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Jagmail Singh vs Karamjit Singh - (Supreme Court) (13 May 2020)

Secondary evidence can be permitted to be produced where party establishes factual foundation


Law of Evidence

Present appeal is directed against the judgment passed by the High Court whereby the High Court confirmed the order passed by the Civil Judge in application filed under Section 65 and 66 of the Indian Evidence Act, 1872 by the Appellants herein seeking permission to prove the copy of the Will dated 24th January, 1989 executed by one Babu Singh in their favour by way of secondary evidence, as the original Will which was handed over to 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.

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, 1950. 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 Evidence 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 of Evidence Act, such person does not produce it. In such contingency, party concerned is entitled to prove the same by way of secondary evidence.

A perusal of Section 65 of Evidence Act, 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 of Evidence Act 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.

It is trite that under the Evidence Act, 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. Ramalingam, 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.

In present case, 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.

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 un-established on record and thereby denied an opportunity to the Appellants to produce secondary evidence. 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. 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.

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.


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