Sanchayita Lahkar

The High Court of Himachal Pradesh, Single Bench of Justice Ajay Mohan Goel set aside the trial court’s order allowing secondary evidence of an alleged 2009 Will in a property dispute between family members. The Court held that permission to produce secondary evidence can be granted only on strict proof that the original document is lost, destroyed, or withheld by the opposing party, and not merely on unverified claims of loss. It observed that the trial court had failed to apply the requirements of Section 65 of the Indian Evidence Act before granting such leave. Consequently, the impugned order was quashed, and the parties were directed to appear before the trial court for continuation of proceedings.

The petitioner challenged an order dated 04.10.2017 by the Civil Judge (Senior Division), Ghumarwin, which had allowed an application under Section 65 of the Indian Evidence Act permitting the plaintiff, Amar Nath (since deceased, represented through his legal representatives), to lead secondary evidence of an alleged Will dated 12.12.2009.

Also Read: Supreme Court: Magistrate Empowered to Order FIR Under S.156(3) CrPC When Complaint Reveals Cognizable Offence; Restores Investigation in Forged E-Stamp Case

The plaintiff had filed a civil suit seeking a declaration that he and defendant No.1 (present petitioner) were joint owners in equal shares over the property of late Smt. Har Dei on the basis of the said Will. He asserted that after their mother’s death, the original Will was submitted to the Sub-Registrar for registration, but was allegedly misplaced due to the influence of defendant No.1. A police report was said to have been lodged. He claimed to have issued notice to defendant No.1 to produce the original Will, and upon its non-production, sought permission to adduce secondary evidence.

Defendant No.1 denied the execution of any Will dated 12.12.2009 and asserted that Smt. Har Dei had executed an earlier registered Will dated 12.02.1985 in his favour. He contended that the later Will was forged.

The trial court allowed the application stating that the veracity of the claims regarding loss or misplacement of the Will could only be determined after evidence was led. Feeling aggrieved, the petitioner approached the High Court seeking to have the order quashed.

The Court recorded that the trial court had failed to appreciate that permission to lead secondary evidence “is not a matter of discretion vested upon the Court, but such an opportunity can only be granted if the parameters, as have been laid down in Section 65 of the Evidence Act, are met.”

The Court stated that the plaintiff’s case was not based on the assertion that the Will was in the possession or power of the defendant. Instead, the allegation was that the Will had been submitted by the plaintiff himself to the Sub-Registrar and was then allegedly misplaced. The Court observed that these allegations “by no stretch of imagination, can be deemed to be a presumption of the fact that the Will was in possession of the defendant No.1.”

Further, the Court noted that secondary evidence under Section 65(b) could not be allowed, because “the existence of the Will has not at all been admitted by the defendant No.1 and in fact said defendant has denied its existence in the written statement.”

The Court addressed the respondent’s contention regarding other defendants’ alleged admissions. It recorded that “as it was only the present petitioner, who was made the contesting defendant… admission of the existence of the Will by other defendants has got no relevance.”

Regarding Section 65(c), the Court observed that the plaintiff’s allegations of loss were unsubstantiated. It stated the inquiry referred to by the trial court: “the inquiry report revealed that no original document was submitted by the plaintiff for registration and what he had submitted was only a photocopy… and the complaint was also dismissed.”

The Court stated that these aspects “were overlooked by the learned Trial Court while allowing the application.” It commented that the impugned order was passed “without any due application of judicial mind.”

Also Read: Himachal Pradesh High Court Quashes HIMUDA Order Withholding Land Payment; Shortfall In Land Area Not A Defect In Title

The Court also addressed an internal inconsistency in the trial court’s reasoning, noting that its findings were “self contradictory,” particularly where it suggested that granting an opportunity to adduce secondary evidence would not dispense with legal requirements, yet held that the Section 65 conditions were met.

The Court held that “the impugned order per se is not sustainable in the eyes of law. The present petition is allowed. Order dated 04.10.2017, passed by learned Civil Judge (Senior Division), Court No.1, Ghumarwin… is quashed and set aside. Parties through counsel are directed to appear before the learned Trial Court on 17.11.2025. Pending miscellaneous applications, if any, also stand disposed of accordingly.”

Advocates Representing The Parties

For the Petitioner: Mr. Bhupender Gupta, Senior Advocate, with Mr. Janesh Gupta, Advocate.

For the Respondents: Mr. Ashok Sud, Senior Advocate, with Mr. Rajat, Advocate, for respondents No.1(a) to 1(c).

Case Title: Shri Mansha Ram v. Shri Amar Nath (since deceased) through LRs.
Neutral Citation: 2025: HHC:36120
Case Number: CMPMO No. 475 of 2017
Bench: Justice Ajay Mohan Goel