No requirement that an application is required to be filed before the secondary evidence is led: SC

There is no requirement that an application is required to be filed in terms of Section 65(c) of the Evidence Act before the secondary evidence is led. A party to the lis may choose to file an application which is required to be considered by the trial court but if any party to the suit has laid foundation of leading of secondary evidence, either in the plaint or in evidence, the secondary evidence cannot be ousted for consideration only because an application for permission to lead secondary evidence was not filed. (Para.20)

DHANPAT V/s SHEO RAM (DECEASED) THROUGH LRS. & ORS.

CIVIL APPEAL NO. 1960 OF 2020

Decided on MARCH 19, 2020.

The bench comprising of Justice L Nageswara Rao and Justice Hemant Gupta decided on this case. The court decide to allow the appeal and dismissed the suit.

An appeal was filed against the decree of Punjab & Haryana High Court. There was a will whose validity was under dispute. The ancestral property of the plaintiff was under dispute. The defendant claimed his share in that property. The plaintiff claimed that he belongs to Jat Community and was governed by the Punjab Customary Law and therefore inherits the ancestral property. Further defendants got the will executed in their favor saying such a will contravene Jat Customary Law was the outcome of fraud and misrepresentation.

The beneficiaries under the will filed a written statement and asserted that custom had been abrogated after passing of the Hindu Succession Act, 1956. Based on the information, the learned trial court held that the Will was duly proved as it had two attesting witnesses have signed the Will, the execution of the Will is provided by examining one of the attesting witnesses. The court did not find any merit in the argument that a deviation from natural succession will make the will doubtful. With this the suit was dismissed. The same was confirmed by the First Appellate Court. In further appeal in High Court, the court found that one of the names was missing in the Will which questioned the genuineness of the Will. The original Will was not produced before the court and its photocopy was presented as the original Will was missing and there was no application of secondary evidence as leading evidence was filed. Based on information the High Court held that the execution of will was doubtful and there was no application filed for producing secondary evidence so it cannot be considered as proper evidence. The suit was dismissed. Again, the petitioner filed an appeal and approached the Supreme Court and challenged regarding the production of secondary evidence.

The key issue here was Whether it is required to file an application for permission to lead the secondary evidence before the Court

The Court held that “There is no cross-examination of any of the witnesses of the defendants in respect of loss of original Will. Section 65 of the Evidence Act permits secondary evidence of existence, condition, or contents of a document including the cases where the original has been destroyed or lost. The plaintiff had admitted the execution of the Will though it was alleged to be the result of fraud and misrepresentation” (Para 17)

The Court further observed and held that “There is no requirement that an application is required to be filed in terms of Section 65(c) of the Evidence Act before the secondary evidence is led. A party to the lis may choose to file an application which is required to be considered by the trial court but if any party to the suit has laid foundation of leading of secondary evidence, either in the plaint or in evidence, the secondary evidence cannot be ousted for consideration only because an application for permission to lead secondary evidence was not filed.” (Para 20)

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Saptarshi Mukhopadhyay