Sureshwar Thakur, Judge. (Oral)

The respondents are the propounders of the Will of deceased Gita Ram. Under his testamentary disposition, Gita Ram conveyed therein his rights and interest in the suit property in favour of the respondents herein. Since the condition of the testamentary disposition of the deceased Gita Ram, executed by the latter in favour of respondents herein stood mutilated, hence, a certified copy thereof was proposed to be adduced in evidence by the respondents herein by instituting an application under Section 65 of the Indian Evidence Act. Even though, the provisions of Section 63 of the Indian Evidence Act define the phrase “secondary evidence”, whose provisions stand extracted hereinafter:-

“63. Secondary evidence.—Secondary evidence means and includes—

(1) Certified copies given under the provisions hereinafter contained;

(2) Copies made from the original by mechanical processes which in themselves insure the accuracy of the copy, and copies compared with such copies;

(3) Copies made from or compared with the original;

(4) Counterparts of documents as against the parties who did not execute them;

(5) Oral accounts of the contents of a document given by some person who has himself seen it.”

Inasmuch as, sub section 3 of Section 63 of the Indian Evidence Act defines “secondary evidence” to mean and include copies made from or compared with the original. Moreover, the hereinafter extracted provisions of Section 79 of the Indian Evidence Act impute a presumption of genuineness to certified copies, which presumption under Section 4 of the Indian Evidence Act has been ordained therein to be conclusive unless the fact sought to be proved by adduction of a certified copy of the original stand disproved. Section 79 of the Indian Evidence Act reads as under:-

“79. Presumption as to genuineness of certified copies.— The Court shall presume [to be genuine] every document purporting to be a certificate, certified copy, or other document, which is by law declared to be admissible as evidence of any particular fact and which purports to be duly certified by any officer 2[of the Central Government or of a State Government, or by any officer 3[in the State of Jammu and Kashmir] who is duly authorized thereto by the Central Government]:

Provided that such document is substantially in the form and purports to be executed in the manner directed by law in that behalf.

The Court shall also presume that any officer by whom any such document purports to be signed or certified held, when he signed it, the official character which he claims in such paper.”

Primarily, the application at hand came to be instituted under the provisions of Section 65 of the Indian Evidence Act. However, clause (c) of Section 65 enunciates the conditions which have to be necessarily complied with or have to stand satisfaction as a prerequisite for the tendering into evidence, any document by way of secondary mode. Section 65 reads as under:-

“65. Cases in which secondary evidence relating to documents may be given.—Secondary evidence may be given of the existence, condition, or contents of a document in the following cases:—

(a) When the original is shown or appears to be in the possession or power— of the person against whom the document is sought to be proved, 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 the notice mentioned in section 66, such person does not produce it;

(b) when the existence, condition or contents of the original have been proved to be admitted in writing by the person against whom it is proved or by his representative in interest;

(c) when the original has been destroyed or lost, or when the party offering evidence of its contents cannot, for any other reason not arising from his own default or neglect, produce it in reasonable time;

(d) when the original is of such a nature as not to be easily movable;

(e) when the original is