IMPORTANT POINT
If Will is to be proved, a party relying on the document has to follow procedure u/s 68 of Evidence Act.

Mridula Bhatkar, J.—Rule. Rule returnable forthwith. By consent of the parties, Rule called out and heard finally at the admission stage.

2. This petition challenges the order dated 12.9.2012 passed by the learned 6th Joint Civil Judge. Junior Division, Nashik. The petitioner is the original defendant No.1. The plaintiff has filed the suit for partition, possession and also challenged the sale deed executed in favour of Defendant No.1 i.e., the petitioner. In the course of evidence, the defendant has moved application for taking secondary evidence i.e., attested copy of the will on record. The trial Court has allowed the secondary evidence, however, subject to execution of the said will being proved as per Section 68 of the Evidence Act.

3. The learned Counsel for the petitioner submits that the learned trial Court ought to have exhibited the will as it is admitted by the plaintiff in the averments. It is submitted in para 3 of the plaint that the plaintiff has averred that the deceased Gajanan Sambhaji Salve has made will dated 9.3.1993 in respect of the suit land and has admitted that a particular portion of the land had fallen to the share of Respondent No.2 Laxmibai Gajanan Salve from whom the defendant No.1 has purchased the property. He further submitted that in the affidavit in lieu of examination-in-chief also, the same fact is reiterated. Thus, in view of this admission, the trial Court ought to have exhibited the said document as ‘the contents in the document are proved. The learned counsel in support of his submission relied on the ruling in the case of Thayyulliathil Kunhikannan & Ors. v. Thayyullathil Kalliani & Ors., AIR 1990 Ker 226.

4. Mr. Kapse, the learned Counsel for the respondent Nos. 1, 3 to 7, has vehemently opposed this petition. He submitted that the order passed by the trial Court is correct and is to be confirmed on the point of not exhibiting the document. He argued that the said document, being a will, is required to be proved as per Section 68 of the Evidence Act. Section 68 of the Evidence Act demands a will to be proved, in particular, manner that is after examining the attesting witnesses. In the absence of examination of the attesting witnesses, the contents of the will cannot be proved and the trial Court, therefore, has rightly asked the defendants to prove the contents of the will by following the procedure u/s 68. The learned Counsel further raised objection on the method of producing secondary evidence in the form of photocopy of the registered will. He submitted that as per the case of Defendant No.1, the original will is in the custody of original defendant No.3, who is the sister of the plaintiff. In the evidence of the plaintiff, he has specifically mentioned that the original will was with Defendant No.3, his sister. Thus, the petitioner ought to have given notice u/s 66 of the Evidence Act calling upon Defendant No.3 to produce the said document. Pursuant to the notice, if the said will would not have been’ produced by Defendant No.3, then the Court should have been allowed the application of the petitioner seeking permission to tender secondary evidence in the proceedings. However, no proper procedure is followed. In fact, the petitioner should not have allowed to lead secondary evidence.

The learned Counsel has further submitted that even though it is argued that the will can be admitted in evidence u/s 58 of the Evidence Act, which says that the facts admitted need not be proved, a will is not a fact but a document and for the proof of a document, i.e., the will Section 68 has specifically indicated the procedure in the Act. He has further submitted that the plaintiff and defendants both have tendered their evidence and have closed the evidence and now the suit is at the stage of arguments of the parties. At this belated stage, the defendant has produced the document and the plaintiff was not confronted with the said document in evidence. Nor did the defendant prod