Judgment : Oral Judgment: 1. This second appeal is by the plaintiff who succeeded in trial court but lost in the first appellate court. Parties shall hereinafter be referred to as the plaintiff and the defendants. 2. The facts giving rise to this appeal are as follows – One Wasudeo Nagoba Fiske was the Malguzar of village Waigaon (Nipani). Said Wasudeo died on 24/8/1939 at Waigaon. He had two wives namely; Smt.Bahenabai and Smt.Nanibai. Smt.Bahenabai did not have any issue from said Wasudeo. She also died on 4/10/1967 at Waigaon. Second wife Smt.Nanibai had two daughters namely; Smt.Pisabai and Smt.Godawaribai. Smt.Nanibai died in 1969 leaving behind two daughters. Smt.Pisabai was married to one Laxmanrao Mandekar and Smt.Godawaribai was married to one Haribhau Kasar. The plaintiff is the son of Smt.Pisabai. Wasudeo had executed a Will bequeathing his property in favour of his two wives Smt. Bahenabai and Smt.Nanibai. According to the plaintiff, Wasudeo had only given life interest to these two wives. Since Bainabai was given life interest only in this property, she did not become full owner of the suit property and did not have right to dedicate the said property to defendant no.4 – Trust by a Will. According to the plaintiffs, the Will, if any, executed by Smt.Bahenabai is invalid. The plaintiff, therefore, sought a declaration that the plaintiff is the owner of the suit property and also a declaration that the Will executed by Smt.Bahenabai is invalid. 3. The defendants no.1 to 3 and 6 filed a written statement. They denied all adverse allegations. 4. Defendant no.4 filed a separate written statement and contended that Smt.Bahenabai was the full owner of the suit property, she had a right to bequeath it and she had bequeathed the said property in favour of defendant no.4 by a Will. Defendant no.4 contended that the plaintiff was residing in suit property as licencee and since the property is now bequeathed to defendant no.4 and defendant no.4 has revoked licence, plaintiff is liable to vacate the suit property. It has laid a counter claim. 5. The learned Judge of the trial court found that the plaintiff has become the owner of the suit property and defendant no.4 does not get any right, title or interest in the suit property by virtue of Will executed by Smt.Bahenabai in their favour. It has laid a counter claim. 5. The learned Judge of the trial court found that the plaintiff has become the owner of the suit property and defendant no.4 does not get any right, title or interest in the suit property by virtue of Will executed by Smt.Bahenabai in their favour. Holding so, the learned judge decreed the suit and dismissed the counter claim of defendant no.4. Being aggrieved by that, defendant no.4 preferred an appeal before the District Judge. The Additional District Judge, who heard the appeal found that Smt.Bahenabai had become the full owner of the suit property and she was competent to execute a Will in favour of defendant no.4 – Trust. Holding so, he dismissed the suit of the plaintiff and decreed the counter claim of defendant no.4 for possession. The plaintiff, therefore, feels aggrieved and prefers this second appeal. 6. The second appeal has been admitted on the following substantial question of law. .“Whether the Will dated 14/9/1967 could be said to have been proved in the absence of the document or its certified copy, as per the provisions of the Indian Evidence Act, having been produced on record and whether the finding, based regarding the contents of such document i.e. the Will when the document not being before the court, can be said to be based on no evidence and can be said to be recorded in the absence of necessary evidence and as such perverse? 7. I have heard the learned counsel for the appellant as well as the respondents. 8. We have seen that defendant no.4 claims the suit property under a Will said to be executed by deceased Smt.Bahenabai. It is on this basis that defendant no.4 lays a counter claim against the plaintiff for possession of the suit property. The appellate court has held that Smt.Bahenabai had become the full owner of the suit property by virtue of provisions contained in Section 14 of the Hindu Succession Act. The appeal is not admitted on this controversy at all. As far as finding that Smt.Bahenabai had become full owner must be deemed to have assumed finality. Consequently, the finding of the first appellate court that she had an authority to dispose of the said property by a testament has to be said to be correct and that too has assumed finality. 9. As far as finding that Smt.Bahenabai had become full owner must be deemed to have assumed finality. Consequently, the finding of the first appellate court that she had an authority to dispose of the said property by a testament has to be said to be correct and that too has assumed finality. 9. The material question is whether the Will said to be executed by Smt.Bahenabai can be said to be proved at all. If that Will is held to be proved, the appeal must fail. It would be necessary to advert to the pleadings first once again. Defendant no.4 in its written statement specifically pleads that Smt.Bahenabai executed a Will on 14/9/1967 in favour of defendant no.4. It must be, therefore, assumed that it is a written Will. Defendant no.4 examined two persons, who claimed to be witnesses attesting the Will, being D.W.1 Tukaram and D.W.2 Ramchandra. DW 1 Tukaram has deposed that Smt.Bahenabai had given instructions to scribe and scribe prepared the Will and then Smt.Bahenabai accepted the correctness of the contents and put her thumb impression. He also claimed that he put his signature on it as an attesting witness. The pleadings as well as this evidence, both clearly go to show that the Will said to be executed was written document. In the written statement, there is no pleadings that the original Will has been lost or that even a copy thereof is not available. Neither of the witnesses of defendants in their evidence say that the Will is lost or that even copy thereof is not available. Defendant no.4 has not produced the original Will nor a copy thereof on record. It would, therefore, be necessary to look into the Evidence Act itself. Section 59 of the Evidence Act says that all facts except the contents of document may be proved by oral evidence. Obviously, contents of the documents must be proved by production of such document alone. The contents, according to Section 61 can be proved by primary or secondary evidence. Primary evidence is defined as the document itself; that is the original. The Original Will is not at all produced before the court. Since there is no pleading or evidence of loss of the original, the secondary evidence is also not admissible. Even otherwise copy of such Will is also not produced. Primary evidence is defined as the document itself; that is the original. The Original Will is not at all produced before the court. Since there is no pleading or evidence of loss of the original, the secondary evidence is also not admissible. Even otherwise copy of such Will is also not produced. The defendant no.4, therefore, does not even seek to prove the Will by a secondary evidence. No amount of oral evidence about execution of any Will would be admissible unless the original is produced or a copy is produced and loss of the original is proved. There is no doubt that an oral evidence under Clause 5 of Section 63 of Evidence Act would be admissible, but that would be admissible when the loss of original is pleaded and proved and non-availability of even a copy is proved. In the instant case, the defendant does not do either of the things. In the circumstances, The Will said to be executed by Smt.Bahenabai cannot be said to be proved. Since the Will fails, the counter claim must fail. In the circumstances, the appeal succeeds. The appeal is allowed. The Judgment and decree of the first appellate court is set aside and that of the trial court restored. No order as to costs.