SMT. REKHA RANI Vs. VINEET KUMAR AND OTHERS

JUDGEMENT

(1.) Instant civil revision has been filed under Article 227 of the Constitution of India for setting aside the order dated 07.02.2013 (Annexure P-6) passed by learned Civil Judge (Jr. Divn.), Karnal whereby application moved by petitioner-defendant No. 1 under Section 65 of the Indian Evidence Act, 1872 (in short "the Act") seeking permission to prove photostat copy of Will dated 23.11.1981 allegedly executed by Krishan Lal, by way of secondary evidence, has been dismissed. Shorn of unnecessary details, the facts relevant for disposal of the present petition are to the effect that plaintiffs filed suit for declaration and possession with consequential relief of permanent injunction. The plaintiffs being legal heirs of Krishan Lal have sought the possession of the property in dispute and claimed that the sale deed dated 26.05.2009 executed by defendants No. 2 and 3 in favour of defendant No. 1 regarding the property in dispute and alleged Will dated 23.11.1981 executed by Krishan Lal are null and void and not binding on the rights of the plaintiffs. During the pendency of suit, defendant No. 1 filed application for leading secondary evidence in shape of photostat copy of Will dated 23.11.1981 executed by Krishan Lal. It was mentioned in the application that defendant No. 1 filed list of witnesses and summoned the record i.e. probation petition No. 358/88, instituted on 05.12.1998 from Delhi Court wherein the probation was sought on the basis of Will dated 23.11.1981. Defendant No. 1 inspected the relevant record and found that original Will is not there and photostat copy of the same is placed on record. On enquiry being made from defendants No. 2 and 3, defendant No. 1 came to know that original Will dated 23.11.1981 has been lost and they could not find the same. The case of the petitioner is totally based upon the alleged Will dated 23.11.1981 as well as the sale deed dated 26.05.2009. Therefore, the application was filed by defendant No. 1 for proving the photostat copy of the alleged Will dated 23.11.1981 by way of secondary evidence. The said application was contested by the plaintiffs. It was averred that the alleged Will dated 23.11.1981 is a forged and fabricated document. The loss of alleged Will dated 23.11.1981 has not been reported to the police. It was also mentioned that the alleged sale deed dated 26.05.2009 is also a forged and fabricated document. Vide impugned order dated 07.02.2013, the trial Court after considering the pleadings dismissed the said application. Hence, this revision petition.

(2.) I have heard learned counsel for the parties and perused the record.

(3.) Learned counsel for the petitioner has vehemently contended that the petitioner is entitled to prove the alleged Will dated 23.11.1981 by leading secondary evidence as the original of the same has been lost. Factum with regard to the loss of alleged original Will need not be strictly proved but a foundation has to be laid which has been laid down in the application. The learned counsel has further contended that existence of alleged Will dated 23.11.1981 is prima facie proved on the basis of register of deed writer, probate proceedings and sale deed executed by defendants No. 2 and 3. The loss of alleged Will dated 23.11.1981 is apparently proved. However, the trial court has dismissed the application in mechanical manner only on the ground that case of probate proceedings have not matured and has been adjourned sine die and without affording adequate opportunity.