C. R. No. 4927 of 2009 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. Case No. : C. R. No. 4927 of 2009 Date of Decision : April 26, 2010 Shanti Devi Nirmal Chawal Memorial Trust through its Trustees .... Petitioners Vs. Subhash Sharma and another .... Respondents CORAM : HON'BLE MR. JUSTICE L. N. MITTAL * * * Present : Mr. Amarjit Markan, Advocate for the petitioners. Mr. Anil Chawla, Advocate for the respondents. * * * L. N. MITTAL, J. (Oral) : This is revision petition by plaintiff Trust through its Trustees, filed under Article 227 of the Constitution of India, challenging order dated 22.07.2009 (Annexure P-1), passed by learned Civil Judge (Junior Division), Amritsar, thereby dismissing plaintiff's application for directing the defendants to produce original Will dated 05.06.2000 (Annexure P-3) and in the alternative, for permitting the plaintiff to lead secondary evidence of the said Will. The plaintiff's case is that the plaintiff Trust was created pursuant to Will dated 05.06.2000, allegedly executed by Nirmal Chawla. The suit property was owned by Nirmal Chawla and according to the C. R. No. 4927 of 2009 2 aforesaid Will, the suit property vests in the Trust. Plaintiff moved application Annexure P-2 alleging that after death of Nirmal Chawla, the Will was in the custody of her husband Ram Pal Chawla during his lifetime, but after his death, defendants committed theft of the said original Will. The plaintiff accordingly prayed that the defendants be directed to produce original Will dated 05.06.2000 and in the alternative, the plaintiff may be permitted to lead secondary evidence of the said Will. Defendant, in the reply Annexure P-4, controverted the allegations of the plaintiff and denied that they had committed theft of the Will or that the Will was in their possession. Learned counsel for the petitioners vehemently contended that reference to the Will dated 05.06.2000 (Annexure P-3) has been made in the registered trust deed, whereby the plaintiff Trust was created. The said Trust was created by Ram Pal Chawla on the basis of the aforesaid Will. Similarly, on the basis of the said Will, a sum of Rs.5,00,000/- was deposited in plaintiff's bank account. It was thus contended that existence of the original Will is proved. It was also contended that strict proof of the loss of Will is not required to entitle the plaintiff to lead secondary evidence. Reliance in support of these contentions has been placed on following judgments of this Court namely Ashok Kumar Sachdeva vs. Harish Malik reported as 2007 (4) R. C. R. (Civil) 311, Sobha Rani vs. Ravi Kumar reported as 1998 (3) R. C. R. (Civil) 139, Kuldip Kaur vs. Chattar Singh and another reported as 2008 (3) R. C. R. (Civil) 463 and Raj Kumari vs. Lal Chand reported as 1994 (1) P. L. R. 190. On the other hand, learned counsel for the respondents contended that to enable the plaintiff to lead secondary evidence of the Will under Section 65 (a) of the Evidence Act, it was incumbent on the plaintiff to serve notice under Section 66 of the Evidence Act, requiring the C. R. No. 4927 of 2009 3 defendants to produce the original Will and since no such notice was served, the plaintiff is not entitled to lead secondary evidence of the Will. Reliance in support of this contention has been placed on a judgment of Hon'ble Supreme Court in the case of J. Yashoda vs. Smt. Shobha Rani reported as 2007 (3) Civil Court Cases 195 (S. C.) and a judgment of this Court in the case of namely Tarlok Singh and another vs. Dilbagh Rai and others reported as 1985 (1) All India Rent Control Journal 81. I have considered the rival contentions. In so far as contention of learned counsel for the respondents that prior notice was not given to the defendants requiring them to produce the original Will is concerned, the same does not help the respondents because in application Annexure P-2 moved by the plaintiff, it was prayed that defendants be directed to produce original Will. However, the defendants, in reply Annexure P-4, have specifically stated that the original Will is not in their possession. Consequently, requirement of Section 66 of the Evidence Act is substantially complied with. In so far as proof of existence and loss of the original Will is concerned, the plaintiff has to prove the same after the plaintiff is permitted to lead secondary evidence of the Will. Without proving existence and loss of the original Will, the Will cannot be taken into consideration. The plaintiff has not only to prove existence and loss of the original Will, but has also to prove execution of the Will by secondary evidence. It is correct that loss of the Will was not pleaded in the plaint. However, reference to the existence of the original Will was made in the plaint. Reference to the Will has also been made in the registered trust deed executed by Ram Pal Chawla – husband of testator Nirmal Chawla. In view of the aforesaid, I am of the considered opinion that keeping in view all the circumstances, the plaintiff has made out a case for permitting it to lead secondary evidence of the Will. The revision petition is accordingly allowed and impugned order dated 22.07.2009 (Annexure P-1), C. R. No. 4927 of 2009 4 passed by the trial court is set aside and the plaintiff is permitted to lead secondary evidence of the Will dated 05.06.2000 allegedly executed by Nirmal Chawla. The plaintiff has also to prove the existence and loss of the said Will. It is again made clear that I have not expressed any opinion regarding existence and loss of the said Will in the instant order. April 26, 2010 ( L. N. MITTAL ) monika JUDGE