GURCHETAN SINGH Vs. KARNAIL KAUR

JUDGEMENT

(1.) THIS civil revision has been directed against the order of learned Sub Judge 1st Class, Jagraon dismissing the application of defendants No. 1 and 2 to produce secondary evidence of the will dated 5. 3. 1984 alleged to have been executed by Waryam Singh.

(2.) WARYAM Singh who died on 29. 9. 1984 leaving behind Karnail Kaur, daughter, Ajit Singh, son Nasib Kaur widow of Jarnail Singh, Pritam Kaur, Amarjit Kaur, Gurchetan Singh, Charan Singh, Pritam Singh, daughters and sons of Jarnail Singh who predeceased his father Waryam Singh. On the death of Waryam Singh, mutation to his inheritance was sanctioned on 6. 8. 1985 on the basis of unregistered Will dated 5. 3. 1984 in favour of Ajit Singh to the extent of 1/2 share and the remaining 1/2 share was sanctioned in favour of Gurchetan Singh and Charan Singh. Before the Revenue Officer, Ajit Singh at the time of mutation produced original Will along with photostat copy of the same. Mutation was confirmed by Tehsildar on 29. 8. 1985 in presence of Charan Singh and Karnail Kaur and another heir of Jarnail Singh. As per the case of the petitioners, Ajit Singh mortgaged land which had fallen to his share in favour of Bank of India for a sum of Rs. 15,000/- and mutation to that effect was also sanctioned. Petitioners also mortgaged some land in favour of the bank to get some loan. On 14. 5 1990 Karnail Kaur filed a suit for possession claiming 1/3rd share of the property belonging to Waryam Singh. In her suit, she claimed to be one of the heirs and thus entitled to 1/3rd share. Mutation sanctioned in pursuance of the Will was claimed to be illegal and not binding on her. Petitioners filed written statement on 15. 6. 1990. In the written statement, the petitioners controverted the allegation made in the plaint and alleged that Waryam Singh executed a valid Will dated 5. 3. 1984. Ajit Singh also filed a written statement on 25. 7. 1990 but he, in the written statement, admitted the case of the plaintiff. Plaintiff Karnail Kaur thereafter called upon the petitioner by way of an application to produce the original Will. On 28. 8. 1990, counsel for the petitioners made a statement in the Court that the original Will is in possession of Ajit Singh and he be asked to produce the same. Ajit Singh in his affidavit, denied the existence of the Will. Rather, he claimed that no such Will was ever executed by Waryam Singh. Petitioner thereafter made an application to produce and prove will by way of secondary evidence. This application was dismissed by the trial Court in view of affidavit filed by Ajit Singh. This order has been impugned in this Civil revision.

(3.) AFTER hearing the learned counsel for the parties at length, I am of the view that the order of the trial Court cannot be sustained. Petitioners in the facts and circumstances of the. present case, have satisfied the conditions of Section 65 of the Indian Evidence Act for leading secondary evidence. Petitioners have been able to show that the Original Will was in possession and power of Ajit Singh against whom they are also seeking to prove the said Will. Ajit Singh, despite issuance of notice to him under Section 66 of the Indian Evidence Act, has not produced the original Will. Rather, he has denied the existence of the Will and, therefore, the only alternative left with the petitioners is to prove the original Will by way of secondary evidence. Trial Court while declining the prayer of the petitioners to produce and prove the Will by way of secondary evidence, primarily took into consideration that Ajit Singh denied the existence of the Will against his own interest, and therefore, in case the same had been in his possession, he would have produced the same as he was to get 1/2 share instead of 1/3rd share in absence of the Will. I am afraid to subscribe to this reasoning. Plaintiff, apart from claiming property on the basis of inheritance, is also challenging mutation which was entered in pursuance of the Will. Mutation which was sanctioned on 6. 8. 1985 clearly recites that Will was produced by Ajit Singh. Therefore, if at any subsequent stage, Ajit Singh has denied the existence of the Will the same will not bar the petitioners to prove the Will by way of secondary evidence. The judgment relied upon by the trial Court Rabinder Singh v. Hardyal Singh etc. , 1978 Current Law Journal 256, has no application to the facts of the present case. In Rabinder Singh's case (supra), the averments made in the application to prove the document by secondary evidence was not substantiated from the averments made in the written statement and, therefore, the application was rejected. However, in the present case, order sanctioning mutation dated 6 8. 1985 shows that Will was produced before the Revenue authorities by Ajit Singh and he having now denied the existence of the Will, the loss of the Will is proved and therefore, petitioners are entitled to prove the Will by leading secondary evidence.