Secondary Evidence does not Require Application to be led

Krisha Kamal | Presidency University Banglore | 30th March 2020  

DHANPAT V. SHEO RAM (DECEASED) THROUGH LRS. & ORS.

Facts:

An appeal was filed against the decree of Punjab & Haryana High Court. There was a will whose validity was under dispute. The ancestral property of the plaintiff was under dispute. The defendant claimed his share in that property. The plaintiff claimed that he belongs to Jat Community and was governed by the Punjab Customary Law and therefore inherits the ancestral property. Further defendants got the will executed in their favour saying such a will contravened Jat Customary Law was the outcome of fraud and misrepresentation. The beneficiaries under the will filed a written statement and asserted that custom had been abrogated after passing of the Hindu Succession Act, 1956.

Based on the information, the learned trial court held that the Will was duly proved as it had two attesting witnesses have signed the Will, the execution of the Will is provided by examining one of the attesting witnesses. The court did not find any merit in the argument that a deviation from natural succession will make the will doubtful. With this the suit was dismissed. The same was confirmed by the First Appellate Court.

In further appeal in High Court, the court found that one of the names was missing in the Will which questioned the genuineness of the Will. the original Will was not produced before the court and its photocopy was presented as the original Will was missing and there was no application of secondary evidence as leading evidence was filed.  Based on information the High Court held that the execution of will was doubtful and there was no application filed for producing secondary application so it cannot be considered as proper evidence. The suit was dismissed.

Again the petitioner filed an appeal and approached the Supreme Court and challenged regarding the production of secondary evidence.

Judgment:

The Supreme Court observed that there is no necessity to file an application in terms of section 65(c) of the Evidence Act before the secondary evidence is led. Thus the court found that the High Court has erred in law and the judgment runs on misconception of law and is, therefore not sustainable in law. 

Based on the merits, the court found that the execution of the Will was proved and hence the judgment of the High court was set aside and the decree of the First Appellate Court was restored and the suit was dismissed.