Research › Search › Judgment

Karnataka High Court · body

2010 DIGILAW 85 (KAR)

Anandibai v. Hema

2010-01-20

H.G.RAMESH

body2010
Judgment :- H.G.Ramesh, J: I have heard the learned Counsel for the petitioners on the merits of the petition and the writ petition is being disposed of by this order. 2. This writ petition by the plaintiffs is directed against an interlocutory order dated 19.3.2009 (Annexure-C) passed by the trial court-the Court of the IV Addl. Civil Judge (Jr.Dn), Belgaum, in the suit in O.S. 316/1994. By the impugned order, the Trial court has held that the certified copy of the Will and the relevant portion of the register of Wills was not admissible as secondary evidence. I have perused the impugned order at Annexure-C. The trail court, on a detailed consideration of the matter, has found that the loss of the original Will was not satisfactorily proved. It is relevant to refer to the following reasoning of the trial court at para 10 of the order impugned herein: “10. In the instant case P.W.1 in his examination chief except stating that, original will was lost, has not stated anything further. Plaintiff has not placed any iota of evidence to show that, original will was last. It is not sufficient to show merely that, the original will is lost. Further there must be sufficient proof of search for the original to render the secondary evidence admissible. Plaintiffs have failed to establish that, they have exhausted resources and means for search of the will. Plaintiffs have also not placed any iota of evidence to show that information was lodged about missing of the will before any authority. Hence under this circumstances it can be concluded that, loss of original will was not satisfactorily proved. Hence, in view of the principles enunciated the above-referred decisions, it is clear that certified copy of the will or Register of Wills is not admissible as secondary evidence. Hence, I answer the point No.1 in Negative”. 3. I have examined the matter in the light of the principles laid down by the Supreme Court in Surya Dev Rai Vs. Ram Chander Rai ( AIR 2003 SC 3044 ) relating to exercise of jurisdiction under Articles 226 & 227 of the Constitution of India pertaining to interlocutory orders passed by Courts subordinate to the High Court. 3. I have examined the matter in the light of the principles laid down by the Supreme Court in Surya Dev Rai Vs. Ram Chander Rai ( AIR 2003 SC 3044 ) relating to exercise of jurisdiction under Articles 226 & 227 of the Constitution of India pertaining to interlocutory orders passed by Courts subordinate to the High Court. In my opinion, the impugned order does not suffer from any error of jurisdiction or error apparent on the face of the record to warrant, interference under the extraordinary jurisdiction of this Court under Articles 226 & 227 of the Constitution of India. The writ petition is accordingly dismissed.