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REPORTABLE

IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. 13361 OF 2015 (Arising out of SLP (C) No. 29621 of 2014)

Rakesh Mohindra Appellant (s)

versus Anita Beri and others                                    Respondent(s)

J U D G M E N T

M.Y. Eqbal, J.:

Leave granted.

2. This  appeal  by  special  leave  is  directed  against  order

dated 2.9.2014 passed by learned Single Judge of  the High

Court of Himachal Pradesh who set aside the  order rendered

by the trial court permitting the defendant-appellant to lead

secondary evidence in the Civil Suit filed by respondent no.1.

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3. The short question that arises for consideration by this

Court is as to whether the High Court is justified in reversing

the  order  passed  by  the  Trial  Court  allowing  the

defendant-appellant to lead secondary evidence of the contents

of the documents.

4. The facts of the case lie in a narrow compass.

5. The  respondents-plaintiffs  have  filed  a  suit  under

Sections  34  and  38  of  the  Specific  Relief  Act,  1963  for

declaration that the appellant-defendant has no right, title or

interest over the suit property in any manner and plaintiffs are

in  possession  of  the  same.  Consequently,  defendant  be

restrained from causing any type of loss, injury and doing any

such act which may in any manner, cause prejudice to the

user, possession and title of the plaintiff qua the suit property.

6. The subject matter of the suit is part of the land defined

as  Survey  No.  41,  Kasauli  Cantt.  Tehsil  Kasauli  and

structures/buildings  more  specifically  known  as  “Dharma

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Prakash, Homestead”. One late Sh. Duni Chand Advocate was

owner  in  possession  of  land  comprised  in  Survey  No.  41,

measuring 2.31 acres described as “Kildare Estate” Homestead

Dharma Prakash. Late Sh. Duni Chand, during his life time

executed a gift deed with regard to the property owned by him

which  was  registered  as  deed  No.  2  with  Sub  Registrar,

Kasauli. He gifted his properties to his son Justice late Sh. Tek

Chand.  Justice  late  Sh.  Tek  Chand  became

owner-in-possession of the suit property. Justice late Sh. Tek

Chand  expired  on  16.6.1996  leaving  behind  two  daughters

Smt. Anila Sood and Smt. Anita Beri and one son Sh. Vikram

Dhanda.  Justice  late  Sh.  Tek  Chand  during  his  life  time

executed a legal  and valid ‘will’  in favour of  plaintiff  No.  2,

Smt. Anita Beri, which was duly registered with Sub Registrar

Chandigarh, as deed No. 410 dated 19.6.1984. The mother of

defendant was step sister of Justice late Sh. Tek Chand. He

was using portion of  house known as ‘Homestead’  with the

permission  of  plaintiff  No.  2,  namely,  Smt.  Anita  Beri.  She

came to know that defendant was misusing the license and

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raised some illegal construction in the shape of platform, so as

to use the same for the purpose of car parking.  

7. According to the plaintiff, defendant has no right, title or

interest over the suit property and as such could not change

the  nature  of  the  same.  A  legal  notice  was  issued  on

5.11.2006. Reply was sent by the defendant to the same. The

defendant  has  also  started causing  obstruction to  the  path

which  leads  from circular  road  to  ‘Homestead  cottage’  and

‘Homestead  building’.  Plaintiff  No.  2  has  requested  the

defendant not to lock the gate. However, the lock on the gate

has been put to cause temporary obstruction, hindrance and

prejudice to the user of the suit property by plaintiff No. 2.  

8. On the other hand, the defendant-appellant’s case is that

they have inherited the property from Smt. Vijaya Kumari who

became the owner of the suit property on the basis of the gift

deed dated 19.03.1965. Appellant’s further case is that Justice

Tek Chand had issued a letter of disclaimer dated 24.08.1982.

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According to the appellant, the said letter of disclaimer was

handed over by Justice Tek Chand to his sister Smt. Vijaya

Kumari  who  in  turn handed over  to  the  appellant.  On the

basis  of  letter  of  disclaimer,  the  appellant  vide  letter  dated

21.07.2001 requested the authority,  namely,  Defence Estate

Officer  (DEO),  Ambala  Cantt  for  effecting  mutation  of  the

property in his name.

9. On these backgrounds, the defendant filed an application

in  the  Trial  Court  under  Section  65  of  the  Evidence  Act

seeking permission to prove the letter of disclaimer executed

by Justice Tek Chand by way of secondary evidence.  For that

purpose, the defendant summoned the record of GLR from the

office of DEO, Ambala who is said to be the custodian of the

record.  According to the appellant, at the time of sanction of

mutation with respect to the suit property, the appellant had

filed the original affidavits of the co-sharers  along with the

letter of disclaimer executed by Justice Tek Chand with one

Photostat set lying in the office of DEO, Ambala.

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10. For the purpose of deciding the application under Section

65 of the Evidence Act, the appellant examined the concerned

official to produce the record available in the said office.  On

the basis of the evidence given by the witness, who produced

the  record  and  the  evidence  of  defendant,  the  Trial  Court

allowed the application and admitted the letter of disclaimer to

be used as secondary evidence.

11. As  averred  in  the  application,  the  defendant  has

summoned the record of General Land Register from the Office

of D.E.O. Ambala, who is the custodian of the record.  It is

defendant’s case that at the time of sanction of the mutation

with  regard  to  the  suit  property  he  had  filed  the  original

affidavits  of  the  co-sharers  including  affidavits  and  original

letter  of  disclaimer  of  late  Justice  Sh.  Tek Chand with  one

Photostat set of the same in the office of D.E.O. Ambala. On

the  basis  of  the  original  letter  of  disclaimer  and  affidavits,

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mutation of the suit property was sanctioned in favour of the

deponent. The concerned official produced the original record

in  the  Court  on  4.7.2013  except  the  letter  of  disclaimer

executed  by  late  Justice  Sh.  Tek  Chand  on  24.8.1982,  in

favour  of  Sh.  Harish  Chandra  Dhanda  and  Smt.  Vijaya

Kumari, the mother of the applicant. The original disclaimer

letter is supposed to be in the said office but the concerned

official made statement on oath in the Court that the original

is not in their office and their office has Photostat copy of the

original, and therefore, he produced the Photostat copy of the

letter.  According  to  the  defendant,  despite  his  efforts,  the

original  of  DW-2/B  was  not  traceable  and  has  been

misplaced/lost from the Office of D.E.O. Ambala. In reply to

the application, it was denied that the letter of disclaimer ever

existed or Photostat of the same was ever made. It has been

pleaded  that  late  Justice  Sh.  Tek  Chand  never  executed

disclaimer letter and the Photostat copy was a forged one.

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12. Allowing the application of  the defendant  and granting

leave of the court to lead secondary evidence qua document

Ext.DW-2/B, trial court observed that:

“The photocopy Ext.DW-2/B has come from the custody of DEO Ambala and the applicant has been able to comply with the provision of Section 65 of the Indian Evidence Act as it has come in evidence that the original document i.e. letter of disclaimer Ext.DW-2/B was handed over by the applicant  to  DEO  Ambala.   In  view  of  the aforesaid this court is satisfied that the original document stands misplaced and the applicant is allowed to lead secondary evidence with respect to  the  document  Ext.DW-2/B  as  enviasaged under Section 65(c) of the Indian Evidence Act and both these issues are decided in favour of the applicants and against the respondents.”

13. Learned  Single  Judge  of  the  High  Court  in  the  civil

revision preferred by  the  plaintiff-respondent  no.1  set  aside

the aforesaid order of the trial court.

14. Hence, this appeal by special leave by the defendant.  

15. As  a  general  rule,  documents  are  proved  by  leading

primary evidence.   Section 64 of  the  Evidence Act  provides

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that  documents  must  be  proved  by  the  primary  evidence

except in cases mention in Section 65 of the Evidence Act.  In

the absence of primary evidence, documents can be proved by

secondary evidence as contemplated under Section 63 of the

Act which reads as under: -

“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  ensure  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 documents given by some person who has himself seen it.  Illustration:  (a)  A  photograph  of  an  original  is  secondary evidence of its contents, though the two have not been  compared,  if  it  is  proved  that  the  thing photographed was the original. (b) A copy compared with a copy of a letter made by a copying machine is secondary evidence of the contents of the letter, if it is shown that the copy made by the copying machine was made from the original.  (c)  A  copy  transcribed  from  a  copy,  but afterwards  compared  with  the  original,  is secondary  evidence;  but  he  copy  not  so compared  is  not  secondary  evidence  of  the original,  although the  copy  from which  it  was transcribed was compared with the original.  (d) Neither an oral account of a copy compared with  the  original,  nor  an  oral  account  of  a

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photograph or machine copy of the original,  is secondary evidence of the original.”

16. Section 65 of the Act deals with the circumstances under

which secondary evidence relating to documents may be given

to prove the existence, condition or contents of the documents.

For better appreciation Section 65 of the Act is quoted herein

below:-

“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 public document within the meaning of section 74;  

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(f)  when the original is a document of which a certified copy is permitted by this Act, or by any   other  law  in  force  in 40[India]  to  be  given  in evidence ;  (g)  when  the  originals  consist  of  numerous accounts  or  other  documents  which  cannot conveniently be examined in court and the fact to be proved it the general result of the whole collection. In cases (a), (c) and (d), any secondary evidence of the contents of the document is admissible. In case (b), the written admission is admissible. In  case  (e)  or  (f),  a  certified  copy  of  the document,  but  no  other  kind  of  secondary evidence, admissible. In  case  (g),  evidence  may  be  given  as  to  the general result of the documents by any person who has examined them, and who is skilled in the examination of such documents.”

17. The  pre-conditions  for  leading  secondary  evidence  are

that such original documents could not be produced by the

party  relied  upon  such  documents  in  spite  of  best  efforts,

unable  to  produce the  same which is  beyond their  control.

The  party  sought  to  produce  secondary  evidence  must

establish for the non-production of primary evidence.  Unless,

it  is  established  that  the  original  documents  is  lost  or

destroyed  or  is  being  deliberately  withheld  by  the  party  in

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respect  of  that  document  sought  to  be  used,  secondary

evidence in respect of that document cannot accepted.  

18. The  High  Court  in  the  impugned  order  noted  the

following :-

“9. There is no averment about Ext. DW-2/B in the  Written  Statement.  The  Written  Statement was filed on 19.2.2007. DW-2/B infact is only a photocopy.  The  plaintiffs  are  claiming  the property on the basis of  a registered will  deed executed in her favour in the year 1984. It was necessary  for  the  defendant  to  prove  that  in what  manner  the  document  dated  24.8.1982 was executed. The defendant while appearing as AW-1  has  admitted  in  his  cross-examination that except in his affidavit Ext. AW-1/A, he has not mentioned in any document that the letter of disclaimer was executed by Justice late Sh. Tek Chand in his presence. The statement of DW-2 does not prove that Ext. DW-2/A, ever existed. DW-2  Sh.  Gurcharan  Singh,  has  categorically admitted in his cross-examination that he has not brought the original of Ext. DW- 2/B. He has also  admitted  that  on  Ext.  DW-2/B,  the signatures  of  P.C.  Danda  were  not  legible. Volunteered  that,  those  were  not  visible.  The learned trial Court has completely misread the oral as well as the documentary evidence, while allowing the application under Section 65 of the Indian  Evidence  Act,  1872,  more  particularly, the statements of  DW-2 Gurcharan Singh and DW-3  Deepak  Narang.  The  applicant  has miserably failed to comply with the provisions of Section 65 of the Indian Evidence Act, 1872. The learned trial Court has erred by coming to the

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conclusion  that  the  applicant  has  taken sufficient steps to produce document Ext. DW- 2/B.”

19. The High Court, following the ratio decided by this Court

in the case  of  J.  Yashoda vs.  Smt. K.  Shobha Rani, AIR

2007  SC  1721  and  H.  Siddiqui  (dead)  by  lrs.  vs.  A.

Ramalingam, AIR 2011 SC 1492, came to the conclusion that

the defendant failed to prove the existence and execution of

the original documents and also failed to prove that he has

ever  handed over  the  original  of  the  disclaimer  letter  dated

24.8.1982 to the authorities.  Hence, the High Court is of the

view that  no  case  is  made  out  for  adducing  the  secondary

evidence.

20. The witness DW-2, who is working as UDC in the office

of DEO, Ambala produced the original GLR register.  He has

produced four sheets of paper including a photo copy of letter

of  disclaimer.   He  has  stated  that  the  original  documents

remained  in  the  custody of  DEO.  In cross-examination,  his

deposition is reproduced hereinbelow:-

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“xxxxxxxx by Sh. M.S. Chandel, Advocate for the plaintiff No.2.  I have not brought the complete file along with the  record.   I  have  only  brought  those documents which were summoned after taking up the documents from the file.  As on today, as per the GLR, Ex.DW-2/A, the name of Rakesh Mohindra  is  not  there.  His  name  was  deleted vide order dated 29.8.2011. I have not brought the  original  of  Ex.DW-2/B.   It  is  correct  that Ex.DW-2/D does not bear the signatures of Sh. P.C.  Dhanda.   Volunteered.:  These  are  not legible.  Ex.DW-2/C is signed but the signatures are  not  leible.   On  the  said  document  the signatures of the attesting officer are not legible because  the  document  became  wet.   I  cannot say  whose  signatures  are  there  on  these documents.   On Ex.DW-2/E the signatures  at the place deponent also appears to have become illegible because of water. Ex.DW-2/F also bears the  faded  signatures  and  only  Tek  Chand  is legible on the last page.  It is incorrect to suggest that the last page does not have the signatures of  the attesting authority.   Volunteered:  These are faded, but not legible.  The stamp on the last paper is also not legible.  There is no stamp on the first and second page.  In our account, there is  no  family  settlement,  but  only acknowledgement of family settlement.  I do not know how many brothers Rakesh Mohindra has. It is correct that the original of Ex.DW-2/H does not bear the signatures of Sh. Abhay Kumar.  I do not know whether Sh. Abhay Kumar Sud and Rakesh Mohindra are real brothers.  The above mentioned documents were neither executed nor prepared  in  my  presence.   It  is  incorrect  to suggest  that  the  above  mentioned  documents are  forged.   It  is  incorrect  to  suggest  that because of  this reason I  have not brought the complete file.”

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21. In  the  case  of  Rai  Baijnath  (dead)  by  Kedarnath

Goenka vs.Maharaja Sir pavaneshwar Prasad Singh,  AIR

1922  Privy  Council  page  54,  a  similar  question  came  for

consideration as to the  admissibility of secondary evidence in

case  of  loss  of  primary  evidence.    Lord  Phillimore  in  the

judgment observed:-  

“ It is, no doubt, not very likely that such a deed would  be  lost,  but  in  ordinary  cases,  if  the witness  in  whose  custody  the  deed  should  be, deposed to its loss, unless there is some motive suggested for his being untruthful, his evidence would  be  accepted  as  sufficient  to  let  in secondary evidence of the deed.”

22. It is well settled that if a party wishes to lead secondary

evidence, the Court is obliged to examine the probative value

of the document produced in the Court or their contents and

decide  the  question  of  admissibility  of  a  document  in

secondary evidence.  At the same time, the party has to lay

down  the  factual  foundation  to  establish  the  right  to  give

secondary  evidence  where  the  original  document  cannot  be

produced.   It  is  equally  well  settled  that  neither  mere

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admission of a document in evidence amounts to its proof  nor

mere making of an exhibit of  a document dispense with its

proof, which is otherwise required to be done in accordance

with law.

23. In the case of M. Chandra vs. M. Thangamuthu, (2010)

9 SCC 712, this Court considered the requirement of Section

65 of the Evidence Act and held as under:-

“47. We do not agree with the reasoning of the High Court. It is true that a party who wishes to rely  upon  the  contents  of  a  document  must adduce  primary  evidence  of  the  contents,  and only  in  the  exceptional  cases  will  secondary evidence  be  admissible.  However,  if  secondary evidence is admissible, it may be adduced in any form in  which it  may be  available,  whether  by production of a copy, duplicate copy of a copy, by oral evidence of the contents or in another form. The  secondary  evidence  must  be  authenticated by foundational evidence that the alleged copy is in fact a true copy of the original. It should be emphasised  that  the  exceptions  to  the  rule requiring  primary  evidence  are  designed  to provide relief in a case where a party is genuinely unable to produce the original through no fault of that party.”

24. After  considering  the  entire  facts  of  the  case  and  the

evidence  adduced  by  the  appellant  for  the  purpose  of

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admission of the secondary evidence, we are of the view that

all  efforts  have  been  taken  for  the  purpose  of  leading

secondary  evidence.   The  trial  court  has  noticed  that  the

photocopy of the Exhibit DW-2/B came from the custody of

DEO Ambala and the witness, who brought the record, has

been examined as witness. In that view of the matter, there is

compliance of the provisions of Section 65 of the Evidence Act.

Merely because the signatures in some of the documents were

not legible and visible that cannot be a ground to reject the

secondary  evidence.   In  our  view,  the  trial  court  correctly

appreciated the efforts taken by the appellant for the purpose

of leading secondary evidence.

25. For the reasons aforesaid, the impugned order passed by

the High Court  cannot  be sustained in law.   The appeal  is

accordingly allowed and the order passed by the High Court is

set aside.

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26. However,  we  make  it  clear  that  mere  admission  of

secondary  evidence,  does  not  amount  to  its  proof.   The

genuineness, correctness and existence of the document shall

have to be established during the trial and the trial court shall

record  the  reasons  before  relying  on  those  secondary

evidences.  

…………………………….J. (M.Y. Eqbal)

…………………………….J. (C. Nagappan)

New Delhi November 06C, 2015

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