Whether certified copy of sale deed is deemed to be proved if it is exhibited without objection from other side?

 But, here, the question is, whether the plaintiffs have been able to prove the contents and execution of the sale deed they adduced as evidence. The scribe of the sale deed was produced by the plaintiffs who deposed as PW.3. During his cross-examination, PW.3 admitted that he did not know Asrab Ali, the vendor of the sale deed in question or his hand writing or signature and he also could not say whether original Asrab Ali executed the sale deed before the Sub-Registrar. Furthermore, the case of the defendant/respondents is total denial of the facts and circumstances of execution of the sale deed.  {Para 13}

14. Clause (b) of Section 65 of the Evidence Act contemplates that secondary evidence may be given of the existence, condition or contents of a document when the existence, conditions 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.

15. In the instant case, the existence, conditions or contents of the original sale deed have not been admitted in writing by the defendants against whom the plaintiffs wanted to prove it. However, considering the law that certified copy of a registered deed may be the proof of the contents of the original deed, the contents of the sale deed (Ext.3 series) may be admissible in evidence since objection to the contents was not raised by the defendants. Applying the principle as laid down in Dayamathi Bai (supra), in the opinion of this Court, there cannot be any disagreement in the said proposition of law that admissibility of a document in the form of secondary evidence cannot be questioned if objection is not raised by the opposite party when the document is introduced and taken into evidence and marked as exhibit. 16. Here, however, the principal question hinges upon whether the execution of the sale deed (Ext.3 series) is proved or not, keeping in view the findings of the Courts below as regards admissibility of sale deed in evidence.

17. According to this Court, a certified copy is secondary evidence under Section 63 of the Evidence Act which acknowledges/recognizes the existence, conditions and contents of the deed, but not of its execution. This Court does not find any mention that secondary evidence itself is the proof of the execution of the deed. Added to it, execution of document means the last act or series of acts which complete the document. It does not mean merely signing it. In other words, execution means all acts necessary to make the parties to the contract bound thereby. In furtherance thereof, it should be accompanied by the intention to give effect to the document in question. 

18. In the context of the present case, it is re-iterated at the cost of repetition that execution of the sale deed by Asrab Ali i.e. vendor of the sale deed (Ext.3 series) has not been proved since PW.3 admitted that he did not know Asrab Ali or his handwriting or signature and he also could not say whether original Asrab Ali executed the sale deed before the Sub-Registrar.

19. In this situation, according to this Court, in the present case, it is apparent that execution of the sale deed (Ext.3 series) has not been proved being not accompanied by the intention of the executant (Asrab Ali, the vendor) to give effect to the said sale deed, Ext.3 series in question, when it is the specific pleaded case of the defendants/respondents that Late Asrab Ali had never intended to sell the suit land and the alleged sale deed (Ext.3 series) was simultaneously accompanied by a deed of re-conveyance, which, in reality was a deed of mortgage. Therefore, in the context of the case, the attending circumstances of the execution of sale deed (Ext.3 series) ought to have been necessarily proved by the plaintiffs, which they failed to discharge by leading other evidence recognized by law of evidence.

HIGH COURT OF TRIPURA AGARTALA

 RSA No.52 of 2022

Smti. Rubia Bibi  W/o Alfat Ali, Vs Md. Mati Miah

 Coram: HON’BLE MR. JUSTICE ARINDAM LODH 

Dated : 08.02.2023 

Print Page

Whether it is mandatory to file application seeking permission to lead secondary evidence?

Question therefore, would emerge as to whether a separate application would be required by a party to show existence of the circumstances enumerated under the Evidence Act. {Para 84}

85. This position precisely appears to be traded over under the decision in "Dhanpat V/s. Sheo Ram (Deceased) through Legal Representatives and Others", reported in MANU/SC/0330/2020 : (2020) 16 SCC 209, delivered by the Supreme Court observing that an application for leading secondary evidence would not be mandatory, if there is reference to foundational facts for the same in the plaint or evidence.

86. The Supreme Court, in its decision in the case of "Dhanpat", (supra) has discussed the provisions of section 65 of the Evidence Act and has considered in paragraph 22 as under,

"22. There is no requirement that an application is required to be filed in terms of Section 65(c) of the Evidence Act before the secondary evidence is led. A party to the lis may choose to file an application which is required to be considered by the trial court but if any party to the suit has laid foundation of leading of secondary evidence, either in the plaint or in evidence, the secondary evidence cannot be ousted for consideration only because an application for permission to lead secondary evidence was not filed."

87. In the case if the party concerned has referred to the background and the circumstances and facts necessitating leading secondary evidence, it appears that it would be able to lead secondary evidence without requiring permission from the court. Whether the facts, circumstances and background are available to the party concerned will have to be judged by the court with reference to the evidence on record in this regard. If the party fails to bring about such evidence, it is needless to say that evidence led on a document on such failed background, circumstances and facts, would not be admissible and will have to be excluded from consideration. However, if the party is able to bring about evidence with regard to circumstances, background and facts, secondary evidence of the document would be admissible and would be considered by the court. In such a case, it appears, since there is reference to facts, circumstances and background, a repeat application referring to the same would not be a necessity and the case with reference to the same will have to be proved on evidence without which secondary evidence of a document would not be admissible.

88. The Supreme Court, in paragraph 20 of the judgment in the case of "Dhanpat V/s. Sheo Ram (Deceased) through Legal Representatives and Others", reported in MANU/SC/0330/2020 : (2020) 16 SCC 209, has observed, thus,

20. This Court in Bipin Shantilal Panchal V. State of Gujarat and Another, deprecated the practice in respect of the admissibility of any material evidence, where the Court does not proceed further without passing order on such objection. It was held that all objections raised shall be decided by the Court at the final stage. The Court held as under:

"14. When so recast, the practice which can be a better substitute is this: Whenever an objection is raised during evidence-taking stage regarding the admissibility of any material or item of oral evidence the trial court can make a note of such objection and mark the objected document tentatively as an exhibit in the case (or record the objected part of the oral evidence) subject to such objections to be decided at the last stage in the final judgment. If the court finds at the final stage that the objection so raised is sustainable the Judge or Magistrate can keep such evidence excluded from consideration. In our view there is no illegality in adopting such a course. (However, we make it clear that if the objection relates to deficiency of stamp duty of a document the court has to decide the objection before proceeding further. For all other objections the procedure suggested above can be followed).

15. The above procedure, if followed, will have two advantages. First is that the time in the trial court, during evidence-taking stage, would not be wasted on account of raising such objections and the court can continue to examine the witnesses. The witnesses need not wait for long hours, if not days. Second is that the superior court, when the same objection is recanvassed and reconsidered in appeal or revision against the final judgment of the trial court, can determine the correctness of the view taken by the trial court regarding that objection, without bothering to remit the case to the trial court again for fresh disposal. We may also point out that this measure would not cause any prejudice to the parties to the litigation and would not add to their misery or expenses."

89. Several situations are likely to arise and one may be such where there are no foundational facts averred in the pleadings by a party and secondary evidence of a document is led. Ordinarily, evidence led without basis in the pleadings is to be ignored and is inadmissible. Going by present practice of giving evidence in examination-in-chief, other party may have an opportunity to object to leading of such secondary evidence and contending the same to be inadmissible.

91. But would an application be precluded referring to facts, circumstances and background, seeking permission to lead secondary evidence in respect of a document not referred to in pleadings.

92. Corollary of Dhanpat's case (supra) discernibly appears to be application would be required if foundational facts have not been referred to in any form and secondary evidence is sought to be led.

94. From foregoing discussion, it would be seen that scope of answer to question posed is whelmed by decisions of the Supreme Court in the cases of "Dhanpat" (supra) and "Jagmail Singh" (supra). Thus, emerging position is that a party may furnish secondary evidence and filing of an application seeking permission to lead secondary evidence would not be mandatory. However, an application for leading secondary evidence by a party is not precluded. Reference stands answered accordingly.

 IN THE HIGH COURT OF BOMBAY (AURANGABAD BENCH)

Writ Petition No. 8442 of 2019

Decided On: 22.09.2021

Shaikh Aftab Ahmed and Ors. Vs. Bhimrao and Ors.

Hon'ble Judges/Coram:

S.P. Deshmukh and Vibha Kankanwadi, JJ.

Author: S.P. Deshmukh, J.

Citation: MANU/MH/2743/2021, 2023 Lawweb (Bom HC ) 1.

Print Page

Whether 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

Citation: 2021(1) MHLJ 496

Print Page

When will executed without probate is not admissible in evidence?

 The Trial Court has, therefore, not erred in rejecting the application of the petitioner under Section 65 of the Evidence Act as the basic document namely; Will executed in Calcutta sans a probate is not admissible in evidence hence, its photostat copy/secondary evidence cannot be tendered in evidence.

IN THE HIGH COURT OF RAJASTHAN

S.B. Civil Writ No. 1263 of 2018

Decided On: 06.10.2018

Kamal Kumar  Vs. Ankit Kumar and Ors.

Hon'ble Judges/Coram:

Dinesh Mehta, J.

Citation: AIR 2019 Raj 19.

Print Page

How to prove documents obtained under right to information Act?

 In view of the above analysis, the xerox copy certified by the designated Public Information Officer under Right to Information Act of the private documents are not certified copies within the meaning of the provisions of Section 65 of the Evidence Act. They are merely true copies of the private documents available in the records of the particular Department. The production and marking of such copies is permissible only after laying a foundation for acceptance of secondary evidence under clauses (a) (b) or (c) of Section 65 of the Act. The condition prescribed under the above cases (a), (b) or (c) of Section 65 of the Act have to be fulfilled before marking the true copies obtained under the Right to Information Act. However, the true copies of public documents certified by the designated Information Officer can be taken as certified copies of the public documents.

IN THE HIGH COURT OF JUDICATURE AT HYDERABAD 

Civil Revision Petition Nos. 3031 and 3048 of 2015

Decided On: 11.12.2015

 Datti Kameswari  Vs. Singam Rao Sarath Chandra and Ors.

Hon'ble Judges/Coram:

A. Ramalingeswara Rao, J.

Print Page

What are pre-conditions for leading secondary evidence?

 In so far as the question of law formulated by this Court i.e. 'whether under Section 65 of the Indian Evidence Act, 1872, secondary evidence in the form of oral evidence can be led or considered to prove the contents of the document allegedly lost' is concerned, in my view, before allowing production of secondary evidence, it must be established that the original document is lost or destroyed or is being deliberately withheld by the party. Supreme Court in the case of Rakesh Mohindra Vs.Anita Beri and Ors., reported in 2016 ALL SCR 1 has held that the party who seeks to lead secondary evidence has to lay down the factual foundation to establish the right to give secondary evidence where the original document cannot be produced. It is held that neither mere admission of a document in evidence amounts to its proof nor mere making of an exhibit of a document dispenses with its proof, which is otherwise required to be done in accordance with law.

79. It is held by the Supreme Court that the pre-conditions 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 who seeks to produce secondary evidence must establish for  the non-production of primary evidence. Unless, it is established that the original document 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 be accepted. In the facts of this case, the plaintiffs could not prove before the learned trial Judge that any of the alleged divorce deed was executed and lost and could not have produced and thus they were entitled to lead secondary evidence under Section 65 of the Indian Evidence Act, 1872.

In my view, the party who seeks to lead secondary evidence has to establish that such party is not able to produce the primary document which beyond his control or that the same is lost or destroyed or is being deliberately withheld by the party in respect of that document sought to be used. Unless these mandatory conditions of Section 65 of the Indian Evidence Act, 1872 are complied with, such party cannot be allowed to lead secondary evidence. The substantial question of law no.(i) is accordingly answered in negative in the facts of this case.

Bombay High Court

Smt. Kashibai Namdeo Jadhav And ... vs Smt. Yamunabai Namdeo Jadhav And ... on 25 February, 2016

Bench: R.D. Dhanuka

SECOND APPEAL NO.108 OF 1993

Citation:AIR 2016 (NOC)387 Bom           

Print Page

What are necessary conditions for admissibility of secondary evidence?

 In so far as the question of law formulated by this Court i.e.
'whether under Section 65 of the Indian Evidence Act, 1872, secondary
evidence in the form of oral evidence can be led or considered to prove
the contents of the document allegedly lost' is concerned, in my view,
before allowing production of secondary evidence, it must be established
that the original document is lost or destroyed or is being deliberately
withheld by the party. Supreme Court in the case of Rakesh Mohindra
Vs.Anita Beri and Ors., reported in 2016 ALL SCR 1 has held that the
party who seeks to lead secondary evidence has to lay down the factual
foundation to establish the right to give secondary evidence where the
original document cannot be produced. It is held that neither mere
admission of a document in evidence amounts to its proof nor mere
making of an exhibit of a document dispenses with its proof, which is
otherwise required to be done in accordance with law.
79. It is held by the Supreme Court that the pre-conditions 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 who seeks to produce secondary evidence must establish for

the non-production of primary evidence. Unless, it is established that
the original document 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 be accepted. In
the facts of this case, the plaintiffs could not prove before the learned
trial Judge that any of the alleged divorce deed was executed and lost
and could not have produced and thus they were entitled to lead
secondary evidence under Section 65 of the Indian Evidence Act, 1872.
In my view, the party who seeks to lead secondary evidence has to
establish that such party is not able to produce the primary document
which beyond his control or that the same is lost or destroyed or is
being deliberately withheld by the party in respect of that document
sought to be used. Unless these mandatory conditions of Section 65 of
the Indian Evidence Act, 1872 are complied with, such party cannot be
allowed to lead secondary evidence. The substantial question of law no.(i)
is accordingly answered in negative in the facts of this case.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
 CIVIL APPELLATE JURISDICTION
SECOND APPEAL NO.108 OF 1993
Kashibai Namdeo Jadhav 
Versus
 Yamunabai w/o Namdeo Jadhav 
 CORAM : R.D. DHANUKA, J.
  PRONOUNCED ON :   25th February 2016
Citation:AIR 2016 (NOC)387 BOM

Print Page

When documents obtained under right to information can be treated as public document?

 In view of the above analysis, the xerox copy certified by the
designated Public Information Officer under Right to Information Act
of the private documents are not certified copies within the meaning
of the provisions of Section 65 of the Evidence Act. They are merely
true copies of the private documents available in the records of the
particular Department.  The production and marking of such copies
is permissible only after laying a foundation for acceptance of
secondary evidence under clauses (a) (b) or (c) of Section 65 of the
Act. The condition prescribed under the above cases (a), (b) or (c) of
Section 65 of the Act have to be fulfilled before marking the true
copies obtained under the Right to Information Act. However, the
true copies of public documents certified by the designated
Information Officer can be taken as certified copies of the public
documents. 
HYDERABAD HIGH COURT

Datti Kameswari Petitioner 
Vs
Singam Rao Sarath Chandra and another Respondent     



HONBLE SRI JUSTICE A. RAMALINGESWARA RAO            

Civil Revision Petition Nos.3031 and 3048 of 2015

OrderDate: 11-12-2015 

Citation;AIR 2016 Hyderabad 112

Print Page