Thursday, 14 May 2020

Supreme Court: Court Should permit the production of secondary evidence if the party lays the factual foundation

 It is trite that under the 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. In the case of H.
Siddiqui (dead) by LRs Vs. A. Ramalingam3, this Court reiterated that
where original documents are not produced without a plausible reason
and factual foundation for laying secondary evidence not established it
is not permissible for the court to allow a party to adduce secondary
evidence.

16. In view of the aforesaid factual situation prevailing in the case at
hand, it is clear that the factual foundation to establish the right to give
secondary evidence was laid down by the appellants and thus the High
Court ought to have given them an opportunity to lead secondary
evidence. The High Court committed grave error of law without properly
evaluating the evidence and holding that the pre-requisite condition i.e.,
existence of Will remained unestablished on record and thereby denied
an opportunity to the appellants to produce secondary evidence.
17. Needless to observe that merely the admission in evidence and
making exhibit of a document does not prove it automatically unless
the same has been proved in accordance with the law.

REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 1889 OF 2020

JAGMAIL SINGH  Vs  KARAMJIT SINGH

KRISHNA MURARI, J.
Dated:MAY 13, 2020


This appeal is directed against the judgment dated 09.01.2017
passed by the High Court of Punjab and Haryana at Chandigarh in Civil
Revision No. 7271 of 2015 whereby the High Court confirmed the order
passed by the Civil Judge (Junior Division) Moga in application filed
under Section 65 and 66 of the Indian Evidence Act by the appellants
herein seeking permission to prove the copy of the Will dated
24.01.1989 executed by one Babu Singh in their favour by way of
secondary evidence, as the original Will which was handed over to the
village patwari for mutation could not be retrieved. The High Court while
dismissing the application observed that as the pre-requisite condition of

existence of Will is not proved, the Will cannot be permitted to be
approved by allowing the secondary evidence.
2. Briefly stated the facts of the case are that the appellants
preferred a suit for declaration to the effect that they are owners to the
extent of ½ share each of the land owned by Babu Singh son of
Phuman Singh, situated in village Kokri Kalan, Tehsil & District Moga
and Mutation No. 9971 dated 28.02.1991 and Mutation No. 9359 dated
25.02.1991 sanctioned by the Assistant Collector Second Grade, Moga
in favour of Baldev Singh (predecessors-in-interest of respondent nos.1
and 2) and Shamsher Singh (respondent No.3) are illegal, null and void,
as the said two mutations have been sanctioned on the basis of a
forged Will dated 20.03.1988. A further prayer for consequential relief of
permanent injunction to restrain the respondents from alienating,
transferring or mortgaging the suit property was also sought for.
3. During pendency of the aforesaid suit, an application under
Section 65/66 of the Evidence Act was moved by the appellants seeking
permission to prove copy of Will dated 24.01.1989 by way of secondary
evidence. The said application was allowed by the Trial Court vide order
dated 04.07.2014.

4. Feeling aggrieved by the said order, respondents preferred Civil
Revision No.4645 of 2014 which was allowed by the High Court by
observing as under:-
“Once the appellants have alleged that the original Will is
in possession of the revenue official, they should have
served a notice upon him under Section 66 of the Act for its
production and in case, it is alleged that the said Will has
been lost, then the application could have been filed for
leading secondary evidence but in the absence of the
compliance of the aforesaid procedure, the application per
se filed under Section 65 of the Act is not maintainable. In
view of the aforesaid apparent error on the part of the
Court below, the present revision petition is hereby allowed
and the impugned order is set aside. However, the
respondents are still at liberty to move an application under
Section 66 of the Act to the revenue official to whom the
alleged Will was given for the purpose of sanctioning of
mutation and in case of denial on his part that the Will has
been lost, they can maintain the application for secondary
evidence”.
5. Subsequent thereto, appellants preferred another application
under Section 65/66 of the Act, before the Trial Court for issuance of
notice under Section 66 of the Act to the revenue officials for production
of original Will dated 24.01.1989. The application was made on the
ground that the said original Will was handed over by the appellants to
revenue officials for sanctioning the mutation in their favour. Both the
revenue officials were issued notice for production of the original Will
dated 24.01.1989 but they failed to produce the said Will. It was only
thereafter, application was dismissed vide order dated 30.09.2015.

6. Aggrieved by the above order, the appellants approached the
High Court by way of a Revision Petition under Article 227 of the
Constitution of India.
7. Learned counsel for the appellants contended that the impugned
order is not sustainable in the eyes of law as it suffers from patent
errors of law and is against the letter & spirit of Sections 65 & 66 of the
Evidence Act. It is further pointed out that Section 65(a) of the Act
allows the production of secondary evidence when the original is shown
and appears to be in possession or power of one against whom the
document is sought to be proved, or 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. In such contingency, party concerned is
entitled to prove the same by way of secondary evidence. It is
submitted that the appellants had already served notice under Section
66 of the Evidence Act to the revenue officials through the Court but the
Will which was sought to be produced by way of secondary evidence,
was not produced by either of the revenue officials.
8. Learned counsel for the appellants further contended that
existence of the original Will can only be proved during the course of
arguments and it is not the requirement of law that it should be proved

at the first instance and only thereafter secondary evidence can be
allowed.
9. The High Court vide impugned order dated 09.01.2017 observed
that - “As per facts & circumstances of the instant case, original Will
dated 24.01.1989 was given to the revenue official(s) for incorporating
and sanctioning of mutation on the basis thereof, but to the utter
surprise, though, both the revenue officials, namely, Pyare Lal and
Rakesh Kumar, Patwaries, were served under Section 66 of the Act to
produce original Will dated 24.01.1989 but they failed to produce it.
Moreover, they had nowhere stated about the existence of the original
Will. So, the pre-requisite condition i.e. existence of the Will, remained
un-established on record. Thus, while observing that the learned Trial
Court had declined the permission to prove Will dated 24.01.1989 by
way of secondary evidence, the order dated 30.09.2015 suffers from no
infirmity or illegality, rather the same is absolutely in accordance with
the evidence available on file as well as settled proposition of law.” The
High Court did not find any merit in the Revision Petition and dismissed
the same while upholding the decision of the lower Court on the ground
that the pre-requisite condition for admission of secondary evidence,
i.e. existence of Will remained unestablished.

10. For proper appraisal of the matter in controversy, it would be
appropriate to reproduce Sections 65 and 66 of the Act which read as
under :-
65. Cases in which secondary evidence relating to
documents may be given.— 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 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;
(c) 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;
(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 originals 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.
66. Rules as to notice to produce - Secondary evidence
of the contents of the documents referred to in section 65,
clause (a), shall not be given unless the party proposing to
give such secondary evidence has previously given to the
party in whose possession or power the document is, [or to
his attorney or pleader] such notice to produce it as is
prescribed by law; and if no notice is prescribed by law,
then such notice as the Court considers reasonable under
the circumstances of the case:
Provided that such notice shall not be required in order to
render secondary evidence admissible in any of the
following cases, or in any other case in which the Court
thinks fit to dispense with it:—
(1) when the document to be proved is itself a notice;
(2) when, from the nature of the case, the adverse party
must know that he will be required to produce it;
(3) when it appears or is proved that the adverse party has
obtained possession of the original by fraud or force;
(4) when the adverse party or his agent has the original in
Court;
(5) when the adverse party or his agent has admitted the
loss of the document;
(6) when the person in possession of the document is out
of reach of, or not subject to, the process of the Court.”
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.
12. The issue arising out of somewhat similar facts and circumstances
has been considered by this Court in Ashok Dulichand Vs.
Madahavlal Dube and Anr.1, and it was held as under :-
“According to Clause (a) of Section 65 of Indian Evidence
Act, Secondary evidence may be given of the existence,
condition or contents of a document 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
or of any person out of reach of, or not subject to, the
process of the Court of any person legally bound to
produce it, and when, after the notice mentioned in Section
66 such person does not produce it. Clauses (b) to (g) of
Section 65 specify some other contingencies wherein
secondary evidence relating to a document may be given.”
13. In the matter of Rakesh Mohindra vs. Anita Beri and Ors.2 this
Court has observed as under:-
“15. The preconditions for leading secondary evidence are
that such original documents could not be produced by the
party relying upon such documents in
spite of best efforts, unable to produce the same which is
beyond their control. The party sought to produce
secondary evidence must establish for the non-production
of primary evidence. Unless, it is established that the
original documents is lost or destroyed or is being
deliberately withheld by the party in respect of that
document sought to be used, secondary evidence in
respect of that document cannot accepted.”
1 [1976] 1 SCR 246
2 (2016) 16 SCC 483

14. It is trite that under the 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. In the case of H.
Siddiqui (dead) by LRs Vs. A. Ramalingam3, this Court reiterated that
where original documents are not produced without a plausible reason
and factual foundation for laying secondary evidence not established it
is not permissible for the court to allow a party to adduce secondary
evidence.
15. In the case at hand, it is imperative to appreciate the evidence of
the witnesses as it is only after scrutinizing the same opinion can be
found as to the existence, loss or destruction of the original Will. While
both the revenue officials failed to produces the original Will, upon
perusal of the cross-examination it is clear that neither of the officials
has unequivocally denied the existence of the Will. PW- 3 Rakesh
Kumar stated during his cross-examination that there was another
patwari in that area and he was unaware if such Will was presented
before the other patwari. He went on to state that this matter was 25
years old and he was no longer posted in that area and, therefore,
could not trace the Will. Moreover, PW- 4 went on to admit that, “there
was registered Will which was entered. There was a Katchi
(unregistered) Will of Babu Singh was handed over to Rakesh Kumar
3 [2011 (4) SCC 240]

Patwari for entering the mutation...”. Furthermore, the prima facie
evidence of existence of the Will is established from the examination of
PW-1, Darshan Singh, who is the scribe of the Will in question and
deposed as under :-
“I have seen the Will dated 24.01.1989 which bears my
signature as scribe and as well as witness.”
16. In view of the aforesaid factual situation prevailing in the case at
hand, it is clear that the factual foundation to establish the right to give
secondary evidence was laid down by the appellants and thus the High
Court ought to have given them an opportunity to lead secondary
evidence. The High Court committed grave error of law without properly
evaluating the evidence and holding that the pre-requisite condition i.e.,
existence of Will remained unestablished on record and thereby denied
an opportunity to the appellants to produce secondary evidence.
17. Needless to observe that merely the admission in evidence and
making exhibit of a document does not prove it automatically unless
the same has been proved in accordance with the law.
18. In view of the aforesaid legal and factual position, we are of the
considered opinion that the impugned judgment of the High Court
suffers from material irregularity and patent errors of law and not liable

to be sustained and is thus, hereby set aside. The appeal accordingly
stands allowed.
19. The appellants would be entitled to lead secondary evidence in
respect of the Will in question. It is, however, clarified that such
admission of secondary evidence automatically does not attest to its
authenticity, truthfulness or genuineness which will have to be
established during the course of trial in accordance with law.
20. In the facts and circumstances, we do not make any order as to
costs.
.................................J.
(NAVIN SINHA)
...............................J.
(KRISHNA MURARI)
NEW DELHI;
MAY 13, 2020

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