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2003 DIGILAW 613 (PNJ)

Kartar Kaur v. General Public

2003-04-29

M.M.KUMAR

body2003
Judgment M.M.Kumar, J. 1. This order shall dispose of Civil Revision Nos. 2001 and 2002 of 2003 as both the petitions have arisen from a common order. 2. This petition filed under Article 227 of the Constitution challenges order dated 27.1.2003 passed by the teamed Additional District Judge, Chandigarh dismissing the application of the applicant-petitioner Kartar Kaur in which prayer was made to adduce secondary evidence of the will dated 21-12.1994 allegedly executed by one Dr. Balwant Kaur wife of late Dr. Bishan Singh, resident of H. No. 177. Sector 21-A, Chandigarh. The learned Additional District Judge has dismissed the application principally on the ground that the applicant-petitioner has failed to show the existence of the original will and in the absence of existence of the original, it is not possible to permit adducing of secondary evidence. Reliance placed on the photostat page of the will has been rejected because it is not signed by the testator. Moreover, the will in question was unregistered document. The learned Additional District Judge has placed reliance on two judgments of this Court in the case of Krishan Kumar v. Pal Singh, (1989-1)95 P.L.R. 55 and Raj Kumar v. Dalit Kumar Punj and Ors. 1989 Civil Court Cases (P&H) 10. 3. I have heard Mr. J.S. Bhatti, learned counsel for the applicant-petitioner who has argued that first photostate page of the will should be treated as sufficient proof of the existence of the will. According to the learned counsel, the photostat copy is signed y a counsel. In support of his submission, the learned counsel has relied upon a judgment of this Court in Bihari Lal v. Smt. Ram Piari, (1999-2) PLR 133. 4. I have thoughtfully considered the submissions made by the learned counsel and regret my inability to accept the same because it is elementary principle of law that unless the existence of a document is proved, no secondary evidence could be permitted to be adduced as is laid down by Section 65 of the Indian Evidence Act, 1872 . In the present case, no proof is furnished either by producing scribe of the will or any entry in the register of the deed writer or by any other method to prove the existence of the will. Reliance has been placed on the document alone which is claimed to be the first page of the will. In the present case, no proof is furnished either by producing scribe of the will or any entry in the register of the deed writer or by any other method to prove the existence of the will. Reliance has been placed on the document alone which is claimed to be the first page of the will. Such a photostat first page of the will which is unregistered would not prove the existence of the will especially when it is not signed by the testator. If such an argument is allowed to prevail, then large number of documents can be passed to be secondary evidence of the original even in the absence of existence of the original. Therefore, there is no legal infirmity in the order passed by the learned Additional District Judge. There is ample support for the aforementioned proposition and reliance can be placed on a Constitution Bench judgment of the Supreme Court in the case of Roman Catholic Mission v. State of Madras, A.I.R. 1966 S.C. 1457 and on Sital Das v. Saul Ram and Ors., A.I.R. 1954 S.C. 606. 5. The argument that the case of the applicant-petitioner is supported by Bihari Lals case (supra) is equally devoid of merit because in that case the original will was produced in Court alongwith photostat copy as it is clear from perusal of paragraph 2 of the judgment. Such are not the facts in the instant petitions. The judgment in Bihari Lals case (supra) would not govern the situation in the present petitions. Therefore, these petitions are devoid of any merit and are liable to be dismissed. 6. For the reasons recorded above, these petitions fail and the same are dismissed.