BEANT KAUR Vs. GURLABH SINGH

JUDGEMENT

(1.) THE defendant, who contested the plaintiff's suit that was with reference to the estate of Smt. Lal Amol Kaur, filed application at the fag end of the trial for reception of the original of the Will alleged to have been executed by the Smt. Lal Amol Kaur. The trial court has also framed additional issue, namely, whether the Will registered on 08.07.2008 is valid and cast the onus of proof on the defendant. When DW1 was brought by the defendant as a witness only a certified copy of the Will had been produced. It would seem that the defendant had filed only photocopy of the Will and the plaintiff had sought for production of the Will and the court had also ordered its production by its order dated 02.04.2007. Apart from the photocopy, the defendant was said to have also produced for the "original copy of the Will" (sic). The lower court observed that the counsel for the plaintiff stated at the bar that he did not press his application for production of the document, but the defendant would be liable to produce the same in court at the time of evidence of the plaintiff. Admittedly, the original was not produced so long as the plaintiff's side was closed. When the evidence to the Will was examined as DW1, again he had only made reference to Ex.D1 which was the copy of the Will exhibited but the original was not filed. When DW2 -the defendant was examined, he made a reference to the copy of the Will already brought on record as Ex.D1. He claimed that he had brought the original with him on the day of evidence. Curiously, the court had observed that the original was seen and returned. The trial Judge also did not concern himself that if there was an original document which he was making reference to, he should exhibit only the original and should not have returned it to the party.

(2.) MUCH could be said about both parties and the Presiding Officer. The party did not know that the original alone could be filed and produced as exhibit and a copy cannot be produced otherwise than under the circumstances mentioned under Section 65 of the Evidence Act. The Presiding Officer allowed the defendant to take back the Will and after the side was closed, the defendant woke up to the situation that the original had not been filed at all. He has, therefore, filed a petition that the original has been omitted to be produced and he was producing the same. The plaintiff justifiably took objection that the document could not be produced at the belated stage and it would amount to filling up a lacuna. This objection prevailed at the trial Judge and he dismissed the offer for production of the original.

(3.) I may only observe that the non -production of original Will even when it was available was only a case of ignorance than the contumacious conduct. The fact is that the original had been produced when the plaintiff was asking for its production before the settlement of issues and it was recorded by the court itself and he has framed the issue allowing for the document to be brought again at the time when the plaintiff was examined. Again the document was produced before the court when the defendant was examining herself as DW2. The court has seen the original and recorded it as such and returned the same to the party. This would show that the defendant was not shying away from its production but was not guided properly for its production at the right time.