Admissibility of Photocopy as Secondary Evidence: BSA & IEA

The facts mapped:

The original Memorandum of Family Settlement is with the elder brother (plaintiff).
The younger brother had a photocopy (Copy A) of the original.
The elder brother surreptitiously took that photocopy and did not return it.
The wife of the younger brother had made a photocopy of that photocopy (Copy B), which she placed in her bank locker, endorsed as "true copy as per original."
The elder brother files a partition suit claiming the property was undivided.
The younger brother wishes to rely on the Memorandum of Family Settlement to prove a prior division.

The Nature of the Document

Before proceeding, a vital threshold question: is the Memorandum of Family Settlement, as a family arrangement, a registrable document? A family settlement dealing with immovable property is generally required to be registered if it creates or declares specific rights in immovable property. However, a memorandum recording an already effected oral family settlement has been held by the courts to be not compulsorily registrable, as it is merely evidence of what had already been orally settled. The Supreme Court in Kale v Deputy Director of Consolidation (AIR 1976 SC 807) recognised the binding nature of family settlements and held that a memorandum of family settlement does not require registration if it merely records what was already agreed. This is crucial because if the document were inadmissible for want of registration, no secondary evidence of its contents could be given — secondary evidence cannot rescue an original that is itself inadmissible. Proceeding on the assumption that this is an unregistered but admissible memorandum, the three questions can be addressed with confidence.

Question (i) — Can the Court Admit the Photocopy of the Original?

The answer is a qualified yes — but only upon compliance with specific procedural requirements, and the qualification is critical.

The primary evidence of a document is the document itself. Section 62 of the Evidence Act (Section 57, BSA) insists on production of the original, and Section 64 (Section 59, BSA) declares unequivocally that documents must be proved by primary evidence. However, Section 65 (Section 60, BSA) creates exceptions. The facts of this case engage two distinct clauses of Section 65 simultaneously, and both are independently sufficient.

Under Clause (a) of Section 65 — Original in Possession of the Adverse Party:

The original Memorandum is admittedly in the possession of the elder brother, who is the plaintiff — that is, the very person against whom the younger brother seeks to prove the document. This falls squarely within Clause (a), which provides that secondary evidence may be given when the original is "in the possession or power of the person against whom the document is sought to be proved." The elder brother has the original. He is a party to the suit. The document need not be in his actual possession; being within his power is sufficient. Here, actual possession is established. In Nawab Singh v Inderjit Kaur (AIR 1999 SC 1668), the Supreme Court held that an application for leave to produce secondary evidence cannot be summarily dismissed when the original is in the adverse party's custody.

An Aggravating Factor — Acquisition by Fraud:

The elder brother did not merely retain the original — he also obtained the photocopy (Copy A) from the younger brother under the pretext of making a photocopy and did not return it. This is relevant to the notice requirement, as shall be discussed under Question (ii), but it also strengthens the younger brother's position under Clause (a) considerably. The court may draw an adverse inference under Section 114, Illustration (g) of the Evidence Act — that evidence which could be but is not produced would, if produced, be unfavourable to the person who withholds it. The elder brother, by retaining both the original and the photocopy that belonged to the younger brother, has placed himself in a position where the court may strongly presume that the document would have been against his case.

Under Clause (c) — Document Cannot Be Produced for Reasons Not Attributable to Default of the Party:

There is a parallel and independent ground. Even if Clause (a) were unavailable for some reason, Clause (c) would apply. The younger brother cannot produce the original — because it is with the elder brother. He cannot produce Copy A — because the elder brother took it. The inability to produce the document arises not from the younger brother's own default or neglect, but from the deliberate conduct of the elder brother. Clause (c) provides that secondary evidence is admissible "when the original has been destroyed or lost, or when the party offering evidence of its contents cannot, for any other reason not arising from his own default or neglect, produce it in reasonable time." In PK Gupta v Varinder Sharma (AIR 2002 PH 342), the Punjab and Haryana High Court affirmed this position — that inability to produce the original arising from the conduct of the opposite party satisfies Clause (c). In LS Sadapopan v KS Sabarinathan (AIR 2002 Mad 278), the Madras High Court admitted a photocopy as secondary evidence in a suit for specific performance where the original was with the vendor and a photocopy provided to the plaintiff was also lost, holding that Clauses (a) and (c) operate independently of Clause (f).

Therefore, the court can and should admit the photocopy (Copy A, had it been available) as secondary evidence, subject to giving notice to the elder brother. The threshold of admissibility is crossed; the weight and probative value is a separate question.

Question (ii) — Is Notice to the Elder Brother Required Before Leading Secondary Evidence?

Yes, as a general rule, notice is required — but in the facts of this case, notice may well be dispensed with.

Section 66 of the Indian Evidence Act (Section 64 of the BSA, 2023) imposes the requirement of a written notice to produce before secondary evidence can be received under Clause (a) of Section 65. The rationale is plain: the purpose of notice is to give the adverse party a fair opportunity to produce the original, thereby securing the best evidence of its contents. As the Privy Council affirmed in Surendra Krishna Roy v Mirza Mahammad Syed Ali Matwali (AIR 1936 PC 15), notice is required to offer the opposite party a sufficient opportunity to produce the document and to secure the best evidence. Notice to produce must ordinarily be in writing, as prescribed by Order XI, Rule 15 of the CPC.

However, the proviso to Section 66 carves out six exceptions where notice is not required. Two of them are directly applicable here:

Clause (3) of the Proviso — Adverse Party Has Obtained Possession by Fraud or Force:

The elder brother obtained the photocopy (Copy A) from the younger brother under the false pretext of making a photocopy and did not return it. This is unambiguously obtaining possession of a document by fraud. Where the adverse party has obtained possession of the original or a copy by fraud, notice to produce is expressly dispensed with. The legislature's reasoning is obvious — requiring a party to give notice to someone who has already fraudulently obtained his document is not only futile but would amount to rewarding deceit.

Clause (2) of the Proviso — Adverse Party Must Know He Will Be Required to Produce It:

Since the entire suit is about the property and the memorandum is the very document that determines the question in issue — namely, whether the property was already divided by family settlement — the elder brother, as the party who drafted and retained the memorandum and later retained the photocopy under false pretenses, must know perfectly well that the document will be required. This is the nature of the case.

The result is therefore as follows: Notice is ordinarily required under Section 66 / Section 64 (BSA), but in the facts of this problem, notice is dispensed with by virtue of the exception in the proviso — particularly because the elder brother obtained the photocopy by fraud. The younger brother may proceed directly to secondary evidence without giving formal notice. Even if notice were given and the elder brother refuses to produce the document, an adverse inference under Section 114, Illustration (g) would be drawn against him.

Question (iii) — Can a Photocopy of a Photocopy (Copy B) Be Led in Evidence?

This is the most analytically demanding part of the problem, and it calls for a close reading of Section 63 of the Evidence Act (Section 58, BSA).

The wife holds Copy B — a photocopy of the photocopy (Copy A) that was itself a photocopy of the original. The chain is: Original → Copy A (photocopy of original) → Copy B (photocopy of Copy A). Copy B bears an endorsement "true copy as per original," made by the wife.

The crucial provision is Clause (2) of Section 63, which deals with "copies made from the original by mechanical processes which in themselves insure the accuracy of the copy, and copies compared with such copies." Illustration (b) to Section 63 illuminates the precise scenario: "A copy, compared with a copy of a letter made by a copying machine is secondary evidence of the contents of the letter, if it is shown that the copy made by the copying machine was made from the original."

Reading this carefully: the photocopy process is a mechanical process that insures accuracy. Copy A — the photocopy of the original — is a copy made by mechanical process from the original, and is secondary evidence. Copy B — the photocopy of Copy A — is a "copy compared with such copies" (i.e., a copy compared with a mechanically made copy). Illustration (b) says it is admissible as secondary evidence of the letter if it is shown that the copy made by the copying machine was made from the original.

This means that Copy B can be secondary evidence, but upon one essential condition: it must be proved that Copy A was made from the original. The chain of mechanical reproduction must be traced back to the original. Someone — the younger brother, or the wife, or any competent witness — must be able to testify that Copy A was indeed a photocopy taken directly from the original Memorandum. If that foundational fact is established, then Copy B, which is a photocopy of Copy A, becomes admissible secondary evidence under Clause (2) read with Illustration (b).

This must be contrasted with Clause (3) and Illustration (c), which deals with manually transcribed copies. Illustration (c) makes clear that a copy transcribed from a copy is not secondary evidence of the original unless it was compared with the original itself. The concern there is human error at each transcription step. But in the case of photographic/mechanical reproduction, the risk of human error does not exist in the same way, and Clause (2) therefore permits a photocopy of a photocopy — what is essentially a "duplicate copy of a copy" — as secondary evidence, subject to foundational proof.

The Supreme Court gave clear guidance on this in M Chandra v M Thangamuthu (2010 9 SCC 712) — if secondary evidence is admissible, it may be adduced "in any form in which it may be available, whether by production of a copy, duplicate copy of a copy, by oral evidence of the contents or in another form." This authoritative statement explicitly recognises that a duplicate copy of a copy is a permissible form of secondary evidence once the right to adduce secondary evidence is established.

The Endorsement "True Copy as Per Original" by the Wife:

The wife's endorsement on Copy B saying "true copy as per original" raises an interesting question. Under Clause (3) of Section 63, a copy compared with the original is secondary evidence. The endorsement might be read as a comparison statement. However, there are two difficulties: first, the wife has compared it with what she says is the original but what is actually a photocopy (Copy A); second, unless she testifies in court as to when and how she made this comparison, a self-serving endorsement on a document carries limited evidentiary weight. The correct approach is for the wife to be examined as a witness to testify: (a) that Copy A was made from the original; (b) that Copy B is a photocopy of Copy A; and (c) that the contents are accurate. Her oral testimony as a person who has seen the original would also constitute secondary evidence under Clause (5) of Section 63 (and Section 58(v), BSA).

Potential Difficulty — Lack of Direct Comparison with Original:

The concern that a court might raise is that Copy B was not compared with the original Memorandum but only with Copy A. Under Clause (3), the strict rule is that a manually transcribed copy not compared with the original is not secondary evidence. However, since Copy B is a mechanically produced copy — a photocopy — Clause (2) governs, and under Clause (2), comparison with the mechanical copy (Copy A) is sufficient; comparison with the original is not mandatory, provided it is shown that Copy A was made from the original. This is precisely what Illustration (b) says.

The Summary Answer to Question (iii): A photocopy of a photocopy is permissible as secondary evidence under Clause (2) of Section 63 read with Illustration (b), provided foundational evidence is laid — namely, proof that the first photocopy (Copy A) was made directly from the original Memorandum. Without this foundational proof, Copy B would be no more than an unauthenticated document of unknown provenance and would not qualify as secondary evidence. The endorsement on Copy B is a supporting factor but not by itself decisive; the wife's testimony as a witness is indispensable.

The Cumulative Picture

Drawing the threads together, the younger brother's position is legally defensible, though carefully managed:

The court should admit the photocopy (or photocopy of photocopy) as secondary evidence, since the original is with the adverse party and was obtained by fraud — both Clauses (a) and (c) of Section 65 (Section 60, BSA) apply.
Notice under Section 66 (Section 64, BSA) is dispensed with on account of the fraud exception in the proviso — but even if given, the elder brother's refusal would invite an adverse inference under Section 114, Illustration (g).
Copy B (the photocopy of the photocopy) can be led in evidence under Clause (2) of Section 63 (Section 58(ii), BSA) read with Illustration (b), subject to proof that Copy A was made from the original — which the younger brother can establish by his own testimony and that of his wife.
Throughout, the court must remind itself of the principle affirmed by the Constitution Bench in Roman Catholic Mission v State of Madras (AIR 1966 SC 1457): the object of judicial investigation is to fathom the truth, and the law, while insisting on best evidence, permits secondary evidence with proper safeguards when the best evidence has been rendered unavailable — particularly through the misconduct of the very party now seeking to deny the benefit of the document.

The elder brother, by taking the photocopy by fraud and retaining the original, cannot be permitted to benefit from a rule designed to protect the integrity of evidence. As a senior advocate once put it, the law of evidence is not a shield for the dishonest.