Petitioners are the plaintiffs in O.S. No. 237 of 2003 before the Civil Judge (Junior Division), Magadi. 1st petitioner was examined as P.W. 1 in part. In the process of his evidence, he sought permission of the Court to mark a Will said to have been executed by his mother-in-law bequeathing the suit schedule property in favour of the plaintiffs. Trial Court has refused to grant permission to the petitioners to mark the said document through the 1st petitioner on the ground that he is the propounder of the Will and cannot be marked through a propounder and Will can be marked only through the attestor as required under Section 68 of the Indian Evidence Act, 1872. This order is called in question is this writ petition.

2. Heard the Counsel for the petitioners.

3. By looking into the provisions of Section 68 of the Indian Evidence Act, it is clear to the Court that if a document is required to be attested, it shall not be used as evidence until one attesting witness has to be called for the purpose of proving its execution. Now in this background, this Court has to examine the definition clause of 'Evidence' under Section 3 of the Indian Evidence Act. Definition of the word 'Evidence' reads as hereunder:

"Evidence.-'Evidence' means and includes.-

(1) all statements which the Court permits or requires to be made before it by witnesses, in relation to matters of fact under inquiry;

such statements are called oral evidence;

(2) all documents (including electronic records) produced for the inspection of the Court;

such documents are called documentary evidence".

In view of the definition of the word 'Evidence', if a Will has to be produced in evidence, first it has to be produced through an attestor. But the learned Counsel for the petitioners contends that in view of the amendment to the CPC, witness cannot be permitted to be examined first unless and until plaintiff is examined at the first instance. Therefore, he contends that petitioners have to be permitted to mark the Will as an exhibit, subject to proving the Will and after the evidence of the plaintiff, plaintiffs have to be permitted to examine the attestor to prove the execution of the Will as required under Section 68 of the Indian Evidence Act. According to him, marking of a document is different from proving a document.

4. So far as the submission of the learned Counsel for the petitioners that mere marking of a document does not amount to proving of a document. There cannot be any two opinion. But the question is that if Section 68 of the Indian Evidence Act requires a party to produce the said document in evidence by examining an attestor, petitioners cannot be permitted to mark such document in their examination-in-chief without marking a Will through an attestor. In such circumstances, by seeking permission of the Court to lead further evidence on the document in question, petitioners can examine the attestor to the Will and mark the Will through an attestor and thereafter if necessity arises petitioners can request the Court to lead further evidence on the Will in question by the petitioners. Therefore, in the circumstances, I do not see any reasons to interfere with the orders of the Trial Court.

5. Accordingly, this petition is rejected by observing that petitioners may be permitted to examine the attestor first to mark the Will and prove the Will and thereafter if necessity arises they can seek permission of the Court to lead further evidence on the document in question and if such a request is made by the petitioners, Trial Court shall permit the petitioners in accordance with law.