PHOOL KUMARI Vs. SATNARAIN

JUDGEMENT

(1.) The present revision petition under Article 227 of the Constitution of India has been preferred by the plaintiff-petitioner challenging the order dtd. 10/8/2018 whereby an application filed by defendant-respondent No.1 on behalf of defendant-respondent Nos.1, 3 to 5 for leading secondary evidence qua Will dtd. 18/7/1988 (Ex.P/13) has been allowed.

(2.) The brief facts relevant to the present lis are that the plaintiff-petitioner filed a suit for declaration to the effect that the plaintiff-petitioner and the proforma-defendant/respondent Nos.3 to 5 are joint owners in possession to the extent of 1/12th share each and that defendant-respondent Nos.1 and 2 to the extent of 1/3rd share each in respect of land measuring 171 Kanal 07 Marlas as fully described in the plaint as well as for declaration that Will dtd. 18/7/1988 (Ex.P/13) and the revenue entries and the mutation (Ex.P/2) made on the basis of the Will are illegal, null and void and not binding on the rights of the plaintiff-petitioner. A written statement was filed on behalf of defendant-respondent Nos.1, 3, 4 and 5 wherein it has been stated that Badlu had executed a Will dtd. 18/7/1988 (Ex.P/13) in favour of defendant-respondent Nos.1 and 2 and that the said Will was in possession of defendant-respondent No.2 whereas photostat copy of the Will was in possession of defendant-respondent No.1. An application was filed for leading secondary evidence to prove the Will dtd. 18/7/1988. In the application it is stated that the original Will was with defendant-respondent No.2. It is further averred that an application has been filed by defendant-respondent Nos.1, 3 to 5 directing defendant-respondent No.2 to produce the original Will dtd. 18/7/1988. However, a reply was filed by defendant-respondent No.2 stating that the Will was not in his possession and that the Will was forged and fabricated. Hence, defendant-respondent Nos.1, 3 to 5 sought to prove the Will by way of secondary evidence. A reply was filed to the said application. Vide the impugned order the application was allowed. Hence, the present revision petition.

(3.) Learned counsel for the plaintiff-petitioner would contend that the Will sought to be produced as secondary evidence is only a photocopy and the original has never seen the light of the day. It is further the contention that photostat copies of the original cannot be received as secondary evidence in terms of Sec. 63 of the Evidence Act, 1872. In support of his argument, learned counsel has placed reliance on Smt. J. Yashoda Vs. Smt. K.Shobha Rani [2007 (2) RCR (Civil) 840], Harmanjit Kaur Vs. Jarnail Singh [2014 (3) RCR (Civil) 1638], Hira Singh and Anr. Vs. Ajit Singh [2017 (4) PLR 446] and M/s Parkash Chand Kapoor Chand Vs. Inderjit Singh and Ors. [2006 (3) RCR (Civil) 700).