JAGMAIL SINGH & ANR. versus KARAMJIT SINGH & ORS.

[2020] 4 S.C.R. 1163

JAGMAIL SINGH & ANR.

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 leadsecondary evidence in respect of document – Appellant filed suitfor declaration of title in respect of land and for declaration thatthe mutations sanctioned by Assistant Collector in favour ofpre-decessors-in-interest of respondent 1 to 3 were illegal, null andvoid – During pendency of suit, appellant filed application underss. 65/66 seeking permission to prove copy of Will by way ofsecondary evidence – Trial court allowed the application –However, High Court set aside order of trial court holding thatappellant ought to have given notice to revenue officials under s.66for producing original will as claimed – Thereupon appellants filedapplication u/s.66 – The revenue officials were issued notice forproduction of original Will but they failed to produce the Will –The said application was dismissed by trial court – Appellantsunsuccessfully filed revision petition u/Art.227 before High Court– Hence instant appeal – Held: In terms of s.65, secondaryevidence may be given with regard to existence, condition or thecontents of document when the original is shown or appears tobe in possession or power against whom the document is soughtto be produced, or of any person out of reach of, or not subjectto, the process of the Court, or of any person legally bound toproduce it, and when, after notice mentioned in s.66 such persondoes not produce it – It is trite that under the Evidence Act, factshave to be established by primary evidence and secondaryevidence is only an exception to the rule for which foundationalfacts have to be established to account for the existence of theprimary evidence – In the case at hand, while both the revenueofficials failed to produce the original Will, their cross-examinationshowed that neither of the officials unequivocally denied theexistence of the Will – Furthermore, the evidence of existence ofWill was established from examination of scribe of the Will in

CDEF

Aquestion – Thus, the factual foundation to establish the right togive secondary evidence was laid down by the appellants and HighCourt ought to have given them an opportunity to lead secondaryevidence – High Court committed grave error of law withoutproperly evaluating the evidence and holding that the pre-requisitecondition i.e., existence of Will remained unestablished on recordBand thereby denied an opportunity to the appellants to producesecondary evidence – Appellants would be entitled to leadsecondary evidence in respect of the Will in question.

Allowing the appeal, the Court

CHELD: The Patwari during his cross-examination statedthat there was another patwari in that area and he was unawareif such Will was presented before the other patwari. He wenton to state that this matter was 25 years old and he was nolonger posted in that area and, therefore, could not trace theWill. Moreover, PW- 4 went on to admit that, “there wasDregistered Will which was entered. There was Katchi(unregistered) Will of Babu Singh was handed over to PW-3 forentering the mutation...”. Furthermore, the prima facie evidenceof existence of the Will is established from the examination ofPW-1, who is the scribe of the Will in question. The High Court

committed grave error of law without properly evaluating theEevidence and holding that the pre-requisite condition i.e.,existence of Will remained unestablished on record and therebydenied an opportunity to the appellants to produce secondaryevidence. The appellants would be entitled to lead secondaryevidence in respect of the Will in question. [Paras 15, 16, 18,F19] [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 SCCG240 : [2011] 5 SCR 587 – referred to.

Case Law Reference

[1976] 1 SCR 246referred toPara 12[2015] 13 SCR 1158referred toPara 13H[2011] 5 SCR 587referred toPara 14

CIVIL APPELLATE JURISDICTION : Civil Appeal No. 1889of 2020.

From the Judgment and Order dated 09.01.2017 of the HighCourt of Punjab and Haryana at Chandigarh in Civil Revision No. 7271of 2015.

R. Anand Padmanabhan, Aravind, C., Devarathi, Shashi BhushanKumar, 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 09.01.2017passed by the High Court of Punjab and Haryana at Chandigarh in CivilRevision No. 7271 of 2015 whereby the High Court confirmed the orderpassed by the Civil Judge (Junior Division) Moga in application filedunder Section 65 and 66 of the Indian Evidence Act by the appellantsherein seeking permission to prove the copy of the Will dated 24.01.1989executed by one Babu Singh in their favour by way of secondaryevidence, as the original Will which was handed over to the villagepatwari for mutation could not be retrieved. The High Court whiledismissing the application observed that as the pre-requisite conditionof existence of Will is not proved, the Will cannot be permitted to beapproved by allowing the secondary evidence.

2. Briefly stated the facts of the case are that the appellantspreferred suit for declaration to the effect that they are owners tothe extent of ½ share each of the land owned by Babu Singh son ofPhuman Singh, situated in village Kokri Kalan, Tehsil & District Mogaand Mutation No. 9971 dated 28.02.1991 and Mutation No. 9359 dated25.02.1991 sanctioned by the Assistant Collector Second Grade, Mogain favour of Baldev Singh (predecessors-in-interest of respondent nos.1and 2) and Shamsher Singh (respondent No.3) are illegal, null and void,as the said two mutations have been sanctioned on the basis of forgedWill dated 20.03.1988. further prayer for consequential relief ofpermanent injunction to restrain the respondents from alienating,transferring or mortgaging the suit property was also sought for.

A3. During pendency of the aforesaid suit, an application underSection 65/66 of the Evidence Act was moved by the appellants seekingpermission to prove copy of Will dated 24.01.1989 by way of secondaryevidence. The said application was allowed by the Trial Court vide orderdated 04.07.2014.B4. Feeling aggrieved by the said order, respondents preferred CivilRevision No.4645 of 2014 which was allowed by the High Court byobserving as under:-

“Once the appellants have alleged that the original Will isin possession of the revenue official, they should have servedCa notice upon him under Section 66 of the Act for itsproduction and in case, it is alleged that the said Will hasbeen lost, then the application could have been filed forleading secondary evidence but in the absence of thecompliance of the aforesaid procedure, the application perDse filed under Section 65 of the Act is not maintainable. Inview of the aforesaid apparent error on the part of the Courtbelow, the present revision petition is hereby allowed and theimpugned order is set aside. However, the respondents arestill at liberty to move an application under Section 66 ofEthe Act to the revenue official to whom the alleged Will wasgiven for the purpose of sanctioning of mutation and in caseof denial on his part that the Will has been lost, they canmaintain the application for secondary evidence”.

5. Subsequent thereto, appellants preferred another applicationFunder Section 65/66 of the Act, before the Trial Court for issuance ofnotice under Section 66 of the Act to the revenue officials for productionof original Will dated 24.01.1989. The application was made on theground that the said original Will was handed over by the appellants torevenue officials for sanctioning the mutation in their favour. Both theGrevenue officials were issued notice for production of the original Willdated 24.01.1989 but they failed to produce the said Will. It was onlythereafter, application was dismissed vide order dated 30.09.2015.

6. Aggrieved by the above order, the appellants approached theHigh Court by way of Revision Petition under Article 227 of theHConstitution of India.

7. Learned counsel for the appellants contended that theimpugned order is not sustainable in the eyes of law as it suffers frompatent 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) ofthe Act allows the production of secondary evidence when the originalis shown and appears to be in possession or power of one against whomthe document is sought to be proved, or any person out of reach of, ornot subject to, the process of the Court, or of any person legally boundto produce it, and when, after the notice mentioned in Section 66, suchperson does not produce it. In such contingency, party concerned isentitled to prove the same by way of secondary evidence. It is submittedthat the appellants had already served notice under Section 66 of theEvidence Act to the revenue officials through the Court but the Willwhich was sought to be produced by way of secondary evidence, wasnot produced by either of the revenue officials.

8. Learned counsel for the appellants further contended thatexistence of the original Will can only be proved during the course ofarguments and it is not the requirement of law that it should be provedat the first instance and only thereafter secondary evidence can beallowed.

9. The High Court vide impugned order dated 09.01.2017observed 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 Section66 of the Act to produce original Will dated 24.01.1989 but theyfailed to produce it. Moreover, they had nowhere stated about theexistence 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 thepermission to prove Will dated 24.01.1989 by way of secondaryevidence, the order dated 30.09.2015 suffers from no infirmity orillegality, rather the same is absolutely in accordance with theevidence available on file as well as settled proposition of law.”The High Court did not find any merit in the Revision Petition anddismissed the same while upholding the decision of the lower Court onthe ground that the pre-requisite condition for admission of secondaryevidence, i.e. existence of Will remained unestablished.

1168SUPREME COURT REPORTS

[2020] 4 S.C.R.

A10. For proper appraisal of the matter in controversy, it wouldbe appropriate to reproduce Sections 65 and 66 of the Act which readas under :-

“ 65. Cases in which secondary evidence relating todocuments may be given.— Secondary evidence may be givenBof the existence, condition, or contents of document in thefollowing cases:-

(a) When the original is shown or appears to be in thepossession or power— of the person against whomthe document is sought to be proved, or of anyCperson out of reach of, or not subject to, the processof the Court, or of any person legally bound toproduce it, and when, after the notice mentioned insection 66, such person does not produce it;

(b) when the existence, condition or contents of theDoriginal have been proved to be admitted in writingby the person against whom it is proved or by hisrepresentative in interest;

(c) when the original has been destroyed or lost, orwhen the party offering evidence of its contentsEcannot, for any other reason not arising from hisown default or neglect, produce it in reasonable time;

(d) when the original is of such nature as not to beeasily movable;

(e) when the original is public document within theFmeaning of section 74;

(f) when the original is document of which certifiedcopy is permitted by this Act, or by any other law inforce in India to be given in evidence;

G(g) when the originals consists of numerous accounts orother documents which cannot conveniently beexamined in Court, and the fact to be proved is thegeneral result of the whole collection.

- In cases (a), (c) and (d), any secondary evidenceHof the contents of the document is admissible.

- In case (b), the written admission is admissible.

- In case (e) or (f), certified copy of thedocument, but no other kind of secondaryevidence, is admissible.

- In case (g), evidence may be given as to thegeneral result of the documents by any personwho has examined them, and who is skilled inthe examination of such documents.

66. Rules as to notice to produce - Secondary evidence ofthe contents of the documents referred to in section 65, clause(a), shall not be given unless the party proposing to give suchsecondary evidence has previously given to the party inwhose possession or power the document is, [or to hisattorney or pleader] such notice to produce it as isprescribed by law; and if no notice is prescribed by law, thensuch notice as the Court considers reasonable under thecircumstances of the case:

Provided that such notice shall not be required in order torender secondary evidence admissible in any of the followingcases, or in any other case in which the Court thinks fit todispense with it:—

(1) when the document to be proved is itself notice;

(2) when, from the nature of the case, the adverse partymust know that he will be required to produce it;

(3) when it appears or is proved that the adverse partyhas obtained possession of the original by fraud orforce;

(4) when the adverse party or his agent has the originalin Court;

(5) when the adverse party or his agent has admittedthe loss of the document;

(6) when the person in possession of the document isout of reach of, or not subject to, the process of theCourt.”

A11. perusal of Section 65 makes it clear that secondaryevidence may be given with regard to existence, condition or thecontents of document when the original is shown or appears to be inpossession or power against whom the document is sought to beproduced, or of any person out of reach of, or not subject to, the processof the Court, or of any person legally bound to produce it, and when,Bafter notice mentioned in Section 66 such person does not produce it.It is settled position of law that for secondary evidence to be admittedfoundational evidence has to be given being the reasons as to why theoriginal Evidence has not been furnished.

12. The issue arising out of somewhat similar facts andCcircumstances has been considered by this Court in Ashok DulichandVs. Madahavlal Dube and Anr.[1], and it was held as under :-

“According to Clause (a) of Section 65 of Indian EvidenceAct, Secondary evidence may be given of the existence,condition or contents of document when the original isDshown or appears to be in possession or power of the personagainst whom the document is sought to be proved or of anyperson out of reach of, or not subject to, the process of theCourt of any person legally bound to produce it, and when,after the notice mentioned in Section 66 such person doesnot produce it. Clauses (b) to (g) of Section 65 specify someEother contingencies wherein secondary evidence relating toa 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 areFthat such original documents could not be produced by theparty 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 mustestablish for the non-production of primary evidence. Unless,Git is established that the original documents is lost ordestroyed or is being deliberately withheld by the party inrespect of that document sought to be used, secondaryevidence in respect of that document cannot accepted.”

1 [1976] 1 SCR 246H2 (2016) 16 SCC 483

14. It is trite that under the Evidence Act, 1872 facts have to beestablished by primary evidence and secondary evidence is only anexception to the rule for which foundational facts have to be establishedto account for the existence of the primary evidence. In the case ofH. Siddiqui (dead) by LRs Vs. A. Ramalingam[3], this Court reiteratedthat where original documents are not produced without plausiblereason and factual foundation for laying secondary evidence notestablished it is not permissible for the court to allow party to adducesecondary evidence.15. In the case at hand, it is imperative to appreciate the evidenceof the witnesses as it is only after scrutinizing the same opinion can befound as to the existence, loss or destruction of the original Will. Whileboth the revenue officials failed to produces the original Will, uponperusal of the cross-examination it is clear that neither of the officialshas unequivocally denied the existence of the Will. PW- 3 RakeshKumar stated during his cross-examination that there was anotherpatwari in that area and he was unaware if such Will was presentedbefore the other patwari. He went on to state that this matter was 25years old and he was no longer posted in that area and, therefore, couldnot trace the Will. Moreover, PW- 4 went on to admit that, “there wasregistered Will which was entered. There was Katchi (unregistered)Will of Babu Singh was handed over to Rakesh Kumar Patwarifor entering the mutation...”. Furthermore, the prima facie evidenceof existence of the Will is established from the examination of PW-1,Darshan Singh, who is the scribe of the Will in question and deposedas under :-

“I have seen the Will dated 24.01.1989 which bears mysignature as scribe and as well as witness.”

16. In view of the aforesaid factual situation prevailing in the caseat hand, it is clear that the factual foundation to establish the right togive secondary evidence was laid down by the appellants and thus theHigh Court ought to have given them an opportunity to lead secondaryevidence. The High Court committed grave error of law without properlyevaluating the evidence and holding that the pre-requisite condition i.e.,existence of Will remained unestablished on record and thereby deniedan opportunity to the appellants to produce secondary evidence.

17. Needless to observe that merely the admission in evidenceand making exhibit of document does not prove it automatically unlessthe same has been proved in accordance with the law.

18. In view of the aforesaid legal and factual position, we are ofthe considered opinion that the impugned judgment of the High CourtBsuffers from material irregularity and patent errors of law and not liableto be sustained and is thus, hereby set aside. The appeal accordinglystands allowed.

19. The appellants would be entitled to lead secondary evidencein respect of the Will in question. It is, however, clarified that suchCadmission of secondary evidence automatically does not attest to itsauthenticity, truthfulness or genuineness which will have to beestablished during the course of trial in accordance with law.

20. In the facts and circumstances, we do not make any orderas to costs.

Devika Gujral

Appeal allowed.