He gave the original Will to a village official. It vanished. Can he prove a copy?

He handed over the original Will to the village patwari for mutation. Then it disappeared. Now he wants to prove a photocopy in court. The judge said—no. The High Court agreed. The Supreme Court disagreed.

The question was plain: can a man prove a copy of a Will when the original has vanished into the hands of a government official? The answer, the Supreme Court held, is yes—but only if he first explains, under oath, why the original is gone.

When the Will went to the patwari

In Jagmail Singh v. Karamjit Singh, the Appellants held a Will dated 24th January 1989. The paper was creased at the edges, the ink faded but legible. It was their ticket to a property claim. To update the land records—a process called mutation—they handed the original document to the village patwari, the local revenue official responsible for maintaining land records.

The patwari took it. The patwari's ink-stained ledger swallowed it. Or it slipped between the pages of the mutation register. Or it simply never returned. The original Will was gone.

The Appellants were left holding nothing but a photocopy—the edges already curling, the text a little smudged from the machine. And a problem: Indian courts, like courts everywhere, prefer original documents. A photocopy is what the law calls "secondary evidence"—a copy, not the real thing. The law allows it only in specific situations, and only after the party explains why the original cannot be produced.

The application that started everything

The Appellants filed an application under Sections 65 and 66 of the Indian Evidence Act before the Civil Judge. The courtroom was quiet as the affidavit was read aloud, the words describing the patwari's office, the missing document, the fruitless attempts to retrieve it. They asked for permission to prove the photocopy of the Will as secondary evidence.

Section 65—the provision that lists when a copy can be used instead of the original—says, among other things, that secondary evidence is allowed when the original is in the possession of a person who is legally bound to produce it, and that person does not produce it after receiving a formal notice. The patwari, the Appellants argued, was exactly such a person—a public official who had taken the document and then failed to return it.

Section 66—the procedural rule that requires a party to give notice to produce the original before offering a copy—had also been complied with, they said. The notice had been sent. The patwari had remained silent.

The Civil Judge was not convinced. He dismissed the application. The photocopy stayed out of evidence.

Why the High Court said no

The Appellants approached the High Court. They argued that the impugned order suffered from "patent errors of law"—meaning the mistake was obvious on the face of the record—and was against the letter and spirit of Sections 65 and 66 of the Evidence Act. They pointed to Section 65(a), which allows secondary evidence when the original is in the possession of a person against whom the document is sought to be proved, or any person legally bound to produce it, and that person does not produce it after notice.

The High Court looked at the case and saw a different problem. Its silence deepened as the judges reviewed the record. It observed that the "pre-requisite condition of existence of Will is not proved." In plain language: the Appellants had not first established that the original Will ever existed in the first place. Without that foundational fact—that there was an original, that it was signed, that it was handed to the patwari—the court could not allow a photocopy to be introduced.

The High Court dismissed the appeal. The Appellants were stuck. They had a photocopy, but no way to get it into evidence. The file felt thin in their hands as they left the courtroom.

The Supreme Court's turn: what foundational evidence really means

The Appellants took the case to the Supreme Court. And there, the law shifted.

The Supreme Court began by restating a settled principle: secondary evidence is an exception to the rule that only the original document is admissible. Because it is an exception, the party seeking to use it must first lay "foundational evidence"—that is, the party must explain, through testimony or affidavit, why the original is not available. The Court put it plainly: "foundational evidence has to be given being the reasons as to why the original Evidence has not been furnished."

This is not a mere technicality. It is the gatekeeper. Without it, any party could claim a document is lost and introduce a convenient copy. The rule forces honesty: tell the court what happened to the original, and the court will decide whether your explanation is good enough.

But here was the twist. The Supreme Court examined the record—the creased affidavit, the notice copy, the patwari's acknowledgment—and found that the Appellants had, in fact, laid that foundation. They had explained that the original was handed to the patwari for mutation and had not been returned. They had given notice. They had done what the law required.

The High Court, the Supreme Court held, had committed a "grave error of law" by failing to evaluate this evidence properly. Instead of examining whether the Appellants had explained the missing original, the High Court had demanded proof of the Will's existence—a different and higher standard at this preliminary stage.

The Supreme Court was clear: the High Court "ought to have given them an opportunity to lead secondary evidence." Denying that opportunity, without first allowing the Appellants to cure any defect in their foundational evidence, was a patent error.

What the judgment actually does—and does not do

The Supreme Court set aside the High Court's judgment. The smell of old paper and the weight of the file seemed lighter as the order was read out. The appeal was allowed. The Appellants were now entitled to lead secondary evidence—to present the photocopy of the Will in court.

But the Court added a crucial caveat. Allowing the photocopy into evidence does not mean the court accepts it as genuine. The Court clarified that "such admission does not automatically attest to its authenticity, truthfulness, or genuineness." The Respondents can still challenge the copy. They can argue it is forged, or that the original never existed, or that the explanation for its loss is a lie. The trial on those questions will happen later.

What the Supreme Court did was open the door. It did not decide who walks through it.

Why this matters for every litigant with a lost document

For practitioners and parties alike, the takeaway is sharp. If you hold a copy of a document and the original is gone, you cannot simply walk into court and hand over the photocopy. You must first explain—in an affidavit or oral testimony—what happened to the original. Who had it? Why did they not return it? Did you give notice? If you do that, and the trial court still rejects your copy, you have grounds to appeal.

This verdict strongly reinforces that denying a party the opportunity to cure a defect regarding foundational evidence for secondary proof is a patent error of law. It underscores the necessity of offering a chance to cure deficiencies before rejecting evidence outright. The Supreme Court ended where it began: with a Will, a patwari, and a photocopy that might yet prove everything. The courtroom fell silent as the judgment was delivered, the echo of the word "allowed" hanging in the air like a door finally opening.