KULDIP KAUR Vs. CHATTAR SINGH

JUDGEMENT

(1.) THE petitioner moved an application under Section 65 of the Evidence Act for allowing him to prove the will dated 24.3.1977 executed by Parkash Kaur and will dated 13.7.1982 executed by Puran Singh by way of secondary evidence. It is submitted that both the will have already been produced on record and the original thereof are not traceable. The defendants, however, objected to the prayer made on the ground that the petitioner- plaintiff is purposely not producing the wills in original and that the copies are not genuine and are, thus, not admissible.

(2.) BY referring to the contents of Section 65 of the Evidence Act, the Court has noticed that secondary evidence can be allowed to be led if original is lost or not found. It is also observed that factum of loss etc. is normally required to be decided on the basis of pleadings. The parties may be also required to show the existence of a document before becoming entitled to lead secondary evidence in regard thereto.

(3.) MR . Sudeep Mahajan, however, would seriously contest the contention raised by counsel for the petitioner and would say that sufficient basis have not been provided by the petitioner to entitle him to lead the secondary evidence in regard to the documents. He has made reference to Ashok Dulichand v. Madahavlal Dube and another, (1975)4 Supreme Court Cases 664 and J. Yashoda v. Smt. K. Shobha Rani, 2007(2) RCR(Civil) 840 : 2007(1) RCR(Rent) 466 : 2007(2) RAJ 607 : 2007(3) Civil Court Cases 195 (SC) to say that photostat copies of the documents were not allowed as secondary evidence in these cases on the ground that the petitioners therein could not show how the photostat copies were got made, when the original was not in the possession of the party. That requirement may not apply to the facts of the present case. In regard to one document, certified copy of the registered will has been placed on record. There is no objection made to production of this document by the counsel for the respondents as secondary evidence. The second will also concededly was in the possession of the petitioner and as such, he could have had the occasion to make photocopy thereof. Accordingly, the observations in the cases of Ashok Dulichand and J. Yashoda (supra) would not apply to the facts of the present case. The petitioner has laid sufficient basis to show existence of the document and has made an averment that the same is lost. He accordingly has made out a case for leading secondary evidence in regard to the second will also which has been declined. It will be futile to mention that only permission to lead secondary evidence has been granted and it will always be open for the parties to argue about the value to be attached to this piece of evidence, which is taken on record as secondary evidence. The impugned order to an extent declining the prayer of the petitioner for leading secondary evidence of the will of Parkash Kaur is set-aside. The petitioner would be permitted to lead secondary evidence in regard to the said will also. The present petition is accordingly allowed. Petition allowed.