RAKSHA DEVI Vs. BALDEV DUTT

JUDGEMENT

(1.) C.M. No. 6696 -CII of 2014

(2.) THE revision is against the order allowing for secondary evidence of a Will to be brought on record. The case is between the mother and son. The son has relied on a Will said to have been executed by the father. In mutation proceedings that commenced subsequent to the death of the father, it appears that the Will was produced, on the basis of which, mutation had been ordered. The mother, however, had not been served with notice, and the suit is filed challenging the Will. The defendant had summoned a Clerk from the Record Room, Jalandhar, which has carried out the mutation of the Will. He gave evidence on oath that the Will was not available and that it was possible that it was with the office of the Kanungo, Nakodar Gurmail Singh, a person, who was working in the office of Kanungo, was also summoned, who also given statement in court that the mutation regarding inheritance of Lal Chand had been carried out but the records have been destroyed after a period of 5 years and that the Will was not available. There is sufficient basis for the defendant to file secondary evidence of the alleged Will and the explanation for his inability to produce the original is brought through the statement of witnesses from the government office. Section 65 of the Evidence Act enacts a rule of evidence that the secondary evidence could be produced in a situation where the original is lost or destroyed. That evidence is now available and the defendant is entitled therefore to file secondary evidence of the alleged Will. It must be remembered that the receipt of secondary evidence does not dispense with requirement of proof in the manner required by law, namely, under Section 63 of the Indian Succession Act and under Section 68 of the Evidence Act. The plaintiff cannot in any way be prejudiced by the reception of secondary evidence for mere exhibition of document in evidence cannot amount to proof of the same. The plaintiff will be at liberty to join issues on genuineness or otherwise of the Will by a stout contest at the trial. There is no justification for the revision now to challenge the order permitting the defendant to file secondary evidence in the alleged Will. There is no scope for interference. The revision petition is dismissed.