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Report No. 69

II. Scope of Secondary Evidence-Sections 63 and 65

29.8. Section 63 not self-contained.-

Before proceeding to deal with the various clauses of section 63 in detail, it is necessary to discuss one important question pertaining to the scope of "secondary evidence" as a whole.

29.9. It may be noted that section 63, which opens with the words "secondary evidence means and includes", contains five clauses thereunder. The use of the word "means" conveys the impression that "secondary evidence" must fall within any one of the five clauses of the section, but there are two species of evidence which, though not enumerated in section 63, must be treated as secondary evidence according to the view of three of us namely, the species of evidence mentioned in section 65(b) and (g)-briefly, written admission of the contents of documents and general result of collection of documents respectively.

29.10. Madras case.-

Let us first refer to a Madras case.1 The plaintiff had filed a suit for the redemption of a mortgage. The two mortgage deeds produced by the plaintiffs were found to be forged documents, and the suit was dismissed. Even the second appeal was dismissed by a majority decision of two judges on one side, with the third judge dissenting.

1. Kalliani Amma v. Narayanan, AIR 1915 Mad 962.

29.11. The plaintiffs also argued that "written admissions" made by the defendants could be relied upon as "secondary evidence" under section 65. The court, although it laid down that the description of several kinds of secondary evidence given in section 63 was not exhaustive, rejected the plea of the plaintiffs, as the primary evidence produced by them was found to be forged. The court observed that section 63 is not exhaustive of the categories of secondary evidence. This is particularly so, since "written admissions" were in issue, and the same has not been mentioned as "secondary evidence" in any of the clauses of section 63. This case holds that written admissions fell within the concept of "secondary evidence" though not mentioned in section 63.

29.12. In another Madras case,1 the precise point at issue was, whether the contents of a will could be proved by a judgment which contained a translation of the will. It was held that the translation of a document is not secondary evidence of the contents of the document, and that the definition in section 63 is exhaustive. This case did not involve any species of evidence mentioned in section 63 or section 65-which is the reason why it was not regarded as secondary evidence. In other words evidence not falling in section 63 or 65 is not secondary evidence.

1. Jagannatha Naidu v. Secretary of State for India, AIR 1922 Mad 334.

29.13. Lahore case.-

In a Lahore case,1 it was held that section 63 is exhaustive as to the meaning of "secondary evidence," and that an abstract translation of a document does not come within its terms, and is, therefore, inadmissible. This case also did not involve any species of evidence mentioned in section 63 or 65 and the species could not therefore, be regarded as secondary evidence.

1. Hafiz Mohd. Suleman v. Hari Ram, AIR 1937 Lah 370.

29.14. Patna case.-

In a Patna case, the1 question for consideration was, whether the draft of an award, from which the original award was prepared by the arbitrators, could be admitted as "secondary evidence" of the award. It was held that it could not be admitted as secondary evidence. The court also held that the expression "means and includes" in section 63 makes it quite clear that the five clauses of section 63, referring to "secondary evidence", are exhaustive. Here also, the species of evidence at issue was one mentioned in the two sections.

1. Girdhar Prasad v. Ambika Prasad Thakur, AIR 1969 Pat 218.

29.15. Supreme Court.-

In one case1 decided by the Supreme court where this question was not directly in issue, the Supreme Court made an observation that section 63, inter alia, defines what secondary evidence "means and includes". The Supreme Court did not, however, elaborate further if this section is exhaustive of secondary evidence or not.

1. Hindustan Construction Co. Ltd. v. Union of India, AIR 1967 SC 526.

29.15A. Need for amendment.-

In so far as the decisions of the High Courts noted above could be rationalised, one may state that the approach underlying them is as follows:-

(a) the species of evidence mentioned in section 65 is also secondary evidence, but

(b) a species of evidence not mentioned in section 63 or section 65 is not secondary evidence.

These decisions also reveal one serious defect in the section, namely, that in order to find out what is secondary evidence, one has also to read section 65, clauses (b) and (g).

29.16. View of three Members as to need for amendment.-

In this sense, section 63 becomes incomplete. Three of us-Dr. P.B. Gajendragadkar, Shri Sen-Varma and Shri Bakshi-are therefore of the view that section 63 should be made self-contained by adding the other species mentioned in section 65, clauses (b) and (g). By specifically mentioning the species of evidence mentioned in section 65(b) and (g) in section 63, the uncertainty as to the scope of section 63 would be removed. Moreover, it is desirable that a section defining an expression should mention every matter that falls within that concept, instead of leaving it to a subsequent section.

29.17. and 29.18. Cases mentioned in section 75(b) and (g).-

It was pointed out in the Madras case,1 by Tyabji J., that cases (b) and (g) mentioned in section 65 would not, apparently, fall under any of the five clauses of section 63, referring to what secondary evidence "means and includes." Presumably because of this aspect, he observed that the five clauses of section 63 "are not exhaustive"-an observation with which Spencer J., in the same case agreed. If the amendment favoured by the three of us is carried out, section 63 would be self-contained as to the categories of secondary evidence and thereafter, in future, it will not be necessary to rely on section 65 insofar as the species mentioned in section 65 are concerned. At the same time, controversies as to other species of evidence will not arise.

1. Kalliani Amma v. Narayan Nambiar, AIR 1915 Mad 962 (968), supra.

29.19. According to the view of three of us, therefore, section 63 should be amended by specifically mentioning what is mentioned in section 65(b) and section 65(g). The species of evidence described in these clauses of section 65 is none else than secondary evidence, according to the three of us, for reasons which will be given in detail presently. Hence both these species should find a place in the enumeration in section 63. Thereafter, the words "and includes" should be deleted from section 63, since that word is a source of confusion and, apart from that, modern legislative practice does not use the formula "means and includes." It may be noted that under our unanimous recommendation as to the various definitions in section 3, the formula "means and includes" is being revised so as to replace it by "means".

29.20. Reasons for the view.-

The principal object underlying the approach indicated above is to introduce accuracy as well as neatness in the provisions of the Act and to restore symmetry and consistency between section 63 and section 65. For taking the view that clauses (b) and (g) of section 65 essentially deal with secondary evidence, several reasons suggest themselves. The following are the important reasons, according to the Members who favour the amendment:

(a) In section 65, the opening words and the marginal note expressly use the expression "secondary evidence". This renders the conclusion inescapable that the species of evidence described in clauses (b) and (g) of that section is none else than secondary evidence. If it was contemplated by the legislature that a kind of evidence other than secondary evidence can be given in the form of written admissions or general result, then such species could have been dealt with in a separate section. It would have been inappropriate to include such "non-secondary" species in the very section that bears the caption "secondary evidence" and opens with those very words.

(b) If the contrary view is taken, the opening words and marginal note in section 65 would have to be radically altered. This is a reductio ad absurdum of the opposite view.

(c) Section 65 consists of two halves. The first half lays down the basic principle that secondary evidence could be given in certain situations. In the second half, the section addresses itself to a question of detail-which is the species of secondary evidence to be given in each situation? It is pointless to say that the latter half of section 65 is separate from the earlier half. It is the earlier half of section 65 which is the basic one, dealing with the conditions for applying the section. The latter half gives the details. A detail cannot travel beyond the basic principle.

(d) The fact that section 65, clauses (b) and (g) do not repeat the words "Secondary evidence" is of no consequence for the present purpose, because there was no need for the draftsman to mention them again. In relation to other clauses, there was a point in repeating them, because the draftsman wished to embrace all types of secondary evidence or to exclude all other types from those clauses. This was not the situation for clauses (b) and (g). It is well-known that a good draftsman does not resort to unnecessary repetition.

(e) In any case, the positive indication given by the opening words in section 65 and by the marginal note thereto cannot be overlooked, and must override any argument based on the absence of repetition of the expression "secondary evidence" in relation to (b) and (g)-an absence which itself is accounted for satisfactorily, as explained above.

(f) Attention should be drawn to the following discussion in a judgment1 of the Supreme Court "Further and strictly speaking the appellant Shri Sibnarayan Singh Mahapatra having in his own letter dated the 19th July 1943 referred to above admitted the existence and contents of the Ekrarnama. Secondary evidence2is, strictly speaking admissible under section 65(b) of the Indian Evidence Act."

These observations refer to the written admissions as secondary evidence. In a Bombay case3 it was held that where a document was unstamped, secondary evidence of its contents could not be given. The document sued on was a promissory note. It was chargeable with a duty of two annas. On the question of secondary evidence, the court held that in this case, the plaintiff could not recover irrespectively of the promissory note, because he did not seek to prove the consideration otherwise than by the note, which was inadmissible in evidence.

Dealing further with the written admissions relating to the promissory note, Birdwood J. observed: "the case is not one in which secondary evidence would be admissible for the purpose of proving the contents of the unstamped promissory note; for primary evidence, i.e. the document itself, is forthcoming. To such a case, section 65, clause (b) of the Evidence Act would not apply". Whether this particular reason for rejection is sound or not is not material. The point is that written admissions were described as "secondary evidence". Birdwood J.'s observations in a later part of the judgment are still more pertinent.

"The admission of secondary evidence would, moreover be an evasion of section 34 of the Stamp Act of 1879, under which the note cannot "be acted on", being unstamped. See Muttukaruppa Kaundan Rama Pillai4. To prove it by secondary evidence, and so make it the basis of a decree, would clearly be to act on it. The note cannot, therefore, be looked at in dealing with the claim".

(g) That section 65(b) also speaks of "existence and condition" is not conclusive, because that clause also uses the word "content". It cannot be denied that evidence of the contents of a document, if it is not primary, must be secondary, so far as the scheme of sections 61-64 is concerned. These sections expressly enact that contents of documents can be proved either by primary or by secondary evidence. They do not provide that such contents may also be proved by such other evidence as is mentioned in section 65(b) and section 65(g).

(h) Approaching the matter from the point of view of section 63 also, it is to be noted that the formula "means and includes" used in the section is, at the present day, considered undesirable in a definition. The legislature should give a clear indication either that the enumerated species are all that the genus defined embraces-("means"), or that there may be other species ("includes"). The present double form leads to confusion.

(i) Approaching the matter from the angle of section 91, it should be pointed out that section prohibits, in the case of the terms of a written contract, grant or disposition of property, evidence other than the document itself or secondary evidence. A third type of evidence which is neither the document itself nor secondary evidence is not contemplated by section 91(j) thus, the contrary view is likely to create anomalies while the suggested amendment has the merit of logic, promotes consistency and certainty and does justice to the spirit and intendment of the provision.

It is stated that the evidence of written admissions is evidence merely of the factum of the admission and not of the document. This objection loses sight of the fact that section 65 itself describes the written document as evidence of the "existence, condition or contents" of a document.

This is because the latter half of section 65 is interlinked with the first half. Contents of a document are, in the scheme of the Act, proved either by primary or by secondary evidence (section 61). If a written document is neither secondary nor primary evidence, it is outside section 61, and such a view would conflict with section 61. The argument that merely the factum of admission is proved, misses the point that when the contents of a document are admitted, what is ultimately to be proved is the document, and not the admission. The admission is only the medium. Moreover, the written document is admissible only within the framework prescribed by section 65, first part, which clearly states that secondary evidence may be given of the existence, condition or contents of a document.

Then a point has been made that section 63 already enumerates the species of secondary evidence and section 65 does not purport to do so. This point misses the very issue, namely, whether clauses (b) and (g) are not secondary evidence. The very suggestion made is that section 63 should be made self-contained. No doubt, section 65 is not a section intended to enumerate what is secondary evidence, but the very question is, if section 65 assumes certain evidence to be secondary evidence, should that species not be mentioned specifically in the enumerating section-section 63-so as to avoid incompleteness of section 63.

It has been stated that the word "when" in each clause of section 65 does not indicate what is secondary evidence. This argument misses the important grammatical aspect and the proper way of reading each clause of section 65. Each clause is an adverbial clause, not complete until the opening clause "secondary evidence may be given " is also read in conjunction therewith. The adverbial clause in section 65(b) and (g), opening with the word "when" mould be grammatically incomplete unless the opening words "secondary evidence may be given" are added thereto.

It is stated that section 65(b) makes a written document admissible, because therewise section 64 would not be complied with. But, it is also stated that a written admission is primary evidence. If that is so, the proposition is section 64-'documents must be proved by primary evidence except in the cases hereinafter mentioned", would not come in the way. The very fact that section 65 describes he "cases hereinafter mentioned" in terms of an exception shows that what is Provided in section 65 is not primary evidence, in the scheme of our Act, whatever else it may be.

The view that a written admission is "primary evidence" of the contents of the document, is a view which seems difficult to accept in the scheme of the Act. It it is primary evidence, it would be expected to find a place in the definition of "primary evidence" in the Act, which, however, in section 62, defines that expression as meaning the document itself produced for the inspection of the court. That definition, it should be noted, does not use the expression "includes".

As regards section 65 (g), it is stated that it is neither primary nor secondary evidence. Such a conclusion, however, conflicts with three basic features of the scheme of the Act:-

(i) Contents of documents proved either by primary or by secondary evidence (section 61) and no third type of evidence is contemplated in chapter 5 of the Act.

(ii) The first half of section 65 and the marginal note speak only of secondary evidence.

(iii) The unity of section 65 is destroyed if some species are regarded as primary, some as secondary and some as tertiary.

1. Bishwambhar Singh v. State of Orissa, AIR 1954 SC 139 (143), para. II (S.R. Das, J.), on behalf of all the judges.

2. Emphasis supplied.

3. Damodar v. Jagannath, 1888 ILR 12 Born 443 (446).

4. Muttukaruppa Kaundan Rama Pillai, 3 Mad HC Rep 158 (160).

29.21. Recommendation to add two clauses to section 63. If the above view, namely, that clauses (b) and (g) of section 65 deal with secondary evidence, is correct, the following clauses could be added to section 63.

(6) written admissions of the existence, condition or contents of the original;

(7) the general result of the originals, where they consist of numerous accounts or other documents which cannot be conveniently examined in court, as stated by any person who has examined them and who is skilled in the examination of such documents."

Further, the words "and includes" should be deleted from the opening portion. This is the view of three of us. The remaining thre.- Dr. Tripathi, Shri Dhavan and Shri Mitr.- do not, however, agree with the suggested amendment. The Commission being equally divided, it is not possible to make any recommendation on the point discussed above. However, since the point is of importance from the angle of proper drafting of the Act and from the angle of avoiding obscurity, confusion and uncertainty, it has become necessary to discuss the matter at length. It should be pointed out that the section being with "secondary evidence". Hence the conclusion that the evidence referred to in (b) and (g) is a species of secondary evidence is inescapable.

This is fortified by the use of the definite expression "secondary evidence" in the marginal note of section 65. If the opposite view is taken then not only the marginal note but also the opening words would have to be revised as "The evidence specified in this section". The draftsman did not repeat the label "secondary evidence" when dealing with the case in section 65(b) because there was no occasion to do so. In relation to clauses (a) etc. he wanted to provide that "any species" of secondary evidence was to be permitted. It should be noted that section 64 makes it mandatory that documents must be proved by primary evidence, except in the specific cases.

If the evidence specified in section 65(b) and section 65(g) is not "secondary" then there comes into being a type of evidence which is neither primary nor secondary. If that is the position then the expression "secondary evidence" in sections 91-92 will also have to be added to. for covering section 65(b) and (g). It will not do to say that section 65 clause (b) deals with existence, because it also deals with "contents". The contents of documents as such cannot. in the scheme of the Act be proved except (by) either primary or secondary evidence. Three of us-Dr. Tripathi, Shri Dhavan and Shri Mitra do not agree with the above. Their views are mentioned in the following paragraph which incorporates a note setting out their views in their own words.

29.21A. It has been urged that section 65(b) is not a case of secondary evidence, notwithstanding the marginal note and that section 65(b) speaks of "existence". and evidence about "existence" cannot be secondary. It is existence only of a "fact". But as against this, it can be said that one would not be doing violence to the expression "secondary evidence" by suing it for "existence" and "condition" as well. Such a use would not be revolutionising the concept of secondary evidence. Even if an objection could be raised at all, it would be valid only for "existence" and "condition" but there could be no such objection about "contents".

29.22. There are several judicial decisions in which section 65(b) has been treated as case of secondary evidence. It may be noted that section 65 opens with the words "secondary evidence". The word "proved" in section 65(b) may also be emphasised in this con-text. As to the word "existence", let us take a case where the existence itself is denied, and the document it not proved to be lost or to be with a third party. In such a case, evidence of the "existence" would be material, and it would be secondary. It is not primary in any case. To put section 65(b) in section 63- even in so far as existence or condition is mentioned.-created no complications.

29.22A. Views-Other Members.-

The views of two of us-Dr. Tripathi and Shri Mitra-on the subject are reproduced below from the note given by them for the purpose-

Indian Evidence Act, 1872 Back

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