Secondary Evidence - Will

Evidence  -  Admission of a document as a Exhibit  - Merely the admission in evidence and making exhibit of a document does not prove it automatically unless the same has been proved in accordance with the law.  #2020 SCeJ 721 


Evidence  -    Will Proof of - Secondary evidence  -  Appellants held entitled to lead secondary evidence in respect of the Will in question -   Clarified that such admission of secondary evidence automatically does not attest to its authenticity, truthfulness or genuineness which will have to be established during the course of trial in accordance with law. #2020 SCeJ 721  [Para 19]


Evidence Act, 1872 (1 of 1872) - Section 65, 66 - Secondary evidence may be given with regard to existence, condition or the contents of a document when the original is shown or appears to be in possession or power against whom the document is sought to be produced, 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 notice mentioned in Section 66 such person does not produce it -  For secondary evidence to be admitted foundational evidence has to be given being the reasons as to why the original Evidence has not been furnished - It is trite that under the Evidence Act, 1872 facts have to be established by primary evidence and secondary evidence is only an exception to the rule for which foundational facts have to be established to account for the existence of the primary evidence. H. Siddiqui (dead) by LRs v. A. Ramalingam [2011 (4) SCC 240], relied. #2020 SCeJ 721  [Para 11, 16]



Will – Proof of  - Secondary evidence –  Original Will which was handed over to the village patwari for mutation could not be retrieved -  Appellants had served notice under Section 66 of the Evidence Act to the revenue officials through the Court but the Will which was sought to be produced by way of secondary evidence, however was not produced by either of the revenue officials – Application for secondary evidence dismissed  -    High Court on the ground that the pre-requisite condition for admission of secondary evidence, i.e. existence of Will remained unestablished  -  While setting aside order, held that while both the revenue officials failed to produces the original Will, upon perusal of the cross-examination it is clear that neither of the officials has unequivocally denied the existence of the Will , and that he could not trace the Will    and that prima facie evidence of existence of the Will is established from the examination of the scribe of the Will in question – Therefore, factual foundation to establish the right to give secondary evidence was laid down by the appellants and thus the High Court ought to have given them an opportunity to lead secondary evidence. #2020 SCeJ 721 

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    Talluri Veerabhadra Rao (Thursday, 21 May 2020 08:28)

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