IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH CR-9330-2025 (O&M)

Decided on : 12.12.2025 Kulwant Kaur & Anr.

……Petitioners Versus Kuldeep Singh & Anr.

……Respondents CORAM : HON'BLE MR. JUSTICE DEEPAK GUPTA Present: Ms. Mehak Bedi, Advocate, for the petitioners. DEEPAK GUPTA, J.

The petitioners herein are plaintiffs in Civil Suit [CIS - CS-424 of

2022] titled Kulwant Kaur & Ors. vs. Kuldeep Singh & Ors., pending before the learned Civil Judge (Jr. Divn.), Dasuya. They assail the order dated 19.09.2025, whereby the trial Court allowed an application filed by defendant No.1 seeking permission to prove a Will by way of secondary evidence.

2. The parties to the suit comprise two plaintiffs and two defendants, all siblings and children of Balbir Singh, who passed away on 16.06.2022. The plaintiffs have claimed 1/4th share each in the suit property by natural succession. They further sought a declaration that the alleged Will dated 30.07.2015, purportedly executed by their father in favour of the defendants, is forged and fabricated.

3. Defendant No.2, Sohan Singh, was proceeded against ex parte. The suit is being contested by defendant No.1, Kuldeep Singh, who is also the contesting respondent herein and the propounder of the registered Will dated 30.07.2015.

4. During the pendency of the suit, defendant No.1 filed an application under Section 65 of the Indian Evidence Act, seeking permission to lead secondary evidence of the Will. His case is that the Will is a registered document executed by Balbir Singh in favour of the defendants;

that he (defendant No.1) resides abroad; that Defendant No.2, who resides in village Jalalpur, is in possession of the original Will; that despite service, defendant No.2 has been proceeded ex parte and has not produced the original Will, and hence, secondary evidence is necessary in order to prove the Will.

5. Though the plaintiffs opposed the application, the trial Court allowed it.

6. Learned counsel for the petitioners contends that the very existence of the Will is in dispute; that defendant No.1, as the propounder, must first establish the existence and loss of the original Will; and that without satisfying these foundational requirements, secondary evidence cannot be permitted.

7. A perusal of the application reveals that the Will relied upon by defendant No.1 is a registered Will. It is also not disputed that, according to the pleadings of both sides, the original Will was in the custody of defendant No.2, who has chosen not to appear and has been proceeded ex parte.

8. In such circumstances, the inability of defendant No.1 to produce the original Will is not attributable to his own negligence, especially when he is residing abroad and the document is alleged to be with another co-defendant. Under Section 65(c) of the Evidence Act, secondary evidence becomes admissible when the original is in possession of a person, who fails to produce it despite notice, or when its production is otherwise not possible.

9. Besides, the trial Court has also safeguarded the process by clearly noting that the permission to lead secondary evidence is conditional; and defendant No.1 must still prove:

 the existence of the original Will;

 the loss or non-production of the original;

 the source and authenticity of the photocopies.

10. This approach of the trial court aligns with the settled proposition of law that permission to lead secondary evidence does not amount to proof of the document. Thus, the order of the trial Court does not reflect any illegality, perversity, or jurisdictional error warranting interference under Article 227 of the Constitution.

11. However, it is appropriate to clarify that, since the Will is a registered document, defendant No.1 shall be at liberty to summon the relevant official from the office of the Sub-Registrar concerned to produce the records pertaining to the Will. This is in consonance with the evidentiary rule that entries in public records and registered documents may be proved by pro