O R D E R:

This Civil Revision Petition is filed under Article 227 of the Constitution of India against the order dated 02.03.2023 dismissing I.A.No.518 of 2022 in O.S.No.88 of 2011 on the file of the court of the XI Additional District Judge, Tenali filed by the petitioners/defendants under Section 65 of the Indian Evidence Act and Section 151 CPC to allow the petitioner to produce the document of certified copy of the registered Will dated 30.05.1990 vide Doc.No.69/1990 executed by Nandiraju Kanaka Rattamma as the 5th page of the original registered Will is lost and cannot produced before the court at any span of time and the same may be marked on behalf of the petitioners.

2. The case of the petitioner is briefly as follows:

The petitioner herein is the defendant in the main suit. The mother of the petitioner Nandiraju Kanaka Rattamma, executed her last Will on 30.05.1990 vide registered Doc.No.69/1990, SRO, Chirala. O.S.No.88 of 2011 is coming for her evidence and the original registered Will needs to be filed. The last 5th page of the said registered Will is lost. Hence, the petitioner is praying to allow her to produce the certified copy of the registered Will dated 30.05.1990, along with the original, as the secondary evidence of the document for due appreciation of their case.

3. The respondents/plaintiffs filed counter denying the averments mentioned in the petition. It is contended that when the Will was lost, it shall be presumed that the Will is revoked at the hands of the testator. The fourth respondent filed counter stating that the certified copy of the Will filed by him does not contain the alleged third page. It is contended that there are three general requirements for a Will to be sufficiently revoked by some physical act such as the Will must be burnt, torn, cancelled, obliterated or destroyed and that the act must be accompanied by the creator’s present intent to revoke his or her Will, and further more a certified copy of a Will cannot be used as secondary evidence as held by the Supreme Court in Jagmail Singh and another Vs Karamjit Singh and another1 .

4. After hearing both parties, the trial Court dismissed the petition observing that the petitioner failed to satisfy the general requirements which are necessary for revoking the Will either it must be burned, torn, cancelled or destroyed. But, in the instant case, it is the plea of the petitioners that the last page of the Will alleged to have been executed by the mother of the 1st defendant is lost. As argued by the learned counsel for the respondents/plaintiffs as they are having certified copy of the Will on which the petitioners are relying it is not containing the said 5th page, in such case, as per the decision of the Supreme Court in Kavita Kanwar Vs Pamela Mehta2 , dated 19.05.2020 relied on by the learned counsel for the respondents/plaintiffs wherein it was held that the certified copy of the Will cannot be used as secondary evidence.

5. Aggrieved by the order, this revision petition was filed.

6. Heard the learned counsels for the revision petitioners and the respondents.

7. It is the contention of the learned counsel for the petitioner that though the plaintiffs/respondents no.1 to 6 have filed a certified copy of the Will in evidence as Ex.A.3 which does not contain the fifth page, the original of which along with another certified copy is proposed to be filed by the petitioners/defendants, as the petitioners have to establish the Will by examining the attestor(s) as required under Section 68 of the Indian Evidence Act and whereas the certified copy of the Will filed by

1 AIR 2020 SC 2319 2 AIR 2020 SC 2614

the plaintiffs is illegible due to chain style of writing and it does not contain the original signature of the testator. He further submitted that the original document available with the petitioners contained only four pages and the 5th page is the last, but the original document contained the signature of the testator on every page and since