Is Certified Copy of Registered Deed a Public Document? Is it Admissible in Evidence Under S. 65(e) or S. 65(f)?

Jojy George Koduvath

Contents in Nutshell

  • Certified copy of registered (sale/gift) deed is NOT a public document under section 74.
  • Original of a (sale/gift) deed being not a public document, it does not fall under S. 65(e).
  • Original of a (sale/gift) deed is a NOT a document of which a certified copy is permitted by this Act (or by any other law in force in India) to be given in evidence. Hence it does not fall Under S. 65(f) also.
  • A registered (sale/gift) deed being not a document that falls under S. 65(e) and 65(f), any kind of its secondary evidence (including certified copy) can be given in evidence.
  • A registered (sale/gift) deed being not a document that falls under S. 65(e) and 65(f), secondary evidence of it cannot be given in evidence without ‘laying of foundation for acceptance of secondary evidence’ under Section 65(a), 65(b) or 65(c).
  • The courts being required to examine the probative value of admissibility of a secondary evidence, in a proper case (like a collusive suit), the court can take the view that the probative value of (other kinds of) secondary evidence of a deed (certified copy of which is provided) is low or nil.

Public and Private Documents

Sec. 74 of the Evidence Act enumerates the documents that are accepted as public documents. All other documents are identified as private, as laid down in Sec. 75.  

Sec. 74 and 75 read as under:

Sec. 74. Public documents—

  • “The following documents are public documents-
  • Documents forming the acts, or records of the acts—
    • of the sovereign authority,of official bodies and tribunals, and
    • of public officers, legislative, judicial and executive, of any part of India or of the Commonwealth, or of a foreign country; of any part of India or of the Commonwealth, or of a foreign country;”
  • Public records kept in any State of private documents.”

Sec. 75. Private Documents—

  • “All other documents are private.”

Characteristics of Public Documents

It is held by the Madras High Court in Rangaraju v. Kannayal, 2012 SCC Online Mad. 138, as under:

  • “22. It has to be pointed out that a document cannot be said to be a public document within Section 74 of the Indian Evidence Act, unless it is shown to have been prepared by a public servant in discharge of his official duty as per the decision rendered in S.V. Chimanlal’s case reported in AIR 1942 Bombay 161.
  • 23. Whenever there is a duty to record official doings, the record thus kept is admissible. As a general principle, it may be laid down that wherever there is a duty to do so, then there is also a duty to record the things done (Wigmore S 1639).
  • 24. A public document is one made by a public officer for the purpose of the public making use of it and being able to refer it as per the decision made in Sturla v. Ferriccia (1882) 5 App Cas 623 HL at 643 per Lord Blackburn.
  • 25. The rule as to public document is that the publicity must be contemporaneous and publicity means such publicity as would afford an opportunity of correcting anything that is wrong.
  • 26. The test of publicity is that the public are interested in it and entitled to see it so that if there is anything wrong in it, they are entitled to protest.
  • 27. When a public has a right to inspect an official document, it becomes a public document and the certified copy of the same will be given to that person who has applied for it, provided his right of inspection is not taken away by any other provisions of the Indian Evidence Act or by any other law, as opined by this court.
  • 28. As a matter of fact, a certified copy of a public document need not be proved by calling a witness as per the decision of the Honourable Supreme Court reported in AIR 1963 SC 1633 in the case of Madamanchi Ramappa and another v. Muthalur Bojjappa.”

Proof of Public Documents by Certified Copies

76. Certified copies of public documents—

  • Every 1public officer having the custody of a public document, which any person has a right to inspect, shall give that person on demand a copy of it on payment of the legal fees therefor, together with a certificate written at the foot of such copy that it is a true copy of such document or part thereof, as the case may be, and such certificate shall be dated and subscribed by such officer with his name and his official title, and shall be sealed, whenever such officer is authorized by law to make use of a seal; and such copies so certified shall be called certified copies
  • Explanation.—Any officer who, by the ordinary course of official duty, is authorized to deliver such copies, shall be deemed to have the custody of such documents within the meaning of this section.

77. Proof of documents by production of certified copies—

  • Such certified copies may be produced in proof of the contents of the public documents or parts of the public documents of which they purport to be copies.
    • Madamanchi Ramappa  v. Muthalur Bojjappa, AIR 1963 SC 1633, it is held as under:
      • “The document in question being a certified copy of a public document need not have been proved by calling a witness.”

78. Proof of other official documents—

The following public documents may be proved as follows:—

  • 1. Acts, orders or notifications of the Central Government in any of its departments, or of the Crown Representative or of any State Government or any department of any State Government—
    by the records of the departments, certified by the head of those departments respectively, or by any document purporting to be printed by order of any such Government or as the case may be, of the Crown Representative;
  • 2. The proceedings of the Legislatures—
    by the journals of those bodies respectively, or by published Acts or abstracts, or by copies purporting to be printed by order of the Government concerned;
  • 3. Proclamations, orders or regulations issued by Her Majesty or by the Privy Council, or by any department of Her Majesty’s Government—
    by copies or extracts contained in the London Gazette, or purporting to be printed by the Queen’s printer;
  • 4. The acts of the Executive or the proceedings of the Legislature of a foreign country—
    by journals published by their authority, or commonly received in that country as such, or by a copy certified under the seal of the country or sovereign, or by a recognition thereof in some Central Act;
  • 5. The proceedings of a municipal body in a State—
    by a copy of such proceedings, certified by the legal keeper thereof, or by a printed book purporting to be published by the authority of such body;
  • 6. Public documents of any other class in a foreign country—
    by the original, or by a copy certified by the legal keeper thereof, with a certificate under the seal of a Notary Public, or of an Indian Consul or diplomatic agent that the copy is duly certified by the officer having the legal custody of the original, and upon proof of the character of the document according to the law of the foreign country.

Presumption as To Genuineness of Certified Copies

79. Presumption as to genuineness of certified copies.—

  • The Court shall presume to be genuine every document purporting to be a certificate, certified copy, or other document, which is by law declared to be admissible as evidence of any particular fact and which purports to be duly certified by any officer of the Central Government or of a State Government, or by any officer in the State of Jammu and Kashmir who is duly authorized thereto by the Central Government:
  • Provided that such document is substantially in the form and purports to be executed in the manner directed by law in that behalf. The Court shall also presume that any officer by whom any such document purports to be signed or certified held, when he signed it, the official character which he claims in such paper.

Is Certified Copy of a Sale Deed, Public Document that fall u/S. 65(e) or 65(f)

No.

Section 65 Evd. Act states as to the cases in which secondary evidence as to the documents may be given. It says-

  • 65. Cases in which secondary evidence relating to documents may be given—Secondary evidence may be given of the existence, condition, or contents of a document in the following cases:—
  • (a) When the original is shown or appears to be in the possession or power— of the person against whom the document is sought to be proved, or of any person out of reach of, or not subject to, the process of the Court, or of any person legally bound to produce it, and when, after the notice mentioned in section 66, such person does not produce it;
  • (b) when the existence, condition or contents of the original have been proved to be admitted in writing by the person against whom it is proved or by his representative in interest;
  • (c) when the original has been destroyed or lost, or when the party offering evidence of its contents cannot, for any other reason not arising from his own default or neglect, produce it in reasonable time;
  • (d) when the original is of such a nature as not to be easily movable;
  • (e) when the original is a public document within the meaning of section 74;
  • (f) when the original is a document of which a certified copy is permitted by this Act, or by any other law in force in India to be given in evidence;
  • (g) when the originals consists of numerous accounts or other documents which cannot conveniently be examined in Court, and the fact to be proved is the general result of the whole collection.
  • In cases (a), (c) and (d), any secondary evidence of the contents of the document is admissible.
  • In case (b), the written admission is admissible.
  • In case (e) or (f), a certified copy of the document, but no other kind of secondary evidence, is admissible.
  • In case (g), evidence may be given as to the general result of the documents by any person who has examined them, and who is skilled in the examination of such documents.

“Original is a document of which a Certified Copy is Permitted by this Act …. to be given in evidence” – Meaning

It means the following-

  • Certified copy of a document is permitted (by the Evid. Act, or by any other law in force) to be given in evidence ‘without laying of any foundation for acceptance of secondary evidence’ [as provided in Sec. 65 (a), (b) and (c) ].
    • Note: 1. A sale deed or gift deed continues to be a private document , even if it is registered.
    • 2. The Evid. Act, or by any other law in force does not allow to give such a deed (its original) ‘to be given in evidence’ – without ‘laying of any foundation for acceptance of secondary evidence’.

In Rekha Rana v. Ratnashree Jain, AIR 2006 MP 107, RV Raveendran, J., scholarly considered whether certified copy of a sale deed (which is always a private document), obtained from the sub-registrar’s office is a public document, so that its certified copy can be given in evidence without ‘laying of any foundation for acceptance of secondary evidence’ under Section 65(e) or 65(f).  It was authoritatively pointed out-

  • If the original is a public document, secondary evidence by way of certified copy can be (Sec. 65 says – certified copy alone has to be) given in evidence to prove the contents of the original document without ‘laying of foundation for acceptance of secondary evidence’, under Section 65(e) or 65(f).
  • But, where the original is a private document, secondary evidence (by way of certified copy) can be given in evidence only after ‘laying of any foundation for acceptance of secondary evidence’. Such ‘laying of foundation’ for admitting certified copy must be according to Section 65, clause (a), (b) or (c).

Reveendran, J. held as under:

  • “8. A deed of sale is a conveyance. A deed of conveyance or other document executed by any person is not an act nor record of an act of any sovereign authority or of any official body or tribunal, or of any public officer, legislative, judicial and executive. Nor is it a public record kept in a State of any private documents. A sale deed (or any other deed of conveyance) when presented for registration under the Registration Act, is not retained or kept in any public office of a State after registration, but is returned to the person who presented such document for registration, on completion of the process of registration. An original registered document is not therefore a public record kept in a state of a private document. Consequently, a deed of sale or other registered document will not fall under either of the two classes of documents described in Section 74, as ‘public documents’. Any document which is not a public document is a private document. We therefore have no hesitation in holding that a registered sale deed (or any other registered document) is not a public document but a private document.
  • 9. This position is made abundantly clear in Gopal Das v. Shri Thakurji AIR 1943 Privy Council 83, wherein the Privy Council considering the question whether a registered receipt is a public document observed thus:
  • “It was contended by Sir Thomas Strongman for the respondents that the receipt comes within para 2 of Section 74, Evidence Act, and was a ‘public document’; hence under Section 65(e) no such foundation is required as In cases coming within Clauses (a), (b) and (c) of that section. Their Lordships cannot accept this argument since the original receipt, of 1881 is not ‘a public record of a private document’. The original has to be returned to the party. A similar argument would appear at one time to have had some acceptance in India but it Involves a misconstruction of the Evidence Act and Registration Act and later decisions have abandoned it.” (Emphasis supplied)
  • We may also refer to the following passage from Ratanlal’s Law of Evidence’ (19th Edition page 237):
  • “Public document, (clause (e)] – This clause is intended to protect the originals of public records from the danger to which they would be exposed by constant production in evidence. Secondary evidence is admissible in the case of public documents mentioned in Section 74. What Section 74 provides is that public records kept in any state of private documents are public documents, but private documents of which public records are kept are not in themselves public documents. A registered document, therefore, does not fall under either Clause (e) or (f). The entry in the register book is a public document, but the original is a private document.”
    • The above passage from Rekha Rana v. Ratnashree Jain is quoted in: Deccan Paper Mills Co. Ltd. Vs. Regency Mahavir Properties. 2021-4 SCC 786, AIR 2020 SC 4047.

Raveendran, J. cogently held as to the status of the certified copy of a sale as under:

  • • “A certified copy of a registered document, copied from Book 1 and issued by the Registering Officer, is neither a pubic document, nor a certified copy of a private document, but is a certified copy of a public document.”

Proof of Certified Copies Permitted by S. 77; Correctness Presumed by S. 79

As shown earlier, Sec. 77 of the Evidence Act permits to produce certified copies of public documents in proof of its contents. 

In Kalyan Singh v. Chhoti, AIR 1990  SC 396, our Apex Court did not act upon the ‘just an ordinary copy‘, for, there was “also no evidence regarding content of the original sale deed”. It reads as under:

  • “Section 63 of the Evidence Act mentions five kinds of secondary evidences. Clause (1), (2) and (3) refer to copies of documents; clause (4) refers to counterparts of documents and clause (5) refers to oral accounts of the contents of documents. Correctness of certified copies referred to in clause (1) is presumed under Section 79; but that of other copies must be proved by proper evidence. A certified copy of a registered sale deed may be produced as secondary evidence in the absence of the original. But in the present case Ex. 3 is not certified copy. It is just an ordinary copy. There is also no evidence regarding content of the original sale deed. Ex. 3 cannot, therefore, be considered as secondary evidence. The appellate Court has a right and duty to exclude such evidence.”

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

Certified Copy alone Admitted for Equitable Mortgage, Not Xerox Copy

Relying on Kalyan Singh v. Chhoti, AIR 1990 SC 396, the Madras High Court, in Ananthkrishnan V. K G Rangasamy, 2020-1 Mad LW 355, observed that when a document was a registered one, the xerox copy of the same was not admissible as secondary evidence; and the court found it bad to create an equitable mortgage with xerox copy. The same view is taken by the Kerala High Court in Syndicate Bank v. Modern Tile and Clay Works, 1980 KLT 550. It is followed in Biju Paul Vs. Nedungadi Bank,2012-245 KerLR 291.

But, the AP High Court observed in G Balamani v. Parimi Manga Devi, 2019-4 ALD 401,
2019-3 CIVCC 590, 2019-4 ALT 203, that a valid equitable mortgage could be created by deposit of photostat copies of title deeds.

Best Evidence Rule insists Evidence of High Probative Value

Though various kinds of secondary evidences are provided under Sec. 63, the probative value of one kind (say, a photograph of an original, as stated in Illustration (a) of Sec. 63) will definitely be higher when compared with another (say, oral account). The best evidence rule insists evidence bearing high probative value.

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

Admission of contents: may dispense proof; but probative value may be less or nil

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

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

Court examines probative value of secondary evidence

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

Court is obliged to examine the Probative Value

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

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

Is ‘Registration’,  “Proof” of ‘Execution’?

There is a presumption – registered document is validly executed.

  • Prem Singh v. Birbal, AIR 2006 SC 3608;
  • Abdul Rahim v. Abdul Zabar, AIR 2010 SC 211
  • Jamila Begum v. Shami Mohd., AIR 2019 SC 72;
  • Manik Majumder v. Dipak Kumar Saha, AIR  2023 SC 506.
  • A registered document carries with it a presumption that it was executed in accordance with law – Bellachi v. Pakeeran, AIR 2009 SC 3293.
  • 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 – Bhagat Ram v. Suresh, AIR 2004 SC 43.
  • The certificate endorsed on a registered deed by the registering officer is a relevant piece of evidence for proving its execution – Piara v. Fatnu, AIR 1929 Lah 711.

‘Presumption’ in Law – Is it Truth of a Fact Alleged?

Two views exist-

  • First, Presumption is an inference of a fact. This, by itself (invariably) embraces ‘truth’.
  • Second (and more cogent), under Sec. 114 of the Evidence Act, court may presume the existence of any fact. The inference, in most cases, will be the subsistence of a fact, like existence of a document or its authorship (rather than its truth). In proper cases, a further presumption could be added – so that the ‘truth’ may also be deduced (Eg. regularity of official acts, sale under a registered sale deed).

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.

Section 67, Evid. Act requires – facts to be proved; It includes invocation of ‘Presumption‘

Section 35 in the Registration Act, 1908 reads as under:

  • “35. Procedure on admission and denial of execution respectively—(1) (a) If all the persons executing the document appear personally before the registering officer and are personally known to him, or if he be otherwise satisfied that they are the person they represent themselves to be, and if they all admit the execution of the document, or ….”

In Sumathi Amma v. Kunjuleskhmi Amma (1964 Ker LT 945) it was observed that 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.’

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.”

RV Raveendran, J., took a discordant stand as to Proof Invoking Registration

In Rekha Rana v. Ratnashree Jain, AIR 2006 MP 107, RV Raveendran, J., took a discordant stand as to proof invoking the factum of registration of the document. His Lordship held as under:

  • “But then it will only prove the contents of the original document, and not be proof of execution of the original document. (Vide Section 57(5) of Registration Act read with Section 77 of Evidence Act). This is because registration of a document is proof that someone purporting to be ‘X’ the executant admitted execution, but is not proof that ‘X’ executed the document.”
  • “Such certified copy marked without laying foundation for receiving secondary evidence, though admissible for the purpose of proving the contents of the original document, will not be proof of execution of the original document.”

Conclusion

  • It took a long journey to come to the conclusion as to-
    • (i) whether no other kind of secondary evidence, but a certified copy alone (under clause ‘e’ and ‘f’ of Sec. 65) is acceptable to prove a registered sale/gift deed;
    • (ii) whether proof of execution of a document can be proved by ‘registration and registration certificate’ (invoking presumption)?
  • Now it is concluded-
    • (i) All kinds of secondary evidence (not confined to certified copy) is acceptable to prove a registered sale/gift deed. But, in a proper case, the court can take the view that the probative value of (other kinds of) secondary evidence of a deed (certified copy of which is provided) is low or nil.
    • (ii) ‘Fact of registration and registration certificate’ can be used to prove the execution of a document.

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Book No, 1 – Civil Procedure Code

Power of attorney

Title, ownership and Possession

Principles and Procedure

Land Laws/ Transfer of Property Act

Evidence Act – General

Contract Act

Easement

Stamp Act & Registration

Will

Divorce

Book No. 2: A Handbook on Constitutional Issues

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

Book No. 4: Common Law of TRUSTS in India

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