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2018 DIGILAW 919 (HP)

Virender Singh v. Shreshtha Devi

2018-05-17

DHARAM CHAND CHAUDHARY

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JUDGMENT : Dharam Chand Chaudhary, J. In this petition, order dated 18.8.2017, passed by learned Civil Judge, Jawali, District Kangra in an application filed under Section 65 of the Evidence Act (Civil Suit No.64/15) is under challenge. 2. The impugned order reveals that learned trial Judge thereby has disposed of two applications, one under Section 65 of the Evidence Act and the other under Order 7 Rule 14 read with Section 151 CPC. While allowing the application under Order 7 Rule 14 read with Section 151 CPC, the petitioners herein (Plaintiffs in the trial Court) have been permitted to place on record the photocopy of the Will dated 25.6.2018, service certificate and two photographs of Harbans Lal and his wife Sunnela Kumari and also photocopy of certificate issued by the Purohit at Haridwar regarding performing the last rites on the death of deceased Harbans Lal by Budhi Singh, the father of the petitioners-plaintiffs. The application under Section 65 of the Evidence Act, however, has been dismissed on the ground that they have failed to prove the execution, existence and loss of the original Will. 3. In the application under Section 65 of the Evidence Act Annexure P-2, it is specifically averred that the original Will dated 25.6.2008 got misplaced at such a stage when the same was produced before revenue authorities for the purpose of sanction and attestation of the mutation on the basis thereof in favour of the petitioners-plaintiffs. They both were students at that stage, hence being not mindful, forgot to collect the original Will from the Revenue Officer. The photocopy of the Will was annexed to the application. 4. In reply Annexure P-3, filed by the respondents-defendants their specific stand is that the party seeking to produce secondary evidence is required to plead and prove the existence and execution of the original documents. In the absence of original Will the permission to produce the secondary evidence cannot be granted. It is denied that the Will was misplaced. Had it been so, the petitioners-plaintiffs should have lodged the report in this regard. It is pointed out that the deceased Harbans Lal never executed any Will. It is rather the petitioners-plaintiffs, who themselves prepared a forged document and they themselves destroy the same to escape from criminal liability. It is denied that the Will was misplaced. Had it been so, the petitioners-plaintiffs should have lodged the report in this regard. It is pointed out that the deceased Harbans Lal never executed any Will. It is rather the petitioners-plaintiffs, who themselves prepared a forged document and they themselves destroy the same to escape from criminal liability. The scribe and witnesses of the Will allegedly are facing criminal trial under Section 468 of the Indian Penal Code in FIR No.5/10 with the allegations of having prepared a false document. 5. In view of the claims and counter claims, it can easily be gathered that the document i.e. the so called Will of deceased Harbans Lal was in existence, however, whether it was a genuine document or forged and fictitious, nothing can be said at this stage. Otherwise also, the onus to prove that the original was in existence and the same is lost by the petitioners-plaintiffs, is upon them. 6. Undisputedly, learned trial Judge has not framed any issue qua this aspect of the matter nor afforded any opportunity to the petitioners-plaintiffs to show that the so called Will in existence was the last and final Will of deceased Harbans Lal and that the same is lost in the manner as they claimed in the application filed under Section 65 of the Evidence Act. Therefore, without affording the opportunity of being heard to the parties on both sides, learned trial Judge had no occasion to conclude that the original of the photocopy ordered to be taken on record was not in existence nor had misplaced. Therefore, that part of the impugned order, which deals with the dismissal of the application under Section 65 of the Evidence Act is not legally and factually sustainable and the same is accordingly quashed. Consequently, the case is remanded to learned trial Court with a direction to decide the application under Section 65 of the Act afresh after framing the issues qua existence and lost of the Will in question and affording opportunity of being heard to the parties on both sides. The question qua its execution by Harbans Lal, the testator, however, will arise at a subsequent stage and to be decided in accordance with law, after affording the opportunity of being heard to the parties on both sides. This petition is accordingly allowed and stands disposed of. The question qua its execution by Harbans Lal, the testator, however, will arise at a subsequent stage and to be decided in accordance with law, after affording the opportunity of being heard to the parties on both sides. This petition is accordingly allowed and stands disposed of. An authenticated copy of this order be sent to learned trial Judge for compliance.