Allowed

Rasika Mahadeo Chavan and Others v. Suresh Uttareshwar Jadhav and Others

Bombay HC2 Mar 2015WP/1352/2014

Case brief

AI extract

What is this about?

The High Bench set aside the order rejecting an application for permission to lead secondary evidence of a registered will deed under Section 65(c) of the Evidence Act, holding that pleading the deed's existence in the main application satisfied statutory requirements.

What did the court decide?

Impugned order dated 18/12/2013 set aside; applicant granted permission to lead secondary evidence of registered will deed dated 01/08/2011.

Rasika Mahadeo Chavan and Others Vs Suresh… — Succession and Inheritance | Bombay HC (2015)

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD

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WRIT PETITION NO. 1352 OF 2014

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1. 2.	Rasika W/o. Mahadeo Chavan, Age: 56 years, Occ. H. H., R/o. Chavanwadi Murud, Tal. & Dist. Latur. Ram S/o. Arjun Kamble, Age: 35 years, Occ. Labour, R/o. Jawala, Tal. Kalamb, Dist. Osmanabad.
3.	Satish S/o. Laxman Kamble, Age: 29 years, Occ. Labour, R/o. Ganganagar, Phursungi, Hadapsar, Pune.
4.	Phulchand S/o. Janardhan Thorat, Age: 28 years, Occ. Labour, R/o. Ramtekadi, Sy. No. 110, Shanti Nagar, Hadapsar, Pune.
5.	Tushar s/o Satish Kamble, Age : 4 years, Occ: Education, Minor u/g of his natural mother Alka w/o Satish Kamble, Age: 25 years, Occ: Labour, R/o. Ganganagar, Phursungi, Hadapsar, Pune.	...Petitioners
	versus
1.	Suresh s/o Uttareshwar Jadhav, Age: 40 years, Occ: Labour, R/o. Adat Galli, Bangadi Chal, Barshi, Tal. Barshi, Dist. Solapur.
2.	Yuvraj s/o Dnyanoba Yedake, Age: 27 years, Occ: Labour, R/o. Shahu College, Sadar Bazar, Kolhapur, Tal. & Dist. Kolhapur.
3.	Babasaheb s/o Dharma Taur, Age: 35 years, Occ: Service, R/o. Indira Nagar, Ghatkopar, Mumbai. (Deleted as per order of Hon'ble Court dated 02/03/2015).

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Govardhan s/o Bhivraj Khandagale, Age: 35 years, Occu. : Labour, R/o. Ramdas Nagar, Parbhani, Tal. & Dist. Parbhani. 5. Suresh S/o. Ganpatrao Sable, Age: 59 years, Occ. : Labour, R/o Subhedar Ramji Nagar, Latur. ...Respondents

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Mr. M. D. Shinde, Advocate for petitioners. Mr. C. V. Dharurkar, Advocate for respondent No. 4. Mr. D. G. Kamble, Advocate for respondent No. 5.

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CORAM : N.W. SAMBRE, J.

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DATE : 2ND MARCH, 2015

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ORAL ORDER :

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. A motion is made by learned Counsel for the petitioners for deletion of respondent No. 3. Motion is not opposed. Respondent No. 3 be deleted from the array of the respondents at the risk of the petitioners.

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An order on the application preferred by the petitioners in Misc. Application No. 344 of 2012 under the provisions of Section 65 of the Evidence Act for permission to lead secondary evidence in support of registered will deed dated 01/08/2012 Serial No. 2032 of 2011, passed by the 3rd Joint Civil Judge, Senior Division, Latur on

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18/12/2013, is impugned in the present petition.

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The rejection of the application for grant of permission to lead secondary evidence is on two counts ; (1) that in the application for permission to lead secondary evidence, cause of loss of original document was not disclosed and (2) in the main application also during the course of recording of evidence, loss of document in question was not pleaded.

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Perusal of scheme of Section 65 of sub-section (c) of the Evidence Act contemplates such permission in case if the original is lost, however, it is required to be noted that whether that need to be pleaded in the application moved for seeking permission to lead secondary evidence is the question is required to be answered herein.

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The main application for issuance of succession certificate is based on the pleadings though there exists registered will deed dated 01/08/2011. The fact remains that existence of registered will deed, was very much pleaded. Once the said fact was pleaded in the original application, so also in the application for permission to lead secondary evidence, in my opinion, there is sufficient compliance of requirement of Section 65(c) of the Indian

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Evidence Act.

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In view of above, in my opinion, learned trial Court has committed an error in rejecting the application. As such, the order impugned is not sustainable.

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In the light of above, the impugned order dated 18/12/2013 passed by the 3rd Joint Civil Judge, Senior Division, Latur, is hereby set aside. The applicant is granted permission to lead secondary evidence in support of registered will deed dated 01/08/2011.

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The writ petition stands allowed in above terms.

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[ N.W. SAMBRE, J. ]

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Tupe/02.03.15

Rasika Mahadeo Chavan and Others v. Suresh Uttareshwar Jadhav and Others

Case brief

What is this about?

What did the court decide?

Rasika Mahadeo Chavan and Others v. Suresh Uttareshwar Jadhav and Others

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Statutes considered

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