KARTAR KAUR Vs. GENERAL PUBLIC

JUDGEMENT

(1.) THIS order shall dispose of Civil Revision Nos. 2001 and 2002 of 2003 as both the petitions have arisen from a common order.

(2.) THIS petition filed under Article 227 of the Constitution challenges order dated 27.1.2003 passed by the learned Additional District Judge, Chandigarh dismissing the application of the applicant-petitioner Kartar Kaur in which prayer was made to adduce secondary evidence of the will dated 21.12.1994 allegedly executed by one Dr. Balwant Kaur wife of late Dr. Bishan Singh, resident of House No. 177, Sector 21-A, Chandigarh. The learned Additional District Judge has dismissed the application principally on the ground that the applicant-petitioner has failed to show the existence of the original will and in the absence of existence of the original, it is not possible to permit adducing of secondary evidence. Reliance placed on the photostat page of the will has been rejected because it is not signed by the testator. Moreover, the will in question was unregistered document. The learned Additional District Judge has placed reliance on two judgments of this Court in the cases of Krishan Kumar v. Pal Singh, 1988(2) R.C.R.(Rent) 626 : 1989(1) PLR 55 and Raj Kumar v. Daljit Kumar Punj and others, 1989 Civil Court Cases (P&H) 10.

(3.) I have thoughtfully considered the submissions made by the learned counsel and regret my inability to accept the same because it is elementary principle of law that unless the existence of a document is proved, no secondary evidence could be permitted to be adduced as is laid down by Section 65 of the Indian Evidence Act, 1872. In the present case, no proof is furnished either by producing scribe of the will or any entry in the register of the deed writer or by any other method to prove the existence of the Will. Reliance has been placed on one document alone which is claimed to be the first page of the will. Such a photostat first page of the will which is unregistered would not prove the existence of the will especially when it is not signed by the testator. If such an argument is allowed to prevail, then large number of documents can be passed to be secondary evidence of the original even in the absence of existence of the original. Therefore, there is no legal infirmity in the order passed by the learned Additional District Judge. There is ample support for the aforementioned proposition and reliance can be placed on a Constitution Bench judgment of the Supreme Court in the case of Roman Catholic Mission v. State of Madras, AIR 1966 SC 1457 and on Sital Das v. Sant Ram and others, AIR 1954 SC 606.