A partition suit which is civil in nature was dealt by the Supreme Court by Hon’ble Justice L. Nageswara Rao and Hon’ble Justice Hemant Gupta. In a case between Dhanpat vs. Sheo Ram (deceased) through legal representatives[i] the Supreme Court has delivered a judgment saying that there is no need to file an application seeking to present secondary evidence.
Brief Facts:
In this case here to deny the interests of the plaintiff in the ancestral property the defendants have produced a will, the certified copy of the registered will has been produced in the trail proceedings claiming that the original was lost. This was challenged by the plaintiff hoping that the will was fraud. The supreme said “There is no cross-examination of any of the witnesses of the defendants in respect of loss of original will. 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. The plaintiff had admitted the execution of the will though it was alleged to be the result of fraud and misrepresentation. The execution of the will was not disputed by the plaintiff but only proof of the will was the subject matter in the suit. Therefore, once the evidence of the defendants is that the original will was lost and certified copy is produced, the defendants have made out sufficient grounds for leading of secondary evidence”[ii]. The bench has furthered observed that there was no need for application for submitting the secondary evidence and said 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. 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”[iii].
Key Points
1. The Supreme Court has mentioned that there is no requirement that an application is required to be filed in the terms of section 65(c) of the Evidence Act, 1872.
2. The court also said that just because an application was not filed to the court in seeking permission to present the secondary evidence it doesn’t mean that it’s not valid to the case.
Conclusion
On the 19th day of March 2020 the Apex court has laid down that mere cause of not filing of an application in seeking permission to present the secondary evidence will not make the court thing that the secondary evidence is not valid to the case. And according to section 65(c) of the Evidence Act, 1872 the secondary evidence is valid.
Edited by J. Madonna Jephi
Approved & Published – Sakshi Raje
End Notes
[i] Livelaw News Network, Application Not Necessary For Producing Secondary Evidence : SC [Read Judgment] Live Law (2020), https://www.livelaw.in/top-stories/application-not-necessary-for-producing-secondary-evidence-sc-154405 (last visited Mar 27, 2020).
[ii] Livelaw News Network, Application Not Necessary For Producing Secondary Evidence : SC [Read Judgment] Live Law (2020), https://www.livelaw.in/top-stories/application-not-necessary-for-producing-secondary-evidence-sc-154405 (last visited Mar 27, 2020).
[iii] Livelaw News Network, Application Not Necessary For Producing Secondary Evidence : SC [Read Judgment] Live Law (2020), https://www.livelaw.in/top-stories/application-not-necessary-for-producing-secondary-evidence-sc-154405 (last visited Mar 27, 2020).
