Public Records under Sec. 35 Evidence Act: Presumption of Truth and Probative Value

Jojy George Koduvath

Introspection

Sec. 35 of the Evidence Act speaks as to ‘relevancy’ of entry in public record, or an electronic record, made in performance of an official duty.
Can ‘truth of its contents’ be presumed under Sec. 114?

Answer: Yes.

But, Note: ‘Regularity’ in Illustration (e) is not exactly the presumption as to ‘correctness or truth’. For such presumption (correctness or truth), we have to resort the main section, Sec. 114 – that is, ‘common course of natural events’, ‘human conduct’, etc.
‘Regularity’ in Illustration (e) can also be taken as an aid in such an evaluation.

Presumption in Evidence Act under S. 114

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, Indian Evidence Act, 1872, can be used to prove the existence and genuineness/truth of a document.  Sec. 114 Evd. Act reads as under”

  • “S. 114. Court may presume existence of certain facts – The Court may 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.”

Under Sec. 114 the court can  presume existence of truth or correctness (a 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’.

Illustration (e) of Sec. 114, Evd. Act

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.

General (Sec. 114) and Specific (Sec. 79 to 90A) Presumptions in 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.

Sec. 79 to 90A of the Evidence Act speaks as to specific instances of invoking presumptions.

Relevancy, Admissibility and Presumptions on Truth under Sec. 16, 34, 35

Sec. 16, 34, 35, etc. of the Evidence Act speaks only on ‘relevancy’ of documents. It directs towards the ‘admissibility’. The ‘truth or otherwise’ attached to its contents can be ‘presumed’ under Sec. 114.

Documents in the Course of Business – Relevant Fact under Sec. 16 

Sec. 16 of the Indian Evidence Act: Sec. 16 reads as under:

  • 16. Existence of course of business when relevant: When there is a question whether a particular act was done, the existence of any course of business, according to which it naturally would have been done, is a.

Illustrations to Sec. 16 make it clear that (a) when a question arises whether a particular letter was dispatched, the facts that it was the ordinary course of business for all letters put in a certain place to be carried to the post, and that particular letter was put in that place, are relevant; and that (b) when a question arises whether a particular letter reached A, the fact that it was posted in due course, and was not returned through the Dead Letter Office, are relevant.

In Puwada Venkateswara Rao v. Chidamana Venkat Ramanaa, AIR 1976 SC 869, the Apex Court found that a letter sent by registered post, with the endorsement “refused” on the cover, could be presumed to have been duly served upon the addressee without examining the postman who had tried to effect service and it was observed that there was presumption under Sec. 114 of the Evidence Act that, in the ordinary course of business, it was received by the addressee and actually refused by him.

Illustration (f) of Sec. 114 of the Evidence Act speaks that the common course of business has been followed in particular cases. Under this Illustration, it can be presumed the common course of business has been followed in particular cases. A registered postal receipt along with a copy of the letter containing the court notice and bearing correct address raises a presumption that it was duly received by the addressee, in spite of the absence of a return of acknowledgement (Anil Kumar vs. Nanak Chandra: AIR 1990 SC 1215). but, the addressee can rebut it (Radha Kishan vs. State: AIR 1963 SC 822).

Sec. 34 – Entries in Books of Account, in the Course Of Business, Relevant

Section 34 enjoins that entries in books of account, regularly kept in the course of business, are relevant. But, they by themselves, cannot create any liability.

In Dharam Chand Joshi v. Satya Narayan Bazaz, AIR 1993 Gau 35, it was pointed out that unbound sheets of paper are not books of account.

In Ishwar Dass v. Sohan Lal, AIR 2000 SC 426, it is pointed out that Books of account, by themselves, being cannot create any liability, it can only be a corroborative evidence, and must be supported by other evidence (See also: Dharam Chand Joshi v. Satya Narayan Bazaz, AIR 1993 Gau 35).

Sec. 32: ‘Presumption Of Truth’ on Documents Falls Relevant Under Sec. 32

Sec. 32 Evidence Act reads as under:

  • “32. Cases in which statement of relevant fact by person who is dead or cannot be found, etc., is relevant. –– Statements, written or verbal, of relevant facts made by a person who is dead, or who cannot be found, or who has become incapable of giving evidence, or whose attendance cannot be procured without an amount of delay or expense which under the circumstances of the case appears to the Court unreasonable, are themselves relevant facts in the following cases:  
  • (1) When it relates to cause of death …. …..
  • (2) Or is made in course of business. –– When the statement was made by such person in the ordinary course of business, and in particular when it consists of any entry or memorandum made by him in books kept in the ordinary course of business, or in the discharge of professional duty; or of an acknowledgement written or signed by him of the receipt of money, goods, securities or property of any kind; or of a document used in commerce written or signed by him; or of the date of a letter or other document usually dated, written or signed by him
  • (3) …..”

Presumption on Truth on Documents Prepared under Sec. 35

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.

The entries made in the statutory registers are admissible in evidence in terms of Section 35 of the Indian Evidence Act, 1872 (CIDCO v. Vashudha Gorakhnath Mandevleka, 2009 (7) SCC 283).

In The State of Haryana v. Amin Lal (SC), 2024-4 CurCC(SC) 222, it is held as under:

  • “Revenue records are public documents maintained by government officials in the regular course of duties and carry a presumption of correctness under Section 35 of the Indian Evidence Act, 1872. While it is true that revenue entries do not by themselves confer title, they are admissible as evidence of possession and can support a claim of ownership when corroborated by other evidence.”

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.”

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

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.

Public Register is Public Document; A Certificate, Not

In Oriental Insurance Company Ltd. v. Poonam Kesarwani , (2010) ACJ 1992, the Division Bench of Allahabad High Court considered whether the letter/certificate issued by Regional Transport Officer coluld be considered to be a public document as defined in Section 74 of the Indian Evidence Act  which required no proof.  It is pointed out –

  • ‘A public document is a document that is made for the purpose of public making use of it. When a public officer is under a duty to make some entries in the official book or register, the entries made therein are admissible in evidence to prove the truth of the facts entered in the official book or register. The entries are evidence of the particular facts which was the duty of the officer to record. The law reposes confidence in the public officer entrusted with public duties and the law presumes that public officers will discharge their duties with responsibility. A driving licence is issued under Chapter II of the Act. Section 26 of the Act makes it mandatory for the State Government to maintain a register known as State Register of Driving Licences. The entries with regard to issuance or renewal of driving licence by the licensing authorities which contains particulars of the licence and the licence holder are entered by the Regional Transport Officer/the licensing authority in discharge of their official duty enjoined by law. The State Register of Driving Licences is record of the acts of public officers. The State Register of Driving Licences is a public record. It can be inspected by any person. We are of the considered opinion that the State Register of Driving Licences is a public document as defined by Section 74 of the Evidence Act.
  • 10. Section 76 of the Evidence Act gives the right to obtain a certified copy of a public document which any person has a right to inspect on payment of fee. A certified copy of the entries made in the public record is required to be issued on payment of fee in Form 54 as laid down by rule 150 (2). Form 54 being a certified copy of a public document, namely, the State Register of Driving Licences need not be proved by examining a witness. Once a certified copy of the entries made in the register maintained under Section 26 (1) read with rule 23 is issued in Form 54 it is admissible in evidence under Section 77 of the Evidence Act, and no further proof of Form 54 by oral evidence by examining witnesses is required.
  • 12. The aforesaid information is in the form of a letter written to the investigator appointed by the insurance company. It cannot be deemed to be a certificate or certified copy in Form 54 of the Rules. Deposit of fee would not convert the letter into a certificate under rule 150. Therefore, the aforesaid letter issued by the Regional Transport Officer, Raipur (Chhattisgarh) was required to be proved by the insurance company before the Tribunal by oral evidence by examining witnesses. Insurance company had failed to lead any evidence to prove the aforesaid letter by examining witnesses before the Tribunal. The Tribunal rightly refused to place reliance on the letter dated 20.4.2005.”

Oriental Insurance Company Ltd. v. Poonam Kesarwani , (2010) ACJ 1992 is quoted and followed in New India Assurance Company Ltd.  v. Indu Bala, ILR 2016-3 HP 1829 (Tarlok Singh Chauhan, J.).

Wajibul-Arz – Part of Settlement Record Presumption of Correctness Attached

The Privy Council has held in Fatea Chand v. Knshan, 10 ALJ 335, that wajibul-arz is a cogent evidence of rights as they existed when it was made.

The value of wazibul-aiz has been accepted to be very high in Anant Prasad v. Raja Ram, 1984 Supp AWC 194 and Yash Pat Singh v. Jagannath, 1946 ALJ 132.

In Avadh Kishore Das v. Ram Gopal, AIR 1979 SC 861, (1979) 4 SCC 790, it is observed as under:

  • “Wajibularz is village administration paper prepared with due care and after due enquiry by a public servant in the discharge of his official duties. It is a part of the settlement record and a statutory presumption of correctness attaches to it. Properly construed, this Wajibularz shows that the entire revenue estate of village Bahawalpura vests in the Temple or the Math as a juristic person.”

Proof on Date of Birth

In Harpal Singh v. State of H. P. , AIR 1981 SC 361; 1981-1 SCC 560, it was held as under:

  • “A certified copy of the relevant entry in the birth register which shows that Saroj Kumari, who according to her evidence was known as Ramesh during her childhood, was born to Lajwanti wife of Daulot Ram on 11-11-1957. Mr, Hardy submitted that in the absence of the examination of the officer/chowkidar concerned who recorded the entry, it was inadmissible in evidence. We cannot agree with him for the simple reason that the entry was made by the concerned official in the discharge of his official duties, that it is therefore clearly admissible under Section 35 of the Evidence Act and that it is not necessary for the prosecution to examine its author.”

In Ravinder Singh Gorkhi v. State of U. P. , AIR 2006 SC 2157; 2006 5 SCC 584,  it was observed that there was nothing on record to show that the said date of birth was recorded in a register maintained by the school in terms of the requirements of law as contained in Section 35 of the Indian Evidence Act, and thereafter it was held as under:

  • “22. Section 35 of the Evidence Act would be attracted both in civil and criminal proceedings. The Evidence Act does not make any distinction between a civil proceeding and a criminal proceeding. Unless specifically provided for, in terms of Section 35 of the Evidence Act, the register maintained in ordinary course of business 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, inter alia, such register is kept would be a relevant fact. Section 35, thus, requires the following conditions to be fulfilled before a document is held to be admissible thereunder :
  • (i) it should be in the nature of the entry in any public or official register;
  • (ii) it must state a fact in issue or relevant fact;
  • (iii) entry must be made either by a public servant in the discharge of his official duty, or by any person in performance of a duty specially enjoined by the law of the country; and
  • (iv) all persons concerned indisputably must have an access thereto.”

In Sushil Kumar v. Rakesh Kumar, (2003) 8 SCC 673, it is held that transfer certificate issued by a Primary School does not satisfy the requirement of Section 35 of Indian Evidence Act. Para 32 and 33 of the judgment read as under:

  • “32. Under Section 35 of the Indian Evidence Act, a register maintained in terms of a statute or by statutory authority in regular course of business would be relevant fact. Had such a vital evidence been produced, it would have clinched the issue. The respondent did not choose to do so.
  • 33. In the aforementioned backdrop the evidence brought on record are required to be considered. The Admission Register or a Transfer Certificate issued by a Primary School do not satisfy the requirements of Section 35 of the Indian Evidence Act. There is no reliable evidence on record to show that the date of birth was recorded in the school register on the basis of the statement of any responsible person.”

In Ravinder Singh Gorkhi v. State of U.P. (2006) 5 SCC 584, the proof of copy of a school leaving certificate was considered under Section 35 of the Evidence Act was considered, and it is held as under:

  • “17. “The school leaving certificate was said to have been issued in the year 1998. A bare perusal of the said certificate would show that the appellant was said to have been admitted on 01.08.1967 and his name was struck off from the roll of the institution on 06.05.1972. The said school leaving certificate was not issued in ordinary course of business of the school There is nothing on record to show that the said date of birth was recorded in a register maintained by the school in terms of the requirements of law as contained in Section 35 of the Indian Evidence Act. No statement has further been made by the said Head Master that either of the parents of the appellant who accompanied him to the school at the time of his admission therein made any statement or submitted any proof in regard thereto. The entries made in the school leaving certificate, evidently had been prepared for the purpose of the case. All the necessary columns were filled up including the character of the appellant. It was not the case of the said Head Master that before he had made entries in the register, age was verified. If any register in regular course of business was maintained in the school; there was no reason as to why the same had not been produced.
  • 19. The school leaving certificate was not an original one. It was merely a second copy. Although it was said to have been issued in July 1972, the date of issuance of the said certificate has not been mentioned. The copy was said to have been signed by the Head Master on 30.04.1998. It was accepted before the learned Additional Sessions Judge, Bulandshahr on 27.01.1999. The Head Master has also not that the copy given by him was a true copy of the original certificate. He did not produce the admission register.
  • 23. Section 35 of the Evidence Act would be attracted both in civil and criminal proceedings. The Evidence Act does not make any distinction between a civil proceeding and a criminal proceeding. Unless specifically provided for, in terms of Section 35 of the Evidence Act, the register maintained in ordinary course of business 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, inter alia, such register is kept would be a relevant fact. Section 35, thus, requires the following conditions to be fulfilled before a document is held to be admissible thereunder : (i) it should be in the nature of the entry in any public or official register;; (ii) it must state a fact in issue or relevant fact; (iii) entry must be made either by a public servant in the discharge of his official duty, or by any person in performance of a duty specially enjoined by the law of the country; and (iv) all persons concerned indisputably must have an access thereto.
  • 35. We have not been shown as to whether any register was required to be maintained under any statute. We have further not been shown as to whether any register was maintained in the school at all. The original register has not been produced. The authenticity of the said register, if produced, could have been looked into. No person had been examined to prove as to who had made entries in the register. The school leaving certificate which was not issued by a person who was in the school at the time when the appellant was admitted therein, cannot be relied upon.”

Entry on Caste in school admission registers- Relevant and Admissible

Desh Raj v. Bodh Raj, AIR 2008 SC 632; 2008-2 SCC 186, it is held as under:

  • “Having regard to the provisions of Section 35, entries in school admission registers in regard to age, caste etc., have always been considered as relevant and admissible. [See : Umesh Chandra vs. State of Rajasthan, 1982 (2) SCC 202 and State of Punjab vs. Mohinder Singh, – 2005 (3) SCC 702]. In Kumari Madhuri Patil vs. Addl. Commissioner, [1994 (6) SCC 241], this Court observed that caste is reflected in relevant entries in the public records or school or college admission register at the relevant time and certificates are issued on its basis.”

In Dalchand Mulchand v. Hasanbi AIR 1938 Nag 152 (Vivian Bose and Puranik JJ.) held as under:

  • “The initial burden of proving execution of a document when it is denied is upon the person alleging execution. But if nothing else is known the mere fact that a document is admitted to bear a certain signature and that it comes from proper custody ought to be enough to raise an inference that it was signed with the intention of execution. This inference arises in India directly from Sec. 114, Evidence Act. Persons do not ordinarily sign documents without intending to execute them: that is not the common course of human conduct, nor yet the common course their public or private business. Consequently if any person wants to rely on an exceptional circumstance, if he wants to show that in some particular instance the ordinary rule was abrogated surely he must prove it and thus the burden shifts on him”.

Revenue record Presumption of Truth Attached

It is held in Krishnamurthy S.  Setlur v.  O.V.  Narasimha Setty, 2019-9 SCC 488, that revenue record proves possession. It is said as under:

  • “14. In our considered view, the High Court has not given any cogent reasons for coming to the conclusion that KS was not in possession of the property. His name figured in the revenue record from 1963 to 1981 as the owner in possession. Presumption of truth is attached to revenue record which has not been rebutted.”

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‘.

Presumption of Correctness to Revenue Record Entries

In Vishwa Vijay Bharathi v. Fakhrul Hassan, (1976) 3 SCC 642, it is held as under:

  • “It is true that the entries in the revenue record ought, generally, to be accepted at their face value and courts should not embark upon an appellate inquiry in to their correctness. But the presumption of correctness can apply only to genuine, not forged or fraudulent, entries. The distinction may be fine but it is real. The distinction is that one cannot challenge the correctness of what the entry is the revenue record states but the entry is open to the attack that it was made fraudulently or surreptitiously. Fraud and forgery rob a document of all its legal effect and cannot found a claim to possessory title.”

In Karewwa v. Hussensab Khansab Khansaheb Wajantri, AIR 2002 SC 504 : (2002) 10 SCC 315 , it is held as under:

  • “We do not dispute the legal position as stated by the learned counsel for the appellant, but the presumption of correctness of an entry in revenue record cannot be rebutted by a statement in the written statement. Mere statement of fact in the written statement is not a rebuttal of presumption of correctness of an entry in the revenue record. The respondent was recorded as a tenant in the revenue record in the year 1973 and under law the presumption is that the entry is correct. It was for the appellant to rebut the presumption by leading evidence. The appellant has not led any evidence to show that entry in the revenue record is incorrect. We, therefore, do not find any merit in the contention.”

Public Document Admissible per se without Formal Proof

Certified copies of the public documents can be proved without formal proof. See:

  • Jaswant Singh v. Gurdev Singh, 2012-1 SCC 425 ,
  • Shyam Lal @ Kuldeep v. Sanjeev Kumar, AIR 2009 SC  3115; 2009-12 SCC 454
  • Harpal Singh and Another v. State of Himachal Pradesh, AIR 1981 SC 361
  • Madamanchi Ramappa v. Muthalur Bojjappa, AIR 1963 SC 1633
  • Rajasthan State Road Trans. Corp. v. Nand Kishore, 2002 ACJ 1564 (Raj)
  • Md. Akbar v. State of A.P., 2002 CrLJ 3167 (And)
  • Collector (L. A. ), South Andaman v. Himangshu Mondal, 2015-2 CalLT 1
  • Arti Meena v. Rajasthan High Court, Jodhpur, 2020-1 SCT 1 (Raj).

In Madamanchi Ramappa v. Muthalur Bojjappa (Gajendragadkar , J.), AIR1963 SC1633; 1964-2 SCR 673, it is held as under:

  • “9. … The document in question being a Certified copy of a public document need not have been proved by calling a witness.”(Referred to in Rangaraju v. Kannayal, 10 Jan 2012, (Mad).

In Harpal Singh and Another v. State of Himachal Pradesh, AIR 1981 SC 361, it is held as under:

  • “3.…  We cannot agree with him for the simple reason that the entry was made by the concerned official in the discharge of his official duties, that it is therefore clearly admissible under Section 35 of the Evidence Act and that it is not necessary for the prosecution to examine its author ” (Quoted in: Manikanta v. State of Karnataka, 2024 Kar HC 21233)

In Shyam Lal @ Kuldeep v. Sanjeev Kumar, AIR 2009 SC  3115; 2009-12 SCC 454, it was observed as under:

  • “25. The findings of the learned District Judge holding Ex. P. 2 to be a public documentand admitting the same without formal proof cannot be questioned by the defendants in the present appeal sinceno objection was raised by them when such document was tendered and received in evidence.
  • It has been held in Dasondha Singh and Others v. Zalam Singh and Others [1997(1) P.L.R. 735] that an objection as to the admissibility and mode of proof of a document must be taken at the trialbefore it is received in evidence and marked as an exhibit.
  • Even otherwise such a document falls within the ambit of Section 74, Evidence Act, and is admissible per se without formal proof“.

In Jaswant Singh v. Gurdev Singh, 2012-1 SCC 425, it is held that certified copy of a public document prepared under Section 76 of the Act, in terms of Section 74 of the Indian Evidence Act, 1872 is admissible in evidence under Section 77 of the said Act, without being proved by calling witness. It is said as under:

  • “9. … To put it clear, the compromise had become a part of the decree which was passed by the court of Sub-Judge Ist Class, Hoshiarpur. Hence, it is a public document in terms of Section 74 of the Indian Evidence Act, 1872 (in short ‘the Act’) and certified copy of the public document prepared under Section 76 of the Act is admissible in evidence under Section 77 of the said Act. A certified copy of a public document is admissible in evidence without being proved by calling witness.

See also the following cases where documents were accepted in evidence and acted upon on the basis of Section 35 Evidence Act:

  • Umesh Chandra v. State of Rajasthan, AIR 1982 SC 1057 (admission forms as also the School’s register)
  • Harpal Singh v. State of Himachal Pradesh, AIR 1981 SC 361 (certified copy of the birth register).

REVENUE SETTLEMENT REGISTERS of Travancore in 1910, Basic Record of Land matters

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

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

Read Blogs:

If Settlement Register says Government Land, Petitioner to Establish Title

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

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

In Travancore Devaswom Board v. Mohanan Nair M.N.,  (2013) 3 KLT 132, (T.R. Ramachandran Nair, J ; A.V. Ramakrishna Pillai, J), it is observed as under:

  • “52. As far as the property herein is concerned, the land register and the settlement register produced herein are relevant. The property having the entire extent of 2.26 acres is described as ‘kavu’ (holy grove) in the settlement register. In the land register also it is described as ‘kshethram irippu sthalam’ (property where the temple is situated). No other document or other evidence is there to prove the contrary. Therefore, these documents will definitely show that the item of property will fit in with the requirement of Section 3(1)(x) of the Act.”

SEC. 35 REGISTRATION ACT: There is Presumption –  “It is VALIDLY EXECUTED“

  • Sec. 35 in the Registration Act, 1908 says that the Registrar allows registration of a document (i) if only he is satisfied as to the identity of the person who executes the document, and (ii) if the executant admits the execution of the document.
  • Presumptions can be invoked in view of the Sec. 58 and 59 Sec. 60 (certificate) of the Registration Act. The presumption of regularity of official acts in Illustration (e) of Section 114 of the Evidence is also attached to a registered deed.
  • 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.
  • 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.

Genuineness can also be drawn onRegistered Deeds, Invoking Presumption

  • Besides the presumption on a registered document that it is validly executed, there is also a presumption that the “transaction is a genuine one” (Vimal Chand Ghevarchand Jain v. Ramakant Eknath Jajoo, 2009- 5 SCC 713.)
  • The onus of proof, thus, would be on a person who questions the same.

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).

Where Truth Disputed,  Truth of Public Document must be Established

In Om Prakash Berlia v. Unit Trust of India, AIR 1983 Bom 1, it is held that even when the contents of a document is proved, the truth of what the document states must be separately established. It was a case where truth of contents disputed. It is clear from this decision that the proposition as to proving truth is more apposite when a contention was raised regarding the correctness of truth of the documents. It was further held in this case that annual return under the provisions of Section 164 of the Companies Act was prima facie evidence of any matters directed or authorised to be inserted therein by the Companies Act. The said extract prima facie establishes the truth of the contents of its original.

It is made clear in Ramji Dayawala Vs. Invest Import: AIR 1981 SC 2085, as under:

  • “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. 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.”

INSTANCES WHERE PRESUMPTION WAS NOT INVOKED

Age of a Person in a School Register – Not Much Evidentiary Value

In Birad Mal Singhvi v. Anand Purohit ,1988 Supp. SCC 604, it was held as under:

  • “To render a document admissible under Section 35, three conditions must be satisfied, firstly, entry that is relied on must be one in a public or other official book, register or record; secondly, it must be an entry stating a fact in issue or relevant fact; and thirdly, it must be made by a public servant in discharge of his official duty, or any other person in performance of a duty specially enjoined by law. An entry relating to date of birth made in the school register is relevant and admissible under Section 35 of the Act but the entry regarding the age of a person in a school register is of not much evidentiary value to prove the age of the person in the absence of the material on which the age was recorded

No evidence – On What Material Entry in Voters List Made

In Babloo Pasi v. State of Jharkhand, AIR 2009 SC  314; 2008-13 SCC 133, it is held as under

  • “23. Therefore, on facts at hand, in the absence of evidence to show on what material the entry in the Voters List in the name of the accused was made, a mere production of a copy of the Voters List, though a public document, in terms of Section 35, was not sufficient to prove the age of the accused. Similarly, though a reference to the report of the Medical Board, showing the age of the accused as 17-18 years, has been made but there is no indication in the order whether the Board had summoned any of the members of the Medical Board and recorded their statement. It also appears that the physical appearance of the accused, has weighed with the Board in coming to the afore-noted conclusion, which again may not be a decisive factor to determine the age of a delinquent. Insofar as the High Court is concerned, there is no indication in its order as to in what manner Rule 22(5)(iv) has been ignored by the Board. The learned Judge seems also to have accepted the opinion of the Medical Board in terms of the said Rule as conclusive. Therefore, the afore-stated ground on which the High Court has set aside the opinion of the Board and holding the accused to be a juvenile, cannot be sustained.”

Hath Chitha – Not Proved, Entry in Discharge of Official Duties

In Ram Prasad Sharma v. State Of Bihar, AIR 1970 SC 326; 1969-2 SCC 359, it is held as under:

  • “In this case it has not been proved that the entry in question was made by a public servant in the discharge of his official duties. As observed by this Court in 1965-3 SCR 861 (Brij Mohan Singh v. Priya Brat Narain Sinha) at p. 864
  • “the reason why an entry made by a public servant in a public or other official book, register, or record stating a fact in issue or a relevant fact has been made relevant is that when a public servant makes it himself in the discharge of his official duty, the probability of its being truly and correctly recorded is high.”
  • No proof has been led in this case as to who made the entry and whether the entry was made in the discharge of any official duty. In the result we must hold that Ex. D, the hath chitha, was rightly held by the High Court to be inadmissible.”

Illiterate Public Servant, Somebody Else Made Entry – Does Not Come Within Sec. 35

Constitution Bench of in Brij Mohan Singh v. Priya Brat Narain Sinha,  AIR 1965 SC 282, observed as under:

  • “The reason why an entry made by a public servant in a public or other official book, register, or record stating a fact in issue or a relevant fact has been made relevant is that when a public servant makes it himself in the discharge of his official duty, the probability of its being truly and correctly recorded is high. That probability is reduced to a minimum when the public servant himself is illiterate and has to depend on somebody else to make the entry. We have therefore come to the conclusion that the High Court is right in holding that the entry made in an official record maintained by the illiterate Chowkidar, by somebody else at his request does not come within Section 35 of the Evidence Act.”

Document Admissible Under Sec. 35 May (still) Require Corroboration

In Satpal Singh v. the State of Haryana, (2010) 8 SCC 714, it is held as under:

  • “22. Therefore, a document may be admissible, but as to whether the entry contained therein has any probative value may still be required to be examined in the facts and circumstances of a particular case. The aforesaid legal proposition stands fortified by the judgments of this Court in
  • Ram Prasad Sharma Vs. State of Bihar, AIR 1970 SC 326;
  • Ram Murti Vs. State of Haryana, AIR 1970 SC 1029;
  • Dayaram & Ors. Vs. Dawalatshah, AIR 1971 SC 681;
  • Harpal Singh & Anr. Vs. State of Himachal Pradesh, AIR 1981 SC 361;
  • Ravinder Singh Gorkhi Vs. State of U.P., (2006) 5 SCC 584;
  • Babloo Pasi Vs. State of Jharkhand, (2008) 13 SCC 133;
  • Desh Raj Vs. Bodh Raj, AIR 2008 SC 632; and
  • Ram Suresh Singh Vs. Prabhat Singh @Chhotu Singh, (2009) 6 SCC 681.
  • In these cases, it has been held that even if the entry was made in an official record by the official concerned in the discharge of his official duty, it may have weight but still may require corroboration by the person on whose information the entry has been made and as to whether the entry so made has been exhibited and proved. The standard of proof required herein is the same as in other civil and criminal cases. Such entries may be in any public document; i.e. school register, voters list or family register prepared under the rules and regulations, etc, in force, and may be admissible under Section 35 of the Evidence Act as held in Mohd, Ikram Hussian v. State of U.P. and Santenu Mitra v. State of W.B.”

Judge’s power to put Questions or Order Production

  • Sec. 165 of Evidence Act reads as under:
  • 165 – Judge’s power to put questions or order production – The Judge may, in order to discover or to obtain proper proof of relevant facts, ask any question he pleases, in any form, at any time, of any witness, or of the parties about any fact relevant or irrelevant; and may order the production of any document or thing; and neither the parties nor their agents shall be entitled to make any objection to any such question or order, nor, without the leave of the Court, to cross-examine any witness upon any answer given in reply to any such question:
  • Provided that the judgment must be based upon facts declared by this Act to be relevant, and duly proved:
  • Provided also that this section shall not authorize any Judge to compel any witness to answer any question, or to produce any document which such witness would be entitled to refuse to answer or produce under sections 121 to 131, both inclusive, if the question were asked or the document were called for by the adverse party; nor shall the Judge ask any question which it would be improper for any other person to ask under section 148 or 149; nor shall he dispense with primary evidence of any document, except in the cases hereinbefore excepted.

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