Original Will Lost? Supreme Court Says Certified Copy Can Be Used as Evidence

A Will vanished. The only proof left was a copy. The Supreme Court had to decide: is that enough to stand in court?

The courtroom fell silent as the counsel for the defendants placed a single document before the bench — a certified copy of a registered Will, its edges worn, bearing a faded blue stamp from the registration office. The original was gone. The case was Dhanpat v. Sheo Ram. The question before the Court was whether this copy could stand in place of the vanished original.

When the original disappeared

The dispute began in civil litigation over a Will. The defendants — Dhanpat and others, those who stood to benefit from the Will — produced a certified copy of the document. The original, they said, was lost. They could not produce it in court.

The plaintiff — Sheo Ram and others, the persons challenging the Will — did not deny that the Will had been executed. He did not claim the signature was forged or that the testator (the person who made the Will) was incompetent. Instead, his attack was different: he alleged the Will was the result of fraud and misrepresentation. But he admitted the execution itself.

This admission became crucial. Because the plaintiff had accepted that the Will was signed and witnessed, the only real question left was whether the certified copy could be used to prove its contents.

What the law says about lost documents

Indian law divides evidence into two categories. Primary evidence is the original document itself — the Will signed by the testator and witnessed. Secondary evidence is everything else: certified copies, photocopies, oral accounts of what the document said.

Section 65 of the Evidence Act (the provision that allows copies when the original is lost or destroyed) lays down specific situations where secondary evidence is permitted. One of those situations is when the original has been destroyed or lost, and the party seeking to use the copy has made a reasonable search for it.

The defendants in Dhanpat v. Sheo Ram argued that they had done exactly that. They had searched for the original Will. It could not be found. So they produced the certified copy from the registration office — a copy that bore the stamp and seal of the registering authority, its ink slightly smudged from years in a file, the paper yellowed at the edges but the text still legible. The witness who placed it before the court testified that the original had been searched for but could not be located. The file felt thin — the original was simply not there. He described the search: cupboards opened, old records pulled down, inquiries made with the family — nothing yielded the signed document.

Why the plaintiff's silence mattered

The Supreme Court noticed something important. The defendants had put witnesses on the stand to testify about the loss of the original Will. The plaintiff had the opportunity to cross-examine those witnesses — to challenge their claim that the original was truly lost, to ask whether a proper search had been conducted, to probe whether the original might still exist somewhere.

The plaintiff did none of this. Not a single question was asked about the loss of the original Will during cross-examination. The witness shifted on the stand, waiting for questions that never came. The bench sat in silence as the plaintiff's counsel declined to cross-examine on the point. The courtroom, already quiet, seemed to hold its breath — the moment stretched, and then the counsel simply sat down.

This silence, the Court observed, meant that the defendants' evidence about the loss stood unchallenged. The plaintiff had effectively conceded that the original was lost and that the defendants had made reasonable efforts to find it.

The Court's reasoning

The bench held that the defendants had "sufficiently made out grounds for leading secondary evidence." The certified copy was admissible under Section 65 of the Evidence Act.

But the Court drew a sharp distinction. Admissibility is one thing. Proof is another.

The certified copy could now be placed before the court. The judge could read its contents. But that did not automatically mean the Will was validly executed. The party relying on the Will would still need to prove that it was signed by the testator in the presence of witnesses, and that the testator was of sound mind at the time.

The certified copy merely proved what the Will said. It did not prove that the Will was legally effective.

The concrete allegation that shaped the case

The plaintiff's case was built on a specific claim: that the Will was the product of fraud and misrepresentation. This was not a vague objection — it was a concrete allegation that the testator had been deceived or coerced into signing. Yet the plaintiff had admitted the execution of the Will. He had not disputed that the testator signed it or that witnesses were present. The fraud and misrepresentation argument attacked the circumstances surrounding the Will's creation, not the fact of its creation.

This distinction mattered. Because the plaintiff admitted execution, the only question before the Court was whether the certified copy could be used to read the Will's contents. The fraud allegation would be tested later, at trial, when the contents of the Will were before the court. The copy would be the lens through which the court examined those claims — the words on the page, now admissible, would form the basis of the contest.

What this means for practitioners

For lawyers handling Will disputes, the decision offers a clear roadmap. If the original Will is lost, a certified copy can be used as secondary evidence — but only if you first establish the groundwork: show that you searched for the original, explain why it cannot be produced, and put witnesses on the stand to testify to the loss.

And if the opposing party does not cross-examine those witnesses, the Court will treat the loss as admitted. The procedural fact of no cross-examination — the silence in the courtroom — becomes a powerful tool for the party seeking to admit the copy.

The implications extend beyond this single case. In a country where Wills are often kept in family homes or with local registrars, the risk of loss is real. A fire, a flood, a misplaced file, a relative who does not know where the document was kept — any of these can destroy the original. The Supreme Court's decision in Dhanpat v. Sheo Ram ensures that the loss of an original does not mean the loss of the claim. The certified copy, with its official stamp and seal, can step into the gap.

But the decision also carries a warning. The party seeking to rely on the certified copy must prove the loss. That proof must come from witnesses who can testify to the search. And if the other side challenges that testimony, the court will examine whether the search was genuine. The burden is not light — it is a real evidentiary burden, one that requires preparation and evidence.

The case also highlights a deeper procedural truth: the admission of secondary evidence does not automatically validate the document's contents. The certified copy of the registered Will enters the record as a piece of evidence, but the court must still weigh it against other evidence — the testimony of witnesses, the circumstances of execution, the credibility of the fraud allegation. The copy is a window into the Will's terms, not a shortcut to proving its validity.

For litigants, the lesson is twofold. First, preserve the original Will with care — registration provides a certified backup, but the original remains the strongest evidence. Second, if the original is lost, act quickly to gather secondary evidence and establish the loss through witnesses. Delay or ambiguity in proving the loss can undermine the entire claim.

The Supreme Court's reasoning in Dhanpat v. Sheo Ram rests on a straightforward application of Section 65. But the case also reflects a broader principle: the law does not require the impossible. When a document is genuinely lost, a certified copy can fill the void. The key is to prove the loss — and to let the other side's silence speak volumes.

THE PLAY: When the original Will is lost, produce the certified copy and lead evidence of the loss — if the other side does not challenge that evidence, the copy is admissible under Section 65 of the Evidence Act.

One question remains unanswered: who holds the original, and why did they let it vanish? The certified copy is now in evidence. The fraud and misrepresentation claim will be heard. But the Will itself — the signed, witnessed original — is gone, perhaps forever. The registration office copy, with its faded blue stamp and yellowed paper, now carries the weight of the entire dispute. The courtroom, once silent, will soon fill with arguments about what the Will meant, whether it was freely made, and what should happen to the property it sought to distribute. The copy stands in for the original — but the original, somewhere, is lost to time.