Secondary evidence requires cogent evidence of document loss; mere assertions do not suffice under Section 65 of the Indian Evidence Act.

The present petition arises out of the impugned order dated 11.06.2025, passed by learned Senior Civil Judge, Amb, District Una, H.P. in CMA No. 432 of 2025, titled Tara Rani vs. Bishani Devi & others, whereby application filed under Section 65 of Indian Evidence Act, 1872 for granting permission to prove the unregistered /oral will dated 12.09.1999 by way of leading the secondary evidence has been allowed.

2. The brief facts of the case are that the present petitioner filed a suit for declaration to the effect that the plaintiff is joint owner in possession with defendant and the proforma defendants qua the share to the extent of 1/6th share in the estate of deceased Rikhi Ram, S/O Babu Ram over the suit land. It was averred that the parties are class-I heirs of deceased Rikhi Ram, who died on 16.09.1999. After the death of deceased Rikhi Ram, the plaintiff is owner in possession alongwith defendant and proforma defendants in equal shares.

3. That the deceased Rikhi Ram had no intention to execute any Will in favour of defendant alone. In the month of October, 2012 when the plaintiff came to her parental house, then defendant No.1 started proclaiming that she is the sole owner of the estate of deceased Rikhi Ram on the basis of some oral Will and she had also got sanctioned the mutation in respect of the suit land on the basis of the said Will. The plaintiff thereafter became suspicious and inquired the matter from Halqa Patwari and collected the revenue record and was surprised to know that defendant No.1 in connivance with some mischievous persons, got prepared oral will of deceased Rikhi Ram in her favour and got sanctioned mutation No. 424 of Village Shiv Bari, mutation No. 219 of Village Chatehar, mutation No. 282 of Mohal Ram Nagar Gagret respectively.

4. It was averred that the deceased Rikhi Ram was not having fit state of mind to understand the things and he was not in position to understand the contents of any documents. The defendant No.1 in connivance with mischievous persons got prepared the oral will just to grab the estate of deceased Rikhi Ram, whereas the deceased Rikhi Ram never disclosed any intention to execute the alleged Will during his life time in favour of the defendant No.1 alone. Therefore, suit was filed for declaration to the effect that plaintiff is owner in possession qua her 1/6th share in the property of deceased Rikhi Ram, S/O Babu Ram in the ancestral property i.e. land measuring 1-64-26 Hects + 1129-00 berg decimeter over the suit land. Plaintiff has equal right in the property of deceased Rikhi Ram being the class one heir. It is averred that the unregistered will dated 12.09.1999 is the result of fraud, which is not binding upon the rights of the plaintiff.

5. The defendants contested the suit by filing written statement, wherein they took preliminary objections with regard to maintainability, cause of action, suppression of facts and locus standi etc. On merits, it was stated that the plaintiff and proforma defendants have no concern with the suit land. It was averred that deceased Rikhi Ram had executed an unregistered/oral Will during his lifetime in favour of defendant No.1, out of his free will, in sound disposing state of mind in the presence of witnesses and respectable persons of the locality on account of services rendered by defendant No.1 in his old age. The plaintiff was also called by the Revenue Officer, Amb and asked the plaintiff regarding the genuineness of the Will and she acce