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Foundational reason for not providing with the Primary Evidence is a pre-requisite for providing Secondary Evidence

Foundational reason for not providing with the Primary Evidence is a pre-requisite for providing Secondary Evidence

Jagmail Singh Vs Karamjit Singh

Supreme Court



About/from the judgment:

Section 65 and 66 of the Indian Evidence Act, 1872 (Production of Secondary evidence) - mere admission in evidence and making exhibit of a document not enough as the same has to be proved in accordance with law.



The appellants in this case referred a suit to the Trial Court for a declaration that they are holders of half of the share in land owned by one Babu Singh as the mutation of such land is done in their favor by legally handing over the Will as evidence to the revenue officials. They also claimed that the mutation of the land by the Assistant Collector was wrongfully done in favor of one Baldev Singh and one Shamsher Singh based on forged Will dated 20/03/1998.



During the proceedings before the Trial Court, the appellants filed an application under Section 65 of the Evidence Act, 1872 to produce a copy of the Will in the form of secondary evidence as the Will was lost according to the Revenue officials. The Trial Court allowed such an application. However, the respondents, not been satisfied with such order, filed a petition to the High Court.


The High Court allowed the petition stating that if the Will has been in the possession of the Revenue officials, then as per the procedure stated in Section 66 of the Evidence Act, 1872 the appellants should have primarily given a notice to the officials demanding the original Will and if the officials allege that the Will has been lost, then an application is to be preferred to Court demanding to produce the copy of the Will. Since, this standard legal procedure has not been referred to, the High Court set aside the order of the Trial Court.


After the said order the appellants filed another application to the Trial Court for issuance of notice to the officials. Even after the notice was sent the officials failed to produce the said Will before the Court. The Trial Court dismissed the said order dated 30/09/2015.



The appellants aggrieved by the order of the Trial Court filed a Revision Petition under Article 227 of the Constitution of India. The High Court in its order stated that, even after the appellants provided their Will to the revenue officials for mutation, the revenue officials never mentioned about the Will. The main question that remained unanswered before the High Court was the existence of Will. If there is no existence of any Will then the question of providing a copy of the Will as secondary evidence is not required to be fulfilled. The High Court, therefore, upheld the order of the Trial Court in dismissing the petition.



The Supreme Court stated that “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”.


To found out the factual reason for not producing the primary evidence, the Court took into account the statements made by the revenue officials in the cross-examination. Both the revenue officials in their reasons never denied the fact of having the original Will which established the existence of foundational evidence. The Supreme Court, therefore, allowed the appellants to produce a copy of Will as a piece of secondary evidence and set aside the order of High Court.

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