In the judgment of the case- Jagmail Singh & Another v. Karamjit Singh & Others, delivered on May 13, 2020, a division bench of the Supreme Court consisting of Justice Navin Sinha and Justice Krishna Murari have held that in view of the factual situation prevailing in this case, it is clear that factual foundation to establish that the right to give secondary evidence was laid down by the appellants and thus the Punjab &Haryana High Court ought to have given them an opportunity to lead secondary evidence.
According to the Supreme Court, the said HC at Chandigarh committed grave error of law without properly evaluating the evidence and holding that the pre-requisite condition that is, existence of Will remained unestablished on record and thereby denied an opportunity to the appellants to produce secondary evidence.
Needless to observe that merely the admission in evidence and making an exhibit of a document does not prove it automatically unless the same has been proved in terms of and in accordance with the law.
A perusal of Section 65 of the evidence Act makes it clear that secondary evidence may be given with regard to existence, condition or contents of a document when the original is shown or appears to be in possession of 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 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.
The issue arising out of somewhat similar facts and circumstances has been considered by the Supreme Court in its judgment –Ashok Dulichand v. Madhavlal Dube and Another –(1976) 1 SCR 246 and it was held:
"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 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."
In the judgment of the case – Rakesh Mohindra v. Anita Beri and Others- (2016) 16 SCC 483- the Supreme Court has observed:
"15. The preconditions for leading secondary evidence are that such original documents could not be produced by the party relying upon such documents inspite 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 (be) accepted.”
It is trite that under the Evidence Act, 1872, facts have to be established by primary evidence and secondary evidence is only 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 v. A. Ramlingam- (2011) 4 SCC 240, the Supreme Court has 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 the 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 produce 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. Prosecution Witness -3 Rakesh Kumar has stated during 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 admitted that ”there was registered Will which was entered. There was a Kachchi (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 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."
The appeal in this case was directed against the judgment delivered by the Punjab & Haryana HC at Chandigarh on January 9, 2017 in the civil revision 7271/2015 whereby the HC confirmed the order passed by the Civil Judge, Junior Division, Moga in the application filed under sections 65 and 66 of the Indian Evidence Act by the appellants herein, seeking permission to prove the copy of the Will of January 24, 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 traced. The HC while dismissing the application had observed that as the pre-requisite condition of existence of the Will is not proved, the Will cannot be permitted to be proved by allowing the secondary evidence.
In view of the legal and factual position, the Supreme Court has stated that it is of the considered opinion that the impugned judgment of the HC suffers from material irregularity and patent errors of law and not liable to be sustained and is thus, hereby set aside and the appeal stands allowed.
The Apex-Court has declared that the appellants are entitled to lead secondary evidence in respect of the Will in question, but however, such admission of secondary evidence automatically does not attest to its authenticity, truthfulness or genuineness, which will have to be established during the trial, in accordance with law.
