C. R. No. 7130 of 2010 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. Case No. : C. R. No. 7130 of 2010 Date of Decision : October 29, 2010 Surinder Kaur .... Petitioner Vs. Bakhtawar Singh and others .... Respondents CORAM : HON'BLE MR. JUSTICE L. N. MITTAL * * * Present : Mr. R. K. Singla, Advocate for the petitioner. * * * L. N. MITTAL, J. (Oral) : Plaintiff no.2 Surinder Kaur has filed the instant revision petition under Article 227 of the Constitution of India impugning order dated 16.09.2010 (Annexure P-9) passed by learned Civil Judge (Junior Division), Phillaur thereby accepting application moved by defendant- respondent no.11 for permission to lead secondary evidence of the Will. Defendants no.1 to 3 pleaded registered Will dated 20.09.1981 allegedly executed in their favour by their father Lakha Singh. Defendants no.1 to 3 also pleaded that original Will stood lost. Defendants no.1 to 4 have sold suit land vide various sale deeds to defendants no.6 to 12. C. R. No. 7130 of 2010 2 Defendant no.11 moved application for secondary evidence of the aforesaid Will because the Will was pleaded to have been lost by defendants no.1 to 3. The said application has been allowed by the trial court. I have heard learned counsel for the petitioner and perused the case file. Learned counsel for the petitioner vehemently contended that no notice, as required by Section 65 (a) of the Indian Evidence Act, 1872, was given by defendant no.11 to defendants no.1 to 3 for production of the original Will and therefore, secondary evidence of the Will could not be permitted. It was also contended that loss of the original Will is not proved and for this reason as well, secondary evidence of the Will could not have been allowed by the trial court. Reliance in support of this contention has been placed on judgment of Hon'ble Supreme Court in the case of Benga Behera and another vs. Braja Kishore Nanda and others reported as 2007 (3) R. C. R. (Civil) 241, on judgment of this Court in the case of Balbir Singh and another vs. Smt. Darshan Kaur and others reported as (Vol. LXXVIII-1976) P. L. R. 239 and on another judgment namely Suraj Bhan vs. Harchandgir reported as A. I. R. 1954 Pepsu 65 (Vol. 41 C. N. 33). I have carefully considered the aforesaid contentions, but find no merit therein. The Will being in favour of defendants no.1 to 4, was supposed C. R. No. 7130 of 2010 3 to be in their possession. However, defendants no.1 to 3 have already pleaded in written statement that the Will had been lost. Consequently, there was no purpose of serving any notice requiring defendants no.1 to 3 to produce the original Will. Defendant no.11 could not lead any other evidence to prove loss of the Will when defendants no.1 to 3, who were supposed to be in custody of the Will, have themselves pleaded that the Will had been lost. For the reasons aforesaid, I find no merit in the instant revision petition. The impugned order of the trial court does not suffer from any illegality or jurisdictional error. The trial court has rightly permitted defendant no.11 to lead secondary evidence of the Will. The revision petition is accordingly dismissed in limine. October 29, 2010 ( L. N. MITTAL ) monika JUDGE