Case Note & Summary
The appeal arose from a civil suit filed by Jagmail Singh and another (appellants) seeking a declaration of ownership over land owned by Babu Singh, and challenging mutations sanctioned in favour of Baldev Singh and Shamsher Singh (respondents) based on an alleged forged Will dated 20.03.1988. During the suit, the appellants moved an application under Sections 65 and 66 of the Indian Evidence Act, 1872, seeking permission to prove a copy of a Will dated 24.01.1989 executed by Babu Singh in their favour by way of secondary evidence, as the original Will had been handed over to the village patwari for mutation and could not be retrieved. The Trial Court initially allowed the application, but the High Court, in a revision, set aside that order and directed the appellants to first serve notice under Section 66 on the revenue officials. The appellants complied, serving notice on Patwaris Pyare Lal and Rakesh Kumar, who failed to produce the original Will. The Trial Court then dismissed the application, and the High Court upheld the dismissal, holding that the pre-requisite condition of proving the existence of the Will was not satisfied. The Supreme Court examined Sections 65 and 66 and held that the foundational requirement for secondary evidence under Section 65(a) is that the original is shown or appears to be in possession of a person legally bound to produce it, and after notice under Section 66, such person does not produce it. The existence of the document need not be proved at the stage of admission of secondary evidence; it can be proved during trial. The Court noted that the appellants had served notice and the revenue officials failed to produce the Will, thus satisfying the conditions. The Court allowed the appeal, set aside the impugned order, and permitted the appellants to lead secondary evidence of the Will.
Headnote
A) Evidence Law - Secondary Evidence - Sections 65 and 66 of Indian Evidence Act, 1872 - Foundational Requirements - The appellants sought to prove a copy of a Will by secondary evidence after the original was handed over to revenue officials for mutation and could not be retrieved despite notice under Section 66. The High Court dismissed the application holding that the existence of the Will was not proved. The Supreme Court held that the pre-requisite condition for admission of secondary evidence under Section 65(a) is that the original is shown or appears to be in possession of a person legally bound to produce it, and after notice under Section 66, such person does not produce it. The existence of the document need not be proved at the threshold; it can be proved during trial. The Court allowed the appeal and set aside the impugned order, permitting the appellants to lead secondary evidence. (Paras 11-16) B) Evidence Law - Notice to Produce - Section 66 of Indian Evidence Act, 1872 - Compliance - The appellants had served notice under Section 66 to the revenue officials through the Court, but the officials failed to produce the original Will. The Supreme Court held that this satisfied the requirement of notice under Section 66, and the non-production by the officials entitled the appellants to lead secondary evidence under Section 65(a). (Paras 5, 11, 16)
Issue of Consideration
Whether the High Court erred in dismissing the application for leading secondary evidence of a Will under Sections 65 and 66 of the Indian Evidence Act, 1872, on the ground that the existence of the original Will was not proved.
Final Decision
The Supreme Court allowed the appeal, set aside the impugned order of the High Court dated 09.01.2017, and permitted the appellants to lead secondary evidence of the Will dated 24.01.1989 in accordance with law.
Law Points
- Secondary evidence
- Sections 65 and 66 of Indian Evidence Act
- 1872
- Foundational evidence
- Notice to produce
- Existence of original document
- Proof of Will
