Necessities for admission of secondary proof earlier than the Court docket of Justice –

Prerequisites for admission of secondary evidence to the Court of Justice written by Shatakshi Kakkar, a student at Symbiosis Law School, NOIDA



The above case is an appeal to the Hon’ble Supreme Court against the judgment of the High Court of Punjab and Haryana. The case revolves around a will from 01/24/1989. The applicants preferred filing a lawsuit to declare that they were the actual owners of a piece of land that had been transferred in favor of Baldev Singh and Shamsher Singh on the basis of a forged will they had drawn up on March 20, 1988. While the aforementioned lawsuit was pending, the complainants filed an application under Section 65/66 of the Evidence Act in order to obtain permission to provide evidence of a copy of the will from January 24, 1989 as secondary evidence. The aforementioned motion was approved by the court, so the respondents appealed to the High Court and the High Court, following due process, dismissed the motion. The applicants were not satisfied with the judgment of the High Court and filed a petition for a review under Article 227 of the Indian Constitution with the High Court. However, finding no reason for it, the High Court re-upheld the ruling, which required the condition for admitting secondary evidence, i.e. Will’s existence remained unconfirmed, and so they ruled in favor of the respondents.


Should applicants be allowed to allow secondary evidence to prove their case when there is no primary evidence, ie the original will?


The applicants alleged that there was a provision under Section 65 of the Indian Evidence Act of 1872 that set out the grounds on which the secondary evidence might be presented to the Court and by providing a further notice to the party concerned under Section 65 let 66 of the Indian Evidence Act of 1872, the party still fails to produce the primary evidence that the party concerned is entitled to use the secondary evidence to prove their case. Since both Section 65 and Section 66 of the Indian Evidence Act are met in the present case, it is up to the High Court to deliver a specific judgment and so the appeal will ultimately be brought to the Hon’ble Supreme Court.
The Supreme Court, in determining the matter, took into account the witnesses who could determine that the necessary bases exist on the basis of which applicants have the right to produce secondary evidence and not to give them this opportunity is a Error of the part of the High Court. The Supreme Court found that the Supreme Court had made a grave error of law without properly assessing the evidence and determining that the required condition, i.e. the existence of Will, was not established on the file , thereby denying the complainants the opportunity to provide secondary evidence.
Thus, the Court finally came to the conclusion that the applicants were entitled to produce secondary evidence in relation to the will in question. At the same time, the mere admission of secondary evidence does not testify to its authenticity, truthfulness or authenticity and must therefore be determined in the course of the proceedings in accordance with the law.


This case concerns the reasons why the secondary evidence may be admitted to the Court in the absence of the primary evidence. The provisions for this are provided in Section 65 of the Indian Evidence Act of 1872. Section 65 of the Act states that secondary evidence relating to the existence, condition or content of a document may be produced when the original evidence is presented or appears to be in possession or authority against which the document is to be drawn up, or by any person outside the reach of judicial process or anyone required by law to prepare it and when after a notice referred to in Section 66, that person will fail to submit it. It is an established law that in order to admit secondary evidence, basic evidence must be provided that explains why the original evidence was not presented. If a particular party is able to prove the reason for failure to produce primary evidence for any of the reasons set out in Section 65 and meets the procedural requirements set out in Section 66 of the Indian Evidence Act, the party may submit the secondary evidence to the Court of Justice under the Act, too in the present case, and therefore the complainants were allowed to provide secondary evidence.

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