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TMI Blog2015 (11) TMI 1840X X X X Extracts X X X X X X X X Extracts X X X X ..... S K. SHOBHA RANI [ 2007 (4) TMI 11 - SUPREME COURT ], 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. 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. 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 fro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 le ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l, 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 origin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ny 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 v. Smt. K. Shobha Rani AIR 2007 SC 1721 and H. Siddiqui (dead) by L.Rs. v. A. Ramalingam AIR 2011 SC 1492, came to the conclusion that the Defendant failed to prove the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nath (dead) by Kedarnath Goenka v. 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 r ..... X X X X Extracts X X X X X X X X Extracts X X X X
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