IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. CMPMO No.634 of 2009 Reserved on : 17. 3. 2010. Date of Decision : 22. 3. 2010. Bali Ram …Petitioner. Versus Baisan Devi and others . …Respondents. Coram The Hon’ble Mr. Justice Kuldip Singh, Judge. Whether approved for reporting ? Yes For the Petitioner : Mr. Shrawan Dogra, Advocate. For the Respondents : Mr. M.S.Thakur, Advocate. Kuldip Singh, Judge The petitioner/defendant under Article 227 of the Constitution of India has challenged order dated 13.10.2009 passed by the learned Civil Judge (Jr. Division) Court No.II, Ghumarwin on an application under Section 65 of the Indian Evidence Act, 1872 (for short ‘Act’) in Civil Suit No. 627/1 of 2000 allowing the application of respondents/plaintiffs to produce the secondary evidence and to prove the attested / certified copy of alleged will dated 23.6.1997 of Smt. Janki Devi in favour of Mast Ram predecessor of respondents. ______________________ 1 Whether reporters of Local Papers may be allowed to see the Judgment ? yes 2 2. The brief facts relevant to the controversy in the petition are that respondents had filed a suit for permanent prohibitory injunction, in alternative for possession against petitioner, who had filed the written statement and contested the suit. The petitioner has also filed the counter claim in the suit and has taken the plea that he is owner in possession of the suit land on the basis of adverse possession. The alleged will of Smt. Janki Devi is the result of fraud, mis-representation and undue influence. The respondents have filed replication to the written statement of the petitioner and written statement to the counter claim of the petitioner. They have taken the plea that Smt. Janki Devi had executed a will dated 23.6.1997 in favour of Mast Ram, predecessor-in-interest of respondents. The will was registered on 21.9.2000 after the death of Smt. Janki Devi and Mast Ram. On the basis of pleadings of the parties, several issues were framed including issue No.7D whether Smt. Janki Devi had executed a valid will in favour of Mast Ram, predecessor-in-interest of plaintiff/counter-defendants. 3. The respondents had filed an application under Section 65 of the Act to permit them to prove the attested copy / certified copy of registered will dated 21.9.2000 allegedly executed by Smt. Janki Devi in favour of Mast Ram their predecessor-in-interest. The further case of the respondents is that after the death of Smt. Janki Devi. Mast Ram produced the unregistered original will before Bishan Dass, Patwari, Patwar Circle, Samoh to enter the mutation of suit land on the basis of will. The original unregistered will was retained by the Patwari, 3 who told Mast Ram lateron that the original will had been lost when Mast Ram contacted Bishan Dass, Patwari in connection with the mutation. Mast Ram had also died on 29.7.1999. The photocopy of the original will was with Mast Ram, who during his life time had filed an application under Sections 40, 41 of the Indian Registration Act for registration of the will before the Sub Registrar, Jhandutta. The respondents were lateron impleaded in those proceedings as legal representatives of Mast Ram and said will was registered on 21.9.2000. The respondents had issued notice under Section 66 of the Act to Patwari but he has not returned the will nor had given any reply to the notice. On these grounds, prayer was made by the respondents to prove the will by leading secondary evidence. 4. The application was contested by the petitioner, he denied that Smt. Janki Devi had executed any will in favour of Mast Ram. The learned Civil Judge has allowed the application to prove the attested/certified copy of alleged will by way of secondary evidence. 5. I have heard the learned counsel for the parties and have also gone through the record. Mr. Shrawan Dogra, Advocate, learned counsel for the petitioner has submitted that the application filed under Section 65 of the Act by the respondents to prove alleged will dated 23.6.1997 of Smt. Janki Devi is not maintainable. It has been submitted that neither the existence of original will has been established nor it has been proved that alleged document intended to be proved by way of secondary evidence is a copy of original will. The learned counsel for the respondents has supported the impugned order. 4 6. The Section 63 of the Act provides what is secondary evidence which is as follows:- “Secondary evidence – Secondary evidence means and includes – (1) Certified copies given under the provisions hereinafter containined; (2) Copies made from the original by mechanical processes which in themselves insure the accuracy of the copy, and copies compared with such copies; (3) Copies made from or compared with the original; (4) Counterparts of documents as against the parties who did not execute them; (5) Oral accounts of the contents of a document given by some person who has himself seen it.” The certified copy of the alleged will dated 23.6.1997 of Smt. Janki Devi in favour of Mast Ram registered on 21.9.2000 has been placed on record. 7. AW-1 Madan Lal has filed his affidavit Ex.AW1/A in evidence and has stated that Smt. Janki Devi had executed a will dated 23.6.1997 in favour of Mast Ram, who had produced unregistered original will to Bishan Dass, Patwari to enter mutation of suit land after the death of Smt. Janki Devi. The original unregistered will was retained by Patwari, at that time deponent, Prem Lal were also present. The Patwari had asked Mast Ram to take back the original unregistered will after one week. But Patwari did not return the unregistered original will to Mast Ram when he approached the Patwari for return of unregistered original will alongwith Prem Lal on the ground that the will had been lost from his custody. The said will was registered on 21.9.2000 by the Sub Registrar, Jhandutta. He has also stated that notice under Section 66 of the Act was issued to Patwari Bishan Dass on 19.10.2007 to produce the unregistered will of 5 Smt. Janki Devi in favour of Mast Ram. But despite service Patwari has not returned the said will. In cross-examination, the suggestion has been given to this witness that original of Mark ‘X’ was not executed by Smt. Janki Devi, another suggestion has been given to this witness that in order to grab the property of Smt. Janki Devi, copy of fictitious will of Smt. Janki Devi has been produced. 8. AW-2 Prem Lal in his examination in chief on affidavit Ex.AW-2/A has stated that Mast Ram during his life time took him to Patwari, Patwar Circle, Samoh and his (Mast Ram) son Madan Lal was also with them. Mast Ram had produced unregistered original will of Smt. Janki Devi executed by her in favour of Mast Ram for entering mutation. Patwari retained the original unregistered will with him and asked Mast Ram to take back the above unregistered will after one week. Mast Ram and he after one week again went to the office of Patwari to take back unregistered will from him, but Patwari Bishan Dass told Mast Ram that unregistered will had been lost from his custody. In cross-examination, he has denied that Smt. Janki Devi had not executed any will. 9. RW-1 Bali Ram in his affidavit Ex.RW-1/A has stated that Smt. Janki Devi had not executed any will on 23.6.1997, the alleged will is forged one and shrouded by the suspicious circumstances. In cross-examination, he has admitted that Mast Ram had given photocopy of the will to Tehsildar, Jhandutta for registration. RW-2 Peeru Ram in his affidavit Ex.RW-2/A has stated that Mast Ram had never handed over will to Patwari Halqua, Samoh. RW-3 Jagar Nath 6 in his affidavit Ex.RW-3/A has also stated that Mast Ram had not handed over any will to Patwari Halqua, Samoh. 10. The Section 65 of the Act covers the cases in which secondary evidence relating to documents may be given. Clause (a) of Section 65 provides that secondary evidence may be given of the existence, condition or contents of a document when the original is shown or appears to be in the possession or power of any person legally bound to produce it and when, after the notice mentioned in Section 66, such person does not produce it . It is the case of the respondents that original will was given to Bishan Dass, Patwari by Mast Ram but he did not return it to Mast Ram. The respondents have given notice to Bishan Dass, Patwari under Section 66 of the Act, but despite that original will has not been produced. The respondents have thus complied the requirement of Section 65 of the Act for leading secondary evidence with respect to alleged will dated 23.6.1997 of Smt. Janki Devi in favour of Mast Ram. 11. The learned counsel for the petitioner has submitted that mark ‘X’ alleged will dated 23.6.1997 cannot be proved by way of secondary evidence on the ground that it has not been established that it is the copy of the original will and mark ‘X’ is not secondary evidence of original will dated 23.6.1997 as contemplated by Section 63 of the Act. The respondents have led evidence to show that original will dated 23.6.1997 was given to Bishan Dass, Patwari for attestation of mutation in favour of Mast Ram on the basis of will. The Patwari asked Mast Ram to take back the will after one week but when Mast Ram approached Bishan Dass, he did not return the will to Mast Ram and 7 told him that the will had been lost. The petitioner while cross- examining AW-1 has given him suggestion that original of mark ‘X’ was not executed by Smt. Janki Devi. He was also given suggestion that copy of fictitious will of Smt. Janki Devi has been put forward in order to grab the property of Smt. Janki Devi. These suggestions indicate that mark ‘X’ is the copy of alleged will of Smt. Janki Devi which petitioner is saying to be forged. In other words, the petitioner is not disputing that mark ‘X’ is the copy of alleged original will of Smt. Janki Devi. Mark ‘X’ is a copy of the alleged will of Smt. Janki Devi and that the alleged will is fictitious document are entirely two different situations. The will dated 23.6.1997 is yet to be proved. On the basis of the material on record, it cannot be said that mark ‘X’ is not the copy of alleged will dated 23.6.1997 allegedly executed by Smt. Janki Devi in favour of Mast Ram. 12. The learned Civil Judge, has appreciated the evidence on record while allowing the application. It cannot be said that the view taken by learned Civil Judge for allowing the application does not emerge from the material on record. There is no error of jurisdiction in allowing the application nor the impugned order has been shown to be perverse. There is no merit in the petition. 13. No other point was urged. 14. The result of the above discussion, the petition fails and is accordingly dismissed. The parties through their counsel are directed to appear before the trial Court on 19.4.2010 and record of the trial Court be sent back immediately so as to reach before the date fixed. 8 Interim order dated 12.11.2009 stands vacated. In view of disposal of the main petition, CMP No. 938 of 2009 is infructuous. March 22, 2010. ( Kuldip Singh ), (GR) Judge.