Application is not required to be filed before the Secondary evidence is led

Lisa Coutinho | Pravin Gandhi College of Law | 28th March 2020

Dhanpat v. Sheo Ram (Deceased) through Lrs. & Ors. Civil Appeal No. 1960 of 2020.

Facts:

The plaintiff filed a suit for declaration that he along with defendant nos. 7-9 were the owner and in possession of equal shares of the suit land. He stated that defendant no. 5 had got the will as a result of fraud and misrepresentation. 12 issues were framed by the Trial Court. After examining the witnesses and the arguments presented by both parties, the learned first Appellant Court affirmed the findings of the trial court and dismissed the suit in favor of defendant no. 5. Aggrieved, the plaintiff filed an appeal in the Punjab and Haryana High Court. The High Court held that the Will was not proved and was completely misread, misconstrued and misinterpreted. This order was challenged in the Supreme Court.

Issues raised:

1. Whether the will in question was surrounded by suspicious circumstances and due execution thereof was also not proved, in accordance with the requirements of Section 63 of the Succession Act.
2. Whether the learned courts have completely misread, misconstrued and misinterpreted the evidence on record, particularly the Will, because of which the impugned judgement cannot be sustained.

Judgment:

The Apex Court noted that substantial question of law may not be required to be framed in Punjab and Haryana, but still, the finding of fact recorded cannot be inferred with even in terms of Section 41 of the Punjab Courts Act.

The Court observed that 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 the certified copy is produced, the defendants have made out sufficient ground for leading of secondary evidence.

The Court further stated that there is no requirement to file an application in terms of Section 65(c) of the Evidence Act before the secondary evidence is led. The secondary evidence cannot be ousted for consideration only because an application for permission to lead secondary evidence was not filed.

In respect of the argument that some of the natural heirs were not mentioned in the will, therefore the will is surrounded by suspicious circumstances is not tenable.

The Supreme Court held that the High Court has clearly erred in law in interfering with the concurrent findings of fact recorded by the lower courts. Since the entire judgment runs on misconception of law, it cannot be sustained. The decree of the First Appellant Court is restored, the appeal is allowed and the suit is dismissed.