Tara Rani vs Of on 30 March, 2026

April 1, 2026

Himachal Pradesh High Court

Tara Rani vs Of on 30 March, 2026

                                       ( 2026:HHC:9397 )




    IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA

                                            CMPMO No. 456 of 2025
                                            Reserved on 12.03.2026




                                                                                   .
                                            Date of Decision: 30.03.2026





    Tara Rani                                                                 ...Petitioner.





                                        Versus




                                                       of
    Bishani Devi (deceased)
    through LRs & others                                              ...Respondents.

    Coram                    rt
    Hon'ble Mr. Justice Romesh Verma, Judge.
    Whether approved for reporting?1        Yes

    For the petitioner:                 Mr. Piyush Dhanotia, Advocate.

    For the respondents:Mr. N.K.Thakur, Senior Advocate with


                        Mr. Divya Raj Singh, Advocate.
    __________________________________________________
    Romesh Verma, Judge (oral)

The present petition arises out of the impugned

order dated 11.06.2025, passed by learned Senior Civil

SPONSORED

Judge, Amb, District Una, H.P. in CMA No. 432 of 2025,

titled Tara Rani vs. Bishani Devi & others, whereby

application filed under Section 65 of Indian Evidence Act,

1872 for granting permission to prove the unregistered /oral

will dated 12.09.1999 by way of leading the secondary

evidence has been allowed.

Whether reporters of Local Papers may be allowed to see the judgment?

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2. The brief facts of the case are that the present

petitioner filed a suit for declaration to the effect that the

plaintiff is joint owner in possession with defendant and the

proforma defendants qua the share to the extent of 1/6th

share in the estate of deceased Rikhi Ram, S/O Babu Ram over

the suit land. It was averred that the parties are class-I heirs of

of
deceased Rikhi Ram, who died on 16.09.1999. After the death of

deceased Rikhi Ram, the plaintiff is owner in possession
rt
alongwith defendant and proforma defendants in equal shares.

3. That the deceased Rikhi Ram had no intention to

execute any Will in favour of defendant alone. In the month of

October, 2012 when the plaintiff came to her parental house,

then defendant No.1 started proclaiming that she is the sole

owner of the estate of deceased Rikhi Ram on the basis of some

oral Will and she had also got sanctioned the mutation in

respect of the suit land on the basis of the said Will. The plaintiff

thereafter became suspicious and inquired the matter from Halqa

Patwari and collected the revenue record and was surprised to

know that defendant No.1 in connivance with some mischievous

persons, got prepared oral will of deceased Rikhi Ram in her

favour and got sanctioned mutation No. 424 of Village Shiv

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Bari, mutation No. 219 of Village Chatehar, mutation No. 282 of

Mohal Ram Nagar Gagret respectively.

4. It was averred that the deceased Rikhi Ram was not

having fit state of mind to understand the things and he was not

in position to understand the contents of any documents. The

defendant No.1 in connivance with mischievous persons got

of
prepared the oral will just to grab the estate of deceased Rikhi

Ram, whereas the deceased Rikhi Ram never disclosed any
rt
intention to execute the alleged Will during his life time in favour

of the defendant No.1 alone. Therefore, suit was filed for

declaration to the effect that plaintiff is owner in possession qua

her 1/6th share in the property of deceased Rikhi Ram, S/O

Babu Ram in the ancestral property i.e. land measuring 1-64-26

Hects + 1129-00 berg decimeter over the suit land. Plaintiff has

equal right in the property of deceased Rikhi Ram being the

class one heir. It is averred that the unregistered will dated

12.09.1999 is the result of fraud, which is not binding upon the

rights of the plaintiff.

5. The defendants contested the suit by filing

written statement, wherein they took preliminary objections

with regard to maintainability, cause of action, suppression of

facts and locus standi etc. On merits, it was stated that the

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plaintiff and proforma defendants have no concern with the suit

land. It was averred that deceased Rikhi Ram had executed an

unregistered/oral Will during his lifetime in favour of defendant

No.1, out of his free will, in sound disposing state of mind in the

presence of witnesses and respectable persons of the locality on

account of services rendered by defendant No.1 in his old age.

of
The plaintiff was also called by the Revenue Officer, Amb and

asked the plaintiff regarding the genuineness of the Will and she
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accepted the same as a genuine document in the presence of

scribe, witnesses and other persons of the locality. The

defendants prayed for dismissal of the suit.

6. Plaintiff filed replication to the written statement filed

by the defendants and reiterated the averments as made in the

plaint.

7. It reveals from the case file that suit was filed on

10.02.2014 and the written statement was filed on 24.5.2014.

During the pendency of the suit on 01.04.2016, the plaintiff filed

an application under Order 11 Rule 14 of CPC for production of

original Will, if any, alleged to have been executed in favour of

defendant No.1 i.e. Bishani Devi, W/O Rikhi Ram. In the said

application, it was prayed by the plaintiff that the defendants may

be directed to produce original Will, if any, before the Court so

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that the plaintiff can give her evidence as per the said alleged

Will which is in possession of the defendants.

8. Reply to the said application was filed by defendant

No.1 in which it was submitted that the defendant No.1 is a

simpleton lady and she produced the original Will before the

Revenue Authority, at the time of sanctioning the mutation,

of
thereafter, defendant No.1 after filing of the present application

inquired the matter from the Revenue Authority but the same
rt
could not be traced out despite various efforts made by the

defendant No.1 and also by the Revenue Authority. Defendant

No.1 is unable to produce original copy of Will before this

Court. It was submitted that when the original Will shall be traced

out, the same will be produced before this Court.

9. Finally, on 09.01.2018, the said application was

disposed off by holding that respondent/ defendant has

expressed her inability to produce the original Will in her reply.

Under Order 11 of CPC no penalizing order can be passed

against the defendant/respondent for non production as is

possible in the case of non-compliance with order for discovery

under Order 11 Rule 21 CPC. However, under Section 164 of the

Indian Evidence Act when a party refuses to produce a

document which he had notice to produce, he cannot afterwards

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use the document as evidence without the consent of the other

party or the order of the Court.

10. Thereafter, the present defendant/respondent filed

an application under Section 65 of Indian Evidence Act for

granting permission to prove the unregistered/oral Will dated

12.09.1999 by leading the secondary evidence. The application

of
was filed in the year, 2024. It was averred in the application that

during the pendency of the suit, the plaintiff had filed an
rt
application under Order 11 Rule 14 CPC for production of the

original Will. In the reply, defendant No.1 had taken a stand that

she produced the Will before Revenue Authorities at the time of

sanctioning of the mutation and after the filing of the said

application the defendant No.1 inquired about the matter and

tried to trace out the copy of the Will before Revenue Authorities,

but, the Will could not be traced out, hence, the defendant No.1

was unable to produce the original copy of the Will before the

Court. It is stated in the reply to the application that number of

applications were filed by the defendant No.1 before the

Revenue Agency to return the Will and even one application

under the RTI Act was also moved to inquire about the

whereabouts of the Will, but unfortunately even after hard efforts

of defendant No.1, the Original Will could not be traced out, but

photocopy of the original Will which is prepared by the

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mechanical process from the original is already on record. It was

further averred that defendant No.1 being innocent and

simpleton lady having no knowledge of law had produced the

original Will before revenue agency at the time of attestation and

sanction of the mutation, but the same was misplaced, hence the

original Will could not be traced out and produced before the

of
Court even by applying due diligence and utmost care.

Therefore, it was prayed that she may be allowed to prove the
rt
photocopy of original Will dated 12.09.1999 by leading the

secondary evidence of the original Will as the photocopy of

original Will is already on record.

11. The petitioner/plaintiff filed reply to the said

application and all the averments as made in the application

were refuted in toto. It was averred in the reply that it is wrong

to say that defendant No.1 had produced the Will before the

Court alongwith the written statement. It was specifically

submitted by the petitioner/plaintiff in the plaint that the

respondent/defendant has placed the forged and fabricated

document in connivance with each other and that is why they

have intentionally not produced the copy of the original Will

before the Court. There is no complaint/ Rapat or FIR having

been filed by defendant No.1 before the Competent Authority on

account of misplacement of the original copy of the Will.

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Therefore, it was prayed that the application filed under Section

65 of the Indian Evidence Act is neither maintainable nor it has

merit. Therefore, same deserves to be dismissed.

12. The learned trial Court vide its order dated

11.06.2025 allowed the application filed by defendant No.1 and

the prayer of the defendant/ respondent for seeking permission

of
to lead the secondary evidence to prove the unregistered Will

dated 12.09.1999 has been allowed.

13.
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Feeling dissatisfied, the plaintiff/petitioner has

approached this Court.

14. I have heard Sh. Piyush Dhanotia, Advocate for the

petitioner and Sh. N.K.Thakur, Senior Advocate assisted by Sh.

Karan Veer Singh Thakur, Advocate for the respondents.

15. It is contended by Mr. Piyush Dhanotia, Advocate

that the impugned order is not sustainable in the eyes of law as

the learned Trial Court has erred by allowing the application

under Section 65 of the Indian Evidence Act, whereby no case is

made out to allow the said application, especially, in view of the

fact that the parameters as laid down under the Act have neither

been made out nor any case has been carved out to allow the

application for secondary evidence. He has submitted that the

learned trial Court has not assigned cogent and plausible

reasons to allow the application and in a routine manner, the

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application has been allowed in order to prejudice the rights of

the parties.

16. Mr. N.K. Thakur, learned Senior Counsel, duly

assisted by Mr. Karan Veer Singh Thakur, Advocate has

supported the impugned order and submitted that the order, as

passed by the learned trial Court, is legal, valid and sustainable

of
and no interference of any kind is required to the same. He

further submitted that alongwith the written statement photocopy
rt
of the Will has already been appended . Therefore, there is no

concealment of any kind on the part of the

respondents/defendants and the learned trial Court has rightly

allowed the application to lead secondary evidence and to prove

the unregistered Will.

17. In the present case, the precise controversy to be

determined by this Court is as to whether an application filed by

the defendants/ respondents to prove the unregistered Will by

way of secondary evidence is permissible or not.

18. The provisions of Section 65 of the Indian Evidence

Act reads as follows:

“65. Secondary evidence may be given of the
existence, condition, or contents of a document in
the following cases–

(a) When the original is shown or appears to be in
the possession or power– of the person against
whom the document is sought to be proved, or of

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any person out of reach of, or not subject to, the
process of the Court, or of any person legally
bound to produce it, and when, after the notice
mentioned in section 66, such person does not

.

produce it;

(b) when the existence, condition or 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;

of
cannot, for any other reason not arising from his
own default or neglect, produce it in reasonable
time;

(d) when the original is of such a nature as not to
be easily movable;

(e) when the original is a public document within
the meaning of section 74;

(f) when the original is a document of which a
certified copy is permitted by this Act, or by any

other law in force in India to be given in evidence;

(g) when the original consists of numerous
accounts or other documents which cannot

conveniently be examined in Court and the fact to
be proved is the general result of the whole

collection.

In cases (a), (c) and (d), any secondary evidence
of the contents of the document is admissible.

In case (b), the written admission is admissible.

In case (e) or (f), a certified copy of the document,
but no other kind of secondary evidence, is
admissible.

In case (g), evidence may be given as to the
general result of the documents by any person
who has examined them, and who is skilled in the
examination of such documents.

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19. Perusal of Section 65-A of the Act would show that it

deals with the situation, where secondary evidence be given of

the existence, condition or content of a document (a) 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.

20. This provision deals with the condition which is not

of
the case in the instant hand. Then, secondly it states of any

person out of reach of or not subject to the process of the Court
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or of any person legally bound to produce it and when after the

notice mentioned in Section 66, such person does not produce it.

21. It is contended by learned Counsel for the petitioner

that in terms of Section 65-A of the Indian Evidence Act the first

two conditions are not applicable in the present case and, in

case, it is presumed that the document has to be produced by

any person legally bound to produce it, then it was incumbent

upon defendant No.1 to have summoned the Revenue Officer in

the witness box by issuing necessary notice under the Act. He

has urged that the defendant/ respondent has not followed the

procedure as neither the Revenue Officer has been summoned

in the witness box nor any notice has been issued for doing the

same.

22. Mr. Piyush Dhanotia, Advocate, has further

submitted that in case defendant No.1 states that her case is

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covered under Section 65-C of Indian Evidence Act, in that event

the defendants/ respondents are required to establish that the

original has been destroyed or lost or when the party offering

evidence of its contents cannot, for any other reasons not

arising from his own default or neglect, produce it in reasonable

time. The defendants/respondents have not been able to prove

of
as to whether any such original document exists or not. Further,

has submitted that it has also not been substantiated that the
rt
said original document has been destroyed or lost. Further, that

the said document was destroyed or lost not arising for his own

default or neglect. Therefore, as per Mr. Piyush Dhanotia, the

provisions of Section 65-C also does not help or cover the case

of the defendant/respondent. He has contended that in order to

prove her case the first requirement is to prove that the original

document is existed, then the second requirement is that the

said document has been destroyed or lost and thirdly that the

said document was lost or destroyed not arising from her own

default or neglect. He also submitted that none of

conditions/parameters as laid down under the Act has been

fulfilled despite that fact the learned trial Court has allowed the

application in a mechanical manner.

23. The contentions as raised by learned counsel for the

petitioner have been refuted by learned counsel for the

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respondents. He has submitted that his case is covered by the

provisions of Section 65-C of the Act since the original copy of

the will was given to the Revenue Authorities for attestation of

mutation and, thereafter, it is not traceable and is missing. He

has further submitted that since various numerous steps were

taken in this regard by filing CDI forms to obtain the original copy

of
of the same and by applying under the Right to Information Act,

he submits that therefore, his client has made out a case for
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invoking the provisions of Section 65-C for proving the

unregistered Will by way of secondary evidence.

24. The Hon’ble Apex Court in Civil Appeal No. 1889 of

2020, titled Jagmail Singh and another vs. Karamjit Singh &

others, decided on 13.05.2020 has held that it is settled position

of law that for secondary evidence to be admitted foundational

evidence has to be given being a reason as to why the original

evidence has not been furnished. It has been laid down by the

Hon’ble Apex Court that it is trite that under the Indian Evidence

Act, 1872, facts have to be established by primary evidence and

secondary evidence is only an exception to the rule, for which

foundational facts have to be established to account for the

existence of the primary evidence.

25. The Apex Court reiterated that where the original

documents are not produced without a plausible reason and

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factual foundation for laying secondary evidence not established,

it is not permissible for the Court to allow a party to adduce the

secondary evidence.

26. Before accepting the averments as made by

defendants/ respondents with regard to the loss of documents

sought to be relied upon. It is incumbent upon the

of
defendants/respondents to establish on record that the said

document was in existence and the same has been
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lost/misplaced. Mere assertion made in the application with

regard to the loss/misplacement of the document cannot be

sufficient. Rather in that regard, some cogent and convincing

evidence is required to be led on record. Apart from above,

person seeking to lead secondary evidence is also required to

prove that the document sought to be relied upon was in

existence but the same was misplaced/ lost.

27. In the case at hand, when the plaintiff/petitioner

denied the claim of the defendant/respondent that the document

sought to be proved by way of secondary evidence was

lost/misplaced. Learned Court below ought to have framed

issues so that parties could have led evidence and establish their

claim. More so, there is no averment in the application that the

photocopy of the alleged Will as has been placed on record with

the written statement, there is no averments with regard to the

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fact that the said photocopy of the Will had been prepared from

the original. It has also not been pleaded that who prepared the

Will and who compared the same.

28. Provisions contained under Section 65 of the Indian

Evidence Act clearly provide that the secondary evidence can be

led when the existence, condition or contents of the original have

of
been proved to be admitted in witting by the person against the

whom it is proved or by his representative-in-interest when the
rt
original has been destroyed or lost and when party offering

evidence of its contents cannot for any other reason, not arising

from his own default neglect, produce it in the reasonable time.

In the case in hand, from the perusal of the application filed by

the defendant/respondent it reveals that there is only mere

assertion or averment with regard to the misplacement or loss of

the document. However, the same is not sufficient to lead

secondary evidence rather, onus to prove misplacement/ loss to

have benefit of Section 65-C of the Indian Evidence Act is on the

party seeking to prove the documents by way of secondary

evidence. It is incumbent and rather required to be proved that

the document sought to be proved relied upon was misplaced

/lost for any reason not arising from his own conduct and

neglect.

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29. A Co-ordinate Bench of this Court, in Civil Revision

No. 143 of 2022, titled Bharti Sharma & another vs. Naresh

Kumar & others, decided on 21.10.2022 has led down the

parameters for adducing the secondary evidence in the following

manner:

12. Since in the case at hand, plaintiffs specifically
denied the averments contained in the application

of
that the defendants had handed over original copy
of Will to their counsel for getting mutation entered
and he lost the same, court below before
considering prayer made on behalf of the
defendants for secondary evidence ought to have
rt
framed issues and allowed the parties to lead
evidence and thereafter, the learned Court below

ought to have proceeded to decide the application.

Reliance in this regard is placed upon Amar Nath
supra, wherein, it has been held as under:

“3. I have heard learned counsel for the

parties and gone through the record.

4. Relying upon the judgments rendered by
the Hon’ble Supreme Court in cases of J.

Yashoda Vs. K. Shobha Rani, (2007) 5
Supreme Court Cases, 730, M. Chandra Vs.

M. Thangamuthu, (2010) 9 Supreme Court
Cases 712, H. Siddiqui Vs. A. Ramalingam
(2011) 4 Supreme Court Cases 240 & U.
Sree Vs. U. Srinivas, (2013) 2 Supreme

Court Cases 114, it can be concluded that
secondary evidence in respect of an ordinary
document can be allowed in case following
requirements inter-alia amongst others are
met :-

i) For leading secondary evidence, non
production of the document in question has
to be properly accounted for by giving cogent
reasons inspiring confidence.

ii) The party should be genuinely unable to
produce the original of the document and it
should satisfy the Court that it has done

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whatever was required at its end. It cannot
for any other reason, not arising from its own
default or neglect produce it.

iii) Party has proved before the Court that

document was not in his possession and
control, further that he has done, what could
be done to procure the production of it.

iv) The secondary evidence must be
authenticated by foundational evidence that
the alleged copy is in fact a true copy of the
original.

30. The Co-ordinate bench of this Court relying upon the

judgments of this Court and while discussing the entire case law
rt
of the Hon’ble Apex Court in Civil Revision No. 143 of 2022,

titled as Bharati Sharma & others vs. Naresh Kumar & others ,

dated 21.10.2022 has held as follows:

“9. In the instant case, when plaintiffs specifically
denied the claim of the defendants that the
document sought to be proved by way of
secondary evidence was lost/misplaced by their

counsel, learned Court below ought to have
framed issue(s) so that parties could lead

evidence and establish their claim. Reliance in
this regard is placed upon Suresh Kumar supra,
wherein, it has been held as under:

“”7. At this moment, this Court finds that
the documents whether exists or not;
destroyed or not; or are in the
possession of same person or not; or
can be produced before the learned
Court below or whether the secondary
evidence is to be allowed or not, in view
of the nonproduction of the document is
not available, which is pending
adjudication. So, the learned Court
below is within its right to frame issues in
this regard. This Court finds that there is
no illegality in the impugned order dated

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11.1.2018, passed by the learned Court
below, which cannot be said to be
without any basis.”

10. So far averment that the photocopy of

certified copy of the Will is already on record,
there is no specific averment in the application
that the photocopy of the Will on record has
been prepared from the original. It is also not

pleaded that who prepared the Will and who
compared the same. Provisions contained
under S. 65 of the Indian Evidence Act,

of
reproduced above, clearly provide that the
secondary evidence can be led, when the
existence, condition or contents of the original
have been proved to be admitted in writing by
the person against whom it is proved or by his
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representative in interest; when the original
has been destroyed or lost, or when the party

offering evidence of its contents cannot, for
any other reason not arising from his own
default or neglect, produce it in reasonable
time; when the original is of such a nature as
not to be easily movable. Secondary evidence

of contents of documents is admissible,
however, certified copy of Will is not
admissible per se in evidence, but same can
be proved by way of leading secondary

evidence.

11. Though, the defendants who have filed
photocopy of the certified copy of Will sought
to be relied upon by them alongwith written

statement, are entitled to lead secondary
evidence to prove the Will but for that purpose,
they are required to prove by leading cogent
and convincing evidence that the Will sought
to be proved by way of secondary evidence
was in existence but the same has been lost
or misplaced by their counsel, as has been
claimed in the application. Mere assertion
/averment with regard to misplacement /loss of
document may not be sufficient to lead
secondary evidence rather, onus to prove
misplacement/loss to have benefit of S.65(c)
of the Indian Evidence Act is on the party
seeking to prove the document by way of

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secondary evidence. It is required to be
proved that the document sought to be relied
upon was misplaced/lost, for any reason not
arising from his own conduct/neglect.

12. Since in the case at hand, plaintiffs
specifically denied the averments contained in
the application that the defendants had
handed over original copy of Will to their

counsel for getting mutation entered and he
lost the same, court below before considering
prayer made on behalf of the defendants for

of
secondary evidence ought to have framed
issues and allowed the parties to lead
evidence and thereafter, the learned Court
below ought to have proceeded to decide the
application. Reliance in this regard is placed
rt
upon Amar Nath supra, wherein, it has been
held as under:

“3. I have heard learned counsel for the
parties and gone through the record.

4. Relying upon the judgments rendered

by the Hon’ble Supreme Court in cases
of J. Yashoda Vs. K. Shobha Rani,
(2007) 5 Supreme Court Cases, 730, M.
Chandra Vs. M. Thangamuthu, (2010) 9

Supreme Court Cases 712, H. Siddiqui
Vs. A. Ramalingam (2011) 4 Supreme

Court Cases 240 & U. Sree Vs. U.
Srinivas, (2013) 2 Supreme Court Cases
114, it can be concluded that secondary

evidence in respect of an ordinary
document can be allowed in case
following requirements inter-alia amongst
others are met :-

i) For leading secondary evidence, non
production of the document in question
has to be properly accounted for by
giving cogent reasons inspiring
confidence.

ii) The party should be genuinely unable
to produce the original of the document
and it should satisfy the Court that it has

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done whatever was required at its end. It
cannot for any other reason, not arising
from its own default or neglect produce
it.

iii) Party has proved before the Court
that document was not in his possession
and control, further that he has done,
what could be done to procure the

production of it.

iv) The secondary evidence must be

of
authenticated by foundational evidence
that the alleged copy is in fact a true
copy of the original.

5. The record of the case clearly indicates that in
rt
the written statement, even the date of the
agreement is not mentioned. The written

statement was filed on 18.06.2012. The matter
was fixed for defendant’s witnesses w.e.f.
22.11.2014. The application for leading
secondary evidence was moved on 10.07.2017,
five years after the filing of written statement.

The reason for delay advanced by the
petitioner/defendant that he came to know about
the existence of only photocopy of the
agreement in the court file, at the time of

examination of defendant’s witnesses, does not
inspire confidence. From 22.11.2014, the matter

was fixed for defendant’s witnesses. The record
of learned Court below demonstrates that
statements of DW No.1, DW No.2,DW No.3 had

already been recorded on 20.12.2016. There is
no reason forthcoming in the application, which
sufficiently and cogently explains the delay in
moving the application.

6. The requirements laid down under Sections
63 and 65 of the Indian Evidence Act for
permission to lead secondary evidence are not
met in the instant case. There is no averment
made in the application that the photocopy of the
agreement on the record is made from the
original, when it was made and who compared it.
The loss of the original agreement has not been
accounted for in accordance with the provisions

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21 ( 2026:HHC:9397 )

of Section 65 of the Indian Evidence Act. The
application is bereft of the particulars, which are
required for discharging the proof, required
under Section 65 of the Indian Evidence Act.

7. Merely, a vague averment made in the
application that the document has not been
traced, is not sufficient to allow the application
for leading secondary evidence. Therefore, no

illegality can be found in the order passed by the
learned Trial Court.”

13. Hon’ble Apex Court in Kalyan Singh supra,
has held that ordinarily copy of sale deed is not
secondary evidence but certified copy of sale
deed may be produced as secondary evidence
in the absence of the original. Hon’ble Apex
rt
Court held as under:

“25. The High Court said, and in our
opinion very rightly, that Ex. 3 could not be
regarded as secondary evidence. Section
63 of the Evidence Act mentions five kinds
of sec-ondary evidences. Clause (1), (2)

and (3) refer to copies of documents;
clause (4) refers to counterparts of
documents and clause (5) refers to oral
accounts of the contents of documents.

Correctness of certified copies referred to
in clause (1) is presumed under Section

79; but that of other copies must be proved
by proper evidence. A certified copy of a
registered sale deed may be produced as

secondary evidence in the absence of the
original. But in the present case Ex. 3 is
not a certified copy. It is just an ordinary
copy. There is also no evidence regarding
contents of the original sale deed. Ex. 3
cannot, therefore, be considered as
secondary evidence. The appellate Court
has a right and duty to exclude such
evidence.”

14. In the case at hand, as has been averred in
the application that the photocopy of certified
copy was annexed with the written statement,
but it is just an ordinary copy as such, learned

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22 ( 2026:HHC:9397 )

Court below, before allowing prayer made on
behalf of the defendants, was required to frame
issue(s) in this regard.”

31. In the present case alongwith the written statement,

photocopy of the document i.e. Will has been annexed but this is

just a photocopy as such the Court below before allowing the

prayer made on behalf of the defendant was required to come to

of
the conclusion that the Will sought to be proved by way of

secondary evidence was in existence but the same has been lost
rt
or misplaced by the revenue authority. Mere assertion with

regard to misplacement or loss of document may not be

sufficient to lead secondary evidence. It is required to be proved

that the document sought to be relied upon was misplaced /lost

for any reason not arising from his own conduct/negligence.

32. Since in the present case, plaintiff/petitioner

specifically denied these averments contained in the application

that the defendants had handed over the original Will to the

revenue authority for attestation of mutation, Court below before

considering prayer made by defendants/respondent for

secondary evidence ought to have framed issues and allowed

the parties to lead evidence and thereafter, the learned trial

Court ought to have proceeded to decide the application. In the

absence of doing so the Court below has erred while passing the

impugned order.

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23 ( 2026:HHC:9397 )

33. Learned counsel for the petitioner has rightly pointed

out that the ingredients of Section 65-C have neither been

pleaded nor proved and even the trial Court has not passed a

well reasoned and speaking order in order to allow the

application filed by the defendant No.1 for leading secondary

evidence to prove the unregistered Will.

34. Learned trial Court has not gone into this aspect of

the matter which has been reiterated by the Hon’ble Apex Court
rt
in various judgments. Therefore, the only option which is

available to this Court is to quash and set-side the impugned

order as passed by the learned trial Court and to remit back the

matter to the learned Senior Civil Judge, Amb, District Una, H.P.

to decide the application afresh in the light of the observations

made in the instant order. Ordered accordingly.

35. The case file reveals that the suit was filed by the

plaintiff in the year 2014. The defendant had also filed the written

statement in 2014. Now after elapse of more than 10 years,

when the case was fixed for the evidence of the defendants, the

application has been filed in order to fill up the gaps and the

lacuna after a considerable period that too after framing of the

issues and at the stage of the evidence on behalf of the

defendants. The conduct of the defendant speaks volume and it

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24 ( 2026:HHC:9397 )

creates doubt in the mind of the Court for filing such application

at a belated stage.

36. The learned trial Court has not assigned reasons to

allow the application filed by the defendants. This Court has

been persuaded by Sh. Piyush Dhanotia, Advocate that at least

reasons are required to be assigned while deciding the

of
application either way. The order as passed by the learned trial

Court does not meet the requirements of law, which clearly

stipulates
rt
for passing speaking order while adjudicating the

claim in hand between the parties.

37. In view of the aforesaid discussion, I find merit in the

instant petition and after setting aside the impugned order dated

11.06.2025 the present petition is allowed, in the aforesaid

terms. The learned Trial Court is directed to decide the instant

application afresh in view of the observation as made here-in-

above.

All the pending miscellaneous application(s) if any,

shall also stands disposed off.

(Romesh Verma)
Judge

March 30, 2026
(Nisha)

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Tara Rani vs Of on 30 March, 2026

Himachal Pradesh High Court