Modes of Proof of Documents – Admission, Direct Evidence, Expert Evidence, Presumption etc.

Saji Koduvath, Advocate, Kottayam.

Documents produced in court have to pass through two steps. They are:

1. Admission and exhibition (if relevant)
2. 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.”

Proof is of Two Types:

First, Formal Proof, or Proof as to existence of the document. The modes of proof of documents are governed under Sec. 64 to 73A of the Evd. Act.

Second, Substantive Proof or Proof as to truth. Besides the formal proof, in most cases (excepting a few cases where signature, hand-writing etc. alone are considered), the court acts upon a document, only when ‘truth’ of the contents of the document is established.  

• Proof as to truth is to be established-
  • (i) by oral evidence of one who can vouchsafe the same or
  • (ii) by circumstantial evidence or
  • (iii) by invoking ‘presumption’ or
  • (iv) by express admission by the other side.

Modes of Proof of Documents

Documents can be proved (both, ‘formal proof’ and ‘truth of the contents’) in the following ways:

• 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).
• Public documents – Sec. 74 – 77.
• 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. Lands/ houses are known by ‘names’ and not by Sy. Number. 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)

Also Read Blog: Are RTI Documents Admissible in Evidence as a ‘Public Documents’?

Sec. 68 Evidence Act

Proof documents required by law to be attested, when one attesting witness at least is available.

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

Admission Cannot be Proved by the Person who Makes them

According to Sec. 21 of the Evidence Act, an admission cannot be proved by, or on the behalf of, the person who makes them because a person will always naturally make statements that are favourable to him. Sec. 32, 33, 34 etc. of the Evidence Act lays down exceptions to this rule. However, for comparison of hand writings and signatures, ante litem motam documents would have probative force (G. Govindaraj v. Smt. Saroja Ramakrishnan, 2013 (4) MLJ 164).

Ante litem motam documents

The Supreme Court had said in Harihar Prasad Singh v. Must. of Munshi Nath Prasadand, AIR 1956 SC 305, that ante litem motam documents that extend over a considerable period of time, form cogent and strong evidence that the lands were private lands.

Presumption & Circumstantial Evidence

St. of West Bengal Vs. 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 Vs. 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.”

If payment of price is disputed, Some Oral Evidence is needed for ‘proof’.

In Suresh CV v. Tobin, ILR 2013(1) Ker. 30, the Kerala High Court held that if payment of price for sale was disputed, such fact would not be proved by mere production and marking of a registered sale deed which stated or narrated the payment, and that it was necessary to adduce oral evidence to prove such fact. The Court relied on Ramji Dayawala Vs. Invest Import (AIR 1981 SC 2085) which held that 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 and that 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.

Proof must be by persons who can vouchsafe for the truth

Narbada Devi Gupta v. Birendra Kumar Jaiswal (2003-8 SCC 745) held:

• “Reliance is heavily placed on behalf of the appellant on Ramji Dayawala Vs. Invest Import: AIR 1981 SC 2085. The legal position is not in dispute that mere production and marking of a document as exhibit by the court cannot be held to be a due proof of its contents. Its execution has to be proved by admissible evidence, that is, by the “evidence of those persons who can vouchsafe for the truth of the facts in issue”.

Is it necessary to file an application for ‘permission’ to lead secondary evidence

It is observed by the Bombay High Court (2017) in Shri. Karthik Gangadhar Bhat v. Smt. Nirmala Namdeo Wagh (indiankanoon) that the insistence on filing an application for ‘permission’ to lead secondary evidence is ‘simply wrong‘. The court referred to an earlier decision, Indian Overseas Bank v. Triokal Textile Industries, AIR 2007 Bom 24 where it was held that it was always open to the party to lead secondary evidence before the Trial Court recording evidence or hearing the matter ‘without having to file such an application’.

PRESUMPTION under Sec. 114, Evid. Act read with Sec. 35.

Sec. 35 Evd. Act speaks on ‘an entry in any public or other official book, register or record or an electronic record’. Sec. 35 Evd. Act speaks as to presumption.

Besides direct evidence, or admission, the contents of a document can also be proved by circumstantial evidence or by invoking presumption. ‘Common course of natural events’, ‘human conduct’ etc. under S. 114, 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.

Illustration (e) of Sec. 114, Evd. Act, demonstrates that presumption as to ‘regularity’ can be invoked on Judicial and official acts, in proper cases, over and above ‘common course of natural events’, ‘human conduct’ etc. that are brought-forth under the body of S. 114.  ‘Regularity’ in Illustration (e) is not exactly the presumption as to ‘correctness or truth’. For such presumption, we have to resort the main section, Sec. 114 – that is, ‘common course of natural events’, ‘human conduct’, etc..

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

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 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.

Record of rights and the record of Permanent Settlement

Our Apex Court in Sukhdev Singh v. Maharaja Bahadur of Gidhaur, AIR 1951 SC 288, as under:

• “This brief review of evidence is sufficient to show that appellant has not been able by clear and conclusive evidence to rebut the presumption arising from the Record of rights and the record of Permanent Settlement and he has failed to establish his claim”.

In Vallikunnil Janaki Amma v. Sree Amruthamangalam Kshethram Moorthi, Kozhikode, 2014 (1) KHC 57, Kerala High Court Court referring to the decision of the Apex Court in Sukhdev Singh v. Maharaja Bahadur of Gidhaur, AIR 1951 SC 288, held as under:  

• “Even though Ext. A2 is only an extract of the Settlement Register/ Adangal extract which may not by itself prove or confer title to a party in whose name the property stood registered, it can be accepted as evidence of title when there is no contra evidence. Admittedly it is adjacent to Amruthamangalam temple. The temple compound and this suit property which is adjacent to the temple are shown to be of Amruthamangalam Devaswom as per revenue record. In these circumstances, the contention that this property did not and does not belong to the temple/Devaswom cannot be sustained at all.” (Referred to in: Kunhimangalam Devaswam v. State of Kerala, 6 April, 2022, Anil K. Narendran, J.)

Revenue Settlement Registers of Travancore in 1910, Basic Record of Land matters

The Kerala High Court held in Mohandas v. Santhakumari Amma, 2018-3 KLT 606 as under:

• “We notice that, a new survey and settlement was undertaken in the erstwhile Travancore State for the purpose of putting in place a sound Revenue administration. Accordingly, it appears that a complete survey and reassessment of the entire State ’embracing an accurate measurement, demarcation, mapping and valuation of properties of every description and a registration of titles, as the basis of a sound Revenue Administration’ was carried out. On the basis of such a statement a proclamation was issued by the Maharaja of Travancore on 14 th Kumbhom 1061 corresponding to 24th February 1886.”

If Settlement Register says Government Land, Petitioner to Establish Title

In Sahana Industries v. State of Kerala (2021 KHC OnLine 7110), Kerala High Court (Devan Ramachandran, J.) held (October 11, 2021) as under:

• “… If the Settlement Register shows this land to be Government land, then certainly, the petitioner is obliged to establish their title over the property through competent documents”.

Presumption of Correctness Attached to a Registered Deed

In the split-verdict in Majumder v. Dipak Kumar Saha, 2023 SCC OnLine SC 37, BV Nagaratna, J., held as under:

• “18. … The presumption of correctness attached to endorsement made by the Sub-Registrar is in view of the provisions of Sections 58, 59 and 60 of the Registration Act. This presumption can be rebutted only by strong evidence to the contrary.”

BV Nagaratna, J. referred the following decisions-

• Ishwar Dass Jain v. Sohan Lal, (2000) 1 SCC 434 (a registered document is presumed to be valid).
• Chottey Lal v. The Collector of Moradabad,  AIR 1922 PC 279 (presumption of validity of a power of attorney which formed the basis of a registered deed; the sub-registrar being accepted the document for registration, it is prima-facie evidence that the conditions have been satisfied).
• Jugraj Singh v. Jaswant Singh, 1970 (2) SCC 386 (presumption of regularity of official acts of sub-registrar).
• Rattan Singh v. Nirmal Gill, AIR 2021 SC 899 (presumption of validity of a general power of attorney and consequently of the sale deed executed – especially of a 30-year old document).
• Prem Singh v. Birbal , (2006) 5 SCC 353 (when such a presumption arises, the onus would be on a person who challenges such presumption, to successfully rebut it).

Production of PoA Not Essential for Proving Regd. Sale Deed Executed through PoA

In Manik Majumder v. Dipak Kumar Saha, AIR 2023 SC 506, the sale of property under consideration was made on behalf of the seller to the buyer through the power of attorney.  The power of attorney was not produced before the Court. The High Court observed that the sale was not proved as the PoA was not produced. Refuting the observation of the High Court, BV Nagaratna, J., in the split-verdict, held as under:

• “18. … However, a registered deed has to be proved in accordance with Section 67 of the Evidence Act, 1872. Section 67 states that if a document is alleged to be signed or to have been written wholly or in part by any person, the signature or the handwriting of so much of the document as is alleged to be in that person’s handwriting must be proved to be in his handwriting. Section 67 states that proof of signature and the genuineness of document proved by the proof of handwriting is proof of execution. Execution of a document means signing a document by consenting on it by a party. Section 67 does not prescribe any particular mode of proof. Mere registration of a document is not self-sufficient proof of its execution. It is only a prima facie proof of its execution particularly when no other evidence is available. Registration of a document is evidence of its execution by its executor. Certificate by registering officer under Section 60 of the Registration Act, 1908 is relevant for proving its execution. Proof by evidence afforded by the contents of the documents is of considerable value. In the instant case, what is sought to be proved is title by the sale deed and not the power of attorney as it is the sale deed which conveys title and the sale deed has been executed in accordance with the provisions of Registration Act, 1908, and proved in accordance with Section 67 of Evidence Act. It cannot be held that the sale made on behalf of the seller (original owner of the suit land) to the buyer through the power of attorney is vitiated as the power of attorney was not produced before the Court. This is because even in the absence of the production of the power of attorney, the contents of the sale deed and the execution of the power of attorney as well as the sale deed have been established by proving the sale deed in accordance with the law.”

See also Blog: Presumptions on Documents and Truth of its Contents

• Is Registered Power of Attorney Necessary for Registration of a Deed? No.

Courts to admit 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.

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.”

It is noteworthy that 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). 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.

Oral Evidence on contents of Documents – No Use, Unless Secondary Evidence Entitled

Sec. 22, 22A and 144 of the Evidence Act postulate that the oral admissions or assertions as to contents of documents are not relevant, unless and until the party proposing to prove them shows that he is entitled to give secondary evidence of the contents of such document under Sec. 65, or unless the genuineness of a document produced is in question.

Sec. 22 emphasises that oral evidence as to contents of documents , even if adduced, will be of no use, as it will be ‘irrelevant’. By virtue of Sec. 144 of the Evidence Act, the adverse party may object to giving oral evidence as to contents of the same until such document itself is produced, or until facts have been proved which entitle the party who called the witness to give secondary evidence of it.

Sec. 22 and 22A of the Evidence Act reads as under:

• 22. When oral admissions as to contents of documents are relevant: Oral admissions as to the contents of a document are not relevant, unless and until the party proposing to prove them shows that he is entitled to give secondary evidence of the contents of such document under the rules hereinafter contained, or unless the genuineness of a document produced is in question.
• 22A. When oral admissions as to contents of electronic records are relevant: Oral admissions as to the contents of electronic records are not relevant, unless the genuineness of the electronic record produced is in question.

Sec. 144 of the Evidence Act reads as under:

• 144. Evidence as to matters in writing.—Any witness may be asked, whilst under examination, whether any contract, grant or other disposition of property, as to which he is giving evidence, was not contained in a document, and if he says that it was, or if he is about to make any statement as to the contents of any document, which, in the opinion of the Court, ought to be produced, the adverse party may object to such evidence being given until such document is produced, or until facts have been proved which entitle the party who called the witness to give secondary evidence of it.
• Explanation.—A witness may give oral evidence of statements made by other persons about the contents of documents if such statements are in themselves relevant facts.
• Illustration. The question is, whether A assaulted B. C deposes that he heard A say to D—”B wrote a letter accusing me of theft, and I will be revenged on him”. This statement is relevant as showing A’s motive for the assault, and evidence may be given of it, though no other evidence is given about the letter.

Sec. 59 of the Evidence Act lays down that contents of documents (or electronic records) are to be proved by oral evidence.  Sec. 62 defines primary evidence to mean ‘the document itself’ produced for the inspection of the Court. Sec. 64 of the Act requires that that the documents to be proved primarily by ‘primary evidence’, except in cases where secondary evidence is provided under Sec. 65.  

Sections 22, 59, 61, 62 and 64 of the Evidence Act project the ‘rule of best evidence’ and it directs that the contents of the document are to be proved by the original document itself, unless secondary evidence is provided under Sec. 65. (See: Bimla Rohal v. Usha, 2002-2 HLJ 745; 2002-2 Shim LC 341)

Sec. 91 and 92 provides that when terms of a contract, or of a grant, or of any other disposition of property, have been reduced to the form of a document, and in all cases in which any matter is required by law to be reduced to the form of a document, their terms alone are taken to be the sources of what the parties wished to state; and oral evidence to the contrary, are excluded. Both these provisions are based on “best evidence rule”. (Roop Kumar v. Mohan Thadani AIR 2003 SC. 2418: 2003-6  SCC 595; S. Saktivel v. M. Venugopal Pillai 2007-7  SCC 104; Mumbai International Airport v. Golden Chariot Airport, (2012) 10 SCC 422; Tulsi v. Chandrika Prasad, AIR 2006 SC 3359).

The Supreme Court held in Roop Kumar v. Mohan Thedani: AIR 2003 SC 2418, as under:

• “The grounds of exclusion of extrinsic evidence are (i) to admit inferior evidence when law requires superior would amount to nullifying the law, (ii) when parties have deliberately put their agreement into writing, it is conclusively presumed, between themselves and their privies, that they intended the writing to form a full and final statement of their intentions, and one which should be placed beyond the reach of future controversy, bad faith and treacherous memory.”

However, oral evidence can be given on a matter (adoption) which is not required by law to be in writing and it is not barred for the mere reason it was contained in a document (Taburi Sahai v. Jhunjhunwala, AIR 1967 SC 106).

Admission of Contents of Document in Pleadings

In Perumal Chettiar VS Kamakshi Ammal, AIR 1938 Mad 785; ILR 1938 Mad 933, it is held as under:

• “Section 22 of the Indian Evidence Act adopted the stricter view and relegated oral admissions as to the contents of a document to the category of ‘secondary evidence’. The result, in India, is that if by reason of the document being unstamped, no evidence of its contents whether primary or secondary is admissible, evidence of admissions by the defendant is equally inadmissible. The position may be different where admissions are made in the pleadings themselves (cf. Huddleston v, Briscoe (1805) 11 Ves. 583 : 32 E.R. 1215 and Thynne v. Protheroe (1814) 2 M. & S. 553 : 105 E.R. 488 because by reason of Section 58 of the Evidence Act, it may not be necessary to prove admitted facts and the objection under Section 91 will not arise unless the plaintiff is called upon to go into evidence. (Mallappa v. Mat an Naga Chetty (1918)35MLJ555 This was the position in Pramatha Nath Sandal v. Dwarka Nath Dey (1896) I.L.R. 23 Cal. 851; cf. however Chenbasappa v. Lakshman Ramchandra I.L.R.(1893) 18 Bom. 369 where it was suggested that in a suit on an unstamped promissory note, even an admission in the written statement may not avail the plaintiff, as the Court when giving a decree on such admission may be “acting on” the document within the meaning of Section 35 of the Stamp Act; see also Ankur Chunder Roy Chowdhry v. Madhub Chunder Gkose (1873) 21 W.R. 1.”

Specific Presumptions in Evidence Act, as to Electronic Records

• Sec. 81A. Presumption as to Gazettes in electronic forms
• Sec. 85A. Presumption as to electronic agreements
• Sec. 85B. Presumption as to electronic records and electronic signatures
• Sec. 85C.Presumption as to Electronic Signature Certificates
• Sec. 88A. Presumption as to electronic messages

81A. Presumption as to Gazettes in electronic forms

The Court shall presume the genuineness of every electronic record purporting to be the Official Gazette or purporting to be electronic record directed by any law to be kept by any person, if such electronic record is kept substantially in the form required by law and is produced from proper custody

85A Presumption as to electronic agreements

The Court shall presume that every electronic record purporting to be an agreement containing the electronic signature of the parties was so concluded by affixing the electronic signature of the parties.

85B Presumption as to electronic records and electronic signatures

(1) In any proceedings involving a secure electronic record, the Court shall presume unless contrary is proved, that the secure electronic record has not been altered since the specific point of time to which the secure status relates.

(2) In any proceedings, involving secure electronic signature, the Court shall presume unless the contrary is proved that—

(a) the secure electronic signature is affixed by subscriber with the intention of signing or approving the electronic record;

(b) except in the case of a secure electronic record or a secure electronic signature, nothing in this section shall create any presumption, relating to authenticity and integrity of the electronic record or any electronic signature.

85C Presumption as to Electronic Signature Certificates

The Court shall presume, unless contrary is proved, that the information listed in a Electronic Signature Certificate is correct, except for information specified as subscriber information which has not been verified, if the certificate was accepted by the subscriber.

88A. Presumption as to electronic messages

The Court may presume that an electronic message, forwarded by the originator through an electronic mail server to the addressee to whom the message purports to be addressed corresponds with the message as fed into his computer for transmission; but the Court shall not make any presumption as to the person by whom such message was sent.

“Explanation: For the purposes of this section, the expressions “addressee” and “originator” shall have the same meanings respectively assigned to them in clauses (b) and (za) of sub-section (1) of section 2 of the Information Technology Act, 2000.

Admission by itself cannot confer title

In Ram Chandra Sakharam Mahajan Vs. Damodar Trimbak, AIR 2007 SC 2577, our Apex Court made the following forceful propositions:

• In a recovery on title suit, the burden is on the plaintiff to establish title.
• Court is also entitled to consider the rival title set up by the defendants.
• Weakness of defence to establish title, would not enable plaintiff to a decree.

The Supreme Court held in Ram Chandra Sakharam Mahajan Vs. Damodar Trimbak, AIR 2007 SC 2577 as under:

• “The suit is for recovery of possession on the strength of title. Obviously, the burden is on the plaintiff to establish that title. No doubt in appreciating the case of title set up by the plaintiff, the Court is also entitled to consider the rival title set up by the defendants. But the weakness of the defence or the failure of the defendants to establish the title set up by them, would not enable the plaintiff to a decree. There cannot be any demur to these propositions.”
• “14. We find that the trial Court and the appellate Court were not justified in refusing the amendment of the plaint sought for by the plaintiff. No doubt there had been delay in seeking amendment but that delay could have been compensated by awarding costs to the contesting defendants 1 to 9. Therefore, we are satisfied that the amendment sought for by the plaintiff ought to have been allowed. We are inclined to allow the amendment sought for, since it would enable the Court to pin-pointedly consider the real dispute between the parties and would enable it to render a decision more satisfactorily to its conscience. We, therefore, allow the amendment as sought for by the plaintiff at a belated stage. The amendment will be carried out by the plaintiff in the trial Court within three months from this date as per the practice followed in the trial Court. Obviously defendants 1 to 9 would have an opportunity to file an additional written statement to the amended plaint. They will be entitled to file an additional written statement within a period of four months from the date of this judgment.”

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End Notes

1. Proof is of Two Types:

• First, Formal Proof, or Proof as to existence of the document. The modes of proof of documents are governed under Sec. 64 to 73A of the Evd. Act.
• Second, Substantive Proof or Proof as to truth. Besides the formal proof, in most cases (excepting a few cases where signature, hand-writing etc. alone are considered), the court acts upon a document, only when ‘truth’ of the contents of the document is established.  

2.Modes of Proof of Documents

Documents can be proved (both, ‘formal proof’ and ‘truth of the contents’) in the following ways:

• 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).
• Public documents – Sec. 74 – 77.
• 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)

3. Proof as to truth is to be established-

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

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• Admitted Documents – Can the Court Refrain from Marking, for no Formal Proof?
• Production, Admissibility & Proof Of Documents
• Relevancy, Admissibility and Proof of Documents
• Admission of Documents in Evidence on ‘Admission’
• Effect of Marking Documents Without Objection – Do Contents Stand Proved?
• Marking Documents: Should Objection be Raised Strictly When they are Marked; Is it Sufficient to Challenge them during Cross-Examination?
• Oral Evidence on Contents of Document, Irrelevant
• Proof of Documents & Objections To Admissibility – How & When?
• Presumptions on Documents and Truth of Contents
• Presumptions on Registered Documents & Truth of Contents
• Notice to Produce Documents in Civil Cases
• Production of Documents: Order 11, Rule 14 & Rule 12
• Does Registration of a Document give Notice to the Whole World?
• Modes of Proof of Documents
• Secondary Evidence of Documents & Objections to Admissibility – How & When?
• 30 Years Old Documents and Presumption of Truth of Contents, under Sec. 90 Evidence Act
• Unstamped & Unregistered Documents and Collateral Purpose
• Marking Documents Without Objection – Do Contents Proved
• Substantive Documents, and Documents used for Refreshing Memory and Contradicting 
• Visual and Audio Evidence (Including Photographs, Cassettes, Tape-recordings, Films, CCTV Footage, CDs, e-mails, Chips, Hard-discs, Pen-drives)
• Sec. 35 Evidence Act: Presumption of Truth and Probative Value
• Proof on ‘Truth of Contents’ of Documents, in Indian Evidence Act
• Proof of Documents – Admission, Expert Evidence, Presumption etc.

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Book No, 1 – Civil Procedure Code

• Civil Rights and Jurisdiction of Civil Courts
• Res Judicata and Constructive Res Judicata
• Order II, Rule 2 CPC – Not to Vex Defendants Twice
• Pleadings Should be Specific; Why?
• PLEADINGS IN ELECTION MATTERS
• Declaration and Injunction
• Law on Summons to Defendants and Witnesses
• Notice to Produce Documents in Civil Cases
• Production of Documents: Order 11, Rule 14 & Rule 12
• Sec. 91 CPC and Suits Against Wrongful Acts
• Remedies Under Sec. 92 CPC
• Mandatory Injunction – Law and Principles
• INJUNCTION is a ‘Possessory Remedy’ in Indian Law
• Interrogatories: When Court Allows, When Rejects?
• Decree in OI R8 CPC-Suit & Eo-Nomine Parties
• Pecuniary & Subject-Matter Jurisdiction of Civil Courts
• Transfer of Property with Conditions & Contingent Interests
• INJUNCTION is a ‘Possessory Remedy’ in Indian Law
• Doctrine of Substantial Representation in a Suit by or against an Association
• Who are Necessary Parties, Proper Parties and Pro Forma Parties in Suits
• What is Partnership, in Law? How to Sue a Firm?
• ‘Legal Representatives’, Not ‘Legal Heirs’ to be Impleaded on Death of Plaintiff/Defendant
• Powers and Duties of Commissioners to Make Local Investigations, Under CPC
• Is it Mandatory to Set Aside the Commission Report – Where a Second Commissioner is Appointed?
• Can a Commission be Appointed to Find Out the Physical Possession of a Property?

Power of attorney

• No Adjudication If Power of Attorney is Sufficiently Stamped
• Notary Attested Power-of-Attorney Sufficient for Registration
• Permission when a Power of Attorney Holder Files Suit
• If Power of Attorney himself Executes the Document, S. 33 Registration Act will NOT be attracted
• Is Registered Power of Attorney Necessary for Registration of a Deed? No.

Title, ownership and Possession

• Recovery of Possession Based on Title and on Earlier Possession
• Title and Ownership in Indian Law
• Does ‘Abandonment’ Give rise to a Recognised Right in Indian Law?
• POSSESSION is a Substantive Right in Indian Law
• Adverse Possession: An Evolving Concept
• Adverse Possession: Burden to Plead Sabotaged
• When ‘Possession Follows Title’; ‘Title Follows Possession’?
• Ultimate Ownership of All Property Vests in State; It is an Incident of Sovereignty.
• ‘Mutation’ by Revenue Authorities & Survey will not Confer ‘Title’
• Preemption is a Very Weak Right; For, Property Right is a Constitutional & Human Right
• Transfer of Property with Conditions & Contingent Interests
• INJUNCTION is a ‘Possessory Remedy’ in Indian Law
• Kesar Bai v. Genda Lal – Does Something Remain Untold?

Principles and Procedure

• Will – Probate and Letters of Administration
• Best Evidence Rule in Indian Law
• Declaration and Injunction
• Pleadings Should be Specific; Why?
• Does Alternate Remedy Bar Civil Suits and Writ Petitions?
• Void, Voidable, Ab Initio Void, and Sham Transactions
• Can Courts Award Interest on Equitable Grounds?
• Natural Justice – Not an Unruly Horse
• ‘Sound-mind’ and ‘Unsound-Mind’
• Can a Party to Suit Examine Opposite Party, as of Right?
• Forfeiture of Earnest Money and Reasonable Compensation
• Doctrine of ‘Right to be Forgotten’ in Indian Law
• Who has to fix Damages in Tort and Contract?
• Admission, Relevancy and Proof
• Relevancy, Admissibility and Proof of Documents
• Proof and Truth of Documents
• Production, Admissibility & Proof Of Documents
• Modes of Proof – Admission, Expert Evidence, Presumption etc.
• Marking Documents Without Objection – Do Contents Proved
• Substantive Documents, and Documents used for Refreshing Memory and Contradicting 
• Oral Evidence on Contents of Document, Irrelevant

Land Laws/ Transfer of Property Act

• Does ‘Pandaravaka Pattom’ in Kerala Denote Full-Ownership?
• Transfer of Property with Conditions & Contingent Interests
• Vested Remainder and Contingent Remainder
• Vested interest and Contingent Interest
• Ultimate Ownership of All Property Vests in State; It is an Incident of Sovereignty.
• Land Acquired Cannot be Returned – Even if it is Not Used for the Purpose Acquired
• ‘Mutation’ by Revenue Authorities & Survey will not Confer ‘Title’
• FERA, 1973 And Transfer of Immovable Property by a Foreigner
• Relevant provisions of Kerala Land Reforms Act in a Nutshell
• Land Tenures, and History of Land Derivation, in Kerala
• Government is the OWNER of (Leasehold) Plantation Lands in Kerala.
• Law on SUCCESSION CERTIFICATE and LEGAL HEIRSHIP CERTIFICATE

Evidence Act – General

• Evidence in Court – General Principles
• Expert Evidence and Appreciation of Evidence
• How to Contradict a Witness under Sec. 145, Evidence Act
• Rules on Burden of proof and Adverse Inference
• Best Evidence Rule in Indian Law
• Modes of Proof – Admission, Expert Evidence, Presumption etc.
• Significance of Scientific Evidence in Judicial Process
• Polygraphy, Narco Analysis and Brain Mapping Tests
• What is Section 27 Evidence Act – Recovery or Discovery?
• How ‘Discovery’ under Section 27, Evidence Act, Proved?
• Sec. 65B
• Sec. 65B, Evidence Act: Arjun Paditrao Criticised.
• Sec. 65B Evidence Act Simplified
• ‘STATEMENTS’ alone can be proved by ‘CERTIFICATE’ u/s. 65B
• Sec. 65B,  Evidence Act: Certificate for Computer Output
• Certificate is Required Only for ‘Computer Output’; Not for ‘Electronic Records’: Arjun Panditrao Explored.
• How to Prove ‘Whatsap Messages’, ‘Facebook’ and ‘Website’ in Courts?
• Law on Documents
• Admission of Documents in Evidence on ‘Admission’
• Time Limit for Registration of Documents
• Registration of Documents Executed out of India
• Are RTI Documents Admissible in Evidence as a ‘Public Documents’?
• Oral Evidence on Contents of Document, Irrelevant
• Marking Documents Without Objection – Do Contents Stand Proved?
• Proof of Documents & Objections To Admissibility – How & When?
• Notary-Attested Documents: Presumption, Rebuttable
• Presumptions on Registered Documents & Collateral Purpose
• Notice to Produce Documents in Civil Cases
• Production of Documents: Order 11, Rule 14 & Rule 12
• Modes of Proof – Admission, Expert Evidence, Presumption etc.
• Presumptions on Documents and Truth of its Contents
• Proof and Truth of Documents
• Secondary Evidence of Documents & Objections to Admissibility – How & When?
• 30 Years Old Documents and Presumption of Truth of Contents, under Sec. 90 Evidence Act
• Unstamped & Unregistered Documents and Collateral Purpose
• Marking Documents Without Objection – Do Contents Proved
• Production, Admissibility & Proof Of Documents
• Substantive Documents, and Documents used for Refreshing Memory and Contradicting 
• Visual and Audio Evidence (Including Photographs, Cassettes, Tape-recordings, Films, CCTV Footage, CDs, e-mails, Chips, Hard-discs, Pen-drives)
• Relevancy, Admissibility and Proof of Documents
• No Adjudication Needed If Power of Attorney is Sufficiently Stamped
• Can an Unregistered Sale Agreement be Used for Specific Performance
• Impounding of Documents – When Produced; Cannot Wait Till it is Exhibited

Contract Act

• ‘Sound-mind’ and ‘Unsound-Mind’ in Indian Civil Laws
• Forfeiture of Earnest Money and Reasonable Compensation
• Who has to fix Damages in Tort and Contract?
• Can an Unregistered Sale Agreement be Used for Specific Performance

Easement

• What is Easement?
• Does Right of Easement Allow to ‘Enjoy’ After Making a Construction?
• What is “period ending within two years next before the institution of the suit”?
• Is the Basis of Every Easement, Theoretically, a Grant
• Extent of Easement (Width of Way) in Easement of Necessity, Quasi Easement and Implied Grant
• Can an Easement-Way be Altered by the Owner of the Land?
• Village Pathways and Right to Bury are not Easements.
• Custom & Customary Easements in Indian Law
• ‘Additional Burden Loses Lateral Support’ – Incorrect Proposition

Stamp Act

• LAW ON INSUFFICIENTLY STAMPED DOCUMENTS 
• Adjudication as to Proper Stamp under Stamp Act
• Unstamped & Unregistered Documents and Collateral Purpose
• Impounding of Documents, When Produced; Cannot Wait Till it is Exhibited

Will

• Interpretation of Inconsistent Clauses in a Will
• Will – Probate and Letters of Administration
• Executors of Will – Duties & their Removal

Divorce

• Validity of Foreign Divorce Decrees in India
• Is ‘Irretrievable Brake-down of Marriage’, a Valid Ground for Divorce in India?
• Foreign Divorce Judgment against Christians having Indian Domicile

Book No. 2: A Handbook on Constitutional Issues

• Judicial & Legislative Activism in India: Principles and Instances
• Can Legislature Overpower Court Decisions by an Enactment?
• Separation of Powers: Who Wins the Race – Legislature or Judiciary?
• Kesavananda Bharati Case: Never Ending Controversy
• Mullaperiyar Dam: Disputes and Adjudication of Legal Issues
• Article 370: Is There Little Chance for Supreme Court Interference
• Maratha Backward Community Reservation: SC Fixed Limit at 50%.
• Polygraphy, Narco Analysis and Brain Mapping Tests
• CAA Challenge: Divergent Views
• FERA, 1973 And Transfer of Immovable Property by a Foreigner
• Doctrine of ‘Right to be Forgotten’ in Indian Law
• Religious issues
• Secularism and Art. 25 & 26 of the Indian Constitution
• Secularism & Freedom of Religion in Indian Panorama
• ‘Ban on Muslim Women to Enter Mosques, Unconstitutional’
• No Reservation to Muslim and Christian SCs/STs (Dalits) Why?
• Parsi Women – Excommunication for Marrying Outside
• Knanaya Endogamy & Constitution of India
• Sabarimala Review Petitions & Reference to 9-Judge Bench
• SABARIMALA REVIEW and Conflict in Findings between Shirur Mutt Case & Durgah Committee Case
• Ayodhya Disputes: M. Siddiq case –Pragmatic Verdict

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

• General
  • General Features
  • Bye Laws Fundamental
  • Effect of Registration of Societies and Incorporation of Clubs
  • Societies and Branches
• Property & Trust
  • Vesting of Property in Societies and Clubs
  • Incidents of Trust in Clubs and Societies
• Juristic Personality
  • Juristic Personality of Societies and Clubs
  • Legal Personality of Trustees and Office Bearers
• Suits
  • Suits and Criminal Complaints By and Against a Company
  • Suits By or Against Societies, Clubs
  • Court’s Jurisdiction to Interfere in the Internal Affairs
  • How to Sue Societies, Clubs and Companies
• Amendment and Dissolution
  • Amendment of Bye laws of Societies and Clubs
  • Dissolution of Societies and Clubs
• Rights and Management
  • Rights & Liabilities of Members of Clubs and Societies
  • Individual Membership Rights in Societies & Clubs
  • Management – Powers of General Body and Governing Body
  • Expulsion of Members & Removal of Office-Bearers
  • Law on Meetings: An Overview
• Election
  • Election & Challenge in Societies and Clubs
  • Court Interference in Election Process
• State Actions
  • State-Interference in Affairs of Societies & Clubs

Book No. 4: Common Law of TRUSTS in India

• General Principles
  • What is Trust in Law?
  • Classification of Trusts
  • Public & Private Trusts in India.
  • Trust is ‘An Obligation’; Not a Legal Entity
  • Indian Law Does Not Accept Salmond, as to Dual Ownership
• Dedication and Vesting
  • Dedication of Property in Public Trusts
  • Vesting of Property in Trusts
  • Incidents of Trust in Clubs and Societies
• Trustees and Management
  • Trustees and Administration of Public Trusts
  • Alienation of Public Trust Property
  • Extinction, Discharge, Revocation, etc. of Public Trusts
• 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
  • Is an Idol a Perpetual Minor?
  • Hindu Temples & Law of Trusts
  • Public & Private Trusts
  • Law of Mutts and Other Hindu Endowments
  • Shebaits & Mahants and Law of Trustees
• Temples, Gurudwaras, Churches and Mosques – General
  • Legal Personality of Temples, Gurudwaras, Churches and Mosques
• Constitutional Principles
  • Secularism and Art. 25 & 26 of the Indian Constitution
  • Secularism & Freedom of Religion in Indian Panorama
  • ‘Muslim Women: Ban to Enter Mosques, Is it Unconstitutional
  • Parsi Women Excommunication, Unconstitutional.
  • Knanaya Endogamy & Constitution of India
  • State & Court – Protectors of All Charities
• Ayodhya and Sabarimala Disputes
  • Ayodhya Disputes: M. Siddiq case – Pragmatic Verdict
  • Sabarimala Review Petitions & Reference to 9-Judge Bench
  • SABARIMALA REVIEW and Conflict in Findings between Shirur Mutt Case & Durgah Committee Case
• General
  • Public Trusts and (State) Endowments/Trusts Acts
  • Public Trusts and Indian Trusts Act – An Overview
  • Business by Charitable Trusts & Institutions