Supreme Court allows secondary evidence for proving a Will: Jagmail Singh & Anr. vs. Karamjit Singh & Ors. (2020)

Date of the Judgment: 13 May 2020
Citation: [2020] INSC 436
Judges: Justice Navin Sinha and Justice Krishna Murari
Can a party submit secondary evidence of a Will if the original is lost or with a third party? The Supreme Court of India addressed this question in a case where the original Will was allegedly given to revenue officials for mutation but could not be retrieved. The Court clarified the conditions under which secondary evidence can be admitted to prove a Will, setting aside the High Court’s order that had rejected secondary evidence due to the non-establishment of the Will’s existence. This judgment was delivered by a bench comprising Justice Navin Sinha and Justice Krishna Murari, with the majority opinion authored by Justice Krishna Murari.

Case Background

The appellants, Jagmail Singh and another, filed a suit seeking a declaration that they were the owners of half share each of land owned by Babu Singh. They also sought to declare two mutations (Nos. 9971 and 9359) sanctioned in favor of the respondents, Baldev Singh and Shamsher Singh, as illegal and void. These mutations were based on a Will dated 20.03.1988, which the appellants claimed was forged. The appellants asserted their ownership based on a Will dated 24.01.1989, executed by Babu Singh in their favor. They stated that the original Will was handed over to the village patwari for mutation, but it could not be retrieved.

Timeline:

Course of Proceedings

Initially, the Trial Court allowed the appellants’ application to present secondary evidence of the Will dated 24.01.1989. However, the High Court, in Civil Revision No. 4645 of 2014, set aside this order, stating that the appellants should have first served a notice under Section 66 of the Indian Evidence Act, 1872 to the revenue official in possession of the original Will. The High Court directed that only if the revenue official denied having the Will, could the appellants apply for secondary evidence. Subsequently, the appellants applied again for notice under Section 66 to the revenue officials, who failed to produce the Will. The Trial Court dismissed the application. The High Court upheld this dismissal, stating that the existence of the Will was not established, which is a prerequisite for admitting secondary evidence.

Legal Framework

The case revolves around Section 65 and Section 66 of the Indian Evidence Act, 1872, which deal with the admissibility of secondary evidence.

Section 65 of the Indian Evidence Act, 1872 outlines the circumstances under which secondary evidence relating to documents may be given. It states:

“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.
– 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.”

Section 66 of the Indian Evidence Act, 1872, specifies the rules regarding notice to produce a document. It states:

“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.”

The Court observed that these provisions allow for secondary evidence when the original is with a person who, after notice, fails to produce it. The foundational requirement is to show why the original cannot be produced.

Arguments

The appellants argued that they had complied with Section 66 of the Indian Evidence Act, 1872 by serving notice to the revenue officials. They contended that Section 65(a) of the Indian Evidence Act, 1872 allows secondary evidence when the original is with a person who fails to produce it after notice. The appellants also argued that the existence of the original Will need not be proven before allowing secondary evidence; it can be proven during the course of arguments.

The High Court, however, held that the existence of the original Will must be established before secondary evidence can be admitted. It stated that since the revenue officials did not confirm the existence of the Will, the pre-requisite condition for secondary evidence was not met.

Issues Framed by the Supreme Court

The Supreme Court did not explicitly frame issues in a separate section. However, the core issue was:
✓ Whether the High Court was correct in holding that the existence of the original Will must be proved before secondary evidence can be admitted under Section 65 of the Indian Evidence Act, 1872.

Treatment of the Issue by the Court

The following table demonstrates as to how the Court decided the issues.

Authorities

The Supreme Court relied on the following authorities:

• Ashok Dulichand vs. Madahavlal Dube and Anr. [1976] 1 SCR 246, Supreme Court of India: The Court reiterated that Section 65(a) of the Indian Evidence Act, 1872 allows secondary evidence when the original is with a person who does not produce it after notice under Section 66 of the Indian Evidence Act, 1872.

• Rakesh Mohindra vs. Anita Beri and Ors. (2016) 16 SCC 483, Supreme Court of India: The Court emphasized that secondary evidence is admissible if the original document cannot be produced despite best efforts and that the party must establish the non-production of primary evidence.

• H. Siddiqui (dead) by LRs Vs. A. Ramalingam [2011 (4) SCC 240], Supreme Court of India: The Court reiterated that secondary evidence is not permissible if the original documents are not produced without a plausible reason and a factual foundation for laying secondary evidence is not established.

The Court also considered Section 65 and Section 66 of the Indian Evidence Act, 1872.

Judgment

The Court analyzed the evidence of the witnesses and observed that while the revenue officials did not produce the Will, they did not unequivocally deny its existence. The Court noted that one witness, PW-4, admitted that a Will was handed over to the Patwari. Additionally, the scribe of the Will, PW-1, confirmed his signature on the document.

The Supreme Court held that the High Court erred in concluding that the existence of the Will was not established.

The Court observed that the High Court committed a grave error of law by not properly evaluating the evidence and denying the appellants the opportunity to produce secondary evidence.

The Court clarified that admitting secondary evidence does not automatically prove the document’s authenticity, which must be established during the trial.

What weighed in the mind of the Court?

The Supreme Court’s decision was primarily influenced by the following factors:

• The appellants had served notice under Section 66 of the Indian Evidence Act, 1872 to the revenue officials, who failed to produce the original Will.
• The revenue officials did not unequivocally deny the existence of the Will.
• Witnesses, including the scribe of the Will, provided evidence supporting the existence of the Will.
• The High Court’s requirement to prove the existence of the Will before admitting secondary evidence was a misinterpretation of the law.

The Court emphasized the need to provide an opportunity to the appellants to present their secondary evidence, while clarifying that the authenticity of the document would be determined during the trial.

The Supreme Court’s reasoning was that the High Court had misapplied the law by requiring proof of the Will’s existence prior to admitting secondary evidence. The Court noted that the appellants had sufficiently laid the groundwork to be able to present secondary evidence. The Court emphasized that the authenticity of the Will would be determined during the trial.

“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.”

“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.”

The Supreme Court did not discuss any alternative interpretations or minority opinions in the judgment.

Key Takeaways

• Secondary evidence of a document can be admitted if the original is in the possession of a third party who fails to produce it after notice under Section 66 of the Indian Evidence Act, 1872.
• The existence of the original document need not be definitively proven before admitting secondary evidence; sufficient foundational facts must be established.
• The authenticity of the secondary evidence must still be proven during the trial.
• This judgment clarifies the procedure for admitting secondary evidence, ensuring that parties are not unduly restricted from presenting their case.

Directions

The Supreme Court set aside the High Court’s judgment and allowed the appellants to lead secondary evidence in respect of the Will.

Development of Law

The ratio decidendi of this case is that the existence of the original document need not be definitively proven before admitting secondary evidence if the party has complied with the procedure under Section 65 and Section 66 of the Indian Evidence Act, 1872. This judgment clarifies the circumstances under which secondary evidence can be admitted, ensuring that parties are not unduly restricted from presenting their case.

Conclusion

The Supreme Court’s judgment in Jagmail Singh & Anr. vs. Karamjit Singh & Ors. clarifies the conditions for admitting secondary evidence of a Will when the original is unavailable. The Court held that the High Court erred in requiring proof of the Will’s existence before allowing secondary evidence, emphasizing that the appellants had laid the factual foundation to establish the right to give secondary evidence. This decision ensures that parties have a fair opportunity to present their case, while also maintaining the requirement that the authenticity of the secondary evidence must be proven during the trial.