Conditions required for admitting secondary evidence in the Court of Law written by Shatakshi Kakkar student of Symbiosis Law School, NOIDA
JAGMAIL SINGH V. KARAMJIT SINGH
The above case is an appeal made to the Hon’ble Supreme Court against the judgment of the High Court of Punjab and Haryana. The case revolves around a Will dated 24/01/1989. The appellants preferred a suit for declaration that they were the real owners of a piece of land which has been transferred in favor of one Baldev Singh and Shamsher Singh on the basis of a forged Will made by them dated 20/03/1988. During the pendency of the aforesaid suit, an application under Section 65/66 of the Evidence Act was moved by the appellants seeking permission to prove a copy of Will dated 24/01/1989 by way of secondary evidence. The aforesaid application was allowed by the Trial Court, the respondents thus made an appeal in the High Court, and the High Court after due proceedings dismissed the application. Not satisfied with the judgment of the High Court, the appellants filed a revision petition in the High Court under the ambit of Article 227 of the Indian Constitution but finding no merit in the same, the High Court again upheld the decision that the pre-requisite condition for admission of secondary evidence, i.e. the existence of Will remained unestablished and hence they gave the judgment in favor of the respondents.
Should the appellants be allowed to admit secondary evidence for proving their case in the absence of the primary evidence i.e. the original will?
The appellants contended that there is a provision under Section 65 of the Indian Evidence Act, 1872 which provides the grounds on the basis of which the secondary evidence can be produced before the Court of Law and by further serving a notice to the concerned party under Section 66 of the Indian Evidence Act, 1872 the party still not produces the primary evidence the party concerned is entitled to prove their case using the secondary evidence. Since in the present case both the conditions of Section 65 and 66 of the Indian Evidence Act are met, the High Court is at fault in giving a particular judgment, and hence the appeal is finally made to the Hon’ble Supreme Court.
The Supreme Court while deciding the matter took into consideration the witnesses through which it can be established that there existed the necessary foundations on the basis of which the appellants have a right to give secondary evidence and not giving them this opportunity is a fault on the part of the High Court. The Supreme Court was of the opinion that the High Court committed a grave error of law without properly evaluating the evidence and holding that the pre-requisite condition i.e., the existence of Will remained unestablished on record and thereby denied an opportunity to the appellants to produce secondary evidence.
Thus, the Court came to the final conclusion that the appellants would be entitled to lead secondary evidence in respect of the Will in question. But, at the same time, the mere admission of secondary evidence doesn’t attest to its authenticity, truthfulness, or genuineness and hence it will have to be established during the course of the trial in accordance with the law.
This case pertains to the grounds on which the secondary evidence can be permitted in the Court of Law in the absence of the primary evidence. The provisions for which are provided under Section 65 of the Indian Evidence Act, 1872. Section 65 of the Act establishes the fact that secondary evidence may be given with regard to existence, condition, or the contents of a document when the original evidence 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 furnished. If a particular party is able to prove the reason for non-presenting of primary evidence on any of the grounds under Section 65 and fulfills the procedural requirements under Section 66 of the Indian Evidence Act, the party can submit the secondary evidence in the Court of Law, the same is the situation in the present case and hence the appellants were permitted to produce secondary evidence.