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

Must Read

Kerala High Court Rejects Writ Petition for Rejection of Loan Application

Case: Anvardeen. K v. Union of India. Coram: Justice P.V. Asha On 24th November 2020, The Kerala High Court involving a...

Supreme Court: Maritime Board Must Not Wallow in Inaction and Be Arbitrary in Its Contractual Duties

A Division Bench of the Supreme Court held that a State instrumentality such as the Maritime Board is expected...

Supreme Court: Right to Property Is a Constitutional Right, the Essence of Rule of Law Protects It

A Division Bench of the Supreme Court has held that permitting the State to assert indefinite right upon one’s...

Madras High Court Directs Tahsildar To Issue Origin Certificates To Two Sisters in Two Writ Petitions

Two Writ Petitions by two siblings was filed under Article 226 of the Indian Constitution. The petitions owed to...

Delhi High Court Directs Centre and Delhi Govt To Consider a PIL Seeking Paid Menstrual Leave as Representation

The Delhi High Court had provided direction to consider a petition as representation. The Central and Delhi governments were...

Follow us

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.


Libertatem.in 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.

LEAVE A REPLY

Please enter your comment!
Please enter your name here

This site uses Akismet to reduce spam. Learn how your comment data is processed.

Latest News

Supreme Court : High Courts Have Sole Authority Under Article 226 To Decide Validity of Tax Provision, Even if Matter Is Sub-Judice Before Income...

A Full Bench of the Supreme Court held that the validity of a provision is a serious matter which could only be decided by...

Kerala High Court Rejects Writ Petition for Rejection of Loan Application

Case: Anvardeen. K v. Union of India. Coram: Justice P.V. Asha On 24th November 2020, The Kerala High Court involving a single bench judge of the...

Supreme Court: Maritime Board Must Not Wallow in Inaction and Be Arbitrary in Its Contractual Duties

A Division Bench of the Supreme Court held that a State instrumentality such as the Maritime Board is expected to act without any arbitrariness...

Supreme Court: Right to Property Is a Constitutional Right, the Essence of Rule of Law Protects It

A Division Bench of the Supreme Court has held that permitting the State to assert indefinite right upon one’s property, without any legal sanction...

Madras High Court Directs Tahsildar To Issue Origin Certificates To Two Sisters in Two Writ Petitions

Two Writ Petitions by two siblings was filed under Article 226 of the Indian Constitution. The petitions owed to the fact that they were...

Delhi High Court Directs Centre and Delhi Govt To Consider a PIL Seeking Paid Menstrual Leave as Representation

The Delhi High Court had provided direction to consider a petition as representation. The Central and Delhi governments were directed to consider the same....

Madras High Court Reiterates That ‘Ignorance of Law’ Is Not an Excuse and Dismisses Petition by a Constable

A Constable committed bigamy and deserted his service for more than 21 days. After dismissal from his service, he moved to Tamil Nadu Administrative...

Transfer of Winding-up Proceedings Allowed Under S. 434, Restrictions Under 2016 Rules To Not Apply: Allahabad High Court

This appeal relates to the question of transfer of winding-up proceeding from the High Court (Company Court) to the NCLT.  Facts M/s. Girdhar Trading Company, 2nd...

Constitutional Court of South Africa Declares Provisions of Domestic Workers’ Injury Compensation Legislation To Be Unconstitutional

The Constitutional Court of South Africa in Sylvia Mahlangu v Minister of Labour , declared parts of the Compensation for Occupational Injuries and Diseases...

Bail Granted Under Section 167(2) CrPC Can Be Cancelled Under Section 439(2) CrPC: Supreme Court

The Supreme Court held that the right of default bail of the Accused can be cancelled under Section 439(2) of the Criminal Procedure Code. Facts...

More Articles Like This

- Advertisement -