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HARKESH MANUJA
Karamjit Singh – Appellant
Versus
Jagmail Singh – Respondent
JUDGMENT
Harkesh Manuja, J. - By way of present revision petition challenge has been made to an order dated 23.10.2018 (P-1) passed by the Court of Additional Civil Judge (Sr. Division), Moga; whereby prayer made on behalf of petitioners/ defendants (hereinafter referred to as 'the petitioners') for seeking permission to lead secondary evidence in order to prove registered Will dated 29.12.1988, purportedly executed in their favour, has been declined.
2. Facts leading to the present case revision petition that the respondents/ plaintiffs (hereinafter referred to as 'the respondents') filed a suit for declaration claiming the estate left by deceased Babu Singh, based on a Will dated 24.01.1989.
3. Upon notice, petitioners appeared and set up a registered Will dated 29.12.1988 executed by Babu Singh in their favour. During trial, the petitioners moved an application under Section 65 of the Indian Evidence Act, 1872, seeking permission to prove the Will dated 29.12.1988 by way of secondary evidence. The said application was contested by the respondents by way of filing their objections to it.
4. Vide impugned order dated 23.10.2018, the trial Court declined the prayer made by the petition
The right to defend the case effectively and the need for a pragmatic approach in allowing the proof of a Will by way of secondary evidence.
Secondary evidence regarding a lost Will is admissible under Section 65 of the Evidence Act when the original cannot be produced, provided the conditions are met.
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 t....
The trial court erred by allowing secondary evidence regarding the Will without sufficient pleadings and at a late stage of litigation.
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