Supreme Court of India
RAKESH MOHINDRAversusANITA BERI AND OTHERS
- Citation
- 2015 INSC 836
- Decided
- 6 November 2015
- Disposal
- Appeal(s) allowed
- Bench
- M Y EQBAL
Holding
Secondary evidence may be admitted under Section 65 of the Evidence Act when the original document is unavailable despite the party’s best efforts, and the trial court’s finding of such unavailability and compliance with Section 65 is sufficient, rendering the High Court’s reversal unsustainable.
Summary
The plaintiffs filed a suit under the Specific Relief Act seeking a declaration of title over a property. The defendant sought to prove a disclaimer letter by secondary evidence because the original was allegedly misplaced in the custody of the DEO, Ambala, and submitted a photocopy along with a witness from the DEO. The trial court allowed the admission of this secondary evidence under Section 65 of the Evidence Act, but the High Court set aside that order. On appeal, the Supreme Court examined the pre‑conditions for secondary evidence, emphasizing that the original must be unavailable despite the party’s best efforts and that illegibility of signatures is not a ground for rejection. Finding that the trial court had complied with Section 65 and that the defendant had taken all reasonable steps, the Court held the High Court’s reversal unsustainable. Consequently, the appeal was allowed and the High Court’s order was set aside, leaving the trial court’s order permitting secondary evidence intact.
Issues considered
- Whether the original disclaimer letter was unavailable in a manner that satisfies the conditions of Section 65 of the Evidence Act.
- Whether a photocopy of the document, despite illegible signatures, can be admitted as secondary evidence.
- Whether the High Court erred in overturning the trial court’s order allowing secondary evidence.
Legislation cited
- Indian Evidence Act, 1872s. 63, s. 65
- Specific Relief Act, 1963s. 34, s. 38
Subjects
secondary evidenceEvidence ActSection 65document admissibilityproperty disputeSpecific Relief Actphotocopylegibility of signatures
Judgment
[2015] 13 S.C.R. 1158
A RAKESH MOHINDRA
v.
ANITA BERi AND OTHERS
(Civil Appeal No. 13361 of 2015)
B
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.
Allowing the appeal, the Court
F
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 SUPREME COURT REPORTS [2015] 13 S.C.R.
A 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
B
[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
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.
D
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.
E
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.
H
1162 . 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.
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.
E
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:
H
1164 SUPREME COURT REPORTS [2015] 13 S.C.R.
A '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
B 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
c 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.
14. Hence, this appeal by special leave by the
defendant.
E
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:
H
1166 SUPREME COURT REPORTS [2015] 13 S.C.R.
A 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
posses-sion or power-
B 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
c 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 cannot, for
E
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;
F (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
G 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.
H
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.
E
18. The High Court in the impugned order noted the
following:-
"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 SUPREME COURT REPORTS [2015] 13 S.C.R.
A 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
B 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
c 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
D
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.
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:-
H
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." H
1170 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 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
G 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
H in any form in which it may be available, whether by
v.
RAKESHMOHINDRA 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
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