Factual Foundation Regarding Loss of Original and Document Admissibility are Pre-requisites for Leading Secondary Evidence.

The petitioner (plaintiff) filed a suit for declaration and permanent injunction regarding ancestral property, claiming equal rights as a legal heir of Late Murli Manohar Mishra

During the trial, Defendant No. 3 filed an application under Section 65 of the Indian Evidence Act, 1872, seeking to lead secondary evidence to prove an unregistered, unstamped "deed" dated March 28, 2021, allegedly executed by Defendant No. 1 in favor of her grandson

Defendant No. 3 claimed the original was missing after the death of its custodian, Shail Kumari, and produced an "attested true copy"

The Trial Court allowed the application on September 23, 2024

The petitioner challenged this order via a writ petition under Article 227 of the Constitution

1. Whether the Defendant No. 3 laid the requisite factual foundation under Section 65 of the Indian Evidence Act to permit secondary evidence for a missing document

2. Whether an unregistered and unstamped document, whose original existence is doubtful, can be proved through secondary evidence

The court applied Sections 63, 65, and 66 of the Indian Evidence Act, 1872, which define secondary evidence and the specific conditions (such as loss or destruction of the original) under which it becomes admissible

H. Siddiqui v. A. Ramalingam (2011), establishing that secondary evidence is inadmissible until the non-production of the original is accounted for and foundational evidence proves the copy is a true reflection of the original

Rajesh Mohindra v. Anita Beri (2016) and Jagmail Singh v. Karamjit Singh (2020), which mandate that a party must establish the original is lost, destroyed, or withheld without their neglect before secondary evidence can be accepted

The Court observed that Defendant No. 3 failed to provide an affidavit in support of the application or move a notice to produce the document under Section 66, thereby failing to lay the necessary foundational evidence

The High Court noted that the document in question was neither stamped nor registered, making it inherently suspicious regarding its admissibility

The Court reasoned that mere claims of a document being "missing" are insufficient to invoke Section 65 when the very existence and legality of the original are in doubt

The Court questioned the validity of the "attested true copy"; it found the notary’s attestation dubious because if the original was indeed missing, there was no basis for a notary to certify a photocopy as a "true copy" of an original

The Court answered that the foundational requirements of Sections 65 and 66 were not met and the suspicious nature of the document barred secondary proof

The High Court set aside the Trial Court's order dated September 23, 2024, rejected the application under Section 65, and allowed the writ petition