Smt. Anujeet Kaur and Smt. Saranjeev Kaur vs Shri Janak Singh and Others

Dev Darshan, J.—This is the defendants'' petition against the order passed by the learned Civil Judge (Junior Division), Kasauli, District Solan allowing application filed by the plaintiffs u/s 65 of the Evidence Act (hereinafter referred to as the Act) for permission to lead secondary evidence to prove the Will which has been set up and propounded by the plaintiffs. Application was opposed by the defendants on a number of grounds including the plea that the facts necessary for invoking the jurisdiction of the Court have neither been pleaded nor proved on the record.

The plaintiffs instituted application u/s 65 of the Act stating therein that the claim of the plaintiffs is based on the last Will dated 20.9.2007 executed by the testatrix. Application then proceeds that after the death of testatrix Smt. Sita Soni, the plaintiffs approached the revenue authorities at Kasauli for attestation of the mutation of the properties in their name on the basis of this Will. The Will was produced before the Assistant Collector 1st Grade, Kasauli on 16.05.2008. The averments in the application are unequivocal:

The Assistant Collector, Ist Grade Kasauli kept the same with him and inquired regarding the same. The aforesaid original Will executed by Late Smt. Sita Soni in favour of the applicants/plaintiffs was lying with the revenue officer Kasauli but the same has not been returned to the applicants/plaintiffs by the aforesaid revenue officer on the ground that the same is required to be annexed with the mutation No. 2744 dated 16.5.2008 and 16.7.2008.

According to the plaintiffs, records of the mutation were summoned along with original Will but it was not found annexed with the records of the mutation. The original Will was lost/misplaced by the revenue officials somewhere. It is in these circumstances that the application has been filed.

Plaintiff Janak Singh appeared as PW1 and states in his cross cross-examination:

Pata na hai ki maine asal Will wapis le li thi. Khud kaha hamare vakil ne Will wapis le li thi

Translation:

I do not know if I taken back the original will. Volunteered that it was taken back by my advocate

The learned trial Court on these pleadings holds that this satisfies the conditions of Section 64 and 65 of the Act and granted permission to the plaintiffs to lead secondary evidence. In Smt. J. Yashoda Vs. Smt. K. Shobha Rani, considering the provision of Section 65 of the Act, the Court holds:

In order to consider rival submissions it is necessary to take note of Sections 63 and 65(a). Sections 63 and 65(a) reads as follows:

(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 the copy, and copies compared with such copies;

(3) copies made from or compared with the original;

(4) counterparts of documents as against the parties who did not execute them;

(5) oral accounts of the contents of a document given by some person who has himself seen it.

* * *

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 who 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;

Secondary evidence, as a general rule is admissible only in the absence of primary evidence. If the original itself is found to be inadmissible through failure of the party, who files it to prove it to be valid, the same party is not entitled to introduce secondary evidence of its contents.

Essentially, secondary evidence is evidence which may be given in the absence of that better evidence which law requires to be given first, when a proper explanation of its absence is given. The definition in Section 63 is exhaustive as the section declares that secondary evidence "means and includes" and then follow the five kinds of secondary evidence.

The rule which is the most universal, namely, that the best evidence the nature of the case will admit shall be produced, decides this objection. That rule only means that, so long as the higher or superior evidence is within your possession or may be reached by you, you shall give no inferior proof in relation to it. Section 65 deals with the proof of the contents of the documents tendered in evidence. In order to enable a party to produce secondary evidence it is necessary for the party to prove existence and execution of the original document. u/s 64, documents are to be provided (sic proved) by primary evidence. Section 65, however permits secondary evidence to be given of the existence, condition or contents of documents under the circumstances mentioned. The conditions laid down in the said section must be fulfilled before secondary evidence can be admitted. Secondary evidence of the contents of a document cannot be admitted without nonproduction of the original being first accounted for in such a manner as to bring it within one or other of the cases provided for in the section. In Ashok Dulichand Vs. Madahavlal Dube and Another, it was inter alias held as follows: (SCC PP.666-67, para 7):

After hearing the Learned Counsel for the parties, we are of the opinion that the order of the High court in this respect calls for the interference. According to clause (a) of Section 65 of Evidence Act, secondary evidence may be given of the existence, condition or contents of a document 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 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 other contingencies wherein secondary evidence relating to a document may be given,...

(P. 732-734

In these circumstances, I do not find that the learned trial Court had paid any attention to the pleadings of the parties before it, more especially the fact that there is no evidence of the advocate who is purportedly in possession of the Will as stated by the plaintiffs. In fact, there is no discussion on this point. Application has been allowed simply on the ground that the plaintiffs have misplaced the original Will and that even if the application is allowed the defendants will have ample opportunity to question the genuineness of that document. But the learned trial Court did not realize in fact what was being set up was a photo copy of the document and serious allegations of the document being manipulated/forged and procured have been made. In these circumstances, I do not find that the learned trial Court was right in allowing the application and as such the petition is allowed. Order passed by the learned trial Court is quashed and set aside. No order as to the costs. All pending applications stand disposed of.