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SUPREME COURT OF INDIA
NAVIN SINHA, KRISHNA MURARI, JJ.
JAGMAIL SINGH & ANR. – APPELLANT(S)
VERSUS
KARAMJIT SINGH & ORS. – RESPONDENT(S)
Civil Appeal No. 1889 of 2020 (Arising Out of Special Leave Petition (c) No. 17437 of 2017)
Decided on : 13-05-2020
Indian Evidence Act, 1872 – Sections 65 and 66 – Secondary evidence – Copy of Will – Secondary evidence may be given with regard to existence, condition or contents of a document when original is shown or appears to be in possession or power against whom document is sought to be produced, or of any person out of reach of, or not subject to, process of Court, or of any person legally bound to produce it, and when, after notice mentioned in Section 66 such person does not produce it – For secondary evidence to be admitted foundational evidence has to be given being reasons as to why original Evidence has not been furnished – Under Evidence Act, 1872 facts have to be established by primary evidence and secondary evidence is only an exception to the rule for which foundational facts have to be established to account for existence of primary evidence – In case at hand, it is imperative to appreciate evidence of witnesses as it is only after scrutinizing same opinion can be found as to existence, loss or destruction of original Will – While both revenue officials failed to produces original Will, neither of officials has unequivocally denied existence of Will – Factual foundation to establish right to give secondary evidence was laid down by appellants and High Court ought to have given them an opportunity to lead secondary evidence – High Court committed grave error of law without properly evaluating evidence and holding that pre-requisite condition i.e., existence of Will remained unestablished on record and thereby denied opportunity to appellants to produce secondary evidence – Merely admission in evidence and making exhibit of a document does not prove it automatically unless same has been proved in accordance with law – Impugned judgment of High Court suffers from material irregularity and patent errors of law and not liable to be sustained and set aside. (Paras 11, 14, 15, 16, 17 and 18)
Facts of the Case:
Present appeal is directed against the judgment dated 09.01.2017 passed by the High Court of Punjab and Haryana at Chandigarh in Civil Revision No. 7271 of 2015 whereby the High Court confirmed the order passed by the Civil Judge (Junior Division) Moga in application filed under Section 65 and 66 of the Indian Evidence Act by the appellants herein seeking permission to prove the copy of the Will dated 24.01.1989 executed by one Babu Singh in their favour by way of secondary evidence, as the original Will which was handed over to the village Patwari for mutation could not be retrieved. The 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.
Findings of the Court:
Factual foundation to establish the right to give secondary evidence was laid down by the appellants and thus the High Court ought to have given them an opportunity to lead secondary evidence. The High Court committed grave error of law without properly evaluating the evidence and holding that the pre-requisite condition i.e., existence of Will remained unestablished on record and thereby denied an opportunity to the appellants to produce secondary evidence.
Result : Appeal allowed.
JUDGMENT
Krishna Murari, J.
This appeal is directed against the judgment dated 09.01.2017 passed by the High Court of Punjab and Haryana at Chandigarh in Civil Revision No. 7271 of 2015 whereby the High Court confirmed the order passed by the Civil Judge (Junior Division) Moga in application filed under Section 65 and 66 of the Indian Evidence Act by the appellants herein seeking permission to prove the copy of the Will dated 24.01.1989 executed by one Babu Singh in their favour by way of secondary evidence, as the original Will which was handed over to the village patwari for mutation could not be retrieved. The 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.
2. Briefly stated the facts of the case are that the appellants preferred a suit for declaration to the effect that they are owners to the extent of 1/2 share each of the land owned by Babu Singh son of Phuman Singh, situated in village Kokri Kalan, Tehsil & District Moga and Mutation No. 9971 dated 28.02.1991 and Mutation No. 9359 dated 25.02.1991 sanctioned by the Assistant Collector Second Grade, Moga in favour of Baldev Singh (predecessors-in-interest of respondent nos.1 and 2) and Shamsher Singh (respondent No.3) are illegal, null and void, as the said two mutations have been sanctioned on the basis of a forged Will dated 20.03.1988. A further prayer for consequential relief of permanent injunction to restrain the respondents from alienating, transferring or mortgaging the suit property was also sought for.
3. During pendency of the aforesaid suit, an application under Section 65/66 of the Evidence Act was moved by the appellants seeking permission to prove copy of Will dated 24.01.1989 by way of secondary evidence. The said application was allowed by the Trial Court vide order dated 04.07.2014.
4. Feeling aggrieved by the said order, respondents preferred Civil Revision No. 4645 of 2014 which was allowed by the High Court by observing as under:-
"Once the appellants have alleged that the original Will is in possession of the revenue official, they should have served a notice upon him under Section 66 of the Act for its production and in case, it is alleged that the said Will has been lost, then the application could have been filed for leading secondary evidence but in the absence of the compliance of the aforesaid procedure, the application per se filed under Section 65 of the Act is not maintainable. In view of the aforesaid apparent error on the part of the Court below, the present revision petition is hereby allowed and the impugned order is set aside. However, the respondents are still at liberty to move an application under Section 66 of the Act to the revenue official to whom the alleged Will was given for the purpose of sanctioning of mutation and in case of denial on his part that the Will has been lost, they can maintain the application for secondary evidence".
5. Subsequent thereto, appellants preferred another application under Section 65/66 of the Act, before the Trial Court for issuance of notice under Section 66 of the Act to the revenue officials for production of original Will dated 24.01.1989. The application was made on the ground that the said original Will was handed over by the appellants to revenue officials for sanctioning the mutation in their favour. Both the revenue officials were issued notice for production of the original Will dated 24.01.1989 but they failed to produce the said Will. It was only thereafter, application was dismissed vide order dated 30.09.2015.
6. Aggrieved by the above order, the appellants approached the High Court by way of a Revision Petition under Article 227 of the Constitution of India.
7. Learned counsel for the appellants contended that the impugned order is not sustainable in the eyes of law as it suffers from patent errors of law and is against the letter & spi
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