Page No.# 1/5 GAHC010159152025 undefined THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) Case No. : CRP(IO)/280/2025 MRS ALISHA MIR AKBAR W/O MR RAHIL M AKBAR R/O HOUSE NO. 23 MAZID LANE GOPINATH NAGAR BIRUBARI GUWAHATI 16 KMARUP METOR ASSAM PRESENTLY RESIDING AT FLAT NO. C 7 /404 KENDRIYA VIHAR CGEWHO PLOT 07 BUILDERS AREA SECTOR P 4 GRETER NOIDA DIST GAUTAM BUDDA NAGAR PIN 201315 UP VERSUS ASIF ALI MIR S/O LT MIR AKRAM ALI R/O HOUSE NO. 23 MASZID LANE BIRUBARI GUWAHATI 16 PS PALTAN BAZAR DIST KAMRUP METRO ASSAM Advocate for the Petitioner : MR. A C SARMA, MR G BHARADWAJ,MR B DEORI Advocate for the Respondent : , BEFORE HONOURABLE MR. JUSTICE ROBIN PHUKAN ORDER 06.08.2025 Heard Mr. A.C. Sarma, learned senior counsel, assisted by Mr. G. Bharadwaj, learned counsel for the petitioner. 2. In this petition, under Article 227 of the Constitution of India, the petitioner has put to challenge the correctness or otherwise of the order dated 02.04.2025, passed by the learned Additional District Judge No. 2, Kamrup (M) at Guwahati (trial court hereinafter), in Misc. Probate Case No. 05/2017. Page No.# 2/5 3. It is to be noted here that vide order dated 02.04.2025, the learned trial court had dismissed the petition No. 196/2024, filed under Order XI Rule 14 read with Section 151 of the CPC and read with Sections 65 & 66 of the Evidence Act. 4. Mr. Sarma, learned senior counsel for the petitioner submits that the petitioner had instituted one Misc. Probate Case No. 07/2017, for grant of probate of WILL of Late Melina Mir, on 18.10.2015, in respect of Schedule A, B, C, I & II properties. But, while filing the probate case, the petitioner could not submit the original copy of WILL, which was lost and could not trace out in spite of vigorous search and for which, one FIR was also lodged before the Officer In-Charge, Birubari Police Outpost, on 12.09.2016. However, she had possessed a photocopy of the WILL, which was sent to her by email, by one Amarjyoti Medhi, who is one of the witnesses of the said WILL, and she had annexed the same with the petition. Mr. Sarma further submits that there is no bar in accepting the photocopy of the WILL in deciding the probate case and that the original copy of the said WILL is under power and possession of the respondent. Mr. Sarma also submits that thereafter, she had filed a petition before the learned trial court for production of the WILL from the custody of the respondent, under Order XI Rule 14 read with Section 151 of the CPC and Sections 65 & 66 of the Evidence Act and prayed for accepting the same as secondary evidence. 4.1. Further submission of Mr. Sarma is that in the said petition, the respondent herein had filed objection and thereafter, the learned trial court had rejected the prayer for production of the WILL as it was not in accordance with the provision of law by holding that secondary evidence cannot be proved from a computerized copy. 4.2. It is the further submission of Mr. Sarma that the learned trial court had failed to take note of the fact that the photocopy of the WILL was exhibited as Page No.# 3/5 Exhibit – 1, without any objection, and one witness (PW-3) had proved the execution of the WILL. 4.3. Referring to a decision of Hon’ble Supreme Court in the case of Jagmil Singh and Another vs. Karamjit Singh and Others, reported in (2020) 5 SCC 178, especially in paragraph No. 11 of the said decision, Mr. Sarma submits that secondary evidence may be given with regard to existence, condition or the contents of a document, when the original is shown or appears to be in possession of power against, from whom the document is sought to be produced, or of 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 notice, mentioned in Section 66, such person does not produce it and that it is a settled position of law that for secondary evidence to be admitted, foundational evidence has to be given, being the reasons as to why the original evidence has not been furnished. 4.4. Mr. Sarma also submits that such foundation has already been laid down in the probate petition itself, wherein in paragraph No. 4 it is categorically stated that the original WILL has been lost and to that effect one FIR has also been laid and that the original copy is under power and possession of the respondent and in that view of the matter, the impugned order so passed by the learned trial court rejecting the petition filed by the petitioner is illegal and arbitrary. Therefore, it is contended to set it aside. 5. Having heard the submission of Mr. Sarma, learned senior counsel for the petitioner, I have carefully gone through the petition as well as the documents placed on record and also perused the impugned order dated 02.04.2025, passed by the learned trial court, in Misc. Probate Case No. 05/2017. Also I have carefully gone through the decision of Hon’ble Supreme Court in Jagmil Singh (Supra). 6. It is to be noted here that in the case of Jagmil Singh (Supra), Hon’ble Page No.# 4/5 Supreme Court had observed as under:- “11. A perusal of Section 65 makes it clear that secondary evidence may be given with regard to existence, condition or the contents of a document when the original is shown or appears to be in possession or power against whom the document is sought to be produced, or of 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 notice mentioned in Section 66 such person does not produce it. It is a settled position of law that for secondary evidence to be admitted foundational evidence has to be given being the reasons as to why the original evidence has not been furnished.” 7. Thus, from the above decision it becomes apparent that the secondary evidence, to be admitted, foundational evidence has to be given being the reasons as to why the original evidence has not been furnished. 8. In the case in hand, in paragraph No. 4 of the petition, seeking probate, the petitioner had laid foundational fact and also laid foundational evidence, that the original is lost and an FIR was also lodged with police. It is also stated that the same is in possession of the respondent herein. But, this aspect eschewed consideration of the learned trial court, in the impugned order dated 02.04.2025. It is a fact that the stand of the petitioner appears to be contradictory. But the same has to be decided at the end of trial. 9. In that view of the matter, the impugned order appears to be arbitrary and illegal and accordingly, the same stands set aside and quashed. 10. The matter stands relegated to the learned trial court to examine the same afresh, in the light of the decision of Hon’ble Supreme Court in the case of Jagmil Singh (Supra) and to pass a fresh order upon the petition filed under Order XI Page No.# 5/5 Rule 14 read with Section 151 of the CPC and read with Sections 65 & 66 of the Evidence Act. 11. In terms of above, this petition stands disposed of at this motion stage itself. JUDGE Comparing Assistant