The court held that beneficiaries are entitled to request the production of a Will for establishing rightful claims, affirming the necessity for procedural compliance.

ORDER

Defendant Nos.4 and 5 in O.S. No.123/2011 pending consideration before the Civil Judge (Sr. Dn.), Malur, have filed this writ petition challenging the order dated 30.03.2017 by which an application (I.A. No.XXIV) filed by them under Order XI Rule 14 and Order XII Rule 8 read with Section 151 of the Code of Civil Procedure , 1908 (for short, ‘CPC’) for a direction to the plaintiff to produce the original of the Will dated 20.08.1993 was rejected by the Trial Court.

2. The suit in O.S. No.123/2011 was filed for the following reliefs:

“a) for partition of the suit schedule properties and allot 1/3rd share of the plaintiff’s legitimate share.

b) Direct the defendants to allot 1/3rd legitimate share of the plaintiff in the suit schedule properties.

c) for mesne profits and such other reliefs, as this Hon’ble Court deems fit under the circumstances of the case and for costs in the ends of justice and equity.”

3. Defendant Nos.4 and 5 claimed to be the beneficiaries under a Will dated 20.08.1993 executed by Sri Muniyappa. During the course of cross-examination of the plaintiff, who was examined as PW.1, he admitted that he was in possession of the original of the Will dated 20.08.1993 which was duly registered. The defendant Nos.4 and 5 therefore filed an application (I.A. No.XXIV) under Order XI Rule 14 and Order XII Rule 8 read with Section 151 of the CPC, calling upon the plaintiff to produce the original of the Will.

4. The plaintiff objected to this application contending that the original of the Will dated 20.08.1993 was not in his custody but it was in the custody of defendant Nos.4 and 5.

5. The Trial Court taking note of the objections filed by the plaintiff, held that if the plaintiff failed to produce the original of the Will dated 20.08.1993, an adverse inference would be drawn against him and that there was no need to summon him to produce the original of the Will and consequently, rejected the application (I.A.No.XXIV).

6. Being aggrieved by the same, defendant Nos.4 and 5 have filed this writ petition.

7. Learned counsel for defendant Nos.4 and 5 /petitioners brought to the notice of this Court the admission of PW.1 and contended that defendant Nos.4 and 5 were claiming title under the aforesaid Will and therefore, it was necessary that the said document had to be secured before the Trial Court.

8. I have considered the submissions of the learned counsel for the petitioners.

9. The purpose of any judicial proceeding is to unearth the truth and render justice to the parties. In this process, the procedural law looses significance and the focus before the Court is to do everything possible to find the truth. In the case on hand, in the course of cross-examination of PW.1, he deposed as follows:

10. It is, therefore, apparent that the plaintiff was in possession of the original of the Will dated 20.08.1993. Defendant Nos.4 and 5, who claimed title to the suit property based on the aforesaid Will, were entitled to call upon the plaintiff to produce the original of the Will dated 20.08.1993 to establish that the Will was lawfully executed by the executor – Sri Muniyappa. Even otherwise, it was defendant Nos.4 and 5 who were entitled to be in possession of the said document and not the plaintiff and for this purpose too, the Trial Court ought to have summoned the Will from the custody of the plaintiff. The Trial Court committed an error in holding that an adverse inference can be drawn if the plaintiff failed to produce the Will. The question was not only regarding the adverse inference that could be drawn against the plaintiff, but also regarding the proof of the lawful execution of the Will whi