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

Saji Koduvath, Advocate, Kottayam.

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

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.”

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 of the contents, veracity, reliability, etc.. 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 same 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

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).
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)

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

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.

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.

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, 2023 SCC OnLine SC 37, 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.”

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 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 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.

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).

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.”

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

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