SHANTI DEVI Vs. HARBANS SINGH

JUDGEMENT

(1.) THIS revision petition as directed against the order of the trial court dated October 24, 1987, whereby the defendants have been allowed to lead secondary evidence with respect to the will alleged to have been executed by Balak Singh deceased in their favour.

(2.) ACCORDING to the learned counsel for the plaintiff-petitioner the question of leading second try evidence of any document cannot be allowed unless one or more of the ingredients mentioned in Section 65 of the Indian Evidence Act, are proved to exist. According to the learned counsel, the averment made in the application by the defendants are that the original will was given to one Jagdev Dass at the time of sanctioning the mutation in their favour, but now he is not giving the same and is demanding Rs. 25,000/. Thus, argued the learned counsel, this being the allegation made by the defendants, notice was necessary to be sent to Jagdev Dass under Section 66 of the Indian Evidence Act (in short the Act ). Without that the question of allowing the secondary evidence as such could not arise.

(3.) ON the other hand, learned counsel for the defendant respondents submitted that notice under Section 66 of the Evidence Act could be dispensed with and in support of this contention reference was made to Surendra Krishana v. Mirza Mohammad Syed Ali, A. I. R. 1936 P. C. 15, He, however, submitted that he has been allowed to lead secondary evidence subject to proof of the loss of original Will and therefore, no interference was called for in revisional jurisdiction.