Secondary evidence: permissibility in law suits
The
principles of evidence i.e primary evidence and secondary evidence is contained
in sections 65 and 66 of Indian Evidence Act 1872. In the Bhartiya Sakshya
Adhiniyam (BSA) 20234, the provisions correspond to sections 63 and 64. In the
course of trial, it has often been observed that the issues with regard to
filing of certified copy of the Will or such other documents often creeps in and
myriads of objections are raised, thereby, stalling the proceedings for inordinately
long periods for finding answers to the questions raised. The basic rule, however,
is that process of trial should not be allowed to be stalled for mere
technicalities and in case, the original documents are not available or in
possession and power of the petitioner for justifiable reasons, any impediments
caused in the way of producing secondary evidence is not the scheme of law. The
principle, moreover, as regards admissibility of documents, and whether the
same could be exhibited or not, shall have to be decided in the ultimate
analysis when the lis is finally and fully adjudicated. Even otherwise, even if
a document by way of a secondary evidence is exhibited, whether the same is as
per the trap of law laid down or not, all such issues could only be adjudicated
when the suit or a case is finally adjudicated and objection could be recorded
without seeking to stall the proceeding.
In
this context , it may be apt to have a reference to as Supreme Court judgment in
a matter reported as JAGMAIL SINGH & ANR. v. KARAMJIT SINGH &
ORS. [2020] 4 S.C.R. 1163. In
fact, the matter reached supreme court , after the Punjab & Haryana High
Court had confirmed the order passed by the civil Judge ( Junior division) in an
application under Section 65 and Section 66 of Indian Evidence Act, thereby permission
was sought for proving the copy of Will existing in their favour by way of
secondary evidence, since, it was claimed that original Will was handed over to
village patwari for the purpose of
mutation and 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, and a Will cannot be permitted to be approved by allowing the
secondary evidence.
To
appraise of the facts, a suit for declaration was filed to the effect that the
plaintiff were the owners to the extent of ½ share each of the land and the opposite
parties had laid their claim on the strength of a forged Will. The consequential
relief of permanent injunction to restrain the respondents from alienating,
transferring or mortgaging the suit property was also prayed for. It was during
the pendency of the suit, that, an application under Section 65/66 of the
Evidence Act was moved by the defendant 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.
A
civil revision was preferred against the order of trial court, whereby, the application
u/s 65/66 of Indian Evidence was allowed. The order of revisional court was
challenged before the high court. It was held by the Punjab & Haryana High
Court, 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”.
Accordingly,
another application under Section 65/66 of the Act was preferred before the
Trial Court for issuance of notice under Section 66 of the Act to the revenue
officials for production of original Will in question. The application was preferred
on the ground that the said original Will was handed over to the revenue
officials for sanctioning the mutation in their favour. Both the revenue
officials were issued notice for production of the original Will in question,
but they failed to produce the said Will. It was only, thereafter, that the application
was dismissed.
The
aforesaid order was impugned before the High Court, by way of a Revision
Petition under Article 227 of the Constitution of India. While contending that the
impugned order is not sustainable in the eyes of law, as it suffered from
patent errors of law and is against the letter & spirit of Sections 65
& 66 of the Evidence Act. Another
plea was raised that Section 65(a) of the Evidence Act permits 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, it was further
contended that a party to the lis is entitled to prove the same by way of
secondary evidence. Moreover, notice Section 66 of the Evidence Act had already
been served, 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 the
revenue officials. In this backdrop, it was pleaded 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.
The
high court in the order 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, were served
under Section 66 of the Act to produce original Will, 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
petition was thus dismissed, 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.
SECTION 65 & 66 OF IINDIAN EVIDENCE
ACT (IEA)
Sections
65 and 66 of the Act may be reproduced for ready reference:
“ 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 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 consist 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.”
A
bare perusal of Section 65 of Indian 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. Moreover, even when notice mentioned in
Section 66 is duly sent to such person and the document is still not produced. The
law is settled so far as secondary evidence is concerned and in order to permit
that, admitted foundational evidence has to be given, being the reasons as to
why the original Evidence has not been furnished.
LAW
(1)
The Supreme Court in Ashok Dulichand Vs. Madahavlal Dube and Anr.
[1976] 1 SCR 246 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.”
(2)
In yet another judgment of Supreme Court, reported as Rakesh Mohindra vs.
Anita Beri and Ors (2016) 16 SCC 483 it is 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.”
(3) In JAGMAIL SINGH(Supra)
it is held as under:
“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. Ramalingam [2011 (4) SCC 240] 1171, 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 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.”
Therefore,
in JAGMAIL SINGH(Supra) the Supreme Court has held that on the facts of the
case it is clear that the factual foundation to establish the right to give
secondary evidence was laid down by the appellants and therefore, the High
Court, ought to have given the appellant an opportunity to lead secondary
evidence. It was further held that the High Court committed grave error
of law in as much as without properly evaluating the evidence it was held that the
pre-requisite condition i.e., existence of Will remained unestablished on
record. In effect that amounted to denial of an opportunity to the appellant to
produce secondary evidence. No doubt, 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.
It
was therefore held that impugned judgment of the High Court cannot be sustained
as it suffered from material irregularity and patent errors of law. The
appellant was permitted to lead secondary evidence in respect of the Will in
question. However, it was clarified that such admission of secondary evidence,
automatically, does not attest to its authenticity, truthfulness or genuineness
and that will have to be established during the course of trial in accordance
with law.
(4) In
a case before the M.P High Court reported as Rambha Bai & Ors. Vs. Nanibai
& Ors. M.P. No.5511/2019, the petitioners had filed a Civil Suit for
declaration as well as permanent injunction. The respondents have filed their
written statements. That, as the suit was based on a “Will” and there was some overwriting
in the said “Will”, therefore, the petitioners have filed an application for
calling of the record from the Registrar Office for verifying the same.
However, the Court below after hearing both the parties has rejected the said application.
Being aggrieved by that order, the petitioner has filed the present petition.
(5)
The Division Bench of M.P High Court in Smt. Rekha Rana & Ors. Vs. Smt.
Ratnashree Jain AIR 2006 M.P. 107 in the context of application under Order
13 Rule 10 of CPC has held as under :-
“A sale deed (or any other deed
of conveyance) when presented for registration under the Registration Act, is
not retained or kept in any public office of a State after registration, but is
returned to the person who presented such document for registration, on
completion of the process of registration, An original registered document Is
not therefore a public record kept in a state of a private document,
Consequently, a deed of sale or other registered document will not fall under
either of the two classes of documents described in Section 74, as 'public
documents'. Any document which is not a public document is a private document.
We therefore have no hesitation in holding that a registered sale deed (or any
other registered document) is not a public document but a private document.
(i) Production and Marking of a
certified copy as secondary evidence of a public document under Section 65(e)
need not be preceded by laying of any foundation for acceptance of secondary
evidence. This is the position even in regard to certified copies of entries in
Book I under Registration Act relation to a private document copied therein.
(ii) Production and marking of a
certified copy as secondary evidence of a private document (either a registered
document like a sale deed or any unregistered document) is permissible only
after laying the foundation for acceptance of secondary evidence under Clause
(a), (b) or (c) of Section 65.
(iii) Production and marking of
an original or certified copy of a document does not dispense with the need for
proof of execution of the document. Execution has to be proved in a manner
known to law (Section 67 and 68 and ensuing sections in chapter V of Evidence
Act).
Thus,
the “Will” being not a public document and is private document, the record of
the same could not be produced before the Court below, therefore, application filed
by the petitioners under Order 13 Rule 10 of C.P.C. in Rambha Bai (Supra)
was allowed.
------
Anil K
Khaware
Founder & Senior Associate
Societylawandjustice.com
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