Plaintiffs in a suit for declaration filed an application before the Trial Court under section 65 and 66 Indian Evidence Act. They seeked permission to prove that the copy of the Will executed by Babu Singh in their favour by way of secondary evidence is valid. This is because the original Will which was handed over to the village patwari for mutation could not be retrieved. This application came to be dismissed in High Court. It said that since existence of the Will is not proved, which is the primary condition, it cannot be approved only by secondary evidences.

Secondary evidence may be given in the case where original exists and is shown to be in possession. It can be in someone else's power or out of reach or not included in the process of the court, but it should exist. It is a settled position of law that for secondary evidence to be admitted, foundational evidence has to be given, with the reasons as to why the original evidence has not been furnished. Factual foundation to establish right to give secondary evidence was laid down by applicants.

Applicants would be entitled to lead secondary evidence in respect of the Will in question, but such admission of secondary evidence automatically does not attest for authenticity. The genuineness has to be established during the course of trial in accordance with law.