DATE: 30/10/2025
COURT: High Court of Himachal Pradesh
BENCH: Justice Ajay Mohan Goel
FACTS:
The case arose from a petition challenging
the order dated 4 October 2017 passed by the Civil Judge (Senior Division),
Ghumarwin, District Bilaspur, Himachal Pradesh, in CMA No. 781-6 of 2016 within
Civil Suit No. 102-1 of 2011. The order had allowed an application filed under
Section 65 of the Indian Evidence Act by Amar Nath (plaintiff before the trial
court) permitting him to lead secondary evidence to prove a Will dated 12
December 2009. Amar Nath claimed that he and the defendant, his brother, were
joint owners of land previously belonging to their mother, late Smt. Har Dei,
who allegedly executed the Will in their favour. He contended that after her
death, the defendant evaded mutation and later attempted to dispossess him,
prompting the civil suit. Amar Nath further alleged that the original Will was
submitted for registration before the Sub-Registrar, Ghumarwin, but was
subsequently misplaced through manipulation by the defendant, who was an
influential person.
The defendant opposed the suit, asserting
that the Will of 2009 was fabricated and that their mother had, in fact,
executed an earlier registered Will dated 12 February 1985 in his favour, which
was valid and subsisting. He contended that the plaintiff’s claim was based on
a forged document. The trial court, however, allowed the plaintiff’s
application to adduce secondary evidence, reasoning that the truthfulness of
the alleged Will could be tested during trial. Aggrieved by this, the defendant
filed the present petition before the Himachal Pradesh High Court, arguing that
the trial court had wrongly exercised its discretion by permitting secondary
evidence without satisfying the statutory conditions prescribed under Section
65 of the Indian Evidence Act.
ISSUES:
The primary issue before the Himachal
Pradesh High Court was whether the trial court had erred in allowing the
plaintiff to lead secondary evidence under Section 65 of the Indian Evidence
Act to prove the alleged Will dated 12 December 2009, without first
establishing that the requirements for admitting such evidence such as loss,
destruction, or unlawful withholding of the original document, had been
fulfilled.
JUDGEMENT WITH REASONING:
The Himachal Pradesh High Court allowed the
petition and set aside the trial court’s order dated 4 October 2017. It held
that the trial court had wrongly permitted the plaintiff to lead secondary
evidence without meeting the mandatory parameters of Section 65 of the Indian
Evidence Act. The Court ruled that the order was legally unsustainable and
directed both parties to appear before the trial court for further proceedings
on 17 November 2025.
The High Court held that the trial court
had failed to apply the proper legal test under Section 65 of the Indian
Evidence Act, which governs the admissibility of secondary evidence. It
observed that secondary evidence is not a matter of judicial discretion but can
only be allowed when specific statutory conditions are met, such as when the
original document is lost, destroyed, or withheld by the opposing party after
due notice. In this case, the plaintiff’s own pleadings indicated that he had
submitted the alleged Will to the Sub-Registrar for registration, from where it
was allegedly misplaced through collusion between the defendant and the
registration officials. The Court noted that this version could not, by any
reasonable interpretation, amount to proof that the document was in the
defendant’s possession or that it had been destroyed or lost within the meaning
of Section 65. Further, the Court found that an inquiry conducted by the
revenue authorities had established that only a photocopy of the Will had been
submitted for registration, not the original document, and that the complaint
regarding its loss had been dismissed.
The Court further reasoned that the
plaintiff had failed to establish any admission, either written or implied by
the defendant acknowledging the existence of the alleged Will. On the contrary,
the defendant had categorically denied the execution of any Will dated 12
December 2009 and maintained that the only valid Will was that of 1985.
Therefore, the prerequisites under clauses (a), (b), and (c) of Section 65 of
the Evidence Act were not satisfied. The High Court found the trial court’s
observation that “the truth of the Will could be tested during trial” to be
self-contradictory, since such an opportunity arises only when the foundational
requirements for secondary evidence are first met. By allowing the application
without such compliance, the trial court had acted contrary to settled
evidentiary principles. Consequently, the High Court held that the trial court’s
order was per se unsustainable in law, warranting its quashing and remand for
proper adjudication in accordance with the provisions of the Evidence Act.
ANALYSIS:
The Himachal Pradesh High Court’s decision
underscores the rigid procedural safeguards surrounding the admissibility of
secondary evidence under Section 65 of the Indian Evidence Act. The Court
emphasized that secondary evidence is not admissible as a matter of right or
convenience but only when statutory prerequisites such as loss, destruction, or
unlawful withholding of the original document, are clearly established. In this
case, the plaintiff’s claim that the Will was misplaced during the process of
registration, allegedly due to manipulation by the defendant, did not satisfy
these requirements. The High Court observed that the plaintiff had neither
proven the existence of the original Will nor shown that it was in the
defendant’s possession or had been lost or destroyed in a legally acceptable
manner. By permitting the plaintiff to lead secondary evidence without
satisfying these foundational conditions, the trial court had effectively
diluted the evidentiary threshold mandated by law.
Moreover, the judgment reaffirms the
principle that procedural compliance cannot be bypassed under the guise of
allowing “truth to emerge during trial.” The High Court noted that such
reasoning misapprehends the function of Section 65, which serves to prevent
fabricated or unreliable documents from being introduced into judicial
proceedings without proper justification. The trial court’s assumption that the
genuineness of the Will could be tested during the trial was held to be legally
flawed, as the admissibility of evidence must be determined prior to its
evaluation on merits. By setting aside the order, the High Court reinforced
judicial discipline in the application of evidentiary rules, ensuring that
litigants adhere to the statutory framework rather than relying on speculative
assertions. This case thus serves as an important precedent affirming that
procedural safeguards under Section 65 are not mere formalities but essential
protections against evidentiary misuse.
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