IN THE HIGH COURT OF MADHYA PRADESH AT JABALPUR BEFORE HON'BLE SHRI JUSTICE VIVEK JAIN

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ON THE 17 OF FEBRUARY, 2026 MISC. PETITION No. 958 of 2026 ANINDYA SHRIVASTAVA Versus SHRI AMIYA SHRIVASTAVA AND OTHERS Appearance:

Shri Kaustubh Shanker Jha - Advocate for the petitioner.

ORDER The present petition has been filed challenging the order passed by the trial Court whereby the application under Section 65 of Evidence Act has been rejected. By the said application the petitioner has sought to lead secondary evidence of a Will stated to be executed by deceased grandmother of the petitioner in favour of the petitioner on 08.11.2020 shortly prior to death of his grandmother which took place on 30.01.2021.

2. The counsel for the petitioner has vehemently argued that the case under Section 372 of Indian Succession Act has been filed before the Trial Court which is founded on the Will in question and now the respondents No.2 and 3 who are two of the three sisters of father of the petitioner have started disputing the Will. It is argued that earlier the said Will was produced in original before the Tehsildar at the time of mutation in revenue records which was on basis of the Will and in the said revenue proceedings the sisters of the father of petitioner had given no objection and the mutation order was thereafter passed. Now these sisters have started objecting to the Will. It is contended that the photocopy of Will was available in those proceedings which had been compared with the original and original had been returned back to the father of petitioner. Now since the original has been misplaced by father of petitioner, therefore he has obtained certified copy from the photocopy available in the record of Tehsildar which has been compared from the original by the Tehsildar and hence the petitioner can be permitted to lead secondary evidence of the contents of the Will.

3. Heard learned counsel for the petitioner.

4. The suit has been filed by the present petitioner who was minor at the time of execution of the Will and at the time of filing of proceedings before the trial Court and during pendency of the said proceedings, now he has attained majority only recently. The Will was executed by his grandmother in favour of petitioner to the exclusion of the sisters of father of petitioner. The father of petitioner has three sisters and the Will has been executed hardly two months prior to death of grandmother of petitioner. The father of petitioner is stated to be Commandant in Border Roads Organization (BRO) and is stated to be posted at Srinagar (J&K). In the application under Section 65 of Evidence Act it was contended that the father of the petitioner who is Commandant in BRO keeps the requisite documents in his possession and the original Will was available with him along with all necessary documents. On 09.06.2023 all the said documents have been misplaced in New Delhi and when they could not be traced then on 10.06.2023 a police report was lodged and therefore on this ground the application under Section 65 of Indian Evidence Act was filed.

5. The question that the Will has been compared with original by Tehsildar, was raised before this Court on the basis of a note mentioned on the photocopy of Will as available in the record of Tehsildar that it has been compared with the original. This note itself does not contain any signatures immediately beneath the note. However, even deeming such comparison to be made, the comparison made with the original by the Tehsildar who is not a judicial authority, would not bind the Civil Court which is a judicial authority. Even such comparison with original of the Will is not substantiated by any order sheet of the Tehsildar to indicate that there was any comparison with the original and in what manner that comparison was made. The manner in which the proceedings are stated to be conducted by Tehsildar in calling for original and then returning the same to the father of petitioner itself seems to be s