1. This writ petition is directed against the order dated 10/6/2010 passed by XLIV Additional City Civil and Sessions Judge, Bangalore in O.S.No.7871/2009 on admissibility of the Will produced by the plaintiffs.

2. The facts leading to the filing of this petition are as under.

2.1. Respondents 1 to 4 have instituted a suit against the petitioners herein and respondents 5 and 6 for the relief of perpetual injunction to restrain the defendants, their men, agents and any one claiming through under the defendants from combining the suit schedule property with any other property and also for the relief of perpetual injunction to restrain the defendant from putting up any building on schedule property other than a building meant only for the purpose of “Hajee Sallah Mohamed Ahmed Sait Cutchi Memon Jamat Khana”.

2.2. On service of summons the defendants (writ petitioners) have entered appearance and have filed their written statement in detail. On the basis of the pleadings trial court has framed issues for its consideration and in order to establish the claim made in the suit, plaintiffs had examined one witness namely plaintiff no.2 and during he course of his evidence a Will dated 19/3/1934 namely the certified copy of the said will came to be produced. This was objected to by the defendants and on considering the said objections, the court below by its order dated 10/6/2010 rejected the contention of the defendant and over ruled the objections. It is this order which is questioned in the present writ petition.

3. I have heard the learned advocates appearing for the parties, namely Sri Abhinav R. appearing for the petitioner and Sri Rajendra appearing for respondent. It is the contention of Sri Abhinav that plaintiff ought to have produced primary evidence namely original Will of in the alternative they ought to have produced Will which is claimed to have been probated before Madras High Court. In the absence thereof, he would contend that secondary evidence cannot be permitted. Even otherwise he would submit that plaintiff will have to elect as to whether they will independently prove the “said Will which has been produced by them in the present proceedings and in the absence of making an election, plaintiff should not be permitted to mark the said Will by way of secondary evidence. In support of his submission he relies upon the judgment in Clarence Pais and others versus Union of India reported in 2001(4) SCC 325 at paragraph 6 and also the judgment in the case J. Yashoda versus K. Shobha Rani. 2007(5) SCC 730.

4. Per contra Sri. Rajendra, learned counsel appearing for the respondent would support the order passed by the trial court and would submit that plaintiffs are not claiming any right under the Will and the suit is for perpetual injunction they intend only to establish the purpose for which the Will was created by original testator and the very same Will was the subject matter of probate before the Madras High Court in the reported judgment namely in the case of Abdul Sattar Ismail versus Abdul Humid Sait reported in AIR 1944 SC 504 the Will came to be probated and as such the question of producing the original Will would not arise. He would also submit that defendants themselves have admitted in the written statement about the existence of the Will and in view of this, Clause (f) of Section 65 of the Evidence Act is attracted and as such the trial court was justified in permitting the petitioner to produce the Will in question and mark the Will. Accordingly he prays for dismissal of the writ petition.

5. Having heard the learned counsel for the parties and perused order impugned in the writ petition as also the pleadings placed before the trial court, it is noticed that defendants 1 and 2 who are writ petitioners herein have in their written statement at paragraph 12 and 13 admit the last Will and testament dated 19/3/1934 executed by Hajee Sir Ismail Sait and also admit about the same being the subject ma