Presumption on Registered Documents & Use of Unregistered Documents in Collateral Purpose

Saji Koduvath, Advocate, Kottayam.

‘Presumption’– Meaning, in Law

Presumption is an inference as to the existence of one fact from the existence of some other facts. Meaning of the word ‘presumption’ is explored, with reference to various dictionaries, in State of Maharashtra v. Som Nath Thapa, AIR 1996 SC 1744 and stated as under:

  • “In Black’s Law Dictionary it has been defined to mean “to believe or accept upon probable evidence”. In Shorter Oxford English Dictionary it has been mentioned that in law “presume” means “to take as proved until evidence to the contrary is forthcoming” , Stroud’s Legal Dictionary has quoted in this context a certain judgement according to which “A presumption is a probable consequence drawn from facts (either certain or proved by direct testimony) as to the truth of a fact alleged.” In Law Lexicon by P. Ramanath Aiyer the same quotation finds place at page 1007 of 1987 edition.”
  •  (See also: Ramachandran v. State of Kerala, 2009 Cr.LJ 168.)

In State 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.”

Presumption under Sec. 79 to 90A and 114 of the Indian Evidence Act

Sec. 114 of the Evidence Act allows the Court to presume the existence of any fact which it thinks likely to have happened, regard being had to the common course of natural events, human conduct and public and private business, in their relation to the facts of the particular case. Besides the general provision as to presumption under Sec. 114 of the Evidence Act, presumptions can be invoked by the courts also under the (specific) instances given in Sec. 79 to 90A.

Is there presumption as to “Truth” in ‘Presumption’ under the Indian Evidence Act?

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’. As shown above, it is clear from the Stroud’s Legal Dictionary that presumption is a probable consequence drawn from facts as to the truth of a fact alleged. It is clear that, in presumption, the existence or truth of a fact, otherwise doubtful, is inferred from certain other proved facts. Here, 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).

It is observed in Izhar Ahmad Khan v. Union of India, AIR 1962 SC 1052, that the term ‘presumption’ in its largest and most comprehensive signification, may be defined to bear inference, affirmative or disaffirmative 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. Our courts usually draw presumptions as to truth or correctness in documents covered by Sec. 35 Evd. Act and Registered deeds, as detailed below.

Read Blog: Presumptions on Documents and Truth of its Contents

Presumptions on Documents:

The law expressly allows to take presumption on certain kind of documents, such as:

  1. Presumption on documents made in the course of business.
  2. Presumption on Regularity of official and judicial acts.
  3. Presumption on statements of dead person or who is not found etc.
  4. Presumption on 90 years old documents.
  5. Presumption on undue influence

PROOF OF DOCUMENTS INVOKING PRESUMPTION

Besides direct evidence and 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, Evd. Act can be used to prove the existence and genuineness/truth of a document.

Sec. 35 of the Evidence Act and Presumption under Sec. 114, Evid. Act

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. ‘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 Grasim Industries Ltd. v. Agarwal Steel, 2010-1 SCC 83, it is held as under:

  • “In our opinion, when a person signs a document, there is a presumption, unless there is proof of force or fraud, that he has read the document properly and understood it and only then he has affixed his signatures thereon, otherwise no signature on a document can ever be accepted. In particular, businessmen, being careful people (since their money is involved) would have ordinarily read and understood a document before signing it. Hence the presumption would be even stronger in their case.”

PROOF INVOKING PRESUMPTION – Registered Deed

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.”

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:

  1. the date, hour and place of presentation of the document for registration :
  2. 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;
  3. the signature and addition of every person examined in reference to such document under any or the provisions of this Act, and
  4. 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].

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.” “

In Ishwar Dass Jain v. Sohan Lal, (2000) 1 SCC 434, it is held that a registered document is presumed to be valid unless the presumption thereof is rebutted by strong evidence to the contrary.

Presumption of regularity of official acts would be extended to registration of a document by a sub-registrar as held in Jugraj Singh v. Jaswant Singh, 1970 (2) SCC 386. The sub-registrar would proceed with the registration only on satisfying himself as to the fact that the person who was executing the document was the proper person.

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.”

Read Blog: Is Registered Power of Attorney Necessary for Registration of a Deed? No.

Is there Presumption as to Truth on Registered Will

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.

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. ……. …

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.

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 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.

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).

Collateral Purpose

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. In Yellapu Uma Maheswari v. Buddha Jagadheeswararao, (2015) 16 SCC 787, the Apex Court held that in the suit for declaration of title, 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.

In a claim of adverse possession, it was held in Lachhmi Narain v. Kalyan, AIR 1960 Raj 1, as under:

  • “By virtue of Clause (c), it cannot be received as evidence of the mortgage, or for any other purpose affecting the immovable property; It has been held by their Lordships of the Privy Council in AIR 1919 PC 44, that the unregistered document can be availed of for the purpose of showing the character and nature of the possession if the possession is transferred under the document. This Privy Council case has been invariably followed by all the High Courts in India. A person in possession under an unregistered mortgage deed may be in a position to show apart from the deed the nature of his adverse possession and the quantum of interest which he claims in the property. Section 49 does not in any way militate against the admissibility of such evidence. Section 91 of the Evidence Act also does not exclude such evidence.”

The Apex Court, in K.B. Saha and Sons Private Limited v. M/S Development Consultant Ltd, 2008-8 SCC 564; 2008 AIR SCW 4829, has laid down the principle in respect of the collateral purpose 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.
  •        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.

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