchased by defendant No. 4/petitioner from defendant No. 1 on the basis of 'Will' dated 5.6.1970 allegedly executed by father of defendant No. 1 Yog Raj. The further case of defendant No. 4/petitioner is that at the time of sale deed dated 6.12.2000, photocopy of the 'Will' was handed over to defendant No. 4 by the executant of the sale deed defendant No. 1. Plaintiffs are challenging authority of defendant No. 1 to transfer the property in question in favour of defendant No. 4 saying father Yog Raj never executed 'Will' dated 5.6.1970, hence in the suit sole question involved is, as to whether defendant No. 1 has acquired any title from his father Yog Raj pursuant to the 'Will' dated 5.6.1970 and has validly transferred the property in favour of defendant No. 4/petitioner pursuant to the 'Will' dated 5.6.1970. In the suit, defendant No. 4/petitioner has earlier moved an application asking defendant No. 1 to produce original 'Will' on the record. However, in reply to the application, defendant No. 1 has stated that while transferring other half of the portion of the property in favour of Inderjit Kaur, the original 'Will' was handed over in favour of Inderjit Kaur, hence he is not in possession of the original 'Will'. Thereafter, defendant No. 4 has move3d the present application seeking permission from the Court to prove the photocopy of the 'Will' dated 5.6.1970 by secondary evidence. The application of defendant No. 4/petitioner came to be dismissed, hence this petition.

(3.) I have heard the learned Counsel for the parties and perused the record. Undisputedly, in the present case the sole question revolves around the 'Will' dated 5.6.1970 allegedly executed by Sh. Yog Raj, father of defendant No. 1 in favour of defendant No. 1. The case of defendant No. 4/petitioner is that she has purchased the property from defendant No. 1 and at the time of the sale deed by defendant No. 1 in favour of defendant No. 4, original 'Will' was retained by defendant No. 1, however, photocopy thereof was delivered to defendant No. 4. Undisputedly, defendant No. 4/petitioner has also moved earlier application calling defendant No. 1 to produce original 'Will' on the record. Undisputedly, in reply to that previous application defendant No. 1 has contended in the Court that he was having original 'Will' in his possession, however, when he transferred half of the property in favour of Inderjit Kaur, he has delivered the original 'Will' as well as the earlier sale deed to Inderjit Kaur-purchaser. Now, case set up by defendant No. 4/petitioner is that on the contact Inderjit Kaur has stated that original 'Will' has been lost somewhere from her possession.