evidence adduced by the appellant for the purpose of
admission of the secondary evidence, we are of the view that
all efforts have been taken for the purpose of leading
secondary evidence. The trial court has noticed that the
photocopy of the Exhibit DW-2/B came from the custody of
DEO Ambala and the witness, who brought the record, has
been examined as witness. In that view of the matter, there is
compliance of the provisions of Section 65 of the Evidence Act.
Merely because the signatures in some of the documents were
not legible and visible that cannot be a ground to reject the
secondary evidence. In our view, the trial court correctly
appreciated the efforts taken by the appellant for the purpose
of leading secondary evidence.
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 13361 OF 2015
(Arising out of SLP (C) No. 29621 of 2014)
Rakesh Mohindra
v
Anita Beri and others
Dated;November 06, 2015
2. This appeal by special leave is directed against order
dated 2.9.2014 passed by learned Single Judge of the High
Court of Himachal Pradesh who set aside the order rendered
by the trial court permitting the defendant-appellant to lead
secondary evidence in the Civil Suit filed by respondent no.1.
3. The short question that arises for consideration by this
Court is as to whether the High Court is justified in reversing
the order passed by the Trial Court allowing the
defendant-appellant to lead secondary evidence of the contents
of the documents.
4. The facts of the case lie in a narrow compass.
5. The respondents-plaintiffs have filed a suit under
Sections 34 and 38 of the Specific Relief Act, 1963 for
declaration that the appellant-defendant has no right, title or
interest over the suit property in any manner and plaintiffs are
in possession of the same. Consequently, defendant be
restrained from causing any type of loss, injury and doing any
such act which may in any manner, cause prejudice to the
user, possession and title of the plaintiff qua the suit property.
6. The subject matter of the suit is part of the land defined
as Survey No. 41, Kasauli Cantt. Tehsil Kasauli and
structures/buildings more specifically known as “Dharma
Prakash, Homestead”. One late Sh. Duni Chand Advocate was
owner in possession of land comprised in Survey No. 41,
measuring 2.31 acres described as “Kildare Estate” Homestead
Dharma Prakash. Late Sh. Duni Chand, during his life time
executed a gift deed with regard to the property owned by him
which was registered as deed No. 2 with Sub Registrar,
Kasauli. He gifted his properties to his son Justice late Sh. Tek
Chand. Justice late Sh. Tek Chand became
owner-in-possession of the suit property. Justice late Sh. Tek
Chand expired on 16.6.1996 leaving behind two daughters
Smt. Anila Sood and Smt. Anita Beri and one son Sh. Vikram
Dhanda. Justice late Sh. Tek Chand during his life time
executed a legal and valid ‘will’ in favour of plaintiff No. 2,
Smt. Anita Beri, which was duly registered with Sub Registrar
Chandigarh, as deed No. 410 dated 19.6.1984. The mother of
defendant was step sister of Justice late Sh. Tek Chand. He
was using portion of house known as ‘Homestead’ with the
permission of plaintiff No. 2, namely, Smt. Anita Beri. She
came to know that defendant was misusing the license and
3Page 4
raised some illegal construction in the shape of platform, so as
to use the same for the purpose of car parking.
7. According to the plaintiff, defendant has no right, title or
interest over the suit property and as such could not change
the nature of the same. A legal notice was issued on
5.11.2006. Reply was sent by the defendant to the same. The
defendant has also started causing obstruction to the path
which leads from circular road to ‘Homestead cottage’ and
‘Homestead building’. Plaintiff No. 2 has requested the
defendant not to lock the gate. However, the lock on the gate
has been put to cause temporary obstruction, hindrance and
prejudice to the user of the suit property by plaintiff No. 2.
8. On the other hand, the defendant-appellant’s case is that
they have inherited the property from Smt. Vijaya Kumari who
became the owner of the suit property on the basis of the gift
deed dated 19.03.1965. Appellant’s further case is that Justice
Tek Chand had issued a letter of disclaimer dated 24.08.1982.
4Page 5
According to the appellant, the said letter of disclaimer was
handed over by Justice Tek Chand to his sister Smt. Vijaya
Kumari who in turn handed over to the appellant. On the
basis of letter of disclaimer, the appellant vide letter dated
21.07.2001 requested the authority, namely, Defence Estate
Officer (DEO), Ambala Cantt for effecting mutation of the
property in his name.
9. On these backgrounds, the defendant filed an application
in the Trial Court under Section 65 of the Evidence Act
seeking permission to prove the letter of disclaimer executed
by Justice Tek Chand by way of secondary evidence. For that
purpose, the defendant summoned the record of GLR from the
office of DEO, Ambala who is said to be the custodian of the
record. According to the appellant, at the time of sanction of
mutation with respect to the suit property, the appellant had
filed the original affidavits of the co-sharers along with the
letter of disclaimer executed by Justice Tek Chand with one
Photostat set lying in the office of DEO, Ambala.
5Page 6
10. For the purpose of deciding the application under Section
65 of the Evidence Act, the appellant examined the concerned
official to produce the record available in the said office. On
the basis of the evidence given by the witness, who produced
the record and the evidence of defendant, the Trial Court
allowed the application and admitted the letter of disclaimer to
be used as secondary evidence.
11. As averred in the application, the defendant has
summoned the record of General Land Register from the Office
of D.E.O. Ambala, who is the custodian of the record. It is
defendant’s case that at the time of sanction of the mutation
with regard to the suit property he had filed the original
affidavits of the co-sharers including affidavits and original
letter of disclaimer of late Justice Sh. Tek Chand with one
Photostat set of the same in the office of D.E.O. Ambala. On
the basis of the original letter of disclaimer and affidavits,
6Page 7
mutation of the suit property was sanctioned in favour of the
deponent. The concerned official produced the original record
in the Court on 4.7.2013 except the letter of disclaimer
executed by late Justice Sh. Tek Chand on 24.8.1982, in
favour of Sh. Harish Chandra Dhanda and Smt. Vijaya
Kumari, the mother of the applicant. The original disclaimer
letter is supposed to be in the said office but the concerned
official made statement on oath in the Court that the original
is not in their office and their office has Photostat copy of the
original, and therefore, he produced the Photostat copy of the
letter. According to the defendant, despite his efforts, the
original of DW-2/B was not traceable and has been
misplaced/lost from the Office of D.E.O. Ambala. In reply to
the application, it was denied that the letter of disclaimer ever
existed or Photostat of the same was ever made. It has been
pleaded that late Justice Sh. Tek Chand never executed
disclaimer letter and the Photostat copy was a forged one.
7Page 8
12. Allowing the application of the defendant and granting
leave of the court to lead secondary evidence qua document
Ext.DW-2/B, trial court observed that:
“The photocopy Ext.DW-2/B has come from the
custody of DEO Ambala and the applicant has
been able to comply with the provision of Section
65 of the Indian Evidence Act as it has come in
evidence that the original document i.e. letter of
disclaimer Ext.DW-2/B was handed over by the
applicant to DEO Ambala. In view of the
aforesaid this court is satisfied that the original
document stands misplaced and the applicant is
allowed to lead secondary evidence with respect
to the document Ext.DW-2/B as enviasaged
under Section 65(c) of the Indian Evidence Act
and both these issues are decided in favour of
the applicants and against the respondents.”
13. Learned Single Judge of the High Court in the civil
revision preferred by the plaintiff-respondent no.1 set aside
the aforesaid order of the trial court.
14. Hence, this appeal by special leave by the defendant.
15. As a general rule, documents are proved by leading
primary evidence. Section 64 of the Evidence Act provides
8Page 9
that documents must be proved by the primary evidence
except in cases mention in Section 65 of the Evidence Act. In
the absence of primary evidence, documents can be proved by
secondary evidence as contemplated under Section 63 of the
Act which reads as under: -
“Secondary evidence means and includes—
(1) certified copies given under the provisions
hereinafter contained;
(2) Copies made from the original by mechanical
processes which in themselves ensure the
accuracy of the copy, and copies compared with
such copies.
(3) copies made from or compared with the
original ;
(4) counterparts of documents as against the
parties who did not execute them;
(5) oral accounts of the contents of a documents
given by some person who has himself seen it.
Illustration:
(a) A photograph of an original is secondary
evidence of its contents, though the two have not
been compared, if it is proved that the thing
photographed was the original.
(b) A copy compared with a copy of a letter made
by a copying machine is secondary evidence of
the contents of the letter, if it is shown that the
copy made by the copying machine was made
from the original.
(c) A copy transcribed from a copy, but
afterwards compared with the original, is
secondary evidence; but he copy not so
compared is not secondary evidence of the
original, although the copy from which it was
transcribed was compared with the original.
(d) Neither an oral account of a copy compared
with the original, nor an oral account of a
9Page 10
photograph or machine copy of the original, is
secondary evidence of the original.”
16. Section 65 of the Act deals with the circumstances under
which secondary evidence relating to documents may be given
to prove the existence, condition or contents of the documents.
For better appreciation Section 65 of the Act is quoted herein
below:-
“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 public document within
the meaning of section 74;
10Page 11
(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 40[India] to be given in
evidence ;
(g) when the originals consist of numerous
accounts or other documents which cannot
conveniently be examined in court and the fact
to be proved it 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, 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.”
17. The pre-conditions for leading secondary evidence are
that such original documents could not be produced by the
party relied 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
11Page 12
respect of that document sought to be used, secondary
evidence in respect of that document cannot accepted.
18. The High Court in the impugned order noted the
following :-
“9. There is no averment about Ext. DW-2/B in
the Written Statement. The Written Statement
was filed on 19.2.2007. DW-2/B infact is only a
photocopy. The plaintiffs are claiming the
property on the basis of a registered will deed
executed in her favour in the year 1984. It was
necessary for the defendant to prove that in
what manner the document dated 24.8.1982
was executed. The defendant while appearing as
AW-1 has admitted in his cross-examination
that except in his affidavit Ext. AW-1/A, he has
not mentioned in any document that the letter of
disclaimer was executed by Justice late Sh. Tek
Chand in his presence. The statement of DW-2
does not prove that Ext. DW-2/A, ever existed.
DW-2 Sh. Gurcharan Singh, has categorically
admitted in his cross-examination that he has
not brought the original of Ext. DW- 2/B. He has
also admitted that on Ext. DW-2/B, the
signatures of P.C. Danda were not legible.
Volunteered that, those were not visible. The
learned trial Court has completely misread the
oral as well as the documentary evidence, while
allowing the application under Section 65 of the
Indian Evidence Act, 1872, more particularly,
the statements of DW-2 Gurcharan Singh and
DW-3 Deepak Narang. The applicant has
miserably failed to comply with the provisions of
Section 65 of the Indian Evidence Act, 1872. The
learned trial Court has erred by coming to the
12Page 13
conclusion that the applicant has taken
sufficient steps to produce document Ext. DW-
2/B.”
19. The High Court, following the ratio decided by this Court
in the case of J. Yashoda vs. Smt. K. Shobha Rani, AIR
2007 SC 1721 and H. Siddiqui (dead) by lrs. vs. A.
Ramalingam, AIR 2011 SC 1492, came to the conclusion that
the defendant failed to prove the existence and execution of
the original documents and also failed to prove that he has
ever handed over the original of the disclaimer letter dated
24.8.1982 to the authorities. Hence, the High Court is of the
view that no case is made out for adducing the secondary
evidence.
20. The witness DW-2, who is working as UDC in the office
of DEO, Ambala produced the original GLR register. He has
produced four sheets of paper including a photo copy of letter
of disclaimer. He has stated that the original documents
remained in the custody of DEO. In cross-examination, his
deposition is reproduced hereinbelow:-
13Page 14
“xxxxxxxx by Sh. M.S. Chandel, Advocate for the
plaintiff No.2.
I have not brought the complete file along with
the record. I have only brought those
documents which were summoned after taking
up the documents from the file. As on today, as
per the GLR, Ex.DW-2/A, the name of Rakesh
Mohindra is not there. His name was deleted
vide order dated 29.8.2011. I have not brought
the original of Ex.DW-2/B. It is correct that
Ex.DW-2/D does not bear the signatures of Sh.
P.C. Dhanda. Volunteered.: These are not
legible. Ex.DW-2/C is signed but the signatures
are not leible. On the said document the
signatures of the attesting officer are not legible
because the document became wet. I cannot
say whose signatures are there on these
documents. On Ex.DW-2/E the signatures at
the place deponent also appears to have become
illegible because of water. Ex.DW-2/F also bears
the faded signatures and only Tek Chand is
legible on the last page. It is incorrect to suggest
that the last page does not have the signatures
of the attesting authority. Volunteered: These
are faded, but not legible. The stamp on the last
paper is also not legible. There is no stamp on
the first and second page. In our account, there
is no family settlement, but only
acknowledgement of family settlement. I do not
know how many brothers Rakesh Mohindra has.
It is correct that the original of Ex.DW-2/H does
not bear the signatures of Sh. Abhay Kumar. I
do not know whether Sh. Abhay Kumar Sud and
Rakesh Mohindra are real brothers. The above
mentioned documents were neither executed nor
prepared in my presence. It is incorrect to
suggest that the above mentioned documents
are forged. It is incorrect to suggest that
because of this reason I have not brought the
complete file.”
14Page 15
21. In the case of Rai Baijnath (dead) by Kedarnath
Goenka vs.Maharaja Sir pavaneshwar Prasad Singh, AIR
1922 Privy Council page 54, a similar question came for
consideration as to the admissibility of secondary evidence in
case of loss of primary evidence. Lord Phillimore in the
judgment observed:-
“ It is, no doubt, not very likely that such a deed
would be lost, but in ordinary cases, if the
witness in whose custody the deed should be,
deposed to its loss, unless there is some motive
suggested for his being untruthful, his evidence
would be accepted as sufficient to let in
secondary evidence of the deed.”
22. It is well settled that if a party wishes to lead secondary
evidence, the Court is obliged to examine the probative value
of the document produced in the Court or their contents and
decide the question of admissibility of a document in
secondary evidence. At the same time, the party has to lay
down the factual foundation to establish the right to give
secondary evidence where the original document cannot be
produced. It is equally well settled that neither mere
15Page 16
admission of a document in evidence amounts to its proof nor
mere making of an exhibit of a document dispense with its
proof, which is otherwise required to be done in accordance
with law.
23. In the case of M. Chandra vs. M. Thangamuthu, (2010)
9 SCC 712, this Court considered the requirement of Section
65 of the Evidence Act and held as under:-
“47. We do not agree with the reasoning of the
High Court. It is true that a party who wishes to
rely upon the contents of a document must
adduce primary evidence of the contents, and
only in the exceptional cases will secondary
evidence be admissible. However, if secondary
evidence is admissible, it may be adduced in any
form in which it may be available, whether by
production of a copy, duplicate copy of a copy, by
oral evidence of the contents or in another form.
The secondary evidence must be authenticated
by foundational evidence that the alleged copy is
in fact a true copy of the original. It should be
emphasised that the exceptions to the rule
requiring primary evidence are designed to
provide relief in a case where a party is genuinely
unable to produce the original through no fault of
that party.”
24. After considering the entire facts of the case and the
evidence adduced by the appellant for the purpose of
admission of the secondary evidence, we are of the view that
all efforts have been taken for the purpose of leading
secondary evidence. The trial court has noticed that the
photocopy of the Exhibit DW-2/B came from the custody of
DEO Ambala and the witness, who brought the record, has
been examined as witness. In that view of the matter, there is
compliance of the provisions of Section 65 of the Evidence Act.
Merely because the signatures in some of the documents were
not legible and visible that cannot be a ground to reject the
secondary evidence. In our view, the trial court correctly
appreciated the efforts taken by the appellant for the purpose
of leading secondary evidence.
25. For the reasons aforesaid, the impugned order passed by
the High Court cannot be sustained in law. The appeal is
accordingly allowed and the order passed by the High Court is
set aside.
26. However, we make it clear that mere admission of
secondary evidence, does not amount to its proof. The
genuineness, correctness and existence of the document shall
have to be established during the trial and the trial court shall
record the reasons before relying on those secondary
evidences.
…………………………….J.
(M.Y. Eqbal)
…………………………….J.
(C. Nagappan)
New Delhi
November 06C, 2015
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