Secondary evidence regarding a Will can only be permitted if foundational facts are established, including the original's unavailability and its custody.

ORAL ORDER

1. The petitioners are before this Court seeking for the following reliefs :

(a) Issue a writ of certiorari to quash the order dated 15.11.2024 passed on I.A.no.8 filed by the petitioners under Sections 65 and 66 of Indian Evidence Act in R.A.No.24/2022 by the Senior Civil Judge and JMFC, Hagaribommanahalli the copy of which has been produced herewith at Annexure-A.

(b) Any other writ or direction which this Hon’ble Court deems fit to grant may kindly be granted in favour of the petitioners by allowing this writ petition with the cost throughout in the ends of justice and equity.

2. Respondent No.1 had filed a suit in O.S.No.57 of 2010 for partition and separate possession of the suit schedule properties, which came to be decreed holding that the plaintiff is entitled to 1/5^th share so also defendants No.1 to 4 are also entitled to 1/5^th share directing drawing of the preliminary decree on 02.04.2011.

3. Challenging the said Judgment, the 1^st defendant had filed an appeal in R.A.No.48 of 2011. During the pendency of which, the 1^st defendant expired, allegedly leaving a Will in favour of his grandchildren bequeathing his share in the suit properties in favour of those grandchildren and as such, they were brought on record as his legal representatives in the first appeal.

4. The first appellate Court had confirmed the Judgment and Decree passed by the original Court. Challenging the same, a second appeal in RSA No.6135 of 2012(PAR) was filed by the defendants. The plaintiff has also filed a cross-objection in RSA Crob. No.100001 of 2014 (POR and POS) disputing the Will and findings thereon.

5. This Court was pleased to set aside the Judgment insofar as the finding recorded, declaring that the petitioner Nos.1 and 2 are entitled to the share of deceased-defendant No.1 as legatees and remanding the matter to the first appellate Court to provide an opportunity to the parties to adduce evidence. Evidence having been led, the petitioners were unable to produce the original of the Will and therefore filed an application in I.A.No.8 under Sections 65 and 66 of the Indian Evidence Act now Section 58 of the Bharatiya Sakshya Adhiniyam, 2023 seeking for secondary evidence on the Will by production of certified copies. The said application was objected to and the Trial Court, vide its impugned order dated 15.11.2024 dismissed the application on the ground that the Will by itself has also the signature of the Testator and the attesting witnesses, those signatures being denied and disputed, the signatures, would have to be sent for expert opinion, which would have to be in the form of the original Will.

6. The original Will not having been produced by the petitioners, secondary evidence could not be permitted to be laid insofar as such disputed Will is concerned. It is challenging the same, the petitioners are before this Court.

7. Learned counsel Sri J.S.Shetty, appearing for the petitioners would submit that this Court in RSA.No.6135 of 2012 having permitted the petitioners to lead evidence on the Will, it was the bounden duty on part of the trial Court to have permitted secondary evidence on the Will when the original Will was not available. The Will being a registered document, the registration not being in dispute, a certified copy of the registered document ought to be permitted to be produced as secondary evidence.

8. In this regard, he relies upon a decision of Hon’ble Apex Court in the case of Jagmail Singh and Another vs. Karamjit Singh and Others , reported in (2020) 5 SCC 178. More particularly, in paragraph Nos.11, 14, 15 and 16 thereof, which are reproduced herein for easy reference.

“11. A perusal of Section 65 makes it clear that secondary evidence may be given with regard to existence, condition or the contents of a document when the original is shown or appears to be in possession or power against whom the document is sought to be produced, or of any person out of reach of, or not subject to, the process of the court, o