Full Judgment
Ashutosh Mohunta, J.
1. Defendant No. 1 Smt. Prem Lata has filed this petition Under Article 227 of the Constitution of India for setting aside the order dated 5.6.2003 passed by the Civil Judge (Junior Division), Jagadhri, whereby her application for seeking permission to lead secondary evidence in respect of the Will in question has been dismissed.
2. Succinctly, the facts giving rise to the present petition are that Smt. Prem Lata got inherited immovable property situated in village Jathlana, District Yamunanagar, as well as one house consisting of two rooms, one kitchen, one bathroom and one store, on the basis of the Will dated. 5.9.1990 executed by her mother Smt. Chaman Devi and mutation No. 4579 was sanctioned in her favour on the basis of the order dated 2.2.1995 passed by the Assistant Collector, 1st Grade, Jagadhri. Smt. Kamala Devi plaintiff made a challenge to the Will dated 5.9.1990 allegedly executed by her mother as well as the mutation sanctioned in favour of her sister Smt. Prem Lata on the basis of the order dated 2.2.1995 passed by the Assistant Collector, 1st Grade, Jagadhri. The suit was contested by Smt. Prem Lata defendant by filing a detailed written statement pleading therein that her mother Smt. Chaman Devi had executed the Will dated 5.9.1990 in her favour and the A.C., 1st Grade, Jagadhri, had sanctioned the mutation in her favour after ascertaining the genuineness of the Will in question and the original Will was tagged with the case file of the Revenue Authorities. The record from the office of A.C. 1st Grade was summoned, but the original Will could not be traced out. Even the inquiry made from the office of Kanoongo also proved to be a furtile exercise. Thereafter, Smt. Prem Lata defendant filed an application for permission to lead secondary evidence to prove the Will dated 5.9.1990 executed by her mother Smt. Chaman Devi in her favour. The said application has been dismissed by the Civil Judge (Junior Division), Jagadhri, vide order dated 5.6.2003. It is against this order that the present revision petition has been filed.
3. It has been contended by Mr. B.L.Gulati, learned Counsel for the petitioner, that existence of the Will in question stands proved from the order dated 2.2.1995 passed by the Assistant Collector 1st Grade Jagadhri (Annexure P-3). The counsel argued that mutation of inheritance in favour of defendant No. 1 Smt. Prem Lata was sanctioned after the genuineness of the Will was ascertained by the A.C. 1st Grade, thus, the counsel contends that loss of the Will from the office of the Assistant Collector stands proved. Taking this plea, Mr. Gulati argued that once loss of the Will is proved, then secondary evidence should be allowed. In support of his contention the counsel has placed reliance on Gurchetan Singh v. Karnail Kaur (1992-1) 101 P.L.R. 490; Smt. Ram Devi v. Jagdish Chander 1994-2 107 P.L.R. 175, Sahib Singh v. Ram Kumar (1993-1) 103 P.L.R. 206; as well as the order dated 18.1.2006 passed in C.R. No. 1885 of 2004-(2006-2)143 P.L.R. 393 (Gopal Singh v. Shish Pal and Ors. 4).
4. The contentions raised by the learned Counsel for the petitioner have vehemently been controverted by Mr. Anil Khetarpal, learned Counsel appearing on behalf of respondent No. 1, who contended that proceedings for imutation are not judicial proceedings in which title to or proprietary rights in immovable property are determined. He also contended that the Revenue Authorities have no jurisdiction to pronounce upon the proprietary rights qua the immovable property. In support of his contention, he has placed reliance on Mst. BUI (deceased) v. Gurdip Singh 5 1976 P.L.J. 345.
5. After hearing the learned Counsel for the parties at length, I am of the view that the order of the trial Court cannot be sustained. The petitioner in the present case has satisfied the conditions of Section 65 of the Indian Evidence Act, 1872, for leading secondary evidence. She has been able to show that the original Will dated 5.9.1990, was produced before the Assistant Collector 1st Grade, Jagadhri, who passed the order dated 2.2.1995 (Annexure P3) after ascertaining the genuineness of the Will in question, Moreover, the question whether the Will dated 5.9.1996 in respect of the suit property was executed by Smt. Chaman Devi deceased can be determined only if opportunity is given to the parties to prove the execution thereof. Once the existence, execution and loss of the document is proved, only then defendant No. 1 Smt. Prem Lata would be able to make out a case for admission of a document sought to be produced by way of secondary evidence. Without any evidence having been led on the question of existence, execution and loss of the document, it would not be fair and reasonable to conclude that no such document was ever executed. In view of this, I am of the considered opinion that the order 5.6.2003 passed by the Civil Judge (Junior Division), Jagadhri, suffers from patent illegality and irregularity.
6. Consequently, the present revision petition is allowed. Smt. Prem Lata petitioner is permitted to prove the existence, execution and loss of the Will dated 5.9.1990 in respect of the suit property by leading cogent evidence. Whatever be the evidentiary value of the secondary evidence led by her will be taken into consideration by the trial Court at the time of final arguments.
7. The stay order dated 25.9.2003 passed by this Court stands vacated. The parties through their counsel are directed to appear before the trial Court on April 20, 2006.