KAMAL KUMAR Vs. ANKIT KUMAR AND OTHERS

JUDGEMENT

(1.) Feeling aggrieved with the order dated 12.1.2018 passed by Additional District Judge, Churu camp Sardar Sahar (hereinafter referred to as the 'trial Court') whereby the learned Court below has rejected an application under Section 65 of the Indian Evidence Act. Petitioner has invoked supervisory jurisdiction of this Court under Article 227 of the Constitution of India.

(2.) The facts relevant are that Vimla Devi executed a will in favour of defendant No.1, the petitioner herein. The said will was admittedly executed in Calcutta though it related to properties situated in Rajasthan, which are the subject matter of the suit proceedings. During pendency of suit, the petitioner filed a photostat copy of the said will dated 26.3.1994 executed by Vimla Devi and submitted an application dated 5.12017 under Section 65 of the Evidence Act seeking leave to produce secondary evidence. The respondents opposed the said application and after hearing contentions of rival parties, the trial Court rejected the said application vide its order dated 11.2018, subject matter of the present writ petition. While rejecting the application, the trial Court held that original document viz; will is inadmissible in evidence, hence permission to lead secondary evidence on the basis of its photo-stat copy cannot be granted. While holding that the will in question was inadmissible, the trial Court adopted a reasoning that the will having been executed in Calcutta requires a probate for assertion of rights arising from such will.

(3.) Though the petitioner had filed an application under Section 65 of the Evidence Act for leading secondary evidence by way of a photo-stat copy of the will, but the trial Court rejected the application holding that the permission to lead evidence on the basis of photo-stat copy cannot be given.