A copy of a copy. A court says that's not proof.

The first appellate court called it a waqf property. But the only evidence was a copy of a copy — and no one had laid the foundation for it.

On a piece of paper, a property changed hands. Not through a sale deed or a gift, but through a photocopy of a photocopy, waved in court as proof that the land belonged to a religious board. The Chhattisgarh High Court had to decide whether that paper was enough to strip a man of his ownership — and the answer was a quiet, devastating no.

When the only proof was a shadow

Jaipal Choudhary owned a piece of land. Or so he believed, until the Chhattisgarh Waqf Board claimed it belonged to them — that the property was waqf (land dedicated for religious or charitable purposes under Islamic law). The Board’s entire case rested on a single document: Exhibit D/10, a copy of what they said was the original waqf deed.

But Exhibit D/10 wasn’t a photocopy of the original. It was a copy made from another copy. The original deed itself had never been produced in court. No one explained where it was, whether it had been lost, destroyed, or simply withheld. The first appellate court accepted this document as proof, declared the property waqf, and held that the civil court had no jurisdiction to hear Choudhary’s case under Section 85 of the Wakf Act, 1995 (a provision that bars civil courts from deciding disputes over waqf property).

Choudhary appealed to the Chhattisgarh High Court.

The one question that undid everything

The High Court did not need to examine the deed itself. It asked a simpler question: how did this document get into evidence at all?

Under the Indian Evidence Act, 1872, there are two kinds of evidence. Primary evidence is the original document itself. Secondary evidence is everything else — photocopies, certified copies, oral accounts of the document’s contents. But secondary evidence is not a free pass. Section 65 of the Evidence Act allows it only in seven specific situations, such as when the original is lost, destroyed, or in the possession of someone who refuses to produce it.

The court stressed: “The conditions laid down in the said section must be fulfilled before secondary evidence can be admitted.”

The Board had not fulfilled any of them. No witness testified that the original was lost. No notice was sent to the person holding the original. No explanation was offered for why a copy of a copy was the best they could produce. The foundation for leading secondary evidence — the legal groundwork that proves the original is unavailable — simply did not exist.

Why a presumption couldn’t save it

The Board’s lawyers argued that even if the document was a copy, the court could presume it was genuine under Section 90 of the Evidence Act (a rule that allows courts to assume that a document thirty years old is authentic, if produced from proper custody).

The High Court rejected this argument flatly. A presumption under Section 90 does not apply to a copy — or even a certified copy — unless the party first lays a foundation for admitting it as secondary evidence under Section 63 of the Evidence Act (which defines what counts as secondary evidence). Typically, this requires “proof of loss or destruction of the original.” Without that foundation, the presumption never kicks in.

The copy of a copy remained exactly that: a piece of paper with no legal weight.

The verdict: a finding built on air

The High Court concluded that the first appellate court was “absolutely unjustified in holding that the suit property is a wakf property, as such, the suit property has not been proved to be wakf property in absence of foundation for leading secondary evidence under Section 65 of the Evidence Act.”

The appeal was allowed. The judgment declaring the property waqf was set aside. The Board’s entire argument — that the civil court had no jurisdiction — collapsed because the fact it depended on (that the property was waqf) had never been proved in the first place.

The second case that sharpens the rule

Around the same time, the Bombay High Court dealt with a similar problem in Rajendra Mahadev Todkar v. M/s Paranjape Schemes (Construction) Company Limited. A trial court had allowed a party to produce certain letters as secondary evidence. The petitioner challenged that order, arguing that no foundation had been laid — there was no record proving the letters were issued by the respondent or that they were in the petitioner’s possession.

The Bombay High Court upheld the trial court’s decision to allow production, but it drew a crucial distinction: “merely because the respondent was allowed to lead secondary evidence does not imply that they will be exhibited or admitted in evidence.”

In plain terms: getting permission to produce a document is not the same as getting it admitted as evidence. The party must still satisfy the admissibility criteria — proving the foundational contingency (loss, destruction, possession by the other side, etc.) — before the court can rely on the document. The appellate or higher court retains the power to scrutinize admissibility regardless of the production order.

This means the strategic burden is twofold. First, establish a foundation for producing the document. Second, satisfy the admissibility criteria for the document to be officially admitted and relied upon.

What this means for practitioners

Two lessons emerge from these cases, and they apply to every civil lawyer in India.

First: Secondary evidence is not a shortcut. It is an exception, and exceptions require proof. Before you tender a copy, you must lead evidence that the original is unavailable — a witness who saw it lost, a notice sent to the person holding it, a police report of destruction. Without that foundation, the copy is worthless.

Second: A court order allowing you to produce secondary evidence is not the same as a ruling that the evidence is admissible. The two stages are distinct. The admissibility stage is where the case is won or lost, and it is subject to scrutiny at every appellate level.

THE PLAY: Before you lead secondary evidence, prove the original is unavailable — or the copy proves nothing at all.

The copy of a copy went back into the file. The land stayed with the man who owned it.