ORDER
S.C. Pandey, J.
1. This revision, under Section 115 of the Code of Civil Procedure, is directed against the order dated 6-8-1999 passed by 7th Additional District Judge, Bilaspur in Civil Suit No. 51-A/98, whereby the Court below has rejected an application marked as I.A. No. 22.
2. In that application, it was prayed by the applicant that he relied on the Will dated 2-2-1987 executed by Late Moti Bai. That Will was in her possession and after her death, the Will was not found by the applicant. It was further alleged that this document was a registered document and, therefore, the applicant filed a certified copy of the Will for the purpose of proving the Will. It was also alleged that both the attesting witnesses of the Will had expired. It was urged that the Court be pleased to grant permission to the applicant to lead secondary evidence in the shape of certified copy of the Will.
3. Having heard learned counsel for both the parties, this Court is of the opinion that Section 65 or 66 of the Evidence Act do not require an application. In fact, this application purported to be an application for examining an officer from the office of the Sub-Registrar who would depose to the effect that the certified copy of the Will was supplied from the copy kept in the office of Sub-Registrar and bring that copy for the purpose of comparison and perusal of the Court. The purpose of such examination of a witness that certified copy is the true copy from the record of Sub-Registrar and may be authenticated so by the Court. In the opinion of this Court, that is the only mode of proving a certified copy of a private document in absence of the original. It is well established that a Will is a private document within the meaning of Section 75 of the Evidence Act. It would not be covered by Section 74(2) of the Evidence Act as Sub-Registrar is not required under any law to keep public record of a Will. Neither the Registration Act nor does the Indian Succession Act require that Sub-Registrar should keep copy of the original Will with him. This conclusion is supported by the decision in the case of Parsa Singh v. Smt. Parkash Kaur and Ors., reported in AIR 1976 Punjab and Haryana 235.
4. Therefore, the application filed by the applicant could be treated as an application under Order 16 Rule 5 of the Code of Civil Procedure read with Order 16 Rule 15 thereof. It is pointed out that Section 162 of the Evidence Act mandates the requirement of a person, from whose custody a document is sought to be produced, to appear in the Court with the document and raise an objection to its admissibility in the Court, if need be.
5. The question whether the applicant can lead secondary evidence by producing the certified copy of the Will has to be determined by the trial Court after coming to the conclusion that it is admissible by way of secondary evidence in one of the modes mentioned in Section 65(a) to Section 65(g) of the Evidence Act. In certain cases, the Court may also require to consider the scope of Section 66 of the Evidence Act. However, it appears that no such occasion may arise in this case. It is for the trial Court to determine when an objection is raised to admissibility of document from the entire evidence on record if grounds for leading secondary evidence have been made out. For this purpose, it would be better to admit a document provisionally subject to reasoned order of the Court.
6. The trial Court, therefore, shall permit the applicant to summon the record of the Sub-Registrar for proving the certified copy of the Will. When this document is tendered in evidence, the opposite party may raise an objection regarding the admissibility of secondary evidence. The trial Court may admit it subject to objection and permit the opposite party to cross-examine the witness if he alleges that this document can be admitted for one of the reasons given in Section 65(a) to Section 65(g) of the Evidence Act. Thereafter, the trial Court shall weigh the entire material on record and pass a speaking order whether the secondary evidence is admissible or not.
7. It is, however, made clear that production of the certified copy of the Will may not prove the execution of the Will. The execution of the Will has to be proved in accordance with Section 63 of the Indian Succession Act. It may be the certificate of the registering officer which may raise a presumption in favour of the execution of the Will. A party should as a rule examine at best one of the attesting witnesses to prove that both the attesting witnesses saw the maker of the Will signing or making his mark on the document or somebody signed or made the mark or at the behest of the maker and they attested it by signing it. However, in this case, this contingency may not arise on account of the fact if it is successfully proved that both the attesting witnesses had died in the meanwhile. In such a situation, there may be other ways of proving the Will i.e. by examining the scribe or some other person who saw them attesting the Will.
8. Even though the law may not require that Sub-Registrar shall retain the original copy of the Will. The copy of the Will kept in the office of the Sub-Registrar may in a given case be treated as the original provided it is covered by Section 62 of the Evidence Act read with Explanation 2. That copy may be a carbon copy of the original Will made by on uniform process by means of single type machine. It may be then treated as an original following the decision in the case of Prithi Chand v. State of Himachal Pradesh, reported in AIR 1989 SC 702. It is obvious, if the copy kept with the Sub-Registrar is the Carbon Copy produced by aforesaid process and is duly executed and attested, then the proof of execution can be given following the procedure prescribed by Section 63 of the Indian Succession Act read with Section 68 of the Indian Evidence Act. It has already been indicated in case the attesting witnesses are dead, then the proof of attestation and execution of an original document can be done by leading secondary evidence. For example, this may be done by examining the witnesses who are familiar with the handwriting and signature of the executant and the attesting witnesses in a given case.
9. The last two paragraphs have been made for the guidance of the trial Courts at large and as such may not be taken as exhaustive statement of law but only illustrative. It has been assumed here that the copy kept with Sub-Registrar is a carbon copy of the kind as mentioned above duly executed and attested.
10. For the reasons given in Paragraphs 1 to 7, this revision succeeds and is allowed. The impugned order dated 6-8-1999 is hereby set aside.