Law Web: 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

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;

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.”