Case: JAGMAIL SINGH &amp; ANR Vs. KARAMJIT SINGH &amp; ORS

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 for3. 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 04.07.20144. 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 evidence5. 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 30.09.20156. 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.

Court's reasoning:
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 furnished14. 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.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 witness16. 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 evidence17. 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.