RAM PYARI Vs. BHAGWAN DASS

JUDGEMENT

(1.) Vide impugned order dated 16.10.2008, the trial court has permitted the plaintiff-respondents to lead secondary evidence pertaining to Will dated 20.1.1971, purported to have been executed by Kaura Ram in their favour.

(2.) Learned counsel for defendant- petitioner has vehemently contended that the trial court has acted illegally and arbitrarily in allowing the production of secondary evidence regarding Will dated 20.1.1971, which had never come into existence. Learned counsel has further argued that the photocopy of the Will has been permitted to be produced in secondary evidence, which is not permissible. In support of his contention he has placed reliance on the judgment of the Supreme Court in Smt. J Yashod v smt. K.Shobha Rani,2007 2 RCR 840 to contend that a photocopy of the original cannot be received as secondary evidence in terms of Section 63 of the Indian Evidence Act.

(3.) The claim of the plaintiff-respondents rests on the establishment of their rights on the basis of the due execution, relevance, admissibility and contents of Will dated 20.1.1971, purported to have been executed by Kaura Ram. Permission of secondary evidence does not mean that a document will be deemed to have been admitted in evidence or that the finding regarding the existence of the conditions, mentioned in Section 65 of the Indian Evidence Act, would be presumed. A similar question had come up before this court in case Ashok Kumar Sachdeva vs Harish Malik,2007 4 RCR 311,in which, in context to the secondary evidence it was held as follows:-