To lead Secondary evidence, factual foundation for existence of primary evidence is to be laid down; SC

The SC on May 13, 2020 {JAGMAIL SINGH & ANR. v. KARAMJIT SINGH & ORS.} held that it is trite that under the 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 the existence of the primary evidence. 

The SC Bench, comprising of Justice Krishna Murari & Justice Navin Sinha further held that where original documents are not produced without a plausible reason and factual foundation for laying secondary evidence not established it is not permissible for the court to allow a party to adduce secondary evidence.

In the present case, an application was filed under Section 65 and 66 of the Indian Evidence Act by the appellants,  seeking permission to prove the copy of the Will  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 in revision dismissed the said application - which order was subject matter of challenge before the SC.

The SC held that in the case at hand, it is imperative to appreciate the evidence of the witnesses as it is only after scrutinizing the same opinion can be found as to the existence, loss or destruction of the original Will. It was held that while both the revenue officials failed to produces the original Will, upon perusal of the cross-examination it is clear that neither of the officials has unequivocally denied the existence of the Will.

The SC held that it is clear that the 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. It was held that 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 SC held that the impugned judgment of the High Court suffers from material irregularity and patent errors of law and not liable to be sustained and was set aside. The appeal accordingly stands allowed by the SC.