- (1.) This revision petition is directed against the order of the trial Court rejecting the application of Rabinder Singh (Defendant No. 4) praying for leading of secondary evidence to prove the will executed by his mother Smt. Sant Kaur.
(2.) A perusal of the impugned order show that on 1st January, 1971, a will was executed by Smt. Sant Kaur and registered on the following 5th. She died on 15th April, 1972. Dispute arose between her heirs. One of her sons Hardial Singh filed the suit. During the pendency thereof, the impugned order has been passed. The trial Curt believed the version of Rabinder Singh to the extent that the will executed by Smt. Sant Kaur was registered. As regards its loss, the trial Court relying on Santu v. Maiku and others, 1940 AIR(All) 175, raised a presumption that the will might have been destroyed by the deceased.
(3.) That apart, learned counsel for the respondent has drawn my attention to the application above said under Section 65 of the Indian Evidence Act filed by - Rabinder Singh, Para 4 thereof reads :- "That the defendant was in possession of the will which was given over to him by his mother, but after the death of the mother, it was misplaced by this defendant and it has not been traced so far................." The averments made in para 4 quota above have not all been substantiated by Rabinder Singh. On the contrary, it deserves mention that in his written statement he made no mentioned of the loss of the will, notwithstanding the fact that according to him the loss was to his knowledge.;