IMPORTANT POINTS
Photo copy of Will can be taken on record as secondary evidence.

JUDGMENT

Sanjeev Prakash Sharma, J.—By way of this writ petition, petitioner challenges the order passed by the learned District Judge, Jaipur Metropolitan, Jaipur dated 18/09/2018 whereby the application moved by the applicant-respondent under Section 65 of the Evidence Act has been allowed and the secondary evidence has been permitted to be led and photo copy of the will has been taken on record as secondary evidence.

2. Learned counsel for the petitioner submits that the pre- condition for allowing application under Section 65(c) of the Evidence Act is that the applicant must prove that the original document has been destroyed or lost and the party offering evidence has not committed any default or neglect to produce it in reasonable time. It is his contention that the applicant- respondent was required to prove that the will was actually executed and then only his application could have been accepted. In support of his submission, learned counsel relies on the judgment passed by Supreme Court in the case of Benga Behera and another Vs. Braja Kishore Nanda and others, (2007) 9 SCC 728. It is his submission that the reasons given out by the applicant-respondent that the original will was lost had been submitted to the Sarpanch is not proved from the record of proceedings dated 17/06/1989. The proceedings recorded by the Sarpanch did not show that the mutation was opened in the name of the applicant-respondent on the basis of the will. The application, therefore, ought not have been accepted by the learned District Judge.

3. Per-contra, learned counsel appearing for the applicant- respondent has supported the order passed by the learned District Judge and submits that the order is in consonance with the law laid down in this regard by this Court in the case of Maharaj Kumar Chand Vs. Jodhpur Film Vitrak Sahakari Samiti Ltd., 1999(3) WLC (Raj.) 66 as well as by the Supreme Court in the case of Rakesh Mohindra Vs. Anita Beri and others, (2016) 16 SCC 483. It is his submission that the applicant, while moving application for probate from the initial stage had come out with the specific case that the original will which was executed had been lost and he being minor at that time could not locate the will. Thus, the applicant has sufficiently proved his case as required under Section 65 of the Evidence Act.

4. Heard learned counsel for the parties.

5. Section 65(c) of the Indian Evidence Act, 1872 reads as under:-

“65. Cases in which secondary evidence relating to documents may be given- Secondary evidence may be given of the existence, condition, or contents of a document in the following cases:-

(a) ............

(b) ............

(c) When the original has been destroyed or lost, or when the party offering evidence of its contents cannot, for any other reason not arising from his own default or neglect, produce it in reasonable time;”

6. The Apex Court in the case of Benga Behera and another Vs. Braja Kishore Nanda and others (supra) held as under:-

“31. A document upon which a title is based is required to be proved by primary evidence, and secondary evidence may be given under Section 65(c) of the Evidence Act. The said clause of Section 65 provides as under:

“When the original has been destroyed or lost, or when the party offering evidence of its contents cannot, for any other reason not arising from his own default or neglect, produce it in reasonable time.” Loss of the original, therefore, was required to be proved.

32. In a case of this nature, it was obligatory on the part of the first respondent to establish the loss of the original Will, beyond all reasonable doubt. His testimony in that behalf remained uncorroborated.

33. Furthermore, secondary evidence, inter alia, could be led by production of a certified copy given in terms of the provisions of the Indian Registration Act. In support of the proof of the Will, purported Xerox copy and a certified copy thereof have been produced. In the Xerox copy, an endorsement has been mad