1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD WRIT PETITION NO. 3835 /2009 Rameshwar Eknath Dhanure And others. .. Petitioners Versus Sarawsatibai Eknath Dhanure and Others. .. Respondent. --- Mrs. S.D. Tambat Dhumal, Advocate for petitioner. CORAM : B.R. GAVAI, J. DATE : 24th June, 2009. ORAL ORDER :- 1] By way of present petition, the petitioners challenge the order dated 4th May, 2009 vide which the application filed by the present petitioner for review of the order dated 17th October, 2009 vide which the application filed by the present respondents/plaintiffs for production of secondary evidence came to be allowed. 2 2] The plaintiffs/respondents have filed a suit for partition. On the basis of the registered will deed dated 21st October, 1999. It is the claim of the plaintiffs that she is the second wife of deceased Eknath and that the defendant No.2 Kailas is her son. It is further the contention of the plaintiffs that the defendants are sons of deceased Eknath from his first wife, namely, Anusayabai. The claim of partition is based on the aforesaid will deed dated 21st October, 1999. 3] During the pendency of the suit, an application came to be filed by the plaintiffs for permission to produce the secondary evidence of the certified copy of will deed dated 21st October, 1999. It is the contention of the plaintiffs that the original will deed was lost by the plaintiffs and in spite of search, the original could not be made available. Therefore, an application was filed for permission to produce the certified coy of the said will deed which was available from the office of the Sub Registrar , Jalna. The said application is allowed vide order dated 17th November, 2009. The petitioner thereafter filed a review application. The same is also rejected. Hence, the present petitioner. 4] Smt. Tambat Dhumal, Advocate for the petitioner submits that the secondary evidence of certified copy of will deed is not permissible. She relies on the judgment of the learned Single Judge of this court in the matter of ”Sau. Parvatibai Bhiva Raimane (deceased through LRs) and 3 others Vs. Snjanabai Govinda Hiware and another.” reported in 2009(1) All. M.R. 210. 5] In the said case, the application was tendered by the plaintiffs praying that the defendants be directed to produce the original will deed in the court. It was the case of the plaintiff in the said case that the defendant had stolen the said will deed after demise of the testator. The said application was resisted by denying the allegations. The trial court passed an order that in view of the say of the defendants, no directions to produce will could be granted. It has been observed by the trial court that the effect of will can be decided after completing evidence of both the parties. The learned Single Judge of this Court, found that the procedure adopted by the defendants was not in consonance with Section 65 of the Indian Evidence Act as such, the learned Single Judge has found that the certified copy of the sale deed cannot be accepted as secondary evidence of the document. The facts in the present case are totally different. The contention of the plaintiffs in the said case was that the will deed in question was in possession of the defendants and, therefore, the said case fell under sub-section (a) of Section 65 of the Indian Evidence Act. . However, the present case would fall under sub-clause(C) of Section 65 of the Indian Evidence Act, which reads as under :- 4 “When the original has been destroyed or lost,or when the party offering evidence of its contents cannot, for any other reason not arising from his own default or neglect, produce it in reasonable time.“ . In the present case, the plaintiffs on affidavit have stated that the original will deed has been lost and that even inspite of search, the original is not available and, therefore, they have applied for production of secondary evidence in the nature of certified copy of will deed which was available in the office of the Sub-Registrar. In that view of the matter, the ratio in the said case would not be applicable in the facts and circumstances of the present case. . No perversity found with the approach adopted so as to warrant interference in the extraordinary jurisdiction of this court under article 227 of the Constitution of India. Hence, writ petition is rejected. [B.R. GAVAI,J.] GRT/- .