AI Structured Summary
Not yet generated for this judgment
Judgment
Hon''ble Mrs. Justice B.V. Nagarathna
The plaintiffs have filed this writ petition assailing the order dated 14.9.2011, passed on I.A. No. 15 in O.S. No. 4958/2000, on the fife of XLIII Addl. City Civil & Sessions Judge, Bangalore. The said suit was filed by the plaintiffs seeking partition end separate possession of their share in the suit schedule property on the basis of a registered Will dated 22.6.1996 registered on 24.6.1996.
In order to prove their case, the plaintiffs relied upon a xerox copy of the registered Will by contending that the original Will was with the defendants 1 to 4. Therefore, an application (I.A. No. 15) was filed u/s 65-A of the Indian Evidence Act Objections were filed to the said applications.
The Trial Court considering the Question as to whether a xerox copy of the Will is admissible in evidence and whether it could be treated as secondary document held that the xerox copy of the will was not admissible in evidence and could not he treated as secondary evidence.
I have heard the Learned Counsel for the petitioners and perused the material on record.
It is noted that the application Iliad by the petitioners/plaintiff before the Trial Court was one u/s 65-A of the Evidence Act. However, the Trial Court has considered the question as to whether a xerox copy of the Writ could be treated as secondary document I find that the petitioners had not filed any application u/s 63 read with Section 65 of the Evidence Act nor there has been any application of the mind regarding 63 of the Indian Succession Act with regard to proof of the Will as secondary evidence. The said application filed u/s 65-A of the Evidence Act has been rightly dismissed. Therefore, no Interference is called for in this writ petition for the simple reason that the provision invoked by the petitioners herein and the consideration with regard to proof of the Will as a secondary evidence has not been taken note of by the Trial Court. However, liberty is reserved to the petitioners to file an appropriate application with regard to proof of the will as a secondary evidence, if so advised, having regard to Section 63 read with Section 65 of the Evidence Act read with Section 63 of Indian Succession Act. If such en application is filed, the Trial Court shall consider the same in accordance with law.
With the above liberty, the writ petition is dismissed.