The main legal point established in the judgment is the requirement to fulfill the conditions laid down in Section 65 of the Indian Evidence Act, 1872 before considering the photostat copy of the Will as secondary evidence, and the emphasis on proving the custodian of the alleged Will and the probative value of the document.

JUDGMENT :

(Prayer: Civil Revision Petition filed under Article 227 of the Constitution of India, to set aside the Fair and Decreetal order dated 18.09.2013 made in I.A.No.464 of 2013 in O.S.No.64 of 2005, on the file of the Second Additional Sub Court, Erode District.)

1. The plaintiff in OS No.64 of 2005, on the file of the II Additional Subordinate Court, Erode District, is the petitioner herein.

2. Before the said Court, the petitioner herein, as a plaintiff filed a suit in OS No.64 of 2005, as against the respondents herein, seeking the relief of partition and separate possession. When the suit was pending for trial, the revision petitioner/plaintiff gave a notice to the defendants to cause production of the original Will dated 14.06.1984, alleged to be executed by the mother of the plaintiff, by saying that the said Will is in the custody of the respondents/defendants. The respondents/defendants have denied the alleged execution and stated that the Will dated 14.06.1984 is not in their custody. Hence, the revision petitioner/plaintiff filed an interlocutory application in IA No.464 of 2013, praying the Court below to receive and mark the photostat copy of the Will dated 14.06.1984, executed by the mother Bahagibai, on the side of the plaintiff.

3. The learned II Additional Subordinate Judge, Erode, after affording an opportunity to the defendants/respondents herein, by order dated 18.09.2013, dismissed the prayer sought for by the revision petitioner/plaintiff. Aggrieved over the said finding the petitioner is before this Court with the present Civil Revision Petition.

4. In the affidavit filed by the revision petitioner/plaintiff in support of the petition filed before the trial Court under Sections 63 and 65 of Indian Evidence Act, 1872, he has stated that his mother Bahagibai, when she was in a sound and disposing state of mind, out of free will and volition, bequeathed her house property in favour of the revision petitioner/plaintiff and to the 2nd defendant Biharilal, in equal moieties. As the original of the said Will is with the respondents/defendants, he could produce only the photostat copy of the said Will. Further, he has stated that when notice was given to the respondents/defendants to cause production of the said Will for evidence, the respondents/defendants have denied the custody of the Will dated 14.06.1984 and therefore, it is just and necessary for the revision petitioner/plaintiff, to file the interlocutory application, praying the Court below to receive and mark the photostat copy of the Will dated 14.06.1984, executed by his mother Bhagibai, as exhibit on the side of the plaintiff.

5. Resisting the claim made by the revision petitioner/plaintiff, the defendant/1st respondent in the Civil Revision Petition, filed a counter before the trial Court, in which, he denied the case of the revision petitioner/plaintiff. He has specifically stated that no such Will was executed by Bhagibai as alleged by the revision petitioner/plaintiff and it is a fraudulent one. Further, he denied that the said Will is with the respondents/defendants. According to them, no such Will is available with the respondents/defendants.

6. In this connection, while at the time of passing the impugned order, the learned II Additional Subordinate Judge, Erode, has relied on the judgment of our Hon’ble Apex Court in Smt. J.Yashoda Vs. Smt.K.Shobha Rani, reported in AIR 2007 SC 1721 : 2007 (5) SCC 730 and has held that the revision petitioner/plaintiff has not proved the custodian of the Will and that when the execution of the Will itself is disputed, the photostat copy of the Will cannot be accepted, as a secondary evidence. Ultimately, he dismissed the interlocutory application filed by the revision petitioner.

7. Today, when the Civil Revision Petition came up for hearing, the learned counsel appearing for the revision petitioner/plaintiff was present and would contend that in the written statement filed by the respondents/defendants, there