C.R. No. 5476 of 2008 [1] IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. C.R. No. 5476 of 2008 Date of Decision: November 20, 2009 Manjit Kaur and another …..Petitioners Vs. Veer Pal Kaur and others …..Respondents CORAM: HON’BLE MR. JUSTICE M.M.S. BEDI. -.- Present:- Mr. Parminder Singh, Advocate for the petitioners. Mr.S.K. Singla, Advocate for respondents No.1 to 3. -.- M.M.S. BEDI, J. This revision petition under Articles 227 of the Constitution of India has been preferred against order dated September 22, 2008, dismissing the application of the defendant- petitioners for permission to lead secondary evidence to prove Will No.80 dated November 12, 1997. The facts relevant for adjudication of this revision petition are that the plaintiff- respondents who are daughters of Nachhatar Singh, have C.R. No. 5476 of 2008 [2] filed a suit for declaration that they are owners in joint possession of the land mentioned in heading of the plaint, challenging the mutation of the land owned by Nachhatar Singh, sanctioned in favour of his son Gurjit Singh. Gurjit Singh was husband of defendant- petitioner No.1 and father of defendant-petitioner No.2 and son of petitioner No.3 and has expired. The claim of the defendant-petitioners is based upon their right to inherit the property on the basis of Will dated November 12, 1997 executed by Nachhatar Singh. In the application moved for providing the Will dated November 12, 1997, it has been mentioned that the said Will was registered in the office of Sub-Registrar without mentioning as to who is in possession of the original Will. The trial Court while dismissing the application for secondary evidence has observed that date of the Will has been mentioned as November 12, 2007. It appears to be a typographical error. The actual Will sought to be established is dated November 12, 1997. The trial Court also observed that as no valid notice had been served upon the plaintiffs for production of the original Will nor it was suggested to the plaintiffs that they are in possession of original Will. As per the claim of the defendant- petitioners, it is apparent from the statement made by Sukhdev Singh, during his life time, father of applicant No.1 that original Will dated November 12, 1997 had been handed over to Patwar Halqa Sarao, Tehsil Budhlada. I have considered the facts and circumstances of this case. In number of judgments it has been lay down that before providing a document by secondary evidence, it is necessary to prove the loss of the document, for C.R. No. 5476 of 2008 [3] instance, Akkam Laxmi Vs. Thosha Bhoomaiah and another, 2003 (1) RCR (Civil) 322, Hira and another Vs. Smt. Gurbachan Kaur, 1988 (2) PLR 173 and Banarsi Dass Vs. Om Parkash and others, 2005 (2) RCR (Civil) 72. At the same time, in number of judgments it has been held that loss is not required to be proved in absolute terms to produce the secondary evidence. In this context, reference can be made to Smt. Prem Lata Vs. Smt. Kamla Devi and others, 2006 (3) RCR (Civil) 227, Shangara Singh Vs. Jawala Singh, 1993 (2) RRR 367, Smt.Sobha Raam Vs. Ravi Kumar and others, 1999 (12) RCR (Civil) 98, and Som Parkash Vs. Prabhati Lal, 1991 (2) Recent Revenue Report 399 (P&H). Taking into consideration various judgments, a Coordinate Bench of this Court in Ashok Kumar Sachdeva Vs. Harish Malik,2007 (4) RCR (Civil) 311 has held that to prove a document by way of primary or secondary evidence is a rule of evidence. Whether the party seeking leave of the Court to lead secondary evidence ultimately succeeds in proving the document or not is a question of fact and depends upon evidence. A party pleads in the application the loss of original document. Under what circumstances document was lost is a question of fact and evidence. It was further held in the said judgment that it is settled rule of pleadings that a party must disclose material facts and need not plead evidence. The material fact is a loss of document and the circumstances leading to loss is a question of evidence. This question can only be decided after providing opportunity to the party concerned to lead secondary evidence. To grant leave to lead secondary evidence does not mean the document is admitted in C.R. No. 5476 of 2008 [4] evidence nor it is a finding of the existence of any of the conditions indicated in Section 65 of the Evidence Act. It only amounts to holding an enquiry regarding existence of document and its loss under some circumstances. Failure or success to prove the existence of document or its loss cannot be pre-determined that too without providing opportunity. In the present case, the Will which is sought to be proved by production of secondary evidence is claimed to be a registered document. Mere allowing the production of secondary evidence will not tentamount to a presumption regarding the existence or due execution of the Will. The Will has to be established in accordance with law. Impugned order, in view of the above discussion, deserves to be set aside. The application of the defendant- petitioners for production of secondary evidence is allowed. It is held that the defendant- petitioners will be required to establish the loss as well as the existence or the valid execution of the Will in accordance with law. Parties are directed to appear before the trial Court on the date already fixed. The trial Court will form its independent opinion regarding the existence of document and the various circumstances enumerated in Section 65 of the Evidence Act for secondary evidence and it is only thereafter that the Court will find out whether the document is proved in evidence or not. With the above observations, the revision petition is allowed. November 20, 2009 (M.M.S.BEDI) sanjay JUDGE