Revision petition against trial court order declining secondary evidence for a Will. Court held that without alleging original possession or loss, and given the dubious photocopy, permission was rightly denied.
Permission to lead secondary evidence was denied; revision petition dismissed.
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C.R.No.3645 of 2009
1
IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH
C.R.No.3645 of 2009
Date of Decision : 06.07.2009
Darshan Singh
...Petitioner
Versus
Satpinder Singh and others ...Respondents
CORAM:HON'BLE MR. JUSTICE HEMANT GUPTA
Present: Mr. Parminder Singh, Advocate, for the petitioner.
HEMANT GUPTA, J. (ORAL)
The plaintiff is in revision petition aggrieved against the order passed by the learned trial Court on 28.4.2009 whereby an application to prove the Will dated 15.8.2005 by secondary evidence, was declined.
The plaintiff has filed a suit for declaration claiming the estate of Takhat Singh on the basis of Will dated 15.8.2005. The said suit was filed on 15.6.2006. In the plaint, there is no averment that the plaintiff is not possessed of the original Will. The plaintiff alleges to be in possession of photocopy of the Will, but it is not explained that how he has got the photocopy of the same, if the original Will is not in his possession.
The learned trial Court has declined the prayer to lead secondary evidence on the ground that the plaintiff has failed to prove the existence of the document. It is on proof of the existence of the Will alone, the petitioner could be permitted to lead secondary evidence. In Surinder Kumar Vs. Murari Lal 1993(2) RRR 535 , the permission to
C.R.No.3645 of 2009
2
lead secondary evidence was declined where no mention of loss of document is made in the suit. Since, the plaintiff has not set up any background in the suit regarding existence of the Will and loss thereof, the petitioner cannot be permitted to lead secondary evidence of such Will.
Even otherwise, the photocopy of the Will produced by the petitioner shows thumb impressions are in smudged conditions, which are, thus, beyond comparison. In the case of Will, which is to take effect after the death of the testator, strict proof of existence of document is necessary.
In view of the above, I do not find any illegality or irregularity in the impugned order, which may warrant interference by this Court in the present revision petition.
Dismissed.
06.07.2009 (HEMANT GUPTA) Vimal JUDGE
2 issues framed by the court
Whether permission to lead secondary evidence of a Will should be granted when the plaint does not aver possession of the original or the loss thereof.
Whether the smudged thumb impressions on the photocopy of the Will establish its existence.
Colour shows how this judgement treated each authority
Surinder Kumar Vs. Murari LalReferred¶15
Surinder Kumar Vs. Murari Lal 1993(2) RRR 535
Darshan Singh
Satpinder Singh and others
Hemant Gupta
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
