Punjab-Haryana High Court
Kamlesh Kaur vs Lakhwinder Singh And Ors on 10 November, 2014
Author: Jaswant Singh
Bench: Jaswant Singh
CR No.7559 of 2014 #1#
IN THE HIGH COURT OF PUNJAB & HARYANA AT
CHANDIGARH.
CR No.7559 of 2014
Date of Decision:-10.11.2014
Kamlesh Kaur.
......Petitioner.
Versus
Lakhwinder Singh & Ors.
......Respondents.
CORAM:- HON'BLE MR. JUSTICE JASWANT SINGH
Present:- Mr. Jasraj Singh, Advocate for the Petitioner.
***
JASWANT SINGH, J.(ORAL)
Plaintiff no.3 is in revision aggrieved against the order dated 10.10.2014 (P-5) passed by the learned Civil Judge(Jr. Divn.), Dasuya whereby the application filed by the defendant nos.1 & 2/respondents for leading secondary evidence to prove the attested photocopy of Will dated 27.8.2013 executed by Amar Kaur in favour of the defendants has been allowed.
Learned Counsel for the petitioner has argued that the learned trial Court has wrongly accepted the application of the defendant nos.1 & 2 for leading secondary evidence as the same is not permissible under law because they have not been able to show good and justifiable reasons for permission to lead secondary evidence. It has been further argued that the learned Court below has failed to appreciate the fact that the reasons given by the defendants for leading secondary evidence are only a tactic to VINAY MAHAJAN 2014.11.21 16:43 I attest to the accuracy and authenticity of this document at Chandigarh CR No.7559 of 2014 #2# prolong the litigation and in fact, the Will in question itself was never executed by the testator. In support of his contentions, he has placed reliance upon Smt. J. Yashoda Vs. Smt. K. Shobha Rani 2007(2) RCR (Civil) 840, H. Siddiqui (D) by Lrs Vs. A Ramlingam 2011 AIR SC (Civil) 940, Kaliya Vs. State of Madhya Pradesh 2013(3) RCR (Criminal) 958, Jawahar Lal Vs. Surinder Singh & Ors. 2014(1) RCR (Civil) 520 and Surinder Kaur Vs. Mehal Singh & Ors. 2014(1) RCR (Civil) 467.
After hearing learned Counsel for the petitioners and perusing the paper book, this Court is of the considered view that the present petition is devoid of any merit and the same deserves to be dismissed.
A perusal of the record would show that the learned trial Court while allowing the application has taken into consideration the fact that the original copy of the Will dated 27.8.2003 was given by the defendants to the Revenue Authorities for the purpose of mutation. It is further evident from the record that defendants had called upon DW-4 Munish Kumar, Assistant Officer, Kanguho, dasuya who had stated in categoric terms that the said original Will is not traceable in his office. In view of the statement of DW- 4 the learned trial Court was justified in permitting the defendants to lead secondary evidence qua the Will dated 27.8.2003 because the primary evidence i.e. the original Will was not available and they had given cogent reasons for not producing the same. It is by now settled position of law that at the time of allowing of secondary evidence, the only prima facie case of existence and loss of the original document is required to be proved. DW-3 Sardara Singh concerned Clerk from the DC Office, Hoshiarpur had brought the original mutation register containing mutation nos.2343 and 1481. Both VINAY MAHAJAN 2014.11.21 16:43 I attest to the accuracy and authenticity of this document at Chandigarh CR No.7559 of 2014 #3# of these mutations have been sanctioned on the basis of Will dated 27.8.2013. Thus, a prima facie case of existence of the Will in question stands proved. In view of the statements of DW-3 and DW-4 it stands proved that prima facie a Will is in existence and the same has been lost not due to the fault of the defendants. The judgments that have been relied upon by the learned Counsel for the petitioner are based upon its own facts and circumstances and do not in any way help the case of the petitioners especially when the defendants have been able to show their bona fides.
In view of the above, finding no merit in the present revision petition, the same is hereby dismissed with cost of Rs.10,000/- to be deposited with Punjab State Legal Services Authority, Hoshiarpur Branch.
( JASWANT SINGH ) JUDGE November 10, 2014 Vinay VINAY MAHAJAN 2014.11.21 16:43 I attest to the accuracy and authenticity of this document at Chandigarh