(Prayer: Civil Revision Petition filed under Article 227 of the Constitution of India, to set aside the order dated 14.03.2025 in IA No. 41 of 2024 in OS No. 617 of 2022 on the file of the Sub Court, Villupuram.)

This Civil Revision Petition has been filed under Article 227 of the Constitution of India challenging the fair and decreetal order dated 14.03.2025 in IA No. 41 of 2024 in OS No. 617 of 2022 on the file of the Sub Court, Villupuram, wherein the application filed by the 1st respondent/plaintiff under Section 65 (a) of the Indian Evidence Act for marking the secondary evidence viz., Will, came to be allowed by the Court below.

2. Heard the learned counsel for the petitioners and learned counsel appearing on behalf of respondents 1 and 2 and carefully perused the materials available on record and this Court also carefully went through the order passed by the Court below.

3. The 1st respondent is the plaintiff who filed the suit in O.S.No.617 of 2022 seeking for the relief of declaration to declare the title over the ‘B’ Schedule property, delivery of possession of the ‘B’ Schedule property and to declare the Sale Deed dated 24.01.2022 executed by the 1st defendant in favour of the 8th defendant as null and void or in the alternative, to pass a preliminary decree by allotting 1/3 share in the Schedule ‘A’ property in favour of the plaintiff and for mesne profits.

4. The suit reached the stage of trial and at that stage, IA No.41 of 2024 came to be filed by the plaintiff seeking permission to mark secondary evidence of the Will on the ground that the original Will was handed over to the 1st defendant and what is available with the plaintiff and the 4th defendant is only the photocopy and a notice was issued to defendants 1 to 3 to produce the original Will and reply was given to the effect that there is no such Will available and hence, the plaintiff must be permitted to mark the secondary evidence.

5. The Court below, after considering the rival contentions, came to the conclusion that the minimum requirements for marking secondary evidence had been satisfied and the evidentiary value of the Will will be tested based on the objections raised and that the burden of proof is only upon the plaintiff to establish that such a Will had been executed. Aggrieved by the said order, the present Civil Revision Petition has been filed before this Court.

6. The main ground that was raised on the side of the petitioners is that the Will that is relied upon the plaintiff is a forged document and therefore, there is no question of the 1st defendant having possession of the original Will. Apart from that, the plaintiff did not produce any other material to indicate that the 1st defendant was in possession of the original Will and the plaintiff also did not explain under what circumstances the photocopy was prepared and who was in possession of the original document when the photocopy was prepared. To substantiate his submission, the learned counsel relied upon the judgments of the Apex Court in Ashok Dulichand vs. Madahavlal Dube and Another reported in 1975 4 SCC 664 and J.Yashoda v. K.Shobha Rani reported in CDJ 2007 SC 457.

7. Per contra, the learned counsel for the 1st respondent/plaintiff submitted that the requirements under Section 65(a) of the Evidence Act has been satisfied and sufficient averments in this regard were available even in the plaint itself. Therefore, the order passed by the Court below does not require the interference of this Court.

8. It will be relevant to extract the relevant portions of the plaint pertaining to the dispute in question:



9. The plaintiff has taken a stand that the husband of the 1st defendant viz., Palanivel had executed a Will dated 26.11.2017, bequeathing the eastern half share in Items 1 and 2 to the plaintiff and western half share in Items 1 and 2 to the 4th defendant, based on the shares that was allotted under the Partition Deed dated 23.11.2017. It is further averred that the 1st defendant’s husband has delivered the original Will with the 1st defendant and the photocopy was delivered to the 4th defendant and the plaintiff. This photocopy was the one which was filed along with the plaint. This will came into operation after the demise of Palanivel on 30.08.2021.

10. In the light of the above stand taken in the plaint, the plaintiff issued a notice calling upon the 1st defendant to produce the original Will. The 1st defendant gave a reply stating that there was no such Will executed by her husband and therefore, there is no question of producing the original Will.

11. A careful reading of Section 65(a) of the Evidence Act shows that, where the original document is shown or appears to be in the possession or power of the person against whom the document is sought to be proved and a notice is issued to that person to produce the document under Section 66 of the Act and the person does not produce it, secondary evidence can be given regarding the existence, condition or contents of the document.

12. In the judgment that was relied upon by the learned counsel for the petitioner, the Apex Court held that a person who wants to bring in secondary evidence must bring some material to indicate with whom the original document was in the possession of and the circumstances under which the photocopy was prepared from the original.

13. As stated supra, the averments made in the plaint make it clear that the 1st defendant’s husband had executed a Will on 26.11.2017 and under this Will, the eastern half share in Items 1 and 2 of Schedule ‘A’ was said to have been bequeathed in favour of the plaintiff. The further averment has been made to the effect that the 1st defendant husband handed over the original Will to the 1st defendant and the copy was handed over to the plaintiff and the 4th defendant. A photocopy of the Will has also been filed along with the plaint. These averments satisfy the minimum requirements for bringing in the secondary evidence. The reasons for the plaintiff to take a stand that the original Will was with the 1st defendant and circumstances under which the photocopy has been taken, have been explained in the plaint.

14. The Court below has taken into consideration these aspects and has passed an order allowing the letting in of secondary evidence. The Court has also made it clear that ultimately, the burden of proof is upon the plaintiff to prove the Will in accordance with law and therefore, by merely brining in the secondary evidence, that does not mean that the plaintiff has proved the Will. The order passed by the Court below does not suffer from any infirmity warranting the interference by this Court in exercise of its jurisdiction under Article 227 of the Constitution of India.

15. In the result, the order dated 14.03.2025 passed in IA No. 41 of 2024 in OS No. 617 of 2022 on the file of the Sub Court, Villupuram, is confirmed and the Civil Revision Petition stands dismissed. This Court has not rendered any finding on the genuineness or the otherwise of the Will and the same has to be independently considered by the Court below on its own merits and in accordance with law. No Costs. Consequently, the connected miscellaneous is closed.