Ashok Bhan, J.
1. This is defendants' appeal. Ram Kumar plaintiff-respondent (hereinafter referred to as a plaintiff) filed the present suit for possession of agricultural land measuring 32 Kanals 4 Marias. One Harphool died leaving behind two widows Paton and Bujan, defendant No. 8. Smt. Paton and Smt. Bujan inherited the property of Harphool Singh in equal shares. On 16.3.1968, Sujan defendant No. 8 adopted Ram Kumar, plaintiff through a registered adoption deed. On 20 3.1968, Paton executed a registered Will in favour of the plaintiff which has been exhibited as Ex. P 11. Paton died on 21.5.1958. On 25.11.1969, mutation regarding the inheritence of Paton was sanctioned to the extent of half of the share in the name of the plaintiff and the other half in favour of Smt. Bujan. Plaintiff was only 12 years old at the time of death of Smt. Paton and Smt. Bujan was acting as his legal as well as natural guardian being the adoptive mother. The Will Ex. P- 1) was in possession of Smt. Bujan defendant No. 8. On 2.4.1980 and 31.7.1980, Smt. Bujan executed two separate sale deeds in favour of defendants Nos. 1 to 6 of land measuring 32 Kanals 4 Marias. Plaintiff filed the present suit for declaration to the effect that the sale deeds executed by Smt. Bujan on 2.4.1980 and 31.7.1980 were void and not binding on the plaintiff. Plaintiff also claimed possession of the suit property. Another claim put in was that mutation dated 25.11.1969 was wrongly sanctioned. Case of the plaintiff was that Smt. Bujan was not entitled to succeed to the estate of Smt. Paton as the Will had been executed in favour of the plaintiff and the inheritence regarding the estate of Paton should have been sanctioned in favour of the plaintiff alone
2. Defendants 1 to 6 in their written statement denied the allegations about the adoption of the plaintiff. It was denied that any Will had been executed by Smt. Paton in favour of the plaintiff. Suit was stated to be barred by principle of resjudicata and under Order 9 Rule 9 and Order 2 Rule 2 of the Code of Civil Procedure Smt. Bujan filed a separate written statement and admitted the elaim of the plaintiff. She died during the pendency of the suit. None was brought on record as her legal representative. From the pleadings of the parties, the following issues were framed:-
1. Whether Smt. Bujan and Smt. Paton were the owners in possession in equal shares of the entire land detailed in para No. 1 of the plaint OPP
2. Whether Smt. Bujan adopted the plaintiff as his son OPP
3. Whether Smt. Paton executed a valid will in favour of the plaintiff OPP
4. Whether the plaintiff was entitled to half share in the entire land, if so whether the two mutations sanctioned by the revenue authorities are wrong and if so to what effect OPP
5. Whether Smt. Bujan was not entitled to alienate the suit to defendants No, 1 to 6 if so to what effect OPP
6. Whether the sale deeds in respect of the suit land in favour of the defendants Nos. 1 to 6 were obtained as result of any undue influence or fraud upon defendant No. 8 OPD. 8.
7. Whether the suit is barred under the principles of resjudicata OPD.
8. Whether the suit is barred under order 9 or order 2 of the C. P. C. OPD.
9 Whether the plaintiff is stopped from filing the present suit by his own act and conduct OPD.
10. Whether the suit is not maintainable in the present form OPD.
11. Whether the plaintiff has no locus standi to file the present suit OPD
12. Whether the suit has not been properly valued for the purpose of court fee and jurisdiction, if so what should be correct valuation OPD.
13. Whether the suit is bad for non-joinder and mis joinder of necessary parties OPD.
14. Relief.
3. Trial Court under Issue No. 1 held that Bujan and Paton had 1/2 share each in the land in suit. Under issue No. 2, was held that plaintiff was adopted as a son by Smt. Bujan. Under issue No. 3, it was held that loss of original Will is not proved and even execution of the Will is also not proved. Under issue No. 4, it was held that the plaintiff was not heir to Smt. Paton. Under issue No. 5, it was held that as the plaintiff had no share in the estate of Paton, so Bujan could alienate the land in the suit. Under issue No. 6, it was held that the sale deeds were not obtained by fraud or undue influence. Issue No. 7 was decided against the defendants and hold that the suit was not barred by principle of resjudicata Under issue No. 8, it was held that the suit was not barred under Order 9, Rule 9 or under Order 2 Rule 2 C. P. C. Issues Nos. 9 to 12 pressed Under issue No. 13, it was held that the suit was not barred for non-joinder of necessary parties. As a result thereof, the suit was dismissed.
4. In appeal, vide order dated 26.11.1984, the appellate Court sent the case back to the trial Court to send a report on the point whether original Will had been lost and also to send a report about the execution of Will after taking secondary evidence. In the report dated 22.1.1985, trial court held that loss of original was not proved but from the secondary evidence, execution of the Will stands proved.
5. In appeal, first Appellate Court reversed the findings recorded by the trial court on issues Nos. 3. 4, 5 and 6 and the report dated 22.1.1985 were challenged. The findings of the trial Court on remaining issues were not challenged Appellate Court reversed the findings of the trial Court on issues Nos. 3, 4, 5 and 6. Regarding the report dated v2 1.1985, it was held that the Will dated 20.3.1968 by Paton was duly executed by her and further that the execution of the Will also stood proved. The appeal was accepted, judgment of the trial Court was set aside and the suit filed by the plaintiff-respondent was decreed. Aggrieved against the judgment and decree of the First Appellate Court, the defendant has filed the present appeal. I have heard the learned counsel for the parties at length. So far as the execution of the Will P-11 is concerned that stand proved from the testimony of two witnesses namely Petition Writer PW 1 Suraj Bhan and PW2 Pirthi who were examined after plaintiff was allowed to lead secondary evidence in appeal. Pirthi PW 2 deposed that both the attesting witnesses of the Will have expired. Bujan also expired PW 1 Suraj Bhan Petition Writer has proved the execution of the Will Smt. Paton had executed the Will and got it registered during her life time. This Will was produced before the Mutation Officer and two mutations were sanctioned, copies of which are Ex. P-3 and P-17. Smt. Bujan acting as guardian of plaintiff Ram Kumar filed a plaint (copy Ex. P-2) on 19.12.1970 wherein she had admitted the execution of the Will by Smt. Faton in favour of the plaintiff. Ex P-3 is another copy of the plaint dated 25.7.1972. This suit was brought by Bujan to restrain some other defendants from taking over the possession of the land in this plaint also, it wall admitted by Smt. Bujan that Raj Kumar plaintiff had become owner of the share of the property of Smt. Paton because of the Will which had been executed in his favour by Smt. Paton. I see no reason to discard the testimony of petition writer PW 1 who has duly proved the execution of the Will Ex P-11 is a copy of duly registered Will and Bujan had also made admissions in Ex. P-2 and P-3 that Smt. Paton had executed a Will in favour of the plaintiff On the basis of that Will, mutations had also been sanctioned. This proved the due execution of the Will. The next point to be determined is as to whether the loss of original Will has been proved or not and further as to whether the plaintiff was entitled to lead secondary evidence to prove the execution of Will. Smt. Bujan filed a written statement admitting the claim of the plaintiff. She stepped into the witness box and accepted the fact that the Will was in her possession but the same has been lost. But she was not examined on oath. Since she was not examined on oath, trial court concluded that the defendants did not get an opportunity to cross-examine her and therefore, it was held that the loss of the original Will was not proved. As against this, the appellate court found that in view of the admission made by Bujan in Ex. P-2 and P-3, the two plaints, which were filed by her as the guardian of plaintiff Ram Kumar amounted to admission and Smt, Bujan being predecessor-in-interest of defendants 1 to 6, the admission made by her would bind defendant 1 to 6, as well. I am in agreement with the view taken by appellate Court Section 65(a) of the Indian Evidence Act, 1872 provides that secondary evidence may be given of the existance condition or contents of a document when the original is shown or appears to be in possession, or power of the person against whom the document is sought to be proved. In this case, Will We. D-11 was sought to be proved against Smt, Bujan who was the predecessor-in-interest of defendants Nos. 1 to 6. Bujan was in possession of the Will, copy whereof marked as Ex. P-11 as plaintiff Ram Kumar was only 12 years at age at the time of execution of the Will. Under the circumstances, plaintiff was within his right to prove the Will by leading secondary evidence as the Will was to be proved against a person in whose possession the Will was, that person failed to produce the Will and under the circumstances, the plaintiff became entitled to prove the same by leading secondary evidence. It can also be examined from another angle. Section 65(b) of the Evidence Act provides that when the existence condition and contents of the original have been proved to be admitted in writing by the person against whom it is proved or by his representative-in-interest than secondary evidence of that document can be given. Smt. Bujan who was the predecessor in interest of defendants No. 1 to 6 has also admitted in writing execution of the Will by filing plaints Ex. P-2 and P-3 wherein she has stated that Smt, Paton had executed a Will in favour of the plaintiff. This admission shall bind defendants 1 to 6 as well being successor-in-interest of Smt. Bujan. Under the circumstances, I find that the Appellate Court was perfectly right in holding that the plaintiff has successfully proved the loss of the original Will and was entitled to lead secondary evidence to prove the contents of the same. The findings recorded by the 1st Appellate Court on issue No. 3 are thus upheld.
6. In view of the finding recorded on issue No. 3 to the effect that Smt Paton had executed a valid Will in favour of the plaintiff, the plaintiff becomes the owner of the property left by Smt Paton. It is further held that Smt. Bujan was not entitled to alienate the suit land to the defendants 1 to 6. Findings recorded by First Appellate Court on issue Nos. 4 and 5 in favour of the plaintiff are affirmed as such. Infact, the findings on issues Nos. 4 and 5 are consequent and depend upon the findings on issue No. 3, and much arguments were not addressed on these two issues in the First Appellate Court as well as before me.
7. Finding on any other issue was not challenged before me by counsel for either of the parties.
8. In view of the findings recorded above, I find no merit in this appeal and the same is dismissed with no order as to costs.