Page 1 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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Page 2 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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Page 3 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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Page 4 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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Page 5 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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Page 6 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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Page 7 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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Page 8 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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Page 9 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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Page 10 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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Page 11 (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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Page 12 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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Page 13 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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Page 14 “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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Page 15 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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Page 16 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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Page 17 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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Page 18 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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