IMPORTANT POINT
Photostat copies of original cannot be received by way of secondary evidence in terms of Section 63 of Evidence Act.

Rajan Gupta, J.—Present revision petition is directed against the order dated 7.4.2011, passed by Civil Judge (Junior Division), Ambala whereby application moved by the defendant/respondents for leading secondary evidence to prove unregistered Will dated 15.10.2001 has been allowed.

2. Learned counsel for the petitioner has assailed the order. She has submitted that trial court has gravely erred in allowing defendants to lead secondary evidence to prove photo copies of the Will. According to her, this is not permissible in law. She has also emphasized that her father was entitled to 1/6th share in the property left by Bachan Singh. However, brothers of her deceased father wanted to deprive her of her legitimate share. Learned counsel has relied upon judgment reported as Smt. J. Yashoda v. Smt K. Shohha Rani, AIR 2007 SC 1721: 2007(5) Supreme 393.

3. Plea has been opposed by learned counsel appearing for the respondents. She submits that respondents are entitled to prove the Will in question by leading secondary evidence.

4. I have heard learned counsel for the parties and given careful thought to the facts of the case.

5. Plaintiff filed suit for declaration that she was entitled to 1/6th share in the property as described in the plaint. Claim was resisted by the respondents who set up Will dated 15.10.2001. They contended that original Will had been lost. Thus, they be allowed to lead secondary evidence to prove the same. It appears, father of the plaintiff namely Chetan Singh died while on Army duty. As a result, she filed instant suit claiming her share in the property. However, brothers of deceased Chetan Singh claimed that their father had left a Will dated 15.10.2001 which had been lost. They were, however, entitled to prove the same by leading secondary evidence. Prayer of defendants has been accepted by the court below. However, there is no clear averment as to how and when the original Will was lost.

6. In Smt. J. Yashoda (supra) it has been observed by the apex court that Photostat copies of the original cannot be received by way of secondary evidence in terms of Section 63 of the Evidence Act. Moreover, it is well settled that in order to succeed in an application to lead secondary evidence, the pre-requisite is that the applicant has to prove the existence as well as the loss of the document.

7. There is nothing on record to show that out of five defendants, who was in possession of the original Will. Counsel for respondents has not been able to show that secondary evidence can be led to prove photo copy of the Will. I am, thus, of the considered view that impugned order is unsustainable. Same deserves to be set-aside. Ordered accordingly. Revision petition stands allowed.

Civil Revision Petition allowed.