VIJAY KUMAR Vs. SANJAY KUMAR

JUDGEMENT

(1.) HAVING regard to the material part of the written statement read out in the vernacular today in Court by the learned counsel, though not placed on the record of this file, and finding that a clear defence was taken of the suit based on rights claimed under an unregistered Will dated July 28, 1987 and further paying due regard to the averments made in the application for permission to lead secondary evidence with respect to that testamentary Will, which is stated to be lost and not traceable, the petitioner cannot be said not to deserve an opportunity to lead secondary evidence in proof of existence of the Will in terms of Section 65 of the Evidence Act. The impugned order passed by the learned trial Court on July 16, 2014 appears not to satisfy the positive test of Section 65 of the Act. It is mostly a matter purely in the realm of evidence and trial of whether the attested/photocopy of the Will has any probative and evidentiary value governing the rights of the producing party thereunder which may or may not be ultimately accepted by the trial Court. But to say that the petitioner has no right to lead secondary evidence at all is not a correct view in law. The defendant must have a reasonable opportunity and chance to lead evidence in proof of the attested/photocopy of the Will. This right cannot be foreclosed at this premature stage. Much will depend on the evidence which may be brought on record and the attending circumstances with respect to the execution of the Will and what its attesting witness may depose in court. It is not that the existence of the alleged Will was not pleaded at the earliest opportunity available to the petitioner in the written statement. When such a plea was taken the respondents would hardly have a right to defend the order before this Court on summons issued. Adopting such a course would not only delay the trial but would lead to unnecessary and avoidable expense on the respondents. It is also not a case where the opposite party would have costs if a notice were issued to them causing their appearance before this Court in defence of the petition.

(2.) RESULTANTLY , this petition is accepted. The impugned order dated July 16, 2014 is set aside. The petitioner is permitted to lead secondary evidence with respect to the attested/photocopy of the Will dated July 28, 1987 which was duly pleaded in defence of the suit in the written statement.