Civil Appeal No. 1889 of 2020 (Arising out of Special Leave Petition (C) No. 17437 of 2017)
Decided On: 13.05.2020
Appellants: Jagmail Singh and Ors.
Respondent: Karamjit Singh and Ors.
Hon'ble Judges/Coram: Navin Sinha and Krishna Murari, JJ.
Case Category: PERSONAL LAW MATTERS - MATTERS RELATING TO TESTAMENTARY SUCCESSION
In the current case, it is basic to value the evidence of the witnesses as it is simply in the wake of investigating the equivalent, assessment can be found with regards to the presence, loss or destruction of the first Will. While both the income authorities neglected to create the first, endless supply of the interrogation plainly neither of the authorities has unequivocally kept the presence from getting the Will.
IN THE judgment of the case-Jagmail Singh and Another v. Karamjit Singh and Others, conveyed on May 13, 2020, a division bench of the Supreme Court comprising of Justice Navin Sinha and Justice Krishna Murari have held that considering the verifiable circumstance winning for this situation, it is clear that authentic establishment to build up that the option to give secondary evidence was set somewhere near the appellants and hence the Punjab and Haryana High Court should have allowed them a chance to lead secondary evidence.
As indicated by the Supreme Court, the said HC at Chandigarh submitted grave error of law without appropriately assessing the proof and holding that the pre-imperative condition that is, presence of Will stayed unestablished on record and along these lines denied a chance to the appellants to produce secondary evidence.
Unnecessary to see that just the confirmation in proof and making a display of a report doesn't demonstrate it naturally except if the equivalent has been demonstrated as far as and as per the law. An examination of Section 65 of the Evidence Act clarifies that secondary evidence might be given with respect to presence, condition or substance of a report when the first is appeared or gives off an impression of being in control of or power against whom the original is shown to be created, or of any individual far from, or not expose to the cycle of the Court or of any individual legitimately bound to deliver it, and when, after notification referenced in section 66 such individual doesn't create it, it is settled situation of law that for secondary evidence to be conceded original evidence must be given being the reasons regarding why the original evidence has not been furnished.
The issue emerging out of fairly comparative realities and conditions has been considered by the Supreme Court in its judgment – Ashok Dulichand v. Madhavlal Dube and Another – (1976) 1 SCR 246 and it was held: "As indicated by Clause (a) of section 65 of Indian Evidence Act, Secondary evidence might be given of the presence, condition or substance of a report when the original is shown or seems, by all accounts, to be under lock and key or force of the individual against whom the record is sought to be proved or any individual
far from, or not expose to, the process of the Court of any individual legitimately bound to create it, and when, after the notification referenced in section 66 such individual doesn't deliver it.
Clauses (b) to (g) of section 65 indicate some different possibilities wherein secondary evidence of identifying with a report might be given." In the judgment of the case – Rakesh Mohindra v. Anita Beri and Others-(2016) 16 SCC 483-the Supreme Court has noticed: "15. The preconditions for driving secondary evidence are that such unique records couldn't be delivered by the gathering depending upon such original documents inspite of best endeavors, incapable to create a similar which is outside their ability to control. The party tried to create secondary evidence should set up for the non-production of primary evidence. Except if, it is set up that the original document is lost or annihilated or is in effect intentionally retained by the party in regard of that document tried to be utilized, secondary evidence in regard of that report cannot (be) acknowledged."
It is dull that under the Evidence Act, 1872, facts must be set up by primary evidence and secondary evidence is just exemption for the standard for which basic facts must be set up to represent the presence of the primary evidence. On account of H. Siddiqui (dead) by LRs v. A. Ramlingam-(2011) 4 SCC 240, the Supreme Court has repeated that where original documents are not delivered without a conceivable explanation and verifiable establishment for laying secondary evidence not set up, it isn't admissible for the Court to permit a party to cite secondary evidence. In the current case, it is basic to value the evidence of the witnesses as it is simply subsequent to investigating the equivalent, assessment can be found concerning the presence, misfortune or destruction of the original Will.
While both the revenue authorities neglected to deliver the first, endless supply of the questioning unmistakably neither of the authorities has unequivocally kept the presence from getting the Will. Prosecution Witness-3 Rakesh Kumar has expressed during interrogation that there was another patwari here and he was uninformed if such Will was introduced before the other patwari. He proceeded to express that this issue was 25 years of age and he was not, at this point posted here and, accordingly, couldn't follow the Will. Additionally, PW-4 conceded that "there was registered Will which was entered.
There was a Kachchi (unregistered) Will of Babu Singh was given over to Rakesh Kumar patwari for entering the mutation....". Besides, the by prima facie evidence of presence of the Will is set up from the assessment of PW-1, Darshan Singh, who is recorder of the Will being referred to and dismissed as under: "I have seen the Will dated 24.01.1989 which bears my signature as recorder and just as witness." The allure for this situation was coordinated against the judgment conveyed by the Punjab and Haryana HC at Chandigarh on January 9, 2017 in the common amendment 7271/2015 whereby the HC affirmed the request passed by the Civil Judge, Junior Division, Moga in the application documented under sections 65 and 66 of the Indian Evidence Act by the appellants thus, looking for consent to demonstrate the duplicate of the Will of January 24, 1989 executed by one Babu Singh in support of themselves via secondary evidence, as the original Will which was given over to the town patwari for mutation couldn't be followed.
The High Court while excusing the application had seen that as the pre-imperative state of presence of the Will isn't demonstrated, the Will can't be allowed to be demonstrated by permitting the secondary evidence. Taking into account the lawful and genuine position, the Supreme Court has expressed that it is of the considered assessment that the condemned judgment of the HC experiences material abnormality and patent mistakes of law and not obligated to be maintained and is accordingly, thus put in a safe spot and the allure stands permitted. The apex court has pronounced that the appellants are qualified for lead secondary evidence in regard of the Will being referred to, yet nonetheless, such confirmation of secondary evidence consequently doesn't validate its authenticity, truthfulness or validity, which should be set up during the trial, as per law.