RAKESH MOHINDRA Vs. ANITA BERI & ORS.
Supreme Court of India (Division Bench (DB)- Two Judge)
Appeal (Civil), 13361 of 2015, Judgment Date: Nov 04, 2015
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.
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 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 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. 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.
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, 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.
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 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 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;
(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 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 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:-
“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.”
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 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 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.
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