To lead secondary evidence, filing of an application u/s 65(c) of the Evidence Act is not necessary; SC.

Supreme Court of India

Justice Hemant Gupta & Justice L. Nageswara Rao

The SC on March 19, 2020 {DHANPAT v. SHEO RAM (DECEASED) THROUGH LRS. & ORS.} held that there is no requirement that an application is required to be filed in terms of Section 65(c) of the Evidence Act before the secondary evidence is led. It was held that a party to the lis may choose to file an application which is required to be considered by the trial court but if any party to the suit has laid foundation of leading of secondary evidence, either in the plaint or in evidence, the secondary evidence cannot be ousted for consideration only because an application for permission to lead secondary evidence was not filed.

It was held that in the present case as well, the Will was in possession of the beneficiary and was stated to be lost. It was held that the Will is dated 30th April, 1980 whereas the testator died on 15th January, 1982. It was also held that there is no cross-examination of any of the witnesses of the defendants in respect of loss of original Will. It was held that Section 65 of the Evidence Act permits secondary evidence of existence, condition, or contents of a document including the cases where the original has been destroyed or lost. It was further held that the plaintiff had admitted the execution of the Will though it was alleged to be the result of fraud and misrepresentation. It was held that the execution of the Will was not disputed by the plaintiff but only proof of the Will was the subject matter in the suit.

It was opined that once the evidence of the defendants is that the original Will was lost and the certified copy is produced, the defendants have made out sufficient ground for leading of secondary evidence. 

It was further held that onus probandi lies in every case upon the party propounding a Will, and he must satisfy the conscience of the court that the instrument so propounded is the last will of a free and capable testator. It was held that once the Will has been proved then the contents of such document are part of evidence, and thus, the requirement of Section 63 of the Act and Section 68 of the Evidence Act stands satisfied. It was held that the witness is not supposed to repeat in a parrot like manner the language of Section 68 of the Evidence Act. It was held that it is a question of fact in each case as to whether the witness was present at the time of execution of the Will and whether the testator and the attesting witnesses have signed in his presence. It was held that the statement of the attesting witness proves the due execution of the Will apart from the evidence of the scribe and the official from the Sub-Registrar’s office.

It was further held that the judicial verdict will be based on the consideration of all the unusual features and suspicious circumstances put together and not upon the impact of any single feature that may be found in a Will or a singular circumstance that may appear from the process leading to its execution. It was also held that the Will was executed for the exclusion of the natural heirs - the suspicious circumstances found by the High Court to deprive the natural heirs by the testatrix was not found to be sufficient in earlier judgment by the SC.

It was held that the High Court has clearly erred in law in interfering with the concurrent findings of fact recorded by both the Courts below. It was held that the entire judgment runs on misconception of law and is, therefore, not sustainable in law. Accordingly, the same was set aside and the decree of the First Appellate Court was restored by the SC.

In the present case, the challenge before the SC in the present appeal is to an order passed by the High Court of Punjab & Haryana on 27th March, 2014 whereby the concurrent findings of fact recorded by both the courts below were set aside and the suit filed by the respondent-plaintiff was decreed. The said judgment of HC was set aside by the SC, and the suit consequentially stand dismissed.