IMPORTANT POINT
Secondary evidence can be given only when original thereof is in existence.

ORDER

This Civil Revision Petition is filed by the petitioner/2nd defendant under Article 227 of Constitution of India against the orders passed by the learned I Additional Senior Civil Judge, Guntur, in I.A.No.280 of 2016 in O.S.No.134 of 2014 wherein and whereby the learned trial Judge dismissed the petition filed by the petitioner/defendants 2, 4, 5 and 6 under Section 65 of Evidence Act and refused to receive Photostat copy of the Will Deed as secondary evidence.

2. Before the trial Court R5/D6 filed petition on her behalf and also on behalf of D2, D4, D5 under Section 65 of Evidence Act stating that suit is filed by R1/plaintiff with false averment that plaint schedule property was the self-acquired property of late Sri C.L.N.Murthy, who died intestate and thereafter R1 and other defendants succeeded the suit schedule property with equal rights. She submits that plaint schedule property is never a joint property of R1 and themselves as after the death of late Sri C.L.N.Murthy, who executed a Will in his own handwriting during his lifetime sent the copies of said Will to all his children, i.e. to herself and all the respondents. It is the contention of R5/D6 that after the death of late Sri C.L.N.Murthy, on the 12th day, R1/plaintiff has also read over the Will executed by Sri C.L.N.Murthy, in front of all family members. It is the contention of R5/D6 that as per the contents of said Will there were several fixed deposits stood in the name of R1/plaintiff or he was nominated which were taken over by R1 and there are other properties in the name of late Sri C.L.N.Murthy on the date of his death, which properties were given to his other children also and they are under exclusive possession and enjoyment of said property shown in the Will. She further submits that R1/plaintiff cannot seek the partition of the plaint schedule property contending that those are joint properties. The main contention of R5/D6 is that original Will is not available as on date and as per her knowledge and other respondents, the same is in the custody of R1/plaintiff, but R1 deliberately denied the said fact, due to that it has become necessary for them to file photostat copy of Will dated 01.08.1993 executed by late Sri C.L.N.Murthy as exhibit and mark the same by treating it as secondary evidence. Hence she prays to allow the petition.

3. The learned trial Judge after hearing both sides dismissed the petition filed by R5/D6 along with D2, D4 and D5 on the ground that petitioners/defendants failed to lay foundation as required under Section 65(a) of Indian Evidence Act to accept the xerox copy of the Will dated 01.08.1993 and petition filed under Section 65 of Indian Evidence Act, which is substantial law but not under procedural law, which is not maintainable.

4. Aggrieved by the orders passed by the trial Judge, the present Civil Revision Petition is filed by petitioner/D2 showing plaintiff and D3 to D6 as R2 to R5 as respondents including R5/D6 as one of the respondent in the present revision petition stating that R2 to R5 are not necessary parties. It is the contention of revision petitioner that order passed by the learned trial Judge is contrary to law, weight of evidence and probabilities of the case. He submits that trial Judge ought to have seen that the petition filed falls within the parameters of Section 65 of Evidence Act and she ought to have allowed the same and trial Court failed to appreciate the fact that petitioners have stated in the affidavit that the original Will Deed is in the custody of R1 and satisfied the conditions prescribed under Section 65(a) of the Act. He further submits that as the contention of R1 in his counter filed before the trial Court is that Will Deed is fabricated, which is sufficient to say that Will is in existence due to that application filed to receive copy of Will Deed as secondary evidence ought to have been allowed by the trial Court. He prays to allow the revision petition.

5. I have heard learned