JAGMAIL SINGH & ANR. versus KARAMJIT SINGH & ORS.

Citation: [2020] 4 S.C.R. 1163 · Decided: 13-05-2020 · Supreme Court of India · Bench: NAVIN SINHA · Disposal: Appeal(s) allowed

Cited by 2 judgment(s) · cites 3 · see the full citation network in Lexace

Judgment (excerpt)

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JAGMAIL SINGH & ANR.
v.
KARAMJIT SINGH & ORS.
(Civil Appeal No. 1889 of 2020)
MAY 13, 2020
[NAVIN SINHA AND KRISHNA MURARI, JJ.]
Evidence Act, 1872 – ss.65 and 66 – Entitlement to lead
secondary evidence in respect of a document – Appellant filed suit
for declaration of title in respect of land and for declaration that
the mutations sanctioned by Assistant Collector in favour of
pre-decessors-in-interest of respondent 1 to 3 were illegal, null and
void – During pendency of suit, appellant filed  application under
ss. 65/66 seeking permission to prove copy of Will by way of
secondary evidence – Trial court allowed the application –
However, High Court set aside order of trial court holding that
appellant ought to have given notice to revenue officials under s.66
for producing original will as claimed – Thereupon appellants filed
application u/s.66 – The revenue officials were issued notice for
production of original Will but they failed to produce the Will –
The said application was dismissed by trial court – Appellants
unsuccessfully filed revision petition u/Art.227 before High Court
– Hence instant appeal – Held: In terms of s.65, 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 s.66 such person
does not produce it – It is trite that under the Evidence Act, 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 the existence of the
primary evidence – In the case at hand, while both the revenue
officials failed to produce the original Will, their cross-examination
showed that neither of the officials unequivocally  denied  the
existence  of  the  Will – Furthermore, the evidence of existence of
Will was established from examination of scribe of the Will in
   [2020] 4 S.C.R. 1163
1163
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SUPREME COURT REPORTS
[2020] 4 S.C.R.
question – Thus, the factual foundation to establish the right to
give secondary evidence was laid down by the 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 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 – Appellants would be entitled to lead
secondary evidence in respect of the Will in question.
Allowing the appeal, the Court
HELD:   The Patwari  during his cross-examination stated
that there was another patwari in that area and he was unaware
if such Will was presented before the other patwari. He went
on to state that this matter was 25 years old and he was no
longer posted in that area and, therefore, could not trace the
Will. Moreover, PW- 4 went on to admit that, “there was
registered Will which was entered. There was a Katchi
(unregistered) Will of Babu Singh was handed over to PW-3 for
entering the mutation...”.  Furthermore, the prima facie evidence
of existence of the Will is established from the examination of
PW-1,  who is the scribe of the Will in question.  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.   The appellants would be entitled to lead secondary
evidence in respect of the Will in question. [Paras 15, 16, 18,
19] [1171-D-E-G; 1172-C]
Ashok Dulichand v. Madahavlal Dube and Anr. [1976]
1 SCR 246 ; Rakesh Mohindra v. Anita Beri and Ors.
(2016) 16 SCC 483 : [2015] 13 SCR 1158 ; H.
Siddiqui (dead) by LRs v. A. Ramalingam (2011) 4 SCC
240 : [2011] 5 SCR 587 – referred to.
Case Law Reference
[1976] 1 SCR 246
referred to
Para 12
[2015] 13 SCR 1158
referred to
Para 13
[2011] 5 SCR 587
referred to
Para 14
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CIVIL APPELLATE JURISDICTION : Civil Appeal No. 1889
of 2020.
From the Judgment and Order dated 09.01.2017 of the High
Court of Punjab and Haryana at Chandigarh in Civil Revision No. 7271
of 2015.
R. Anan

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