Principles On Admissibility Of Secondary Evidence : Supreme Court Explains

The Supreme Court on Tuesday (29.11.2023) explained the principles relevant for examining the admissibility of secondary evidence under the Indian Evidence Act, 1872. 

The Court also reiterated that "if a document that is required to be stamped is not sufficiently stamped, then the position of law is well settled that a copy of such document as secondary evidence cannot be adduced."

A bench of Justice Abhay S Oka and Justice Sanjay Karol referred to a catena of judgments to explain the relevant principles as follows: 

1. Law requires the best evidence to be given first, that is, primary evidence.

2. Section 63 of the Evidence Act provides a list of the kinds of documents that can be produced as secondary evidence, which is admissible only in the absence of primary evidence.

3. If the original document is available, it has to be produced and proved in the manner prescribed for primary evidence. So long as the best evidence is within the possession or can be produced or can be reached, no inferior proof could be given.

4. A party must endeavor to adduce primary evidence of the contents, and only in exceptional cases will secondary evidence be admissible. The exceptions are designed to provide relief when a party is genuinely unable to produce the original through no fault of that party.

5. When the non-availability of a document is sufficiently and properly explained, then the secondary evidence can be allowed.

6. Secondary evidence could be given when the party cannot produce the original document for any reason not arising from his default or neglect.

7. When the copies are produced in the absence of the original document, they become good secondary evidence. Still, there must be foundational evidence that the alleged copy is a true copy of the original.

8. Before producing secondary evidence of the contents of a document, the non-production of the original must be accounted for in a manner that can bring it within one or other of the cases provided for in the section.

9. Mere production and marking of a document as an exhibit by the Court cannot be held to be due proof of its contents.It has to be proved in accordance with the law.

Factual Background

In the case at hand, the Plaintiff and Defendant entered into an agreement to sell on 04.02.1998. The Plaintiff subsequently filed a suit for specific performance of the contract. He also moved an application to file a copy of the agreement to sell, as secondary evidence. This application was dismissed by the Additional District Judge in review, wherein it was held that secondary evidence of an agreement to sell could not be allowed as it was not executed on a proper stamp and hence barred under section 35 of the Stamp Act. This was later upheld by the High Court. Challenging this, the Plaintiff approached the Apex Court in appeal.

Arguments Advanced

Sr. Adv. Dr. Menaka Guruswamy, for the Appellant-Plaintiff, argued that the prohibition of Section 35 of the Stamp Act would not be applicable since there was no requirement to pay stamp duty at the time of execution of the agreement to sell, since it was executed before the Indian Stamp (Madhya Pradesh Amendment) Act, 1989 which introduced the requirement for payment of stamp duty. The Plaintiff should have been permitted to lead a copy of the agreement to sell as secondary evidence under Section 65 of the Evidence Act, it was argued.

The Defendant on the other hand argued that a copy of an original document that is unstamped cannot be admitted as secondary evidence and since the original document is inadmissible under the Stamp Act, the copy of the same cannot be allowed as secondary evidence.

Court's Findings

Applicability of Bar Under Section 35 Of Stamp Act

Section 35 of the Stamp Act says that instruments that are not duly stamped are inadmissible in evidence. The Court considered in detail whether the bar of admissibility under Section 35 of the Indian Stamp Act would apply to said case.

Article 23 of Schedule 1A of the Stamp Act deals with conveyances. At the time of execution of the agreement to sell in 1998, the conveyance was subjected to stamp duty under Article 23. This was later amended vide the Indian Stamp (Madhya Pradesh Amendment) Act, 1989. Subsequently an explanation was inserted in 1990, which said that, in case of an agreement to sell immovable property, if the possession of the property is transferred to the purchaser before execution or after execution of such agreement without executing the conveyance, then shall be deemed to be a conveyance and stamp duty should be levied.

The Court held that the said explanation creates a new obligation for the party and, therefore, cannot be given retrospective application. The Court concluded that the amendment and the explanation would not affect the agreements executed prior to the amendments. Amendments that create rights and obligations are generally prospective in nature, the Court reiterated.

“It is a well-established principle of law that clarification or Explanation must not have the effect of imposing an unanticipated duty or depriving a party of an anticipated benefit” the Court said.

The object of the Stamp Act is to collect proper stamp duty on an instrument or conveyance on which such stamp duty is payable, the Court said. Section 35 of the Stamp Act caters to instruments that are not properly stamped and, hence, not admissible in evidence. But if the documents sought to be admitted are not chargeable with duty, Section 35 has no application, the court explained: 

To impose the bar of admissibility provided under this section (Section 35), the following twin conditions are required to be fulfilled:

(i) Instrument must be chargeable with duty;

(ii) It is not duly stamped

The Court thus concluded that the instrument was not chargeable with duty and since it was not required to be stamped, no bar could be imposed due to it being not duly stamped.

Can a copy of a document be adduced as secondary evidence when the original instrument is not in possession of the party?

To answer this question, the Court first reiterated that if a document that is required to be stamped is not sufficiently stamped, then a copy of such document as secondary evidence cannot be adduced. In the said case however the Court concluded that the document in question was not liable to stamp duty at the time of its execution.

The Court then examined Section 65(a) of the Evidence Act which deals with cases in which secondary evidence relating to the document may be given:

a. Secondary evidence can be presented as a substitute when the original document/ primary evidence is in the possession of the opposing party or held by a third party

b. Such a person refuses to produce the document even after due notice

c. It must be ensured that the alleged copy is a true copy of the original

The Court observed that the exact status of the documents in the case in question could not be ascertained since one party claimed that the other had the said documents and the other stated that it was with her counsel. Since the said documents could not be recovered, the presentation of secondary evidence could be allowed, if other requirements are complied with, the Court said.

“..we are of the opinion that in the instant case, the Plaintiff's prayer for leading the secondary evidence ought to be allowed in so far as the documents sought to be introduced as secondary evidence be taken by the concerned Court and exhibited, with its admissibility being decided independently, in accordance with law under the Evidence Act” the Court concluded.

Case Title: Vijay v. Union of India, Civil Appeal No. 4910 of 2023

Citation: 2023 LiveLaw (SC) 1022

Click here to read/download judgment