Smt. Roshani Devi vs Smt. Tripta Devi, Sh. Gurmail Singh and Smt. Kanta Devi Kanta Devi Vs Smt. Tripta Devi and Sh. Gurmail Singh

Dev Darshan Sud, J.

CMPMO. No. 78 of 2012.

This petition has been preferred by the petitioner herein challenging the order passed by the learned Civil Judge (Senior Division), Una, rejecting the application preferred by the petitioner herein u/s 65 of the Evidence Act for permission to prove certified copy of the registered Will No. 43 dated 4.3.2003. It is undisputed before me that the suit was instituted by the respondents. Three Wills have been set up. One by Smt. Tripta Devi, second by Roshni Devi and third by Kanta Devi. These three Wills are subject matter of adjudication before the learned trial Court in the suit. The application was resisted by the respondents on the ground that no foundation has been made to lead secondary evidence u/s 65 of the Evidence Act. The learned Judge dismissed the application on the ground that the fact as to whether the original Will has been lost/destroyed has not been proved. In these circumstances, there is no jurisdiction vested in the Court to exercise powers u/s 65 of the Evidence Act. Adverting to CMPMO. No. 122 of 2012, on the same set of facts, the petitioner herein also set up a Will. Prayer for permission to lead secondary evidence to prove that Will was made, which was rejected.

The settled proposition of law is that the foundation for leading secondary evidence has to be pleaded in the application as the allegation proved by the evidence. For this purpose, the parties have to be given a chance to lead evidence, if they so desire. The application cannot be dismissed at the threshold without giving a chance to the parties to prove the case within the exception of Section 65 of the Evidence Act. In these circumstances, the orders passed in both the petitions cannot be sustained. These petitions are accordingly allowed. It is directed that the applications be restored to its original number on the file of the learned trial Court below. The learned Court below shall grant an opportunity to the petitioners to prove their pleading to the effect that the Wills have been lost, destroyed or misplaced etc. and then proceed further in the matter. Petitions are allowed.