JAGMAIL SINGH & ANR.versusKARAMJIT SINGH & ORS.

                          [2020] 4 S.C.R. 1163                           1163


                    JAGMAIL SINGH & ANR.                                 A
                                  v.
                   KARAMJIT SINGH & ORS.
                   (Civil Appeal No. 1889 of 2020)
                           MAY 13, 2020                                  B
        [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
                                                                         C
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          D
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       E
– 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
                                                                         F
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         G
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
                                                                         H
                                1163
1164           SUPREME COURT REPORTS                      [2020] 4 S.C.R.


 A     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
 B     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

 C           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
 D     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
 E
       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,
 F     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
 G           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
 H     [2011] 5 SCR 587                 referred to          Para 14
    JAGMAIL SINGH & ANR. v. KARAMJIT SINGH & ORS.                          1165


      CIVIL APPELLATE JURISDICTION : Civil Appeal No. 1889                 A
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.
                                                                           B
    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                           C
      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
                                                                           D
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          E
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
                                                                           F
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    G
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.          H
1166            SUPREME COURT REPORTS                          [2020] 4 S.C.R.


 A           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.
 B           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
 C
             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
 D           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
 E           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
 F     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
 G     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
 H     Constitution of India.
    JAGMAIL SINGH & ANR. v. KARAMJIT SINGH & ORS.                          1167
                [KRISHNA MURARI, J.]

       7. Learned counsel for the appellants contended that the            A
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
                                                                           B
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      C
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     D
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,         E
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          F
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
                                                                           G
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.                   H
1168            SUPREME COURT REPORTS                      [2020] 4 S.C.R.


 A           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
 B           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
 C                   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
 D                   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
 E                   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
 F
                     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               (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
 H                       of the contents of the document is admissible.
JAGMAIL SINGH & ANR. v. KARAMJIT SINGH & ORS.                      1169
            [KRISHNA MURARI, J.]

           - In case (b), the written admission is admissible.     A
           - 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          B
             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   C
 (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           D
 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:—                                                E

     (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       F
         has obtained possession of the original by fraud or
         force;
     (4) when the adverse party or his agent has the original
         in Court;
                                                                   G
     (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.”                                                   H
1170               SUPREME COURT REPORTS                       [2020] 4 S.C.R.


 A             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,
 B     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
 C     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
 D              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
 E              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
 F
                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,
 G              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
 H         (2016) 16 SCC 483
       JAGMAIL SINGH & ANR. v. KARAMJIT SINGH & ORS.                           1171
                   [KRISHNA MURARI, J.]

       14. It is trite that under the Evidence Act, 1872 facts have to be      A
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
                                                                               B
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     C
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             D
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           E
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.”                          F

       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         G
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]                                                         H
1172              SUPREME COURT REPORTS                        [2020] 4 S.C.R.


 A           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
 B     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
 C     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.
 D
       Devika Gujral                                               Appeal allowed.




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