Point of Law: Will - Proof of documents by primary evidence.—Documents must be proved by primary evidence except When the original is shown or appears to be in the possession or power— of the person against whom the document is sought to be proved, or of any person out of reach of, or not subject to, the process of the Court.

ORDER :

Instant civil revision petition filed under S.115 CPC lays challenge to order dated 4.8.2022 passed by learned senior sub judge, Court No. 1, Amb, District Una, Himachal Pradesh in Civil Suit No. 118-112-I-XVI(Annexure P-3), whereby an application having been fled by the respondents/defendants (hereinafter, ‘defendants’) under S. 65 of the Indian Evidence Act read with S.151 CPC, seeking therein permission to prove Will dated 29.5.2014, by leading secondary evidence, came to be allowed.

2. Precisely, the facts of the case as emerge from the record are that the petitioners/plaintiffs (hereinafter, ‘plaintiffs’) filed a suit for declaration that they are owner-in-possession qua share of deceased Surender Kumar in the property described in the plaint. Aforesaid plea came to be made on the basis that the suit property is joint Hindu family co-parcenery ancestral property and alleged Will executed by late Surender Kumar is bad in law. Aforesaid suit filed by the plaintiffs came to be opposed on behalf of the defendants on the ground that they are owner-in-possession of the suit land on the basis of Will dated 29.5.2014, executed by late Surender Kumar in their favour. Defendants specifically denied the allegation that the Will sought to be relied upon by them is the result of coercion and fraud. During pendency of the suit and before conclusion of the evidence, defendant No. 2 filed an application under S. 65 of the Indian Evidence Act, seeking permission to lead secondary evidence with regard to registered Will dated 29.5.2014 (Annexure P-1). In the aforesaid application, defendants averred that though the plaintiffs have filed suit for declaration, claiming themselves to be owner of the suit property on the basis that the suit land is joint Hindu family co-parcenery property under Mitakshara Hindu Law but the person, who is owner of joint Hindu family co-parcenery ancestral property has already partitioned the suit land between the predecessor-in-interest of late Surender Kuamr, who bequeathed his share in favour of the defendants. Defendants also claimed in the application that they are exclusive owner-in-possession of the property of late Surender Kumar on the basis of Will dated 27.5.2014, registered on 29.5.2014 vide Wasika No. 211. Defendants stated in the application that the main controversy in the matter is with regard to execution of Will dated 29.5.2014 by the deceased Surender Kumar, photocopy of certified copy whereof is already filed. It is stated by the defendants that as per law of evidence, its original is required. Defendants stated in the application that the original of the same was given by them to the Patwari Halka for entering mutation but now their counsel has informed that he has misplaced the original Will, as such, they be permitted to prove the execution of Will, photocopy whereof is already on record, by leading secondary evidence.

3. Aforesaid prayer made on behalf of the defendants came to be resisted by the plaintiffs, who in their reply denied the factum with regard to execution of Will, if any, by late Surender Kumar. They specifically denied the averment made on behalf of the defendants, that they had handed over the original of the Will to their counsel, but he lost the same.

4. Learned Court below, on the basis of pleadings adduced on record by respective parties, vide impugned order dated 4.8.2022, allowed the application, subject to payment of cost of Rs. 15,000/-. While accepting the prayer made on behalf of the defendants, court below observed in the order that merely granting prayer to lead secondary evidence regarding document does not mean that it is taken to be proved, rather, the same is required to be proved in accordance with law and no prejudice shall be caused to the opposite party, if application is allowed, as the plaintiffs would get chance to cross-examine the witness, who shall be produced to prove said Will. In the aforesaid background, plaintiffs have approached this Cou