Point of Law: It is a settled position of law that for secondary evidence to be admitted foundational evidence has to be given being reasons as to why original Evidence has not been furnished.

JUDGMENT :

Satyen Vaidya, J.

Aggrieved against the order dated 26.8.2021, passed by learned Senior Civil Judge, Sirmour District at Nahan, H.P., in Case No. 21/1 of 2019, petitioner has approached this Court by way of instant petition.

2. Parties hereunder shall be referred by same status, which they hold before learned trial Court. Respondents No. 1 and 2 herein are plaintiffs in Civil Suit No. 21 of 2019 before learned trial Court. Petitioner and proforma-respondents are the defendants. Petitioner herein is defendant No.2.

3. Plaintiffs and defendants are real brothers and sisters. Plaintiffs have filed a suit for declaration that they have inherited the share of their mother late Smt. Pushpa Rani in the suit property on the basis of her unregistered Will dated 25.2.2017. Defendants by way of their written statement have specifically denied the execution of Will by Smt. Pushpa Rani in favour of plaintiffs. Smt. Pushpa Rani is stated to have died on 6.4.2017.

4. Plaintiffs have not produced the original Will on record of the suit by alleging that on 13.6.2017, they had visited the Halqua Patwari for mutation of the estate of late Smt. Pushpa Rani and had handed over the original Will to the Patwari. It is alleged by them that the mutation was subsequently attested in favour of all the plaintiffs and defendants in equal shares. Despite their repeated requests, the Patwari had not returned the original Will to the plaintiffs. The plaintiffs have placed on record a photocopy of the alleged Will of Smt. Pushpa Rani.

5. During the trial of the suit, plaintiffs filed an application under Section 65 of the Indian Evidence Act, (for short ‘the Act’), seeking leave of the Court to prove the Will of Smt. Pushpa rani by way of secondary evidence. The factum of original Will having been handed over to Halqua Patwari on 13.6.2017 was reiterated. They further alleged that lastly, the Halqua Patwari had admitted to have misplaced the Will in Patwar office and had promised to return the original to the plaintiffs after tracing the same.

6. Defendants contested the application by specifically denying the execution of Will by late Smt. Pushpa Rani. The version of plaintiffs with respect to the original Will being in possession of Halqua Patwari was contested as being fabricated. As per defendants, they have never been shown the original Will and hence they did not believe the version of the plaintiffs.

7. Learned trial Court allowed the application of the plaintiffs vide impugned order dated 26.8.2021 and granted them permission to prove the Will by leading secondary evidence. Defendant No.1 is before this Court by way of the instant petition against the order allowing the plaintiffs to lead the secondary evidence to prove the alleged Will.

8. I have heard the learned counsel for the parties and have also gone through the record carefully.

9. Sh. Karan Singh Kanwar, learned counsel for defendant No.1 contended that existence and loss of the original document (alleged Will) was to be proved as a sine-quanon for seeking of permission to lead secondary evidence. According to him, plaintiffs had miserably failed to discharge the burden and thus the impugned order passed by learned trial Court required interference.

10. On the other hand, Sh. Rupinder Singh, learned counsel representing the plaintiffs has defended the impugned order. He submitted that the plaintiffs had complied with the requirement of Section 66 of the Act. Notice was issued to the Patwari on 16.4.2020 through registered post, requiring her to produce and return the original Will dated 25.2.2017. In order to strengthen his argument, learned counsel for the plaintiffs also placed reliance on the contents of copies of Mutation Nos. 407 and 947, according to which, on 13.6.2017, an entry had been made purportedly in the hand of the then Patwari to the effect that the plaintiffs had presented unregistered Will of Smt. Pushpa Rani for attestation of mutation.

11. The impugned order reveals that th