Can a Photocopy of a Sale Deed be Marked, Uncontrolled by Sec. 65, clause (f) of the Evidence Act? 

Is Certified Copy of Sale Deed Essential, Under Sec. 65, clause (f)? Answer – ‘No’.

Taken from: Can the Court Refuse to Mark a (Relevant and Admissible) Document, for (i) there is No Formal Proof or (ii) it is a Photocopy?

Saji Koduvath, Advocate, Kottayam.

Introduction

The doubt (can a photocopy of a sale deed be marked) arises from clauses (e) and (f) of Sec. 65 Evidence Act.

Sec. 65 clauses (e) and (f) read as under:

  • “(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**.”

Sec. 65 further lays down –

  • “In case (e) or (f), a certified copy of the document, but no other kind of secondary evidence, is admissible.”
  • ** “(permitted) to be given in evidence“ propounds – giving copy in evidence without reference to or accounting for “original” (without saying “where the original is”).
  • That is, under Sec. 65 clause (a) to (d), a copy can be given by a party to a proceeding if only any one of the conditions therein (original is with other side, original has been destroyed or lost, etc.) is satisfied; but, Sec. 65 (e) and (f) says that secondary evidence (certified copy) can be given in evidence even if original is with him; (or in other words, he can produce the secondary evidence – certified copy – without saying “where the original is”, i.e., without reference to “original”).

By virtue of the above provisions in Sec. 65, it is often debated that ‘a certified copy’ of the Sale Deed alone, and “no other kind of secondary evidence, is admissible”. It is not well-founded; because,

  • (1) the copy of the deeds in the Books in the Sub Registrar’s Office is not “a public document within the meaning of section 74” – referred to in clauses (e) of Sec. 65,and
  • (2) the copy of the deeds in the Books in the Sub Registrar’s Office is 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” (without reference to “original”) – referred to in clauses (f) of Sec. 65.

No (procedural) law permits production of ‘certified copy’ of a sale deed, in the court, without saying where the original is or it is lost (i.e., without laying the foundational evidence for the non production of the original).

Note: Sec. 57 of the Registration Act reads as under:

  • “57. Registering officers to allow inspection of certain books and indexes, and to give certified copies of entries —
  • (1)… (2) … (3) … (4) …
  • (5) All copies given under this section shall be signed and sealed by the registering officer, and shall be admissible for the purpose of proving the contents of the original documents.”

It is definite – the words, “shall be admissible for the purpose of proving the contents of the original” cannot be read as (or equated to): “certified copy … permitted by this Act, or by any other law in force in India to be given in evidence” (that is, without reference to “original”).

  • Note:
  • The expression (in proof of the contents) in Sec. 77 of the Evidence Act makes the difference clear:
  • “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.”

Therefore, any kind of (admissible) secondary evidence of a sale deed can be given in evidence; and production of certified copy cannot be insisted. (If it falls under clause (e) or (f) of Sec. 65, certified copy alone can be given – as secondary evidence.)

Following decisions considered both Sec. 57 of the Registration Act and Sec. 65 (e) & (f) Evidence Act and found that in the absence of a registered sale deed, a certified copy could be filed as secondary evidence. Though these decisions did not ponder on the point whether a certified copy ‘alone‘ (and “no other kind of secondary evidence“) can be filed, they definitely state that secondary evidence of a sale deed (or similar other deeds) can be given in evidence only when it is shown – the original is lost or not in a position to produce before the court (foundational evidence), as provided in Sec. 65 (a), (b) & (c). [That is, Sec. 65 (f) is not attracted.]

  • Puspa Dey v. Sukanta Dey, 2019-3 CalLT 206
  • Upendra Rao v. M. K. Ammini, ILR 2017-1 (Ker) 466;
  • Om Parkash v. Ram Gopal, 2011-4 PLR 364;
  • Ismail Gafurbhai Vohra v. Kirit Bhagvatprasad Vyas, 2013-2 GLR 1230;
  • Sandeep v. State of Haryana, 2011-4 LawHerald 3507,
  • Kalyan Singh v. Smt. Chhoti, AIR 1990 SC 306,
  • Nani Bai v. Gita Bai Kom Rama Gunge, AIR 1958 SC 706,

Sale deed Copy permitted only after foundational evidence

  • Hence S. 65(f) not attracted.

Datti Kameswari v. Singam Rao Sarath Chandra, AIR 2016 AP 112, it is held as under:

  • “Production and marking of a certified copy as secondary evidence of a private document (either a registered document like a sale deed or any unregistered document) is permissible only after laying the foundation for acceptance of secondary evidence under Clause (a), (b) or (c) of Section 65.”

Om Parkash v. Ram Gopal alias Paali Ram alias Doojpuri Maharaj, 2011-4 PLR 364 (P&H) it is observed as inder:

  • “In this case original sale deed has not been filed. However as per case of petitioners-plaintiffs, the original has been lost and the same was not traceable, after the death of their father, hence, sufficient explanation has come on the record for not filing the original document.”

Referring Krishna Kishore Chowdhari v. Kishore Lal Roy, 14 IA 71 it is observed in G. Chikkapapanna v. Kenchamma, 1999-1 CivCC 611; ILR 1998 Kar 3450; 1998-5 KarLJ 360, also, it is held that the party concerned has to lay foundation and establish reason for non-production nor availability of original (registered) document.

  • (Inasmuch as it is necessary to show the reason for non production of original to produce a copy of a registered deed, it does not fall under Section 65(f); and therefore certified copy is not essential – any type of secondary evidence can be adduced in evidence.)

It is said in G. Chikkapapanna v. Kenchamma as under:

  • “38. In the case of Krishna Kishore, supra, their lordships referring to Section 65 of the Evidence Act, observed as under:
  • “There are however cases under the act in which secondary evidence is admissible even though the original is in existence, one of the cases is under Section 65, clause (e) when the original is a public document within the meaning of Section 74 and another under clause (f) when original is document of which certified copy is permitted by this act or any other law in force in British India to be given in evidence but no other kind of secondary evidence is admissible. “If then the anumati patra was a public document within the meaning of Section 74 of the Act, which in their lordships opinion it was not, no secondary evidence would have been admissible except a certified copy. As an anumati patra, even if registered, is not a public document, as held by the Privy Council so the settlement deed will stand on same footing, it also cannot be said to be a public document.”
  • 40. The private settlement deed or a trust deed executed by an individual stand on some footing as receipt executed by an individual or individuals or Anumati patra and it remains a private document even after registration. The plaintiff relied on Exh. P-l and urged it to be copy of settlement deed creating trust, even if trust as urged, its original was registered one but it was not a public document vide Ravindra N. Das v Santosh Kumar.
  • 41. That as regards clause (f) of Section 65, it will be applicable in cases where the original is one, the certified copy of which is permitted under the Evidence Act or any other law. Sections 76 and 77 of the Evidence Act reveal that under these sections, the certified copies of public documents have been made permissible and admissible to prove the contents of public documents or the parts of public documents of which the copies they purport to be.
  • 42. That as found earlier, the settlement deed of 1933 is and has been only private document and did not become public document, merely because of its having been registered, as after registration, as held by the Privy Council, the document (original) is returned and does not form part of public record, vide, Gopal Das case, supra, and as per Section 61(2) of the Registration Act.
  • 43. The learned Counsel for appellant referred to Section 57(5) of the Registration Act and urged that the section permits filing of certified copies and make the certified copies issued under Section 57 of the Registration Act, to be admissible to prove the contents of original documents as such certified copy of settlement deed of 1933, Exh. P-1 was admissible as secondary evidence under Section 65(f) of the Evidence Act. He urged that the Court below erred in law in holding that the same was not admissible without proof of loss of the original or without original of Exh. P-1 being accounted for.
  • 44. If a case for filing secondary evidence is established or sbown to be covered by clause (e) or (f), secondary evidence is admissible or permissible in the form of certified copy of such a document beyond doubt as held in the case of Krishna Kishore, referred to above by the Privy Council, hut the question is what Section 57 of Registration Act provides and whether it can be said to be a case covered under Section 65(f) of the Evidence Act.
  • 45. Section 57 of the Registration Act, provides that registering office have to allow the inspection of certain books and indexes as well as to have to, or have been authorised to, give certified copies of the entries made in such books as are referred to in Section 57 of the Registration Act. Sub-section (11) of Section 57 provides that Book Nos. 1 and 2 and index relating to Book No. 1 shall be subject to payment fee payable at all times be open to inspection by any person applying for inspection. It further provides that subject to Section 62 of the Registration Act, all persons who apply for the supply of copies of entries contained in such books shall be given the copies of entries in such books.
  • 45-A. Sub-sections (2) and (3) of Section 57 provides for copies of entries in Books 3 and 4 and indexes relating thereto to be given to person referred therein only or in circumstances specified therein i.e., in the sub-section concerned.
  • 46. Sub-section (5) of Section 57 provides that all copies given under this section shall be signed and sealed by the registering officers and shall be admissible for the purpose of proving the contents of the original documents.
  • 47. The entries made in Book No. 1 or Book No. 2 etc., are only entries of books. May it contain a copy of original document, i.e., copied in the book concerned but the said entry by itself is not the original document. The entry may be a copy, in register or book, from the original deed itself, which original deed is, as per Section 61(2) of Registration Act, returned to person presenting it. So the copy of entry which is given under Section 57 is not the copy from original deed itself but the copy from the copy of deed only. Sub-section (5) of Section 57 makes provision for copy from copy of document given under Section 57(1), (2) and (3), admissible only for limited purpose namely of proving the contents of the original document. Such a copy cannot be termed to be certified copy of the original document, but a copy of the entry or of the (copy) of the document. It may be a secondary evidence but not covered by clause (f) of Section 65 of the Evidence Act.
  • 48. In the case of Karuppama v Kaland Swami, Madras High Court laid it down as under.-
  • “Section 57 of the Indian Registration Act deals with among other things, with the grant of certain certified copies and sub-section (5) lays down that all copies given under that section shall be signed and sealed by registration officer and shall be admissible for the purpose of proving the contents of the original documents. But the law is that a certified copy of what has been copied in the books of the Registration is admissible to prove the contents of the original document only when a case is made out for the introduction of secondary evidence i.e., by proof of loss of the original or where the original is withheld by a party in whose possession it is or is presumed to be”.
  • 49. Similar view has been expressed in the case of Badhawa Ram v Akbar Ali, by Hon’ble Mr. Justice Tek Chank, as he then was, as well as by the Division Bench of Nagpur High Court in the case of Kashinath Shankrappa v New Akol Cotton Ginning and Pressing Company, and also in the case of Gopal Das, supra, by the Privy Council, referred to above. The Punjab and Haryana High Court in the case of Paras Singh v Parkash Kaur, as well as Rajasthan High Court in the case of Motilal v Sardar Mal, have construed Section 57 of Registration Act, in the context of Section 65 of the Evidence Act on the same lines and way.
  • 50. In the case of P. Ram Reddy v Land Acquisition Officer, their Lordships of the Supreme Court dealing with Section 51-A of the Land Acquisition Act and Section 57 of the Registration Act has been pleased to lay down:
  • “Certified copies of a registered document under Registration Act, 1908, but for the above provision (Section 51-A of the Land Acquisition Act) could have been only secondary evidence which could have been accepted by the Court when primary evidence relating to original documents were shown to be unavailable.
  • 51. The observations made in the case of Nani Bai v Gita Bai Kom Rama Gunge, referred by learned Counsel for appellant are not of any assistance to appellant i.e., plaintiff. The material observations reveal that it only lays down that “the Sale deeds themselves are primary evidence of interest sold. If those sale deeds which are said to be registered document, were not available for any reasons, certified copies thereof could be adduced as secondary evidence, but no foundation has been laid in the pleading for the reception of other evidence which must always be a very weak character in place of the registered document evidencing those transactions”.
  • The above marked portion clearly reveals that before leading secondary evidence, such as the certified copy thereof, the party concerned has to lay foundation and establish reason for non-production nor availability of original document.
  • 52. In the present case, in my opinion as clauses (e) and (f) of Section 65 of the Evidence Act are not applicable therefore, in order to produce Exh. P-1, the certified copy of entry under Section 57 of the Registration Act, as secondary evidence the plaintiff-appellant had to make out case of foundation to lead secondary evidence, but as held earlier plaintiff-appellant has failed to lay the foundation therefor.”

Public Document Lost; Any secondary evidence becomes admissible

  • ‘Only Secondary Evidence Admissible’ Does Not Apply

In Marwari Kumhar v. Bhagwanpuri Guru Ganeshpuri, AIR 2000 SC 2629; 2000-6 SCC 735, it is held as under:

  • “10. Thus it is to be seen that under sub-clause (c) of Section 65, where the original has been lost or destroyed, then secondary evidence of the contents of the document is admissible. Sub-clause (c) is independent of sub-clause (f). Secondary evidence can be led, even of a public document, if the conditions as laid down under sub-clause (c) are fulfilled. Thus if the original of the public document has been lost or destroyed then the secondary evidence can be given even of a public document. This is the law as has been laid down by this Court in Mst. Bibi Aisha and Others v. The Bihar Subai Sunni Majlis Avaqaf and Others , AIR 1969 SC 253. In this case a suit had been filed for setting aside a registered mokarrari lease deed and for restoration of possession of properties. The suit had been filed on behalf of a Waqf. The Original Waqf Deed was lost and an ordinary copy of the Waqf Deed was produced in evidence. The question was whether an ordinary copy was admissible in evidence and whether or not secondary evidence could be led of a public document. The Court held that under Section 65 clauses (a) and (c) secondary evidence was admissible. It is held that a case may fall both under clauses (a) or (c) and (f) in which case secondary evidence would be admissible. It was held that clauses (a) and (c) were independent of clause (f) and even an ordinary copy would, therefore, be admissible. As stated above the case that the original was no longer available in Court records and the certified copy was lost has not been disbelieved. Thus the ordinary copy of the earlier judgment was admissible in evidence and had been correctly marked as an exhibit by the trial Court.”

In Bibi Aisha v. Bihar Subai Sunni Majlis Avaqaf, AIR 1969 SC 253, it is held as under:

  • “Under Sec. 65(a) of the Evidence Act secondary evidence may be given of the existence, or contents of a document 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, and when after the notice mentioned in sec. 66, such person does not produce it. Where the case falls under s. 65(a) any secondary evidence of the contents of the document is admissible. In the present case the conditions of s. 65(a) were satisfied. The plain copy of the waqf was therefore admissible. On behalf of the appellant it was argued that cl. (f) of s. 65 was applicable and that as the certified copy of the deed dated August 20, 1827 was permitted by the Evidence Act to be given in evidence, a certified copy alone was admissible in evidence. There is no substance in this contention. If the case falls under clause (a) any secondary evidence of the document is admissible, though the case may also fall under clause (f). Clause (a) is not controlled by clause (f).
  • In the case of A Collision Between The Ava [(1879) I.L.R. 5 Cal. 568] a question arose as to whether secondary evidence could be given of the contents of a certificate granted by the Board of Trade. The loss of the document attracted cl. (c) of sec. 65 and the failure to produce it after notice attracted cl. (a) Cl. (f) of sec. 65 was also applicable. Wilson J. ruled that a certified copy need not be produced and any secondary evidence was admissible. We agree with this decision. Wilson J. said:
  • “By s. 65 in cases under cls. (a) and (c) any secondary evidence is admissible; in cases under cls. (e) and (f) only a certified copy. The present case falls under cl. (a) or (c) and also under (f). In such a case which rule applies ? I think the words, ‘In cases (a), (c) and (d) any secondary evidence is admissible,’ are too clear and too strong to be controlled by anything that follows, and that, therefore, in this case any secondary evidence might be received.” (Folloed in: Arunkumar Pritamlal v. Ramanlal Bhagubhai, 1975 AIR Guj 73.)

In Jupudi Kesava Raos v. Pulavarthi Venkata Subbarao, AIR 1971 SC 1070, it was held, relying on Bibi Aisha v. Bihar Subai Sunni Majlis Avaqaf, AIR 1969 SC 253, that under Sec. 64 of the Evidence Act, a document must be proved by primary evidence. But, Sec. 65 of the Evidence Act allows secondary evidence as to the existence, condition or contents of a document in circumstances specified in Clauses (a) to (g).

In Chandreshwar Prasad Narain Singh v. Bisheshwar Pratab Narain Singh: AIR 1927 Patna 61 it was held as under:

  • “Mr. Sultan Ahmad, on behalf of the respondents, contended that the rule as to the production of any secondary evidence does not apply to the case of a public document, in which case, a certified copy of the document but no other kind of secondary evidence, is admissible. If this argument be well founded, then it is obvious that the Legislature has made no provision for cases in which the original is a record of a Court of justice, and, therefore, a public document, which has also been lost or destroyed. In my opinion, the rule laid down in Sec. 65 that a certified copy is the only secondary evidence admissible when the original is a public document does not apply where the original has been lost or destroyed.” (followed in: Bhola Prasad v. Nabi Rasul Mian, 2007-1 PLJR 752 – Pat)

From the above, it appears that the following observation in Bhola Prasad v. Nabi Rasul Mian, 2007-1 PLJR 752, is not correct.

  • “In a case of the present nature where the document produced is registered sale deed the case also gets covered by clause (f) of Sec. 65 under which when the original is a document of which a certified copy is permitted by the Evidence Act or any other law in force to be given in evidence, even a certified copy of the document, but no other kind of secondary evidence is admissible.”

Next Best Evidence Rule on Copy of a Sale Deed

Under the Rule of Best Evidence the law requires, production of the next best evidence if it is not possible to produce the best evidence. See the following:

  • G. Balamani v. Parimi Manga Devi, 2019-4 ALD 401; 2019-4 ALT 203; 2019-3 CivCC 590
  • Raghunath Ramnath Zolekar v. State of Maharashtra, 2013-1 Crimes(HC) 532
  • Biju Paul v. Nedungadi Bank Ltd. 2012-2 KerLT(SN) 113 (For creating equitable mortgage),
  • Balkar Singh v. State of Punjab, 2005 (1) RCR (Criminal) 576 : 2005 Cri LJ (NOC) 180 (the school record is the  next best evidence in the absence of any entry in the office of Registrar of Births and Deaths.)
  • Jagdamba Tea Factory v. Parshotam Kishan, 2008-3 PunLR 388, 2008-3 RCR(CIVIL) 17 (Where no lease deed, the entries in the house-tax register, which was the next best evidence available, could very well be taken into consideration for determining the rate of rent.),
  • 2008-1 RCR(RENT) 507 (Where there is no lease deed nor any receipt, the rate of rent could well be determined on the basis of house-tax register, which was the  next best evidence available. Gurinder Singh v. Kundan Lal, 2005(1) RCR(Rent) 332 : 2005(2) CCC 128 was relied on where entries in the municipal house tax register was considered.)
  • Chiman Lal v. Datar Singh, 1998 CriLJ 267, 1997 (1) WLN 396.
  • M/s. MAVR Nataraja Nadar v. State Bank of India, 1993(1) LW 456 (in the absence of the original deed of transfer the next best evidence of the owner’s title to the property is a certified copy of that document).
  • Ananthakrishnan v. K. G.  Rangasamy (Mad), 2020-4 CTC 411; 2020-1 LW 355 (quoted: M/s. MAVR Nataraja Nadar v. State Bank of India, 1993(1) LW 456)

In C. Assiamma v. State Bank of Mysore, 1992 -74 Com Cas 139, it is pointed out that, for the purposes of creating an equitable mortgage, the copy of a transfer-deed is not (ordinarily) a ‘document of title’, and that there may be cases where the original document is lost and there are no chances of that document being made use of for any purpose; and in such a circumstance the next best evidence of the owner’s title to the property would be a certified copy of that document.

Photocopy is a Reliable Secondary Evidence

It falls under Sec. 63(2) it being the product of ‘mechanical processes which in themselves insure the accuracy of the copy‘. In Y. Narasimha Rao v. Y. Venkata Lakshmi, 1991-3 SCC 451, it is held as under:

  • “A photostat copy is prepared by mechanical process which in itself ensures the accuracy of the original.”

In M.  Ratnavarma Padival v. Rathnavarma Ajri, 2023-6 KarLJ 614, it is held as under:

  • “Xerox copy, as is known in common parlance, is a photostat copy, made from a mechanical process, which ensures the accuracy. To bring a photostat copy, within the ambit of the first part of secondary evidence, as provided in Sec. 63(2) of the Indian Evidence Act, one must establish that the copy is made from the original through a mechanical process which ensures the accuracy.”
  • See also:
  • C.  Siva Ranadheer Raju v. K.  Prasannalakshmi, AIR 2023  AP 43
  • Amangenti Prameela v. P. Venkat Reddy, 2004 (3) ALT 218
  • Shaikh Aftab Ahmed v. Bhimrao, 2020-1 BomCR 251
  • Nirma Limited v. Addl. Dist. and Sessions Judge Sojat, 2019 3 CivCC 733, (Raj);
  • Keshu Ram v. Sonaki Bai, AIR 2018 Raj. 10

Contra Proposition – ‘Accuracy shall be Established on Oath’

In Aneeta v. Saraswati, (2012)4 MPLJ 56, it was held that for admitting a document as secondary evidence not only the satisfaction of Sec. 65 was required, but it was also required that photocopy was compared with the original in terms of Section 63(3). Referring this decision it is observed in Makhanlal v. Balaram, 2018-1 RN 174 (MP) as under:

  • “The application filed by the petitioner reveals that no factual foundation was laid by the petitioner in respect of the preparation of the photocopy from the original, comparing the copy with the original or its preparation by such mechanical process which ensures the accuracy of the copy .”

As regards photocopy, it is laid down in Surinder Kaur v. Mehal Singh, 2014(1) RCR(Civil) 467 (P&H) as under:

  • “a) Photostat copy of a document can be allowed to be produced only in absence of original document.
  • b) When a party seeks to produce photostat copy it has to lay the foundational facts by proving that original document existed and is lost or is in possession of opposite party who failed to produce it.
  • Mere assertion of the party is not sufficient to prove these foundational facts.
  • c) The objections as to non existence of such circumstances or non existence of foundational facts must be taken at earliest by the opposite party after the photostat copy is tendered in evidence.
  • d) When the opposite party raises objection as to authenticity of the photostat copy its authenticity has to be determined as every copy made from a mechanical process may not be accurate. Both the requirements of clause (2) of section 63 are to be satisfied.
  • e) Allowing production of photostat copy in evidence does not amount to its proof. Its probative value has to be proved and assessed independently. It has to be shown that it was made from original at particular place and time.
  • f) In cases where the photostat copy is itself suspicious it should not be relied upon. Unless the court is satisfied that the Photostat copy is genuine and accurate it should not be read in evidence.
  • g) The accuracy of photostat copy shall be established on oath to the satisfaction of court by the person who prepared such copy or who can speak of its accuracy.”
    • Note: It appears that the proposition, ‘accuracy shall be established on oath’, is a surplusage (for, a photocopy, by itself, ‘insures the accuracy of the copy’ under Sec. 63, and the court is free to apply the presumptions under Sec. 114).

If No Objection, Can a (Relevant) Photocopy of Document be Marked?

Yes.

It would not be legitimate for the court to refrain from exhibiting a relevant document which could be received in evidence on the (express or implied) concession or admission of the opposite side (as regards mode of proof, including production of a photocopy), in the scheme of our Procedure Codes and Evidence Act.

If No Objection, Photocopy can be Marked (as Secondary Evidence)

  • Thayyil Chandrasekharan v. Athikkotu Prasad , 2019 3 CurCC 297 (In the written-statement it had been stated that the original agreement was destroyed.)
  • Kishore Kumar Khaitan v. Praveen Kumar Singh, 10 Jul 2019 (Indiakanoon)
  • National Insurance Company Limited v. Dipannita Acharya, 2019 ACJ 1823.
  • Krishna Ponnuswamy v. Punitha Anand, 2018-1 MLJ 799.
  • Union of India v Rabindra Ch.  Das, 2013-6 GauLJ 335; 2013 9 RCR(Civ) 624 (No objection raised, at the time of admitting the document.)

In Iqbal Basith v. N Subbalakshmi, (2021) 2 SCC 718, our Apex Court considered admission of a photocopy of an official document, in the following factual matrix:

  • The failure to produce the originals or certified copies of other documents was properly explained as being untraceable after the death of the brother of P.W.1 who looked after property matters.
  • The attempt to procure certified copies from the municipality was also unsuccessful as they were informed that the original files were not traceable. 
  • The photocopies were marked as exhibits without objection.
  • The respondents never questioned the genuineness of the same. 
  • Despite the aforesaid, and the fact that these documents were more than 30 years old, were produced from the proper custody of the appellants along with an explanation for non­production of the originals, they were rejected (by the High Court) without any valid reason holding that there could be no presumption that documents executed by a public authority had been issued in proper exercise of statutory powers.

In this premises the Supreme Court held as under:

  • “This finding in our opinion is clearly perverse in view of Section 114(e) of the Indian Evidence Act 1872, which provides that there shall be a presumption that all official acts have been regularly performed. The onus lies on the person who disputes the same to prove otherwise.”

Delhi High Court held in Sumita @ Lamta v. Devki, (Valmiki J. Mehta, J.), 25 Sep 2017 (indiakanoon), as under:

  • “…. it is conceded by the counsel for the appellants/defendants that before commencement of cross-examination of PW-1 and PW-2 there was no objection raised that the Will cannot be proved inasmuch as the Will only is a photocopy. Once no objection is raised to the mode of proof on account of lack of original, then now the objection cannot be raised to the mode of proof as the objection to the mode of proof stands waived in view of the ratio as laid down in the judgment of the Supreme Court in the case of R.V.E. Venkatachala Gounder v. Arulmigu Viswesaraswami & V.P. Temple and Another, (2003) 8 SCC 752.”

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1 Comment

  1. rgahujab147aa0f44's avatar rgahujab147aa0f44 says:
    September 8, 2024 at 2:06 pm

    Can photocopy of a power of attorney, executed in favour of a notary, be filed as secondary evidence by the said notary under his own stamp, seal and signature, in a matter in which he seeks to act and appear as the agent of the party

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