This Civil Revision Petition is filed against the fair and decretal order dated 10.07.2014 made in I.A.No.156 of 2013 in O.S.No.15 of 2012 on the file of the Court of the Principal District Judge, Krishnagiri.
2. The petitioner is the plaintiff and respondents are the defendants in O.S.No.15 of 2012. The petitioner filed the said suit for declaration of title in respect of 'A' and 'C' Schedule properties; permanent injunction, restraining the respondents from trespassing into the 'A' Schedule properties or interfering with his peaceful possession and enjoyment; for partition and separate possession of 'B' Schedule Property; appoint an Advocate Commissioner to divide the 'B' Schedule properties into two equal shares and to declare the two gift settlement deeds, both dated 11.08.2008, bearing document Nos.2247 and 2248 of 2008, executed by the first respondent in favour of the respondents 2 to 4 as null and void. The respondents filed written statement on 25.07.2012 and are contesting the suit. Trial commenced. The petitioner examined himself as PW1 and one K.S.Karthikeyan as PW2 and closed his side. At that time, the petitioner filed I.A.No.156 of 2013 for permission to mark Xerox copy of the Will dated 25.04.1981, executed by his father. According to the petitioner, the original Will dated 25.04.1981 is with the first respondent and the petitioner filed a memo for a direction to the first respondent to produce the original Will before the Court. The first respondent denied having the original Will. The petitioner obtained certified copy of the will dated 25.04.1981 and marked the same as Ex.A21. The attesting witnesses are dead. The petitioner wants to prove the signature of the attesting witnesses through their legal heirs. For that purpose, it is necessary to mark the Xerox copy of the Will.
3. The respondents filed counter affidavit and denied all the averments made in the affidavit and submitted that the petitioner in cross-examination has admitted that the original Will dated 25.04.1981 is with him. The petitioner has already filed certified copy of the Will dated 25.04.1981 and marked the same as Ex.A21. In the circumstances, there is no need to produce and mark the xerox copy of the Will. The xerox copy of the Will is not an authenticated copy and it cannot be either received or marked as Ex.A21 on the side of the petitioner and prayed for dismissal of the I.A.No.156 of 2013.
4. The learned Judge, considering the averments in the affidavit, counter affidavit and admission of the petitioner as PW1 that original Will is with him, dismissed the application.
5. Against the said order of dismissal dated 10.07.2014, made in I.A.No.156 of 2013 in O.S.No.15 of 2012, the present Civil Revision Petition is filed by the petitioner.
6. Heard the learned counsel appearing for the petitioner as well as the respondents and perused the materials available on record.
7. The learned counsel appearing for the petitioner raised in the grounds in the Civil Revision Petition that original Will was removed from the custody of the petitioner by the first respondent. The petitioner contended that he was given more property in the Will and first respondent was given only less property and therefore, there is no necessity for the petitioner not to produce the original Will. From the typed set of papers filed by the learned counsel for the petitioner, it is seen that the petitioner has not stated in the affidavit filed in support of the above application that the original Will was removed by the first respondent, from his custody. The evidence of the petitioner as PW1 is filed in the additional typed set of papers. In the cross-examination, the petitioner has stated that after 5 or 6 days of death of his father, he came to know about the Will and the Will was with him and he read the Will. In the proof affidavit or in the cross-examination, the petitioner has not stated that the first respondent has removed the original Will from his custody. The first respondent denied that original Will is with him and petitioner admitted in the cross-examination that original Will is with him. In the said circumstances, the xerox copy of the Will, which is secondary evidence cannot be marked as an Exhibit. The learned Judge, considered all the above facts and dismissed the application by giving cogent and valid reason. The order of the learned Judge does not warrant any interference by this Court.
8. In the result, this Civil Revision Petition is dismissed. No costs. Consequently, connected miscellaneous petition is closed.
06.11.2017 Index: Yes/No gsa To The Principal District Judge, Krishnagiri.
V.M.VELUMANI,J.
gsa C.R.P.(PD)No.3179 of 2014 & M.P.No.1 of 2014 06.11.2017