Fresh Application Permitted for Proving Will – Punjab & Haryana High Court Sets Aside Order Allowing Secondary Evidence Without Notice

Punjab and Haryana High Court allowed a revision petition challenging a trial court order that had permitted the plaintiff to lead secondary evidence of a Will under Section 65 of the Indian Evidence Act, 1872. Justice Alka Sarin held that the order could not stand since no notice under Section 66 had been issued to the person alleged to be in possession of the document, thereby setting aside the order but granting liberty to file a fresh, lawful application.

“Section 65 Mandates Compliance with Section 66”

The dispute arose when the plaintiff–respondent sought to prove a registered Will through secondary evidence, claiming possession of a certified copy. The petitioner argued that before such an application could be entertained, statutory requirements under Section 66—specifically, service of notice to the person in possession—had to be met. In this case, the Halqa Patwari, earlier arrayed as defendant No. 9 but later deleted from the suit, had not been served such notice.

Counsel for the petitioner contended that the absence of notice rendered the application defective, while the plaintiff’s counsel maintained that since the Will was a registered document, its certified copy would be admissible, and even expressed no objection to the impugned order being set aside with liberty to move afresh.

“Impugned Order Set Aside – Liberty Reserved”

Accepting this consensual position, the High Court observed that the proper course was to set aside the 20 March 2024 order while safeguarding the plaintiff’s right to prove the Will through a procedurally correct application. Justice Sarin ordered:

“The present revision petition is allowed and the impugned order dated 20.03.2024 is set aside. It is, however, made clear that the plaintiff–respondent No. 1 would be at liberty to file a fresh application in accordance with law for proving the Will.”

The ruling underscores that while courts may permit secondary evidence in appropriate cases, compliance with statutory safeguards like Section 66 of the Evidence Act remains mandatory. The decision also reflects a pragmatic approach—rectifying procedural lapses without foreclosing substantive rights.

Date of Decision: 6 August 2025