PROOF OF DOCUMENTS & OBJECTIONS TO ADMISSIBILITY – How & When?

Saji Koduvath. Advocate , Kottayam.

Contents – in nutshell

I. A document that is used in court has to pass through three steps. They are:

Production of documents in court
Admission and exhibition
Proof (or truth of contents).

II. Truth of the contents of a document, can be established

(i) by oral evidence of one who can vouchsafe the same,
(ii) by invoking circumstantial evidence or ‘presumption’ or
(iii) by express admission by the other side.

III. Modes of Proof of Documents (as to, both, ‘formal proof’ and ‘truth of the contents’) include the following:

Admission of the person who wrote or signed the document (Sec. 17, 21, 58, 67, 70).
Evidence of a person in whose presence the document was signed or written – ocular evidence (Sec. 59).
An attesting witness (Sec. 59).
Opinion of a person who is acquainted with the writing of the person who signed or wrote (Sec. 47).
Admission made by the person who signed or wrote the document made in a former judicial proceedings (Sec. 32, 33).
Evidence of a handwriting expert-opinion evidence/scientific evidence (Sec.45).
Evidence of a person who in routine has been receiving the document; or a document signed by such a person in the ordinary course of his business or official duty, though he may have never seen the author signing the document (Sec. 32, 34, 35 or 114).
Invoking (specific) presumptions under Sec. 79 to 90A.
Presumptions (general) under Sec. 114.
Circumstantial evidence: on probability or inferences (Sec. 114).
Court-comparison (Sec. 73).
Facts judicially noticeable (Sec. 56 and 57).
A fact of common-knowledge. (It does not require proof. See: Union Of India Vs. Virendra Bharti: 2011-2 ACC 886, 2010 ACJ 2353; Rakhal Chakraborty Vs. Sanjib Kumar Roy: 1998-1 GauLR 253, 1997-2 GauLT 705)
Internal evidence afforded by the contents of the document; a link in a chain of correspondence; recipient of the document. (Mobarik Ali Ahmed Vs. State of Bombay, AIR 1957 SC 857)

IV. Accepted law on Proof – In a nutshell:

IF the TRUTH of the facts stated in a document is IN ISSUE mere proof of the hand-writing and execution of the document would not furnish evidence of the truth of the facts or contents of the document.

V. Admissibility & probative value – two matters.

State of Bihar Vs. Radha Krishna Singh (AIR 1983 SC 684) it is observed: “Admissibility of a document is one thing and its probative value quite another—these two aspects cannot be combined. A document may be admissible and yet may not carry any conviction and weight or its probative value may be nil.”

Documents Marked Without Objection as to its MODE OF PROOF – Effect

The law prevails in India is the following –

If documents marked without objection as to its mode of proof, it is not open to the other side to object to their admissibility afterwards.
Following are the decisive decisions in this line.

P.C. Purushothama Reddiar v. S.Perumal,(1972) 1 SCC 9 (Three Judge Bench – A.N. Grover, K.S. Hegde, A.N. Ray, JJ.)	Admissibility of police reports without examining the Head Constables who covered those meetings. Those reports were marked without any objection. Hence it was not open to the respondent to object to their admissibility.	Relied on Bhagat Ram v. Khetu Ram, AIR 1929 PC 110.
R.V.E. Venkatchalla Gounder v. Arulmighu Viswesaraswamy and V.P. Temple, (2003) 8 SCC 752 (R.C. Lahoti, Ashok Bhan, JJ.)	Photo copies were admitted in evidence without leading foundation – without objection. They cannot be held inadmissible for originals were not produced.	Relied on Padman v. Hanwanta, AIR 1915 PC 111 P.C. Purushothama Reddiar vs. S.Perumal
PC Thomas v. PM Ismail, AIR 2010 SC 905; 2009-10 SCC 239.	Non-examination and absence of “proof of acknowledgment” by the author – If no objection on ‘mode of proof’ in trial court, it will be too late (in appeal) to raise objection on the ground of mode of proof – that is, “non production of John K as a witness”.	…
Rafia Sultan v. Oil And Natural Gas Commission (I.C. Bhatt, S.B. Majmudar, JJ.), 1986 ACJ 616; 1986 Guj LH 27; 1985-2 GujLR 1315	No objection about the truth* of contents* of Ex. 32. The witness of the defendant accepted the contents. Therefore, *too late in the day* to canvass that contents of Ex. 32 were not proved.	…
Smt. Dayamathi Bai v. K.M. Shaffi, AIR 2004 SC 4082	Objection to be taken (secondary evidence) at trial before document is marked as an ‘exhibit’ and admitted to the record.	Relied on Gopal Das v. Sri Thakurji, AIR 1943 PC 83; R.V.E. Venkatchalla Gounder v. Arulmighu , (2003) 8 SCC 752
Sarkar on Evidence .	If copies of the documents are admitted without objection in the trial Court, no objection can be taken in appeal	Referred to in: Smt. Dayamathi Bai v. K.M. Shaffi, AIR 2004 SC 4082.

PART I

Production, Admission in Evidence and Proof of Documents

Documents to be utilised in court has to pass through three steps. They are:

Production of documents in court,
Admission and exhibition (if relevant),
Proof (or truth of contents, veracity, reliability, etc.).

The question of proof comes for consideration only if the first step (admission and exhibition, as relevant) is successfully covered. In Anvar P.V. v. P.K. Basheer, AIR 2015 SC 180, our Apex Court held as under:

“Genuineness, veracity or reliability of the evidence is seen by the court only after the stage of relevancy and admissibility.”

Order VII rule 14, Order VIII rule 8A and Order XIII rule 1 say as to ‘Production‘ of documents in court. At this stage the opposite party may not have a role to object. But the Court or even the office of the court (registry) can raise and note objection on the ground of insufficiency of stamp by virtue of the provisions of the Stamp Act concerned.

Order XIII rule 4 requires following endorsements on every document which has been admitted in evidence in the Suit:

(a) the number and title of the suit,
(b) the name of the person producing the document,
(c) the date on which it was produced, and
(d) a statement of its having been so admitted.

Objection Regarding Admissibility of Documents – 2 counts

Disputes on admissibility of documents arise on 2 domains (See: Manakishore Lalbhai Vs. New Era Fabrics: AIR 2015 SC 3796).

Document which is ab initio (or inherently) ‘inadmissible’
Document liable to be objected on ‘mode or manner of proof’.

Even if an inherently-inadmissible document is marked, objections thereto can be raised ‘at a later stage’. Mode of proof (not inherent admissibility) falls within the realm of procedural law. Therefore, objection thereto can be waived.

Inherently-inadmissible documents

‘Inherent-inadmissibility of documents’ arises from the following:

Irrelevancy
Non-registration.

Marking of Document liable to be Objected on ‘Mode or Manner of Proof’

Following are improper modes (liable to objection):

Seeking exhibition through one who cannot vouchsafe veracity.
Objectionable (mode of) secondary evidence. Eg:
- Certified copy produced without proving circumstances that entitles to give secondary evidence under Sec. 65 of the Evd. Act.
- Secondary evidence other than that is recognised under Sec. 63 .
Unstamped or insufficiently/improperly stamped document.

Objection to be raised – When Document is Admitted

The Privy Council, in Padman v. Hanwanta, AIR 1915 PC 111, held that the objection to marking of documents and its admissibility should have been taken in the trial court. It was observed as under:

“The defendants have now appeal to the Majesty in Council, and the case has been argued on their behalf in great detail. It was urged in the course of the argument that a registered copy of the will of 1898 was admitted in evidence without sufficient foundation being led for its admission. No objection, however, appears to have been taken in the first court against the copy obtained from the Registrar’s office being put in evidence. Had such objection being made at the time, the District Judge, who tried the case in the first instance, would probably have seen that the deficiency was supplied. Their lordships think that there is no substance in the present contention.” (quoted in: R.V.E. Venkatachala Gounder v. Arulmigu Viswesaraswami: AIR 2003 SC 4548)

It was observed by the Supreme Court in Bipin Shantilal Panchal v. State of Gujarat, AIR 2001 SC 1158, that that ‘it is an archaic practice that during the evidence collecting stage, whenever any objection is raised regarding admissibility of any material in evidence the court does not proceed further without passing order on such objection’. And the Court directed as under:

“When so recast, the practice which can be a better substitute is this: Whenever an objection is raised during evidence taking stage regarding the admissibility of any material or item of oral evidence the trial court can make a note of such objection and mark the objected document tentatively as an exhibit in the case (or record the objected part of the oral evidence) subject to such objections to be decided at the last stage in the final judgment.”

But, the subsequent decisions in R.V.E. Venkatachala Gounder v. Arulmigu Viswesaraswami: AIR 2003 SC 4548; Dayamathi Bai v. K.M. Shaffi : AIR 2004 SC 4082: (2004) 7 SCC 107 took a contra view. It was held that the objection as to ‘mode of proof’ should be taken at the time of marking of the document as an exhibit, so that the defect can be cured by the affected party.

In Re: To Issue Certain Guidelines Regarding Inadequacies And Deficiencies In Criminal Trials v. State of Andhra Pradesh, 2021-10 SCC 598, overruled (ruled – stood modified) Bipin Shantilal Panchal v. State of Gujarat, AIR 2001 SC 1158. It is directed as under:

“The presiding officer therefore, should decide objections to questions, during the course of the proceeding, or failing it at the end of the deposition of the concerned witness.”

It appears that the decision taken by a Magistrate to mark the document – “subject to objection” is improper; nevertheless, marking – “subject to proof” is a permissible action, for it is a “decision” ruled-down in In Re: To Issue Certain Guidelines Regarding Inadequacies And Deficiencies In Criminal Trials v. State of Andhra Pradesh, 2021-10 SCC 598.

In P.C. Purushothama Reddiar vs S. Perumal, 1972 (2) SCR 646, it was observed as under:

“Counsel contended that the police reports referred to earlier are inadmissible in evidence as the Head-constables who covered those meetings have not been examined in the case. Those reports were marked without any objection. Hence it is not open to the respondent now to object to their admissibility.”

Document Marked in Proof Affidavit; Objection in Cross Exam. – Effect

Our Apex Court held in Lachhmi Narain Singh v. Sarjug Singh, AIR 2021 SC 3873, as under:

“24. In view of the foregoing discussion, it is clear that plea regarding mode of proof cannot be permitted to be taken at the appellate stage for the first time, if not raised before the trial Court at the appropriate stage. This is to avoid prejudice to the party who produced the certified copy of an original document without protest by the other side. If such objection was raised before trial court, then the concerned party could have cured the mode of proof by summoning the original copy of document. But such opportunity may not be available or possible at a later stage. Therefore, allowing such objection to be raised during the appellate stage would put the party (who placed certified copy on record instead of original copy) in a jeopardy & would seriously prejudice interests of that party. It will also be inconsistent with the rule of fair play as propounded by Justice Ashok Bhan in the case of RVE Venkatachala Gounder v. Arulmigu, AIR 2003 SC 4548.”

The law on the point – whether a challenge in cross-examination, sufficient – can be deduced from the following observation in Regional Director, Employees State Insurance Corporation v. Agro-Chem Industries Services, 2013-6 All MR 702; 2014 1 MhLJ 664 –

“The Appellants did not raise any objection when the said documents were taken on record and marked as exhibit nor the authenticity of the documents were challenged in the cross examination.”

In New India Assurance Co. Ltd. v. Nripendra Sarkar, 25 Sep 2024 (Gau), it is held as under:

“After proper consideration of the entire documents and on examination of his present condition, the District Social Welfare Board has issued the Disability certificate Ext-9. In absence of any contrary document or proper objection during cross examination by the respondent appellant, the court has no reason to disbelieve the same.”

Read blog: Marking Documents: Should Objection be Raised Strictly When they are Marked; Is it Sufficient to Challenge them during Cross-Examination?

The law on the point – whether a challenge in cross-examination, sufficient – can be deduced from the following decisions

(i) Regional Director, Employees State Insurance Corporation v. Agro-Chem Industries Services, 2013-6 All MR 702; 2014 1 MhLJ 664, where it is observed –

“The Appellants did not raise any objection when the said documents were taken on record and marked as exhibit nor the authenticity of the documents were challenged in the cross examination.”

(ii) Zulfikhar Khan v. Habib Khan @ Abdul Mujeeb Khan, 11 Mar 2020 (Del) , where it is observed –

“5. Learned counsel appearing for the respondents submits that the original documents were duly produced before the Trial Court at the time of the recording of the evidence of the respondent and the copies of the said documents, after comparison, were exhibited and marked as Exhibit PW1/6 to PW1/8 and no objection was taken by the petitioner with regard to the proof of the said documents and exhibit marking of the copies and there is even no cross-examination or suggestion during cross examination that the originals have not been produced.”

(iii) In New India Assurance Co. Ltd. v. Nripendra Sarkar, 25 Sep 2024 (Gau), it is held as under:

“After proper consideration of the entire documents and on examination of his present condition, the District Social Welfare Board has issued the Disability certificate Ext-9. In absence of any contrary document or proper objection during cross examination by the respondent appellant, the court has no reason to disbelieve the same.”

(iv) In Thakor Rajuji Takhaji VS Owner of Tractor No. RJ-21-3R-8180 Kawarilal, 2024 Guj HC 14451), it is held as under:

“The list was produced at Exhibit 20 and all the documents produced at list Exhibit 20 had been referred to in the examination-in-chief. The learned Tribunal has failed to pass any order of admitting or rejecting the documents referred to. The cross examination of the respondent/s does not suggest that they had any objection to the documents produced.”

(v) In Kuntal Kundu v. National Insurance Company Limited, 2008-3 WBLR 717), it is held as under:

“In the case before us, the appellant in his evidence-in-chief specifically tendered the said certificate and the same along with others was marked as Exhibit without objection. We have already pointed out that even no suggestion was given in cross-examination disputing either the contents or the genuineness of those documents.

Contra View on insufficiency of Stamp Duty

(i) In Jatti Veera Venkata Satyam v. Bosukonda Chinnadevi, 2023-3 ALT 345, it is held as under:

“20. In the present case, the agreement of sale which requires stamp duty under Article 47-A is executed on a deficit stamped paper, i.e., of Rs.100/- only, yet, the same was marked without raising any such objection. It is only during the cross-examination of PW1, such an objection was raised by the defendants. In view of the express prohibition made under Section 36 of the Stamp Act, no such objection can be raised on the ground of insufficiency of stamp duty.”

(ii) Srinivasa Builders v. A. Janga Reddy, 2016-3 ALD 343; 2016-2 ALT 321, it is seen that the court accepted the following argument-

“With respect to the agreement of sale executed on Rs.50/- stamp paper, the Court imposed stamp duty and penalty, the amount was already remitted and in view of the same, the said document was marked as exhibit without any objection from the defendants. Therefore, the defendants cannot raise objection at the stage of cross-examination.”

Our Procedural Codes do not specifically speak about time of raising objection. The general accepted proposition is that when a document is marked as an exhibit without objection from the opposite party which is affected by that document, its admissibility cannot be questioned at a later stage of the proceedings in the suit.

Document – Challenge In Cross Examination: Propositions

Will it be sufficient if the admissibility is challenged in cross examination of the witness through whom it is exhibited?

Several propositions are seen raised.

Court evaluates documents only in Final Hearing. Hence, court cannot ignore the objection of the opposite party raised in cross examination.
Plea regarding mode of proof cannotis not permitted to be taken at the appellate stage for the first time. This is to avoid surprise or prejudice to the other side. If such objection was raisedin trial court, the concerned party could have cured the deficiency. (Lachhmi Narain Singh v. Sarjug Singh, AIR 2021 SC 3873). Therefore, raising objection in cross examination would be enough.

Following are the opposite views:

For no objection at the time of ‘recording/exhibiting it by court’, objection raised in cross examination stand belated.
If a document ‘liable to be objected on mode or manner of proof,’ is allowed to be marked, or no objection is raised at that ‘proper’ time, subsequent cross examination is of no use.

It goes without saying that the pedantic approach in the latter propositions will adorn only over-scrupulous judges.

Admissibility, Reliability of Documents be Considered at Hearing

In K. Mallesh v. K. Narender, 2015-12 Scale 341; 2016-1 SCC 670 (Anil R. Dave, Adarsh Kumar Goel, JJ.) allowed an appeal setting aside the order passed in an interlocutory stage, during the pendency of a suit, holding as under:

“2. In our opinion the High Court should not have interfered at the stage when the trial was still in progress. Therefore, we set aside the impugned order passed by the High Court without going into the merits of the case. We say that the admissibility, reliabiity and registrability of the documents shall be considered independently only at the time of hearing of the trial and not prior thereto. All questions with regard to the aforesaid issues shall remain open.

Admission of Documents Without Proof

Section 163 of the Evidence Act, reads as under:

163. Giving, as evidence, of document called for and produced on notice: When a party calls for a document which he has given the other party notice to produce, and such document is produced and inspected by the party calling for its production, he is bound to give it as evidence if the party producing it requires him to do so.

Order XI rule 15 and Order XII rule 8 are the provisions in the CPC, to give notice to the other party to produce documents (for ‘inspection’ and ‘show court’, respectively).

It is observed in Government of Bengal v. Santiram Mondal, AIR 1930 Cal 370, with respect to a document used under Sec. 163, as under:

“The further contention is that if they are to be admitted, they cannot be put in or at any rate used without proof. But the section itself says that the party calling for it is bound to give it as evidence if required to do so, and that certainly means that it goes in as a record of the particular proceeding and that it can be looked at to see what it includes or omits.”

In Government of Bengal v. Santiram Mondal, AIR 1930 Cal 370, and R v. Makhan, AIR 1940 Cal 167 it was observed that Section 163 of the Evidence Act applies to Criminal Proceedings also.

Foundational Evidence Necessary for Admitting Copy

In Roman Catholic Mission v. State of Madras, AIR 1966 SC 1457, it was held (Four Judge Bench – M. Hidayatullah, P.B. Gajendragadkar, K.N. Wanchoo, V. Ramaswami, JJ.) as under:

“These documents undoubtedly would have thrown light upon the matter but they were not admissible because they were only copies. The originals were not produced at any time nor was any foundation laid for the establishment of the right to give secondary evidence. The High Court rejected them and it was plainly right in so deciding.”

Xerox Copies Should Not have Marked; Original should have

In Shalimar Chemical Works Ltd. v. Surendra Oil & Dal Mills (Refineries), 2010-8 SCC 423, our Apex Court viewed the following mistakes as “serious” –

“The trial court should not have “marked” as exhibits the Xerox copies of the certificates of registration of trade mark in face of the objection raised by the defendants…. rather than leaving the issue of admissibility of those copies open and hanging, by marking them as exhibits subject to objection of proof and admissibility. …
The learned single judge rightly allowed the appellant’s plea for production of the original certificates of registration of trade mark as additional evidence because that was simply in the interest of justice and there was sufficient statutory basis for that under clause (b) of Order 41, Rule 27. But then the single judge seriously erred in proceeding simultaneously to allow the appeal and not giving the defendants/respondents an opportunity to lead evidence in rebuttal of the documents taken in as additional evidence.
The division bench was again wrong in taking the view that in the facts of the case, the production of additional evidence was not permissible under Order 41, Rule 27.”

Mere Execution, Not Prove – Recitals Are Correct

In Gangamma v. Shivalingaiah, 2005-9 SCC 359, it is held as under:

“We may furthermore notice that even if a formal execution of a document is proved, the same by itself cannot lead to a presumption that the recitals contained therein are also correct. The mere execution of a document, h in other words, does not lead to the conclusion that the recitals made therein are correct, and subject to the statutory provisions contained in Sections 91 and 92 of the Evidence Act, it is open to the parties to raise a plea contra thereto.”

A Writing, By Itself, Is Evidence Of Nothing

The Bombay High Court, in Bank of India v. M/s. Allibhoy Mohammed, AIR 2008 Bom 81, it is held as under:

“33. The mode of proving the contents of the documents has been dealt with in Sections 61-66. As already stated hereinabove the production of the document purporting to have been signed or written by a certain person is no evidence of its authorship. It is necessary to prove their genuineness and execution. Proof, therefore, has to be given of the handwriting, signature and execution of a document. No writing can be received in evidence as a genuine writing until it has been proved to be a genuine one, and none as a forgery until it has been proved to be a forgery. A writing, by itself, is not evidence of the one thing or the other. A writing, by itself, is evidence of nothing, and therefore is not, unless accompanied by proof of some sort, admissible as evidence.” (Quoted in: Akbarbhai Kesarbhai Sipai VS Mohanbhai Ambabhai Patel, 2019-3 GLH 523)

PART II

Court can order to prove a document otherwise than ‘on admission’

The principle that ‘when a document is marked without objection its contents stand proved’ is derived from Section 58 of Evidence Act, 1872.

Section 58 reads as under:

“58. Facts admitted, need not be proved -No fact need be proved in any proceeding which the parties thereto or their agents agree to admit at the hearing, or which, before the hearing, they agree to admit by any writing under their hands, or which by any rule of pleading in force at the time they are deemed to have admitted by their pleadings:
Provided that the Court may, in its discretion, require the facts admitted to be proved otherwise than by such admissions”.

The principles in the proviso apply to category of documents that require specific evidence as to proof of its contents (other than the mere statements in the document). [See: Kaliya Vs. State of MP: 2013 10 SCC 758; Rakesh Mohindra Vs. Anita Beri: 2015 AIR-SCW- 6271]

Order XII, Rule 2A Proviso of the CPC authorises the court to order to prove a document otherwise than ‘on admission’. Sec. 294 of the CrPC also confers such authority to court.

In most cases when a document is admitted in evidence and marked as an Exhibit, proof of its contents stand admitted; so also its truth. But, if it is evident that it is admitted for mere identification (e.g. when there is already an issue or pleading as to genuineness of a document) it cannot be taken as proved, even if no objection is raised as to marking by the opposite side.

This principle applies to category of documents that require specific evidence as to proof of its contents, apart from the mere statements in the document itself.

Court’s Jurisdiction to Require to Prove an Admitted Document

In any case, besides the powers of the court under Sec. 165 of Evidence Act, the scheme of the Procedural Acts (Evidence Act, CPC and CrPC) shows that the court has jurisdiction to require the party concerned to prove that document. We can rely on Sec. 58 of Evidence Act and Order XII, Rule 2A Proviso of the CPC and Sec. 294 of the CrPC to see the scheme of the procedural laws.

Section 294 of Code of Criminal Procedure reads as follows:

“294. No formal proof of certain documents. (1) Where any document is filed before any Court by the prosecution or the accused, the particulars of every such document shall be included in a list and the prosecution or the accused, as the case may be, or the pleader for the prosecution or the accused, if any, shall be called upon to admit or deny the genuineness of each such document.
(2) The list of documents shall be in such form as may be prescribed by the State Government.
(3) Where the genuineness of any document is not disputed, such document may be read in evidence in any inquiry, trial or other proceeding under this Code without proof of the signature of the person to whom it purports to be signed:
Provided that the Court may, in its discretion, require such signature to be proved.”

PART III

Who Should Object FIRST–Court or Opposite Side?

There is divergence of judicial opinion as to saying ‘NO’ by court to marking a document with formal defect, beforehand it is objected by the other side. Eg. Tendering copy of a document without furnishing the ‘foundational evidence’ to admit secondary evidence.

First view

Court is under an obligation to exclude inadmissible materials.
In H. Siddiqui v. A. Ramalingam: AIR 2011 SC 1492, it is held: “Mere admission of a document in evidence does not amount to its proof. … The court has an obligation to decide the question of admissibility of a document in secondary evidence before making endorsement thereon.” (Followed in: U. Sree v. U. Srinivas: AIR 2013 SC 415.)
In Yeshoda v. Shoba Ram: AIR 2007 SC 1721, it is held – “In order to enable a party to produce secondary evidence it is necessary for the party to prove existence and execution of the original document. .. The conditions laid down in the said Section (Section 65) must be fulfilled before secondary evidence can be admitted. Secondary evidence of the contents of a document cannot be admitted without non-production of the original being first accounted for in such a manner as to bring it within one or other of the cases provided for in the Section.

Second view

If no objection for other side, Court cannot refrain from marking a document on its own volition (on the ground of formal defect).
R.V.E. Venkatchalla Gounder v. Arulmighu Viswesaraswamy and V.P.Temple, (2003) 8 SCC 752;
Smt. Dayamathi Bai v. K.M. Shaffi, AIR 2004 SC 4082.
(This view is generally followed in India.)

First view: Court is under an obligation to exclude.

S. 65, Evidence Act enumerates the instances where a party is entitled to furnish secondary evidence. It is a condition precedent to establish the circumstances laid down in S. 65, for letting in secondary evidence of a document. Pointing out the right and duty of the court to prevent rushing of inadmissible and irrelevant evidence, it is held in a good number of decisions that the court is under an obligation to exclude such materials, at the threshold. [See: Yeshoda Vs. Shoba Ram: AIR 2007 SC 1721; U. Sree Vs. U. Srinivas: AIR 2013 SC 415]

In H. Siddiqui Vs. A. Ramalingam: AIR 2011 SC 1492 it is held as under:

“12. The provisions of Section 65 of the 1872 Act provide for permitting the parties to adduce secondary evidence. However, such a course is subject to a large number of limitations. In a case where the original documents are not produced at any time, nor has any factual foundation been laid for giving secondary evidence, it is not permissible for the court to allow a party to adduce secondary evidence. Thus, secondary evidence relating to the contents of a document is inadmissible, until the non-production of the original is accounted for, so as to bring it within one or other of the cases provided for in the section. The secondary evidence must be authenticated by foundational evidence that the alleged copy is in fact a true copy of the original. Mere admission of a document in evidence does not amount to its proof. Therefore, the documentary evidence is required to be proved in accordance with law. The court has an obligation to decide the question of admissibility of a document in secondary evidence before making endorsement thereon. (Vide Roman Catholic Mission v. State of Madras [AIR 1966 SC 1457] , State of Rajasthan v. Khemraj [(2000) 9 SCC 241 : AIR 2000 SC 1759] , LIC v. Ram Pal Singh Bisen [(2010) 4 SCC 491 : (2010) 1 SCC (L&S) 1072 : (2010) 2 SCC (Civ) 191] and M. Chandra v. M. Thangamuthu [(2010) 9 SCC 712 : (2010) 3 SCC (Civ) 907])”.
H. Siddiqui Vs. A. Ramalingam is followed in U. Sree Vs. U. Srinivas: AIR 2013 SC 415

In Pandappa Mahalingappa vs. Shivalingappa Murteppa, AIR 1946 Bombay 193, it is observed as under:

“As held in 10 L.A. 79 and 5 Bom. L.R. 708 the discretion exercised by the trial Court in admitting secondary evidence on the ground that the original is lost should not be interfered with in appeal. But it is urged that the certified copy should not have been exhibited without proof of the execution. From the application (Ex.66) and the roznama it appears that the trial Court exhibited it under S. 90, Evidence Act, on the ground that it was more than 30′ years old. In the lower appellate court the admissibility of the document does not appear to have been challenged. It is urged that as held in 44 Bom. 192 the erroneous omission before the lower Courts to object to the admission of evidence does not make that evidence relevant. The principle of that ruling, however, applies only where the document is per se irrelevant or inadmissible and no objection was taken to its admissibility: 8 Pat. 788. Where evidence is admitted in the trial Court without any objection to its reception, and the evidence is admissible and relevant, then no objection will be allowed to be taken to its reception at any stage of the litigation on the ground of improper proof. But if the evidence is irrelevant or inadmissible, as for instance, owing to want of registration, omission to take objection to its reception does not make it admissible, and the objection may be raised even in appeal for the first time; 28 L.A. 106. As observed by Das J. in A.L.R. 1922 Pat. 122 “the question of relevancy is a question of law and can be raised at any stage, but the question of proof is a question of procedure, and is capable of being waived.“
In this case the secondary evidence of the mortgage-deed was held to be admissible as the original was lost. What is now urged is that the execution should have been proved and this objection was not raised either in the trial Court or in the lower appellate Court. It is however true that no evidence was adduced to prove the execution of the original of Ex.68 as the trial Court was prepared to raise the presumption in favour of the genuineness of the document under S. 90, Evidence Act. Whether such a presumption can be raised or not is a question of law, and it can, therefore, be urged at any stage of the litigation. It is now well settled by the ruling of the Privy Council in 37 Bom. L.R. 805 that the statutory presumption under S. 90, Evidence Act, cannot be made in respect of a document merely on production of its copy under S. 65 of the Act. Their Lordships observed (p. 811) “Section 90 clearly requires the production to the Court of the particular document in regard to which the Court may make the statutory presumption. If the document produced is a copy, admitted under S.65 as secondary evidence, and it is produced from proper custody, and is over 30 years old, then the signatures authenticating the copy may be presumed to be genuine.”

Second view: If no objection (on Mode of Proof), Court has to mark

It is beyond doubt that marking of documents lie in the realm of procedural law. Therefore, a catena of decisions emphasize that it is a matter that falls for the opposite party to waive strict formal proof. That is, the court should not delve to object marking of a secondary evidence, if the opposite party has no objection. [See: Iqbal Basith v. N Subbalakshmi, (2021) 2 SCC 718; RVE Venkatachala Gounder Vs. Arulmigu Viswesaraswami: AIR 2003 SC 4548; Narbada Devi Vs. Birendra Kumar: 2003-8 SCC 745; Dayamati Bai Vs. K.M. Shaffi :AIR 2004 SC 4082; Oriental Insurance Co Vs. Premlata: 2007-8 SCC 575] .

In the light of the Supreme Court decision in K.B. Saha and Sons Private Limited v. Development Consultant Ltd, (2008) 8 SCC 564: AIR 2008 SC (Supp) 850 (that a document required by law to be registered, if not registered, it is not admissible in evidence under Section 49 of the Registration Act; and such unregistered document can be used in evidence only for collateral purpose), it appears that the observation of the Karnataka High Court in Nanda Behera v. Akhsaya Kumar Behera, 2017AIR (CC) 1893, that once the Court, rightly or wrongly, decides to admit the documents in evidence, so far as the parties are concerned, the matter is closed, is not applicable to unregistered (compulsorily registrable) documents.

It is pointed out in Hemendra Rasiklal Ghia v. Subodh Mody, 2009 (2) AIR Bom R 296, 2008-6 MhLJ 886 (FB) that the weight of the aforesaid authorities suggests that the objection to the admissibility of evidence should be raised by the objector and decided by view the Court at the earliest opportunity. (That is it supports the second view – The court cannot object first)

Controversy resolved

1. The court cannot object first. If no objection for other side, Court cannot refrain from marking a document on its own volition (on the ground of formal defect).
- R.V.E. Venkatchalla Gounder v. Arulmighu Viswesaraswamy and V.P.Temple, (2003) 8 SCC 752;
- Smt. Dayamathi Bai v. K.M. Shaffi, AIR 2004 SC 4082.
2. If the deficiency is pertaining to non-registration of a compulsory registrable document (as it falls under the head, inadmissible document) the court can desist the marking of the document.
3. By virtue of the decision, G. M. Shahul Hameed v. Jayanthi R. Hegde, AIR 2024 SC 3339, unless the court has not applied its mind to the insufficiency of stamp, and unless there is a ‘judicial determination‘, the objection thereof can be raised at any time.

Marking without Objection – 30 Years Old Official Document, Falls under Sec. 114(e)

It is held in Iqbal Basith v. N Subbalakshmi, (2021) 2 SCC 718, as regards official/public document, marked without objection, as under:

“The appellants produced photocopies of all other resolutions, government orders and sale deed in favour of their vendor OA Majid Khan by the Municipality. The failure to produce the originals or certified copies of other documents was properly explained as being untraceable after the death of the brother of P.W.1 who looked after property matters. The attempt to procure certified copies from the municipality was also unsuccessful as they were informed that the original files were not traceable. The photocopies were marked as exhibits without objection. The respondents never questioned the genuineness of the same. Despite the aforesaid, and the fact that these documents were more than 30 years old, were produced from the proper custody of the appellants along with an explanation for nonproduction of the originals, they were rejected without any valid reason holding that there could be no presumption that documents executed by a public authority had been issued in proper exercise of statutory powers. This finding in our opinion is clearly perverse in view of Section 114(e) of the Indian Evidence Act 1872, which provides that there shall be a presumption that all official acts have been regularly performed. The onus lies on the person who disputes the same to prove otherwise.”

In Madamaiichi Raniappa VS Muthaluru Bojjappa (Gajendragadkar , J.), AIR1963 SC1633; 1964-2 SCR 673It is held as under:

9. … The document in question being a Certified copy of a public document need not have been proved by calling a witness.”

PART IV

EFFECT OF MARKING DOCUMENTS WITHOUT OBJECTION

Effect of marking a document without formal proof on admission (or without objection) is also a subject of controversy.

Propositions Analysed

First view (a) Proof (Contents and ‘Truth of its Contents’) stands established. It cannot be questioned afterwards. (b) Truth also: See: Rafia Sultan v. Oil And Natural Gas Commission, 1986 ACJ 616; 1985-2 GujLR 1315. (c) Admission of contents – but, does not dispense with proof of truth of its contents.	(a) RVE Venkatachala Gounder v. Arulmigu Viswesaraswami: AIR 2003 SC 4548; (b) Rafia Sultan v. Oil And Natural Gas Commission (I.C. Bhatt, S.B. Majmudar, JJ.), 1985-2 GujLR 1315: No objection about the truth* of contents* … before the trial Court. … It is therefore too late in the day for Miss Shah for the Commission to canvass for the first time before us in appeal. Neeraj Dutta Vs. State (Govt. of N.C.T. of Delhi) reported in [2023] 4 SCC 731: If no objection as to its mode of proof , no such objection could be allowed to be raised at any later stage. (c) Sait Tarajee Khimchand v. Yelamarti Satyam, AIR 1971 SC 1865; Nandkishore Lalbhai Mehta v. New Era Fabrics, AIR 2015 SC 3796.
Second View Even if no objection, it does not dispense with proof (as to, both, existence of the document and its truth). In such a case the document will not be taken as proved. (Note: It may not be legitimate to apply this principle literatim. A close analysis of each case is essential.)	LIC v. Ram Pal Singh Bisen: 2010-4 SCC 491 (Filing of the Inquiry Report or the evidence adduced during the domestic enquiry); H. Siddiqui v. A. Ramalingam, (2011) 4 SCC 240 (Copy of a power of attorney alone was shown to the respondent during cross-examination and he admitted his signature thereon only, and not its contents); Mal Singhvi v. Anand Purohith: 1988 (Supp) SCC 604 (date of birth).
Third view If truth is in issue, mere proof of contents, or marking without objection, is not proof of truth.	See: Narbada Devi Gupta v. Birendra Kumar Jaiswal, 2003-8 SCC 745; Ramji Dayawala Vs. Invest Import: AIR 1981 SC 2085.
Fourth view Admission of contents, and dispenses with proof and truth; but its probative value will be a matter for appreciation by court.	See: State of Bihar v. Radha Krishna Singh, AIR 1983 SC 684 (Admission and probative value – different); Rakesh Mohindra v. Anita Beri: 2015 AIR(SCW) 6271; *Kaliya v. State of MP*: 2013-10 SCC 758; H. Siddiqui v. A. Ramalingam: AIR 2011 SC 1492; Rasiklal Manikchand v. MSS Food Products: 2012-2 SCC 196.
Fifth view Admission of contents, and dispenses with proof and truth; but Court should require (in proper cases) the party producing the document to adduce proper evidence, and to cure formal defects, invoking – • Sec. 165 of Evidence Act • Sec. 58 of Evidence Act • O. XII, r. 2A Proviso, CPC and • Sec. 294 of the CrPC.	See: Harkirat Singh v. Amrinder Singh, (2005) 13 SCC 511; Umesh Challiyil v. K.P. Rajendra, (2008) 11 SCC 740; KK Ramachandran Master v. MV Sreyamakumar, (2010) 7 SCC 428; AIR 2015 SC 3796.

1. Marked Without Objection – its ‘contents’ stand proved, as admission

(a) Proof of execution may be enough: Its ‘Contents’ stand proved: Exhibiting of documents in evidence without objection amounts to ‘admission’ of its contents. Admission is taken in law as an important method of proof. In this premises, proof of execution may be enough; and no separate proof be needed.

Though it is the usual practice followed by all courts, whether the presumption attached to the same bestows ‘truth‘ of the contents of the document is, practically and theoretically, a matter to be deduced after ‘appreciating’ evidence (in each case).

When a document is marked without objection, its ‘contents’ stand proved. See: RVE Venkatachala Gounder v. Arulmigu Viswesaraswami: AIR 2003 SC 4548. See also:

Narbada Devi v. Birendra Kumar: (2003) 8 SCC 745
Dayamati Bai v. K.M. Shaffi: AIR 2004 SC 4082
Oriental Insurance Co. v. Premlata: (2007) 8 SCC 575
Thimmappa Rai v. Ramanna Rai: (2007) 14 SCC 63.

Presumption of Truth is taken ‘on something Proved’, or Presumed

In Izhar Ahmad Khan v. Union of India, AIR 1962 SC 1052, the Supreme Court definitely observed that presumption of truth is taken ‘on something proved or taken for granted’. It reads as under:

“The term ‘presumption’ in its largest and most comprehensive signification, may be defined to mean inference, affirmative or dis-affirmative of the truth or falsehood of a doubtful fact or proposition drawn by a process of probable reasoning from something proved or taken for granted.”

In Izhar Ahmad Khan v. Union of India (supra), the Supreme Court further quoted James Bradley Tayer (American jurist and author of Treatise on Evidence) which reads as under:

“Presumptions are aids to reasoning argumentation, which assume the truth of certain matters for the purpose of some given inquiry. …”.

Under Sec. 114 of the Evidence Act, court can presume the existence of any fact. The Indian Evidence Act does not specifically correlate “truth” or “correctness” with ‘presumption’. But, ‘any fact’ stated in Sec. 114 of the Evidence Act (Court may presume the existence of any fact) includes ‘truth’.

In St. of West Bengal v. Mir Mohammad Omar, AIR 2000 SC 2988, it is held by our Apex Court as under:

“Presumption of fact is an inference as to the existence of one fact from the existence of some other facts, unless the truth of such inference is disproved. Presumption of fact is a rule in law of evidence that a fact otherwise doubtful may be inferred from certain other proved facts. When inferring the existence of a fact from other set of proved facts, the Court exercises a process of reasoning and reach a logical conclusion as the most probable position. The above principle has gained legislative recognition in India when Section 114 is incorporated in the Evidence Act. It empowers the Court to presume the existence of any fact which it thinks likely to have happened. In that process Court shall have regard to the common course of natural events, human conduct etc. in relation to the facts of the case.”

It is held as under in Mobarik Ali Ahmed v. State of Bombay, AIR 1957 SC 857, as under:

“The proof of the genuineness of a document is proof of the authorship of the document and is proof of a fact like that of any other fact. The evidence relating thereto may be direct or circumstantial. It may consist of direct evidence of a person who saw the document being written or the signature being affixed. It may be proof of the handwriting of the contents, or of the signature, by one of the modes provided in Ss. 45 and 47 of the Indian Evidence Act. It may also be proved by internal evidence afforded by the contents of the document. This last mode of proof by the contents may be of considerable value where the disputed document purports to be a link in a chain of correspondence, some links in which are proved to the satisfaction of the Court. In such a situation the person who is the recipient of the document, be it either a letter or a telegram, would be in a reasonably good position both with reference to his prior knowledge of the writing or the signature of the alleged sender limited though it may be, as also his knowledge of the subject-matter of the chain of correspondence, to speak to its authorship.”

Our courts usually draw presumptions as to truth or correctness in documents covered by Sec. 35 Evd. Act and Registered deeds. It is held in Krishnamurthy S. Setlur v. O.V. Narasimha Setty, 2019-9 SCC 488, that revenue record proves possession. it is said as under:

“14. In our considered view, the High Court has not given any cogent reasons for coming to the conclusion that KS was not in possession of the property. His name figured in the revenue record from 1963 to 1981 as the owner in possession. Presumption of truth is attached to revenue record which has not been rebutted.”

It is held in Vimal Chand Ghevarchand Jain v. Ramakant Eknath Jajoo, 2009- 5 SCC 713, that there is also a presumption on registered deed that the “transaction is a genuine one

Effect of marking document without objection is laid down in the following two recent decisions of the Supreme Court. In both these cases, it is seen, the Apex Court has taken the view that the ‘truth’ is also stood proved.

Neeraj Dutta v. State (Govt. of N. C. T. of Delhi)

The Constitution Bench of our Apex Court laid down in Neeraj Dutta v. State (Govt. of N. C. T. of Delhi), AIR 2023 SC 330; 2023 4 SCC 731, as under:

Section 61 deals with proof of contents of documents which is by either primary or by secondary evidence.
When a document is produced as primary evidence, it will have to be proved in the manner laid down in Sections 67 to 73 of the Evidence Act.
Mere production and marking of a document as an exhibit by the court cannot be held to be due proof of its contents. Its execution has to be proved by admissible evidence. On the other hand, when a document is produced and admitted by the opposite party and is marked as an exhibit by the court, … (sic – no objection can be raised at any later stage with regard to proof of its contents).
The contents of the document must be proved either by the production of the original document i.e., primary evidence or by copies of the same as per Section 65 as secondary evidence.
So long as an original document is in existence and is available, its contents must be proved by primary evidence.
It is only when the primary evidence is lost, in the interest of justice, the secondary evidence must be allowed.
Primary evidence is the best evidence and it affords the greatest certainty of the fact in question.
Thus, when a particular fact is to be established by production of documentary evidence, there is no scope for leading oral evidence.
What is to be produced is the primary evidence i.e., document itself. It is only when the absence of the primary source has been satisfactorily explained that secondary evidence is permissible to prove the contents of documents.
Secondary evidence, therefore, should not be accepted without a sufficient reason being given for non-production of the original.
Once a document is admitted, the contents of that document are also admitted in evidence, though those contents may not be conclusive evidence.
Moreover, once certain evidence is conclusive it shuts out any other evidence which would detract from the conclusiveness of that evidence.
There is a prohibition for any other evidence to be led which may detract from the conclusiveness of that evidence and the court has no option to hold the existence of the fact otherwise when such evidence is made conclusive.

It is held further as under:

“44. Section 64 of the Evidence Act states that documents must be proved by primary evidence except in certain cases mentioned above. ….. Thus, once a document has been properly admitted, the contents of the documents would stand admitted in evidence, and if no objection has been raised with regard to its mode of proof at the stage of tendering in evidence of such a document, no such objection could be allowed to be raised at any later stage of the case or in appeal vide Amarjit Singh v. State (Delhi Admn.) 1995 Cr LJ 1623 (Del) (“Amarjit Singh”). But the documents can be impeached in any other manner, though the admissibility cannot be challenged subsequently when the document is bound in evidence.”

In PC Thomas v. PM Ismail, AIR 2010 SC 905; 2009-10 SCC 239, it is observed as under:

“No objection on pleas of “inadmissibility” or “mode of proof” was raised at the time of their exhibition or any time later during trial, when most of the witnesses, produced by the parties were confronted with these, as duly exhibited, bearing stamp marking with particulars, prescribed under Order XIII Rule 4 of the Code of Civil Procedure, 1908 and duly signed as such.
In our opinion, it is too late in the day now to object to their exhibition on the ground of “prescribed procedure” i.e. mode of proof.
Moreover, we also find that it was nobody’s case that the said documents were got printed by John K or distributed amongst voters by him. Absence of proof of acknowledgment by him because of non production of John K as a witness, in the circumstances, in our view, is inconsequential.
Admittedly, John K was a well known leader of high stature, recognized as such by Christian/Catholic voters including those mentioned in Para 17 (supra) and, therefore, there is no question of drawing an adverse inference against the election petitioner for not examining him, as strenuously urged on behalf of the appellant, particularly when the printing and circulation of offending material (Exts.P1 and P2) has been proved by the election petitioner beyond reasonable doubt.”

Objection as to Truth of Contents, First Time In Appeal – Effect

In Rafia Sultan v. Oil And Natural Gas Commission (I.C. Bhatt, S.B. Majmudar, JJ.), 1986 ACJ 616; 1986 Guj LH 27; 1985-2 GujLR 1315 it is observed as under:

“It was never the case of the Commission that report which was submitted in a sealed cover was not the genuine and true report of the committee appointed by the Commission itself. Thus in short no objection about the truth of contents of Ex. 24/1 i. e. Ex. 32 was ever put forward before the trial Court and rightly so as that was the report of its own committee of experts appointed by the Commission for enlightening itself about the causes of the accident and about the future safety steps which were required to be taken to avoid such accidents. … Not only that but the witness of the defendant accepted the contents of the said document Ex. 32. Nothing was suggested by him or even whispered to the effect that the contents of the said report were in any way untrue. …. In fact both the sides have relied upon different parts of Ex. 32 in support of their rival contentions on the aspect of negligence and contributory negligence. It is therefore too late in the day for Miss Shah for the Commission to canvass for the first time before us in appeal that contents of Ex. 32 were not proved in accordance with law and hence the document was required to be taken off the record. It is now well settled that objection about mode of proof can be waived by a party and that such objection is raised by the party at the earliest opportunity in the trial Court such objection will be deemed to have been waived and cannot be permitted to be raised for the first time in appeal (vide P. C. Purushottamman v. S. Perumal AIR 1972 SC 608; Pandappa v. Shivlingappa 47 BLR. 962; and Gopaldas and another v. Shri Thakurli, AIR 1943 PC 83 at page 87 ). In view of this settled legal position the objection raised by Miss Shah against admissibility of Ex. 32 viz. that its contents were not proved in accordance with law has to be repelled.”

(b) Proof of execution may not be enough: Exhibiting of documents in evidence, without objection, and proving the same before the court are two different process. In certain cases, as comes out from Sec. 56, 57 and 58 of the Evidence Act, when a document is admitted, separate proof need not be warranted. Separate proof may not be required when presumptions can be invoked (e.g. document in ordinary course of business, a letter obtained in reply).

Contents of documents are presented in two ways:

documents in original
(by way) of secondary evidence.

The party has to lay down the factual foundation to establish the right to give secondary evidence where the original document cannot be produced [Rakesh MohindraVs. Anita Beri: 2015AIR(SCW) 6271].

Secondary-evidence – Marked Without Objection – Objection stands waived. When the party gives in evidence a certified-copy/secondary-evidence without proving the circumstances entitling him to give secondary evidence, the opposite party must raise his objection (if so) at the time of admission of such documents. In case, an objection is not raised at that point of time, it is precluded from being raised at a belated stage. It stands waived. [Iqbal Basith v. N Subbalakshmi, (2021) 2 SCC 718; Kaliya Vs. State of MP: 2013-10 SCC 758]

2. Mere marking– not dispense with proof (of truth of contents)

As this proposition (Mere Marking Does Not Prove the Contents) is not to be applied “literatim”, each case (which referred to this proposition) requires distinct consideration. (Some of these decisions mentioned this proposition, merely to show that such an argument was placed before it; but those decisions were quoted (subsequently) by some Courts as if those earlier decisions laid down a ‘ratio decidendi’.)

Accepted law on this point –

1. MERE MARKING PROVE THE CONTENTS if no objection. E.g. Rent receipt executed by the opposite side; Photocopy of a document.
2. MERE MARKING WILL NOT PROVE THE CONTENTS if Truth of the facts in the document was “in issue“ or validity was very much in question.

Following are the often-cited cases on this subject.

Cited to support the Proposition – MERE MARKING PROVE THE CONTENTS

Decision	Were the documents ‘marked without proper proof‘ accepted in evidence?	Reason for MARKING
Narbada Devi Gupta v. Birendra Kumar Jaiswal, 2003-8 SCC 745	Yes. The rent receipts* were received in evidence. (without formal proof)*	The rent receipts were ‘not disputed’* by the other side.*
Kaliya v. State of Madhya Pradesh, 2013-10 SCC 758	Yes. The secondary evidence* of dying declaration produced in this case was accepted by the Court.*	Secondary evidence was adduced with foundational evidence (for producing copy; not original)

Cited to support the Proposition – MERE MARKING DOES NOT PROVE THE CONTENTS

Decision	Did the proposition – Mere Marking Does Not Prove the Contents – unreservedly apply?	Reason for NOT MARKING
Ramji Dayawala v. Invest Import: AIR 1981 SC 2085	No. Truth of contents of a letter and two telegrams were not taken. (though marked)	Truth of the facts in the document was “in issue“
M. Chandra v. M. Thangamuthu, 2010-9 SCC 712	No. Validity and Genuineness of the Photocopy (of the Caste Certificate) was not* accepted (though marked)*	Validity and Genuineness of the Caste Certificate was very much in question
H. Siddiqui v. A. Ramalingam, (2011) 4 SCC 240	No. *Contents* of the *Photocopy* was not received* as proof (though marked)*	*Photocopy* was shown to the witness during cross-examination alone, and Signature alone was admitted by the witness.
Tarajee Khimchand v. Yelamarti Satyam, AIR 1971 SC 1865	No. Accounts of the Plaintiff was not received as proof (though marked)	The accounts of the Plaintiff would not be proved by itself

In Sait Tarajee Khimchand v. Yelamarti Satyam, AIR 1971 SC 1865, the Supreme Court observed that mere marking of documents (day book and ledger) as exhibits do not dispense with the proof of documents. In Nandkishore Lalbhai Mehta Vs. New Era Fabrics, AIR 2015 SC 3796, it is observed that mere marking as exhibit and identification of executor’s signature by one of witnesses do not prove contents of a document.

In Kaliya Vs. State of Madhya Pradesh (2013-10 SCC 758) it is held as under:

“Mere admission of a document in evidence does not amount to its proof. Nor, mere marking of exhibit on a document does not dispense with its proof, which is otherwise required to be done in accordance with law. (Vide: The Roman Catholic Mission Vs. The State, AIR 1966 SC 1457; Marwari Khumhar Vs. Bhagwanpuri Guru Ganeshpuri AIR 2000 SC 2629; RVE Venkatachala Gounder Vs. Arulmigu AIR 2003 SC 4548; Smt. Dayamathi Bai Vs. K.M. Shaffi, AIR 2004 SC 4082; and LIC of India Vs. Rampal Singh Bisen,2010-4 SCC 491).”
[Note: Further held: “In case, an objection is not raised at that point of time, it is precluded from being raised at a belated stage.”]

The Orissa High Court, in Dibakar Behera v. Padmabati Behera, AIR 2008 Ori 92, it is observed [referring RVE Venkatachala Gounder Vs. Arulmigu Viswesaraswami, AIR 2003 SC 4548, Dayamati Bai Vs. K.M. Shaffi, 2004 SC 4082, Bhagyarathi Das v. Agadhu Charan Das, 62 (1986) CLT 298, Budhi Mahal v. Gangadhar Das, 46 (1978) CLT 287 etc.] as under:

“7. A close reading of the above noted judicial pronouncements would show that whenever a document is marked as exhibit without objection, it will be presumed that a party having right of objection has waived formal proof of the document and in such situation, the entire contents of the document would be admissible in evidence. However, by such admission of document, the truth and correctness of the contents by itself would not be established and there must be some evidence to support the contents of such document.”

Secondary evidence relating to the contents of a document is inadmissible, until the non-production of the original is accounted for. The secondary evidence must be authenticated by foundational evidence that the alleged copy is in fact a true copy of the original. Mere admission of a document in evidence does not amount to its proof. Therefore, the documentary evidence is required to be proved in accordance with law.

The court has an obligation to decide the question of admissibility of a document in secondary evidence before making endorsement thereon. [H. Siddiqui Vs. A. Ramalingam: AIR 2011 SC 1492; Nandkishore Lalbhai Mehta Vs. New Era Fabrics: AIR 2015 SC 3796]

In Rakesh Mohindra Vs. Anita Beri [2015AIR(SCW) 6271] it is held:

“Mere admission of secondary evidence, does not amount to its proof. The genuineness, correctness and existence of the document shall have to be established during the trial and the trial court shall record the reasons before relying on those secondary evidences.”

3. IF ‘TRUTH’ IS IN ISSUE- Mere Marking Not Amounts to ‘Waiver’

IF the TRUTH is IN ISSUE mere proof of handwriting or execution not evidence of truth: IF the TRUTH of the facts stated in a document is IN ISSUE mere proof of the hand-writing and execution of the document would not furnish evidence of the truth of the facts or contents of the document.

In Ramji Dayawala Vs. Invest Import: AIR 1981 SC 2085, it us held as under:

“If the truth of the facts stated in a document is in issue mere proof of the handwriting and execution of the document would not furnish evidence of the truth of the facts or contents of the document. The truth or otherwise of the facts or contents so stated would have to be proved by admissible evidence, i.e. by the evidence of those persons who can vouchsafe for the truth of the facts in issue.”

If ‘truth’ is in issue, or in dispute, marking without objection by itself does not absolve the duty to prove the truth as to the contents of the documents. (See: Achuthan Pillai vs Marikar (Motors) Ltd., AIR 1983 Ker 81, 1976 Cr.LJ 1507; 2016 (1) Gau. LJ 88, 2012(1) CTC 53; 2013-1 KLT 293.)

The ‘dispute’ as to ‘truth’ of contents of a document can be brought-in in the examination of the witness through whom it is exhibited.

4. Admission of contents – may dispense with proof; but probative value may be less or nil

Admissibility & probative value – two matters. State of Bihar Vs. Radha Krishna Singh (AIR 1983 SC 684) it is observed:

“Admissibility of a document is one thing and its probative value quite another—these two aspects cannot be combined. A document may be admissible and yet may not carry any conviction and weight or its probative value may be nil.”

Probative Value: The word meaning of ‘probative’ is – substantiating, serving to prove, affording evidence, having the quality of proving something etc.; and, the meaning of ‘probative value’ is –

Evidence which is sufficiently useful to prove something in a trial.
Value or weight of evidence, considered by the court, to prove something.
Extent of evidentiary value that can be taken to prove a proffered proposition.

E.g. – previous criminal conduct of an accused, photocopy of a deed certified copy of which is provided in law, ‘objectionable document’ marked without objection etc.

Whenever a document is admitted in court, the probative value thereof will be a matter for the court to determine.

State of Bihar v. Radha Krishna Singh, AIR 1983 SC 684, it is observed:

“Admissibility of a document is one thing and its probative value quite another—these two aspects cannot be combined. A document may be admissible and yet may not carry any conviction and weight or its probative value may be nil.”

Court examines probative value of secondary evidence: It is well settled that if a party wishes to lead secondary evidence, the Court is obliged to examine the probative value of the document produced in the Court or their contents and decide the question of admissibility of a document in secondary evidence [Rakesh Mohindra Vs. Anita Beri: 2015 AIR(SCW) 6271].

Mere Filing and Mere Marking documents

Contents of the document cannot be proved by mere filing the document in a court. Under the Law of Evidence, it is necessary that contents of documents are required to be proved either by primary or by secondary evidence. Mere marking a document as an ‘exhibit’ will not absolve the duty of to prove the documents in accordance with the provisions of the Evidence Act. At the most, marking ‘exhibit’may amount to proof of contents, but not its truth.

In Subhash Maruti Avasare v. State Of Maharashtra, 2006-10 SCC 631, SB Sinha, J., held as under:

“By mere filing of a document, its contents are not proved. A certificate issued by an expert should be brought on record by examining him.”

Documents which are not produced and marked as required under the Evidence Act cannot be relied upon by the Court. [See: LIC Vs. Ram Pal Singh Bisen: 2010-4 SCC 491: Filing of the Inquiry Report or the evidence adduced during the domestic enquiry; M. Chandra Vs. M. Thangamuthu (2010) 9 SCC 712 : Nandkishore Lalbhai Mehta Vs.New Era Fabrics: AIR 2015 SC 3796; Birad Mal SinghviVs. Anand Purohitb: 1988 (Supp) SCC 604: date of birth)]

Even when a document is technically admitted in court, the probative value thereof will always be a matter for the court to determine. That is, it is depended upon the nature of each case. The probative value of Scene-Mahazar, Postmortem Report, photocopy of a Registered Deed etc. without supporting legal evidence may be lesser. In such cases the court can refrain from acting upon such documents until regular evidence is tendered.

In Kaliya Vs. State of MP: 2013-10 SCC 758 (relying on H. Siddiqui Vs. A. Ramalingam: AIR 2011 SC 1492, and Rasiklal Manikchand Vs. MSS Food Products: 2012-2 SCC 196) held as under:

“The court is obliged to examine the probative value of documents produced in court or their contents and decide the question of admissibility of a document in secondary evidence.”
[Note: Further held: “In case, an objection is not raised at that point of time, it is precluded from being raised at a belated stage.”]

In Life Insurance Corporation of India Vs. Ram Pal Singh Bisen [2010-4 SCC 491], it is observed as under:

“26. We are of the firm opinion that mere admission of document in evidence does amount to its proof. In other words, mere marking of exhibit on a document does dispense with its proof, which is required to be done in accordance with law. …..27. It was the duty of the appellants to have proved documents Exh.-A-1 to Exh. A-10 in accordance with law. Filing of the Inquiry Report or the evidence adduced during the domestic enquiry would partake the character of admissible evidence in Court of law. That documentary evidence was also required to be proved by the appellants in accordance with the provisions of the Evidence Act, which they have failed to do.”

The Calcutta High Court quoting Life Insurance Corporation of India Vs. Ram Pal Singh Bisen [2010-4 SCC 491] it is observed in Bajaj Allianz General Insurance Company Vs. Smt. Santa (2019-2 ACC 36) that ‘even if the document had been marked as Exhibit-A without objection, without a formal proof thereof in accordance with the provisions of the Evidence Act, such document lost its credibility and is of no probative value’.

In Kalyan Singh, Vs. Chhoti (AIR 1990 SC 396) it is observed as under:

“A certified copy of a registered sale deed may be produced as secondary evidence in the absence of the original. But in the present case Ex. 3 is not certified copy. It is just an ordinary copy. There is also no evidence regarding content of the original sale deed. Ex.3 cannot therefore, be considered as secondary evidence. The appellate Court has a right and duty to exclude such evidence.”

5. Court should allow concerned party, to adduce proper evidence to prove documents

As stated in detail above, besides the powers of the court under Sec. 165 of Evidence Act, the scheme of the Procedural Acts shows that the court has jurisdiction to require the party concerned to prove that document. (Sec. 58 of Evidence Act and Order XII, Rule 2A Proviso of the CPC and Sec. 294 of the CrPC).

Defect for not producing a proper power of attorney being curable, in Haryana State Coop. Supply and Marketing Federation Ltd. v. Jayam Textiles, 2014 AIR SC 1926 (a case under Section 138 Negotiable instruments Act), the Apex Court gave opportunity to the petitioner to produce the authorization of Board of Directors. It is observed that the in Raj Narian v. Indira Nehru Gandhi, (1972) 3 SCC 850 it was held that the rules of pleadings are intended as aids for a fair trial and for reaching a just decision. This principle is reiterated in ever so many cases. They include:

F.A. Sapa v. Singora, (1991) 3 SCC 375;
H.D. Revanna v. G. Puttaswamy Gowda, (1999) 2 SCC 217;
V.S. Achuthanandan v. P.J. Francis, (1999) 3 SCC 737;
Mahendra Pal v. Ram Dass Malanger, (2000) 1 SCC 261;
Virender Nath Gautam v. Satpal Singh, (2007) 3 SCC 617 (observed that facta probanda (material facts) are to be set out in the pleadings and facta probantia (particulars or evidence) need not be set out in the pleadings);
Sardar Harcharan Singh Brar v. Sukh Darshan Singh, (2004) 11 SCC 196 (held that defective verification or affidavit is curable);
Harkirat Singh v. Amrinder Singh, (2005) 13 SCC 511;
Umesh Challiyil v. K.P. Rajendra, (2008) 11 SCC 740;
KK Ramachandran Master v. MV Sreyamakumar, (2010) 7 SCC 428

No Objection to Marking; If Court sees Deficiency, it should bring notice of it to counsel

In T.C. Lakshamanan v. Vanaja, ILR 2011-3 (Ker) 228; 2011-3 KHC 86; 2011-3 KLT 347, it is pointed out as under:

“There was no case for the respondent that before marking Ext.A1 any objection was raised as to the admissibility of Ext.A1. Since the affidavit was filed in lieu of chief-examination, through which documents were sought to be received in evidence, before starting cross examination the trial court has to record that an affidavit has been filed in lieu of chief examination and that such and such documents have been marked. It is not to be done mechanically. The Court has to apply its mind while marking the documents to ensure that those documents have been properly admitted in evidence. Simply because the counsel appearing for the other side did not raise any objection the Court is not absolved of its duty to see whether the marking of the documents was done correctly and whether any inadmissible document was sought to be admitted in evidence. If the Court finds that any inadmissible document, especially a document which cannot be admitted in evidence as it is unstamped or insufficiently stamped, is sought to be admitted, it should be brought to the notice of the counsel appearing for the parties and an order should be passed with regard to the same. It is not a case where the documents were tentatively marked, subject to objection regarding the admissibility and the ruling as to the admissibility of the same happened to be deferred, as it warranted a detailed argument. The Apex Court in the decision in 2000 (1) SC 1158 (Bipin Shantilal Panchal v. State of Gujarat) has held that such a procedure can be resorted to. Therefore, though document can be admitted tentatively reserving ruling on the admissibility to a later stage, in the case on hand no such objection was raised; on the other hand, it is argued by the learned counsel for the respondent that questions were put to PW1 with regard to the relevancy and other aspects of that document treating that document as having been properly admitted.”

UPSHOT: Inasmuch as (a) mere marking of a document on admission will not (invariably), amount to proof, or evidence of the contents of the document or its truth; (b) the probative value of a document ‘marked without objection’ is low or nil, for want of proper proof; and (c) there is a formal defect to the document for it is a secondary evidence because it is produced without adducing ‘foundational evidence’, it is legitimate to say that before taking an adverse stance as to proof in this count, the court should give an opportunity to the party who relies on the document to cure the deficiency.

In Shail Kumari v. Saraswati Devi, 96 (2002) DLT 131, it is observed as under:

“14. In case a document is marked exhibit without an objection from the party which is affected by that document ordinarily its admissibility cannot be questioned at a later stage of the proceedings in the suit. But in cases where such document is marked exhibit without due application of mind in violation of provisions of a statute requiring a particular mode of proof etc., the opposite party may still show during the hearing of final arguments that the document is inadmissible in evidence and should be excluded from consideration because of statutory bar or non-compliance of statutory requirement about mode of proof or otherwise. For instance a will is required to be proved by examining at least one of the attesting witnesses in accordance with Section 68 of the Evidence Act. A document which is inadmissible for want of registration or proper stamp is inadmissible in evidence, unless use of it is permissible for collateral purposes or extracts of accounts book without production of books of account and proof that they were kept in ordinary course of business. Mere putting of exhibits number on these documents in the absence of their proof in accordance with law does not make them part of the evidence to be read for deciding the suit.”

PART V

INSUFFICIENTLY STAMPED DOCUMENTS

Instruments not duly stamped, inadmissible

Insufficiency of Stamp: Sec. 35 of the Indian Stamp Act reads as under:

“35. Instruments not duly stamped inadmissible in evidence, etc.- No instrument chargeable with duty shall be admitted in evidence for any purpose by any person having by law or consent of parties authority to receive evidence, or shall be acted upon, registered or authenticated by any such person or by any public officer, unless such instrument is duly stamped:
Provided that-(a)any such instrument shall be admitted in evidence on payment of the duty with which the same is chargeable or, in the case of an instrument insufficiently stamped, of the amount required to make up such duty, together with a penalty of five rupees, or, when ten times the amount of the proper duty or deficient portion thereof exceeds five rupees, of a sum equal to ten times such duty or portion; … ….. ….”

Unstamped document cannot be looked at even for any collateral purpose

Privy Council in Ram Rattan v. Parma Nath, AIR 1946 PC 51, held that section 35 of the Stamp Act prohibited the unstamped (or inadequately stamped) document from being looked at even for any collateral purpose, as it enacts that no instrument chargeable with duty shall be admitted in evidence ‘for any purpose’. The unstamped (or inadequately stamped) document becomes admissible on payment of penalty under Stamp Act or on payment of the stamp duty after impounding.

33. Examination and impounding of instruments—(1) Every person having by law or consent of parties, authority to receive evidence, and every person in charge of a public office, except an officer of police, before whom any instrument, chargeable, in his opinion, with duty, is produced or comes in the performance of his functions, shall, if it appears to him that such instrument is not duly stamped, impound the same.
(2) For that purpose every such person shall examine every instrument so chargeable and so produced or coming before him, in order to ascertain whether it is stamped with a stamp of the value and description required by the law in force in⁶² [India] when such instrument was executed or first executed: Provided that—
(a) nothing herein contained shall be deemed to require any Magistrate or Judge of a Criminal Court to examine or impound, if he does not think fit so to do, any instrument coming before him in the course of any proceeding other than a proceeding under Chapter XII or Chapter XXXVI of the Code of Criminal Procedure, 1898 (5 of 1898);
(b) in the case of a Judge of a High Court, the duty of examining and impounding any instrument under this section may be delegated to such officer as the Court appoints in this behalf.
(3) For the purposes of this section, in cases of doubt,—
(a) theState Government may determine what offices shall be deemed to be public offices; and
(b) theState Government may determine who shall be deemed to be persons in charge of public offices.

Insufficiently Stamped Document

Courts in India has been taken the view that the the unstamped or insufficiently stamped document do not fall under the head – ‘Inherently inadmissible document’ in view of Section 36 of the Indian Stamp Act.

Section 36 of the Indian Stamp Act provides as under:

“36. Admission of instrument where not to be questioned – Where an instrument has been admitted in evidence such admission shall not except as provided in Section 61, be called in question at any stage of the same suit or proceeding on the ground that the instrument has not been duly stamped “.
- Note: Sec. 61 of the Indian stamp act reads as under:
- 61. Revision of certain decisions of Courts regarding the sufficiency of stamps— (1) When any Court in the exercise of its civil or revenue jurisdiction of any Criminal Court in any proceeding under Chapter XII or Chapter XXXVI of the Code of Criminal Procedure, 1898 (5 of 1898), makes any order admitting any instrument in evidence as duly stamped or as not requiring a stamp, or upon payment of duty and a penalty under section 35, the Court to which appeals lie from, or references are made by, such first-mentioned Court may, of its own motion or on the application of the Collector, take such order into consideration.
- (2) … (3) …. (4) …..

Decisive point is ‘judicial determination’ and Not Whether Objection is Raised

In G. M. Shahul Hameed v. Jayanthi R. Hegde, AIR 2024 SC 3339 (Dipankar Datta, Pankaj Mithal, JJ.), it was emphatically held that the determinative point (as regards the ‘bar to question the marking of the document’) was not “objection” from the ‘opposite party’, but the decisive point is ‘judicial determination’ (alone), and it is “irrespective of whether objection is raised or not”.

Section 5 of the Indian Evidence Act, 1872 deals with relevancy. It says that ‘evidence may be given of facts in issue and relevant facts‘. The Court can also reject the document as it is inadmissible by exercising power under Order 13 Rule 3 CPC.

In Jainab Bibi Saheb v. Hyderally Saheb, (1920) 38 MLJ 532, it was pointed out that neither an omission by an advocate to object to giving of irrelevant and inadmissible evidence nor the failure of the tribunal to exclude it of its own motion would validate a decree based on material which the Evidence Act declares to be inherently and in substance irrelevant to the issue. It was also held in this decision that the primary rule to prove relevant facts by the evidence of witnesses is to call them before the trial Judge and examine them viva voce in the manner stated in Chapter 10 of the Evidence Act.

“Admitted in Evidence”- admitted after “Judicial Consideration of Objections”

In Syed Yousuf Ali v. Mohd. Yousuf, (2016) 3 ALD 235 (M. Satyanarayana Murthy, J.), it is held –

The words “admitted in evidence” in Section 36 of the Indian Stamp Act mean admitted after “judicial consideration of objections” (applying its mind) relating to its admissibility (following, Athapuram Raghuramaiah v. Dyava Ramaiah, (2012) 6 ALD 505).
Mere marking for convenience of reference itself would not amount to admitting the document by applying judicial mind and it is not a judicial determination as to the admissibility of document in evidence.
The provisions of Stamp Act are fiscal in nature and such provisions have to be construed strictly.
It is the duty of the office to decide or determine judicially about admissibility of the document, irrespective of objection to avoid loss of revenue to the State
In the absence of any judicial determination about admissibility of the document, the same can be questioned at any stage though stamp is affixed marking the document as exhibit.
The Court can reject the document if it is irrelevant or inadmissible, at any stage of the suit, by exercising power under Order 13 Rule 3 CPC.
The objection as to admissibility can be raised by filing a petition to reject the document on the ground that it is inadmissible or by oral objection during pendency of the suit.
Oral objection (as to the admissibility under Order 13 Rue 3 CPC) can be raised by the counsel
Note: it appears that the observation of the court – “no judicial order can be passed on the memo”, is not supportable.

Section 36 of the Stamp Act – Once admitted shall NOT be called in question

Section 36 of the Stamp Act provides as under:

“36. Admission of instrument where not to be questioned – Where an instrument has been admitted in evidence such admission shall not except as provided in Section 61, be called in question at any stage of the same suit or proceeding on the ground that the instrument has not been duly stamped “.

Earlier View:

Order Admitting Document, Not liable to be Reviewed or Reversed in Appeal

The Apex Court held in Javer Chand v. Pukhraj Surana, AIR 1961 SC 1655, as under:

“Where a question as to the admissibility of a document is raised on the ground that it has not been stamped, or has not been properly stamped, it has to be decided then and there when the document is tendered in evidence.
The Court has to judicially determine the matter as soon as the document is tendered in evidence and before it is marked as an exhibit in the case. …
Once a document has been marked as an exhibit in the case and the trial has proceeded all along on the footing that the document was an exhibit in the case and has been used by the parties in examination and cross-examination of their witnesses, S. 36 of the Stamp Act comes into operation. Once a document has been admitted in evidence, as aforesaid, it is not open either to the Trial Court itself or to a Court of Appeal or revision to go behind that order.
Such an order is not one of those judicial orders which are liable to be reviewed or revised by the same Court or a Court of superior jurisdiction.”

Our Apex Court held in Sirikonda Madhava Rao v. N. Hemalatha, 12 April, 2022 (referring Javer Chand v. Pukhraj Surana, (1962-2 SCR 333 and Shyamal Kumar Roy v. Sushil Kumar Agarwal, 2006-11 SCC 331) that after marking a document unopposed, it is not open to the parties, or even the court, to reexamine the order or issue. In this case. a document purporting to be an unregistered and insufficiently-stamped sale deed was marked as an Exhibit. The High Court directed that the aforesaid document should be de-marked and not be treated as an exhibit.It is said by the Supreme Court –

“Once a document has been admitted in evidence, such admission cannot be called in question at any stage of the suit or proceedings on the ground that the instrument has not been duly stamped. Objection as to admissibility of a document on the ground of sufficiency of stamp, has to raised when the document is tendered in evidence. Thereafter, it is not open to the parties, or even the court, to reexamine the order or issue.”

In Lothamasu Sambasiva Rao v. Thadwarthi Balakotiah, AIR 1973 AP 342, and several other decisions it was held that Section 35 was only a bar to the admissibility of an unstamped or insufficiently stamped document; and that when it had been admitted in evidence it could not have been, afterwards, withdrawn. See also:

Pankajakshan Nair v. Shylaja: ILR 2017-1 Ker 951;
Dundappa v. Subhash Bhimagouda Patil: 2017-3 AIR(Kar)(R) 570;
Savithramma R. C. v. Vijaya Bank; AIR 2015 Kar 175;
Jayalakshmamma v. Radhika: 2015 4 KarLJ 545;
K. Amarnath v. Smt. Puttamma: ILR 1999 Kar. 4634
Nanda Behera v. Akhsaya Kumar Behera, 2017AIR (CC) 1893

Should Court Sit Silent and Question Unstamped Document Afterwards

Though Smt. Savithramma R.C v. M/s. Vijaya Bank (supra) clarified the position with great clarity. As shown above, it pointed out-

“6. …. The Court should not depend on objections of the other Counsel before considering whether the document is admissible in evidence or not. Section 33 of the Stamp Act casts a duty on the Court to examine the document to find out whether it is duly stamped or not, irrespective of the fact whether an objection to its marking is raised or not”

Therefore, it is not definite-

whether the court should be unfailingly diligent enough not to mark an unstamped or insufficiently stamped document,or
whether the court should sit silent and mark the document if it is not opposed, or
whether the court should raise its eye-brows after marking it unopposed.

It is yet to be solved after considering all relevant aspects.

Referring Sec. 36 of the (Indian) Stamp Act, Karnataka High Court pointed out in Nanda Behera v. Akhsaya Kumar Behera, 2017AIR (CC) 1893, relying on Javer Chand v. Pukhraj Surana, AIR 1961 SC 1655, and Yellapu Uma Maheswari v. Buddha Jagadheeswara Rao, (2015) 16 SCC 787, as under:

“12. Thus where a question as to the admissibility of a document is raised on the ground that it has not been stamped or has not been properly stamped, it has to be decided then and there when the document is tendered in evidence. Once the Court, rightly or wrongly, decides to admit the document in evidence, so far as the parties are concerned, the matter is closed. Parties to a litigation, where such a controversy is raised, have to be circumspect and the party challenging the admissibility of the document has to be alert to see that the document is not admitted in evidence by the Court. The Court has to judicially determine the matter as soon as the document is tendered in evidence and before it is marked as an exhibit. Once a document has been admitted in evidence, it is not open either to the trial court itself or to a Court of Appeal or revision to go behind that order. Such an order is not one of those judicial orders which are liable to be reviewed or revised by the same Court or a Court of superior jurisdiction. An unregistered document can be relied upon for collateral purpose i.e. severancy of title, nature of possession of various shares but not for the primary purpose i.e. division of joint properties by metes and bounds. An unstamped instrument is not admissible in evidence even for collateral purpose, until the same is impounded. If the petitioner wants to mark the documents for collateral purpose, it is open to him to pay the stamp duty together with penalty and get the document impounded. Thereafter the trial court shall consider the same for collateral purpose subject to proof and relevance.”

Forceful propositions that Existed Earlier – Paradoxical and Incongruent

The following forceful propositions stand paradoxical and incongruent.

Section 33 of the Stamp Act casts a duty on every authority including the Court to examine the document to find out whether it is duly stamped or not, irrespective of the fact whether an objection to its marking is raised or not. There is a duty upon every Judge under Sec. 35 of the Indian Stamp Act not to admit a document that is not duly stamped even if no objection to mark it.
The court should not exclude an insufficiently stamped (or unstamped) deed once marked without objection under Sec. 36 of the Indian Stamp Act.

The Karnataka High Court held in Smt. Savithramma R.C v. M/s. Vijaya Bank, AIR 2015 Kar 175, as under:

“6. From the aforesaid statutory provisions and the decisions, it is clear that a duty is cast upon every judge to examine every document, which is produced or comes before him in the performance of his functions. On such examination, if it appears to the Judge that such instrument is not duly stamped, an obligation is cast upon him to impound the same. This duty is to be performed by the Judge irrespective of the fact whether any objection to its marking is raised or not. Hence, there is a need for diligence on the part of the Court having regard to the statutory obligation under Section 33 of the Karnataka Stamp Act. Section 34 of the Karnataka Stamp Act* mandates that an instrument, which is not duly stamped shall not be admitted in evidence. If any objection is taken to the admissibility of the evidence, it shall be decided then and there. If this document is found to be insufficiently stamped, then in terms of the proviso(a) to Section 34, the Court shall call upon the person, who is tendering the said document to pay duty and ten times penalty and thereafter admit the document in evidence. If duty and penalty is not paid, the document shall not be admitted in evidence.
- *^{Corrosponding to Sec. 35, Indian Stamp Act}
If such an objection is not taken at the time of admitting the said instrument in evidence, and the insufficiently stamped document is admitted in evidence then Section 35** of the Act provides that such admission shall not be called in question at any stage of the same suit or proceedings on the ground that the instrument has not been duly stamped.
- ^{**Corrosponding to Sec. 36, Indian Stamp Act}
It has nothing to do with impounding the document. A duty is cast upon every judge to examine every document that is sought to be marked in evidence. The nomenclature of the document is not decisive. The question of admissibility will have to be decided by reading the document and deciding its nature and classification. Even while recording ex parte evidence or while recording evidence in the absence of the Counsel for the other side, the Court should be vigilant and examine and ascertain the nature of the document proposed to be marked and ensure that it is a document which is admissible. The Court should not depend on objections of the other Counsel before considering whether the document is admissible in evidence or not. Section 33 of the Stamp Act casts a duty on the Court to examine the document to find out whether it is duly stamped or not, irrespective of the fact whether an objection to its marking is raised or not.””

It appears that the latest view of the Supreme Court is that given in Omprakash v. Laxminarayan, (2014) 1 SCC 618.

In Omprakash v. Laxminarayan, (2014) 1 SCC 618, the Apex Court observed as under:

“From a plain reading of the aforesaid provision (S. 35 of the Stamp Act), it is evident that an authority to receive evidence shall not admit any instrument unless it is duly stamped. An instrument not duly stamped shall be admitted in evidence on payment of the duty with which the same is chargeable or in the case of an instrument insufficiently stamped, of the amount required to make up such duty together with penalty. As we have observed earlier, the deed of agreement having been insufficiently stamped, the same was inadmissible in evidence. The court being an authority to receive a document in evidence to give effect thereto, the agreement to sell with possession is an instrument which requires payment of the stamp duty applicable to a deed of conveyance. Duty as required, has not been paid and, hence, the trial court rightly held the same to be inadmissible in evidence.”

The Apex Court upheld the observation of the MP High Court in Writ Petition No. 6464 of 2008, overruling the impugned judgment (Laxminarayan v. Omprakash 2008 (2) MPLJ 416). The MP High Court had observed as under:

“8. A document would be admissible on basis of the recitals made in the document and not on basis of the pleadings raised by the parties. ….
9. It would be trite to say that if in a document certain recitals are made then the Court would decide the admissibility of the document on the strength of such recitals and not otherwise. In a given case, if there is an absolute unregistered sale deed and the parties say that the same is not required to be registered then we don’t think that the Court would be entitled to admit the document because simply the parties say so. The jurisdiction of the Court flows from Sec. 33, 35 and 38 of the Indian Stamp Act and the Court has to decide the question of admissibility. With all humility at our command we overrule the judgment in the matter of Laxminarayan (supra).”

Impounding of Documents – When Produced or when Exhibited

In Yogesh Kumar Sikka v. Monika (2019) the P & H High Court held as under:

“12. Court cannot say that it would impound the document only when the document is tendered in evidence for marking. There may be instances where duty and penalty payable may be very high and the party may not choose to rely upon such insufficiently stamped document in order to avoid stamp duty and penalty. In such circumstances, it would result in loss of revenue to the exchequer. The power of impounding a document is to collect stamp duty and penalty whenever there is an escape of duty. Therefore, when it is brought to the notice of the Court that a document is insufficiently stamped, the Court exercising its power under S. 33 of the Act has to pass an order at the first instance for impounding the document. Though there is a discretion vested in the Court to exercise powers under S. 33 and 34 of the Act, no Court can hold that it would wait till the document is tendered in evidence. In such circumstances, there may be chances of loss of revenue to the exchequer.”

Is ‘Impounding’ totally Independent from ‘Admissibility’

Karnataka High Court (N. Kumar, J.), in Rekha S. Chandru v. Chikka Venkatappa (2015), authoritatively held relying on Javer Chand v. Pukhraj Surana, AIR 1961 SC 1655, that when a document was already marked by the trial Court in evidence, the objection regarding stamp duty cannot be raised at a later stage.

It further observed (obiter) by the Karnataka High Court that the impounding the document was totally different from admissibility; and therefore, an insufficiently stamped document, if admitted by mistake, was liable to be impounded by the Court and the procedure prescribed in the Stamp Act was to be followed in so far as collection of stamp duty and penalty were concerned.

It appears that the above proposition of the Karnataka High Court has to be evaluated on the touchstone of the Apex Court verdict, Javer Chand v. Pukhraj Surana, AIR 1961 SC 1655, which reads as under:

“Once a document has been admitted in evidence, as aforesaid, it is not open either to the Trial Court itself or to a Court of Appeal or revision to go behind that order. Such an order is not one of those judicial orders which are liable to be reviewed or revised by the same Court or a Court of superior jurisdiction.”

Should an opportunity be given to cure defect, by paying deficit Stamp Duty?

In Kalaivani @ Devasena v. J. Ramu, 2010(1) CTC 27, it was held that an opportunity should be given to the party who produces the document with insufficient stamp, to pay the deficit stamp duty and penalty so that the document could be exhibited; and that if penalty is not paid, the document should be impounded. It is held as under:

“24. .. It is well settled that even an unregistered document is admissible in evidence for collateral purpose provided it is adequately stamped under the Stamp act. If the document is both unstamped and unregistered, as the document in question here, it is no doubt true that it cannot be looked into for collateral purpose also. But such a document should not be thrown out at the threshold itself and an opportunity must be extended to the party who wants to mark the document on his side by directing him to pay the deficit stamp duty along with the penalty upto date, then the document could be admitted in evidence for collateral purpose. If the person does not pay the Court, then the document is to be impounded and sent to the Collector for taking action under the law.”

UNREGISTERED DOCUMENTS – Effect of Marking Without Objection

Under section 49 of the Registration Act, if a document required to be registered is not registered, it is not admissible in evidence ; and such unregistered document can only be used as an evidence of collateral purpose.

With respect to Unregistered (Necessarily Registrable) Documents it is held by the Apex Court in K.B. Saha and Sons Private Limited v. Development Consultant Ltd, (2008) 8 SCC 564: AIR 2008 SC (Supp) 850, as under:

“34. From the principles laid down in the various decisions of this Court and the High Courts, as referred to here-in-above, it is evident that :
A document required to be registered is not admissible into evidence under section 49 of the Registration Act.
Such unregistered document can however be used as an evidence of collateral purpose as provided in the Proviso to section 49 of the Registration Act. ….”

In the light of the Supreme Court decision in K.B. Saha and Sons Private Limited , it appears that the observation of the Karnataka High Court in Nanda Behera v. Akhsaya Kumar Behera, 2017AIR (CC) 1893, that once the Court, rightly or wrongly, decides to admit the documents in evidence, so far as the parties are concerned, the matter is closed, is not applicable to unregistered (compulsorily registrable) documents.

However, the Calcutta High Court in Dipak Kumar Singh v. Park Street Properties (P) Limited, AIR 2014 Cal 167, distinguished K.B. Saha & Sons Private Limited, (2008) 8 SCC 564, and other decisions saying that ‘the question of admissibility of a document, which had been admitted in evidence, was not taken up for consideration’ in those decisions. The High Court relied on Javer Chand v. Pukhraj Surana, AIR 1961 SC 1655 (question as to admissibility on the ground that it has not been stamped), which held that once a document had been marked as an exhibit in a case and the trial had proceeded all along on the footing that the document was an exhibit in the case and had been used by the parties in examination and cross-examination of their witnesses, it was not open either to the trial court itself or to a court of appeal or revision to go behind that order.

The other decisions referred to and distinguished in Dipak Kumar Singh v. Park Street Properties (P) Limited are the following: Ram Kumar Das v. Jagdish Chandra Deo, Dhabal Deb: AIR 1952 SC 23, Satish Chand Makhan v. Govardhan Das Byas: (1984) 1 SCC 369, Anthony v. K.C. Ittoop: (2000) 6 SCC 394, Surya Kumar Manji v. Trilochan Nath: AIR 1955 Cal 495, Kunju Kesavan v. M.M. Philip: AIR 1964 SC 164, Prasanta Ghosh v. Pushkar Kumar Ash: 2006 (2) CHN 277.

PART VII

PRESUMPTIONS ON DOCUMENTS arise in the following cases:

Presumption on documents made in the course of business.
Presumption on Regularity of official and judicial acts.
Presumption on Registered Documents.
Presumption on statements of dead person or who is not found etc.
Presumption on 90 years old documents.
Presumption on undue influence
Presumption on Specific documents:
- a. Wound Certificates, Post-Mortem Report etc.
- b. Certificate, prepared on the basis of other documents.
- c. Commission Report in an earlier case
- d. Deposition in an earlier case

PROOF INVOKING PRESUMPTION – Sec. 114, Evid. Act read with Sec. 35.

The evidence/proof of contents of document may be given by proving circumstances for the same or by invoking presumption also. ‘Common course of natural events’, ‘human conduct’ etc. under S. 114, Evd. Act can be used to prove the existence and genuineness/truth of a document.

Sec. 35 of the Evidence Act reads as under:

“35. Relevancy of entry in public record or an electronic record made in performance of duty: An entry in any public or other official book, register or record or an electronic record, stating a fact in issue or relevant fact, and made by a public servant in the discharge of his official duty, or by any other person in performance of a duty specially enjoined by the law of the country in which such book, register, or record or an electronic record is kept, is itself a relevant fact.

Under S. 114, Illustration (e) for Judicial and official acts there is presumption as to ‘regularity’. It is not presumption as to correctness or truth. For such presumption, one can resort to main section, Sec. 114 – that is, ‘common course of natural events’, ‘human conduct’ etc. (and not ‘regularity’ in Illus.–e).

Referring relevant provisions of Himachal Land Revenue Act, 1954 and Sec. 35 of the Indian Evidence Act, 1872, it is held in Partap Singh v. Shiv Ram: AIR 2020 SC 1382, that Record-of-rights (Revenue document) carries the ‘presumption of correctness‘.

Read Blog: Public Documents: Proof and Presumption on Truth

In Inder Singh v. S. Raghbir Singh, AIR 1978 P&H 98, it is observed as under:

“The principle is that an official record, kept by a person, upon whom there is a public duty to make entries in it only after satisfying himself of the truth of those entries, is presumed to be correct. Such a document itself is evidence of the truth of its contents unless and until its falsity can be demonstrated by any of the various methods by which the evidentiary value of any public book, register or document may be attacked.”

In Shiv Ram v. Shiv Charan Singh, AIR 1964 Raj 126, it is observed as under

“Where Sec. 35 properly comes into play, an entry made by a public servant in any public or official book in the discharge of his official duty becomes relevant by itself, and no other proof of such entry is required as a matter of law by our Evidence Act, but this, does not exclude the possibility that such an entry may become admissible otherwise if it is properly proved to have been made by a person ordinarily competent to make it.” (Quoted in Mayadhar Nayak vs Sub-Divisional Officer, Jajpur, AIR 1982 Ori 221).

In The State of Haryana v. Amin Lal (SC), Nov. 19, 2024, it is held as under:

“Revenue records are public documents maintained by government officials in the regular course of duties and carry a presumption of correctness under Section 35 of the Indian Evidence Act, 1872. While it is true that revenue entries do not by themselves confer title, they are admissible as evidence of possession and can support a claim of ownership when corroborated by other evidence.”

As shown above, in Madamaiichi Raniappa VS Muthaluru Bojjappa (Gajendragadkar , J.), AIR1963 SC1633; 1964-2 SCR 673It is held as under:

9. … The document in question being a Certified copy of a public document need not have been proved by calling a witness.”

In Durairaju v. Neela, 1976 CriLJ 1507, Ratnavel Pandian, J., it was held that it was the duty of the court, before making the order for maintenance, to find though in a summary manner, the paternity of the child. It was held that Ex. P. 1, the intimation received by the Municipality from the Government Hospital, and Ex. P. 2 a copy of the birth extract made on the basis of Ex, P. 1, were not sufficient to raise presumption of paternity for, the medical officer who made the entries in Ex. P. 1 had not been examined. The author of the information is not mentioned in Ex. P. 1. PW 2 herself had not stated that she mentioned to the doctor that the child was born to her through the petitioner. In the absence of such evidence, the document could not by itself prove the relevant entries made thereon. It was also observed that to prove a document under Section 35 it must be shown that the document was prepared by a public servant in discharge of his official duty or by any person in performance of a duty specially enjoined by the law.

Public Register is Public Document; A Certificate, Not

In Oriental Insurance Company Ltd. v. Poonam Kesarwani , (2010) ACJ 1992, the Division Bench of Allahabad High Court considered whether the letter/certificate issued by Regional Transport Officer coluld be considered to be a public document as defined in Section 74 of the Indian Evidence Act which required no proof. It is pointed out –

‘A public document is a document that is made for the purpose of public making use of it. When a public officer is under a duty to make some entries in the official book or register, the entries made therein are admissible in evidence to prove the truth of the facts entered in the official book or register. The entries are evidence of the particular facts which was the duty of the officer to record. The law reposes confidence in the public officer entrusted with public duties and the law presumes that public officers will discharge their duties with responsibility. A driving licence is issued under Chapter II of the Act. Section 26 of the Act makes it mandatory for the State Government to maintain a register known as State Register of Driving Licences. The entries with regard to issuance or renewal of driving licence by the licensing authorities which contains particulars of the licence and the licence holder are entered by the Regional Transport Officer/the licensing authority in discharge of their official duty enjoined by law. The State Register of Driving Licences is record of the acts of public officers. The State Register of Driving Licences is a public record. It can be inspected by any person. We are of the considered opinion that the State Register of Driving Licences is a public document as defined by Section 74 of the Evidence Act.
10. Section 76 of the Evidence Act gives the right to obtain a certified copy of a public document which any person has a right to inspect on payment of fee. A certified copy of the entries made in the public record is required to be issued on payment of fee in Form 54 as laid down by rule 150 (2). Form 54 being a certified copy of a public document, namely, the State Register of Driving Licences need not be proved by examining a witness. Once a certified copy of the entries made in the register maintained under Section 26 (1) read with rule 23 is issued in Form 54 it is admissible in evidence under Section 77 of the Evidence Act, and no further proof of Form 54 by oral evidence by examining witnesses is required.
12. The aforesaid information is in the form of a letter written to the investigator appointed by the insurance company. It cannot be deemed to be a certificate or certified copy in Form 54 of the Rules. Deposit of fee would not convert the letter into a certificate under rule 150. Therefore, the aforesaid letter issued by the Regional Transport Officer, Raipur (Chhattisgarh) was required to be proved by the insurance company before the Tribunal by oral evidence by examining witnesses. Insurance company had failed to lead any evidence to prove the aforesaid letter by examining witnesses before the Tribunal. The Tribunal rightly refused to place reliance on the letter dated 20.4.2005.”

Oriental Insurance Company Ltd. v. Poonam Kesarwani , (2010) ACJ 1992 is quoted and followed in New India Assurance Company Ltd. v. Indu Bala, ILR 2016-3 HP 1829 (Tarlok Singh Chauhan, J.).

PROOF INVOKING PRESUMPTION – Registered deed

Truth of the contents of a document, can be established

(i) by oral evidence of one who can vouchsafe the same,
(ii) by invoking circumstantial evidence or ‘presumption’ or
(iii) by express admission by the other side.

Presumptions can be the (specific) presumptions under Sec. 79 to 90A or presumptions (general) under Sec. 114. In presumption, a fact otherwise doubtful may be inferred from certain other proved facts. When inferring the existence of a fact from other set of proved facts, the Court exercises a process of reasoning and reach a logical conclusion as the most probable position (See: St. of West Bengal Vs. Mir Mohammad Omar, AIR 2000 SC 2988).

In Kunhamina Umma v. Special Tahsildar, AIR 1977 Ker 41, the Kerala High Court observed that the facts required to be proved under Section 67 could be proved by any kind of evidence, and there was nothing in the section to indicate that the evidence furnished by the registration certificate by virtue of Sub-section (2) of Section 60 of the Registration Act and by the presumption in Illustration (e) of Section 114 of the Evidence Act, was to be excluded. It is held as under:

“The Privy Council said in Gangamoy Debi v. Troilukhya Nath (1906) 33 Ind App 60 = ILR 33 Cal 537 (PC)–‘The registration is a solemn act, to be performed in the presence of a competent official appointed to act as registrar, whose duty it is to attend the parties during the registration and see that the proper persons are present and are competent to act, and are identified to his satisfaction; and all things done before him in his official capacity and verified by his signature will be presumed to be duly and in order‘.
15. On the strength of this observation of the Privy Council and on a consideration of Section 60 of the Registration Act, the Lahore High Court held in Piara v. Fatnu (AIR 1929 Lah 711) that the certificate endorsed on a registered deed by the registering officer is a relevant piece of evidence for proving its execution. … …..
19. The question has been considered in depth by Justice Raman Nair (as he then was) in Sumathi Amma v. Kunjuleskhmi Amma (1964 Ker LT 945). The learned Judge observed (at pages 946 and 947) : “… It (Section 67 Evidence Act) only says that facts have to be proved, and, unlike Section 68, does not prescribe any particular mode of proof. The facts required to be proved under Section 67 can be proved by any kind of evidence, and there is nothing in the section to indicate that the evidence furnished by the registration certificate by virtue of Sub-section (2) of Section 60 of the Registration Act and by the presumption in Illustration (e) of Section 114 of the Evidence Act, is to be excluded.’
We have no hesitation in endorsing the view of the learned Judge as laying down the correct law on the question if we may say so with respect.”

In Vimal Chand Ghevarchand Jain v. Ramakant Eknath Jajoo, (2009) 5 SCC 713, it is held as under:

“The deed of sale dated 29.6.1978 was a registered one. It, therefore, carries a presumption that the transaction was a genuine one.”

The Apex Court observed in Bhagat Ram v. Suresh, AIR 2004 SC 43 as under:

“The certificate of registration under Section 60 of the Registration Act, 1908 raises a presumption under Section 114 illustration (e) of the Evidence Act that he had regularly performed his duty and therefore the facts spelled out by the endorsements made under Sections 58 and 59 of the Registration Act may be presumed to be correct without formal proof thereof. The duties discharged by the registering officer do not include attestation or verification of attestation of will as required by the rules enacted by Section 63 of the Succession Act. An endorsement by registering officer is not by itself a proof of the will having been duly executed and attested. ……. …

Registration of a document does not dispense with the need of proving the execution and attestation of a document which is required by law to be proved in the manner as provided in Sec. 68 of the Evidence Act. Under Sec. 58 of the Registration Act the Registrar shall endorse the following particulars on every document admitted to registration:

the date, hour and place of presentation of the document for registration :
the signature and addition of every person admitting the execution of the document, and, if such execution has been admitted by the representative, assign or agent of any person, the signature and addition of such representative, assign or agent;
the signature and addition of every person examined in reference to such document under any or the provisions of this Act, and
any payment of money or delivery of goods made in the presence of the registering officer in reference to the execution of the document, and any admission of receipt of consideration, in whole or in part, made in his presence in reference to such execution.

Such particulars as are referred to in Sections 52 and 58 of the Registration Act are required to be endorsed by Registrar along with his signature and date on document under Sec. 59 and then certified under Section 60. A presumption by reference to Section 114 [Illustration (e)] of the Evidence Act shall arise to the effect that the events contained in the endorsement of registration, were regularly and duly performed and are correctly recorded. … [See: Kunwar Surendra Bahadur Singh v. Thakur Behari Singh, AIR 1989 PC 117].

On account of registration of a document, including a will or codicil, a presumption as to correctness or regularity of attestation cannot be drawn. Where in the facts and circumstances of a given case the Registrar of Deeds satisfies the requirement of an attesting witness, he must be called in the witness box to depose to the attestation. His evidence would be liable to be appreciated and evaluated like the testimony of any other attesting witness.

In Sulender Singh v. Pritam, 2013-3 HLR 1443, it is held by the Himachal Pradesh High Court that there was a presumption of correctness to the endorsement/ certificate issued by the Sub-Registrar at the time or registration of gift deed (Rewat Ram Sharma versus Munshi Ram, Latest HLJ 2002 (HP) 165) and that the onus to rebut the presumption on a registered deed was heavily on the plaintiff.

Registered deed: Presumption – Validly Executed

It is held in Prem Singh v. Birbal, AIR 2006 SC 3608, as under:

“52. It is well-settled law that there is a presumption of a registered document being validly executed. A registered document would, therefore, prima facie, be valid in law. The onus of proof, thus, would be on a person who questions the same.”

In Bellachi v. Pakeeran, AIR 2009 SC 3293, also it is a observed that a registered document carries with it a presumption that it was executed in accordance with law. The Apex Court observed in Jamila Begum v. Shami Mohd., AIR 2019 SC 72: 2018 KHC 7002 as under:

“A registered document carries with it a presumption that it was validly executed. It is for the party challenging the genuineness of the transaction to show that the transaction is not valid in law. In Prem Singh and others v. Birbel and others (2006) 5 SCC 353, it was held as under:
- “27. There is a presumption that a registered document is validly executed. A registered document, therefore, prima facie would be valid in law. The onus of proof, thus, would be on a person who leads evidence to rebut the presumption. In the instant case, Respondent 1 has not been able to rebut the said presumption.” “

The Kerala High Court held in Mariyadas v. Benjamin, ILR 2014-4 Ker 471, as under:

“If a Will has been registered, that is a circumstance which may, having regard to the circumstances, prove its genuineness. But the mere fact that a Will is registered Will it will not by itself be sufficient to dispel all suspicion regarding it where suspicion exists, without submitting the evidence of registration to a close examination. The bald fact of registration is insufficient, when there are other circumstances creating suspicion on the execution of the document.”

Non-Examination of Registrar

No doubt, there is a presumption on registration. Therefore, the best evidence rule requires examination of Registrar when one seeks to rebut or displace the presumption. In Muruga Udayar v. Thirumalai Enterpreses, 2011 3 LW 513, the Madras High Court took it seriously that despite the the party who raised dispute as to the execution of the agreement did not chose to examine the Sub-Registrar for proving his case that he did not appear before the Sub-Registrar and put his signature towards registration.

Certain Facts Which Need Not Be Proved

CHAPTER III of the Indian Evidence Act (Section 56 to 58) lays down ‘Facts Which Need Not Be Proved’. They are the following:

56. Fact judicially noticeable need not be proved. –– No fact of which the Court will take judicial notice need be proved.

57. Facts of which Court must take judicial notice. –– The Court shall take judicial notice of the following facts: ––

(1) All laws in force in the territory of India;
(2) All public Acts passed or hereafter to be passed by Parliament of the United Kingdom, and all local and personal Acts directed by Parliament of the United Kingdom to be judicially noticed;
(3) Articles of War for the Indian Army, Navy or Air Force;
(4) The course of proceeding of Parliament of the United Kingdom, of the Constituent Assembly of India, of Parliament and of the legislatures established under any laws for the time being in force in a Province or in the States;
(5) The accession and the sign manual of the Sovereign for the time being of the United Kingdom of Great Britain and Ireland;
(6) All seals of which English Courts take judicial notice: the seals of all the Courts in India and of all Courts out of India established by the authority of the Central Government or the Crown Representative]; the seals of Courts of Admiralty and Maritime Jurisdiction and of Notaries Public, and all seals which any person is authorized to use by the Constitution or an Act of Parliament of the United Kingdom or an Act or Regulation having the force of law in India;
(7) The accession to office, names, titles, functions, and signatures of the persons filling for the time being any public office in any State, if the fact of their appointment to such office is notified in any Official Gazette;
(8) The existence, title and national flag of every State or Sovereign recognized by the Government of India;
(9) The divisions of time, the geographical divisions of the world, and public festivals, fasts and holidays notified in the Official Gazette;
(10) The territories under the dominion of the Government of India;
(11) The commencement, continuance and termination of hostilities between the Government of India and any other State or body of persons;
(12) The names of the members and officers of the Court, and of their deputies and subordinate offices and assistants, and also of all officers acting in execution of its process, and of all advocates, attorneys, proctors, vakils, pleaders and other persons authorized by law to appear or act before it;
(13) The rule of the road on land or at sea.In all these cases, and also on all matters of public history, literature, science or art, the Court may resort for its aid to appropriate books or documents of reference.
If the Court is called upon by any person to take judicial notice of any fact, it may refuse to do so unless and until such person produces any such book or document as it may consider necessary to enable it to do so.

58. Facts admitted need not be proved. –– No fact need be proved in any proceeding which the parties thereto or their agents agree to admit at the hearing, or which, before the hearing, they agree to admit by any writing under their hands, or which by any rule of pleading in force at the time they are deemed to have admitted by their pleadings: Provided that the Court may, in its discretion, require the facts admitted to be proved otherwise than by such admissions.

Unregd. Partition Deed Admissible to see Severance & No Suit for Partition lie

In Chinnapareddigari Pedda Muthyalareddy v. Chinnappareddigari Venkatareddy, AIR 1969 AP 242, unregistered partition lists were drawn up showing the properties allotted to the respective sharers. The lists were construed as partition deeds and were held by the trial Court to be inadmissible in evidence for proving division by metes and bounds. No oral evidence was held to be admissible under section 91 of the Evidence Act to prove the factum of partition or the nature of possession. In appeal the Andhra Pradesh High Court (FB-Jaganmohan Reddy, C.J.) held that the unregistered partition deed was admissible not for proving terms of the partition or as the source of title, but for the purpose of showing that there was a disruption (division/severance) in status and that no suit for partition would lie on the basis that the properties were still joint family properties. This decision is relied on in Booraswami v. Rajakannu, 1978-1 MLJ 248; and held further, relying on K. Kanna Reddy v. K. Venkata Reddy, AIR 1965 AP 274, that for determining status and the nature of the possession oral evidence was also admissible (for proving the factum of partition).

Pay Duty With Penalty to Admit Unstamped Deed for Collateral Purpose

In Yellapu Uma Maheswari v. Buddha Jagadheeswararao, (2015) 16 SCC 787, the Apex Court held in the suit for declaration of title that an unregistered document can be relied upon for collateral purposes i.e. to prove his possession, payment of sale consideration and nature of possession; but not for primary purpose i.e. sale between the plaintiff and defendant or its terms. It is held as under:

“In a suit for partition, an unregistered document can be relied upon for collateral purpose i.e. severancy of title, nature of possession of various shares but not for the primary purpose i.e. division of joint properties by metes and bounds. An unstamped instrument is not admissible in evidence even for collateral purpose, until the same is impounded. Hence, if the appellant-defendant wants to mark these documents for collateral purpose it is open for them to pay the stamp duty together with penalty and get the document impounded and the trial court is at liberty to mark Exts. B-21 and B-22 for collateral purpose subject to proof and relevance.”

Section 49 of the Registration Act expressly states admissibility of unregistered documents in evidence for collateral purposes. The word ‘collateral’ signifies something beyond or parallel. According to Law Lexicon it means “that which is by the side, and not the direct line; that which is additional to or beyond a thing” (Amit Khanna. Vs Suchi Khanna, 2008-10 ADJ 426; 2009-75 AllLR 34; 2009-1 AWC 929).

The Supreme Court observed in Sri Venkoba Rao Pawar v. Sri S. Chandrashekar, AIR 2008 SCW 4829, that the collateral purpose/transaction must be independent of, or divisible from the transaction which requires registration.

The Apex Court in K.B. Saha and Sons Private Limited, 2008 AIR SCW 4829, has laid down the principle in respect of the collateral purpose.

“34. From the principles laid down in the various decisions of this Court and the High Courts, as referred to here-in-above, it is evident that :-

A document required to be registered is not admissible into evidence under section 49 of the Registration Act.
Such unregistered document can however be used as an evidence of collateral purpose as provided in the Proviso to section 49 of the Registration Act.
A collateral transaction must be independent of, or divisible from, the transaction to effect which the law required registration.
A collateral transaction must be a transaction not itself required to be effected by a registered document, that is, a transaction creating, etc. any right, title or interest in immovable property of the value of one hundred rupees and upwards.
If a document is inadmissible in evidence for want of registration, none of its terms can be admitted in evidence and that to use a document for the purpose of proving an important clause would not be using it as a collateral purpose.

PART VIII

Modes of Proof of Documents

Modes of Proof of Documents (as to, both, ‘formal proof’ and ‘truth of the contents’) include the following:

Admission of the person who wrote or signed the document (Sec. 17, 21, 58, 67, 70).
Evidence of a person in whose presence the document was signed or written – ocular evidence (Sec. 59).
An attesting witness (Sec. 59).
Opinion of a person who is acquainted with the writing of the person who signed or wrote (Sec. 47).
Admission made by the person who signed or wrote the document made in judicial proceedings (Sec. 32, 33).
Evidence of a handwriting expert-opinion evidence/scientific evidence (Sec.45).
Evidence of a person who in routine has been receiving the document; or a document signed by such a person in the ordinary course of his business or official duty, though he may have never seen the author signing the document (Sec. 32, 34, 35 or 114).
Invoking (specific) presumptions under Sec. 79 to 90A.
Presumptions (general) under Sec. 114.
Circumstantial evidence: on probability or inferences (Sec. 114).
Court-comparison (Sec. 73).
Facts judicially noticeable (Sec. 56 and 57).
A fact of common-knowledge. (It does not require proof. See: Union Of India Vs. Virendra Bharti: 2011-2 ACC 886, 2010 ACJ 2353; Rakhal Chakraborty Vs. Sanjib Kumar Roy: 1998-1 GauLR 253, 1997-2 GauLT 705)
Internal evidence afforded by the contents of the document; a link in a chain of correspondence; recipient of the document. (Mobarik Ali Ahmed Vs. State of Bombay, AIR 1957 SC 857)

Modes of Proof of Documents Required By Law To Be Attested.

Section 68 of the Evd. Act provides that the documents required by law to be attested shall not be used in evidence until at least one attesting witness has been examined, if there be (i) an attesting witness alive, (ii) he is subject to the process of court and (iii) he is capable of giving evidence. But, the proviso lays down that if its execution is not specifically denied by the person by whom it purports to have been executed, it shall not be necessary to call an attesting witness in proof of the execution of any document not being a Will if such document is registered in accordance with the provisions of Indian Registration Act, 1908. That is, for the purpose of proving the Will, the examination of the attesting witness is necessary.

Following documents are required by law to be attested by two or more attesting witnesses.

Will: section 63 of the Succession Act.
Mortgage deed: section 59 of the T P Act.
Gift deed: section 123 of the T P Act.
Bond: 2(5) of the Indian Stamp Act, 1899.

PART IX

Conclusion

From the above, the legal position discernible can be summarised as under:

(i) Even when a document is technically ‘admitted’ in court, the probative value thereof will always be a matter for the court; and it is depended upon the nature of each case.

(ii) Whenever the court considers:

(a) mere marking of a document on admission will not amount to proof, or
(b) mere marking is not evidence of the contents of the document or its truth; or
(c) the probative value of a document ‘marked without objection’ is low or nil, for want of proper proof; or
(c) there is a formal defect to the document for it is a secondary evidence because it is produced without adducing ‘foundational evidence’;

then,

before taking an adverse stance as to proof (in this count), the court should give an opportunity to the party who relies on the document to cure the deficiency.

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Book No. 2: A Handbook on Constitutional Issues

Book No. 3: Common Law of CLUBS and SOCIETIES in India

Book No. 4: Common Law of TRUSTS in India

General Principles
Dedication and Vesting
Trustees and Management
Breach of Trust
- Breach of Trust and Removal of Trustees
Suits by or against Trusts
- Suits By or Against Trusts and Trustees
- Remedies Under Sec. 92 CPC
Law on Hindu Religious Endowments
- Philosophy of Idol Worship
Temples, Gurudwaras, Churches and Mosques – General
- Legal Personality of Temples, Gurudwaras, Churches and Mosques
Constitutional Principles
Ayodhya and Sabarimala Disputes
- Ayodhya Disputes: M. Siddiq case – Pragmatic Verdict
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General

PROOF OF DOCUMENTS & OBJECTIONS TO ADMISSIBILITY – How & When?

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