Secondary evidence allowed as prima facie evidence of existence of Will established by signatory witness

Secondary evidence allowed when prima facie evidence of existence of Will established by cross examination of witness who was signatory /subscriber

ABCAUS Case Law Citation:
ABCAUS 3309 (2020) (05) SC

Important case law relied upon by the parties:
Ashok Dulichand Vs. Madahavlal Dube and Anr
Rakesh Mohindra vs. Anita Beri and Ors
Siddiqui (dead) by LRs Vs. A. Ramalingam

In the instant case, the appellant was aggrieved by the judgment of the High Court in confirming the order passed by the Civil Judge denying the permission to prove the copy of the   Will executed in their favour by way of secondary evidence, as the original Will could not be retrieved.

he High Court while 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.

The appellants had made an application under Section 65/66 of the Evidence Act (the Act) seeking permission to prove copy of Will by way of secondary evidence. The said application was allowed by the Trial Court. However against this order, the respondents preferred a Civil Revision which was allowed by the High Court.

In fresh proceedings, the appellants stated that the original Will was handed over to revenue officials for sanctioning the mutation in their favour. However, the Revenue Officials failed to produce the said Will and the Trial Court dismissed the application.

Aggrieved by the above order, the appellants had approached the High Court by way of a Revision Petition under Article 227 of the Constitution of India. The resultant order of the Hon’ble High Court was impugned before the Hon’ble Supreme Court.

Before the Hon’ble Supreme Court, the appellants submitted 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 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 (i.e. Revenue Office in this case) does not produce it. In such contingency, party concerned is entitled   to   prove   the   same   by   way   of   secondary   evidence.    

It   was submitted that the appellants had already served notice under Section 66 of the 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.

Secondary evidence allowed as prima facie evidence of existence of Will established 

The Hon’ble Supreme Court observed as per Section 65 of the Act, 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, after notice mentioned in Section 66 such person does not produce it. 

The Hon’ble Supreme Court pointed out that it is 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. Also, on previous two occasions the Court had also held accordingly.

The Hon’ble Supreme Court observed that in the instant case, it was imperative to appreciate the evidence of the witnesses as it was only after scrutinizing the same opinion could be found as to the existence, loss or destruction of the original Will.  Though the revenue officials failed to produces the original Will, upon cross-examination they unequivocally not denied  the  existence  of  the  Will. 

Further, the prima facie evidence of existence of the Will was established from the examination of Petitioner’s witnesses who was the scribe of the Will in question and had deposed the affirmation of the existence of the will by stating that he had seen the Will which bore his signature as scribe and as well as witness.

In view of the above, the Hon’ble Supreme Court opined that the factual foundation to establish the right to give secondary evidence was laid down by the appellants and the High Court ought to have given them an opportunity  to lead secondary evidence.

The Hon’ble Supreme Court clarified 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.

The Hon’ble Supreme Court held that the impugned   judgment of the High Court suffered from material irregularity and patent errors and was accordingly set aside.

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