- (1.) Present petition is challenge to the order dated 30.10.2015, passed by learned Civil Judge (Senior Division), Nuh, whereby application filed by defendants/respondents for seeking permission to lead secondary evidence in respect of Will dated 15.1.1984 was allowed and they were permitted to lead secondary evidence to prove the alleged Will.
(2.) Relevant facts of the case that defendants/applicants had filed an application before the Court below that Dayal Das Khurana had executed a Will dated 15.1.1984 and the same was scribed and attested by Manohar Lal and Ramzani, who had died. On 19.7.1991, the said Will was produced before the Naib Tehsildar (Sales), who returned the same with endorsement "original seen and returned" and on the basis of said Will, a conveyance deed was issued in the name of beneficiaries in respect of the land situated at village Biwan and mutations No. 2574 dated 22.5.1991 & No. 2186 dated 22.5.1991 of inheritance of land situated in Nuh and Ferojpur Namak were also sanctioned in favour of the beneficiaries on the basis of said Will. The said mutations were challenged by the plaintiffs. An application was moved before the Tehsildar (Sales) on 14.6.1991 and duplicate conveyance deed was issued. As per defendants, original Will was not traceable despite best efforts and they were in possession of photocopy thereof and the same be allowed to be proved by way of secondary evidence.
(3.) Plaintiffs/Petitioners contested the application that Will dated 15.1.1984 is a bogus document as Dayal Das Khurana never executed any Will. The said Will does not bear his signatures. No such Will was seen by the father of the plaintiffs during his life time, who died on 26.3.1989. Plaintiffs also took the plea that if there was any Will, the same should have been registered even after the death of Dayal Dass. Even the name of scribe and his address have not been mentioned and the alleged Will is just a forged document. The Will was not produced for seven years. Had it been the case of genuine Will, the beneficiaries must have obtained probate. More so, sale certificate was required to be issued in the name of Dayal Dass in the year 1971 and Naib Tehsildar (Sales) has no power to issue any duplicate conveyance deed and the application for leading secondary evidence is without any merit. Plaintiffs also took the plea that applicants/defendants have not been able to make out a case as to when the original Will was lost and as to why any complaint was not lodged with the police or any authority. More so, mere photocopy is not sufficient because the expert is not in a position to compare the signatures from the photocopy in a case where the original Will is not produced. So the application be dismissed. On these facts, the Court below accepted the application.;