The main legal point established in the judgment is the admissibility of secondary evidence under Section 65 of the Indian Evidence Act to prove the disputed Will. The court emphasized the need for laying a credible foundation for accepting secondary evidence and the right of the opposing party to rebut the evidence.

JUDGMENT :

Sudip Ahluwalia, J.

1. This Revisional Application is directed against the order dated 15.09.2017 passed by the Ld. Civil Judge (Senior Division), Chandigarh, in Civil Suit No. 1219 of 2015.

2. Vide the impugned order, the Ld. Court below had allowed an Application filed by the Respondent/Defendant No. 1 under Section 65 of the Indian Evidence Act to adduce secondary evidence in order to prove the Will dated 8.1.2006, claimed to have been executed by his father Shri Hardayal Kinger (since deceased), who was also father of the Petitioner/Plaintiff. The grounds on which such secondary evidence was sought to be led have been noted by the Ld. Court below as follows:-

"2...........that after the death of Sh. Hardyal Kinger, the plaintiff took the original Will along with other documents from the house. During the renovation work carried out in the house, the defendant No. 2 found certain documents pertaining to Sh. Hardyal Kinger and she handed over all the documents to the defendant No. 1 as she is an illiterate lady. During the scrutiny of the documents handed over by defendant No. 2 to defendant No. 1, the defendant No. 1 found a photocopy of Will dated 08.01.2006 executed by Sh. Hardyal Kinger.

Thereafter, the defendant No. 1 enquired about the genuineness of the Will from defendant No. 2 and one of its witness namely Sh. Gurdev, who told the defendant No. 1 that Sh. Hardyal Kinger had executed this Will. Even defendant No. 2 told the defendant No. 1 that the plaintiff had taken away many documents including original of Will dated 08.01.2006 at the time the plaintiff came to Chandigarh to attend last rites of Sh. Hardyal Kinger. Despite number of requests by the defendant Nos. 1 and 2 the plaintiff refused to hand over or to act upon the Will executed by Sh. Hardyal Kinger. He further argued that presently the case is fixed for defendant evidence and in order to prove the Will, the original of the same is required. The original Will dated 08.01.2006 is in possession of the plaintiff. He further argued that the defendnat No. 1 had filed an application/notice under Section 66 of Indian Evidence Act, 1872 for directing the plaintiff to produce the original Will dated 08.01.2006. However, in reply plaintiff had denied that he is not in possession of original Will dated 08.01.2006. As the plaintiff is not producing the original Will, therefore, the defendant No. 1 has no other option except to prove the Will by way of secondary evidence as required under Section 65 of Indian Evidence Act, 1872."

3. The Application was vehemently resisted on behalf of Petitioner/Plaintiff, who took a categorical stand that the disputed Will in question was never actually executed as claimed by the Respondents. Rather, the photostat document sought to be tendered as secondary evidence was actually a forged and fabricated document, in which, somehow the signature of deceased Hardayal Kinger had visibly been superimposed on an artificially typed document, and the actual document from which the present photostat copy is said to have been prepared was intentionally concealed by the Respondents, since perusal of the same would immediately go to show that it is a falsely created document manufactured only for the purpose of contesting the proceedings between the parties. Further, the Petitioner categorically denied that he had ever seen the original of the disputed Will, much less taken away the same with him as claimed by the Respondents. In addition, authenticity as well as admissibility of the disputed document has been assailed by drawing the attention of the Court to several other circumstances existing n the present case, to which reference will be made subsequently in this order.

4. The Ld. Court below nevertheless was not persuaded by the contentions raised on behalf of Petitioner and ultimately allowed the Application under Section 65 of the Indian Evidence Act after recording the following observations:-

"5. As per the case of the defendant No.