RAKESH MOHINDRA versus ANITA BERI AND OTHERS
[2015] 13 S.C.R. 1158, Supreme Court of India, 2015
Outcome: Appeal(s) allowed (Granted)
Segment: Facts
A 
B 
[2015] 13 S.C.R. 1158 
RAKESH MOHINDRA 
v. 
ANITA BERi AND OTHERS 
(Civil Appeal No. 13361 of 2015) 
NOVEMBER 06, 2015 
[M. Y. EQBAL AND C. NAGAPPAN, JJ.] 
Evidence Act, 1872 - ss. 63, 65 - Leading of secondary 
c evidence - Admissibility of documents - On facts, order 
passed by the trial court allowing appellant to lead secondary 
evidence of the contents of the documents - Said order set 
aside by High Court -
Sustainability of -
Held: Not 
sustainable - All efforts were taken for purpose of leading 
D secondary evide_nce - Trial court noticed that the photocopy 
of the document came from the custody of DEO and the 
witness, who brought the record, was examined as witness-
There was compliance of the provisions of s. 65 - Merely 
because the signatures in some of the documents were not 
E 
legible and visible that cannot be a ground to· reject the 
secondary evidence - Thus, the order passed by the High 
Court set aside. 
F 
Allowing the appeal, the Court 
HELD: 1.1 The pre-conditions for leading 
secondary evidence are that such original documents 
could not be produced by the party relied upon such 
documents in spite of best efforts, unable to produce 
G 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 
H in respect of that document sought to
be used, 
1158
RAKESH MOHINDRA v. ANITA BERi AND OTHERS 
1159 
secondary evidence in respect of that document cannot A 
accepted. If a party wishes to lead secondary evidence, 
the Court is obliged to examine the probative value of 
the document produced in the Court or their contents 
and decide the question of admissibility of a document 
in secondary evidence. Mere admission of secondary B 
evidence, does not amount to its proof. The genuineness, 
correctness and existence of the document shall have 
to be established during the trial and the trial court shall 
record the reasons before relying on those secondary 
evidences. [Paras 17, 22, 26] [1167-C-E; 1170-D; 1171-G] C 
1.2 All efforts have been taken for the purpose of 
leading secondary evidence. The trial court noticed that 
the photocopy of the·document came from the custody 
of DEO Ambala and the witness, who brought the record, D 
·was examined as witness. In that view of the matter, there 
is compliance of the provisions of Section 65 of the 
Evidence Act. Merely because the signatures in some of 
the documents were not legible and visible that cannot 
be a ground to reject the secondary evidence. The trial E 
court correctly appreciated the efforts taken by the 
appellant for the purpose of leading secondary evidence. 
The impugned order passed by the High Court cannot 
be sustained in law and is set aside. [Paras 24, 25] [1171-
F 
C-F] 
J. Yashoda vs. Smt. K. Shobha Rani AIR 2007 
SC 1721 : 2007 (5) SCR 367; H. Siddiqui
(dead) 
by LRs. v. A. Ramalingam AIR 2011 SC 1492 : 
2011 (5) SCR 587; Rai Baijnath (D.ead) by 
G 
Kedarnath Goenka v. Maharaja Sir pavaneshwar 
Prasad Singh AIR 1922 Privy Council 54; 
M. Chandra v. M. Thangamuthu (2010) 9 SCC 
712: 2010 (11) SCR 38 - referred to. 
H
1160 
A 
B 
SUPREME COURT REPORTS 
[2015] 13 S.C.R. 
Case Law Reference 
[2007] 5 SCR 367 
referred to 
Para 19 
[2011] 5 SCR 587 
referred to 
Para 19 
AIR 1922 Privy Council 
referred to 
Para 21 
[2010] 11 SCR 38 
referred to 
Para 23 
CIVIL APPELLATE JURISDICTION : Civil Appeal No. 
13361 of 2015. 
c 
From the Judgment and Order dated 02.09.2014 of the 
D 
E 
High Court of Himachal Pradesh at Shimla in CMPMO No. 
165of2014. 
K. V. Vishwanathan, Sr.Adv., Ms. Radhika Gautam, (For 
E. C.Agrawala),Advs., fortheAppellant. 
Vipin Gogia, Ms. Jaspreet Gogia, Rakesh Gupta, Advs.,. 
for the Respondent. 
The Judgment of the Court was delivered by 
M. Y. EQBAL, J. 1. Leave granted. 
2. This appeal by special leave is directed against order 
dated 2.9.2014 passed by learned Single Judge of the High 
Court of Himachal Pradesh who set aside the order rendered 
by the trial court permitting the defendant-appellant to lead 
F 
secondary evidence in the Civil Suit filed by respondent no.1. 
3. The short question that arises for consideration by 
this Court is as to whether the High Court is justified in reversing 
the order passed by the Trial Court allowing the defendant-
G appellant to lead secondary evidence of the contents of the 
documents. 
4. The facts of the case lie in a narrow compass. 
5. The respondents-plaintiffs-have filed a suit under 
H Sections 34 and 38 of the Specific Relief Act, 1963 for
RAKESH MOHINDRA v. ANITA BERi ANO OTHERS 
1161 
[M. Y. EQBAL, J.] 
declaration that the appellant-defendant has no right, title or A · 
interest over the suit property in any manner and plaintiffs are 
in possession of the same. Consequently, defendant be 
restrained from causing any type of loss, injury and doing any 
such act which may in any manner, cause prejudice to the user, 
possession and title of the plaintiff qua the suit property. 
B 
6. The subject matter of the suit is part of the land defined 
as Survey No. 41, Kasauli Cantt. Tehsil Kasauli and structures/ 
buildings more specifically known as "Dharma Prakash, 
Homestead". One late Sh. Duni Chand Advocate was owner c 
in possession of land comprised in Survey No. 41, measuring 
2.31 acres described as "Kildare Estate" Homestead Dharma 
Prakash. Late Sh. Ouni Chand, during bis life time executed a 
gift deed with regard to the property owned by him which was 
registered as deed No. 2 with Sub Registrar, Kasauli. He gifted 0 
his properties to his son Justice late Sh. Tek Chand. Justice 
late Sh. Tek Chand became owner-in-possession of the suit 
property. Justice late Sh. Tek Chand expired on 16.6.1996 
leaving behind two daughters Smt. Anila Sood and Smt. Anita 
Seri and one son Sh. Vikram Dhanda. Justice late Sh. Tek 
E 
Chand during his life time executed a legal and valid 'will' in 
favour of plaintiff No. 2, Smt. Anita Seri, which was duly· 
registered with Sub Registrar Chandigarh, as deed No. 410 
dated
19.6.1984. The mother of defendant was step sister of 
Justice late Sh. Tek Chand. He was using portion of house 
F 
known as 'Homestead' with the permission of plaintiff No. 2, 
namely, Smt. Anita Beri. She came to know that defendant 
was misusing the license and raised some illegal construction 
in the shape of platform, so as to use the same for the purpose G 
of car parking. 
7. According to the plaintiff, defendant has no right, title 
or interest over the suit property and as such could not change 
the nature of the same. A legal notice was issued on 5.11.2006. 
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SUPREME COURT REPORTS 
[2015] 13 S.C.R. 
A 
Reply was sent by the defendant to the same. The defendant 
has also started causing obstruction to the path which leads 
from circular road to 'Homestead cottage' and 'Homestead 
building'. Plaintiff No. 2 has requested the defendant not to 
lock the gate. However, the lock on the gate has been put to 
B cause temporary obstruction, hindrance and prejudice to the 
user of the suit property by plaintiff No. 2. 
8. On the other hand, the defendant-appellant's case is 
that they have inherited the property from Smt. Vijaya Kumari 
C who became the owner of the suit property on the basis of the 
gift deed dated 19.03.1965. Appellant's further case is that 
Justice Tek Chand had issued a letter of disclaimer dated 
24.08.1982. According to the appellant, the said letter of 
disclaimer was handed over by Justice Tek Chand to his sister 
D 
Smt. Vijaya Kumari who in turn handed over to the appellant. 
E 
On the basis of letter of disclaimer, the appellant vide letter 
dated 21.07.2001 requested the authority, namely, Defence 
Estate Officer. (DEO ), Ambala Gantt for effecting mutation of 
the property in his name. 
9. On these backgrounds, the defendant filed an 
· application in the Trial Court under Section 65 of the Evidence 
Act seeking permission to prove the letter of disclaimer 
executed by Justice Tek Chand by way of secondary evidence. 
F 
For that purpose, the defendant summoned the record of GLR 
from the office of
DEO, Ambala who is said to be the custodian 
of the record. According to the appellant, at the time of sanction 
of mutation with respect to the suit property, the appellant had 
filed the original affidavits of the co-sharers along with the letter 
G of disclaimer executed by Justice Tek· Chand with one 
Photostat set lying in the office of DEO, Ambala. 
10. For the purpose of deciding the application under 
Section 65. of the Evidence Act, the appellant examined the 
H concerned official to produce the record available in the said
RAKESH MOHINDRA v. ANITA BERi AND OTHERS 
1163 
[M. Y. EQBAL, J.] 
office. On the basis of the evidence given by the witness, who A 
produced the record and the evidence ·of defendant, the Trial 
Court allowed the application and admitted the letter of 
disclaimer to be used as secondary evidence. 
11. As averred in the application, the defendant has B 
summoned the record of General Land Register from the Office 
of D.E.O. Ambala, who is the custodian of the record. It is 
defendant's case that at the time of sanction of the mutation 
with regard to the suit property he had filed the original affidavits 
of the co-sharers including affidavits and original letter of C 
disclaimer of late Justice Sh. Tek Chand with one Photostat 
set of the same in the office of D.E.O. Ambala. On the basis of 
the original letter of disclaimer and affidavits, mutation of the 
suit property was sanctioned in favour of the deponent. The 
concerned official produced the original record in the Court D 
on 4.7.2013 except the letter of disclaimer executed by late 
Justice Sh. Tek Chand on 24.8.1982, in favour of Sh. Harish 
Chandra Dhanda and Smt. Vijaya Kumari, the mother of the 
applicant. The original disclaimer letter is supposed to be in 
the said office but the concerned official made statement on 
E 
oath in the Court that the original is not in their office and their 
office has Photostat copy of the original, and therefore, he 
produced the Photostat copy of the letter. According to the
defendant, despite his efforts, the original of DW-2/B was not 
traceable and has been misplaced/lost from the Office of F 
D.E.O. Ambala. In reply to the application, it was denied that 
the letter of disclaimer ever existed or Photostat of the same 
was ever made. It has been pleaded that late Justice Sh. Tek 
Chand never executed disclaimer letter and the Photostat copy G 
was a forged one. 
12. Allowing the application of the defendant and 
granting leave of the court to lead secondary evidence qua 
document Ext.DW-2/B, trial court observed that: 
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1164 
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B 
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SUPREME COURT REPORTS 
[2015] 13 S.C.R. 
'The photocopy Ext.DW-2/B has come from the custody 
of DEO Ambala and the applicant has been able to 
comply with the provision of Section 65 of the Indian 
Evidence Act as it has come in evidence that the original 
document i.e. letter of disclaimer Ext.DW-2/B was 
handed over by the applicant to DEO Ambala. In view 
of the aforesaid this court is satisfied that the original 
document stands misplaced and the applicant is allowed 
to lead secondary evidence with respect to the 
document Ext.DW-2/B as enviasaged under Section 
65(c) of the Indian Evidence Act and both these issues 
are decided in favour of the applicants and against the 
respondents." 
13. Learned Single Judge of the High Court in the civil 
D revision preferred by the plaintiff-respondent no.1 set aside 
the aforesaid order of the trial court. 
E 
14. Hence, this appeal by special leave by the 
defendant. 
15. As a general rule, documents are proved by leading 
primary evidence. Section 64 of the Evidence Act provides 
that documents must be proved by the primary evidence except 
in cases mention in Section 65 of the Evidence Act. In the 
F absence of primary evidence, documents can be proved by 
secondary evidence as contemplated under Section 63 of the 
Act which reads as under: -
"Secondary evidence means and includes-
G 
1. certified copies given under the provisions hereinafter 
contained; 
2. Copies made from the original by mechanical
processes which in themselves ensure the accuracy of 
H 
the copy, and copies compared with such copies.
RAKESH MOHINDRA v. ANITA BERi AND OTHERS 
1165 
[M. Y. EQBAL, J.] 
3. copies made from or compared with the original ; 
A 
4. counterparts of documents as against th~ parties who 
did not execute them; 
5.oral accounts of the contents of a documents given 
by some person who has himself seen it. 
B 
Illustration: 
(a) A photograph of an original is secondary evidence 
of its contents, though the two have not been compared, 
if it is proved that the thing photographed was the c 
original. 
(b) A copy compared with a copy of a letter made by a 
copying machine is secondary evidence of the contents 
of the letter, if it is shown that the copy made by the 
copying machine was made from the original. 
D 
(c) A copy transcribed from a copy, but afterwards 
compared with the original, is secondary evidence; but 
he copy not so compared is not secondary evidence of 
the original, although the copy from which it was E 
transcribed was compared with the original. 
(d) Neither an oral account of a copy compared with the 
original, nor an oral account of a photograph or machine 
copy of the original, is secondary evidence of the F 
original." 
3. Section 65 of the Act deals with the circumstances 
under which secondary evidence relating to documents may 
be given to prove the existence, condition or contents of the 
documents. For better appreciation Section 65 of the Act is G 
quoted herein below:-
"65. Cases in which secondary evidence relating to 
documents may be given: 
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1166 
SUPREME COURT REPORTS 
[2015] 13 S.C.R. 
A 
Secondary evidence may be given of the existence, condition, 
B 
c 
D 
E 
F 
G 
H 
or contents of a document in the following cases:-
(a) When the original is shown or appears to be in the 
posses-sion 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 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,otherlaw in force 
in 40[1ndia] 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 it the general 
result of the whole collection.
RAKESH MOHINDRA v. ANITA BERi AND OTHERS 
1167 
[M. Y. EQBAL, J.] 
In cases (a), (c) and (d), any secondary evidence of the A 
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, admissible. 
B 
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." 
17. The pre-conditions for leading secondary evidence C 
are that such original documents could not be produced by 
the party relied 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 D 
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. 
18. The High Court in the impugned order noted the 
following:-
E 
"9. There is no averment about Ext. DW-2/B in the 
Written Statement. The Written Statement was filed on· F 
19.2.2007. OW- 2/B intact is only a photocopy. The 
plaintiffs are claiming the property on the basis of a 
registered will deed executed in her favour in the year 
1984. It was necessary for the defendant to prove that 
in what
manner the document dated 24.8.1982 was 
G 
executed. The defendant while appearing asAW-1 has 
admitted in his cross-examination that except in his 
affidavit Ext. AW-1/A, he has not mentioned in any 
document that the letter of disclaimer was executed by 
H
1168 
A 
B 
c 
D 
SUPREME COURT REPORTS 
[2015] 13 S.C.R. 
Justice late Sh. Tek Chand in his presence. The 
statement of DW-2 does not prove that Ext. DW-2/A, 
ever existed. DW-2 Sh. Gurcharan Singh, has 
categorically admitted in his cross-examination that he 
has not brought the original of Ext. DW- 2/B. He has 
also admitted that on Ext. DW-2/B, the signatures of 
P.C. Danda were not regible. Volunteered that, those 
were not visible. The learned trial Court has completely 
misread the oral as well as the documentary evidence, 
while allowing the application under Section 65 of the 
Indian Evidence Act, 1872, more particularly, the 
statements of DW-2 Gurcharan Singh and DW-3 
Deepak Narang. The applicant has miserably failed to 
comply with the provisions of Section 65 of the Indian 
Evidence Act, 1872. The learned trial Court has erred 
by coming to the conclusion that the applicant has taken 
sufficient steps to produce document Ext. DW-2/B." 
19. The High Court, following the ratio decided by this 
Court in the case of J. Yashoda vs. Smt. K. Shobha Rani, 
E AIR 2007 SC 1721 and H. Siddiqui (dead) by /rs. vs. A. 
Ramalingam, AIR 2011SC1492, came to the conclusion that 
the defendant failed to prove the existence and execution of 
the original documents and also failed to prove that he has 
F ever handed over the original of the disclaimer letter dated 
20. 8.1982 to the authorities. Hence, the High Court is of the 
view that no case is made out for adducing the
secondary 
evidence. 
20. The witness DW-2, who is working as UDC in the 
G office of DEO, Ambala produced the original GLR register. 
H 
He has produced four sheets of paper including a photo copy 
of letter of disclaimer. He has stated that the original documents 
remained in the custody of DEO. In cross-examination, his 
deposition is reproduced hereinbelow:-
RAKESH MOHINDRA v. ANITA BERi AND OTHERS 
1169 
[M. Y. EQBAL, J.] 
"xxxxxxxx by Sh. M.S. Chandel, Advocate for the plaintiff A 
No.2. 
I have not broughtthe complete file along with the record. 
I have only brought those documents which were 
summoned after taking up the documents from the file. 
As on today, as per the GLR, Ex.DW-2/A, the name of 8 
Rakesh Mohindra is not there. His name was deleted 
vide order dated 29.8.2011. I have not brought the 
original of Ex.DW-2/B. It is correct that Ex.DW-2/D does 
not bear the signatures of Sh. P.C. Dhanda. C 
Volunteered.: These are not legible. Ex.OW- 2/C is 
signed but the signatures are not leible. On the said 
document the signatures of the attesting officer are not 
legible because the document became wet. I cannot 
say whose signatures are there on these documents. 0 
On Ex.DW-2/E the signatures at the place deponent 
also appears to have become illegible because of 
water. Ex.DW-2/F also bears the faded signatures and 
only Tek Chand is legible on the last page. It is incorrect 
to suggest that the last page does not have the E 
signatures of the attesting authority.Volunteered: These 
are faded, but not legible. The stamp on the last paper 
is also not legible. There is no stamp on the first and 
second page. In our account, there is no family 
settlement, but only acknowledgement of family F 
settlement. I do not know how many brothers Rakesh 
Mohindra has. It is correct that the original of Ex.DW-2/ 
H does not bear
the signatures of Sh. Abhay Kumar. I 
do not know whether Sh. Abhay Kumar Sud and Rakesh 
Mohindra are real brothers. The above mentioned G 
documents were neither executed nor p·repared in my 
presence. It is incorrect to suggest that the above 
mentioned documents are forged. It is incorrect to 
suggest that because of this reason I have not brought 
the complete file." 
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SUPREME COURT REPORTS 
[2015] 13 S.C.R. 
A 
21. In the case of Rai Baijnath (dead} by Kedarnath 
Goenka vs.Maharaja Sir pavaneshwar Prasad Singh, AIR 
1922 Privy Council page 54, a similar question came for 
consideration as to the admissibility of secondary evidence in 
case of loss of primary evidence. Lord Phillimore in the 
B judgment observed: -
" It is, no doubt, not very likely that such a deed would be 
lost, but in ordinary cases, if the witness in whose 
custody the deed should be, deposed to its loss, unless 
c 
there is some motive suggested for his being untruthful, 
his evidence would be accepted as sufficient to let in 
secondary evidence of the deed." 
22. It is well settled that if a party wishes to lead secondary 
evidence, the Court is obliged to examine the probative value 
D of the document produced in the Court or their contents and 
decide the question of admissibility of a document in secondary 
evidence. At the same time, the party has to lay down the factual 
foundation to establish the right to give secondary evidence 
E where the original document cannot be produced. It is equally 
well settled that neither mere admission of a document in 
evidence amounts to its proof nor mere making of an exhibit 
of a document dispense with its proof, which is otherwise 
required to be done in accordance with law. 
F 
G 
H 
23. In the case of M. Chandra vs. M. Thangamuthu, 
(2010) 9 SCC 712, this Court considered the requirement of 
Section 65 of the
Evidence Act and held as under:-
"47. We do not agree with the reasoning of the High 
Court. It is true that a party who wishes to rely upon the 
contents of a document must adduce primary evidence 
of the contents, and only in the exceptional cases will 
secondary evidence be admissible. However, if 
secondary evidence is admissible, it may be adduced 
in any form in which it may be available, whether by
RAKESHMOHINDRA v. ANITABERIANDOTHERS 
1171 
[M. Y. EQBAL, J.] 
production of a copy, duplicate copy of a copy, by oral A 
evidence of the contents or in another form. The 
secondary evidence must be authenticated by 
foundational evidence that the alleged copy is in fact a 
true copy of the original. It should be emphasised that 
the exceptions to the rule requiring primary evidence 
B 
are designed to provide relief in a case where a party 
is genuinely unable to produce the original through no 
fault of that party." 
24. After considering the entire facts of the case and C 
the evidence adduced by the appellant for the purpose of 
admission of the secondary evidence, we are of the view that 
all efforts have been taken forthe purpose of leading secondary 
evidence. The trial court has noticed that the photocopy of the 
Exhibit DW-2/B came from the custody of DEO Ambala and 
0 
the witness, who brought the record, has been examined as 
witness. In that view of the matter, there is compliance of the 
provisions of Section 65 of the Evidence Act. Merely because 
the signatures in some of the documents were not legible and 
visible that cannot be a ground to reject the secondary E 
evidence. In our view, the trial court correctly appreciated the 
efforts taken by the appellant for the purpose of leading 
secondary evidence. 
25. For the reasons aforesaid, the impugned order 
passed by the High Court cannot be sustained in law. The 
F 
appeal is accordingly allowed and the
order passed by the 
High Court is set aside. 
26. However, we make it clear that mere admission of 
secondary evidence, does not amount to its proof. The G 
genuineness, correctness and existence of the document shall 
have to be established during the trial and the trial court shall record 
the reasons before relying on those secondary evidences. 
Nidhi Jain 
Appeal allowed. 
H