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Supreme Court: 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

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The Supreme Court overruled the orders by the lower court in a matter of Section 65 and 66 of the Indian Evidence Act, 1872.  The lower court dismissed the application for proving the will by way of secondary evidence. This was an improper dismissal.

Facts of the case

The appellants preferred a suit for a declaration that they are the owners to the extent of ½ share the land owned by Babu Singh. During the pendency of the suit, the Appellants moved an application under section 65/66 of the Evidence Act.  They sought permission to prove the will by way of secondary evidence as the original will was not accessible. The trial court allowed the said application.

Aggrieved by this order, the respondents preferred civil revision. The High Court allowed this. They asked the appellants to first move an application under Section 66 of the Act to the revenue official, the receiver of the will. In case of denial on their part about the lost will, the appellants could maintain the application for secondary evidence.

Based on the High Court directions, the appellants moved an application for issuance of notice under Section 66 of the Act to the revenue officials asking them to produce the original will. Both the revenue officials failed to produce the said will. The Appellants then filed an application to prove the will by secondary evidence. The trial court dismissed this even though the appellants followed the procedure directed by the High Court.

The appellants approached the High Court against the dismissal of their application. This was by way of a Revision Petition under Article 227 of the Constitution of India.  The High Court did not find any merit in the Revision Petition and dismissed the same. It upheld the decision of the lower court. On the ground, that pre-requisite condition for admission of secondary evidence remained unestablished. Thus, the Appellants have filed the present appeal in the Supreme Court.

Observation of the Court

The Supreme Court after perusing the Section 65 of the Act stated the following:

“…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…”

The court expressed the settled position of law for the admission of secondary evidence. The foundational evidence has to be given about why the original Evidence was not furnished in the first place.

Arguments before the Court

The learned counsel for the appellants contended that it is not the requirement of law that the will should be proved at the first instance. The existence of the original will can also be proved during the course of arguments.

The courts said that it is imperative to appreciate the evidence of the witnesses. Only after scrutinizing the same, an opinion can about the existence of the original will should form. The court in the present matter noted that while both the revenue officials failed to produce the original will, upon cross-examination neither of the officials denied the existence of the will.

The Court also observed that two of the witnesses said that they are sure of the existence of the Will. One of the witnesses being the scribe said that the will also bear his signature. The court considered the statements by the witness as a factual foundation for the secondary evidence.

The Supreme Court condemned the judgment passed by the High Court and the trial court. The court held that they committed a grave error of law as they failed to check the evidence. They thereby denied a rightful opportunity to the appellants to produce secondary evidence.

The Court also opined that mere admission and exhibition of a document in evidence does not prove it unless the law approves the same.

Court’s Decision

The two-judge bench of the Supreme Court permitted the appeal. It comprised of Justice Navin Sinha and Justice Krishna Murari. They held the appellants entitled to lead secondary evidence in respect of the will as evidence proved its existence.

The Court also pointed out that such admission of secondary evidence does not attest to its authenticity. Establishing it during the course of the trial is crucial. The Court set aside the order of the High Court and passed no order about costs. is now on Telegram. Follow us for regular legal updates and judgements from the court. Follow us on Google News, InstagramLinkedInFacebook & Twitter. You can also subscribe for our Weekly Email Updates. You can also contribute stories like this and help us spread awareness for a better society. Submit Your Post Now.

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