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The Supreme Court of India held that application is not mandatory for producing secondary evidence. The said verdict was made in the matter of Dhanpat V. Sheo Ram through LRs & Ors on March 19, 2020. In the abovementioned matter, a civil appeal was filed having the validity of a Will as the dispute of the case. The merits of the case wherein the plaintiffs in need of a share from their ancestral property which was ultimately denied by the respondents during the partition of the suit. Thus the cause of action of the case arose and the plaintiffs filed a suit against the defendants to check the validity of the Will. During the said trail only the certified copy of the Will was submitted claiming that the original one was lost. This was challenged by the plaintiffs as in the divisional bench comprising of Justice L Nageswara Rao and Justice Hemanth Gupta held that “…there is no cross-examination of any of the witnesses of the defendants in respect of loss of original Will. Section 65 of the Evidence Act permits secondary evidence of existence, condition, or contents of a document including the cases where the original has been destroyed or lost. The plaintiff had admitted the execution of the Will though it was alleged to be the result of fraud and misrepresentation. The execution of the Will was not disputed by the plaintiff but only proof of the Will was the subject matter in the suit. Therefore, once the evidence of the defendants is that the original Will was lost and the certified copy is produced, the defendants have made out sufficient ground for leading of secondary evidence”. The bench also added and concluded that “There is no requirement that an application is required to be filed in terms of Section 65(c) of the Evidence Act before the secondary evidence is led. A party to the lis may choose to file an application which is required to be considered by the trial court but if any party to the suit has laid foundation of leading of secondary evidence, either in the plaint or in evidence, the secondary evidence cannot be ousted for consideration only because an application for permission to lead secondary evidence was not filed.” Thus the court found that the submitted Will was proved u/s 68 of the Indian Evidence Act and finally dismissed the appeal.
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