JAGMAIL SINGH & ANR. versus KARAMJIT SINGH & ORS.
[2020] 4 S.C.R. 1163, Supreme Court of India, 2020
Outcome: Appeal(s) allowed (Granted)
Segment: Ratio
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JAGMAIL SINGH & ANR.
v.
KARAMJIT SINGH & ORS.
(Civil Appeal No. 1889 of 2020)
MAY 13, 2020
[NAVIN SINHA AND KRISHNA MURARI, JJ.]
Evidence Act, 1872 – ss.65 and 66 – Entitlement to lead
secondary evidence in respect of a document – Appellant filed suit
for declaration of title in respect of land and for declaration that
the mutations sanctioned by Assistant Collector in favour of
pre-decessors-in-interest of respondent 1 to 3 were illegal, null and
void – During pendency of suit, appellant filed  application under
ss. 65/66 seeking permission to prove copy of Will by way of
secondary evidence – Trial court allowed the application –
However, High Court set aside order of trial court holding that
appellant ought to have given notice to revenue officials under s.66
for producing original will as claimed – Thereupon appellants filed
application u/s.66 – The revenue officials were issued notice for
production of original Will but they failed to produce the Will –
The said application was dismissed by trial court – Appellants
unsuccessfully filed revision petition u/Art.227 before High Court
– Hence instant appeal – Held: In terms of s.65, 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 s.66 such person
does not produce it – It is trite that under the Evidence Act, 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 at hand, while both the revenue
officials failed to produce the original Will, their cross-examination
showed that neither of the officials unequivocally  denied  the
existence  of  the  Will – Furthermore, the evidence of existence of
Will was established from examination of scribe of the Will in
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question – Thus, the factual foundation to establish the right to
give secondary evidence was laid down by the appellants and High
Court ought to have given them an opportunity to lead secondary
evidence – High Court committed grave error of law without
properly evaluating the evidence and holding that the pre-requisite
condition i.e., existence of Will remained unestablished on record
and thereby denied an opportunity to the appellants to produce
secondary evidence – Appellants would be entitled to lead
secondary evidence in respect of the Will in question.
Allowing the appeal, the Court
HELD:   The Patwari  during his cross-examination stated
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 PW-3 for
entering the mutation...”.  Furthermore, the prima facie evidence
of existence of the Will is established from the examination of
PW-1,  who is the scribe of the Will in question.  The High Court
committed grave error of law without properly evaluating the
evidence and holding that the pre-requisite condition i.e.,
existence of Will remained unestablished on record
and thereby
denied an opportunity to the appellants to produce secondary
evidence.   The appellants would be entitled to lead secondary
evidence in respect of the Will in question. [Paras 15, 16, 18,
19] [1171-D-E-G; 1172-C]
Ashok Dulichand v. Madahavlal Dube and Anr. [1976]
1 SCR 246 ; Rakesh Mohindra v. Anita Beri and Ors.
(2016) 16 SCC 483 : [2015] 13 SCR 1158 ; H.
Siddiqui (dead) by LRs v. A. Ramalingam (2011) 4 SCC
240 : [2011] 5 SCR 587 – referred to.
Case Law Reference
[1976] 1 SCR 246
referred to
Para 12
[2015] 13 SCR 1158
referred to
Para 13
[2011] 5 SCR 587
referred to
Para 14
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CIVIL APPELLATE JURISDICTION : Civil Appeal No. 1889
of 2020.
From the Judgment and Order dated 09.01.2017 of the High
Court of Punjab and Haryana at Chandigarh in Civil Revision No. 7271
of 2015.
R. Anand Padmanabhan, Aravind, C., Devarathi, Shashi Bhushan
Kumar, Advs. for the Appellants.
Gaurav, Adv. for the Respondents.
The Judgment of the Court was delivered by
KRISHNA MURARI, J.
1. This appeal is directed against the judgment dated 09.01.2017
passed by the High Court of Punjab and Haryana at Chandigarh in Civil
Revision No. 7271 of 2015 whereby the High Court confirmed the order
passed by the Civil Judge (Junior Division) Moga in 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. The High Court while
dismissing the application observed that as the pre-requisite condition
of existence of Will is not proved, the Will cannot be permitted to be
approved by allowing the secondary evidence.
2. Briefly stated the facts of the case are that the appellants
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
and 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.  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.
JAGMAIL SINGH & ANR. v. KARAMJIT SINGH & ORS.
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3. 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.
4. Feeling aggrieved by the said order, respondents preferred Civil
Revision No.4645 of 2014 which was allowed by the High Court by
observing 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”.
5. 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. The application was made on the
ground that the said original Will was handed over by the appellants to
revenue officials for sanctioning the mutation in their favour. 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.  It was only
thereafter, application was dismissed vide order dated 30.09.2015.
6. Aggrieved by the above order, the appellants approached the
High Court by way of a Revision Petition under Article 227 of the
Constitution of India.
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7. Learned counsel for the appellants contended that the
impugned order is not sustainable in the eyes of law as it suffers from
patent errors of law and is against the letter & spirit of Sections 65 &
66 of the Evidence Act. It is further pointed out that Section 65(a) of
the Act 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, 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, party concerned is
entitled to prove the same by way of secondary evidence.  It is submitted
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 officials.
8. Learned counsel for the appellants further contended 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.
9. The High Court vide impugned order dated 09.01.2017
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, namely,
Pyare Lal and Rakesh Kumar, Patwaries, were served under Section
66 of the Act to produce original Will dated 24.01.1989 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 High Court did not find any merit in the Revision Petition and
dismissed the same 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.
JAGMAIL SINGH & ANR. v. KARAMJIT SINGH & ORS.
[KRISHNA MURARI, J.]
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10. For proper appraisal of the matter in controversy, it would
be appropriate  to reproduce Sections 65 and 66 of the Act which read
as under :-
“ 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 consists 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.
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- 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.”
JAGMAIL SINGH & ANR. v. KARAMJIT SINGH & ORS.
[KRISHNA MURARI, J.]
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11. A perusal of Section 65 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, and when,
after notice mentioned in Section 66 such person does not produce it.
It is a 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.
12. The issue arising out of somewhat similar facts and
circumstances has been considered by this Court in Ashok Dulichand
Vs. Madahavlal Dube and Anr.1, 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.”
13. In the matter of Rakesh Mohindra vs. Anita Beri and Ors.2
this Court has 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.”
1 [1976] 1 SCR 246
2 (2016) 16 SCC 483
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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. Ramalingam3, 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.”
16. In view of the aforesaid factual situation prevailing in the case
at hand, it is clear that the factual foundation to establish the right to
give secondary evidence was laid down by the appellants and thus the
High Court ought to have given them an opportunity to lead secondary
evidence. The High Court committed grave error of law without properly
evaluating the evidence and holding that the pre-requisite condition i.e.,
existence of Will remained unestablished on record and thereby denied
an opportunity to the appellants to produce secondary evidence.
3 [2011 (4) SCC 240]
JAGMAIL SINGH & ANR. v. KARAMJIT SINGH & ORS.
[KRISHNA MURARI, J.]
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17. Needless to observe that 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.
18. In view of the aforesaid legal and factual position, we are of
the considered opinion that the impugned judgment of the High Court
suffers from material irregularity and patent errors of law and not liable
to be sustained and is thus, hereby set aside.  The appeal  accordingly
stands allowed.
19. The appellants would be entitled to lead secondary evidence
in respect of the Will in question.  It is, however, clarified that 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.
20. In the facts and circumstances, we do not make any order
as to costs.
Devika Gujral
Appeal allowed.