Secondary Evidence Can Be Permitted if original Document cannot be produced (In a situation when the party Establishes Factual Foundation for the same )

 

 

Case ; Jagmail Singh & Anr. Versus Karamjit Singh & Ors.

Supreme Court Of India

Civil Appellate Jurisdiction

Civil Appeal No. 1889 Of 2020

(Arising Out Of Special Leave Petition (C) No. 17437 Of 2017 )

 

MAY 13, 2020

 

Facts of the case ;

Before Civil Judge (Junior Division) Moga;

       i.            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.

     ii.            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

 

  iii.            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.

 

    iv.            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.

      v.            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.

    vi.            . 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. on the ground that the said original Will was handed over by the appellants to revenue officials for sanctioning the mutation in their favour.

  vii.            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.

viii.            appellants further contended that existence of the original Will can only be proved during the course of arguments and not at the first instance

  ix.            High Court judgment dated 09.01.2017 while dismissing the application observed that as the pre-requisite condition existence of Will is not proved, the Will cannot be permitted

 Supreme Court on the issue

Section 65(a) of  the Evidence Act

a.       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,

b.      when document is out of reach of a person claiming person.

c.       Can be obtained through the process of the Court,

d.      Any person legally bound to produce it, and when, after the notice mentioned in Section 66, such person does not produce it.

e.        In such contingency, party concerned is entitled to prove the same by way of secondary evidence.

Facts on record reveal - 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 official

Law on the point when party in possession does not produce the document-

Rakesh Mohindra vs. Anita Beri and Ors

                      i.            that such original documents could not be produced by the party relying upon such documents in spite of best efforts

                    ii.            The party sought to produce secondary evidence must establish for the non-production of primary evidence

                  iii.            it is established that the original documents is lost or destroyed or is not  being deliberately withheld by the party requesting document to be used, secondary evidence

H. Siddiqui (dead) by LRs Vs. A. Ramalingam3 ,

        i.            where original documents are not produced without a plausible reason and factual foundation for laying secondary evidence not established it is not permissible

Evidences in the present case cross examination ;

Point to the existence, loss or destruction of the original 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.

·         Both the revenue officials failed to produces the original Will, neither of the officials has unequivocally denied the existence of the Will ,that this matter was 25 years old and he was no longer posted in that area and, therefore, could not trace the Will

·         , 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 Patwari for entering the mutation...”.

·         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.

 

Order –

·         Appellants would be entitled to lead secondary evidence in respect of the Will in question.

·         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.

MAY 13, 2020

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