Summary
The appellants were permitted to lead secondary evidence of an untraced Will. Notices to revenue officials had not secured the original, and their evidence together with the scribe’s testimony provided the necessary factual foundation. The courts below erred in treating the Will’s existence as wholly unestablished. Permission to produce secondary evidence did not establish authenticity, truth or genuineness, which remained to be proved at trial.
Issues
- Whether sufficient foundational facts justified secondary evidence of the Will.
- Whether admission of a copy established the Will’s authenticity or validity.
Provisions considered
- Sections 65 and 66, Indian Evidence Act, 1872Foundational evidence and unsuccessful notices for production justified allowing secondary evidence while preserving the obligation to prove the document according to law. (¶¶ 10, 11, 12, 13, 14, 15, 16, 17, 19)
Held
- Secondary evidence is an exception to proof by the original and requires an adequate factual foundation explaining non-production. Section 65(a), read with section 66, permits it in the specified circumstances when the person possessing or required to produce the original fails to do so after notice. (¶¶ 10, 11, 12, 13, 14)
- Neither revenue official unequivocally denied the Will’s existence. Their evidence explained the inability to trace it, and the scribe identified the Will and his signature. Those facts laid the foundation for secondary evidence; the contrary conclusion denied a justified opportunity to prove it. (¶¶ 15, 16)
- Admission and exhibition of a document do not automatically prove it. The permitted secondary evidence remained subject to proof of authenticity, truthfulness and genuineness during trial in accordance with law. (¶¶ 17, 19)
Result
Appeal allowed; High Court judgment set aside and appellants permitted to lead secondary evidence of the Will, with authenticity and genuineness left for trial. No order as to costs.