Judgment :- 1. This writ petition is directed against the order dated 10/6/2010 passed by XLIV Additional City Civil and Sessions Judge, Bangalore in O.S.No.7871/2009 on admissibility of the Will produced by the plaintiffs. 2. The facts leading to the filing of this petition are as under. 2.1. Respondents 1 to 4 have instituted a suit against the petitioners herein and respondents 5 and 6 for the relief of perpetual injunction to restrain the defendants, their men, agents and any one claiming through under the defendants from combining the suit schedule property with any other property and also for the relief of perpetual injunction to restrain the defendant from putting up any building on schedule property other than a building meant only for the purpose of “Hajee Sallah Mohamed Ahmed Sait Cutchi Memon Jamat Khana”. 2.2. On service of summons the defendants (writ petitioners) have entered appearance and have filed their written statement in detail. On the basis of the pleadings trial court has framed issues for its consideration and in order to establish the claim made in the suit, plaintiffs had examined one witness namely plaintiff no.2 and during he course of his evidence a Will dated 19/3/1934 namely the certified copy of the said will came to be produced. This was objected to by the defendants and on considering the said objections, the court below by its order dated 10/6/2010 rejected the contention of the defendant and over ruled the objections. It is this order which is questioned in the present writ petition. 3. I have heard the learned advocates appearing for the parties, namely Sri Abhinav R. appearing for the petitioner and Sri Rajendra appearing for respondent. It is the contention of Sri Abhinav that plaintiff ought to have produced primary evidence namely original Will of in the alternative they ought to have produced Will which is claimed to have been probated before Madras High Court. In the absence thereof, he would contend that secondary evidence cannot be permitted. Even otherwise he would submit that plaintiff will have to elect as to whether they will independently prove the “said Will which has been produced by them in the present proceedings and in the absence of making an election, plaintiff should not be permitted to mark the said Will by way of secondary evidence. Even otherwise he would submit that plaintiff will have to elect as to whether they will independently prove the “said Will which has been produced by them in the present proceedings and in the absence of making an election, plaintiff should not be permitted to mark the said Will by way of secondary evidence. In support of his submission he relies upon the judgment in Clarence Pais and others versus Union of India reported in 2001(4) SCC 325 at paragraph 6 and also the judgment in the case J. Yashoda versus K. Shobha Rani. 2007(5) SCC 730 . 4. Per contra Sri. Rajendra, learned counsel appearing for the respondent would support the order passed by the trial court and would submit that plaintiffs are not claiming any right under the Will and the suit is for perpetual injunction they intend only to establish the purpose for which the Will was created by original testator and the very same Will was the subject matter of probate before the Madras High Court in the reported judgment namely in the case of Abdul Sattar Ismail versus Abdul Humid Sait reported in AIR 1944 SC 504 the Will came to be probated and as such the question of producing the original Will would not arise. He would also submit that defendants themselves have admitted in the written statement about the existence of the Will and in view of this, Clause (f) of Section 65 of the Evidence Act is attracted and as such the trial court was justified in permitting the petitioner to produce the Will in question and mark the Will. Accordingly he prays for dismissal of the writ petition. 5. Having heard the learned counsel for the parties and perused order impugned in the writ petition as also the pleadings placed before the trial court, it is noticed that defendants 1 and 2 who are writ petitioners herein have in their written statement at paragraph 12 and 13 admit the last Will and testament dated 19/3/1934 executed by Hajee Sir Ismail Sait and also admit about the same being the subject matter of adjudication before the High Court of Judicature at Madras. In the words of the writ petitioners it reads as under: 12. “Hajee Sir Ismail Sait made his last Will and Testament dated 19/3/1934 providing for bequest of all his estate, properties in the manner indicated therein.” 13. In the words of the writ petitioners it reads as under: 12. “Hajee Sir Ismail Sait made his last Will and Testament dated 19/3/1934 providing for bequest of all his estate, properties in the manner indicated therein.” 13. “The Will of Hajee Sir Ismail Sait was the subject matter of Civil Suits in the High Court of Judicature at Madras. Thereafter, an original side Appeal was preferred before the very same High Court of Judicature at Madras challenging the decree dated 6/4/1942. The matter was carried to the Supreme Court of India by invoking its civil appellate jurisdiction in civil appeal no. 53/1949. Before the Honorable Supreme Court, the matter was compromised and a compromise petition (Razinama) was filed before the Supreme Court on 18/9/1953.” 6. The prayer in the suit is for relief of perpetual injunction. Plaintiffs are not claiming any right under the will and it is only the relief of perpetual injunction which has been sought for and in order to establish for what purpose the will was executed by the original testator the true copy of it is produced. Thus, in order to examine these rival contentions, it could be necessary to examine the will in question by the trial court. The issue that comes up for consideration is whether the will namely certified copy which has been now produced before the trivial court can be marked in evidence. In the regard it would be necessary to refer to section 62 which provides for production of primary evidence under the Indian evidence act, 1872. It provides as to which documents can be produced by way of primary evidence. Like wise section 63 provides for secondary evidence and it is enumerated there under as to what are the documents which can be brought in under secondary evidence. Section 65 of the act provides for as to when secondary evidence can be tendered under the clauses mentioned therein. Admittedly in the written statement at paragraph and 13 defendants have unequivocally admitted about the existence of the will. In this regard class (b) of section 65 would be relevant to be extracted which reads as under: “Section 65. Section 65 of the act provides for as to when secondary evidence can be tendered under the clauses mentioned therein. Admittedly in the written statement at paragraph and 13 defendants have unequivocally admitted about the existence of the will. In this regard class (b) of section 65 would be relevant to be extracted which reads as under: “Section 65. Cases in which secondary evidence relating to documents may be given: secondary evidence may be given of the existence, condition or contents of a document in the following cases:- (a) Xxxxxxxxxxxxxx (b) When the existence, condition or contents of the original have been proved to be admitted in writing by the person against whom it is proved or by his representative in interest” 7. The three ingredients required to be considered when secondary evidence is tendered and when said evidence is to be brought within clause (b) of Section 65 would be (i) about the existence of the document (ii) condition of documents and (iii) contents of the original have been admitted to be in writing. If these three conditions are applied to the facts of the case and are tested, it would emerge that defendants themselves admit about the existence of the Will at Paragraph 12 of written statement, about the contents thereof in same paragraph an admission is found. Hence, it cannot be said that certified copy of the Will which has been tendered by the defendants cannot be produced and marked in evidence. 8. Be that as it may, even under clause (d) of Section 65 plaintiff would be entitled to produce the certified copy of the Will since the original being the copy of document within the meaning of Section 74(2) of the Evidence Act which reads as under: “Section 74: Public documents: The following documents are public documents: (1) Xxxxxxxxxxxxxxx (2) Public records kept in (any state) of private documents” 9. It would be necessary to observe that mere production of the document would not be proof of document would not be proof of document and for what purpose it has been produced by the plaintiff, it is for the plaintiff to establish by proving the said document. It would be necessary to observe that mere production of the document would not be proof of document would not be proof of document and for what purpose it has been produced by the plaintiff, it is for the plaintiff to establish by proving the said document. In so far as two decisions relied upon by the learned counsel for the petitioner are being discussed herein below: Clarence Pais and others versus Union of India reported in 2001(4) SCC 325 : In the said judgment section 213 of the Indian Succession Act and its scope was the subject matter for consideration, wherein it has been held to the following effect: “ The scope of section 213(1) of the succession Act 1925 is that it prohibits recognition of rights as an executor or legatee under a will without production of certificate of probate and sets down a rule of evidence and forms really a part of procedural requirement of the law of forum. Section 231(2) of the Act indicates that its applicability is limited is limited to cases of persons mentioned therein. The bar that is imposed by this section is only in respect of the establishment of the right as an executor or legatee and not in respect of the establishment of the right in any other capacity. The section does not prohibit the will being looked into for purposes other than those mentioned in the section. The bar to the establishment of the right is only for its establishment in a court of justice and not its being referred to in other proceedings before administrative or other tribunals. The section is a bar to everyone claiming under a will, whether as a plaintiff or defendant, if no probate or letters of administration are granted”. A reading of sub-section (2) of 213 it would emerge that in the case of Wills made by Mohammadan this section would not apply. On this ground alone, it can be held that said judgment is inapplicable to the facts of the present case. The contention of the learned counsel for the petitioner is that original testator being kachhi mammon man having followed the Hindu law and it is procedural and when the copy of the Will is probated it would be incumbent upon them to produce the original will or in the alternative prove the said Will during the course of enquiry. The contention of the learned counsel for the petitioner is that original testator being kachhi mammon man having followed the Hindu law and it is procedural and when the copy of the Will is probated it would be incumbent upon them to produce the original will or in the alternative prove the said Will during the course of enquiry. Said argument cannot be accepted as applicable to facts of the case since in the instant case as stated herein above, and at the cost of repetition defendants themselves admit about the original testator having executed the Will in question an also its contents thereof. It is only with reference to the boundaries and description of the properties which is being disputed which cannot be delved upon for the purpose of marking of the documents. Hence, this court is of the considered view that said judgment is inapplicable to the facts of the present case. 10. In so far as Yashoda’s case referred to supra relied upon by the learned counsel for the petitioners wherein it has been held that for adducing secondary evidence it is necessary for the party to prove existence and execution of the original document and conditions laid down under section 65 are to be fulfilled before the secondary evidence could be admitted. There cannot be any dispute with regard to the principles enunciated therein. Section 65(b) would be applicable to the facts of the present case and also clause (e) of section 65 and hence the conditions laid down in section 65 have been fulfilled in the instant case. Even otherwise when the existence of the original Will is admitted and not denied by the defendants it cannot be said that conditions stipulated under section 65 of the Evidence Act are not fulfilled. In view of the same, this court is of the considered view that said judgment is inapplicable to the facts of the present case. In view of the discussion made in the foregoing paragraphs this court is not inclined to admit the writ petition and the same is dismissed as devoid of merits. No order as to costs.