Research › Search › Judgment

Punjab High Court · body

2005 DIGILAW 504 (PNJ)

Ram Sahai Sood v. Om Parkash Sood

2005-04-08

ADARSH KUMAR GOEL

body2005
Judgment Adarsh Kumar Goel, J. 1. This revision petition has been filed against order allowing secondary evidence of Will dated 27.5.1993, subject to proof of execution and loss of Will. 2. Suit of the petitioner-plaintiff is for partition on the basis of inheritance to the estate of Babu Ram Sood, which has been contested on the plea that the deceased executed Will in favour of the defendant. 3. The respondent-defendant filed an application for producing a photo copy of the Will as secondary evidence, which was opposed by the petitioner. 4. The trial court allowed the said application subject to proof of existence of Will and its loss. 5. Learned counsel for the petitioner submitted that since the existence and loss of the Will had not yet been proved, permission could not be granted. He relied upon judgment of this court in Krishan Kumar V/s. Pal Singh, (1989-1)95 P.L.R. 55, wherein it was held that only after existence of the Will and its loss has been proved, permission to lead secondary evidence could be given. Reliance is also placed on a judgment of this Court in Gurdial Kaur V/s. Registrar, Cooperative Societies, Punjab and Ors, 1999(2) P.L.J. 508, wherein in para 9, similar view was taken. 6. Learned counsel for the respondents submits that grant of permission has been made conditional on proving existence and loss of the Will and secondary evidence will be admitted only if existence and loss of the Will was proved and therefore, no prejudice was caused to the petitioner. He relied upon decision of the Apex Court in Nawab Singh V/s. Inderjit Kaur, 1999(2) Current Law Journal (C.C.R.) 617, wherein rejection of application for secondary evidence on the ground that the same appeared to be doubtful, was set aside by the Apex Court on the ground that opportunity to lead secondary evidence should have been given on appropriate terms. Reliance is also placed on a judgment of this Court in Gopal Krishan Jiwan Kumar and Ors. V/s. Puran Singh and Ors., (1998-1)118 P.L.R. 640, wherein permission to lead secondary evidence was upheld subject to loss of the document. 7. I have considered the rival submissions and perused the record. 8. Section 65 of the Indian Evidence Act, 1872 clearly provides that secondary evidence may be given in the circumstances specified in the said section. V/s. Puran Singh and Ors., (1998-1)118 P.L.R. 640, wherein permission to lead secondary evidence was upheld subject to loss of the document. 7. I have considered the rival submissions and perused the record. 8. Section 65 of the Indian Evidence Act, 1872 clearly provides that secondary evidence may be given in the circumstances specified in the said section. Relevant Clauses applicable in the present case are Clauses (a) and (c). In Sital Das V/s. Sant Ram and Ors., and The Roman Catholic Mission V/s. The State of Madras, , it has been laid down that foundations for reception of secondary evidence must be clearly laid. In Ashok Dulichand V/s. Madhavial Dube and Anr., , it was observed that circumstances in which photo copy was made from the original, must be explained before secondary evidence is allowed. 9. Reference to the statutory provision shows that the original should be shown to be in possession of the party against whom the document is to be proved or should be shown to have been lost. The decisions referred to by the learned counsel for the parties are on individual facts and it is difficult to hold that a straight-jacket formula has been laid down about the format in which a trial judge may proceed. At the same time, order for allowing secondary evidence cannot be passed mechanically and the court must be satisfied that prima facie, the original existed and had been lost or was in possession of the other party. A prima facie conclusion to this effect is not normally open to challenge in revision if appropriate conditions are laid down for permitting secondary evidence. 10. In the present case, permission to lead secondary evidence has been granted subject to proving existence of Will and loss thereof. It is not possible to hold that there must be first a trial on this issue. It is sufficient if the court is satisfied about the prima facie existence of such conditions, which will have to be proved before the secondary evidence is accepted. 11. For the above reasons, it cannot be held that any prejudice is caused to the petitioner. If the respondent is unable to prove the existence of the Will and its loss, the petitioner can succeed in the suit. 12. For the above reasons, I do not find any ground for interference at this stage. The revision petition is dismissed. 11. For the above reasons, it cannot be held that any prejudice is caused to the petitioner. If the respondent is unable to prove the existence of the Will and its loss, the petitioner can succeed in the suit. 12. For the above reasons, I do not find any ground for interference at this stage. The revision petition is dismissed. Nothing said herein above will be treated as an expression of opinion on the merits of controversy between the parties.