The law discussed above would show that in order that
secondary evidence is admitted, form of the secondary evidence is not
material, it could be in any form as for example copy or duplicate copy of
the copy of the original document, oral evidence or any other form and
that three conditions, which constitute foundational facts, must be
fulfilled while pressing into service the provision of Section 65(c) of the
Indian Evidence Act, namely, (a) the original document is in existence
and has been executed by its executants, (b) it has been lost or destroyed
or cannot be produced in reasonable time for any other reason not
arising from own default or neglect of the party leading secondary
evidence, and (c) the copy is the true copy of the original.
If these conditions or any one of them are or is not proved,
the secondary evidence cannot be admitted.
13. In the instant case, what has been done by the impugned
orders is only grant of permission to adduce secondary evidence. The
secondary evidence, which is a copy of photostat copy of the original
Will has not been admitted in evidence so far. For such secondary
evidence to be admitted, the party interested in adducing the secondary
evidence would have to satisfy the above referred conditions by leading
necessary evidence in that regard. So, the party would be required to be
given an opportunity to lead necessary evidence in order to satisfy the
Court about fulfilling of the necessary conditions so that the Will in
question can be admitted in evidence and marked as an exhibit. That
stage has not reached so far. As and when it reaches, the petitioners will
have all the opportunity to prove the respondent Nos.1 to 3 wrong or
satisfy the Court that the Will in question in fact does not exist and that it
has never been executed by late Smt. Sushila. Therefore, learned Joint
Civil Judge, Senior Division has rightly held that, by allowing the
application granting permission to adduce secondary evidence, no
prejudice would be caused to the rights of the petitioners. The
petitioners would certainly have a right to controvert the respondent
Nos.1 to 3 as well as respondent No.4 when they will say, subject to
necessary pleadings, that the original Will dated 6.11.1997 is in existence
and has been lost for the reasons not known to them. Therefore, failure
to record a clear cut finding regarding satisfaction of the Court about
existence or otherwise of the Will in question has not caused any
prejudice to the rights of the petitioners and in fact recording of such a
finding at this stage would have been premature. After all the parties are
required to be given full opportunity for proving their respective
contentions and this is what seems to be the import and effect of the
impugned orders. Then, giving of permission to adduce secondary
evidence by itself would not lead to an inference that secondary evidence
has been admitted. As stated earlier, for admitting the secondary
evidence the necessary conditions must be fulfilled and the stage of
fulfillment of those conditions or otherwise is yet to arrive and will arrive
when the parties stand before the Court for adducing necessary evidence.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR
WRIT PETITION No.5984 OF 2015
Smt. Sumati @ Asha w/o. Late Anil Subhedar,
V
Yashodhara w/o. Late Sunil Subhedar,
Aged adult,
CORAM : S.B. SHUKRE, J.
DATE : 16th SEPTEMBER, 2016.
Citation: 2016(6) ALLMR 507
Print Page
secondary evidence is admitted, form of the secondary evidence is not
material, it could be in any form as for example copy or duplicate copy of
the copy of the original document, oral evidence or any other form and
that three conditions, which constitute foundational facts, must be
fulfilled while pressing into service the provision of Section 65(c) of the
Indian Evidence Act, namely, (a) the original document is in existence
and has been executed by its executants, (b) it has been lost or destroyed
or cannot be produced in reasonable time for any other reason not
arising from own default or neglect of the party leading secondary
evidence, and (c) the copy is the true copy of the original.
If these conditions or any one of them are or is not proved,
the secondary evidence cannot be admitted.
13. In the instant case, what has been done by the impugned
orders is only grant of permission to adduce secondary evidence. The
secondary evidence, which is a copy of photostat copy of the original
Will has not been admitted in evidence so far. For such secondary
evidence to be admitted, the party interested in adducing the secondary
evidence would have to satisfy the above referred conditions by leading
necessary evidence in that regard. So, the party would be required to be
given an opportunity to lead necessary evidence in order to satisfy the
Court about fulfilling of the necessary conditions so that the Will in
question can be admitted in evidence and marked as an exhibit. That
stage has not reached so far. As and when it reaches, the petitioners will
have all the opportunity to prove the respondent Nos.1 to 3 wrong or
satisfy the Court that the Will in question in fact does not exist and that it
has never been executed by late Smt. Sushila. Therefore, learned Joint
Civil Judge, Senior Division has rightly held that, by allowing the
application granting permission to adduce secondary evidence, no
prejudice would be caused to the rights of the petitioners. The
petitioners would certainly have a right to controvert the respondent
Nos.1 to 3 as well as respondent No.4 when they will say, subject to
necessary pleadings, that the original Will dated 6.11.1997 is in existence
and has been lost for the reasons not known to them. Therefore, failure
to record a clear cut finding regarding satisfaction of the Court about
existence or otherwise of the Will in question has not caused any
prejudice to the rights of the petitioners and in fact recording of such a
finding at this stage would have been premature. After all the parties are
required to be given full opportunity for proving their respective
contentions and this is what seems to be the import and effect of the
impugned orders. Then, giving of permission to adduce secondary
evidence by itself would not lead to an inference that secondary evidence
has been admitted. As stated earlier, for admitting the secondary
evidence the necessary conditions must be fulfilled and the stage of
fulfillment of those conditions or otherwise is yet to arrive and will arrive
when the parties stand before the Court for adducing necessary evidence.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR
WRIT PETITION No.5984 OF 2015
Smt. Sumati @ Asha w/o. Late Anil Subhedar,
V
Yashodhara w/o. Late Sunil Subhedar,
Aged adult,
CORAM : S.B. SHUKRE, J.
DATE : 16th SEPTEMBER, 2016.
Citation: 2016(6) ALLMR 507
