Mere Marking is Not Proof Vs. Waiver, if No Objection

“Mode of proof” of a document stands distinct from “inherent inadmissibility” (such as an un-stamped document)

Saji Koduvath, Advocate, Kottayam.

Part I

Abstract

If a document itself is ‘inherently inadmissible’ in evidence under law (e.g., an un-stamped document barred by the Stamp Act or evidence prohibited by statute), merely marking the document as an ‘exhibit’ does not cure its inherent inadmissibility. But, failure to object marking documents, when they are tendered in evidence, on the ground – “mode of proof” (not that the document is in itself inadmissible) bars the party from raising the objection at a later stage, including during final arguments, in appeal, or in revision.

The Core of the Controversy

There are two diametrically opposite judicial views regarding objections to the “mode of proof” of documents:

• 1. The “Mere Marking is Not Proof”: Exhibiting a document does not dispense with the requirement of proving its contents.
• 2. The “Waiver” Rule: Failure to object to a document’s mode of proof (not that the document is in itself inadmissible) at the time of exhibition constitutes an irrevocable waiver.

A Fundamental Conflict in Case Law

• The Supreme Court has yet to definitively harmonize or resolve this overarching controversy.

Mere Marking is Not Magical Establishment of Proof: SC Decisions

Simply assigning an exhibit number to a document “without objection” does not magically discharge the burden of proving its contents—unless those contents are expressly admitted by the opposing party in accordance with law [such as through pleadings under Order VIII Rule 5 CPC, explicit statements under Order X CPC, or written admissions under Order XII Rule 2 CPC; under Sections 17 to 23 of the Evidence Act / Sections 15 to 21 of the BSA].

The principal authorities are:

• Tharammel Peethambaran v. T. Ushakrishnan,  AIR 2026 SC 938.
  • It is held in this decision (Pankaj Mithal, S.V.N. Bhatti, JJ.) that the secondary evidence is NOT admissible until the non-production of the original is accounted for – that is, until the foundational facts of Section 65 are established. The court has to decide the question of admissibility before marking it as a secondary evidence. That is, mere marking, or marking on admission, does not automatically prove its contents.
• Narbada Devi Gupta v. Birendra Kumar Jaiswal, (2003) 8 SCC 745
  • To prove the tenancy, the appellant produced rent receipts bearing the respondent’s signatures. The respondent admitted his signatures; but set up a plea that the landlord had obtained his signatures on blank papers, which were later converted into rent receipts. Doctrine of waiver is applied for the tenant did not adduce independent evidence to establish the allegation of blank papers.
• Ramji Dayawala v. Invest Import: AIR 1981 SC 2085
  • Merely admitting a document into evidence or marking it as an exhibit does not dispense with proving the truth of its contents (usually through proper witness testimony). In this case, while signing the contract, it was explicitly stated that the arbitration clause (venue at Paris) was unacceptable. Immediately sent a formal letter and cable confirming the objection. The opposite party though received these communications, remained silent.

Waiver and Marking for Failure to Object: SC Decisions

If a party has an objection to the marking of a document on the ground of a defective, irregular, or insufficient mode of proof—such as secondary evidence—it must be raised when the document is tendered and before it is marked as an exhibit. Otherwise, the objection stands waived. The position remains identical where the document and relevant signatures are not disputed, and such an objection cannot be allowed to be raised at any subsequent stage.

Classic Decisions on this view are –

• (i) R.V.E. Venkatachala Gounder v. Arulmigu Viswesaraswami & V.P. Temple, (2003) 8 SCC 752.
  • The landlord-plaintiff produced photocopies of rent notes and account books to establish his long-standing management and collection of rent. The defendants objected to their admissibility on the ground that they were copies. The Court held – An objection to the mode of proof (such as marking a photocopy or secondary evidence) must be raised when the document is tendered at trial; if no objection is raised then, it stands waived and cannot be raised at the appellate stage. The Court pointed out – if the court rules against the mode of proof adopted, the party who tendered the evidence still has the opportunity to seek the court’s permission to adopt a regular method of proof, thereby curing the defect raised by the opposite party.
• (ii) Dayamathi Bai v. K.M. Shaffi, (2004) 7 SCC 107
  • The Plaintiff claimed title through a registered sale deed—which was a certified copy—executed by the sons of the original owner. The Defendant claimed to have derived rights from the original owner’s wife. The Supreme Court ruled that an objection regarding the mode of proof (such as producing a certified copy without formally establishing the loss of the original first) belongs to procedural law. Because the defendant failed to object when the documents were tendered and marked at trial, the objection stood waived and could not be raised for the first time at the appellate stage.
• (iii) Sonu @ Amar v. State of Haryana, (2017) 8 SCC 570.
  • In a case involving offenses including that under Sections 376 of the IPC, a school leaving certificate was produced to prove the age of the victim. The defence did not raise any objection when the document was tendered and marked. In appeal the defence raised objection that the document was not formally proved (examining the headmaster or author of the document). The Supreme Court held: objections such as marking a copy (other than inherently inadmissible documents—such as an unstamped document barred by the Stamp Act) must be raised at the very threshold when the document was tendered. If the party fails to object at that stage, the procedural irregularity stands waived.

Part II

Resolution of the Controversy – The Suggested Harmonisation

The Rule of Waiver applies only to procedural irregularities in the mode of proof, without overriding the statutory prerequisites or substantive requisites of proof.

• Consequently, failing to examine the author of a document can be waived. But, marking secondary evidence without laying the foundational facts mandated under Section 65 of the Evidence Act, or exhibiting a document without fulfilling the statutory prerequisites of Section 65B cannot be waived.
• Therefore, (i) the waiver and (ii) the requirement of proving the contents of a document remain two distinct legal concepts.

Read Similar Articles ➧••➧Marking of Photocopy and Law on Marking Documents on Admission (Without Formal  Proof) ••••  Secondary Evidence of Documents & Objections to Admissibility  – How &  When? ➧••➧Contents of a Document are to be Proved in Court by Producing Original or Secondary  Evidence ••••  Newspaper Reports are ‘Hearsay Secondary  Evidence’ ➧••➧Proof of  Documents & Objections To Admissibility – How & When? ••••  Admissibility, Substantive Evidence and Probative Value – General Principles ➧••➧Modes of Proof of Documents – Admission, Direct Evidence, Expert Evidence, Presumption etc. ➧••➧Modes of Proof of Documents ••••  Best Evidence Rule in Indian Law ➧••➧Time to Object Marking Documents – While Exhibiting; Failure, Amounts to Waiver ••••  ‘Once Admitted, Always Admitted’ – Stamp Act Theory Explored in G. M.  Shahul Hameed v. Jayanthi R. Hegde, AIR 2024 SC 3339 ➧••➧Marking Documents: Should Objection be Raised Strictly When they are Marked; Is it Sufficient to Challenge them during Cross-Examination? ••••  Can the Court Refuse to Mark a (Relevant and Admissible) Document, for (i) there is No Formal Proof or (ii) it is a Photocopy? ➧••➧Admission of Documents in Evidence, on ‘Admission’ ••••  Document Exhibited in the Writ Petition as ‘True Copy’ – Can it be Used as ‘Admission’, in a Civil Suit? ••••  Proof on ‘Truth of Contents’ of Documents, in Indian Evidence Act ➧••➧Marking Secondary Evidence Without Objection: Two Apparently Divergent Views on Waiver and the Mode of Proof of Documents ➧••➧PROOF OF DOCUMENTS & OBJECTIONS TO ADMISSIBILITY – How & When? ➧••➧Law on PRODUCTION, ADMISSIBILITY & PROOF OF DOCUMENTS – in a Nutshell ••••  Relevancy, Admissibility and Proof of Documents

End notes

Objections to Documents: R.V.E. Venkatachala Gounder Stands as a Sole Exception?

Preponderance of Authority Mandates – Objections Be Raised at Trial, Not First Time in Appeal

Core Propositions 1. R.V.E. Venkatachala Gounder v. Arulmigu Viswesaraswami & V.P. Temple, (2003) 8 SCC 752 is the sole and odd decision of the supreme Court that says – “objection should be taken when the evidence is tendered and once the document has been admitted in evidence and marked as an exhibit”. 2. All other Supreme Court decisions say it must be at trial, and not in appeal as first time. E.g., Dayamathi Bai v. K.M. Shaffi, (2004) 7 SCC 107: “should be taken at the trial before the document is marked as an exhibit and admitted to the record.” 3. Sarkar on Evidence, 1st Edn., p.1084, “it has been stated that where copies of the documents are admitted without objection in the trial Court, “no objection to their admissibility can be taken afterwards in the court of appeal“. (Quoted in: Dayamathi Bai v. K.M. Shaffi, (2004) 7 SCC 107.) 4. Sundar @ Sundarrajan Vs. State by Inspector of Police, (2024) 12 SCC 764 (Not first be in Appeal) 5. Lachhmi Narain Singh v. Sarjug Singh, (2022) 13 SCC 746 (Must be before the trial court, and not be in appeal.) 6. Rajender @ Rajesh Vs. State (NCT of Delhi), (2019) 10 SCC 623 (Must be in Trial Court and Not first be in Appeal) 7. Sonu @ Amar v. State of Haryana, (2017) 8 SCC 570 (if not taken at the trial, cannot be permitted at the appellate stage) 8. Dayamathi Bai v. K.M. Shaffi, (2004) 7 SCC 107 (Mode of proof – objection should be taken at the trial before the document is marked) 9. Gopal Das Vs. Sri Thakurji, AIR 1943 PC 83 (Not first in Appeal: referred to in: Sonu @ Amar v. State of Haryana). 10. Padman v. Hanwanta, AIR 1915 PC 111, (objection to the admissibility in appeal for the first time.Objection should have been taken in the trial court.)

1. Substantive Admissibility Vs. Mode of Proof

• A document which is inherently inadmissible in evidence (e.g., an un-stamped document barred by the Stamp Act or evidence prohibited by statute) can be challenged at any time – even in appeal, despite a challenge in the trial court.
• But objection to mode of proof stands on a different footing. Here, the admissibility of the document itself is not disputed, but the method used to prove it stands irregular, informal, or deficient (e.g., tendering a certified copy or photocopy without first laying the foundational facts for secondary evidence).

In R.V.E. Venkatachala Gounder v. Arulmigu Viswesaraswami & V.P. Temple, (2003) 8 SCC 752, laid down the crucial distinction between two classes of evidentiary objections. It is observed as under:

• “20. The learned counsel for the defendant-respondent has relied on Roman Catholic Mission v. State of Madras [AIR 1966 SC 1457] in support of his submission that a document not admissible in evidence, though brought on record, has to be excluded from consideration. We do not have any dispute with the proposition of law so laid down in the above said case.
• However, the present one is a case which calls for the correct position of law being made precise. Ordinarily, an objection to the admissibility of evidence should be taken when it is tendered and not subsequently.
• The objections to the admissibility of documents in evidence may be classified into two classes:
  • (i) an objection that the document which is sought to be proved is itself inadmissible in evidence; and
  • (ii) where the objection does not dispute the admissibility of the document in evidence but is directed towards the mode of proof alleging the same to be irregular or insufficient.
• In the first case, merely because a document has been marked as “an exhibit”, an objection as to its admissibility is not excluded and is available to be raised even at a later stagee or even in appeal or revision.
• In the latter case, the objection should be taken when the evidence is tendered and once the document has been admitted in evidence and marked as an exhibit, the objection that it should not have been admitted in evidence or that the mode adopted for proving the document is irregular cannot be allowed to be raised at any stage subsequent to the marking of the document as an exhibit.

The Rationale: Upholding Fairness and Preventing Prejudice

A timely objection alerts the party tendering the document, giving them the opportunity to cure the procedural defect and adopt a regular method of proof. Allowing a party to stay silent during trial and object on appeal would unfairly prejudice the opponent.

R.V.E. Venkatachala Gounder v. Arulmigu Viswesaraswami & V.P. Temple, (2003) 8 SCC 752, continues (Para 20) as under:

• The latter proposition is a rule of fair play. The crucial test is whether an objection, if taken at the appropriate point of time, would have enabled the party tendering the evidence to cure the defect and resort to such mode of proof as would be regular. The omission to object becomes fatal because by his failure the party entitled to object allows the party tendering the evidence to act on an assumption that the opposite party is not serious about the mode of proof. On the other hand, a prompt objection does not prejudice the party tendering the evidence, for two reasons:
  • firstly, it enables the court to apply its mind and pronounce its decision on the question of admissibility then and there; and
  • secondly, in the event of finding of the court on the mode of proof sought to be adopted going against the party tendering the evidence, the opportunity of seeking indulgence of the court for permitting a regular mode or method of proof and thereby removing the objection raised by the opposite party, is available to the party leading the evidence.
• Such practice and procedure is fair to both the parties. Out of the two types of objections, referred to hereinabove, in the latter case, failure to raise a prompt and timely objection amounts to waiver of the necessity for insisting on formal proof of a document, the document itself which is sought to be proved being admissible in evidence. In the first case, acquiescence would be no bar to raising the objection in a superior court.”

In Dayamathi Bai v. K.M. Shaffi, (2004) 7 SCC 107, it is pointed out as under:

• “14. To the same effect is the judgment of the Privy Council in the case of Gopal Das V. Thakurji in which it has been held that when the objection to the mode of proof is not taken, the party cannot lie by until the case comes before a court of appeal and then complaint for the first time of the mode of proof. That when the objection to be taken is not that the document is in itself inadmissible but that the mode of proof was irregular, it is essential that the objection should be taken at the trial before the document is marked as an exhibit and admitted to the record.”

Judicial Precedents: Mere Marking Does Not Equal Proof

• Tharammel Peethambaran v. T. Ushakrishnan,  AIR 2026 SC 938.
• Narbada Devi Gupta v. Birendra Kumar Jaiswal, (2003) 8 SCC 745
• Ramji Dayawala v. Invest Import: AIR 1981 SC 2085

Judicial Precedents: Objections Must Be Raised at Trial, Not for the First Time in Appeal

The decisions commonly say: (i) the objection must be taken at trial and (ii) not first time in appeal. In Dayamathi Bai v. K.M. Shaffi, (2004) 7 SCC 107, it is pointed out as under:

• Similarly, in Sarkar on Evidence, 1st Edn., p.1084, it has been stated that where copies of the documents are admitted without objection in the trial Court, no objection to their admissibility can be taken afterwards in the court of appeal. When a party gives in evidence a certified copy, without proving the circumstances entitling him to give secondary evidence, objection must be taken at the time of admission and such objection will not be allowed at a later stage.”

• Sundar @ Sundarrajan Vs. State by Inspector of Police, (2024) 12 SCC 764 (Not first be in Appeal)
• Lachhmi Narain Singh v. Sarjug Singh, (2022) 13 SCC 746 (Must be before the trial court, and not be in appeal.)
• Rajender @ Rajesh Vs. State (NCT of Delhi), (2019) 10 SCC 623 (Must be in Trial Court and Not first be in Appeal)
• Sonu @ Amar v. State of Haryana, (2017) 8 SCC 570 (if not taken at the trial, cannot be permitted at the appellate stage)
• Dayamathi Bai v. K.M. Shaffi, (2004) 7 SCC 107 ((Mode of proof – objection should be taken at the trial before the document is marked ))
• Gopal Das Vs. Sri Thakurji, AIR 1943 PC 83 (Not first in Appeal: referred to in: Sonu @ Amar v. State of Haryana).
• Padman v. Hanwanta, AIR 1915 PC 111, (objection to the admissibility in appeal for the first time.Objection should have been taken in the trial court.)

Judicial Reflections on Waiving Objections Through Cross-Examination

The law on the point (whether a challenge in cross-examination, sufficient) can be deduced from the following decisions-

(i) In Thakor Rajuji Takhaji v. Owner of Tractor No.  RJ-21-3R-8180, Kawarilal, 2024  Guj HC 14451), it is held as under:

• “The cross examination of the respondent/s does not suggest that they had any objection to the documents produced.”

(ii) Khan v. Habib Khan @ Abdul Mujeeb Khan, 11 Mar 2020 (Del), where it is observed –

• “5. Learned counsel appearing for the respondents submits that the original documents were duly produced before the Trial Court at the time of the recording of the evidence of the respondent and the copies of the said documents, after comparison, were exhibited and marked as Exhibit PW1/6 to PW1/8 and no objection was taken by the petitioner with regard to the proof of the said documents and exhibit marking of the copies and there is even no cross-examination or suggestion during cross examination that the originals have not been produced.”

(iii) In Corporation of Calcutta v. Baldeo Shaw, 2011-3 Crimes (HC) 784; 2011-2 CalLJ 221;  2011-1 CriLR 890, it is held as under:

• “The cash memo, i.e., Exhibit-A was admitted into evidence and marked Exhibit. No objection was raised by the complainant in course of cross-examination in the matter of admission of such a document.”

(iv) In Kuntal Kundu v. National Insurance Company Limited, 2008-3 WBLR 717), it is held as under:

• “In the case before us, the appellant in his evidence-in-chief specifically tendered the said certificate and the same along with others was marked as Exhibit without objection. We have already pointed out that even no suggestion was given in cross-examination disputing either the contents or the genuineness of those documents.

(v) In Noorjahan, Altaf Ahmed v. Sadrunisa, Hajifatehulla Khan, 2005-3 BomLR 625; 2005-3 MhLJ 10,  it is pointed out as under:

• “It is further pertinent to note that there was no effective cross-examination in respect of this document. There was no objection taken to the document being received and marked in evidence either.”

(vi) In Alacs Finanz Ltd v. Oksh Technologies, AIR 2005  (Del) 376, it is held as under:

• “When the certified copy of the Resolution was tendered in evidence, no objection to its admission or mode of proof was raised. Not even in the cross-examination.”

(vii) In R.  Vijayabalan v. D. Jayakumari, 2001-1 MLJ 555, it is observed as under:

• “… when those documents were marked, there was no objection raised for marking the documents and even in the cross-examination there was no challenge made with reference to those documents marked before the court and since the said act would amount to waiver…”.

(viii) In Lionel Edwards Ltd. v. State of West Bengal, AIR 1967 Cal-191, it is held as under:

• “Documents are either proved by witnesses or marked on admission. When it is marked on admission without reservation, the contents are not only evidence but are taken as admitted, the result being the contents cannot be challenged either by way of cross-examination or otherwise. In respect of documents marked on admission dispensing with formal proof, the contents are evidence, although the party admitting does not thereby accept the truth of the contents and is free to challenge the contents by way of cross-examination or otherwise.” (Quoted in: Life Insurance Corporation of India v. Manjula Mohanlal Joshi, AIR 1975 Ori 116; ILR 1975 Cut 422).