Court upheld the use of secondary evidence to prove a will's contents, despite procedural deficiencies, affirming the trial court's discretion.

Judgment :

Vikram Aggarwal, J.

The instant revision petition, preferred under Article 227 of the Constitution of India, assails order dated 14.12.2017 (Annexure P-1), passed by the Court of Addl. Civil Judge (Sr. Divn.), Pehowa, vide which the application (Annexure P-4) moved by the respondent-defendants No.1 and 2 for permission to produce secondary evidence was allowed.

2. The facts, as emanating from the revision petition, are that the petitioner-plaintiff (Ginna Ram) instituted a suit for declaration and joint possession with consequential relief of permanent injunction.

3. One Sonu Ram had five sons namely Ginna Ram (plaintiff), Jai Singh (defendant No.1), Dhanpat (defendant No.2), Ram Partap (defendant No.3) and Mai Chand (defendant No.4). Sonu Ram was stated to be having two wives, namely, Shingari and Jyoti. The plaintiff and defendants No.3 and 4 were born from the wedlock of Sonu Ram and Smt. Shingari, whereas defendants No.1 and 2 were born from the wedlock of Sonu Ram and Smt. Jyoti. Defendant No.5 (Chameli Devi) was cousin sister of the plaintiff (Ginna Ram) and defendants No.1 to 4.

4. Sonu Ram was the owner in possession of two parcels of land, one measuring 46 kanals 16 marlas and the second measuring 5 marlas (fully described in the plaint), situated at Village Bhore Saidan, Tehsil Pehowa, District Kurukshetra (hereinafter referred to as the 'suit land').

5. It was the claim of the petitioner-plaintiff that Sonu Ram had expired on 30.01.1983 leaving behind plaintiff and defendants No.1 to 4 as his only Class I legal heirs. After the death of Sonu Ram, the suit land was inherited by plaintiff and defendants No.1 to 4 in equal shares. Though, they continued to be in joint and cultivating possession of the same, revenue entries were not changed. About 30 years after the death of Sonu Ram, Mutation No.2269 dated 12.08.2013 was entered in favour of defendants No.1 and 2 as regards the suit land on the basis of a Will dated 08.06.1982 propounded by defendants No.1 and 2 and stated to have been executed by Sonu Ram.

6. The petitioner-plaintiff called upon the said defendants to accede to the position that plaintiff and defendants No.1 to 4 were joint owners in possession but they did not accede, leading to the filing of the suit (Annexure P-2).

7. The suit was opposed by way of written statement (Annexure P-3) filed by defendants No.1 and 2 wherein, a stand was taken that Sonu Ram had executed Will dated 08.06.1982, which was in the knowledge of the plaintiff and other defendants also and, accordingly, mutation had been sanctioned on the basis of the said Will. A stand was taken that mutation had been sanctioned after contest in the Court of Assistant Collector (Ist Grade), Pehowa.

8. During the course of trial, an application (Annexure P-4) was moved by respondents-defendants No.1 and 2 to prove the Will dated 08.06.1982 by way of secondary evidence, stating that the original Will was with the petitioner-plaintiff and he had refused to produce the same in Court. It was averred that prior to the filing of the suit, a dispute had arisen as regards a plot owned by Sonu Ram, upon which the petitioner-plaintiff had started raising construction. When defendants No.1 and 2 objected to it, an altercation ensued. The Sarpanch of the village intervened. When the petitioner-plaintiff claimed ownership over the land, the applicants stated that they had a Will executed by Sonu Ram. When the petitioner-plaintiff insisted that the will be shown to him, the same was brought and upon the request of the petitioner-plaintiff, the original Will was handed over to the Sarpanch, which was