1 FARAD CONTINUATION SHEET No. IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH AT NAGPUR. Writ Petition No. 6164 of 2006 (Prashant Laxminarayan Ritpurkar & ors. Vs. Cobra Thawara Rathod & ors.) Appeal District : Application No. of 200 Writ petition - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Office Notes, Office Memoranda of Coram, Court's or Judge's Orders appearances, Court's orders of directions and Registrar's orders - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Mr. L.A. Mohta, Adv. for the petitioners. Mr. R.V. Gaikwad, Adv. for R- 1 and 2. CORAM : Smt. Vasanti A. Naik, J. DATE : 19 th November, 2008 Heard the learned counsel for the parties. By this petition, the petitioners impugn the order passed by the Joint Civil Judge, Jr. Dn., Mangrulpir, on 14/11/2006, allowing the application filed by the original defendant no.3, permitting him to lead secondary evidence to prove the alleged Will dated 23/9/1984. The petitioners are the original plaintiffs. They had filed a suit for declaration that the sale deeds executed by the defendant no.4 in favour of the defendant nos. 1 to 3 were void and illegal and not binding on them as they also had a right and interest over the 2 suit properties which were originally owned by their grandfather. The defendant nos. 1 to 3 denied the claim of the plaintiffs and pleaded that the defendant no.4 was the exclusive owner of the suit property as his father had executed a Will making a bequest of the suit property in his favour on 23/9/1984. The defendants sought for the dismissal of the suit. During the pendency of the suit, at the stage of recording evidence, the defendant no.3 sought permission of the Court to lead secondary evidence in regard to the Will dated 23/9/1984. It was the case of the defendant no.3 that the defendant no.4 had provided a xerox copy of the Will to the defendant no.3 and though they had issued a notice to the defendant no.4 for production of the original Will, the defendant no.4 had filed a pursis on record stating that his father had not executed any Will in his favour and, therefore, there is no question of the Will dated 23/9/1984 to be in his possession. The application filed by the defendant no.3 was strongly opposed by the 3 plaintiffs. It was stated in the reply that the defendant no.3 had not cross-examined the defendant no.4 when he had entered into the witness box and since there was no Will executed by the father of the defendant no.4 making a bequest of the properties in his favour, the permission to tender secondary evidence should be refused. The trial Court, by the impugned order dated 14/11/2006, allowed the application and permitted the defendant no.3 to lead secondary evidence to prove the alleged Will dated 23/9/1984. Shri L.A. Mohta, the learned counsel for the petitioners, submitted that the trial Court was not justified in allowing the application and permitting the defendant no.3 to lead secondary evidence. According to the counsel for the petitioners, there was no Will executed by the father of defendant no.4 on 23/9/1984 or at any point of time. According to the learned counsel for the petitioners, if there was any Will executed in favour of the defendant no.4, the defendant no.3 would have been in possession of the original Will as the 4 same could have been handed over to the defendant no.3 at the time of purchase of property. It is submitted on behalf of the petitioners that though it was stated in the application that one of the witnesses to the Will was alive, the defendant no.3 had not examined him and hence, the application ought to have been dismissed. Shri Gaikwad, the learned counsel for the respondent nos. 1 and 2, supported the impugned order dated 14/11/2006, and submitted that there was no reason to interfere with the same in exercise of the jurisdiction under Article 227 of the Constitution of India. I have perused the application, the say filed by the plaintiffs thereto, and the impugned order dated 14/11/2006. It is conspicuous to note that in this case, the wife and the son of defendant no.4 had filed a suit for a declaration that the sale deeds executed by the defendant no.4 in favour of the defendant nos. 1 to 3 were void and not binding on them as the defendant no.4 was not the exclusive owner of the property. The defendants disputed this fact and had pleaded 5 that the father of the defendant no.4 had executed a Will in favour of the defendant no.4 on 23/9/1984. It appears from the record that the summons were issued to the defendant no.4 calling the defendant no.4 to produce the Will dated 23/9/1984. As per the summons, the defendant no.4 appeared before the Court to inform the Court by a pursis that his father had not executed any Will in his favour on 23/9/1984 and there was no question of producing the original Will dated 23/9/1984 before the Court. In this background, there was no alternative for the defendant no.3, but to seek permission of the Court to tender secondary evidence for proving the Will dated 23/9/1984. It was also clear from the certified copy of the mutation entries which were produced before the trial Court that the suit properties had been mutated in the name of the defendant no.4 after the death of his father, in view of the Will executed by the father of the defendant no.4 in his favour. The Court, therefore, rightly observed that it was necessary to give an opportunity to the 6 defendant no.3 to prove the existence of the Will dated 23/9/1984. The submissions made on behalf of the petitioners cannot be accepted as they deal with the merits of the suit filed by the plaintiffs and the defence of the defendant no.3, and have no bearing on the issue involved in this writ petition pertaining to the correctness of the order dated 14/11/2006. For the reasons aforesaid, the writ petition is dismissed with no order as to costs. JUDGE RMP