Punjab-Haryana High Court
Smt. Shanti Devi vs Harbans Singh And Anr. on 28 May, 1990
Equivalent citations: (1990)98PLR228
JUDGMENT
J.V. Gupta, Acting C.J.
1. This revision petition as directed against the order of the trial court dated October 24, 1987, whereby the defendants have been allowed to lead secondary evidence with respect to the will alleged to have been executed by Balak Singh deceased in their favour.
2. According to the learned counsel for the plaintiff-petitioner the question of leading second try evidence of any document cannot be allowed unless one or more of the ingredients mentioned in Section 65 of the Indian Evidence Act, are proved to exist. According to the learned counsel, the averment made in the application by the defendants are that the original will was given to one Jagdev Dass at the time of sanctioning the mutation in their favour, but now he is not giving the same and is demanding Rs. 25,000/. Thus, argued the learned counsel, this being the allegation made by the defendants, notice was necessary to be sent to Jagdev Dass under Section 66 of the Indian Evidence Act (in short the Act). Without that the question of allowing the secondary evidence as such could not arise.
3. On the other hand, learned counsel for the defendant respondents submitted that notice under Section 66 of the Evidence Act could be dispensed with and in support of this contention reference was made to Surendra Krishana v. Mirza Mohammad Syed Ali, A.I.R. 1936 P.C. 15, He, however, submitted that he has been allowed to lead secondary evidence subject to proof of the loss of original Will and therefore, no interference was called for in revisional jurisdiction.
4. After hearing the learned counsel for the parties, I am of the considered view that before the trial Court could allow to prove the execution of the will by way of secondary evidence, the defendants could prove the allegations made in the application. Since according to the allegations made therein the original will was taken away by Shri Jagdev Dass son of Nikka Dass, who is married with the father's sister of the defendants, and he has refused to return the will to them. That being so, notice under Section 66 of the Act to Shri Jagdev Dass was necessary. Though the trial Court has ordered that the evidence will be allowed subject to proof of the loss of original will but before this direction could be given the defendants must prove the loss of the original Will as contemplated under Section 65 Clause (a) read with Section 66 of the Act.
5. It is, therefore, directed that at this stage defendants will only be allowed to prove the loss of the original Will to the satisfaction of the trial Court. If the trial Court is satisfied from the evidence produced by the defendants, only then the question of leading secondary evidence will be considered afresh. The petition is disposed of accordingly.