Relevant Provisions Fall under “Some Other Provisions of this Act” in S. 43
Following provisions are pointed out frequently, in this regard –
Sec. 5(Facts in issue);
Sec. 8(which refers to motive, preparation and previous or subsequent conduct);
Sec. 11(which says when facts not otherwise relevant become relevant);
Sec. 13(when existence of right or custom is in question then any transaction or particular instances where the right or custom is claimed, recognized etc. become relevant),
Sec. 54Explanation (2), when a previous conviction is relevant as evidence of bad character), etc.
Sec. 58(Admitted Facts)
Import of “Relevant under other provisions of this Act”
The relevancy of a previous judgment (in a subsequent case) is governed by Sections 40 to 43 of the Indian Evidence Act, 1872.
Section 43, inter alia, permits the production of earlier judgments that are deemed “relevant under other provisions of this Act.”
There are divergent views on the applicability of Sections 5, 8, 11 and 13, Evidence Act, under this clause in Section 43.
First view—Sections 5, 8,11 and 13 being delineate the general provisions, and the relevance of prior judgments is primarily governed by Sections 40 to 43, the previous judgments will not be liberally permitted (invoking the clause “relevant under some other provisions of this Act”).
Second view—The phrase “relevant under some other provisions of this Act” as stated in Section 43, must be interpreted to encompass its complete and comprehensive significance.
Differences of opinion also exist as to the admissibility of a judgment not inter parties, under Section 13.
The legitimate view, it appears, is the following –
(i) Previous judgments can be admitted in evidence (invoking the clause “relevant under some other provisions of this Act”) if they fall under Sections 5, 8,11 and 13. Nevertheless, the admissibility of the previous judgments being essentially governed by Sections 40 to 43, they cannot be allowed to be freely imported, invoking the general provisions.
(ii) The probative value of the previous judgment has to be determined by the court, even if such a previous judgment is marked in evidence as ‘relevant’.
(iii) In any case, the use of the previous judgment is definitely relevant in certain contexts. For instance:
A motive for an offence (Section 8) – i.e., to see whether the judgment provoked anger in the accused.
The sentence or damages to be imposed
Disputes of Title, be adjudicated in Civil Procedure
In Smt. Janak Vohra v. DDA, 103-2003-DLT 789, it was held that in case of disputed questions of title, and mutation being asked for, it is appropriate that the disputes of title be adjudicated in appropriate civil procedure and no direction be issued to mutate the property in the name of a party. (Referred to in Syed Askari Hadi Ali Augustine Imam v. State (Delhi Admn.), 2009- 5 SCC 528)
Land Acquisition judgments, not inter partes, Relevant under S. 11 and 13
In The Land Acquisition Officer, City Improvement Trust Board v. H. Narayana, 1976 – 4 SCC 9; AIR 1976 SC 2403 our Apex Court approved the view that in land acquisition cases judgments, not inter partes, are relevant, under Sec. 11 and 13 Evidence Act, if such judgments relate to similarly situated properties and contain determinations of value on dates fairly proximate to the relevant date in a case.
Order directed rectification of Trust Deed Relevant under Sec. 11
In Commissioner of Income Tax, Kanpur v. Kamla Town Trust, 1996-7 SCC 349, it was held that the Order that directed rectification of Trust Deed would be relevant under Sec. 11 Evidence Act.
Judgment not inter partes admissible to find what lands involved
In State of Bihar v. Radha Krishna Singh, 1983-3 SCC 118, our Apex Court approved the view of the Calcutta High Court as under:
“129. In Gadadhar Chowdhury v. Sarat Chandra Chakravarty [AIR 1941 Cal 193 : (1940) 44 Cal WN 935 : 195 IC 412 : 72 Cal LJ 320] it was held that findings in judgments not inter partes are not admissible in evidence. In this connection a Division Bench of the Calcutta High Court observed as follows : ‘Though the recitals and findings in a judgment not inter partes are not admissible in evidence, such a judgment and decree are, in our opinion, admissible to prove the fact that a decree was made in a suit between certain parties and for finding out for what lands the suit had been decreed.’
130. This, in our opinion, is the correct legal position regarding the admissibility of judgments not inter partes.” (Quoted in V. Kalyanaswamy v. L. Bakthavatsalam, 2020-9 SCALE. 367)
Criminal proceeding will have precedence over the Civil proceeding
In Syed Askari Hadi Ali Augustine Imam v. State (Delhi Admn.), 2009- 5 SCC 528, it is held as under:
“10. It is, however, now well settled that ordinarily a criminal proceeding will have primacy over the civil proceeding. Precedence to a criminal proceeding is given having regard to the fact that disposal of a civil proceeding ordinarily takes a long time and in the interest of justice the former should be disposed of as expeditiously as possible.” (relied on: M.S. Sheriff v. State of Madras, AIR 1954 SC 397.)
3. There is neither any statutory nor any legal principle that findings recorded by the court, either in civil or criminal proceedings, shall be binding between the same parties (even) while dealing with the same subject-matter.
Iqbal Singh Marwah v. Meenakshi Marwah, (2005) 4 SCC 370,
Avitel Post Studioz Limited v. HSBC PI Holdings (Mauritius) Limited, 2021-4 SCC 713 (R.F. Nariman, J.)
4. Sections 41 to 43 of the Evidence Act deal with relevancy alone (Not conclusive except as provided in Section 41).
K.G. Premshanker v. Inspector of Police, (2002) 8 SCC 87
Avitel Post Studioz Limited v. HSBC PI Holdings (Mauritius) Limited, 2021-4 SCC 713
5. Criminal liability must be proved beyond reasonable doubt, while civil liability is based on preponderance of probabilities; different principles and different standards of proof.
Iqbal Singh Marwah v. Meenakshi Marwah, (2005) 4 SCC 370
P. Swaroopa Rani v. M. Hari Narayana, (2008) 5 SCC 765
Radheshyam Kejriwal v. State of West Bengal, (2011) 3 SCC 581.
Sec. 11 and 13, Evidence Act – Not Attracted to Sec. 43
In State of Bihar v. Radha Krishna Singh, AIR 1983 SC 684 (Syed Murtaza Fazalali, A. Varadarajan, V. Balakrishna Eradi, JJ.) it was held as under:
“We are, however, of the opinion that where there is a specific provision covering the admissibility of a document, it is not open to the court to call into aid other general provisions in order to make a particular document admissible. In other words, if a judgment is not admissible as not falling within the ambit of sections 40 to 42, it must fulfil the conditions of s. 43. Otherwise, it cannot be relevant under s. 13 of the Evidence Act. The words “other provisions of this Act” cannot cover s. 13 because this section does not deal with judgments at all.“
The same principle also applies to Sec. 11.
It is Not Correct – Civil Decisions Bind Criminal Courts (and Converse)
Our Apex Court had (earlier) observed in V. M. Shah v. State of Maharashtra, (1995) 5 SCC 767, that the finding recorded by the criminal court stands superseded by the finding recorded by the civil court. A Two Judge Bench, in KG Premshanker v. Inspector of Police, doubted the correctness of V. M. Shah case and required reconsideration by a larger Bench. Hence, in KG Premshanker v. Inspector of Police, (2002) 8 SCC 87, the Three-Judge Bench (M.B. Shah, Bisheshwar Prasad Singh, H.K. Sema, JJ.) overruled V. M. Shah v. State of Maharashtra, holding that the finding recorded by a criminal court stands superseded by the finding recorded by the civil court isnot correct.
KG Premshanker v. Inspector of Police, (2002) 8 SCC 87, also considered Karam Chand Ganga Prasad v. Union of India, 1970-3 SCC 694, wherein it was observed that the decisions of the civil court will be binding on the criminal courts, but the converse is not true. KG Premshanker v. Inspector of Police, (2002) 8 SCC 87, also overruled Karam Chand Ganga Prasad.
Referring KG Premshanker v. Inspector of Police (2002) 8 SCC 87, it is held in Syed Askari Hadi Ali Augustine Imam v. State (Delhi Admn.), 2009- 5 SCC 528 (Mukundakam Sharma, SB Sinha, JJ.) as under:
“It is, however, significant to notice a decision of this Court in M/s Karam Chand Ganga Prasad & Anr. etc. v. Union of India & Ors. [(1970) 3 SCC 694], wherein it was categorically held that the decisions of the civil court will be binding on the criminal courts, but the converse is not true, was overruled, stating:
“33. Hence, the observation made by this Court in V.M. Shah case that the finding recorded by the criminal court stands superseded by the finding recorded by the civil court is not correct enunciation of law. Further, the general observations made in Karam Chand case are in context of the facts of the case stated above. The Court was not required to consider the earlier decision of the Constitution Bench in M.S. Sheriff case (M.S. Sheriff v. State of Madras, AIR 1954 SC 397) as well as Sections 40 to 43 of the Evidence Act.”
11. Axiomatically, if judgment of a civil court is not binding on a criminal court, a judgment of a criminal court will certainly not be binding on a civil court. We have noticed hereinbefore that Section 43 of the Evidence Act categorically states that judgments, orders or decrees, other than those mentioned in sections 40, 41 and 42 are irrelevant, unless the existence of such judgment, order or decree, is a fact in issue, or is relevant under some other provisions of the Act. No other provision of the Evidence Act or for that matter any other statute has been brought to our notice.”
Sans Sec. 41 – 43, No Legal Principle – Findings of Civil Court Bind Cril. Court
Except as provided in Sections 41 to 43 of the Evidence Act, there is no general legal principle that findings of a civil court are binding on a criminal court, and vice versa.
In Avitel Post Studioz Limited v. HSBC PI Holdings (Mauritius) Limited (Rohinton Fali Nariman, Navin Sinha, Indira Banerjee, JJ.) 2021-4 SCC 713, the principles in K.G. Premshanker v. Inspector of Police, (2002) 8 SCC 87: AIR 2002 SC 3372, are followed and held as under:
“18. Thus, in view of the above, the law on the issue stands crystallised to the effect that the findings of fact recorded by the civil court do not have any bearing so far as the criminal case is concerned and vice versa. Standard of proof is different in civil and criminal cases. In civil cases it is preponderance of probabilities while in criminal cases it is proof beyond reasonable doubt. There is neither any statutory nor any legal principle that findings recorded by the court either in civil or criminal proceedings shall be binding between the same parties while dealing with the same subject-matter and both the cases have to be decided on the basis of the evidence adduced therein. However, there may be cases where the provisions of Sections 41 to 43 of the Evidence Act, 1872, dealing with the relevance of previous judgments in subsequent cases may be taken into consideration.”
It is further pointed out in Avitel Post Studioz Limited v. HSBC PI Holdings (Mauritius) Limited, 2021-4 SCC 713 –
“Moreover, the judgment, order or decree passed in previous civil proceedings, if relevant, as provided under Sections 40 and 42 or other provisions of the Evidence Act then in each case the court has to decide to what extent it is binding or conclusive with regard to the matters decided therein. In each and every case the first question which would require consideration is, whether the judgment, order or decree is relevant; if relevant, its effect. This would depend upon the facts of each case.”
Judgment of a Court is relevant if only conditions u/s 40 to 43 are satisfied
The position of law is laid down in K.G. Premshanker v. Inspector of Police, (2002) 8 SCC 87: AIR 2002 SC 3372, as under:
“30. What emerges from the aforesaid discussion is –
(1) the previous judgment which is final can be relied upon as provided under Sections 40 to 43 of the Evidence Act;
(2) in civil suits between the same parties, principle of res-judicata may apply;
(3) in a criminal case, Section 300 Cr.P.C. makes provision that once a person is convicted or acquitted, he may not be tried again for the same offence if the conditions mentioned therein are satisfied;
(4) if the criminal case and the civil proceedings are for the same cause, judgment of the civil Court would be relevant if conditions of any of the Sections 40 to 43 are satisfied, but it cannot be said that the same would be conclusive except as provided in Section 41. Section 41 provides which judgment would be conclusive proof of what is stated therein.”
Court has to Decide – To what extent previous Judgment is Binding
K.G. Premshanker v. Inspector of Police continued as under:
“31. Further, the judgment, order or decree passed in a previous civil proceeding, if relevant, as provided under Sections 40 and 42 or other provisions of the Evidence Act then in each case, Court has to decide to what extent it is binding or conclusive with regard to the matter(s) decided therein.
Take for illustration, in a case of alleged trespass by ‘A’ on ‘B’s property, ‘B’ filed a suit fordeclaration of its title and to recover possession from ‘A’ and suit is decreed. Thereafter, in a criminal prosecution by ‘B’ against ‘A’ for trespass, judgment passed between the parties in civil proceedings would be relevant and Court may hold that it conclusively establishes the title as well as possession of ‘B’ over the property. In such case, ‘A’ may be convicted for trespass. The illustration to Section 42** which is quoted above makes the position clear.
Hence, in each and every case, first question which would require consideration is whether judgment, order or decree is relevant?, if relevant its effect. It may be relevant for a limited purpose, such as, motive or as a fact in issue. This would depend upon facts of each case.
32. In the present case, the decision rendered by the Constitution Bench in M.S. Sheriff case would be binding, wherein it has been specifically held that no hard-and-fast rule can be laid down and that possibility of conflicting decision in civil and criminal courts is not a relevant consideration. The law envisages “such an eventuality when it expressly refrains from making the decision of one court binding on the other, or even relevant, except for limited purpose such as sentence or damages”.
**Note: Sec. 42 Evidence Act pertains to public right. Illustration also makes it clear. It is obvious that the Apex Court referred to it only to show that the earlier decision may be relevant – to show “motive or as a fact in issue” (under Section 43).
That is, where the prosecution case is that ‘the civil court decree made the accused increase enmity towards the victim’, the previous civil court decision may be relevant under “some other provision” stated in Section 43 (as “motive or as a fact in issue“).
Sec. 42 Evidence Act reads as under:
“42. Relevancy and effect of judgments, orders or decrees, other than those mentioned in section 41. Judgments, orders or decrees other than those mentioned in section 41, are relevant if they relate to matters of a public nature relevant to the enquiry, but such judgments, orders or decrees are not conclusive proof of that which they state.
Illustration:
A sues B for trespass on his land. B alleges the existence of a public right of way over the land, which A denies.
The existence of a decree in favour of the defendant, in a suit by A against C for a trespass on the same land in which C alleged the existence of the same right of way, is relevant, but it is not conclusive proof that the right of way exists.”
Case to be determined on Evidence, not on Previous Judgment
In Seth Ramdayal Jat v. Laxmi Prasad, AIR 2009 SC 2463, 2009 (11) SCC 545, it is pointed out that the observation in Shanti Kumar Panda v. Shakuntala Devi [(2004) 1 SCC 438] that a judgment of a civil court shall be binding on the criminal court (but the converse is not true) may not be entirely correct being in conflict with a Three-Judge Bench decision of the Apex Court in K.G. Premshanker vs. Inspector of Police and anr. [(2002) 8 SCC 87]. It is observed in Seth Ramdayal Jat v. Laxmi Prasad as under:
“Mr. Sharma also relies upon a decision of this Court in Shanti Kumar Panda v. Shakuntala Devi [(2004) 1 SCC 438] to contend that a judgment of a civil court shall be binding on the criminal court but the converse is not true. Therein it was held:
“(3) A decision by a criminal court does not bind the civil court while a decision by the civil court binds the criminal court. An order passed by the Executive Magistrate in proceedings under Sections 145/146 of the Code is an order by a criminal court and that too based on a summary enquiry. The order is entitled to respect and wait before the competent court at the interlocutory stage. At the stage of final adjudication of rights, which would be on the evidence adduced before the court, the order of the Magistrate is only one out of several pieces of evidence.”
With respect, the ratio laid down therein may not be entirely correct being in conflict with a Three-Judge Bench decision of this Court in K.G. Premshanker vs. Inspector of Police and anr. [(2002) 8 SCC 87].”
A judgment in rem (Section 43) is conclusive in criminal and civil proceedings
In Syed Askari Hadi Ali Augustine Imam v. State (Delhi Admn.), 2009- 5 SCC 528, it is held as under:
“Rendition of a final judgment which would be binding on the whole world being conclusive in nature shall take a long time. As and when a judgment is rendered in one proceeding subject to the admissibility thereof keeping in view Section 43 of the Evidence Act may be produced in another proceeding. It is, however, beyond any cavil that a judgment rendered by a probate court is a judgment in rem. It is binding on all courts and authorities. Being a judgment in rem it will have effect over other judgments. A judgment in rem indisputably is conclusive in a criminal as well as in a civil proceeding.” (Surinder Kumar v. Gian Chand, AIR 1957 SC 875, is relied on)
Civil or Criminal proceedings be stayed – Depends upon each case
In M.S. Sheriff v. State of Madras, AIR 1954 SC 397, the Constitution Bench considered whether a civil suit or a criminal case should be stayed in the event both are pending; and it was opined that the criminal matter should be given precedence.
In P. Swaroopa Rani v. M. Hari Narayana @ Hari Babu, AIR 2008 SC 1884, it was held as under:
“13. It is, however, well-settled that in a given case, civil proceedings and criminal proceedings can proceed simultaneously. Whether civil proceedings or criminal proceedings shall be stayed depends upon the fact and circumstances of each case.” (Quoted in: Syed Askari Hadi Ali Augustine Imam v. State (Delhi Admn.), 2009- 5 SCC 528)
No Statutory Provision nor any Legal Principle – Findings in one treated as Final
Standards of proof required in the two proceedings are entirely different
In Iqbal Singh Marwah v. Meenakshi Marwah (R.C.Lahoti CJI, B.N. Agrawal, Hotoi Khetoho Sema, G.P. Mathur & P.K. Balasubramanyan, JJ.), 2005-4 SCC 370, (relying inter alia on M.S. Sheriff v. State of Madras, AIR 1954 SC 397) it was held as under:
“32. Coming to the last contention that an effort should be made to avoid conflict of findings between the civil and criminal courts, it is necessary to point out that the standards of proof required in the two proceedings are entirely different. Civil cases are decided on the basis of preponderance of evidence while in a criminal case the entire burden lies on the prosecution and proof beyond reasonable doubt has to be given. There is neither any statutory provision nor any legal principle that the findings recorded in one proceeding may be treated as final or binding in the other, as both the cases have to be decided on the basis of the evidence adduced therein.”
End Notes:
Sec. 11 Civil Procedure Code, 1908, reads as under:
Res Judicata-No Court shall try any suit or issue in which the matter directly and substantially in issue has been directly and substantially in issue in a former suit between the same parties, or between parties under whom they or any of them claim, litigating under the same title, in a Court competent to try such subsequent suit or the suit in which such issue has been subsequently raised, and has been heard and finally decided by such Court.
Explanation I– The expression “former suit” shall denote a suit which has been decided prior to the suit in question whether or not it was instituted prior thereto.
Explanation II.- For the purposes of this section, the competence of a Court shall be determined irrespective of any provisions as to a right of appeal from the decision of such Court.
Explanation III.- The matter above referred to must in the former suit have been alleged by one party and either denied or admitted, expressly or impliedly, by the other.
Explanation IV.- Any matter which might and ought to have been made ground of defence or attack in such former suit shall be deemed to have been a matter directly and substantially in issue in such suit.
Explanation V.- Any relief claimed in the plaint, which is not expressly granted by the decree, shall, for the purposes of this section, be deemed to have been refused.
Explanation VI– Where persons litigate bona fide in respect of public right or of a private right claimed in common for themselves and others, all persons interested in such right shall, for the purposes of this section, be deemed to claim under the persons so litigating.
Explanation VII.- The provisions of this section shall apply to a proceeding for the execution of a decree and reference in this section to any suit, issue or former suit shall be construed as references, respectively, to proceedings for the execution of the decree, question arising in such proceeding and a former proceeding for the execution of that decree.
Explanation VIII.-An issue heard and finally decided by a Court of limited jurisdiction, competent to decide such issue, shall operate as res judicata in as subsequent suit, notwithstanding that such Court of limited jurisdiction was not competent to try such subsequent suit or the suit in which such issue has been subsequently raised.
All Lands Belonged to one Janmi or Other; Sircar was the largest Janmi
Effect of Royal Proclamation, 1899 – Sircar became Janmi of Poonjar Lands
Further Development – Pandaravaka and Janmam Lands
Pandaravaka Lands Nature- State landlord; right in Ryot derived from Sirkar
Pattom Proclamation of 1040 – converted Tenants into Permanent Leases
Edavagai Rights Acquisition Act, 1955
Kannan Devan Hills (Resumption of Lands) Act, 1971 & Land History
Land Belonged to Chief of Poonjar was Transferred to Travancore
Poonjar Raja was a Janmi
Royal proclamation dated 24.09.1899 – the Sircar became Janmi
All Lands Belonged to one Janmi or Other
Kannan Devan Hills (Resumption of Lands) Act, 1971
‘Pandaravaka lands’ and ‘Janmam lands’.
Kanan Devan Lands were ‘Pandaravaka lands’
Grant and the Right of Ownership
Grant – Land Continues to be Government lands
‘Jenmom Lands’ & Freehold Interest in Travancore
The lands granted by Erstwhile (Travancore or Cochin) Sircar continued to be lands belonging to the Sircar, and the grantees did not acquire absolute proprietary rights. It is made clear in the following decisions.
Kannan Devan Hills Produce v. The State Of Kerala, AIR 1972 SC 2301
Kenan Devan Hills Concession (ongrantdeeds) fall within the expression “Janmam right” vested with Sircar. This land is dealt with under this heading, i.e. Pandaravaka Lands, i.e. lands belonging to the Sircar.
State of Kerala v. Kanan Devan Hills Produce Co. Ltd., (1991) 2 SCC 272
Company did not acquire absolute proprietary rights over the Concession Area (on grant deeds)
Padmanabharu Govindaru v. The State of Kerala, AIR 1963 Ker 86
A coffee planter who holds lands under a grant is not a Jenmi.
Majeed v. State of Kerala,(2006) 1 KerLT 19
Petitionercontended – ‘grant’ was free hold property. The court did not accept.
Thomas Philip v. Forest Range Officer, 2021-2 KerLT 578
Arguement that deed of ‘grant’ ‘for coffee or tea cultivation’ was not a grant, but a title deedwas not accepted
All Lands Belonged to one Janmi or Other; Sircar was the largest Janmi
The Supreme Court, in Kannan Devan Hills Produce v. The State Of Kerala, AIR 1972 SC 2301 (Sikri (Cj), Shelat, A.N. Ray, I.D. Dua, , H.R. Khanna, JJ.) held that Kenan Devan Hills Concession (ongrantdeeds) fall within the expression “Janmam right” vested with Sircar. This land is dealt with under this heading, i.e. Pandaravaka Lands, i.e. lands belonging to the Sircar.
Points came for consideration were the following:
15. If any person wants land in Travancore, he must obtain it from, and hold it of, some one of the body of Janmis, i.e. from the Sircar, which is the Chief Janmi, or from some other Janmi.” (Sir T. Madava Row’s Memo.) In Mr. Kunhiraman Nair’s Memo on Land -Tenures it is stated:
“At present the Sircar is the largest Janmi in the State. The janmam lands of all the petty Rajas subdued in the last few centuries and of several Madampies, have lapsed to the State, and other causes such as escheat & c, have tended, to increase the extent of the Janmam possession of the Sircar. About three- fourths of the whole land in the State belong on Janmam to the Sircar, the remaining one-fourth being distributed among the classes mentioned in para 32 It is interesting to note that in certain parts of Madras Janmam rights existed ‘and the ‘Government lands were called government janman lands.
(See Government Order No. 1902 Revenue dated November 1, 1926) Para 3 of that order deals with the janmam estates and reads as under :
“3. JANMABHOGAM.-Paragraph 11 of ‘the Board’s Proceedings-“Lands have neither to been des- cribed as-
Government Janmam, i.e. lands which are held directly from the Government and on which taram assessment and janmabhogam are paid to the Government and
private janmam, i.e. lands which are held directly from the Government and on which taram assessment but not janmabhogam is paid to the Government.”
In Kannan Devan Hills Produce Company Ltd. v. State of Kerala, 1972-2 SCC 218, it is also found as under:
“12. Janmam lands are precisely what are in Europe called allodial properties as contra-distinguished from feudal.
13. It must be clear from what has been stated that all the lands in the Travancore belonged to a body of janmis. There are no lands that do not belong to some janmi or other.
14. Be it remembered that the Sircar itself is one of these janmis, it having come to possess janmam lands by gift, purchase, escheat, confiscation and other ways. It is only a great janmi, great in the sense that its janmam property is extensive.”
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This Article is Included in the Printed Book: Saji Koduvath on Kerala Land History & KLR Act Pages – 294: Rs. 850 Gpay/Whatapp/Phone No. 91-9387560056
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Effect of Royal Proclamation, 1899 – Sircar became the Janmi
In Kannan Devan Hills Produce Company Ltd. v. State of Kerala, 1972-2 SCC 218, our Apex Court concluded that the effect of the Royal Proclamation of 1899 (regarding the land leased by Poonjar Chief to Munro) must be that the Sircar became the Janmi. It was observed as under:
“It seems to us that on the material placed before us it is difficult to resist the conclusion that the lands in dispute fall within the expression “Janmam right”. If, as stated in Travancore Land Revenue Manual Volume IV, there are no lands that do not belong to a Janmi, and the Sircar becomes a janmi by gift, escheat, confiscation or otherwise, the effect of the Royal Proclamation of 1899 must be that the Sircar became the Janmi.”
Note: Poonjar Chief or Raja had subjugated himself to Travancore Sircar or Maharaja.
Pandaravaka and Janmam Lands Further Development
After making a definite finding that the land with Poonjar Raja was a janmam land and it became vested with Travancore Sircar, an alternative argument was considered by the Apex Court in Kannan Devan Hills Produce Company Ltd. v. State of Kerala, 1972-2 SCC 218, as under:
“Assuming that the lands do not fall with ‘Janmam Right’, we may now deal with the second point:
In the Travancore Land Revenue Manual, Vol. III, Revised Edition, 1936, Registered Lands are described as follows
“Registered lands are lands registered in the revenue accounts as held by or granted to individuals, families, corporations or institutions, and comprise all the different kinds of tenures bearing either the full assessment or wholly or partially free of assessment. These lands comprise not only the areas brought under cadastral survey but include also coffee, tea, rubber and other estates, cardamom gardens and other special grants outside the limits of cadastral survey.”
The Registered Lands include inter alia, (a) Pandaravaka lands and (b) Janmam lands. Regarding Pandaravaka lands it is stated :
“Pandaravaka or Sircar lands are, lands of which the State is the landlord or the Jenmi and whatever rights which vest in the ryots are derived from the Sircar.”
In the Travancore Land Revenue Manual, Vol. III, Registered Lands are described as under.
“Registered lands are lands registered in the revenue accounts as held by or granted to individuals, families, corporations or institutions, and comprise all the different kinds of tenures bearing either the full assessment or wholly or partially free of assessment. …” (Quoted in: Kannan Devan Hills Produce v. The State of Kerala, AIR 1972 SC 2301)
Section 4(1) of the Kerala Grants and Leases (Modification of Rights) Act, 1980, reads as under:
“4. Grantees and lessees to pay current seigniorage rates – Notwithstanding anything contained in any law for the time being in force, or in any grant, lease deed, contract or agreement, or in any judgment, decree or order of any court, with effect on and from the commencement of this Act, every grantee and every lessee shall be bound to pay to the Government the seigniorage rates in force for the time being for the timber cut and removed from any land held by him under the grant or lease.”
A Janmam Right is FREEHOLD interest described as “Estate” in Constitution
“In common law jurisdictions such as England and Wales, Australia, Canada, and Ireland, a freehold is the common mode of ownership of real property, or land, and all immovable structures attached to such land. It is in contrast to a leasehold, in which the property reverts to the owner of the land after the lease period expires or otherwise lawfully terminates” (Wikipedia). It doesn’t mean that such lands are free from payment of tax or revenue to the Government.
Travancore State Manual Vol. III published by the Travancore Government in 1940, says as to the class of jenmom land which were entirely freehold and exempted from payment of any kind of tax to Government under any circumstances. These were the special properties given by the Ruler to certain individuals considering their valid services or to certain institutions including temples.
‘Jenmom’ was the proprietary interest of a landlord in lands (Kavalappara Kottarathil Kochuni v. States of Madras and Kerala, AIR 1960 SC 1080). Subba Rao, J., observed as under:
“Under the definition, any janmam right in Kerala is an “estate”. A janmam right is the freehold interest in a property situated in Kerala.
Moor in his “Malabar Law and Custom” describes it as a hereditary proprietorship. A janmam interest may, therefore, be described as “proprietary interest of a landlord in lands” and such a janmam right is described as “estate” in the Constitution. Substituting “janmam right” in place of “estate” in cl. 2 (b), the “rights” in Art. 31 A (1) (a) will include the rights of a proprietor and subordinate tenure-holders in respect of a janmam right.
It follows that the extinguishment or modification of a right refers to the rights of a proprietor or a subordinate tenure-holder in the janmam right. A proprietor called the janmi or his subordinate tenure-holder has certain defined rights in janmam right”. Land-tenures in Malabar are established by precedents or immemorial usage. Janmam right is a freehold interest in property and the landlord is called “janmi”. He can create many subordinate interests or tenures therein.” (Quoted in: Kannan Devan Hills Produce v. The State of Kerala, AIR 1972 SC 2301)
In the Jenmi and Kudiyan Regulation, V of 1071, Jenmom land is defined as-
“land (other than Pandaravaka, Sripandaravaka, Kandukrishi or Sircar Devaswom land, recognised as such in the Sircar accounts) which is either entirely exempt from Government tax or if assessed to public revenue, is subject to Rajabhogam only, and the occupancy right in; which is created for a money consideration (Kanom) and is also subject to the payment of Michavaram or customary dues and the payment of the renewal fees.”
The Travancore Jenmi and Kudiyan Act, V of 1071, defines ‘Jenmi’ as under:
” ‘Jenmi’ means a person in whom the proprietary right over Jenmom lands is vested and includes, in the case of Devaswoms owning Jenmom lands, the managing Trustee or Trustees of the Institution for the time being.”
In Padmanabharu Govindaru v. The State of Kerala, AIR 1963 Ker 86, it was observed with respect to the ‘Janmi’ as under:
“What the definition stresses is the proprietary right in the land. We may in this connection extract a passage from the Memorandum of Mr. Kunhiraman Nair, one of the Judges of the High Court of Travancore, about 70 years ago:
“The term ‘Jenmom’ was originally used by the Brahmins exclusively to denote their allodial proprietorship and is still used in that sense in courts and cutcherries in Travancore, though in other parts of Malayalam and in popular parlance in Travancore, the term is now universally employed to denote the full proprietary right in the land of any class of people”.
Padmanabharu Govindaru v. The State of Kerala, further observed as under:
“18. Coming to the second category of lands, viz., Jenmom lands, the Jenmies have full proprietary rights in the soil. The origin of the title of the jenmies is shrouded in obscurity but the development of this branch of land tenure was on the assumption that Parasurama who conquered the land of Kerala or, as mythology would put it, reclaimed it from the sea, gave it as gift to Malayala Brahmins or Nambudiries. The rest of the people cultivated the lands under the Jenmies. In course of time, the Jenmies endowed certain temples built by them with lands and thus the Devaswom lands came into existence. These were similar in nature and incidents to Jenmom lands. These lands were enjoyed free of tax, the State imposing a light assessment only when the Jenmies alienated the land to others.
In the Travancore Land Revenue Manual Volume 4 it is, stated
“9. A Jamni differs from such landlords in that he does not derive his title to lands from the Sircar & Co. His title to the Janmam lands is inherent. …….. (Quoted in Kannan Devan Hills Produce Company Ltd. v. State of Kerala, 1972-2 SCC 218)
Nature of Pandaravaka Lands – State is landlord; rights in Ryots only derived from Sirkar
The nature of Pandaravaka lands is explained in the Travancore Land Revenue Manual (Revised Edition), Volume Ill, Part I, page 6, as follows:
“Pandaravaka or Sirkar lands are lands of which the State is the landlord or the Jenmi and whatever rights which vest in the ryots are derived from the Sirkar. They form the major portion of the registered lands.” (Quoted in -Padmanabharu Govindaru v. The State of Kerala, AIR 1963 Ker 86)
Pattom proclamation of 1040 –converted Tenants into Permanent Leases
Before 1040 M. E. the holders of Pandaravaka lands were mere tenants-at-will as the tenements created by the Sirkar till then was resumable and were of the nature of temporary leases just like tenements created by private jenmis. The pattom proclamation of 1040 converted them into permanent leases and conferred on the holders thereof permanent rights of occupancy, heritable and alienable.” (Quoted in -Padmanabharu Govindaru v. The State of Kerala, AIR 1963 Ker 86)
Edavagas:
The lands in the following areas were recognized in Sirkar Accounts as Edavagas:-
1. Sreepadam.
It comprised in 7 pakuthies in Chirayinkil Taluk.
These villages were originally hereditary domain of Ranis Attangal. Subsequently the sovereignty was transferred to Travancore Maha Raja.
Rent was collected from this land and accounted as public revenue.
2. Kilimanur.
It comprised in 2 pakuthies in Chirayinkil Taluk.
This land was granted to Kilimanur Koil Thampurans.
The land revenue was assigned to the family of Koil Thampurans.
3. Edappally.
It comprised in Edappally North and Edappally South Pakuthies in Alangad Taluk; Thrukkunnappuzha in Karthikappally Taluk; Kallooppara in Thiruvalla Taluk; and Vazhakkulam in Kunnathunad Taluk.
The land revenue was assigned to the Chief of the Edappally Edavaga.
4. Vanjipuzha
The administration and collection of rent from the tenants in this Edavaga was left to be settled by the Chief in 3 Pakuthies in Peermedu Taluk.
5. Poonjar
It comprised in Poonjar Pakuthi in Peermedu Taluk.
This Edavaga was the property of Poonjar Rajas.
They received grants from early sovereigns of Travancore.
According to the tradition, the Edavaga was purchased by the Rajas from Thekkumkur and from annexation of Thekkumkur by Travancore, the Poonjar Chief became the vassal of Travancore.
Edavagais
In Harska Turst v. Stateof Kerala, ILR 1960 Ker 345, 1960 Ker LT 378, it is observed as under:
“ The Edavagais were petty kingdoms or principalities which remained independent or quasi independent until the consolidation of Travancore in the 18th century. They were outside the State Ayacut and paid no land tax. The Chiefs, however, in exercise of their ancient sovereign powers, collected Melvaram or Melvara Rajgbhogam from the jenmis inside the Edavagais (See: 1945 T. L. R. 581 and 728).”
In Harrisons Malayalam Limited v. State of Kerala, 2018-2 KLT 369, it is observed as under:
“The Edavagai Act intended acquisition and extinguishing of all Edavagai rights over the Edavagais of Edapally, Kilimanoor, Poonjar and Vanjipuzha; then vested respectively in the Edapally Swaroopam, Kilimanoor Kottaram, Poonjar Koickal and Vanjipuzha Madom. Obviously Edavagai Chiefs were the Vassals of the Travancore-Maharaja and had rights over the lands within their jurisdiction as jenmies and otherwise, for collection of rent.”
Edavagai Rights Acquisition Act, 1955
Harska Turst v. State of Kerala, ILR 1960 Ker 345, 1960 Ker LT 378, observed as under:
“8. The rights of the Poonjar Chief were acquired by the State under the Edavagai Rights Acquisition Act, 1955, which came into force on 1-1-1956. Edavagai rights is defined in S.2(5) of that Act as follows:
Edavagai rights means all the rights and privileges vested in
the Edapally Swaroopam,
the Kilimanoor Kottaram,
the Poonjar Koickal and
the Vanjipuzha Matom
relating to heir respective Edavagais and includes in the case of the Poonjar Koickal the right to receive Melvaram in respect of lands situate within the Edavagai of Poonjar.
9. Sub-s.(1) of S.3 of the Act provided that on and from its commencement, the privileges of the Edapally Swaroopam and the Poonjar Koickal relating to Excise Revenues of the Edavagais of Edapally and Poonjar shall stand extinguished, and sub-s.(2):
“All the Edavagai rights of the Edapally Swaroopam and the Poonjar Koickal other than those mentioned in sub-section [1] and all the Edavagai rights of the Kilimanoor Kottaram and the Vanjipuzha Matom over their respective Edavagais, and all rights, title and interests vested in the Chiefs, in respect of waste lands or thanathu lands which have been assigned by them on Kuthagapattom or other like demises,
and all rights, title and interests vested in the Chiefs, in respect of waste lands or thanathu lands which have not been so assigned by them are herebyacquired by Government, and all such rights, title and interests shall vest in Government free of all encumbrances.”
Sub-s.(2) of S.4 fixed the compensation payable by the Government to the Edavagais for the acquisition of the rights, title, and interests mentioned in sub-s.(2) of S.3 at the amounts as specified in the Schedule, being 8 1/3 times the annual income of the respective Edavagais less five per cent for collection charges. It is clear from these provisions that what was acquired was the Chiefs rights, and it is difficult to understand how the acquisition of those rights can possibly affect the right of the State to tax the lands concerned.
10. The right to basic tax is in no sense a manifestation of the Chiefs right to Melvaram. It is a right founded on the Constitution and not on the acquisition of the rights of the Edavagais.”
Edavagai Rights Acquisition Act, did Not change Character of Holdings
Lease holdings of the Edavagais continued as Lease holdings with liability to pay Tax.
In Harrisons Malayalam Limited v. State of Kerala, 2018-2 KLT 369, it is pointed out-The Edavagai Rights Acquisition Act, 1955 did not change the character of the holdings and it only interfered with the right, title and interest of the respective Edavagais; they made made to vest with the Government. The effect was that the liability of the tenants to pay rent or other levies to the Edavagais stood altered as liability to tax imposed by the Government.
The 1955 Act is analysed in Harrisons Malayalam Limited v. State of Kerala, as under:
“There was also a saving clause in Section 11 which exempted from vesting, those lands held by the Chiefs as a Jenmy or as a pattadar under the Government and those held by the families, already settled and assessed, as also those lands in the direct possession of the Chiefs and any of the members of the respective families.”
Then it is observed by the High Court of Kerala as under:
“Hence land existing on a lease from either of the Edavagais or as freeholdon valid purchase made, continues in the possession and ownership of the land holder/lessee and the liability to payment of rent or other levies to the Edavagais would stand altered as liability to tax imposed by the Government. This does not change the character of the holdings and only interferes with the right, title and interest of the respective Edavagais; which stands vested with the Government.”
It was pointed out-
“The ‘Edavagai Rights’ is defined under sub-section (5), as the rights and privileges which vested in the families and ‘Chief’ was defined under sub-section (6) as the senior male member of the respective families, in whom the management of the family is vested.”
“The right, title and interest within the respective Edavagais, existing in favour of the families and the Chiefs, by the enactment, stood vested in the Government, free of all encumbrances.”
Note: Here the High Court of Kerala (in Harrisons Malayalam Limited v. State of Kerala, 2018-2 KLT 369) did not consider the effect of grant.
Kannan Devan Hills (Resumption of Lands) Act, 1971 & Land History
The Kannan Devan Hills (Resumption of Lands) Act, 1971 was enacted for the resumption of Kannan Devan lands, other than plantations in Kannan Devan Hills Village in Kottayam District and for the distribution of such lands for cultivation and purposes ancillary thereto. (Kottayam District Koottu Krishi Karshakasangam v. Stateof Kerala, 2015)
Constitution Bench of our Apex Court, in Kannan Devan Hills Produce Company Ltd. v. State of Kerala, 1972-2 SCC 218, upheld the Kannan Devan Hills (Resumption of Lands) Act.
Land Belonged to Chief of Poonjar was Transferred to Travancore
The Chief of Poonjar (H.H. the Maharaja – as mentioned in Kannan Devan Hills Produce Company Ltd. v. State of Kerala, 1972-2 SCC 218, Para 11) granted a lease for coffee cultivation (First Poonjat Concession) in 1877 without limit of time to late J.D. Munro of a tract of land known as Anchunad and Kannan Devan Hills. The chief was the Janmam holder (proprietary interest of a landlord in lands – Kannan Devan Hills Produce Company Ltd. v. State of Kerala, 1972-2 SCC 218, Para 11.
Agreement dated 18.09.1899 was entered into between Rohini Thirunal Kerala Varma Raja, the then Chief of Poonjar Koyikkal, and the Travancore Government, under which the ownership of the land described in the First Poonjat Concession had been transferred to the Government of Travancore.(Kottayam District Koottu Krishi Karshakasangam v. Stateof Kerala, 2015)
Poonjar Raja was a Janmi
Our Apex Court in Kannan Devan Hills Produce Company Ltd. v. State of Kerala, 1972-2 SCC 218, observed that the Poonjar Raja was a Janmi when the First Concession was granted and the whole lands have fallen within the expression ‘Janmam right’.
On 2.8.1886, the agreement called the Second Pooniat Concession was entered into modifying the previous deed of ratification. By this time a company called the North Travancore Land Planting and Agricultural Society, Ltd. had acquired the rights in the said land.
The Poonjar Chief surrendered certain rights, to Travancore Sircar, which he had been exercising over the tract known as Anjanad and Kannan Devan Hills. The Apex Court, in Kannan Devan Hills Produce Company Ltd. v. State of Kerala, 1972-2 SCC 218, considered the effect of this surrender, with reference of its previous judgment in Kavalappara Kottarathil Kochuni v. State of Madras (1960 (3) SCR 887) and observed, on the materials placed before the Court, that it was difficult to resist the conclusion that the lands in dispute fall within the expression ‘Janmam right’.
But the Royal Proclamation dated 24.9.1899 changed the situation.
Royal proclamation dated 24.09.1899 – the Sircar became Janmi
By a Royal proclamation dated 24.09.1899, the rights of the Poonjar Edavagai over the said tracts became vested in the Government of Travancore. The persons in possession of such lands were treated only as lessees under the Government. Government of Kerala, successor of the former Government of Travancore, was vested with the right, title and interest of the former Government.
As already explained, while perusing the nature of ‘janmam right’ it was held by our Apex Court in Kavalappara Kottarathil Kochuni v. State of Madras, 1960-3 S.C.R. 887, Subba Rao, J., observed:
(i) As per the definition in Royal proclamation, any janmam right in Kerala is an “estate”.
(ii) A janmam right is thefreehold interest in a property situated in Kerala (with liability to pay tax).
(iii) Moor in his “Malabar Law and Custom” describes it as a hereditary proprietorship.
(iv) A janmam interest may, therefore, be described as “proprietary interest of a landlord in lands“, and
(v) Such a janmam right is described as “estate” in the Constitution.” (Quoted in Kannan Devan Hills Produce Company Ltd. v. State of Kerala, 1972-2 SCC 218)
All Lands Belonged to one Janmi or Other
As already stated, in Kannan Devan Hills Produce Company Ltd. v. State of Kerala, 1972-2 SCC 218, it is observed as under:
“13. It must be clear from what has been stated that all the lands in the Travancore belonged to a body of janmis. There are no lands that do not belong to some janmi or other.
14. Be it remembered that the Sircar itself is one of these janmis, it having come to possess janmam lands by gift, purchase, escheat, confiscation and other ways. It is only a great janmi, great in the sense that its janmam property is extensive.”
Kannan Devan Hills (Resumption of Lands) Act, 1971
Later the Kerala Government found that a large extent of agricultural lands in Kannan Devan Hills Village had not been converted into plantations and such lands are not required for the purpose of existing plantations. Accordingly, the Government decided to resume such lands for distribution for cultivation and purposes ancillary thereto. Consequent to this, Kannan Devan Hills (Resumption of Lands) Act, 1971 was enacted. (Kottayam District Koottu Krishi Karshakasangam v. Stateof Kerala, 2015)
Kannan Devan Hills Produce v. The State of Kerala, AIR 1972 SC 2301
The Supreme Court, in Kannan Devan Hills Produce v. The State Of Kerala, AIR 1972 SC 2301 (Sikri (Cj), Shelat, A.N. Ray, I.D. Dua, , H.R. Khanna, JJ.) considered –
Whether the Kannan Devan Hills (Resumption of Lands) Act, 1971 was protected from challenge under Art. 31A of the Constitution. That is, whether these lands fall within expression ‘Janmam right’ or “estate” in art. 31A of the Constitution.
If the lands acquired were an “estate”, or with ‘Janmam right’ owned by the Company, the land reform enactment did not have stood valid. (Note: Kesavananda Bharathi Case came in 1973.)
According to the petitioner Company, ‘it has at all times been holding, cultivating, enjoying and dealing with the Concession Land as the absolute, owner thereof’.
The position taken by the State was –
that the petitioner Company was not an absolute owner, but only a lessee under the Government, especially since the 1899 Proclamation issued by H.H. the Maharaja.
that the petitioner’s predecessor-in-title was John Danial Munro, who obtained, the first Pooniat Concession from Punjar Valiya Raja, on July 11, 1877. This Concession recited that an, application was made for the grant of the above property to the Raja for coffee cultivation.
It was further stipulated in the Concession that
“you shall clear and remove the jungles, and reclaim the waste lands within the said boundaries, and cultivate them with coffee up to the year 1058 and from the year 1059, pay our rent collector a yearly rent at the rate of 3,000 British Rupees.”
H.H. the Maharaja executed a deed of ratification, dated November 28, 1878, by which the Government ratified the First Pooniat Concession dated July 11, 1877.
This deed of ratification laid down – the Government permitted the grantee to hold the land.
Clause 5 of the Deed of Ratification, is important. It pro- vides, inter alia, that
“the grantee can appropriate to his own use within the limits of the grant all timber except the following and such as may hereafter be reserved namely, Teak, Cole Teak, Blackwood, Ebony, Karoonthaly, Sandalwood; should he carry any timber without the limits of the grant it will be subject to the payment of Kooteekanom, or Customs Duty……….
The eleventh clause reads – “The land granted shall be held in perpetuity as heritable or transferable property, but every case of transfer of the grant by the grantee shall be immediately made known to the Sircar, who shall have the right of apportioning the tax, if a portion of the holding is transferred.”
The twelfth clause stipulates – “The discovery of useful mines and treasures within the limits of the grant shall be communicated to the Sircar, and the grantee shall in respect to such mines and treasures, abide by the decision of the Sircar.”
The sixteenth clause provides – “The grantee shall be bound to preserve the forest trees growing on the banks of the principal streams running through the tract to the extent of fifty yards in breadth on each side of the stream, the Underwood only being permitted to be cleared and coffee planted instead. Similarly he shall also be bound to preserve the, trees about the crest of the hill to the extent of a quarter of a mile on each side.”
A Royal Proclamation was made on September 24, 1899 provided that ‘Anjanad and Kannan Devan Hills is an integral portion of our territory and that the inhabitants of the said tract are ‘hereby informed and warned that they are not to pay any taxes, rents or dues, or make any other payment to the Poonjar Chief.
The Apex Court found the following:
The janmam rights (even if remained with the Poonjar Chief, H.H. the Maharaja became the janmi by the Royal proclamation of 1899.
The nature of ‘janmam right’ has been examined by this Court previously in Kavalappara Kottarathil Kochuni v. State of Madras [1960] 3 S.C.R. 887 Subba Rao, J., observed that janmam right in Kerala is an “estateand it is the freehold interest.
The Sircar itself is one of these janmisand it was the largest Janmi. It came to possess janmam lands by gift, purchase, escheat, confiscation and other ways
If any person wants land in Travancore, he must obtain it from, some one of the body of Janmis, i.e. from the Sircar, which is the Chief Janmi, or from some other Janmi.
The Apex Court held that it was difficult to resist the conclusion that the lands in dispute fall within the expression “Janmam right” vested with Sircar.
The Apex Court further found –
The Registered Lands included inter alia, (a) Pandaravaka lands and (b) Janmam lands.
Regarding Pandaravaka lands it is stated : “Pandaravaka or Sircar lands are, lands of which the State is the landlord or the Jenmi and whatever rights which vest in the ryots are derived from the Sircar.”
Kenan Devan Hills Concession is dealt with under this heading, i.e. Pandaravaka Lands.
It thus appears that the State grants like
Kanan Devan Hills Concession and
Ten Square Miles Concession, and
Munro Lands,
were treated under the heading ‘Pandaravaka Lands, i.e. lands belonging to the Sircar.
On these findings The Apex Court upheld the Kannan Devan Hills (Resumption of Lands) Act, 1971 and dismissed the challenge of the Company.
Position of jenmi
This definition is intended for the purposes of the Regulation, which regulates the relations between Janmis and their Kanapattom tenants. A Janmi has not only Kanapattom tenants but has other tenants as well holding on Adima Anubhogam, Thiruvulam and similar other tenures and the Regulation is not concerned with the latter class of tenants in whose case the ordinary law of landlord and tenant is applicable. Revenue law, on the other hand, makes no distinction between a Kanapattom tenant and a non Kanapattom tenant if he holds under a Janmi recognised in the revenue accounts.
Hence for revenue purposes, janmam lands were lands that were entered in the revenue accounts under the heads of Devaswomvaka, Brahmamaswomvaka and Madampimarvaka, i.e., to say a land to be classed as Janmom land should have been recognised as such in the revenue accounts. The mere circumstance that a land belongs to a janmi does not bring it under janmom tenure and conversely the mere fact that janmom land is absolutely transferred to a non janmi does not any the less detract from its original character. Janmom lands are allodial properties and the proprietary right in them is considered as inherent in the individual and not derived from the State. The Apex Court in Kannan Devan Hills Produce Company Ltd. v. State of Kerala, 1972-2 SCC 218, observed that, the State grants like Kannan Devan Hills Concession and Ten square Miles Concession and Munro Lands, were treated under the heading ‘Pandaravaka Lands’, i.e., lands belonging to the Sircar. (Kottayam District Koottu Krishi Karshakasangam v. Stateof Kerala, 2015)
Kerala Grants and Leases (Modification of Rights) Act, 1980
Kerala Grants and Leases (Modification of Rights) Act, 1980 was enacted with a view to modify the rights under grants and leases, for cultivation, made by the former States of Travancore and Cochin. The Act was made for the reason that such grants and leases brought about heavy loss to the Government and they resulted in huge un-earned profits to the grantees and lessees; and it was found necessary in the public interest that such undue profits to a few person were to be utilised for the common benefit of the general public. The Act required the Grantees and lessees to pay current seigniorage rates (for the trees cut by the grantees and leases) and rent to the Government. The Collector was authorised to revise assessment and rent.
Grant and the Right of Ownership
In Majeed v. State of Kerala,(2006) 1 KerLT 19, the State demanded seigniorage under Kerala Grants and Leases Modification of Rights Act, 1980. Petitioner was a person who purchased trees from Travancore Rubber and Tea Company Ltd. Disputes and questions arose in the light of of the Kerala Grants & Leases (Modification of Rights) Act, 1980. Admittedly there was originally a grant. The scope of ‘grant’ was disputed. The contention of the petitioner was that it was the free hold property. The court did not accept the argument.
The rejected contention was stated by the Court as – “The petitioner contends that the respondents have no authority to demand seigniorage in respect of the timber of the trees planted by the company, as the property in question granted in favour of the company is not a leasehold property, but a free hold property, as is revealed by the order of grant Exts. R2(i).”
Grant – Land Continues to be Government lands
During second half of the 19th century in erstwhile Kingdoms in South India gave very large extent of Government lands were on “grant” to various persons (mostly foreigners) or institutions for putting up plantation.
The Royal Proclamation made on 24.9.1899 recites as follows;
“Whereas we deem it expedient to clearly declare the position of this State in respect of the tract known as Anjanad and Kannan Devan Hills, we are pleased to declare as follows; (1) The tract known as Anjanad and Kannan Devan Hills is an integral portion of our territory and all rights over it belong to and vest in us.
(2) The inhabitants of the said tract and all others whom it may concern are hereby informed and warned that they are not to pay any taxes, rents or dues, or make any other payment to the Poonjar Chief or his representatives or to any person other than an officer of our Government authorised in this behalf, in respect of anything in, upon or connected with the said tract, with the exception, however, of a payment of rupee three thousand per annum from the successors in interests of the late Mr.J.D.Munro of London and Peermade now being paid to the said Chief in virtue of a Lease deed executed by the said Chief in favour of the said late Mr.J.D. Munro on the 11th July, 1877, and which we are pleased to permit the said Chief to continue to receive.
(3) The lands within the said tract will be dealt with by our Government in the same manner as lands in other parts of our territory with such modifications as the circumstances and conditions of the said tract may require and all taxes, rents and dues hitherto paid, and that may hereafter be imposed by our Government shall, with the exception of the sum of rupees three thousand aforesaid, be paid by the, occupants of lands within the said tract whose occupation has been or may be recognized or confirmed by our Government, and of such portions of the said tract as may from time to time hereafter, with the permission of our Government, be occupied, to the officers of our Government who may be authorised in this behalf.”
Landmark Enactments in Land Tenure Reforms that Culminated in KLR Act, 1963
Royal Pattom Proclamation of 1040(1865 AD) – Fist Gigantic Step
During the second half of the 19th century several Royal Proclamations were promulgated with a view to confer rights in the land to the tenants who were the real cultivators. Majority of the people were engaged in agriculture; but the lands belonged to Jenmies (Sircar, Brahmins or Devaswoms). The cultivators held the land under lease arrangement known as Pattom, Otti, Inam and Viruthi etc. One of the important Regulations came in the line of agrarian reforms was the Royal Proclamation of 1040 ME (1865 AD). It pertained to Pattom (lease) tenements created (by Sircar) on Sirkar lands known as Pandaravaka lands. It is exalted as the Magna Carta of peasants of Travancore it being led to conferring land to tillers, step by step.
Proclamation of 1040 (1865)– No Proprietary Rights; But, Permanency to Cultivators
Till 1040 ME (1865 AD), the agriculturists, who held the Pandaravaka lands under Pattom arrangement, were liable to be treated as mere tenants-at-will; the land being resumable resumable (by the Government) at any time, as they were in the nature of temporary leases just like tenements created by private jenmis.
The Pattom Proclamation of 1040 (1865) converted the pattom arrangement on pandaravaka lands into permanent leases and conferred on the holders thereof permanent rights of occupancy, heritable and alienable. Though the Proclamation of 1040 ME did not expressly confer full proprietary rights on tenants, it gave the tenants permanency in the Pandaravaka soil; and it recorded the fist gigantic step towards the land reforms in Travancore.
Royal Proclamation of 1061 (1886) Brings in Further Radical Changes
Paragraph 9 of the Proclamation of 1061 says, with reference to Royal Proclamation of the 21st Edavam 1040, as regards Pandarapattam lands, as under:
“these lands were originally the absolute property of Government, and the tenants were mere tenants-at-will; but, by the Royal Proclamation of the 21st Edavam 1040, Government generously waived all right to these lands, and declared them to be the private, hereitable, saleable property of the holders.”
Section 22 of the Settlement Proclamation of 1061 (1886) made radical changes in land tenure.
Those changes were:
(1) no debt shall be recognised as due to the holder;
(2) no interest shall be deducted from the Pattom on such debt;
(3) no reduction of debt or a corresponding enhancement of the Sirkar demand shall be made when such properties were transferred by sale.
The properties held on the tenures in question shall be recognised as so many favourably assessed lands or Inams and confirmed to the holders as such.
Clause 7 of Section 24 of the Proclamation provided as under:
“There shall be no further interference on the part of the Government with these free holds, except such as might be necessary for the punctual realization of the quit rent payable”.(Quoted in: Padmanabharu Govindaru v. The State of Kerala, AIR 1963 Ker 86.)
Jenmi & Kudiyan Act (1896) and Amendments – Made Kudiyan, Full Owner
‘Jenmam land’ is defined in the Jenmi and Kudiyan Regulation, V of 1071 (1896), as land (other than Pandaravaka, Sripandaravaka, Kandukrishi or Sircar Devaswom land, recognised as such in the Sircar accounts) which is either entirely exempt from Government tax or if assessed to public revenue, is subject to Rajabhogam only, and the occupancy right in which is created for a money consideration (Kanom) and is also subject to the payment of Michavaram or customary dues and the payment of the renewal fees.
This definition is intended for the purposes of the Regulation, which regulates the relations between Janmis and their Kanapattom tenants. A Janmi has not only Kanapattom tenants but has other tenants as well holding on Adima Anubhogam, Thiruvulam and similar other tenures and the Regulation is not concerned with the latter class of tenants in whose case the ordinary law of landlord and tenant is applicable. Revenue law, on the other hand, makes no distinction between a Kanapattom tenant and a non Kanapattom tenant if he holds under a Janmi recognised in the revenue accounts.
Before Travancore Jenmi and Kudiyan Act, V of 1071 (1896), lands were granted as Inams by the Sovereign to Devaswoms and Brahmin jenmies. (Sreekumaran Kesavan Namboori v. Gopalan Madhavan, 1956 KLT 256).
The Jenmi & Kudiyan Regulation of 1071 ME (1896) was passed to stop the injustices perpetrated on the Kudiyans (bond-servants). It was amended by the Amendment Regulation of 1108 ME. The report of the Committee which led to the Amendment Regulation of 1108 ME reads as under:
“6. The outstanding feature of the amendment is that it lays the ghost of the Jenmis’ ownership for ever. The Jenmi has been expropriated and reduced to the position of a mere rentier. Refined considerations in the interests of the reciprocal rights and obligations have all been swept away. The solution of the problem looks like the cutting of the Gordian knot and the process is rather rough and coarse by the side of the Regulation of 1071. The measure is eminently democratic. To some extent it is socialistic also. For, one of the aims of some schools of social reformers, is to make the labourer free by breaking down the relationship of master and servant and similar situations involving superiority and inferiority by means of legislative interference. Whatever it be, to all appearance the jenmi has received the knock-out-blow. Yet it may be asked whether he has not good reason to come back smiling. For what he is entitled to by way of michavaram, renewal fees and customary dues has been consolidated and spread out with the advantage that he is assured of the payment without any worry. The burden on the Kudiyan is clearly fixed and the door has been closed on the chance of his escape. It remains to be seen who is the better for the present amendment of the Regulation”. (Quoted in: Harrisons Malayalam Limited v. State of Kerala, 2018-2 KHC 719; 2018-2 KLT 369)
The changes introduced by the Amended Regulation reads as under:
“i. Jenmi is not the owner of the land hereafter, his right being confined to the receipt of Jenmikaram as fixed by the law;
ii. the Kudiyan is the full owner of the land subject only to the payment of the Jenmikaram to the Jenmi;
iii. Jenmikaram is to be regulated and controlled by the Settlement Pattamicham and not by the Kanappattam contract except till the next general Land Revenue Settlement and, that even, only subject to certain statutory limitations;
iv. no renewals are hereafter obligatory;
v. Jenmis’ dues may be fractioned out and paid annually and in money as prescribed by the Statute;
vi. the rate of interest on arrears of Jenmikaram has been reduced to nine per cent whether payable in kind or in money when collected by the Jenmy direct, or under the provisions of chapter III or otherwise through Court, and to six per cent when collected by the Government under the provisions of chapter IV;
vii. The period of limitation for recovery of arrears of Jenmikaram has been reduced from the former period of twelve years to a period of six years;
viii. Government have undertaken the collection of Jenmikaram and payment thereof over to the Jenmi;
ix. in the case of Government realising the Jenmikaram under the provisions of chapter IV only the land on which the Jenmikaram is a charge shall be sold for arrears of jenmikaram, though this restriction may not apply as regards the movables of the defaulter;
x. Section 45 enacts an equitable method of the distribution between Jenmi and Kudiyan of compensation money granted by the Sircar when the Government compulsorily acquire or purchase jenmom lands”.
Cochin Settlement Proclamation of 1080 (1905)
As shown above, the Sirkar or Pandaravaka tenure holders of the Kingdom of Cochin were conferred with fixity of tenure by the Settlement Proclamation of 1080 (1905).
The Settlement Proclamation of 1905 covered all lands in the State, including lands held under concessional tenures or as tax-free. The Rules made under the Act contained the procedure for the issue of title deeds in respect of lands held under such grants. As stated above, Clause 13 of the Settlement Proclamation provided that the holders of Pandaravaka Verumpattom lands would acquire ‘full rights to the soil of the lands‘ they held. Settlement Proclamation of Cochin of 1080 (1905) Clause 13 provided as under:
“At present holders of Pandaravaka Verumpattom lands do not possess any property in the soil. As we are convinced that proprietorship in soil will induce a cultivator to improve his land and thereby add to agricultural prosperity of the country, we hereby declare that our Verumpattom holders of lands shall, after the new settlement has been introduced, acquire full rights to the soil of the lands they hold and that their rights shall remain undisturbed so long as they regularly pay the State revenue, provided that the rights to metals and minerals, possessed by the State in all lands under whatever tenures they are held, are reserved to the State”.
The Settlement Proclamation of 1905 was expressly repealed by the Land Tax Act of 1955 of the united State of Travancore-Cochin; but this Act, as a whole, was struck down by the Supreme Court in AIR 1961 SC 552. In Kesavan Vadhyan Namboodri v. State of Kerala, AIR 1968 Ker 279, it was pointed out that this Proclamation of 1080 (1905) stood repealed by implication by the Land Tax Act of 1961.
Section 4 of the Cochin Verumpattomdars Act, 1118, reads as under:
“Notwithstanding any law, custom or contract to the contrary, every verumpattomdar shall have fixity of tenure in respect of his holding and shall not be evicted therefrom except as provided in Section 8 of this act.”
Section 4 concerned with the fixity of tenure, that is, fixity of the period of holding, possession or enjoyment of the land. The effect of such a mere conferment of fixity of tenure was not to continue the lease beyond the period specified therein, but to give to the person who continues to remain in possession of the land after the lease has come to an end the status of a statutory tenant. (Ittiravi Namboodiri Vs. Krishnankutty Menon AIR 1964 Ker 298. Dr. K. A. Dhairyawan V. J. R. Thakur, AIR 1958 SC 789, referred to.)
Travancore Jenmi and Kudiyan (Amendment) Act, 1935
‘Proceedings of the Travancore Sri Chitra State Council’ recorded the speech of Kayalam Paramesvaran Pillai (Additional Head Sircar Vakil) while moving the Travancore Jenmi and Kudiyan Regulation (Amendment) Bill, on 28th May 1935, as under:
“Sir, I beg to move that the Travancore Jenmi Kudiyan Regulation (Amendment) Bill, as passed by the Sri Mulam Assembly, be taken into consideration. I am sure that honourable members have carefully gone through the Bill and that it is not necessary for me to explain the principles underlying the Bill at great length. It will be noticed that the main point for which this Bill is proposed is in regard to jenmikaram in respect of cherikal lands held on Kanapattom. Honourable members know what a kanapattom transaction is. It is a demise by a jenmi to a person called kudiyan in respect of a Jenmam land on receipt by the jenmi of an amount as loan, called Kanam. The kudiyan has to pay a rent or pattom to the jenmi. The jenmi has to pay interest in respect of the kanam money advanced. The net result is that the kudiyan pays to the jenmi the rent or pattom minus the interest and this residual rent is called michavaram. Besides this michavaram the kudiyan has also to pay certain customary dues and periodical fees. Under the Jenmi and Kudiyan Regulation as amended, all these dues have been consolidated and their yearly value has been taken and fixed as the amount payable every year in lieu of all dues to the jenmi. This is the jenmivaram and this law further lays down what shall be the rent payable and this is called the jenmikaram. The jenmikaram may be “said to be the statutory rent and the jenmivaram the contract rent, and it has been laid down that in the case of Jenmom lands generally jenmivaram shall be the jenmikaram. But in the case of cherikal lands a differential provision is made and it has been laid down that in respect of cherikal lands that jenmikaram shall be the settlement pattamicham minus the interest on the kanam amount. Perhaps I may have to explain what settlement pattamicham is. Honourable members know that settlement pattom is the pattern fixed by Government in respect of Sirkar lands in the settlement of tax. The Settlement Pattamicham means the settlement pattom fixed at the settlement minus the tax actually payable in respect of the land. In respect of cherikal lands what has been fixed is that the kudiyan shall pay to the jenmi the settlement pattamicham minus the interest on the kanam amount. It has been assumed that the settlement pattamicham is the utmost fair rent that may be paid by the kudiyan to the jenmi. But it has been noticed in actual fact that the interest on the kanam is more than the settlement pattamicham, with the result that in many cases the jenmikaram is nil or a minus quantity. This was not the intention of the Legislature. Therefore provision is now proposed, in this Bill, that in respect of cherikal lands either the jenmivaram or settlement pattamicham minus the interest on kanam amount shall be the jenmikaram whichever is greater. I am sure that this will be admitted to be a reasonable arrangement. This is the main principle of the Bill.”
Effect of Travancore Govt. Leases afterRoyal Pattom Proclamations of 1040and 1061
During the second half of the 19th century several Royal Proclamations were promulgated with a view to confer rights in the land to the tenants who were the real cultivators. Majority of the people were engaged in agriculture; but the lands belonged to Jenmies (Sircar, Brahmins or Devaswoms). The cultivators held the land under lease arrangement known as Pattom, Otti, Inam and Viruthi etc. One of the important Regulations came in the line of agrarian reforms was the Royal Proclamation of 1040 ME (1865 AD). It pertained to Pattom (lease) tenements created (by Sircar) on Sirkar lands known as Pandaravaka lands. It is exalted as the Magna Carta of peasants of Travancore it being led to conferring land to tillers, step by step.
Paragraph 9 of the Royal Proclamation of 1061 (1886) brought in further radical changes as regards Pandarapattam lands. It said as under:
“These lands were originally the absolute property of Government, and the tenants were mere tenants-at-will; but, by the Royal Proclamation of the 21st Edavam 1040, Government generously waived all right to these lands, and declared them to be the private, hereitable, saleable property of the holders.”
Section 22 of the Settlement Proclamation of 1061 (1886) made further changes in land tenure.
Those changes were:
(1) no debt shall be recognised as due to the holder;
(2) no interest shall be deducted from the Pattom on such debt;
(3) no reduction of debt or a corresponding enhancement of the Sirkar demand shall be made when such properties were transferred by sale.
The properties held on the tenures in question shall be recognised as so many favourably assessed lands or Inams and confirmed to the holders as such.
Clause 7 of Section 24 of the Proclamation provided as under:
“There shall be no further interference on the part of the Government with these free holds, except such as might be necessary for the punctual realization of the quit rent payable”.(Quoted in: Padmanabharu Govindaru v. The State of Kerala, AIR 1963 Ker 86.)
Now a question arises: What is the impact of 1040 and 1061 (1886) Proclamations over the ‘Government Land Leases’ made after 1061 (1886)? Do such leased lands qualify as “estate” under Article 31A of the Constitution?
The legitimate answer is that the lands leased out (by the Government) after 1061 (1886) do not acquire the rights of ‘permanency of tenure’ or attain the ‘proprietary interest’ conferred by the Pattom Proclamations of 1040 and 1061. If such rights are axiomatically conferred as a matter of course, the result would be that the Government cannot ‘lease’ lands (after the Proclamations), for, the lease character would be lost at the moment it is made.
In Rev. Fr. Victor Fernandez v. Albert Fernandez (five Judge Bench), 1971 Ker LT 1, AIR 1971 Ker 168 (Per PT Raman Nayar, CJ, T Krishnamoorthy Iyer, P Unnikrishna Kurup, JJ.), concluded that the land covered by the Royal Proclamations of 1040 and 1061 were “estates” falling under Art. 31A of the Constitution. It was on the finding that the Proclamation “secured permanency of tenure”, and “proprietary interest” in the soil. It was observed as under:
“7. It is impossible to accept the contention advanced on behalf of the plaintiff in this case that,evenafter the Proclamation of 1040, the holders of these lands had no proprietary interest whatsoever in the soil and remained tenants in the strict sense of that term, with only the right of enjoyment, the only difference being that they secured permanency of tenure, the Government still remaining the full and absolute proprietor of the soil.”
Therefore, there is a clear difference between leases made before and after the Proclamations, and the rights conferred by the Proclamations do not apply to leases made after them.
Meaning of the Word ‘Thettom’
Generally meant – acquisition by Mortgage.
When ‘Thettom’ refers to a property dealing with a Jenmam holder, it can be any ‘subordinate tenure falling short of the full proprietary title‘.
When it refers to a property dealing with a Non-Jenmom holder, it may mean a sale’
As regards ‘Thettom’, Raman Menon, C.J., said, in Augusti v. The Dewan of Travancore, 8 Travancore LJ 438, as under:
“In S.A. 17 of 1074, this Court remarked:-‘In the Sirkar registry of 1011, the plaint property is entered as ‘Thettom’ in the name of defendants’ Tarwad.
That expression, according to its ordinary meaning, implies at least a mortgage lien, if not more, as held by this Court in A.S.166 of 1070 and A.S. 285 of 1071. It always implies something more than a simple lease’.
In S.A. 61 of 1075, the terms was taken to be generic and to include ‘all subordinate tenures falling short of the full proprietorytitle‘.
In S.A. 302 of 1075, it was observed that the word ‘Thettom’, as applied to Nambudiri Jenmies, had been held by this court to mean ordinarily a Kanom.
In S.A. 48 of 1076, Vencoba Chariar, C.J. and Mr. Justice Kunhiraman Nair construed the words thus:- ‘The chief ground of the plaintiff’s second appeal is that in arriving at this finding the lower courts have not given sufficient weight to the fact appearing from the Ext. B – an old Revenue account – in which the land in dispute is entered as ‘Thettam’ from plaintiff’s Illom; but the word ‘Thettom’ is a somewhat ambiguous one and though, as remarked in the case in 15 TLR 161 and in other cases, it is generally used in the Revenue accounts to signify the Kanom tenure under Jenmies, it is also sometimes used to denote other subordinate tenures‘.
In S.A. 343 of 1078, we find the following remarks:-‘Thettom ordinarily means a’Kanom’, and in any case, a derivative title when used in connection with Brahmaswam or Devaswom properties, as in the present case’.
Lastly, in A.S. Nos. 59 and 101 of 1083, Sadasiva Iyer, C.J., and Sankara Menon, J., observed thus:-‘Mr. Kochukrishna Marar quotes 15 TLR 161 and says the word ‘Thettom’ means a Kanom or mortgage.
No doubt, in the case of Jenmies, it has been so held; but we doubt whether in the case of non jenmies, any meaning other than the ordinary meaning of the word can be given to the word ‘Thettom’. The plaintiffs are Nairs and the tenure claimed is not Jenmom. The ordinary meaning of the word is acquisition. We are inclined to hold that a word ‘Thettom’, in cases of this sort, means only sale’.”
In Damodaran v. Sankaranarayanan Namboothiripad, ILR 1963-2 Ker. 707; 1964 KLT 25, the High Court referred to thanathu thettom land (nilam); and observed – it conveys the idea of ‘acquisition’.
‘Pandarappattoms’ before 1061 (1886) were Recorded as “Thettoms”
The ‘pandaravakappattoms’ before 1061 (1886) to which benefits of proprietary rights were conferred under the Proclamations (1040 and 1061) were recorded in 1910 Travancore Settlement Register as “Thettoms” (such as Devaswom Thettom, Namboori Thettom etc.)
Note: When those properties (upon which Brhamins or Devaswoms had pandarappattom rights) were sold or leased, they were termed in the transfer-deeds as “Devaswom Thettom”, “Namboori Thettom”.
An ‘Ex-parte’ Defendant can Cross Examine Plaintiff’s Witness. # When no written statement filed, the defendant can take part in further proceedings # But, he will not be able to cross-examine the plaintiff’s witnesses with regard to any question of fact which he could have pleaded. # He will, however, be competent to cross-examine the plaintiff’s witnesses in order to demolish their version of plaintiff’s case.
When a Defendant is Made Ex parte?
The relevant provisions of the CPC are the following –
Order VI Rule 2 (plead material facts only and not evidence),
Order VIII Rule 5 (discretion in the Court even when no Written Statement),
Order VIII, Rule 10 (when a party fails to present written statement, the Court shall pronounce judgment against him)
Order IX Rule 6 (If defendant absent, suit shall be heard ex parte),
Order IX Rule 7 (If defendant is made ex-parte and he appears and assigns good cause, he may be heard as if he had appeared on the day, fixed for his appearance.
Order XI Rule 21 (bars fresh suit on same cause of action if a suit is dismissed under r. 21),
Order XVII rule 2 (These provisions enable the Courts to pass an exparte decree merely relying on the averments in the plaint, and without being supported by evidence).
Order VIII, Rule 10 CPC
Order VIII, Rule 10 reads as follows:
“10. Procedure when party fails to present written statement called for by Court – Where any party from whom a written statement is required under Rule 1 or Rule 9 fails to present the same within the time permitted or fixed by the Court, as the case may be, the Court shall pronounce judgment against him or make such order in relation to the suit as it thinks fit and on the pronouncement of such judgment, a decree shall be drawn up.”
Order IX Rule 7 CPC
Order IX Rule 7 CPC reads as under:
“7. Procedure where defendant appears on day of adjourned hearing and assigns good cause for previous non-appearance.
Where the Court has adjourned the hearing of the suit ex-parte and the defendant, at or before such hearing, appears and assigns good cause for his previous non-appearance, he may, upon such terms as the Court directs as to costs or otherwise, be heard in answer to the suit as if he had appeared on the day, fixed for his appearance.”
The defendant can participate in the rest of the proceedings after setting him set ex-parte without recourse to the provisions of Order IX Rule 7. Therefore, he can
(1) Cross-examine the plaintiff’s witnesses
(2) Adduce evidence in defence and
(3) Place arguments on the entire case.
Therefore, whether or not the defendant has filed Written Statement, he can point out the defects and weakness of the plaintiff’s case on law and facts; so also the pleadings of the plaintiff are defective and the facts are not properly proved.
In Hira Lal Sahu v. Suku Majhi (Jhk), 15 Feb 2018, it is held as under:
“12. So far as the contention of the appellants regarding the defendants being illegally permitted to cross examine the witnesses of the plaintiffs even though the defendants have not filed any written statement is concerned, it is a settled principle of law that even if the defendant has not filed the written statement or his defence is struck off his right to cross-examine the witnesses of the Plaintiff is not taken away. The reason being as the Code of Civil Procedure envisages two consequences of not entering appearance. One is that the suit is liable to be heard ex parte and the other is that no written statement can be filed. In that context, it will not be proper to impose more punishment than those two so explicitly stated by the Code of Civil Procedure. Therefore a defendant not filing the written statement can still appear when the suit is called on for hearing not only to cross-examine the witnesses of the plaintiff and demolish in such manner the plaintiff’s case on evidence that the court will not pass any decree in the plaintiff’s favour but also to make such arguments and submissions on law and on such evidence as the plaintiff may have brought to the court. Moreover filing of written statement is not the only way of defending a suit. A defendant may in a particular case choose to successfully defend a suit against him by cross-examination of the witnesses of the plaintiff and arguments.
In Siai Sinha v. Shivadhari Sinha. AIR 1972 Pat 81, Untwalia J. laid down the law as under:
“The position of law in such a case is that a defendant, even without filing a written statement can take part in the hearing of the suit. He may cross-examine the plaintiff’s witnesses to demolish their version in examination-in-chief. Without written statement, however, he cannot be permitted to cross-examine the witnesses on questions of fact which he himself has not pleaded nor can he be allowed to adduce evidence on questions of fact which have not been pleaded by him by filing any written statement. It should be further made clear that if a defendant files a written statement and does not controvert the allegations in the plaint then tacitly the fact not controverted is said to be admitted, but if he does not file written statement, it cannot be said that he has admitted all the facts pleaded by the plaintiff.” (Quoted in Chuni Lal Chowdhary v. Bank of Baroda, 1981 JKLR 501; 1981 KashLJ 461)
In Chunni Lal Chowdhary v. Bank of Baroda, AIR 1982 J & K 93, the view taken by Untwalia, J., in Siai Sinha, AIR 1972 Pat 81, was followed. It was observed by the J&K High Court as under:
“Where the Court decides to proceed to hearing of the suit without the written statement that would not debar the defendant from taking part in further proceedings of the case. His participation would, however, be hedged in by several limitations. He will not be able either to cross-examine the plaintiff’s witnesses or to produce his own evidence with regard to any questions of fact which he could have pleaded in the written statement. He will, however, be competent to cross-examine the plaintiff’s witnesses in order to demolish their version of plaintiff’s case.” (Quoted in Ganpat Chand vs Jeth, AIR 1983 Raj 146)
In Balraj Taneja v. Sunil Madan, (1999)8 SCC 396, the Supreme Court, quoting Chuni Lal Chowdhry v. Bank of Baroda, AIR 1982 J&K 93, approved the law laid down in Siai Sinha v. Shivadhari Sinha, AIR 1972 Pat 81. The Apex Court in Balraj Taneja v. Sunil Madan, held that the Court shall not act blindly upon the admission of a fact made by the defendant in his written statement and the court shall not proceed to pass judgment blindly merely because a written statement has not been filed by the defendant. Before passing the judgment against the defendant the court must see whether a judgment could possibly be passed in favour of the plaintiff without requiring him to prove any fact mentioned in the plaint. It is only when the court is satisfied that there is no fact which need be proved on account of deemed admission, the court can conveniently pass a judgment against the defendant who has not filed written statement.
In T. Sheeja Vs. C. P. Balakrishnan, 2018-3 KerLT 1102, 2018-4 KHC 415, ILR 2018-3 Ker 880, Kerala High Court held as under:
“9. In the absence of denial of plaint averments, the burden of proof on the plaintiff is not very heavy. A prima facie proof of the relevant facts constituting the cause of action would suffice and the court would grant the plaintiff such relief as to which he may in law be found entitled. However, in a case in which the defendant is set ex parte, the trial court shall scrutinize the available pleadings and documents, consider the evidence adduced and decide whether the claim made by the plaintiff is proved [See Ramesh Chand Ardawatiya v. Anil Panjwam, A.I.R. 2003 S.C. 2508].
10. Even in a case where the defendant is set ex parte, the judgment shall reflect the facts of the case and the controversy involved and tried to be settled by the court. The process of reasoning by which the court came to the ultimate conclusion and decreed the suit shall be reflected clearly in the judgment. Even in a case where the written statement is not filed by the defendant, the court must be satisfied that there is no fact which need to be proved inspite of deemed admission by the defendant. The court must give reasons for passing such judgment, however, short it be. By reading the judgment, a party should be able to understand what were the facts and circumstances on the basis of which the court proceeded and what is the reason for decreeing the suit [See Shantilal Gulabchand Mutha v. Tata Engineering Locomotive Company, (2013) 4 SCC 396].
11. Absence of the defendant does not absolve the trial court from fully satisfying itself of the factual and legal veracity of the plaintiff’s claim. The factum of the defendant having been set ex parte, does not invite a punishment in the form of an automatic decree. The court is duty bound to diligently ensure that the plaint stands proved and the prayers therein are worthy of being granted [See Maya Devi v. Lalta Prasad, A.I.R. 2014 S.C. 1356].”
Court has discretion to require any fact in the plaint to be proved
In Dharam Pal Gupta v. District Judge, Etah, the Allahabad High Court held as under:
“Therefore, reading Order VIII, R. 10, C.P.C. along with O. VIII, R. 5, C.P.C., it seems that even though the filing of written statement has been made obligatory and the Court has now been empowered to pass a judgment on the basis of the plaint on the ground that no written statement has been filed by the defendant still, the discretion of the Court has been preserved and despite the non-filing of the written statement the Court may pass any other order as it may think fit (as laid down in O. VII R. 10) or the Court may in its discretion require any particular fact mentioned in the plaint to be proved as laid down in Order VIII, R. 5 sub-rule (2) C.P.C.” (Quoted in Balraj Taneja v. Sunil Madan, AIR 1999 SC 3381; 1999 8 SCC 396)
Even When Defence is Struck Off, Defendant can Cross-Examine Plaintiff’s Witnesses
In Paradise Industrial Corpn. v. Kiln Plastics Products, (1976) 1 SCC 91, the Supreme Court, held that even when the defence of the defence was struck off, by putting the defendant with the similar handicap as a defendant when debarred from filing the written statement, defendant is entitled to appear and cross-examine the plaintiff’s witnesses and can submit that even on the basis of the evidence on behalf of the plaintiff and why a decree cannot be passed against him. The same view was taken in Babbar Sewing Machine Co. v. Trilok Nath Mahajan, (1978) 4 SCC 188.
Court has not to act blindly – Even if Defendant has not filed WS
Balraj Taneja v. Sunil Madan, (1999) 8 SCC 396, it is held as under:
“As pointed out earlier, the court has not to act blindly upon the admission of a fact made by the defendant in his written statement nor should the court proceed to pass judgment blindly merely because a written statement has not been filed by the defendant traversing the facts set out by the plaintiff in the plaint filed in the court. In a case, specially where a written statement has not been filed by the defendant, the court should be a little cautious in proceeding under Order 8 Rule 10 CPC. Before passing the judgment against the defendant it must see to it that even if the facts set out in the plaint are treated to have been admitted, a judgment could possibly be passed in favour of the plaintiff without requiring him to prove any fact mentioned in the plaint. It is a matter of the court’s satisfaction and, therefore, only on being satisfied that there is no fact which need be proved on account of deemed admission, the court can conveniently pass a judgment against the defendant who has not filed the written statement. But if the plaint itself indicates that there are disputed questions of fact involved in the case regarding which two different versions are set out in the plaint itself, it would not be safe for the court to pass a judgment without requiring the plaintiff to prove the facts so as to settle the factual controversy. Such a case would be covered by the expression “the court may, in its discretion, require any such fact to be proved” used in sub-rule (2) of Rule 5 of Order 8, or the expression “may make such order in relation to the suit as it thinks fit” used in Rule 10 of Order 8”. (Quoted in CN Ramappa Gowda v. CC Chandregowda, AIR 2012 SC 2528; 2012-5 SCC 265)
Does Indian Evidence Act Speak Anything as to Proofon ‘Truth of Contents’ of Documents?
Answer – No.
Indian Evidence Act ExpoundsProof on ‘Existence’ of Documents and Proof on their ‘Contents’.
TRUTH of Contents of Documents is left to the ‘Judicial Discretion’.
Key Takeaways
Evidence Act does notexpresslysay as to “TRUTH“: Indian Evidence Act and other procedural laws do not expressly say anything as to “TRUTH of contents” of documents.
Truth is left to the discretion of the court. In proper cases court can presume truth.
Presumption as to truth: Presumption as to truth of the contents of a (proved) document can be invoked in proper cases. Official record is taken as correct on the presumption that the entries thereof are made only after satisfying its truth.
Courts tosave the TRUTH: Function of the Court is to save the TRUTHfrom falsehood, and the Courts are created for the very object of finding the TRUTH.
Formal proof& Truth: Proof of documents includes –
formal proof, and
truth of its contents.
Proof by one who can vouchsafe: Generally, proof must be given through persons who can vouchsafe for the truth.
Probative value: Probative value of a document, will be a matter for the court to determine.
Admittance of contents & truth: Admission and Marking of a document may amount to admittance of its contents, but not necessarily its truth.
Legal truth & substantive truth: In a well-designed system, judicial findings of formal legal truth should coincide with substantive truth.
Inherently inadmissible document: Where an inherently inadmissible document is marked, objections thereto can be raised at a later stage.
Objection to mode of proof, and truth can be waived: The objection to mode of proof, and proof as to truth of its contents, can be waived.
Objection – earliest opportunity:The objection to mode of proof, and proof as to truth, have to be raised at the earliest opportunity.
Admitted documents : Admitted documents (admitted by opposite side) need not be proved (Sec. 58 Evid. Act).
(Proviso to Sec. 58 says that the Court can require proof of admitted facts otherwise than by such admissions.)
Common knowledge and internal evidence: Facts of common knowledge and internal evidence afforded by the contents of the document can also be invoked for placing truth of contents of documents.
Document marked, probative value may be nil: Though a document is relevant and marked without objection, or on admission, the probative value of it may be low or nil, for want of proper proof (as to both ‘existence’ and ‘truth’).
Where truth of a document is in issue: Where truth of a document is in issue, marking without objection does not absolve the duty on the concerned party to prove the truth.
PROOF – Two Types
First, Formal Proof: Proof as to existence of the document. The modes of proof of documents are governed under Sec. 64 to 73A of the Evidence Act.
Second, Substantive Proof: Proof as to truth of the contents document. Besides the formal proof, in most cases (excepting a few cases where signature, hand-writing etc. alone are considered), the court acts upon a document, only when truth of the same is established.
Generally speaking, proof as to truth of a document is to be established-
(i) by oral evidence of one who can vouchsafe the same,
(ii) by circumstantial evidence,
(iii) by invoking presumption or
(iv) by express admission by the other side.
Modes of Proof of Documents
Proof of Documents (as to, both, ‘formal proof’ and ‘truth of the contents’) can be established invoking one of the following Modes:
Admission of the person who wrote or signed the document (Sec. 17, 21, 58, 67, 70).
Evidence of a person in whose presence the document was signed or written – ocular evidence (Sec. 59).
An attesting witness (Sec. 59).
Opinion of a person who is acquainted with the writing of the person who signed or wrote (Sec. 47).
Admission made by the person who signed or wrote the document made in judicial proceedings (Sec. 32, 33).
Evidence of a handwriting expert or other opinion/scientific-evidence (Sec.45).
Evidence of a person who, in routine, has been receiving the document; or a document signed by such a person in the ordinary course of his business or official duty, though he may have never seen the author signing the document (Sec. 32, 34, 35 or 114).
Invoking (specific) presumptions under Sec. 79 to 90A.
Presumptions (general) under Sec. 114.
Circumstantial evidence: on probability or inferences (Sec. 114).
Court-comparison (Sec. 73).
Facts judicially noticeable (Sec. 56 and 57).
A fact of common-knowledge. (It does not require proof. See: Union Of India v. Virendra Bharti: 2011-2 ACC 886, 2010 ACJ 2353; Rakhal Chakraborty v. Sanjib Kumar Roy: 1998-1 GauLR 253, 1997-2 GauLT 705)
Internal evidence afforded by the contents of the document; a link in a chain of correspondence; evidence of recipient of the document. (Mobarik Ali Ahmed v. State of Bombay, AIR 1957 SC 857)
Production, Admissibility & Proof of Documents
A document to be used in court has to pass through three steps. They are:
Production of documents in court
Admittance and exhibition
Proof (formal proof and truth of contents).
ADMISSIBILITY of Documents – Objection– 2 counts
Disputes on admissibility of documents arise on 2 domains. (See: Manakishore Lalbhai v. New Era Fabrics: AIR 2015 SC 3796)
document which is ab initio (or inherently) ‘inadmissible’
document liable to be objected on ‘mode or manner of proof’.
Even if an inherently-inadmissible document is marked, objections thereto can be raised ‘at a later stage’. Mode of proof (not inherent admissibility) falls within the realm of procedural law. Therefore, objection thereto can be waived.
Inherently-Inadmissible Documents
‘Inherent-inadmissibility of documents’ arises from the following:
Irrelevancy
Non-registration.
Section 5 of the Indian Evidence Act, 1872 deals with relevancy. It reads as under:
“5. Evidence may be given of facts in issue and relevant facts — Evidence may be given in any suit or proceedings of the existence or non-existence of every fact in issue and of such other facts as are hereinafter declared to be relevant, and of no others.”
In Jainab Bibi Saheb v. Hyderally Saheb, (1920) 38 MLJ 532, it was pointed out that neither an omission by an advocate to object to giving of irrelevant and inadmissible evidence nor the failure of the tribunal to exclude it of its own motion would validate a decree based on material which the Evidence Act declares to be inherently and in substance irrelevant to the issue. It was also held in this decision that the primary rule to prove relevant facts by the evidence of witnesses is to call them before the trial Judge and examine them viva voce in the manner stated in Chapter 10 of the Evidence Act.
Documents Marked Without Objection as to its MODE OF PROOF – Effect
The law prevails in India is the following –
If documents marked without objection as to its mode of proof, it is not open to the other side to object to their admissibility afterwards.
Following are the decisive decisions in this line.
Admissibility of police reports without examining the Head Constables who covered those meetings. Those reports were marked without any objection. Hence it was not open to the respondent to object to their admissibility.
Relied on: Bhagat Ram v. Khetu Ram, AIR 1929 PC 110.
R.V.E. Venkatchalla Gounder v. Arulmighu Viswesaraswamy and V.P.Temple, (2003) 8 SCC 752 (R.C. Lahoti, Ashok Bhan, JJ.)
Photo copies were admitted in evidence ‘without foundation‘ and without objection. They cannot be held inadmissible for originals were not produced.
Relied on: Padman v. Hanwanta, AIR 1915 PC 111 P.C. Purushothama Reddiar v. S.Perumal
Smt. Dayamathi Bai v. K.M. Shaffi, AIR 2004 SC 4082
Objection to be taken at trial before document is marked as an ‘exhibit’.
Relied on: Gopal Das v. Sri Thakurji R.V.E. Venkatachalam Gounder
PC Thomas v. PM Ismail, AIR 2010 SC 905; 2009-10 SCC 239.
Non-examination and absence of “proof of acknowledgment” by the author – If no objection on ‘mode of proof’ in trial court, it will be too late (in appeal) to raise objection on the ground of mode of proof – that is, “non production of John K as a witness”
…
Rafia Sultan v. Oil And Natural Gas Commission (I.C. Bhatt, S.B. Majmudar, JJ.), 1986 ACJ 616; 1986 Guj LH 27; 1985-2 GujLR 1315
No objection about the truth of contents of Ex. 32. The witness of the defendant accepted the contents. Therefore, too late in the day to canvass that contents of Ex. 32 were not proved.
….
Sarkar on Evidence .
If copies of the documents are admitted without objection in the trial Court, no objection can be taken in appeal
Referred to in: Smt. Dayamathi Bai v. K.M. Shaffi, AIR 2004 SC 4082.
Who Should Object FIRST – Court or Opposite Side?
There is divergence of judicial opinion as to saying ‘NO’ by court to marking a document with formal defect, beforehand it is objected by the other side. Eg. Tendering copy of a document without furnishing the ‘foundational evidence’ to admit secondary evidence.
First view Court is under an obligation to exclude inadmissible materials.
H. Siddiqui v. A. Ramalingam: AIR 2011 SC 1492 (Followed in: U. Sree v. U. Srinivas: AIR 2013 SC 415.) Yeshoda v. Shoba Ram: AIR 2007 SC 1721
Second view The court cannot object first. If no objection for other side, Court cannot refrain from marking a document on its own volition or choice (on the ground of formal defect).
R.V.E. Venkatchalla Gounder v. Arulmighu Viswesaraswamy and V.P. Temple, (2003) 8 SCC 752 Smt. Dayamathi Bai v. K.M. Shaffi, AIR 2004 SC 4082. (This view is generally followed in India.)
It is pointed out in Hemendra Rasiklal Ghia v. Subodh Mody, 2009 (2) AIR Bom R 296, 2008-6 MhLJ 886 (FB) that the weight of the authorities suggests that the objection to the admissibility of evidence should be raised by the objector, and decided by the Court, at the earliest opportunity. (That is, it support the second view.)
Controversy resolved
1. The court cannot object first. If no objection for other side, Court cannot refrain from marking a document on its own volition (on the ground of formal defect).
R.V.E. Venkatchalla Gounder v. Arulmighu Viswesaraswamy and V.P.Temple, (2003) 8 SCC 752;
Smt. Dayamathi Bai v. K.M. Shaffi, AIR 2004 SC 4082.
2. If the deficiency is pertaining to non-registration of a compulsory registrable document (as it falls under the head, inadmissible document) the court can desist the marking of the document.
3. By virtue of the decision, G. M. Shahul Hameed v. Jayanthi R. Hegde, AIR 2024 SC 3339, unless the court has not applied its mind to the insufficiency of stamp, and unless there is a ‘judicial determination‘, the objection thereof can be raised at any time.
Document Liable to be Objected on ‘Mode or Manner of Proof’
Following are improper modes (liable to objection):
Seeking exhibition through one who cannot vouchsafe veracity or truth.
Objectionable (mode of) secondary evidence. Eg:
Certified copy produced without proving circumstances that entitles to give secondary evidence under Sec. 65 of the Evd. Act.
Secondary evidence other than that is recognised under Sec. 63.
Unstamped or insufficiently/improperly stamped document.
Whether Proof of Admitted Documents Includes ‘Truth’ of its Contents
Sec. 58 of the Evidence Act says that ‘Admitted facts need not be proved’. Order VIII, Rule 5 CPC stipulates that every allegation of fact in the plaint, if not denied specifically or by necessary implication, shall be taken to be admitted except as against a person under disability.
Effect of marking a document without formal proof (on admission or without objection) brings-about divergent views.
First view (a) Proof (Contents) stands established. It cannot be questioned afterwards.
(b) Truth also: See: Rafia Sultan v. Oil And Natural Gas Commission, 1986 ACJ 616; 1985-2 GujLR 1315.
(c) Admission of contents – but, does not dispense with proof of truth of its contents.
(a)RVE Venkatachala Gounder v. Arulmigu Viswesaraswami: AIR 2003 SC 4548; Narbada Devi v. Birendra Kumar: (2003) 8 SCC 745; Dayamati Bai v. K.M. Shaffi : AIR 2004 SC 4082; Oriental Insurance Co v. Premlata: (2007) 8 SCC 575; Thimmappa Rai v. RamannaRai,(2007) 14 SCC 63; KalitaIqbal Basith v. N Subbalakshmi, (2021) 2 SCC 718. (b) Rafia Sultan v. Oil And Natural Gas Commission (I.C. Bhatt, S.B. Majmudar, JJ.), 1985-2 GujLR 1315: No objection about the truth of contents … before the trial Court. … It is therefore too late in the day for Miss Shah for the Commission to canvass for the first time before us in appeal. Neeraj Dutta Vs. State (Govt. of Delhi) [2023] 4 SCC 731: If no objection as to mode of proof (secondary evidence) when marked, no such objection could be allowed to be raised at any later stage. (c) Sait Tarajee Khimchand v. Yelamarti Satyam, AIR 1971 SC 1865; Nandkishore Lalbhai Mehta v. New Era Fabrics, AIR 2015 SC 3796.
Second View Even if no objection, it does not dispense with proof (as to, both, existence of the document and its truth). In such a case the document will not be taken as proved.
(Note: It may not be legitimate to apply this principle literatim)
LIC v. Ram Pal Singh Bisen: 2010-4 SCC 491 (Filing of the Inquiry Report or the evidence adduced during the domestic enquiry); H. Siddiqui v. A. Ramalingam, (2011) 4 SCC 240 (Copy of a power of attorney alone was shown to the respondent during cross-examination and he admitted his signature thereon only, and not its contents); Mal Singhvi v. Anand Purohith: 1988 (Supp) SCC 604 (date of birth).
Third view If truth is in issue, mere proof of contents, or marking without objection, is not proof of truth.
See: Narbada Devi Gupta v. Birendra Kumar Jaiswal, 2003-8 SCC 745; Ramji Dayawala Vs. Invest Import: AIR 1981 SC 2085.
Fourth view Admission of contents, and dispenses with proof and truth; but its probative value will be a matter for appreciation by court.
See: State of Bihar v. Radha Krishna Singh, AIR 1983 SC 684 (Admission and probative value – different); Rakesh Mohindra v. Anita Beri: 2015 AIR(SCW) 6271; Kaliya v. State of MP: 2013-10 SCC 758; H. Siddiqui v. A. Ramalingam: AIR 2011 SC 1492; Rasiklal Manikchand v. MSS Food Products: 2012-2 SCC 196.
Fifth view Admission of contents, and dispenses with proof and truth; but Court should require (in proper cases) the party producing the document to adduce proper evidence, and to cure formal defects, invoking – • Sec. 165 of Evidence Act • Sec. 58 of Evidence Act • O. XII, r. 2A Proviso, CPC and • Sec. 294 of the CrPC.
See: Harkirat Singh v. Amrinder Singh, (2005) 13 SCC 511; Umesh Challiyil v. K.P. Rajendra, (2008) 11 SCC 740; KK Ramachandran Master v. MV Sreyamakumar, (2010) 7 SCC 428; AIR 2015
Objection to be Raised When Document is Admitted; Otherwise, Opportunity Lost
It was observed by the Supreme Court in 2001 in Bipin Shantilal Panchal v. State of Gujarat, AIR 2001 SC 1158, that that ‘it is an archaic practice that during the evidence collecting stage, whenever any objection is raised regarding admissibility of any material in evidence the court does not proceed further without passing order on such objection’. And the Court directed as under:
“When so recast, the practice which can be a better substitute is this: Whenever an objection is raised during evidence taking stage regarding the admissibility of any material or item of oral evidence the trial court can make a note of such objection and mark the objected document tentatively as an exhibit in the case (or record the objected part of the oral evidence) subject to such objections to be decided at the last stage in the final judgment.”
But, the subsequent decisions in RVE Venkatachala Gounder: AIR 2004 SC 4082; Dayamathi Bai (2004) 7 SCC 107 took a contra view. It was held that the objection as to ‘mode of proof’ should be taken at the time of marking of the document as an exhibit, so that the defect can be cured by the affected party.
Privy Council in Padman v. Hanwanta, AIR 1915 PC 111,held that the objection to marking of documents and its admissibility should have been taken in the trial court. It was observed as under:
“The defendants have now appeal to the Majesty in Council, and the case has been argued on their behalf in great detail. It was urged in the course of the argument that a registered copy of the will of 1898 was admitted in evidence without sufficient foundation being led for its admission. No objection, however, appears to have been taken in the first court against the copy obtained from the Registrar’s office being put in evidence. Had such objection being made at the time, the District Judge, who tried the case in the first instance, would probably have seen that the deficiency was supplied. Their lordships think that there is no substance in the present contention.”
In P.C. Purushothama Reddiar v. S Perumal, 1972 (2) SCR 646,it was observed as under:
“Counsel contended that the police reports referred to earlier are inadmissible in evidence as the Head-constables who covered those meetings have not been examined in the case. Those reports were marked without any objection. Hence it is not open to the respondent now to object to their admissibility.”
Our Apex Court held in Lachhmi Narain Singh v. Sarjug Singh, AIR 2021 SC 3873, as under:
“24. In view of the foregoing discussion, it is clear that plea regarding mode of proof cannot be permitted to be taken at the appellate stage for the first time, if not raised before the trial Court at the appropriate stage. This is to avoid prejudice to the party who produced the certified copy of an original document without protest by the other side. If such objection was raised before trial court, then the concerned party could have cured the mode of proof by summoning the original copy of document. But such opportunity may not be available or possible at a later stage. Therefore, allowing such objection to be raised during the appellate stage would put the party (who placed certified copy on record instead of original copy) in a jeopardy & would seriously prejudice interests of that party. It will also be inconsistent with the rule of fair play as propounded by Justice Ashok Bhan in the case of RVE Venkatachala Gounder v. Arulmigu, AIR 2003 SC 4548.”
Effect of marking document without objection is laid down in the following two recent decisions of the Supreme Court. In both these cases, it is seen, the Apex Court has taken the view that the ‘truth’ is also stood proved.
Neeraj Dutta v. State (Govt. of N. C. T. of Delhi)
The Constitution Bench of our Apex Court laid down in Neeraj Dutta v. State (Govt. of N. C. T. of Delhi), AIR 2023 SC 330; 2023 4 SCC 731, as under:
Section 61 deals with proof of contents of documents which is by either primary or by secondary evidence.
When a document is produced as primary evidence, it will have to be proved in the manner laid down in Sections 67 to 73 of the Evidence Act.
Mere production and marking of a document as an exhibit by the court cannot be held to be due proofof its contents. Its execution has to be proved by admissible evidence. On the other hand, when a document is produced and admitted by the opposite party and is marked as an exhibit by the court, … (sic – no objection can be raised at any later stage with regard to proofof its contents).
The contents of the document must be proved either by the production of the original document i.e., primary evidence or by copies of the same as per Section 65 as secondary evidence.
So long as an original document is in existence and is available, its contents must be proved by primary evidence.
It is only when the primary evidence is lost, in the interest of justice, the secondary evidence must be allowed.
Primary evidence is the best evidence and it affords the greatest certainty of the fact in question.
Thus, when a particular fact is to be established by production of documentary evidence, there is no scope for leading oral evidence.
What is to be produced is the primary evidence i.e., document itself. It is only when the absence of the primary source has been satisfactorily explained that secondary evidence is permissible to prove the contents of documents.
Secondary evidence, therefore, should not be accepted without a sufficient reason being given for non-production of the original.
Once a document is admitted, the contents of that document are also admitted in evidence, though those contents may not be conclusive evidence.
Moreover, once certain evidence is conclusive it shuts out any other evidence which would detract from the conclusiveness of that evidence.
There is a prohibition for any other evidence to be led which may detract from the conclusiveness of that evidence and the court has no option to hold the existence of the fact otherwise when such evidence is made conclusive.
It is held further as under:
“44. Section 64 of the Evidence Act states that documents must be proved by primary evidence except in certain cases mentioned above. ….. Thus, once a document has been properly admitted, the contents of the documents would stand admitted in evidence, and if no objection has been raised with regard to its mode of proof at the stage of tendering in evidence of such a document, no such objection could be allowed to be raised at any later stage of the case or in appeal vide Amarjit Singh v. State (Delhi Admn.) 1995 Cr LJ 1623 (Del) (“Amarjit Singh”). But the documents can be impeached in any other manner, though the admissibility cannot be challenged subsequently when the document is bound in evidence.”
In PC Thomas v. PM Ismail, AIR 2010 SC 905; 2009-10 SCC 239, it is observed as under:
“No objection on pleas of “inadmissibility” or “mode of proof” was raised at the time of their exhibition or any time later during trial, when most of the witnesses, produced by the parties were confronted with these, as duly exhibited, bearing stamp marking with particulars, prescribed under Order XIII Rule 4 of the Code of Civil Procedure, 1908 and duly signed as such.
In our opinion, it is too late in the day now to object to their exhibition on the ground of “prescribed procedure” i.e. mode of proof.
Moreover, we also find that it was nobody’s case that the said documents were got printed by John K or distributed amongst voters by him. Absence of proof of acknowledgment by him because of non production of John K as a witness, in the circumstances, in our view, is inconsequential.
Admittedly, John K was a well known leader of high stature, recognized as such by Christian/Catholic voters including those mentioned in Para 17 (supra) and, therefore, there is no question of drawing an adverse inference against the election petitioner for not examining him, as strenuously urged on behalf of the appellant, particularly when the printing and circulation of offending material (Exts.P1 and P2) has been proved by the election petitioner beyond reasonable doubt.”
Mere Execution of a document, no Conclusion Recitals are Correct
In Gangamma v. Shivalingaiah, 2005 9 SCC 359, it is held as under:
“We may furthermore notice that even if a formal execution of a document is proved, the same by itself cannot lead to a presumption that the recitals contained therein are also correct. The mere execution of a document, h in other words, does not lead to the conclusion that the recitals made therein are correct, and subject to the statutory provisions contained in Sections 91 and 92 of the Evidence Act, it is open to the parties to raise a plea contra thereto.”
Objection as to Truth of Contents, First Time In Appeal – Effect
In Rafia Sultan v. Oil And Natural Gas Commission (I.C. Bhatt, S.B. Majmudar, JJ.), 1986 ACJ 616; 1986 Guj LH 27; 1985-2 GujLR 1315 it is observed as under:
“It was never the case of the Commission that report which was submitted in a sealed cover was not the genuine and true report of the committee appointed by the Commission itself. Thus in short no objection about the truth of contents of Ex. 24/1 i. e. Ex. 32 was ever put forward before the trial Court and rightly so as that was the report of its own committee of experts appointed by the Commission for enlightening itself about the causes of the accident and about the future safety steps which were required to be taken to avoid such accidents. … Not only that but the witness of the defendant accepted the contents of the said document Ex. 32. Nothing was suggested by him or even whispered to the effect that the contents of the said report were in any way untrue. …. In fact both the sides have relied upon different parts of Ex. 32 in support of their rival contentions on the aspect of negligence and contributory negligence. It is therefore too late in the day for Miss Shah for the Commission to canvass for the first time before us in appeal that contents of Ex. 32 were not proved in accordance with law and hence the document was required to be taken off the record. It is now well settled that objection about mode of proof can be waived by a party and that such objection is raised by the party at the earliest opportunity in the trial Court such objection will be deemed to have been waived and cannot be permitted to be raised for the first time in appeal (vide P. C. Purushottamman v. S. Perumal AIR 1972 SC 608; Pandappa v. Shivlingappa 47 BLR. 962; and Gopaldas and another v. Shri Thakurli, AIR 1943 PC 83 at page 87 ). In view of this settled legal position the objection raised by Miss Shah against admissibility of Ex. 32 viz. that its contents were not proved in accordance with law has to be repelled.”
PROBATIVE VALUE of a Documentis a Matter for the Court
Etymology of ‘Probative’ is from ‘Probare’ (Latin), means to prove; and ‘Probatio’ (Latin), means experience, proof, testing, probation etc. In law, ‘probative value’ imparts –
Sufficiency of evidence to prove something in a trial.
Probability of proof or truth while appreciating a fact.
Value or weight of evidence, considered by the court, in proof of something.
Extent of evidentiary value that can be taken to prove a proffered proposition.
Whenever a document is admitted in court, the probative value thereof will be a matter for the court to determine. It is important to note that probative value may ‘include’ truth of contents of documents; but, precisely it is independent from ‘truth’ of contents of documents.
Probative Value – Date of Birth in School Register has More Value Than Horoscope
If there is a dispute regarding age, the Supreme Court, in State of Punjab v. Mohinder Singh, AIR 2005 SC 1868, held that the date of birth available in the School Admission Register has more probative value than the horoscope.
Similarly the probative value of –
FIR,
Scene-Mahazar,
Post-Mortem Report,
Photocopy of a Registered Deed, etc.,
by itself, will be lesser. In such cases the court can refrain from acting upon such documents until substantive or regular evidence is offered by examining proper witness.
In Om Prakash v. State of Punjab, 1993(2) CLR 395, and in Jora Singh v. State of Punjab, 1984(2) Crimes 837, it has been held that an entry in the school leaving certificate regarding date of birth of a student is not a conclusive proof or high ‘probityevidence’ because it is a matter of common knowledge that the date of birth given at the time of the admission of a boy or girl in a school is seldom correct and more often than not the age given is less than the actual age of the child. (See also: C. Doddanarayana Reddy v. C. Jayarama Reddy, AIR 2020 SC 1912; Commissioner of Central Excise And Service Tax v. M/S. Sanjivani Non-Ferrous Trading: AIR 2019 SC 203.)
Trial is an inquiry into the Truth
In American Jurisprudence, Second Edition, 2007, it is stated as to the purpose of ‘trial’:
“The purpose of trial is to determine the validity of the allegations. The objective is to secure a fair and impartial administration of justice between the parties to the litigation ….Trial is not a contest between lawyers but a presentation of facts to which the law may be applied to resolve the issues between the parties and to determine their rights. It is also not a sport; it is an inquiry into the truth, in which the general public has an interest.” (Quoted in: Mohammed Abdul Wahid v. Nilofer, 2024-2 SCC 144)
Definition of“Fact” – Evid. Act does Not Specifically say as to ‘TRUTH’
Though ‘Truth’ may fall under ‘Fact’, Evidence Act does not specifically say as to ‘TRUTH’ when defines ‘Fact’. Sec. 3 Evidence Act reads as under:
“Fact” —“Fact” means and includes—
.(1) any thing, state of things, or relation of things, capable of being perceived by the senses;
(2) any mental condition of which any person is conscious. Illustrations
.(a) That there are certain objects arranged in a certain order in a certain place, is a fact.
(b) That a man heard or saw something, is a fact.
(c) That a man said certain words, is a fact.
(d) That a man holds a certain opinion, has a certain intention, acts in good faith, or fraudulently, or uses a particular word in a particular sense, or is or was at a specified time conscious of a particular sensation, is a fact.
(e) That a man has a certain reputation, is a fact.
“Proof” – Evid. Act, CPC & CrPC do Not Specifically say as to ‘TRUTH’
The express provisions of the procedural laws state only ‘Proof’ as to existence and contents of documents, and not TRUTH.
Sec. 58 of the Evidence Act emphasises that ‘Admitted Facts’ (admitted by opposite side) need not be proved.
Proviso to Sec. 58 says that the Court can require proof of admitted facts otherwise than by such admissions.
Besides Sec. 58 and the powers of the court under Sec. 165 of Evidence Act, the scheme of the Procedural Acts (CPC and CrPC) shows that the court has jurisdiction to require the party concerned to prove admitted (by opposite side) documents. We can see it in –
Order VIII Rule 5 CPC
Order XII, Rule 2A(1) Proviso of the CPC and
Sec. 294 of the CrPC .
Proviso to Sec. 58 of the Indian Evidence Act provides as under:
“Provided that the Court may, in its discretion, require the facts admitted to be proved otherwise than by such admissions.”
Order VIII Rule 5 Proviso of the CPC says as under:
“Provided that the Court may in its discretion require any fact so admitted to be proved otherwise than by such admission.”
Order XII, Rule 2A(1) Proviso of the CPC says as under:
Provided that the Court may, in its discretion and for reasons to be recorded, require any document so admitted to be proved otherwise than by such admission.
Proviso to Sec. 294(3) of Code of Criminal Procedure reads as follows:
“Provided that the Court may, in its discretion, require such signature to be proved.”
Therefore, it is clear –
Admitted documents stand ‘proved’, according to procedural laws. Its existence and contents cannot be challenged by the party which admit it.
But, the Court can, in its discretion, require proof of these admitted facts (existence and contents) “otherwise than by such admissions”.
The procedural laws contemplate here – ‘Proof’ (existence and contents) and not TRUTH.
Proof must be by one who can Vouchsafe for Truth – Not Correct in All Cases
In Narbada Devi Gupta v. Birendra Kumar Jaiswal, 2003-8 SCC 745, it is held:
“Reliance is heavily placed on behalf of the appellant on Ramji Dayawala v. Invest Import: AIR 1981 SC 2085.The legal position is not in dispute that mere production and marking of a document as exhibit by the court cannot be held to be a due proof of its contents. Its execution has to be proved by admissible evidence, that is, by the evidence of those persons who can vouchsafe for the truth of the facts in issue”.
Though it is the “normal principle” that Proof must be by one who can vouchsafe for truth (Assistant Commissioner of Customs v. Edwin Andrew Minihan, ILR 2024-1 Ker 596; 2023-7 KHC 512; 2024-1 KLT 24), it may not be correct in all cases; because, there may be cases where proof (as to ‘existence and contents’ of a document) can be given by a witnesses who cannot vouchsafe truth – e.g., a letter or a deed obtained by a witness in ‘due/common course’. In such cases, when ‘truth’ as to the contents of a document is in dispute, it has to be proved by a competent person.
Time for Consideration of ‘Truth‘ by the Court
In any case, the truth of the contents of a document is not considered by the court at the time of marking a document; and, it comes for consideration at the fag end, while considering entire evidence on the matter including the cross examination of the witness through whom the document is marked.
In Harendra Rai v. State of Bihar, , AIR 2023 SC 4331, 2023- 9 SCC 702, it is observed as under:
“At the stage of evidence, when any document/paper is formally produced for being treated as a piece of evidence, the Court looks at two basic aspects. Firstly, the existence of the document on the Court’s record and, secondly, the proof of its execution or its contents being sufficiently deposed to by a witness having requisite knowledge thereof, whereafter, the document in question is marked as exhibit. At the stage of exhibiting any document as a piece of evidence, the truth of what is stated in the document is not considered. It is left open to final evaluation at the trial after cross-examination, and the entire testimony of the witness about the existence and contents of the document is weighed in conjunction with various other factors emerging during a trial. At the final evaluation stage, the Trial Court concludes whether the document speaks the truth and decides what weight to give it for final decision. In other words, its evidentiary value is analysed by the Courts at the time of final judgment. In this view of the matter, the marking of a piece of evidence as ‘exhibit’ at the stage of evidence in a Trial proceeding is only for the purpose of identification of evidence adduced in the trial and for the convenience of the Court and other stakeholders in order to get a clear picture of what is being produced as evidence in a Trial proceeding.”
Courts are Created for the Very Object of Finding TRUTH
Following decisions of our Apex Court bespeak, as to the significance of TRUTH in judicial determinations, as under:
It is the function of the Court to save the truth from falsehood–
Bhagwan Tana Patil v. State of Maharashtra, AIR 1974 SC 1974
There is a legal duty for the courts to find the truth and administer justice–
Mohanlal Shamji Soni v. Union of India, 1991 Supp (1) SCC 271.
The Courts are created for the very object of finding the truth–
Mohan Singh v. State of MP, (1999) 2 SCC 428.
Right from the inception of the judicial system establishment of truth is the main purposes underlying existence of Courts of justice–
Zahira Habibullah Sheikh v. State of Gujarat, (2006) 3 SCC 374.
The trial should be a search for the truth–
Himanshu Singh Sabharwal v. State of Madhya Pradesh, (2008) 3 SCC 602,
The people would have faith in Courts when they would find that truthalone triumphs in Courts–
Chandra Shashi v. Anil Kumar Verma, (1995) 1 SCC 421.
The truth should be the guiding starin the entire legal process and it is the duty of the Judge to discover truth to do complete justice–
Maria Margarida Sequeria Fernandes v. Erasmo Jack de Sequeria, (2012) 5 SCC 370,.
It is the bounden duty of the Court to uphold the truth and do justice–
Shanmugam v. Ariya Kshatriya, (2012) 6 SCC 430.
Now a question comes – Which provision of the Indian Evidence Act deals with ‘deducing or deriving’ TRUTH ?
In such an inquisition, we legitimately arrive at in-
(i) the definition of “Proved” in Sec. 3, and
(ii) “Presumption” in Sec. 114, Evidence Act.
The definition of “Proved” in Sec. 3 gives vast discretion to the court. It reads as under:
” ‘Proved‘ — A fact is said to be proved when, after considering the matters before it, the Court; either BELIEVES it to exist, or CONSIDERS its existence so PROBABLE that a prudent man ought, under the circumstances of the particular case, to act upon the supposition that it exists.”
To fulfill the prime and onerous duty on the court, that is deducing or deriving TRUTH from the disputed matters, the Evidence Act further enables and authorises the court to invoke PRESUMPTION under Sec. 114 Evidence Act, wherever it is required.
Sec. 114 reads as under:
“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.”
Presumption of Truth is taken ‘on something Proved‘, or taken for granted
In Izhar Ahmad Khan v. Union of India, AIR 1962 SC 1052, the Supreme Court definitely observed that presumption of truth is taken ‘on something proved or taken for granted ‘. It reads as under:
“The term ‘presumption’ in its largest and most comprehensive signification, may be defined to mean inference, affirmative or dis-affirmative of the truth or falsehood of a doubtful fact or proposition drawn by a process of probable reasoning from something proved or taken for granted.”
The Apex Court further quoted James Bradley Tayer (American jurist and author of Treatise on Evidence) which reads as under:
“Presumptions are aids to reasoning argumentation, which assume the truth of certain matters for the purpose of some given inquiry. …”.
In State of West Bengal v. Mir Mohammad Omar, 2000-8 SCC 382, it is observed as under:
“33. Presumption of fact is an inference as to the existence of one fact from the existence of some other facts, unless the truthof such inference is disproved. Presumption of fact is a rule in law of evidence that a fact otherwise doubtful may be inferred from certain other proved facts. When inferring the existence of a fact from other set of proved facts, the court exercises a process of reasoning and reach a logical conclusion as the most probable position. The above principle has gained legislative recognition in India when Sec. 114 is incorporated in the Evidence Act. It empowers the court to presume the existence of any fact which it thinks likely to have happened. In that process court shall have regard to the common course of natural events, human conduct etc. in relation to the facts of the case.”
TRUTH is left to Discretion or Presumption of Court
Sec. 67, Evidence Act lays down the fundamental principles as to the proof of documents. Sec. 67 reads as under:
“67. Proof of signature and handwriting of person alleged to have signed or written document produced—If a document is alleged to be signed or to have been written wholly or in part by any person, the signature or the handwriting of so much of the document as is alleged to be in that person’s handwriting must be proved to be in his handwriting.”
Sec. 67 says as to ‘proof of signature and handwriting’ alone. Neither Sec. 67 nor any other section of the Ev
In this premise, it is legitimate to deduce the following inferences –
Evidence Act does not expressly proffer anything as to “TRUTH of contents” of documents.
It is left to the discretion (Sec. 3) of the court. In proper cases court can presume (Sec. 114) truth.
In most cases, ‘proof of execution’ may lead the court to presume ‘proof of truth’.
It is more so, when a document is admitted (by the other side) without objection.
But, when proof as to ‘truth’ is in issue, or in dispute, the party in whom the burden thereof rests has to discharge it.
Our Apex Court in Mahasay Ganesh Prasad Ray v. Narendra Nath Sen, AIR 1953 SC 431, while dealing with 30-year-old Book of Accounts, though it came from the possession of its keeper, held as under:
“3. … … … Exhibit 32 series as noticed by the High Court, consists of loose sheets of papers. They have not the probative force of a book of account regularly kept. Being old documents, naturally, the writer is not called and barring the fact that they were produced from the Receiver’s possession there is nothing to show their genuineness. Section 90, Evidence Act, does not help the appellants because this is not a case where the signature of a Particular person is in question or sought to be established. … …”.
In Harihar Prasad Singh v. Deonarain Prasad, AIR 1956 SC 305, the Apex Court observed as under:
“8. Strong reliance was placed by the respondents on Exhibits F-1 and F-1(1), which are khatians relating to the suit lands published on 7-12-1909, recording them as in the possession of the defendants of the second party as ‘kaimi’ and on the presumption under S. 103-B that entry is correct.
Court to invoke Presumptions Judiciously
Though discretionary presumptions (such as those under Section 114 of the Indian Evidence Act) do not bind the court, judicial discretion is not unbridled. As a matter of principle, such presumptions should not be ignored without justification.
The court –
is expected to assess whether the circumstances warrant drawing the presumption and record its reasons thereof; and
cannot disregard available presumptions, without furnishing adequate justification.
“Reason is the heartbeat of every conclusion, and without the same it becomes lifeless”: (Arijit Pasayat J.) AIR 2008 SC 1589, 2008 (15) SCC 711, and Raj Kishore Jha v. State of Bihar, 2003 (7) Supreme 152.
See also: State of U.P. v. Battan,2001 (10) SCC 607; State of Maharashtra v. Vithal Rao Pritirao Chawan, AIR 1982 SC 1215; Jawahar Lal Singh v. Naresh Singh, 1987 (2) SCC 222.
In Rathish Babu Unnikrishnan v. State (Govt. of NCT of Delhi), 2023 CrLJ 311; 2022-4 JT 477; 2022-6 Scale 794; 2022-4 SCR 989, it is held as under:
“In any case, when there is legal presumption, it would not be judicious for the quashing Court to carry out a detailed enquiry on the facts alleged, without first permitting the trial Court to evaluate the evidence of the parties. The quashing Court should not take upon itself, the burden of separating the wheat from the chaff where facts are contested. To say it differently, the quashing proceedings must not become an expedition into the merits of factual dispute, so as to conclusively vindicate either the complainant or the defence.”
‘Loose and Unfettered Discretion is a Dangerous Weapon‘
In Naresh Chandra Mital v. Bishamber Nath Chopra, 1966-2 DLT 352, it is observed as under:
“The Court has in exercising its discretion to keep in view the desirability of facilitating speedy decisions of suits upon bills of exchange, promissory notes and hundis and also to keep in view the drastic nature of the provisions contained in Rules 2 and 3 of Order 37. The presumption of consideration in the case of negotiable instruments on the one hand and the plea of the defendant and the attending circumstances tending to discount such presumption have to be considered and weighed judiciously by the Court. In otherwords, the Court has to exercise judicial discretion, keeping in view the basic dictates of justice when determining the question whether or not to permit the defendant to contest the suit and if so, whether unconditionally or on terms and what terms. The idea of discretion, which is always to be exercised in a disciplined and responsible manner, really represents a compromise between the idea that those who possess power should be trusted with free hand and not tied down to narrow and rigid groves and the competing notion that loose and unfettered discretion is a dangerous weapon to entrust to any one including Courts.”
Adjudication to Find Out Truth & Doctrines of Substantive Rights, Prejudice to Other Side, Procedure – a Handmaid Matter
In Jai Jai Ram Manohar Lal, (1969) 1 SCC 869 our Apex Court held, while dealing with amendment of pleadings, as under:
“5. …. Rules of procedure are intended to be a handmaid to the administration of justice. A party cannot be refused just relief merely because of some mistake, negligence, inadvertence or even infraction of the Rules of procedure. (Quoted in Varun Pahwa v. Renu Chaudhary, AIR 2019 SC 1186)
In Uday Shankar Triyar v. Ram Kalewar Prasad Singh, (2006) 1 SCC 75, our Apex Court held that procedural defects and irregularities which are curable should not be allowed to defeat substantive rights or to cause injustice. Procedure should never be made a tool to deny justice or perpetuate injustice by any oppressive or punitive use. The Court held as under:-
“17. Non-compliance with any procedural requirement relating to a pleading, memorandum of appeal or application or petition for relief should not entail automatic dismissal or rejection, unless the relevant statute or rule so mandates. Procedural defects and irregularities which are curable should not be allowed to defeat substantive rightsor to cause injustice.
Procedure, a handmaiden to justice, should never be made a tool to deny justice or perpetuate injustice, by any oppressive or punitive use. The well-recognised exceptions to this principle are:
.(i) where the statute prescribing the procedure, also prescribes specifically the consequence of non- compliance;
(ii) where the procedural defect is not rectified, even after it is pointed out and due opportunity is given for rectifying it;
(iii) where the non-compliance or violation is proved to be deliberate or mischievous;
(iv) where the rectification of defect would affect the case on merits or will affect the jurisdiction of the court;
(v) in case of memorandum of appeal, there is complete absence of authority and the appeal is presented without the knowledge, consent and authority of the appellant.” (Quoted in Varun Pahwa v. Renu Chaudhary, AIR 2019 SC 1186.)
Adjudication is to Render Justice; it is Unmindful of Consequences
It was held by the Kerala High Court in Gopalakrishnan v. Joint Registrar of Co operative Societies (General), 08 Dec 2015, (Dama Seshadri Naidu, J) as under:
“23. I am very conscious that this Court, as a constitutional adjudicatory machinery, is called upon to interpret the statute straight and simple and render justice. Justice is not an inventive judicial instrument; it is rather a necessary corollary to the judicious application of the law to the facts following certain accepted cannons of construction of the statutes and the Constitution, too. The whole process is compendiously called judicial adjudication. Trite is the truth that adjudication is unmindful of consequences; it is, on the other hand, in the legislative wisdom to consider all the eventualities and bring about legislation or legislative changes to see that the varied needs of the organisations and institutions, including the administrative agencies, are best served—adverse fallout on the application of law is avoided.
Sec. 90, Evid. Aact – Not Truth of Contents; But, Genuineness Drawn
Under Sec. 90, Not Truth of Contents, but, only presumption of Genuineness of a document (i.e., existence or handwriting), is drawn (Union of India v. Ibrahim Uddin: (2012) 8 SCC 148). Therefore, besides TRUTH, the contents of the documents also have to be proved by cogent evidence.
No doubt, under Sec. 114, TRUTH can be presumed, directly, in proper cases, in their peculiar ensuring facts (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).
That is, if the document is a public document an “added presumption” (as to correctness) under Section 114(e) is available -KalitaIqbal Basith and others v. N Subbalakshmi, (2021) 2 SCC 718.
Sec. 90 CPC, basically, speaks about two things – as regards 30-year-documents:
1. A document purports to be in the handwriting of any particular person is presumed to be in his handwriting.
2. A document purports to be executed or attested is presumed to be duly executed and attested.
Our Courts Act Upon ‘LEGAL TRUTH’; and not ‘ULTIMATE TRUTH’
As shown above, the very duty of a court is to find TRUTH. Our courts are said to be functioning in ‘adversarial system’ where advocates present the case of their parties before an impartial judge for determining the truth and for getting a judgment accordingly. In such a system, the courts are concerned with ‘PROCEDURAL TRUTH’ or ‘LEGAL TRUTH’ as emerged from the pleadings and evidence; and not ULTIMATE TRUTH.
In State of Rajasthan v. Asharam @ Ashumal, AIR 2023 SC 2228, it is observed as under:
“In a well-designed system, judicial findings of formal legal truth should coincide with substantive truth.” (Also see: Kailash Vijayvargiya v. Rajlakshmi Chaudhuri, 2023-6 JT 138.)
Viscount Simon LC, explained it in Hickman v. Peacey, [1945] AC 304, as under:
“A court of law … is not engaged in ascertaining ultimate verities: it is engaged in determining what is the proper result to be arrived at, having regard to the evidence before it.”
Conjectures and Suspicion Should Not take the place ofLegal Truth.
In Ritesh Chakarvarti v. State of Madhya Pradesh, 2007-1 SCC(Cr) 744, our Apex Court warned as under:
“There is another aspect of the matter, which cannot be lost sight of. While dealing with a case of grave nature like the present one, there is always a danger that conjectures and suspicion may take the place oflegal truth.” (See also: Aloke Nath Dutta v. State of West Bengal, 2007-12 SCC 230.)
Subjective Satisfaction and Objective Consideration by the Court
It is evident from Sec. 3 of the Indian Evidence Act that TRUTH (or otherwise) of a disputed matter is left to the Subjective Satisfaction of the court. The definition of ‘proved’ in Sec. 3 of the Evidence Act says that ‘a fact is said to be proved when (after considering the matter before it) the court either believes it to exist, or considers its existence so probable that a prudent man ought, under the circumstances of the particular case, to act upon the supposition that it exists’. Further, S.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, etc.
The Evidence Act itself lays down the objective methods, including adequate restrictions, to arrive at the subjective satisfaction to determine the truth. The definition of ‘proved’ itself provides for ‘consideration of the matters before it’. The provision in Sec. 27 which bars the use of statement, given to police while an accused is in custody, is an important restriction in that line.
In Karunakaran v. State, (1960) 2 Ker LR 247, it is observed as under:
“The practice of attestation of confessional statement by witnesses is an objectionable one. It prejudices the accused to safeguard whose interest the Legislature has enacted Ss. 24 fo 26 of the Evidence Act. It has no legal sanction behind it. There is no harm in recording the accused’s statement in the first person at any great length in the case diary when the accused is arrested and questioned and in the preamble to the recovery mahazar reference to the reasons leading to the recovery may be made.
The whole thing appears to be an “intentional whittling down” of the wholesome provisions of Ss. 25 and 26 of the Evidence Act. It is very easily said that the incriminating portion of a lengthy confessional “statement should be excluded. But it is a very difficult mental process to close your eyes to the details in the confessional statement and see only the bracketed portion and remain uninfluenced by the confession of the accused. This feat is possible of performance only by a few specially trained experts. There is no reason why the overburdened judicial officers should be saddled with an additional burden which has not the support of law or procedure.” (Quoted in: Mohammed v. State of Kerala, 1963 Cri LJ 175; Thadiyanevida Nazeer @ Ummer Haji v. State of Kerala (2022) and K Babu v. State of Kerala, 2023(6) KLT 96)
Our Courts Apply Different ‘STANDADARDS of Proof’
In the process to take a fact ‘proved’, ‘disproved’, or ‘not proved’ the courts have to weigh probabilities. In Bater v Bater, (1950) 2 All ER 458, Lord Denning pointed out – ‘there is no absolute standard’, and higher degree of proof is required for more serious matters like criminal cases. Therefore, the courts apply different ‘STANDADARDS of Proof’ in different cases and the courts use distinctive scales in the judicial process of pondering on probabilities.
From the above, it can be concluded –
‘Proof of Documents’ envisaged in the Evidence Act is proof of ‘facts’ as to the ‘existence’ or ‘contents’ of a document.
TRUTH of contents of documents being remain in the judicial discretion, it could not have been expressly or directly dealt with in Evidence Act with precision.
According to Sec. 3 of the Evidence Act ‘a fact is said to be proved when, after consideringthe matters before it, the Court either BELIEVES it to exist, or CONSIDERS its existence so PROBABLE that a prudent man ought under the circumstances of the particular case to act upon the supposition that it exists …’.
According to Sec. 114 of the Evidence Act ‘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 …’
That is, TRUTH (or otherwise) of a disputed point is left to the SUBJECTIVE SATISFATION of the court inasmuch as the question whether a fact is proved (or not) is left to the evaluation of the court. Further, the court is specifically required to appraise – how a prudent man in the given circumstances “acts upon“. The court is also authorised to presume the existence of any fact which it thinks likely to have happened “regard being had to thecommon course of natural events, human conduct” etc.
It is equally important – TRUTH of a disputed item is to be appreciated on the legal (subjective) reasoning after OBJECTIVE“considerationof the matters before it” (Sec. 3 Evid. Act).
OldDocument: Recent Challenge – Direct Evidence Need Not Be as Strong as might be Naturally Expected in a Recent Transaction.
In Jagna Sanyasiah v. Mycherla Peda Atchanna Naidu, AIR 1921 Mad 624, it is held as under:
“5. The respondents’ contention in their memorandum of objections would, in my opinion, have to be allowed as the passing of consideration for a document which is more than 30 years old and which was ever questioned till this suits was brought should be taken as proved even if the direct evidence is not as strong as might be naturally expected in respect of recent transactions.”
Mechanical Interpretation with Dictionary and Grammar Inadequate
MH Beg, J. (as he then was) in Rishi Kesh Singh v. The State, AIR 1970 All. 51, pointed out as under:
“100. The concepts of ‘proved’, ‘disproved’, and ‘not proved,’ defined in alluringly simple terms in the Act, compress a great deal of judicial wisdom with history and processes of evolution and development behind them which have not yet ended. …. It is obvious that a mechanical interpretation with the help of a dictionary and rules of grammar, found to be inadequate on several occasionsby our Supreme Court (e.g. Deputy Custodian Evacuee Property New Delhi v. Official Receiver of the Estate of Daulat Ram Surana, AIR 1965 SC 951 at p. 957; Kanwar Singh v. Delhi Administration, AIR 1965 SC 871 at p. 875; R.L. Arora v. State of U. P., AIR 1964 SC 1230 at p. 1237; State of U. P. v. C. Tobit. AIR 1958 SC 414), may not suffice here also.”
Facts of Common Knowledge and Internal Evidence
The following things can also be invoked for placing ‘truth’ of contents of documents –
The matters of common knowledge (It does not require proof. See: Union of India v. Virendra Bharti: 2011-2 ACC 886, 2010 ACJ 2353; Rakhal Chakraborty v. Sanjib Kumar Roy: 1998-1 GauLR 253, 1997-2 GauLT 705) and
internal evidence afforded by the contents of the document (a link in a chain of correspondence; recipient of the document – Mobarik Ali Ahmed v. State of Bombay, AIR 1957 SC 857).
Admissibility of a Document is One Thing and its Probative (Proof) Value Quite Another
Admittance of documents in evidence, and its proof are two different matters. In Baldeo Sahai v. Ram Chander, AIR 1931 Lahore 546, it is held as under:
“There are two stages relating to documents. One is the stage when all the documents on which the parties rely are filed by them in Court. The next stage is when the documents proved and formally tendered in evidence. The word “proved” has been used by the Division Bench in the sense of ‘proposed to be proved’ as is clear from its having been used along with the word ‘tendered’ or “admitted” in evidence. The word proved has been loosely used for describing the stage after fling of the documents, when the Court would decide only whether they should be admitted or rejected. The Division Bench cannot be read as holding that the document is not to be endorsed with an Exhibit number unless and until proved. As stated hereinabove, the stages of tendering/admitting/rejecting in evidence and holding a document proved – are two distinct and different stages, not one. They are respectively the second and third stages. Admission of a document in evidence is not to be confused with proof of a document.”
Kaliya v. State of Madhya Pradesh, 2013-10 SCC 758– Victim in a murder case had been admitted in the hospital with burns. The dying declaration was recorded by the Doctor. The original dying declaration had not been filed by the prosecution and the carbon copy was produced. The Doctor deposed that even after conducting an extensive search, the original dying declaration could not have been traced. Pointing out that the secondary evidence can be adduced in any form, provided it is authenticated by foundational evidence that the alleged copy is in fact a true copy of the original, the Apex Court held as under:
“Section 65(c) of the Act 1872 provides that secondary evidence can be adduced relating to a document when the original has been destroyed or lost, or when the party offering evidence of its contents cannot, for any other reason, not arising from his own default, or neglect, produce it in reasonable time. The court is obliged to examine the probative value of documents produced in court or their contents and decide the question of admissibility of a document in secondary evidence. (Vide: H. Siddiqui (dead) by Lrs. v. A. Ramalingam, AIR 2011 SC 1492; and Rasiklal Manikchand Dhariwal & Anr. v. M.S.S. Food Products, (2012) 2 SCC 196).
In Rasiklal Manikchand Dhariwal v. M.S.S. Food Products, (2012) 2 SCC 196, it was held as under:
“Proviso appended to sub-rule (1) of Rule 4 of Order XVIII further clarifies that where documents are filed and the parties rely upon the documents, the proof and admissibility of such documents which are filed along with the affidavit shall be subject to the order of the court.”
In State of Bihar v. Radha Krishna Singh, AIR 1983 SC 684, it is observed:
“Admissibility of a document is one thing and its probative value quite another—these two aspects cannot be combined. A document may be admissible and yet may not carry any conviction and weight or its probative value may be nil.” (Quoted in: H. Siddiqui (dead) by Lrs. v. A. Ramalingam, AIR 2011 SC 1492)
E.g. – A per se ‘objectionable document’ marked without objection; un-cross-examined testimony of a witness; Photocopy of a deed certified copy of which is provided in law.
In Life Insurance Corporation of India v. Rampal Singh Bisen, (2010) 4 SCC 491, it is held as under:
“26. We are of the firm opinion that mere admission of document in evidence does not amount to its proof. In other words, mere marking of exhibit on a document does not dispense with its proof, which is required to be done in accordance with law. As has been mentioned herein above, despite perusal of the record, we have not been able to come to know as to under what circumstances respondent plaintiff had admitted those documents. Even otherwise, his admission of those documents cannot carry the case of the appellants any further and much to the prejudice of the respondent.
27. It was the duty of the appellants to have proved documents Exh. A-1 to Exh. A-10 in accordance with law. Filing of the Inquiry Report or the evidence adduced during the domestic enquiry would not partake the character of admissible evidence in a court of law. That documentary evidence was also required to be proved by the appellants in accordance with the provisions of the Evidence Act, which they have failed to do.”
“31. Under the Law of Evidence also, it is necessary that contents of documents are required to be proved either by primary or by secondary evidence. At the most,admission of documents may amount to admission of contents but not its truth. Documents having not been produced and marked as required under the Evidence Act cannot be relied upon by the Court. Contents of the document cannot be proved by merely filing in a court.”
Marking Document Without Objection– Not Dispense with Proof of Contents
When a document is marked without objection –
the affected party is precluded from raising objection to the existence of the document and its contents.
Still, he can point out – mere admission of a document in evidence does not amount to its proof; and the probative value of it is low or nil, for want of proper proof.
In Sait Tarajee Khimchand v. Yelamarti Satyam, AIR 1971 SC 1865, the Supreme Court observed that mere marking of documents (day book and ledger) as exhibits do not dispense with the proof of documents. In Nandkishore Lalbhai Mehta v. New Era Fabrics, AIR 2015 SC 3796, it is observed that mere marking as exhibit and identification of executor’s signature by one of witnesses do not prove contents of a document.
In Smt. Dayamathi Bai v. KM Shaffi, AIR 2004 SC 4082, it is observed as under:
“In the present case the objection was not that the certified copy of Ex.P1 is in itself inadmissible but that the mode of proof was irregular and insufficient. Objection as to the mode of proof falls within procedural law. Therefore, such objections could be waived. They have to be taken before the document is marked as an exhibit and admitted to the record (See: Order XIII Rule 3 of Code of Civil Procedure). This aspect has been brought out succinctly in the judgment of this Court in RVE Venkatachala Gounder v. Arulmigu Viswesaraswami & VP Temple & Another reported in [(2003) 8 SCC 752] to which one of us, Bhan, J., was a party vide para 20:
“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 abovesaid 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 as to 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 stage 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 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 Kaliya v. State of Madhya Pradesh, 2013-10 SCC 758, it is held as under:
“However, the secondary evidence of an ordinary document is admissible only and only when the party desirous of admitting it has proved before the court that it was not in his possession or control of it and further, that he has done what could be done to procure the production of it. Thus, the party has to account for the non-production in one of the ways indicated in the section. The party further has to lay down the factual foundation to establish the right to give secondary evidence where the original document cannot be produced. When the party gives in evidence a certified copy/secondary evidence without proving the circumstances entitling him to give secondary evidence, the opposite party must raise an objection at the time of admission. In case, an objection is not raised at that point of time, it is precluded from being raised at a belated stage.
Further, mere admission of a document in evidence does not amount to its proof. Nor, mere marking of exhibit on a document does not dispense with its proof, which is otherwise required to be done in accordance with law. (Vide:
The Roman Catholic Mission v. The State of Madras, AIR 1966 SC 1457;
Marwari Khumhar & Ors. v. Bhagwanpuri Guru Ganeshpuri & Anr., AIR 2000 SC 2629;
R.V.E. Venkatachala Gounder v. Arulmigu Viswesaraswami and V.P. Temple & Anr., AIR 2003 SC 4548;
Smt. Dayamathi Bai v. K.M. Shaffi, AIR 2004 SC 4082; and
Life Insurance Corporation of India v. Rampal Singh Bisen, (2010) 4 SCC 491).”
Execution of a Document – Question of Fact; Can be proved by Circumstantial Evidence Also
In Kishan Arjuna Khansole v. Ababuwa Baba Khansole, 2000-4 BomCR 433; 2000-4 MhLJ 854, it is pointed out that the execution of a document is a question of fact and can be proved like any other fact by direct as well as circumstantial evidence.
TRUTH has to be Established, Despite Waiver of Formal Proof
No doubt, presumption in Sec. 114 Evidence Act is wide enough, in the circumstance of a particular case, to presume ‘truth’ of contents of a ‘proved’ document.
In Dibakar Behera v. Padmabati Behera, AIR 2008 Ori 92, it is observed as under [referring various judgments including RVE Venkatachala Gounder v. Arulmigu Viswesaraswami, AIR 2003 SC 4548, Dayamati Bai v. K.M. Shaffi, 2004 SC 4082, Bhagyarathi Das v. Agadhu Charan Das, 62 (1986) CLT 298, Budhi Mahal v. Gangadhar Das, 46 (1978) CLT 287]:
“A close reading of the above noted judicial pronouncements would show that whenever a document is marked as exhibit without objection, it will be presumed that a party having right of objection has waived formal proof of the document and in such situation, the entire contents of the document would be admissible in evidence. However, by such admission of document, the truth and correctness of the contents by itself would not be established and there must be some evidence to support the contents of such document.”
IF ‘TRUTH’ IS IN ISSUE – Mere Marking Not Amounts to ‘Waiver’
IF the TRUTH is IN ISSUE mere proof of handwritingor execution not evidence of truth: IF the TRUTH of the facts stated in a document is IN ISSUE mere proof of the hand-writing and execution of the document would not furnish evidence of the truth of the facts or contents of the document.
In Ramji Dayawala v. Invest Import: AIR 1981 SC 2085, it us held 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.”
If ‘truth’ is in issue, or in dispute, marking without objection by itself does not absolve the duty to prove the truth as to the contents of the documents. (See: Achuthan Pillai v. Marikar (Motors) Ltd., AIR 1983 Ker 81, 1976 Cr.LJ 1507; 2016 (1) Gau. LJ 88, 2012(1) CTC 53; 2013-1 KLT 293.)
Secondary Evidence Relating to the Contents of a Document
Secondary evidence relating to the contents of a document is inadmissible, until the non-production of the original is accounted for. The secondary evidence must be authenticated by foundational evidence that the alleged copy is in fact a true copy of the original. Mere admission of a document in evidence does not amount to its proof. Therefore, the documentary evidence is required to be proved in accordance with law.
The court has an obligation to decide the question of admissibility of a document in secondary evidence before making endorsement thereon. [H. Siddiqui v. A. Ramalingam: AIR 2011 SC 1492; Nandkishore Lalbhai Mehta v. New Era Fabrics: AIR 2015 SC 3796]
In Rakesh Mohindra v. Anita Beri, 2015 AIR(SCW) 6271, it is held:
“Mere admission of secondary evidence, does not amount to its proof. The genuineness, correctness and existence of the document shall have to be established during the trial and the trial court shall record the reasons before relying on those secondary evidences.”
Court Examines Probative Value of Secondary Evidence
It is well settled that if a party wishes to lead secondary evidence, the Court is obliged to examine the probative value of the document produced in the Court or their contents and decide the question of admissibility of a document in secondary evidence [Rakesh Mohindra v. Anita Beri: 2015 AIR(SCW) 6271].
Admissionmay Dispense with Proof; but Probative Value May Be Less or Nil
The discretion vested with the court to take presumption and evaluate probative value are to be exercised judiciously.
Contents of the document cannot be proved by mere filing the document in a court. Under the Law of Evidence, it is necessary that contents of documents are required to be proved either by primary or by secondary evidence. Mere marking a document as an ‘exhibit’ will not absolve the duty of to prove the documents in accordance with the provisions of the Evidence Act. At the most, marking ‘exhibit’may amount to proof of contents, but not its truth.
Documents which are not produced and marked as required under the Evidence Act cannot be relied upon by the Court.
See: LIC v. Ram Pal Singh Bisen, 2010-4 SCC 491 (Filing of the Inquiry Report or the evidence adduced during the domestic enquiry);
M. Chandra v. M. Thangamuthu. Nandkishore Lalbhai Mehta Vs.New Era Fabrics, AIR 2015 SC 3796;
Birad Mal Singhvi v. Anand Purohitb, 1988 (Supp) SCC 604 (date of birth).
Even when a document is technically admitted in court, the probative value thereof will always be a matter for the court to determine. That is, it is depended upon the nature of each case. The probative value of Scene-Mahazar, Postmortem Report, photocopy of a Registered Deed etc. without supporting legal evidence may be lesser. In such cases the court can refrain from acting upon such documents until regular evidence is tendered.
In Life Insurance Corporation of India v. Ram Pal Singh Bisen, 2010-4 SCC 491, it is observed as under:
“26. We are of the firm opinion that mere admission of document in evidence does amount to its proof. In other words, mere marking of exhibit on a document does dispense with its proof, which is required to be done in accordance with law. …..
27. It was the duty of the appellants to have proved documents Exh.-A-1 to Exh. A-10 in accordance with law. Filing of the Inquiry Report or the evidence adduced during the domestic enquiry would partake the character of admissible evidence in Court of law. That documentary evidence was also required to be proved by the appellants in accordance with the provisions of the Evidence Act, which they have failed to do.”
The Calcutta High Court (DB) quoting Life Insurance Corporation of India v. Ram Pal Singh Bisen [2010-4 SCC 491] it is observed in Bajaj Allianz General Insurance Company v. Smt. Santa Dey (2019-2 ACC 36: 2018-3 TAC 473) as under:
“On the authority of the aforesaid decision, we hold that even if the document had been marked as Exhibit-A without objection, without a formal proof thereof in accordance with the provisions of the Evidence Act, such document lost its credibility and is of no probative value.”
In Kalyan Singh v. Chhoti, AIR 1990 SC 396, it is observed as under:
“A certified copy of a registered sale deed may be produced as secondary evidence in the absence of the original. But in the present case Ex. 3 is not certified copy. It is just an ordinary copy. There is also no evidence regarding content of the original sale deed. Ex.3 cannot therefore, be considered as secondary evidence. The appellate Court has a right and duty to exclude such evidence.”
Should the Court Allow to Adduce Proper Evidence to Prove Documents
As stated in detail above, besides the powers of the court under Sec. 165 of Evidence Act, the scheme of the Procedural Acts (Sec. 58 of Evidence Act and Order XII, Rule 2A Proviso of the CPC and Sec. 294 of the CrPC) show that the courts have jurisdiction to require the parties concerned to prove documents that are marked on admission (by the opposite side) –
without proper proof (of contents of the document or its truth), and
without ‘foundational evidence’ for a secondary evidence.
In such a case, it is legitimate to say that the court should, before taking an adverse stance as to proof in this count, give an opportunity to cure the deficiency by the party who relies on such document.
PROOF INVOKING PRESUMPTION – Sec. 114, read with Sec. 35, Evid. Act
The evidence/proof of contents of document may be given by proving circumstances for the same or by invoking presumption also. ‘Common course of natural events’, ‘human conduct’ etc. under S. 114, Evd. Act can be used to prove the existence and genuineness/ truth of a document.
Sec. 35 of the Evidence Act 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.
Under S. 114, Illustration (e) for Judicial and official acts there is presumption as to ‘regularity’. It is not presumption as to correctness or truth. For such presumption, one can resort to main section, Sec. 114 – that is, ‘common course of natural events’, ‘human conduct’ etc. (and not ‘regularity’ in Illus.–e).
Presumption and Truth
As shown above, in Izhar Ahmad Khan v. Union of India, AIR 1962 SC 1052, it was observed that the term ‘presumption’ includes, in its largest and most comprehensive signification, inference of the truth or falsehood of a doubtful fact. And in St. of West Bengal v. Mir Mohammad Omar, AIR 2000 SC 2988, it is held that the Presumption of fact is an inference as to the existence of one fact from the existence of some other facts, unless the truth of such inference is disproved.
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”.
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.”
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.”
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.”
Evidence in Old Transaction – Vigor in RECENT TRANSACTIONS could Not be EXPECTED
In Muthialpet Benefit Fund Ltd. v. V. Devarajulu Chetty, AIR 1955 Mad 455, it is held as under:
“7. To my mind, neither of the first two points is convincing because the first is based on the rather over-optimistic and facile profession of faith made in every minors suit that he the minor is going to win and to which the statistics of our Courts do not unfortunately lend any support and especially so in this case and in the circumstances set out above, which make out prima facie that the mortgagee public institution made proper and bona fide enquiry as to the existence of necessity and did all that was reasonable to satisfy itself as to the existence of such necessity. In such a case even if there was no necessity in fact or even if the money borrowed was not applied to meet the necessity, the alienation will be upheld. The recitals of necessity in the deed are admissible in evidence as admissions of the Manager or father and also amount to representation ofnecessity though in the case of RECENT TRANSACTIONS evidence aliunde** would be NORMALLY EXPECTED. These elementary propositions require no buttressing by citations (See Mulla, Hindu Law, Edn.10, p.285; Raghavachari: Hindu Law, Edn.3, p.335 and following; Mayne: Hindu Law, Edn.11, Re-print pp.474-475). Secondly, it is in the best interest of the mortgagors themselves to prevent the deterioration of the value of the corpus and market it into cash and keep the sale proceeds in Court pending and abiding the result of the suit.”
(**from other sources)
Exhibits in a Writ Petition
A certified copy of a writ petition is marked by the plaintiff as an exhibit in a civil suit. The petitioner in the writ petition was the defendant. Can the documents that were proved and exhibited by the defendant, in the writ petition, be read in evidence in the civil suit as admission or otherwise?
The answer can be derived from the following decisions –
1. M. Chandra v. M. Thangamuthu, (2010) 9 SCC 712
“Documents filed in writ proceedings may be relevant but cannot be treated as substantive evidence unless properly proved in accordance with law.“
2. Sait Tarajee Khimchand v. Yelamarti Satyam, AIR 1971 SC 1865
“The mere marking of a document as an exhibit does not dispense with its proof.“
3. Union of India v. Ibrahim Uddin, (2012) 8 SCC 148
“An admission can be used in subsequent proceedings, but must be clear and proved. Documentary evidence must still be tested under the Evidence Act.“
Conclusion
From the above, the accepted position of law, as regards the PROOF and TRUTH of documents, can be summarised as under:
1.Probative value of a document will be a matter for the court to determine on the basis of legal reasoning.
2. Though a document is relevant and marked without objection, or marked on admission, the probative value of it may be low or nil, for want of proper PROOF.
3. Admittance and Marking of a document may amount to admission of its contents, but not necessarily its TRUTH.
4. The Evidence Act and other procedural laws do not expressly say as to TRUTH of contents of Documents. It is left to the ‘judicial discretion’ of the Court to be ‘deduced or derived’ by legal reasoning.
5. The scheme of the Evidence Act is to presume TRUTH of contents of documents (in proper cases) when ‘existence and contents’ of the same are proved.
6. For ‘deducing or deriving’ TRUTH of contents of Documents, the party concerned can place for consideration of the court – (i) oral evidence of one who can vouchsafe the same, (ii) express admission by the other side and (iii) circumstantial evidence or ‘presumptions’ available in the matter.
It can be seen that the ‘discretion’ conferred on the courts as regards TRUTH of contents of documents is founded in Indian Law following, the English Legal Principles which allows high degree of discretion to the trial courts to determine whether a document stands proved or not and it is honoured by the appellate courts.
•➧ Plain meaning of ‘cognisance’ is – to take notice of something. •➧ Taking cognizance does not involve any formal action. •➧ In law, it is ‘taking judicial notice’ on a cause or offence. •➧ The word ‘cognizance’ is not defined in the CPC or Cr PC. •➧ But, it has well defined contours (by a catena of decisions). •➧ Unless cognizance is barred by a statute, anyone can file a civil suit. •➧ Magistrate has a discretion not to take Cognizance (of a criminal case). •➧ For taking cognizance, the offence must be one punishable under law. •➧ Cognizance is taken against the suspected commission of offence; not offender. •➧ It is the application of mind by the Magistrate “to the suspected commission of offence”. •➧ Cognizance is taken by a Magistrate by 3 ways. They are – • (a) upon a complaint; • (b) upon a police report (in both, ‘offence-made-out’ and ‘refer-charge’); • (c) upon information from any person or upon his own knowledge.
Introduction
In legal parlance ‘cognizance’ is “taking judicial notice of a matter, with a view to initiate legal action”.
Under Sec. 190, Criminal Procedure Code, 1973, ‘cognizance’ of an offence is taken by a Magistrate in the following situations –
(i) upon receiving a complaint,
(ii) upon a police report,
(iii) upon information received from any person other than a police officer, or
(iv) upon his own knowledge.
It is important to note –
The CrPC does not precisely specify – what is ‘cognizance’.
Dictionary meaning of ‘cognizance’ is – ‘knowledge or awareness’, ‘taking notice of’ etc.
What is Cognizance, Deciphered
What is ‘cognizance’ can be deciphered from the following propositions of law –
Cognizance is taken against an offence; and not against the offender.
Cognizance can be taken by a court on a complaint, or on a police report.
It can also be on facts presented before a court, or brought into its focus.
It is application of judicial mind on the materials, oral and documentary.
While taking cognizance, the court prima facie apply the facts to the concerned law analysing both.
Taking cognizance is not the same thing as issuance of process; for, Cognizance is taken first, and process is issued subsequently.
A Magistrate can order investigation (by Police) under Sec. 156(3) of Cr.P.C. before taking cognizance of the offence.
In short, Cognizance is the judicial process made by a court for arriving at a conclusion whether a legal action be initiated against an offence by a process of reasoning, analysing facts in the light of the law applicable.
In simple terms, it is a fact finding process at the beginning stage of proceedings – to see whether, prima facie, an offence has been committed.
Supreme Court Decisions on Cognizance
Taking cognizance occurs as soon as a Magistrate applies his judicial mind to the suspected commission of offence.
R.R. Chari v. State of U.P. AIR 1951 SC 207;
Tula Ram v. Kishore Singh, AIR 1977 SC 2401.
Taking cognizance does not involve any formal action or procedure.
R.R. Chari v. State of U.P. AIR 1951 SC 207;
Tula Ram v. Kishore Singh, AIR 1977 SC 2401.
In broad and literal sense cognizance means taking notice of an offence. This would include the intention of initiating judicial proceedings against the offender in respect of that offence or taking steps to see whether there is any basis for initiating judicial proceedings or for other purposes.
The word ‘cognizance’ indicates the point when a Magistrate or a Judge first takes judicial notice of an offence. It is entirely a different thing from initiation of proceedings; rather it is the condition precedent to the initiation of proceedings by the Magistrate or the Judge.
State of W.B. v. Mohd. Khalid, (1995) 1 SCC 684.
But, when a Magistrate applies his mindfor taking action of some other kind, such as directing an investigation under Section 156(3) of Cr.P.C. or issuing a search warrant or a warrant of arrest for the purpose of investigation, he cannot be said to have taken cognizance of the offence. If he does so, he is not to examine the complainant on oath because he was not taking cognizance of any offence therein.
The powers under Section 156(3) to direct a police investigation can be invoked by the Magistrate at a pre-cognizance stage, whereas powers under Section 202 of the Code are to be invoked after cognizance is taken on a complaint, but before issuance of process.
Tula Ram v. Kishore Singh, AIR 1977 SC 2401;
Narayandas Bhagwandas Madhavdas v. West Bengal, AIR 1959 SC 1118;
D. Lakshminarayana v. V. Narayana, AIR 1976 SC 1672
Dilawar Singh v. State of Delhi, (2007) 12 SCC 641.
Court of Session has no jurisdiction to take cognizance of an offence as a court of original jurisdiction. But, on committal, Sessions Court gets jurisdiction, to take cognizance of offence of persons not named as offenders, whose complicity in the crime comes to light from the material available on record. Hence on committal under S.209, Sessions Judge may summon, without recording evidence, the appellants not named in police report under S. 173 to stand trial along with those already named therein.
Kishun Sing v. State of Bihar, (1993) 2 SCC 16.
At the time of taking cognizance of the offence, the Court considers only the averments made in the complaint or in the charge-sheet filed under Section 173. It is not open for the Court to sift or appreciate the evidence at that stage with reference to the material and come to the conclusion that no prima facie case is made out for proceeding further in the matter.
State of Bihar V. Rajendra Agarwall (1996 (8) SCC 164);
Rashmji Kumar v. Mahesh Kumar Bhada, 1997 SCC (Cri) 415.
It is open to the Court, before issuing the process, to record the evidence, and on consideration of the averments made in the complaint and the evidence thus adduced, it is required to find out whether an offence has been made out. On finding that such an offence has been made out and after taking cognizance thereof, process would be issued to the respondent to take further steps in the matters.
Rashmji Kumar v. Mahesh Kumar Bhada, 1997 SCC (Cri) 415.
The complaint filed by a private party can be dismissed by the learned Magistrate under Section 203 Cr.P.C., if he thinks that there is no sufficient ground for proceeding. While exercising his discretionary powers, the Magistrate should not allow himself to evaluate and appreciate the sworn statements recorded by him under Section 202 Cr.P.C. All that he could do would be, to consider as to whether there is a prima facie case for a criminal offence, which, in his judgment, would be sufficient to call upon the alleged offender to answer. At the stage of Section 202 Cr.P.C. enquiry, the standard of proof which is required finally before finding the accused guilty or otherwise should not be applied at the initial stage.
Ponnal @ Kalaiyarasi v. Rajamanickam, 1998 (4) Crimes 543
Taking cognizance of an offence is not the same thing as issuance of process. Cognizance is taken at the initial stage when the Magistrate applies his judicial mind to the facts mentioned in a complaint or to a police report or upon information received from any other person that an offence has been committed. The issuance of process is at a subsequent stage when after considering the material placed before it the court decides to proceed against the offenders against whom a prima facie case is made out.
State of Karnataka v. Pastor P. Raju, (2006) 6 SCC 728.
To proceed under Section 156(3) of the Code, what is required is a bare reading of the complaint and if it discloses a cognizable offence, then the Magistrate instead of applying his mind to the complaint for deciding whether or not there is sufficient ground for proceeding, may direct the police for investigation.
Srinivas Gundluri v. SEPCO Electric Power Construction Corporation, (2010) 8 SCC 206,
Anju Chaudhary v. State of U.P., (2013) 6 SCC 384.
Based on the allegations made in the complaint or the evidence led in support of the same, at the stage of issuing the process to the accused,the Magistrate is to beprima facie satisfied that there are sufficient grounds for proceeding against the accused (and not whether there is sufficient ground for conviction; it is determined only at the trial). At this stage, the Magistrate is not required to record reasons. Though speaking or elaborate reasoned orders are not required at this stage, the order of the Magistrate summoning the accused must reflect that he has applied his mind to the facts of the case and the law applicable thereto. And the Magistrate is not to act as a post office in taking cognizance of the complaint.
Mehmood Ul Rehman v. Khazir Mohammad Tunda, (2015) 12 SCC 420,
Birla Corporation Ltd. v. Adventz Investments and Holdings, (2019) 16 SCC 610.
‘Cognizable Offence’ and ‘Non-Cognizable Offence’
‘Cognizable offence’ is defined in Section 2 (c) of the CrPC as under:
“Cognizable offence means an offence for which, and ‘cognizable case’ means a case in which a police officer may, in accordance with the First schedule or under any other law for the time being in force, arrest without warrant “.
Section 2(l) defines ‘non-cognizable offence’ as under:
“Non-Cognizable offence means an offence for which and ‘non cognizbale case’ means a case in which a police officer has no authority to arrest without warrant.”
Cognizance of Offences By Magistrate
Section 190:
Cognizance of offences by Magistrates: (1) Subject to the provisions of this Chapter, any Magistrate of the first class, and any Magistrate of the second class specially empowered in this behalf under subsection (2), may take cognizance of any offence-
(a) upon receiving a complaint of facts which constitute such offence;
(b) upon a police report of such facts;
(c) upon information received from any person other than a police officer, or upon his own knowledge, that such offence has been committed.
(2) The Chief Judicial Magistrate may empower any Magistrate of the second class to take cognizance under subsection (1) of such offences as are within his competence to inquire into or try.
Section 191:
Transfer on application of the accused: When a Magistrate takes cognizance of an offence under clause (c) of sub-section (1) of section 190, the accused shall, before any evidence is taken, be informed that he is entitled to have the case inquired into or tried by another Magistrate, and if the accused or any of the accused, if there be more than one, objects to further proceedings before the Magistrate taking cognizance, the case shall be transferred to such other Magistrate as may be specified by the Chief Judicial Magistrate in this behalf.
Section 192:
Making over of cases to Magistrates: (1) Any Chief Judicial Magistrate may, after taking cognizance of an offence, makeover the case for enquiry or trial to any competent Magistrate subordinate to him. (2) Any Magistrate of the first class empowered in this behalf by the Chief Judicial Magistrate may, after taking cognizance of an offence, makeover the case for enquiry or trial to such other competent Magistrate as the Chief Judicial Magistrate may, by general or special order, specify, and thereupon such Magistrate may hold the inquiry or trial.
Section 200
Sec. 200. Examination of complainant: A Magistrate taking cognizance of an offence on complaint shall examine upon oath the complainant and the witnesses present, if any, and the substance of such examination shall be reduced to writing and shall be signed by the complainant and the witnesses, and also by the Magistrate;
Provided that, when the complaint is made in writing, the Magistrate need not examine the complainant and the witnesses, if a public servant acting or purporting to act in the discharge of his official duties or a Court has made the complaint; or if the Magistrate makes over the case for inquiry or trial to another Magistrate under section 192;
Provided further that if the Magistrate makes over the case to another Magistrate under section 192 after examining the complainant and the witnesses, the latter Magistrate need not re-examine them.
It is clear thatunder Sec. 200, in case of a (private) complaint, cognizance is taken by a Magistrate when the Magistrate applies his mind to proceed and examine the complainant.
Subsequent proceedings after taking cognizance (Chapter XVI: Sections 204 to 208)
On getting police report, the Magistrate may resort to one of the following three steps:
(i) accept the report and take cognizance of the offence and issue process;
(ii) disagree with the report and drop the proceedings or
(iii) direct further investigation under Section 156(3).
Where the report of the police states that no offence appears to have been committed, then the Magistrate may resort to one of the following three steps:
(a) accept the (refer) report and drop the proceedings;
(b) disagree with the report and take cognizance of the case and issue process or
(c) direct further investigation to be made by the police under Section 156(3).
If the Magistrate decides not to take cognizance of offence or drop proceedings against some persons mentioned in F.I.R., he must give notice and hear first the informant. Bhagwant Singh v. Commissioner of Police, AIR 1985 SC 1285.
Similarly, where the Magistrate decides not to take cognizance of the offence in spite of Report under sub-sec.(2) of S.173 and to drop the proceeding or takes the view that there is no sufficient ground for proceeding against some of the persons mentioned in the First Information Report, the Magistrate must give notice to the informant (not to the injured or to a relative of the deceased, unless such person is the informant) and provide him an opportunity to be heard at the time of consideration of the report. (However, such injured or to a relative of the deceased can appear before the Magistrate and make his submissions when the report is considered by the Magistrate.) Bhagwant Singh v. Commissioner of Police, AIR 1985 SC 1285.
•➧There is difference of opinion. Three views are possible. • First: Call at lest one witness, in spite of express admission. • Second: No need, even when admitted impliedly. • Third: No need if the Will is expressly or categorically admitted. •➧ The proposition of law in the third view above sounds good.
•➧ Two arguments on admitted facts need not be proved – •First, general provisions of Sect. 58 of the Evidence Act has ‘to give way to the special provisions’ of Sec. 68; and Sec. 68 places an emphatic ‘non-obstante clause’ – “it shall not be used as evidence until one attesting witness at least has been called for the purpose of proving its execution”. •Second, it will also be a forceful argument if one says that a section in the Evidence Act cannot be protected from certain fundamental principles of the Evidence Act which include ‘best evidence rule’, ‘admitted facts need not be proved’ etc., unless strong persuasive indications are laid down in the provision concerned. (It is also noteworthy that Sec. 68 does not proceed with a non-obstante clause.) • The scheme of the Evidence Act shows that Chapter III (the beginning Chapter of Part II) which deals with “Facts Need Not be Proved”, is meant to govern the succeeding chapters including the Chapter V that deals with ‘Documentary Evidence’ wherein Sec. 68 is included. • It is also significant – Sec. 58 says that ‘Admitted facts need not be proved’; and Sec. 68 speaks as to “Proof of execution of document required by law to be attested” and that the attesting witness is called “for the purpose of proving its execution”. •➧ That is, the question of ‘proof’ under Sec. 68 does not arise if ‘execution of document’ has already been admitted by the other side.
•➧ Therefore, an authoritative judicial pronouncement is yet to be arrived, taking note of various potential contentions in this regard.
Introspection
Section 68 of the Evidence Act, 1872 mandates examination of one attesting witness at least to prove documents required by law to be attested (including Wills). When execution of a Will is ‘Admitted’ by the opposite side, should it be ‘Proved’?
There is difference of opinion.
Following latest decisions assuredly lay down that when execution of the will is ‘admitted’ by the opposite side, it need not be ‘proved’ as required in Sec. 68 (by examining at least one witness).
Boomathi v. Murugesan, 2023-2 Mad LJ 684 (DB)
P. Radha v. Irudayadoss, 2022 SCCOnline Mad 886
Rajeev Gupta v. Prashant Garg, 2022-1 All LJ 435.
Following decisions laid down that even when execution of a will was ‘admitted’ by the opposite side, it must have been ‘proved’ by examining at least one attesting witness.
S.R. Srinivas v. S. Padmavathamma, (2010) 5 SCC 274 – It is observed – the execution of a Will can be held to have been proved only when the statutory requirements for proving the Will are satisfied. Admission in the pleadings as to the Will can only be about the “making of the Will” and not the “genuineness of the Will”.
Vadakkayil Gopalan v. Vadakkayil Paru, (2013) 3 KerLT 69 –It is observed – proof of the Will by examining at least one witness was necessary (even if the Will has been admitted in the pleadings).
Poulose A. V. v. Indira M.R., 2010 (3) KerLT Suppl. 185 : ILR 2010 Ker.388 – It is observed – No distinction is drawn, by Sec. 68, between an admitted Will and a disputed Will in the mode of proof of execution; and therefore, in all cases in which the Will is set up the procedure prescribed in Sec. 68 will have to be followed.
Ramesh Verma v. Lajesh Saxena (2017) 1 SCC 257 – It is observed – the mandate of Section 68 of the Evidence Act has to be followed even in a case where the opposite party does not specifically deny the execution of the document in the written statement.
Sarada v. Radhamani, 2017 (2) KLT 327. In this decision, rendered in a ‘Refence’ to resolve the dispute in the question we discuss, the Kerala High Court (DB) referred all the above decisions. And, declared the following decisions, as Per Incuriam
Princelal G. v. Prasannakumari, 2009 (3) KerLT Suppl. 1342: ILR 2009 (3) Ker. 221 – It is observed – where the execution of the Will is expressly admitted, neither Section 68 nor its proviso is attracted obliging the propounder of the Will to prove due execution of the Will (for, admitted facts need not be proved: Sec. 58 of the Evidence Act).
Thayyullathil Kunhikannan v. Thayyullathil Kalliani, AIR 1990 Ker.226 – Relying on Order VIII Rule 5 C.P.C. and Sec. 58 of the Indian Evidence Act, it is held that when the execution of the Will is admitted, there will not be any requirement to prove the Will.
P. Malliga v. P. Kumaran, 2022 (2) LW 393, (Followed in Ranga Pillai v. Mannar Pillai, 2022, Mad) – It is held by the Madras High Court that a Will shall not be used as evidence until it is proved in the manner prescribed under Section 68 of the Evidence Act. The judge did not agree the view in P. Radha v. Irudayadoss, 2022 SCCOnline Mad 886. (Note: This decision, P. Malliga v. P. Kumaran, is overruled in Boomathi v. Murugesan, 2023-2 Mad LJ 684, DB)
S. 68 to be Followed, Even When the Opp. party does not Deny Execution
Sec. 68 of the Evidence Act reads as under:
“68. Proof of execution of document required by law to be attested—If a document is required by law to be attested, it shall not be used as evidence until one attesting witness at least has been called for the purpose of proving its execution, if there be an attesting witness alive, and subject to the process of the Court and capable of giving evidence:
Provided that it shall not be necessary to call an attesting witness in proof of the execution of any document, not being a will, which has been registered in accordance with the provisions of the Indian Registration Act, 1908 (16 of 1908), unless its execution by the person by whom it purports to have been executed is specifically denied.
In Ramesh Verma v. Rajesh Saxena, 2017-1 SCC 257, our Apex Court held as under:
“13. A will like any other document is to be proved in terms of the provisions of Sec. 68 of the Evidence Act and the Succession Act, 1925. The propounder of the will is called upon to show by satisfactory evidence that the will was signed by the testator, that the testator at the relevant time was in a sound and disposing state of mind, that he understood the nature and effect of the disposition and put his signature to the document on his own free will and the document shall not be used as evidence until one attesting witness at least has been called for the purpose of proving its execution. This is the mandate of Sec. 68 of the Evidence Act and the position remains the same even in a case where the opposite party does not specifically deny the execution of the document in the written statement.”
Contra View: If ‘Admission’ (by the other side), Need not Prove the Will
It may be pointed out that the Apex Court did not consider in this decision, Ramesh Verma v. Rajesh Saxena – what is the position when the opposite party expressly admit the execution of the document.
Boomathi v. Murugesan, 2023-2 Mad LJ 684 (DB)
It is held in a recent Division Bench decision in Boomathi v. Murugesan, 2023-2 Mad LJ 684, that the position will be different if the Will is ‘categorically’ and ‘clearly’ admitted. The Madras High Court referred Sec. 17 (Admission) and Sec. 58 (Facts admitted need not be proved) and came to the conclusion , Sec. 68 will not be attracted where the Will is “admitted” by the other side. The Division Bench held as under:
“23. First and foremost, it is to be borne in mind that before the Hon’ble Supreme Court in Jagdish Chand Sharma Vs. Narain Singh Saini [Dead] through Legal Representatives and Others, reported in 2015 [8] SCC 615, the validity of the Will was a core issue and the Hon’ble Supreme Court proceeded to discuss the law with regard to proof of a Will in accordance with the statute. In such context, the Hon’ble Supreme Court has held that the position with regard to proof of a Will remains the same even if the opposite party does not specifically deny execution of the same.
24. The above judgment has been followed by learned Single Judges of this Court in P. Malliga Vs. P. Kumaran reported in 2022 [2] LW 393 and Akkinirajan Vs. Maheswari and Others reported in 2023 [1] LW 72.
25. This Court draws the distinction between ‘specifically denied’, ‘not specifically denied’ and ‘admitted‘. The first two instances, namely, ‘specifically denied’ and ‘not specifically denied’, would fall within one category. Insofar as proof of a Will in both cases in this category, the Will would have to be necessarily proved by the propounder. However, where the opposite party categorically admits to the Will, the position would be certainly different. In India, we follow what is called the system ‘adversarial proceedings’, which is also followed in the British Courts. The foundation of this School is that parties before a Court would have to deal with facts in issue namely facts that are asserted and denied by the parties to the lis and the Court would proceed to adjudicate on such issues. When there is no dispute between the parties on certain matters, the Court would not venture to require proof of such admitted facts.”
“33. This Court has applied its mind to the various principles laid down by the Hon’ble Supreme Court as well as this Court and other High Courts, especially in the context of Sec. 68 of the Indian Evidence Act, proof of a Will where execution is not specifically denied and in cases where the execution is categorically admitted. The ratio laid down by the Hon’ble Supreme Court in Ramesh Verma’s case [cited supra] reported in 2017 [1] SCC 257, cannot be a precedent for the proposition where the opposite party clearly admits to the execution of the subject Will as in the instant case. Therefore, we are not in respectful agreement with the judgments in P. Malliga’s case(P. Malliga v. P. Kumaran, 2022 (2) LW 393) andAkkinirajan’s case (Akkinirajan Vs. Maheswari, 2023 [1] LW 72) following the ratio laid down by the Hon’ble Supreme Court in Jagdish Chand Sharma’s case. On the contrary, we approve the ratio laid down in P. Radha Vs. Irudayadoss and Others reported in 2022 SCC Online Mad 886 and Vanjiammal and Others Vs. Vidya and Others in the order dtd. 21/4/2017 made in CRP.[PD] No.3659/2013.”
The same view is taken in Rajeev Gupta v. Prashant Garg, 2022-1 All LJ 435. The court held as under:
“The admission were in the pleadings of the parties and therefore there was no requirement of proving the will in the present suit. Admittedly, the defendant Nos. 2 to 4/appellants have claimed their title through Ramesh Chand Garg who never disputed the validity of the will rather in the Original Suit No. 458 of 1992, he admitted its validity and therefore, the lower appellate court has rightly decreed the suit and held that the will was neither required to be proved in the present suit nor the filing of original will was necessary.”
Do General Provisions of S. 58 give way to Special Provisions of S. 68
Three views are possible:
First: Requirement of calling at lest one witness to prove those documents that requires attestation, in spite of express admission from the opposite party as to the execution of the document in the written statement.
Second: If the Will is (even impliedly) admitted, Sec. 68 need not be invoked.
Third: If only the Will is expressly or categorically admitted, then only there will be alleviation of burden laid down in Sec. 68.
In the light of the Apex Court decision in Ramesh Verma v. Rajesh Saxena, 2017-1 SCC 257, (that the position – as to proof of documents requires attestation – remains the same even in a case where the opposite party does not specifically deny the execution of the document in the written statement) it appears that the second view stated above (taken in Thayyullathil Kunhikannan v. Thayyullathil Kalliani, AIR 1990 Ker 226) is not sustainable.
But, the proposition of law in the third view above, applied in Boomathi v. Murugesan (supra), and other decisions (that the position – as to proof of documents requires attestation – will be different if the Will is “categorically admitted“), sounds good.
Authoritative Judicial Pronouncement is yet to be Arrived
It is also pertinent to note that the Kerala High Court, in Sarada v. Radhamani (supra), pointed out that the general provisions of Sect. 58 of the Evidence Act has ‘to give way to the special provisions’ of Sec. 68 of the Act; and it was remarked that there was no distinction between an ‘admitted Will’ and a ‘disputed Will’ as to the mode of proof.
It appears that the placing the doctrine of ‘specific provisions override general provisions‘ is rational; for, the following words in Sec. 68 places a ‘non-obstante clause’ –
“it shall not be used as evidence until one attesting witness at least has been called for the purpose of proving its execution”.
However, it will also be a forceful argument if one says that a section in the Evidence Act cannot be protected from certain fundamental principles of the Evidence Act which include ‘best evidence rule’, ‘admitted facts need not be proved’ etc., unless strong persuasive indications are laid down in the provision concerned. (It is also noteworthy that Sec. 68 does not proceed with a non-obstante clause.) In any event, the scheme of the Evidence Act shows that Chapter III (the beginning Chapter of Part II) which deals with “Facts Need Not be Proved”, is meant to govern the succeeding chapters including the Chapter V that deals with ‘Documentary Evidence’ wherein Sec. 68 is included.
It is also significant – Sec. 58 says that ‘Admitted facts need not be proved’; and Sec. 68 speaks as to “Proof of execution of document required by law to be attested” and that the attesting witness is called “for the purpose of proving its execution”. That is, the question of ‘proof’ under Sec. 68 does not arise if ‘execution of document’ has already been admitted by the other side.
Note: Proviso to Sec. 58 enables the court to require proof, despite the admission of the other side, if it finds proper. Proviso to Sec. 58 reads as under:
“Provided that the Court may, in its discretion, require the facts admitted to be proved otherwise than by such admissions.”
Therefore, an authoritative judicial pronouncement is yet to be arrived, taking note of various potential contentions in this regard.
Conclusion
Following documents are required by law to be attested by attesting witnesses.
Will: Sec. 63 of the Succession Act.
Mortgage deed: Sec. 59 of the T P Act.
Gift deed: Sec. 123 of the T P Act.
Bond: Sec. 2(5) of the Indian Stamp Act, 1899.
Section 68 of the Evidence Act, 1872 mandates examination of one attesting witness at least to prove the aforesaid four documents required by law to be attested. The proviso to Sec. 68 lays down the following: if the aforesaid documents, EXCEPT WILL, are (i) registered in accordance with the provisions of Indian Registration Act, 1908 and (ii) not specifically denied by the person who executed it, execution of those documents need not necessarily be proved by calling ‘an attesting witness’. That is, for the purpose of proving the Will (alone), the examination of ‘an attesting witness’ is necessary. It is difficult to support the logic and grounds for picking out Will (in Sec. 68 Evidence Act), from other (three) documents that are required by law to be attested by attesting witnesses.
But, note – the Will stands picked out (in Sec. 68 Evidence Act) from other (three) documents that are required by law to be attested by attesting witnesses.
1. A concession or Admission of a fact by a defence counsel would bind on his client. In criminal trials, suggestions in cross-examination may take the position of ‘pleadings’ in civil cases. 2. In a civil trial, it is not required to put its case to the witness, as pleadings already exist. 3. The probative value of suggestions and admissions made during cross-examination varies depending on the specific facts and context of each case, and admission in cross-examination varies depending on the facts of each case. 4. In civil proceedings, where pleadings are well-defined and play a central role in shaping the issues, such suggestions or admissions by counsel during cross-examination (as regards the pleaded matters) may carry less weight. In contrast, in criminal trials, where the stakes are higher and such admissions or suggestions can hold greater evidentiary significance.
Section 15 of the Bharatiya Sakshya Adhiniyam (Indian Evidence Act, 1872, Section 17) defines an admission as a statement, oral or documentary, which suggests any inference as to a fact in issue or relevant fact, made by a party to the proceeding.
Therefore, technically, a question posed by counsel can be a “statement” under this section.
In Balu Sudam Khalde v. State of Maharashtra, Sudhanshu Dhulia, J.B. Pardiwala, JJ., AIR 2023 SC 1736; 2023-13 SCC 365, our Apex Court held as under:
38. Thus, from the above, it is evident that the suggestion made by the defence counsel to a witness in the cross-examination if found to be incriminating in nature in any manner would definitely bind the accused and the accused cannot get away on the plea that his counsel had no implied authority to make suggestions in the nature of admissions against his client.”
Suggestion in Cross-Examination Cannot Be Used As Evidence; But, It May Aid
In Mahavir v. State of Uttar Pradesh, 2017-3 All Cri R 2407, it is held as under:
36. The suggestion made in cross-examination form part of the evidence on record. Those suggestion can be taken into consideration while determining whether the reply given was believable or not. Though suggestion in cross-examination which is denied by the witness, is not evidence at all. Any suggestion made in the cross-examination of the prosecution witness by the defence, can not be used as an evidence against the accused but at the same time it can be called in aid when the other evidence establishes the guilt of the accused.
37. Though the suggestion made in the cross-examination is not evidence but certainly the same may be called into aid to lend assurance to the prosecution case particularly when other evidence establishes the guilt of the accused.”
It appears that this view has not been followed later on.
Suggestions in Cross-ExaminationCould be taken into account
The Kerala High Court, in A. K. Ali v. C. H. Mammuty, 1989 CrLJ 1820, opined that a suggestion made in the cross-examination of witnesses, though not binding on the accused as admissions, those suggestions in cross-examination and statements of the accused given when questioned under S.313 could be taken into account for ascertaining the bona fides of the contentions.
Admission for No challenge in Cross Examination
In Srichand and Shivan Das v. The State, 1985-28 DLT 360, the Delhi High Court held as under:
“6…. The law is well settled that where the evidence of a witness is allowed to go unchallenged with regard to any particular point it may safely be accepted as true ….”.
Purportof Cross-examination is not to give Suggestions
The Delhi High Court held in Sher Mohammad v. Mohan Magotra (Rajiv Sahai Endlaw, J.), 2013-202 DLT 708; 2013 SCC OnLine Del 2530, as under:
“However, I am of the opinion that in a civil trial which is based on pleadings, there is no need for such suggestions to be given. The respondent in his written statement had already denied the said payment and it was for the appellant to prove the same. The practice of giving suggestions in cross examination to witnesses is of criminal trials where there are no pleadings and the defence is built up by giving such suggestions. … The purport of cross-examination is to challenge the testimony and/or to falsify the witness or his creditworthiness, and not to give suggestions to the effect that each and every deposition in examination-in-chief is false. Similarly, a party in a civil trial is not required to in cross-examination, put its case to the witness as the same as aforesaid already exists in the pleadings.” (Note: Not followed in Sher Mohammad v. Mohan Magotra , 2013-202 DLT 708.)
The Delhi High Court, subsequently, in Sa v. Aa, 2016 SCC OnLine Del 1818 (taking note of Srichand and Shivan Das v. The State, 1985-28 DLT 360) preferred not to follow Sher Mohammad v. Mohan Magotra , 2013-202 DLT 708; 2013 SCC OnLine Del 2530. It is held that non-cross-examination of a witness on a suggestion will not be so serious as in a criminal case (for there are pleadings).
It appears that even the above view in Srichand and Shivan Das v. The State, 1985-28 DLT 360, is not the correct proposition of law, especially in view of Balu Sudam Khalde v. The State of Maharashtra, AIR 2023 SC 1736.
It appears that the following may be the correct legal position – in civil matters, where pleadings are well-defined and play a central role in shaping the issues, such suggestions or admissions by counsel during cross-examination, as regards the pleaded matters, may carry less weight.
Suggestion or Admission in Cross-Examination – Evidentiary Value
Suggestion and admission in cross-examination being come in ‘appreciation of evidence’, probative value of the same is a matter for the court, and it varies depending on the facts of each case. The principle involved therein is consistent – that is, truth should prevail.
There being well-defined pleadings as Plaint and Written Statement in civil cases, they get prime importance in determining the case of parties to civil cases. Therefore, the suggestion or admission in cross-examination (by the advocate) has no importance as that in a criminal case.
In Tarun Bora alias Alok Hazarika v. State of Assam, 2002-7 SCC 39; 2002 Cri. LJ 4076 (SC), the presence of the accused was admitted in a suggestion put to one of the witnesses. Considering the reply given by the witness, the court arrived at the conclusion that the presence of the accused was admitted. (Referred to in: Balu Sudam Khalde v. The State of Maharashtra, AIR 2023 SC 1736.)
In Rakesh Kumar alias Babli v. State of Haryana, 1987-2 SCC 34, a suggestion was put by the defence to the witness with regard to the colour of the shirt worn by one of the accused persons at the time of the incident. The Apex Court, considering the suggestion and the reply, arrived at the conclusion that the presence of the accused, namely Dharam Vir was established on the spot at the time of occurrence. (Referred to in: Balu Sudam Khalde v. The State of Maharashtra, AIR 2023 SC 1736.)
In Balu Sudam Khalde v. The State of Maharashtra (Sudhanshu Dhulia, J.B. Pardiwala), AIR 2023 SC 1736, it was held as under:
38. Thus, from the above it is evident that the suggestion made by the defence counsel to a witness in the cross-examination if found to be incriminating in nature in any manner would definitely bind the accused and the accused cannot get away on the plea that his counsel had no implied authority to make suggestions in the nature of admissions against his client.
39. Any concession or admission of a fact by a defence counsel would definitely be binding on his client, except the concession on the point of law. As a legal proposition we cannot agree with the submission canvassed on behalf of the appellants that an answer by a witness to a suggestion made by the defence counsel in the cross- examination does not deserve any value or utility if it incriminates the accused in any manner.
40. It is a cardinal principle of criminal jurisprudence that the initial burden to establish the case against the accused beyond reasonable doubt rests on the prosecution. It is also an elementary principle of law that the prosecution has to prove its case on its own legs and cannot derive advantage or benefit from the weakness of the defence. We are not suggesting for a moment that if prosecution is unable to prove its case on its own legs then the Court can still convict an accused on the strength of the evidence in the form of reply to the suggestions made by the defence counsel to a witness. Take for instance, in the present case we have reached to the conclusion that the evidence of the three eyewitnesses inspires confidence and there is nothing in their evidence on the basis of which it could be said that they are unreliable witnesses. Having reached to such a conclusion, in our opinion, to fortify our view we can definitely look into the suggestions made by the defence counsel to the eyewitnesses, the reply to those establishing the presence of the accused persons as well as the eyewitnesses in the night hours. To put it in other words, suggestions by itself are not sufficient to hold the accused guilty if they are incriminating in any manner or are in the form of admission in the absence of any other reliable evidence on record. It is true that a suggestion has no evidentiary value but this proposition of law would not hold good at all times and in a given case during the course of cross-examination the defence counsel may put such a suggestion the answer to which may directly go against the accused and this is exactly what has happened in the present case.
41. The principle of law that in a criminal case, a lawyer has no implied authority to make admissions against his client during the progress of the trial would hold good only in cases where dispensation of proof by the prosecution is not permissible in law. For example, it is obligatory on the part of the prosecution to prove the post mortem report by examining the doctor. The accused cannot admit the contents of the post mortem report thereby absolving the prosecution from its duty to prove the contents of the same in accordance with law by examining the doctor. This is so because if the evidence per se is inadmissible in law then a defence counsel has no authority to make it admissible with his consent.
42. Therefore, we are of the opinion that suggestions made to the witness by the defence counsel and the reply to such suggestions would definitely form part of the evidence and can be relied upon by the Court along with other evidence on record to determine the guilt of the accused.”
43. The main object of cross-examination is to find out the truth on record and to help the Court in knowing the truth of the case. It is a matter of common experience that many a times the defence lawyers themselves get the discrepancies clarified arising during the cross-examination in one paragraph and getting themselves contradicted in the other paragraph. The line of cross-examination is always on the basis of the defence which the counsel would keep in mind to defend the accused. At this stage, we may quote with profit the observations made by a Division Bench of the Madhya Pradesh High Court in the case of Govind v. State of M.P. reported in 2005 Cri.LJ 1244. The Bench observed in paragraph 27 as under:
“27. The main object of cross-examination is to find out the truth and detection of falsehood in human testimony. It is designed either to destroy or weaken the force of evidence a witness has already given in person or elicit something in favour of the party which he has not stated or to discredit him by showing from his past history and present demeanour that he is unworthy of credit. It should be remembered that cross- examination is a duty, a lawyer owes to his clients and is not a matter of great personal glory and fame. It should always be remembered that justice must not be defeated by improper cross-examination. A lawyer owes a duty to himself that it is the most difficult art. However, he may fail in the result but fairness is one of the great elements of advocacy. Talents and genius are not aimed at self-glorification but it should be to establish truth, to detect falsehood, to uphold right and just and to expose wrongdoings of a dishonest witness. It is the most efficacious test to discover the truth. Cross-examination exposes bias, detects falsehood and shows mental and moral condition of the witnesses and whether a witness is actuated by proper motive or whether he is actuated by enmity towards his adversaries. Cross-examination is commonly esteemed the severest test of an advocate’s skill and perhaps it demands beyond any other of his duties exercise of his ingenuity. There is a great difficulty in conducting cross-examination with creditable skill. It is undoubtedly a great intellectual effort. Sometimes cross-examination assumes unnecessary length, the Court has power to control the cross- examination in such cases. (See Wrottescey on cross-examination of witnesses). The Court must also ensure that cross-examination is not made a means of harassment or causing humiliation to the victim of crime [See State of Punjab v. Gurmit Singh, 1996 SCC (Cri) 316].”
44. During the course of cross-examination with a view to discredit the witness or to establish the defence on preponderance of probabilities suggestions are hurled on the witness but if such suggestions, the answer to those incriminate the accused in any manner then the same would definitely be binding and could be taken into consideration along with other evidence on record in support of the same.
45. However, it would all depend upon the nature of the suggestions and with what idea in mind such suggestions are made to the witness. Take for instance in case of a charge of rape under Section 376 of the Indian Penal Code, the statement of the accused contained plain denial and a plea of false implication, a subsequent suggestion by the defence lawyer to the prosecutrix about consent on her part would not, by itself, amount to admission of guilt on behalf of the accused. In cases of rape, it is permissible for the accused to take more than one defence. In such type of cases a suggestion thrown by the defence counsel to a prosecution witness would not amount to an admission on the part of the accused. At the same time, if the defence in the cross examination of the prosecutrix, with a view to support their alternative case of consent procure answers to the questions in the form of suggestions implicating the accused for the offence of rape then such suggestions would definitely lend assurance to the prosecution case and the Court would be well justified in considering the same. We may give one more example of a case where the accused would plead right of a private defence. Such a defence is always available to the accused but although if such a defence is not taken specifically during the course of trial yet if the evidence on record suggests that the accused had inflicted injuries on the deceased in exercise of his right of private defence then the Court can definitely take into consideration such defence in determining the guilt of the accused. However, if a specific question is put to a witness by way of a suggestion indicative of exercise of right of private defence then the Court would well be justified in taking into consideration such suggestion and if the presence of the accused is established the same would definitely be admissible in evidence.”
Admission of Counsel Must Be Taken as a Whole
Generally speaking, concession or admission of a fact by a defence counsel would definitely be binding on his client, except the concession on the point of law (Balu Sudam Khalde v. The State of Maharashtra, AIR 2023 SC 1736).
But, our Apex Court in Moran Mar Basselios Catholicos v. The Most Rev. Mar Poulose, AIR 1954 SC 526, held as regards admission of counsel, as under:
“If it should be treated as an admission at all, it must have been accepted or rejected as a whole. It must not have been torn piecemeal and part used and part rejected.”
Suggestions (in Cross Exam) BY ITSELF – Not Sufficient to Hold Accused Guilty
In Balu Sudam Khalde v. State of Maharashtra, 2023 SCC OnLine SC 355, our Apex Court held that if the prosecution failed to prove its case, then it could not take advantage from the weakness of the defence, and it cannot base its case on the reply of the witnesses given to the suggestions of the defence counsel. It held as under:
“Suggestions by itself are not sufficient to hold the accused guilty if they are incriminating in any manner or are in the form of admission in the absence of any other reliable evidence on record.”
Mere Suggestions in Cross Examination- No Evidence
The Gujarat High Court held in Umedmiya R. Rathod v. State of Gujarat (J.B. Pardiwala, J.), AIR 2017(NOC) Guj 1146 (Guj), as under:
“It is a settled position of law that mere suggestions are not sufficient to dislodge or disprove the case of the plaintiff. Suggestions in cross examination have no evidentiary value. In absence of any evidence, nor any material traced in the cross-examination in support thereof, the findings so far could not have been answered in the affirmative by the Trial Court as well as by this Court in the First Appeal.”
In Bibhuti Bhusan Roy v. State of West Bengal, 2019 CrLJ 1140, held that mere suggestion in cross-examination unsupported by defence evidence has no evidentiary value.
Effect of non-cross-examination of a witness (on a point in chief examination) is that that statement is taken as undisputed or accepted.
A party in a civil trial is not required to in cross examination put its case to the witness as the same (already) exists in the pleadings.
In criminal cases, the case of the accused(similar to pleading in civil cases) is put on recordby way of suggestions to the (concerned) prosecution witnesses. (Note – all suggestions may not give such an out-turn.)
Suggestionsin cross examination, if not admitted by the witness, are no evidence.
Suggestion made by a counsel in the cross-examination will definitely bind his party. Whole case must be apprised for arriving at such an inference.
Probative value of evidence of a person died after examination in chief (not cross-examined) depends upon the facts of the case.
Probative value of evidence of a witness –partly cross examined, depends upon the facts of the case.
Probative value of document marked without objection ‘can’ be nil.
Effect of “No Effective Cross-Examination” (on Execution of sale deed)
Our Apex Court considered the effect of “no effective cross-examination” with respect to factum of execution of sale deed spoken to by a witness, in Muddasani Venkata Narsaiah v. Muddasani Sarojana, AIR 2016 SC 2250 (Followed in: Arvind Singh v. State of Maharashtra, AIR 2020 SC 2451, 2021-11 SCC 1). It was held in this decision –
Cross-examination is a matter of substance, not of procedure one.
A party is required to put his own version in cross-examination of opponent.
The effect of non-cross-examination is that the statement of witness has not been disputed.
Court may repel a submission – on the ground that same was not put either to the witnesses, or suggested before the courts below (referred to: Bhoju Mandal v. Debnath Bhagat, AIR 1963 SC 1906).
If no such questions are put, the court would presume that the witness account has been accepted (referred: M/s. Chuni Lal Dwarka Nath v. Hartford Fire Insurance Co. Ltd., AIR 1958 Punjab 440.)
In Maroti Bansi Teli v. Radhabai w/o Tukaram Kunbi & Ors. AIR 1945 Nagpur 60, it has been laid down that the matters sworn to by one party in the pleadings not challenged either in pleadings or cross-examination by other party must be accepted as fully established.
The High Court of Calcutta in A.E.G. Carapiet v. A.Y. Derderian AIR 1961 Cal. 359 has laid down that the party is obliged to put his case in cross-examination of witnesses of opposite party.
The rule of putting one’s version in cross-examination is one of essential justice and not merely technical one.
In Kuwarlal Amritlal v. Rekhlal Koduram, AIR 1950 Nagpur 83, has laid down that when attestation is not specifically challenged and witness is not cross-examined regarding details of attestation, it is sufficient for him to say that the document was attested.
If the other side wants to challenge that statement, it is their duty, quite apart from raising it in the pleadings, to cross-examine the witness along those lines.
In Karnidan Sarda v. Sailaja Kanta Mitra, AIR 1940 Patna 683, has laid down that it must be assumed that when the witnesses were not tested in that way, their evidence is to be ordinarily accepted.
Effect of NOT Challenging Validity of a deed in Cross Examination
When a deed is duly proved in the trial by the evidence of a witness, and the legality or validity of the same is not challenged in the cross examination, the court will act upon the deed as a legal and valid one (Atluri Brahmanandam v. Anne Sai Bapuji, 2013-4 SCC 97 : AIR 2013 SC 1204).
Effect of Not Cross-Examining a Witness (on a point)
Lord Herschell, L.C. in Browne vs. Dunn [(1893) 6 The Reports 67] clearly elucidates the principle underlying those provisions. It reads thus:
“I cannot help saying, that it seems to me to be absolutely essential to the proper conduct of a cause, where it is intended to suggest that a witness is not speaking the truth on a particular point, to direct his attention to the fact by some questions put in cross- examination showing that imputation is intended to be made, and not to take his evidence and pass it by as a matter altogether unchallenged, and then, when it is impossible for him to explain, as perhaps he might have been able to do if such questions had been put to him, the circumstances which, it is suggested, indicate that the story he tells ought not to be believed, to argue that he is a witness unworthy of credit. My Lords, I have always understood that if you intend to impeach a witness, you are bound, whilst he is in the box, to give an opportunity of making any explanation which is open to him; and, as it seems to me, that is not only a rule of professional practice in the conduct of a case, but it is essential to fair play and fair dealing with witnesses”. (Quoted in State of UP v. Nahar Sing, 1998-3 SCC 561.)
The effect of not cross-examining a witness, on a particular point, has been considered by the Supreme Court, in Laxmibai v. Bhagwantbuva, AIR 2013 SC 1204. It is observed as under:
“31. Furthermore, there cannot be any dispute with respect to the settled legal proposition, that if a party wishes to raise any doubt as regards the correctness of the statement of a witness, the said witness must be given an opportunity to explain his statement by drawing his attention to that part of it, which has been objected to by the other party, as being untrue. Without this, it is not possible to impeach his credibility. Such a law has been advanced in view of the statutory provisions enshrined in Sec. 138 of the Evidence Act, 1872, which enable the opposite party to cross-examine a witness as regards information tendered in evidence by him during his initial examination in chief, and the scope of this provision stands enlarged by Sec. 146 of the Evidence Act, which permits a witness to be questioned, inter-alia, in order to test his veracity. Thereafter, the unchallenged part of his evidence is to be relied upon, for the reason that it is impossible for the witness to explain or elaborate upon any doubts as regards the same, in the absence of questions put to him with respect to the circumstances which indicate that the version of events provided by him, is not fit to be believed, and the witness himself, is unworthy of credit. Thus, if a party intends to impeach a witness, he must provide adequate opportunity to the witness in the witness box, to give a full and proper explanation. The same is essential to ensure fair play and fairness in dealing with witnesses.”
In State of UP v. Nahar Sing, 1998-3 SCC 561, a criminal case, the Supreme Court observed as under:
“13. It may be noted here that that part of the statement of PW-1 was not cross-examined by the accused. In the absence of cross-examination on the explanation of delay, the evidence PW-1 remained unchallenged and ought to have been believed by the High Court. Section 138 of the Evidence Act confers a valuable right of cross-examining the witness tendered in evidence by the opposite party. The scope of that provision is enlarged by Section 146 of the Evidence Act by allowing a witness to be questioned:
to test his veracity.
to discover who he is and what is his position in life, or
to shake his credit, by injuring his character, although the answer to such questions might tend directly or indirectly to incriminate him or might expose or tend directly or indirectly to expose him to a penalty or forfeiture.
EFFECT OF MARKING DOCUMENTS WITHOUT OBJECTION
Effect of marking a document without formal proof on admission (or without objection) is a subject of controversy.
First view
Admission of contents & it dispenses with proof. See: RVE Venkatachala Gounder v. Arulmigu Viswesaraswami: AIR 2003 SC 4548; Narbada Devi v. Birendra Kumar: (2003) 8 SCC 745; Dayamati Bai v. K.M. Shaffi : AIR 2004 SC 4082; Oriental Insurance Co v. Premlata: (2007) 8 SCC 575; Thimmappa Rai v. Ramanna Rai,(2007) 14 SCC 63; Kalita Iqbal Basith v. N Subbalakshmi, (2021) 2 SCC 718.
Second View
Admission of contents – but, does not dispense with proof. See: Sait Tarajee Khimchand v. Yelamarti Satyam, AIR 1971 SC 1865; Nandkishore Lalbhai Mehta v. New Era Fabrics, AIR 2015 SC 3796.
Third view
If truth is in issue, mere proof of contents, or marking without objection, is not proof of truth. See: Narbada Devi Gupta v. Birendra Kumar Jaiswal, 2003-8 SCC 745; Ramji Dayawala Vs. Invest Import: AIR 1981 SC 2085
Fourth view
Admission of contents, dispenses with proof and truth; but its probative value will be a matter for appreciation by court. See: State of Bihar v. Radha Krishna Singh, AIR 1983 SC 684 (Admission and probative value – different); Rakesh Mohindra v. Anita Beri: 2015 AIR(SCW) 6271; Kaliya v. State of MP: 2013-10 SCC 758; H. Siddiqui v. A. Ramalingam: AIR 2011 SC 1492; Rasiklal Manikchand v. MSS Food Products: 2012-2 SCC 196.
Fifth view
Court should require (in proper cases) the party producing the document to adduce proper evidence as to execution, and to cure formal defects. See: Harkirat Singh v. Amrinder Singh, (2005) 13 SCC 511; Umesh Challiyil v. K.P. Rajendra, (2008) 11 SCC 740; KK Ramachandran Master v. MV Sreyamakumar, (2010) 7 SCC 428; AIR 2015 SC 3796.
Value of Evidence of Witness Untested (for death) by Cross-Examination
Andhra High Court (SB Sinha, CJ, as he then was) in Somagutta Sivasankara Reddy v. Palapandla Chinna Gangappa, 2002 Supp1 ALD 600, 2002-1 Andh WR 475, held that the evidence of a person who had died after examination in chief and could not be cross-examined, the weight or probative value of his evidence would vary from case to case and in a given case it could be disregarded.
In Anamika Pranav v. Anil Kumar Choudhary, 8 Feb, 2023, Patna High Court (Sunil Dutta Mishra, J.), it was held that the evidence of a witness untested by cross-examination can have no value but the evidence cannot be rejected as inadmissible. It is held as under:
“The correct rule is that the evidence is admissible but the weight to be attached to such evidence should depend on the circumstances of each case and that though in some cases the Court may act upon it, if there is other evidence on record, its probative value may be very small and may even be disregarded. The Court should look at the evidence carefully to see whether there are indications that by a complete cross-examination the testimony of the witness was likely to be seriously shaken or his good faith to be successfully impeached. If the evidence is inadmissible the Court is not entitled to consider it at all whereas if it admissible the Court must decide on the circumstances of each case whether any weight should be attached to it or not.”
The Single Judge followed the following decisions:
Mt. Horil Kuer v. Rajab Ali, AIR 1936 Pat 34
Srikishun Jhunjhunwalla v. Emperor, AIR 1946 Pat 384
Ahmad Ali v. Joti Prasad,AIR 1944 All. 188
Srikumar Mukherjee v. Avijit Mukherjee, 2015 SCC Online Cal. 6445.
Effect of Part Cross-Examination
In a civil case where there is no pleading as to fraud as to a document, it is not material that the party did not get an opportunity to cross-examine the witness through whom it was marked. In Dever Park Builders Pvt. Ltd. v. Smt. Madhuri Jalan, AIR 2003 Cal 55, the witness was partly cross examined. It is held as under:
“19. …. I find here a portion of the examination-in-chief has been cross-examined and such portion in my view should be absolutely admissible in evidence and be considered without any hesitation by the learned Judge at the time of hearing and deciding of the suit. Cross-examination is essentially needed to bring out the truth of the oral testimony, but in case of documentary evidence where there is no suggestion or pleading as to fraud and forgery the cross-examination hardly matters.
20. Therefore, I am unable to accept the argument of Mr. Dutt that the evidence of the deceased defendant shall be expunged and/or rejected altogether. It shall be considered and how much weight shall be attached should be decided considering the other facts and circumstances surrounding it. So the earlier order passed by me expunging the evidence of deceased defendant is recalled and the document and evidence already received in commission shall now be admitted as records of this case. Parties would be at liberty to use any of the exhibited documents.”
Prosecution Must Stand on Its Own Legs; Not on Weakness of Defence
Prosecution must stand or fall on its own legs and it cannot derive any strength from the weakness of the defence (Sharad B. Sarda v. State of Maharashtra, (1984) 4 SCC 116; AIR 1984 SC 1622).
The Apex Court also observed that though thesuggestion made in the cross-examination was not evidenceit certainly be called into aid to lend assurance to the prosecution case, particularly when other evidence establishes the guilt of the accused.
Effect of NO Cross-Exam. of Witness – Taken as Unchallenged
In Mahavir v. State of Uttar Pradesh, 2017-3 All Cri R 2407, it is held as under:
“35. The main object of cross-examination is to bring out falsity and to find out the truth. Cross-examination is an art. It would help the Court to assess the relative merits of the case projected by the parties. Matter of cross-examination is not a mere empty formality, but one is required to put its own case in cross-examination, otherwise deposition of the witness has to be taken as unchallenged. The matter has been considered in a number of decisions that it is the duty to put ones own version to opponent in cross-examination, otherwise deposition of the witness cannot be discredited as was held in Maroti Bansi Teli v. Radhabai, AIR 1945 Nag 60: 1944 NLJ 492. In Chunni Lal Dwarka Nath v. Hartford Fire Insurance Co.Ltd., AIR 1958 Punj 440 it has been held as under:
” It is well established rule of evidence that a party should put to each of his opponent’s witnesses so much of his case as concerns that particular witness. If no such questions are put, the Courts presume that the witness’s account has been accepted. If it is intended to suggest that a witness was not speaking the truth upon a particular point, his attention must first be directed to the fact by cross-examination so that he may have an opportunity of giving an explanation.”
Referring Jesu Asir Singh v. State, (2007) 12 SCC 19 : AIR 2007 SC 3015, it is held in Muneem Ahmad v. State of U. P., 2017-171 AIC 895, 2017-98 All CriC 405, that the question put in the cross-examination to a great extent probabilise the prosecution version; and that, though questions put in cross-examination are not always determinative in finding an accused guilty, they are certainly relevant.
Effect of NO Cross-Exam. of Witness – Taken as Afterthought
In Mehra v. State of Rajasthan, AIR 1957 SC 369 Yusuf Ali v. State of Maharashtra, AIR 1968 SC 147 it was held that when the accused did not suggest to prosecution witnesses in cross-examination indicating his defence, it was held that the defence version may be rejected as an afterthought. (Referred to in: Mahavir v. State of Uttar Pradesh, 2017-3 All Cri R 2407)
It is permissible for the accused to take more than one defence
It is an accepted principle that it is permissible for the accused to take more than one defence in a criminal case. In such type of cases a suggestion thrown by the defence counsel to a prosecution witness (especially when it is not admitted by the witness) would not amount to an admission on the part of the accused.
But, it may not be the same result, in civil cases.
It is Permissible to take more than one defence in cases of Rape
In Tarjubhai Narsingbhai Rathwa v. State of Gujarat, (J.B. Pardiwala, J.) 2014-1 GLH 781, 2014-2 GLR 943, 2014-36 GHJ 282, 2014-6 RCR(Cri) 297, though it is observed that it is permissible for the accused to take more than one defence in cases of rape, it is further pointed out as under:
“33. Any concession or admission of a fact by a defence counsel would definitely be binding on his client, except the concession on the point of law. As a legal proposition we cannot agree with the views expressed by Their Lordships of this Court in Koli Trikam Jivraj v. The State of Guj., 1969 CrLJ 409, AIR 1969 Guj 69. that an answer by a witness to a suggestion made by the defence counsel in the cross-examination does not deserve any value or utility if it incriminates the accused in any manner. At the same time, we are also unable to agree with the views expressed by Their Lordships of this Court that a statement of an accused recorded under Section 313 of the Criminal Procedure Code does not deserve any value of utility if it contains inculpatory admissions.”
It is also held as under:
“43. … At the same time, if the defence in the cross- examination of the prosecutrix, with a view to support their alternative case of consent procure answers to the questions in the form of suggestions implicating the accused for the offence of rape then such suggestions would definitely lend assurance to the prosecution case and the Court would be well justified in considering the same.”
Suggestions in Cross Examination to Witnesses
Concession or Admission of a fact by a defence counsel would bind on his client.
Suggestions in cross examination, by itself, are no evidence.
In criminal trials, suggestions in cross examination may take the position as ‘pleadings’ in civil cases.
In a civil trial it is not required to put its case to the witness, as pleadings already exists.
Probative value of suggestion and admission in cross-examination varies depending on the facts of each case.
There being well defined pleadings in civil cases, the suggestion or admission in cross-examination (by the advocate) has no importance as that in a criminal case.
It appears that the acceptable view is that laid down in Mahavir v. State of Uttar Pradesh, 2017-3 All Cri R 2407. It is held:
Any suggestion made in the cross-examination of the prosecution witness by the defence, can not be used as an evidence against the accused
but at the same time it can be called in aid when the other evidence establishes the guilt of the accused.
In Mahavir v. State of Uttar Pradesh, 2017-3 All Cri R 2407, it is held as under:
36. The suggestion made in cross-examination form part of the evidence on record. Those suggestion can be taken into consideration while determining whether the reply given was believable or not. Though suggestion in cross-examination which is denied by the witness, is not evidence at all. Any suggestion made in the cross-examination of the prosecution witness by the defence, can not be used as an evidence against the accused but at the same time it can be called in aid when the other evidence establishes the guilt of the accused.
37. Though the suggestionmade in the cross-examination is not evidence but certainly the same may be called into aid to lend assurance to the prosecution case particularly when other evidence establishes the guilt of the accused.”
The Kerala High Court, in A. K. Ali v. C. H. Mammuty, 1989 CrLJ 1820, opined that a suggestion made in the cross examination of witnesses though not binding on the accused as admissions, those suggestions in cross examination and statements of the accused given when questioned under S.313 could be taken into account for ascertaining thebona fides of the contentions.
But, in Khimjibhai Kurjibhai v. The State of Gujarat, 1982 CrLR (Guj), it is held that the suggestion in cross examination are no evidence. It appears that this view has not been followed later on.
Suggestions in Cross Examination to Witnesses – in Civil Cases
In Srichand and Shivan Das v. The State, 1985-28 DLT 360, the Delhi High Court held as under:
“6…. The law is well settled that where the evidence of a witness is allowed to go unchallenged with regard to any particular point it may safely be accepted as true ….”.
The Delhi High Court held in Sher Mohammad v. Mohan Magotra (Rajiv Sahai Endlaw, J.), 2013-202 DLT 708; 2013 SCC OnLine Del 2530, as under:
“However, I am of the opinion that in a civil trial which is based on pleadings, there is no need for such suggestions to be given. The respondent in his written statement had already denied the said payment and it was for the appellant to prove the same. The practice of giving suggestions in cross examination to witnesses is of criminal trials where there are no pleadings and the defence is built up by giving such suggestions. … The purport of cross examination is to challenge the testimony and/or to falsify the witness or his credit worthiness and not to give suggestions to the effect that each and every deposition in examination-in-chief is false. Similarly, a party in a civil trial is not required to in cross examination put its case to the witness as the same as aforesaid already exists in the pleadings.”
The Delhi High Court, subsequently, in Sa v. Aa, 2016 SCC OnLine Del 1818 (taking note of Srichand and Shivan Das v. The State, 1985-28 DLT 360) preferred not to follow Sher Mohammad v. Mohan Magotra , 2013-202 DLT 708; 2013 SCC OnLine Del 2530, which held that non-cross examination of a witness on a suggestion will not be so seriousas in a criminal case (for there are pleadings). It appears that it is not the correct proposition of law.
Admission of Counsel Must Be Taken as a Whole
Generally speaking, concession or admission of a fact by a defence counsel would definitely be binding on his client, except the concession on the point of law (Balu Sudam Khalde v. The State of Maharashtra, AIR 2023 SC 1736).
But, our Apex Court in Moran Mar Basselios Catholicos v. The Most Rev. Mar Poulose, AIR 1954 SC 526, held as regards admission of counsel, as under:
“If it should be treated as an admission at all, it must have been accepted or rejected as a whole. It must not have been torn piecemeal and part used and part rejected.”
Suggestion or Admission in Cross-Examination – Evidentiary Value
Suggestion and admission in cross-examination being come in ‘appreciation of evidence’, probative value of the same is a matter for the court, and it varies depending on the facts of each case. The principle involved therein is consistent – that is, truth should prevail.
There being well defined pleadings as Plaint and Written Statement in civil cases, it gets prime importance in determining the case of parities to civil cases. Therefore, the suggestion or admission in cross-examination (by the advocate) has no importance as that in a criminal case.
In Tarun Bora alias Alok Hazarika v. State of Assam, 2002-7 SCC 39; 2002 Cri. LJ 4076 (SC), the presence of the accused was admitted in a suggestion put to one of the witnesses. Considering the reply given by the witness the court arrived at the conclusion that the presence of the accused was admitted. (Referred to in: Balu Sudam Khalde v. The State of Maharashtra, AIR 2023 SC 1736.)
In Rakesh Kumar alias Babli v. State of Haryana, 1987-2 SCC 34, a suggestion was put by the defence to the witness with regard to the colour of the shirt worn by one of the accused persons at the time of the incident. The Apex Court considering the suggestion and the reply arrived at the conclusion that the presence of the accused namely Dharam Vir was established on the spot at the time of occurrence. (Referred to in: Balu Sudam Khalde v. The State of Maharashtra, AIR 2023 SC 1736.)
In Balu Sudam Khalde v. The State of Maharashtra (Sudhanshu Dhulia, J.B. Pardiwala), AIR 2023 SC 1736, it was held as under:
38. Thus, from the above it is evident that the suggestion made by the defence counsel to a witness in the cross-examination if found to be incriminating in nature in any manner would definitely bind the accused and the accused cannot get away on the plea that his counsel had no implied authority to make suggestions in the nature of admissions against his client.
39. Any concession or admission of a fact by a defence counsel would definitely be binding on his client, except the concession on the point of law. As a legal proposition we cannot agree with the submission canvassed on behalf of the appellants that an answer by a witness to a suggestion made by the defence counsel in the cross- examination does not deserve any value or utility if it incriminates the accused in any manner.
40. It is a cardinal principle of criminal jurisprudence that the initial burden to establish the case against the accused beyond reasonable doubt rests on the prosecution. It is also an elementary principle of law that the prosecution has to prove its case on its own legs and cannot derive advantage or benefit from the weakness of the defence. We are not suggesting for a moment that if prosecution is unable to prove its case on its own legs then the Court can still convict an accused on the strength of the evidence in the form of reply to the suggestions made by the defence counsel to a witness. Take for instance, in the present case we have reached to the conclusion that the evidence of the three eyewitnesses inspires confidence and there is nothing in their evidence on the basis of which it could be said that they are unreliable witnesses. Having reached to such a conclusion, in our opinion, to fortify our view we can definitely look into the suggestions made by the defence counsel to the eyewitnesses, the reply to those establishing the presence of the accused persons as well as the eyewitnesses in the night hours. To put it in other words, suggestions by itself are not sufficient to hold the accused guilty if they are incriminating in any manner or are in the form of admission in the absence of any other reliable evidence on record. It is true that a suggestion has no evidentiary value but this proposition of law would not hold good at all times and in a given case during the course of cross-examination the defence counsel may put such a suggestion the answer to which may directly go against the accused and this is exactly what has happened in the present case.
41. The principle of law that in a criminal case, a lawyer has no implied authority to make admissions against his client during the progress of the trial would hold good only in cases where dispensation of proof by the prosecution is not permissible in law. For example, it is obligatory on the part of the prosecution to prove the post mortem report by examining the doctor. The accused cannot admit the contents of the post mortem report thereby absolving the prosecution from its duty to prove the contents of the same in accordance with law by examining the doctor. This is so because if the evidence per se is inadmissible in law then a defence counsel has no authority to make it admissible with his consent.
42. Therefore, we are of the opinion that suggestions made to the witness by the defence counsel and the reply to such suggestions would definitely form part of the evidence and can be relied upon by the Court along with other evidence on record to determine the guilt of the accused.”
43. The main object of cross-examination is to find out the truth on record and to help the Court in knowing the truth of the case. It is a matter of common experience that many a times the defence lawyers themselves get the discrepancies clarified arising during the cross-examination in one paragraph and getting themselves contradicted in the other paragraph. The line of cross-examination is always on the basis of the defence which the counsel would keep in mind to defend the accused. At this stage, we may quote with profit the observations made by a Division Bench of the Madhya Pradesh High Court in the case of Govind v. State of M.P. reported in 2005 Cri.LJ 1244. The Bench observed in paragraph 27 as under:
“27. The main object of cross-examination is to find out the truth and detection of falsehood in human testimony. It is designed either to destroy or weaken the force of evidence a witness has already given in person or elicit something in favour of the party which he has not stated or to discredit him by showing from his past history and present demeanour that he is unworthy of credit. It should be remembered that cross- examination is a duty, a lawyer owes to his clients and is not a matter of great personal glory and fame. It should always be remembered that justice must not be defeated by improper cross-examination. A lawyer owes a duty to himself that it is the most difficult art. However, he may fail in the result but fairness is one of the great elements of advocacy. Talents and genius are not aimed at self-glorification but it should be to establish truth, to detect falsehood, to uphold right and just and to expose wrongdoings of a dishonest witness. It is the most efficacious test to discover the truth. Cross-examination exposes bias, detects falsehood and shows mental and moral condition of the witnesses and whether a witness is actuated by proper motive or whether he is actuated by enmity towards his adversaries. Cross-examination is commonly esteemed the severest test of an advocate’s skill and perhaps it demands beyond any other of his duties exercise of his ingenuity. There is a great difficulty in conducting cross-examination with creditable skill. It is undoubtedly a great intellectual effort. Sometimes cross-examination assumes unnecessary length, the Court has power to control the cross- examination in such cases. (See Wrottescey on cross-examination of witnesses). The Court must also ensure that cross-examination is not made a means of harassment or causing humiliation to the victim of crime [See State of Punjab v. Gurmit Singh, 1996 SCC (Cri) 316].”
44. During the course of cross-examination with a view to discredit the witness or to establish the defence on preponderance of probabilities suggestions are hurled on the witness but if such suggestions, the answer to those incriminate the accused in any manner then the same would definitely be binding and could be taken into consideration along with other evidence on record in support of the same.
45. However, it would all depend upon the nature of the suggestions and with what idea in mind such suggestions are made to the witness. Take for instance in case of a charge of rape under Section 376 of the Indian Penal Code, the statement of the accused contained plain denial and a plea of false implication, a subsequent suggestion by the defence lawyer to the prosecutrix about consent on her part would not, by itself, amount to admission of guilt on behalf of the accused. In cases of rape, it is permissible for the accused to take more than one defence. In such type of cases a suggestion thrown by the defence counsel to a prosecution witness would not amount to an admission on the part of the accused. At the same time, if the defence in the cross examination of the prosecutrix, with a view to support their alternative case of consent procure answers to the questions in the form of suggestions implicating the accused for the offence of rape then such suggestions would definitely lend assurance to the prosecution case and the Court would be well justified in considering the same. We may give one more example of a case where the accused would plead right of a private defence. Such a defence is always available to the accused but although if such a defence is not taken specifically during the course of trial yet if the evidence on record suggests that the accused had inflicted injuries on the deceased in exercise of his right of private defence then the Court can definitely take into consideration such defence in determining the guilt of the accused. However, if a specific question is put to a witness by way of a suggestion indicative of exercise of right of private defence then the Court would well be justified in taking into consideration such suggestion and if the presence of the accused is established the same would definitely be admissible in evidence.”
Suggestions (in Cross Exam) BY ITSELF – Not Sufficient to Hold Accused Guilty
In Balu Sudam Khalde v. State of Maharashtra, 2023 SCC OnLine SC 355, our Apex Court held that if the prosecution failed to prove its case, then it could not take advantage from the weakness of the defence, and it cannot base its case on the reply of the witnesses given to the suggestions of the defence counsel. It held as under:
“Suggestions by itself are not sufficient to hold the accused guilty if they are incriminating in any manner or are in the form of admission in the absence of any other reliable evidence on record.”
Mere Suggestions in Cross Examination- No Evidence
The Gujarat High Court held in Umedmiya R. Rathod v. State of Gujarat (J.B. Pardiwala, J.), AIR 2017(NOC) Guj 1146 (Guj), as under:
“It is a settled position of law that mere suggestions are not sufficient to dislodge or disprove the case of the plaintiff. Suggestions in cross examination have no evidentiary value. In absence of any evidence, nor any material traced in the cross-examination in support thereof, the findings so far could not have been answered in the affirmative by the Trial Court as well as by this Court in the First Appeal.”
In Bibhuti Bhusan Roy v. State of West Bengal, 2019 CrLJ 1140, held that mere suggestion in cross-examination unsupported by defence evidence has no evidentiary value.
A fact is said to be proved (Sec. 3 Evidence Act) when, after considering the matters before it, the court either believes it to exist, or consider its existence so probable that a prudent man ought, under the circumstances of the particular case, to act upon the supposition that it exists. This is the definition given for the word proved in the Evidence Act.
Proof of Fact Depends Upon the Degree of Probability
In M. Narsinga Rao v. State of Andhra Pradesh, AIR 2001 SC 318, it is observed that what is required is production of such materials on which the court can reasonably act to reach the supposition that a fact exists. The Apex Court then proceeds as under:
“Proof of the fact depends upon the degree of probability of its having existed. The standard required for reaching the supposition is that of a prudent man acting in any important matter concerning him.
Fletcher Moulton L.J. in Hawkins v. Powells Tillery Steam Coal Company, Ltd. [1911 (1) K.B. 988] observed like this: Proof does not mean proof to rigid mathematical demonstration, because that is impossible; it must mean such evidence as would induce a reasonable man to come to a particular conclusion”.
The said observation has stood the test of time and can now be followed as the standard of proof. In reaching the conclusion the court can use the process of inferences to be drawn from facts produced or proved.”
Inference as to Proof is Akin to Presumption – Law Gives Discretion to Court
As stated earlier ‘Proof’ is what the court either believes it to exist, or consider its existence so probable. In M. Narsinga Rao v. State of Andhra Pradesh, AIR 2001 SC 318, it is further observed as regards ‘process of inference of proof’ by a court, as under:
“Such inferences (as to Proof) are akin to presumptions in law. Law gives absolute discretion to the court to presume the existence of any fact which it thinks likely to have happened. In that process the court may have regard to common course of natural events, human conduct, public or private business vis-à-vis the facts of the particular case. The discretion is clearly envisaged in Section 114 of the Evidence Act. Presumption is an inference of a certain fact drawn from other proved facts. While inferring the existence of a fact from another, the court is only applying a process of intelligent reasoning which the mind of a prudent man would do under similar circumstances. Presumption is not the final conclusion to be drawn from other facts. But it could as well be final if it remains undisturbed later. Presumption in Law of Evidence is a rule indicating the stage of shifting the burden of proof. From a certain fact or facts the court can draw an inference and that would remain until such inference is either disproved or dispelled. For the purpose of reaching one conclusion the court can rely on a factual presumption. Unless the presumption is disproved or dispelled or rebutted, the court can treat the presumption as tantamounting to proof. However, as a caution of prudence we have to observe that it may be unsafe to use that presumption to draw yet another discretionary presumption unless there is a statutory compulsion. This Court has indicated so in Suresh Budharmal Kalani vs. State of Maharashtra [1998 (7) SCC 337]. A presumption can be drawn only from facts – and not from other presumptions by a process of probable and logical reasoning.”
Probative Value of Evidence
Origin of ‘Probative’ is from ‘Probare’ (Latin), means to prove; and ‘Probatio’ (Latin), means experience, trial, proof, testing, probation etc. In law, the meaning of ‘probative value’ is –
Sufficiency of evidence which is useful to prove something in a trial.
Probability of proof or truth while appreciating a fact.
Value or weight of evidence, considered by the court, in proof of something.
Extent of evidentiary value that can be taken to prove a proffered proposition.
Whenever a document is admitted in court, the probative value thereof will be a matter for the court to determine. In State of Bihar v. Radha Krishna Singh, AIR 1983 SC 684, it is observed:
“Admissibility of a document is one thing and its probative value quite another—these two aspects cannot be combined. A document may be admissible and yet may not carry any conviction and weight or its probative value may be nil.”
E.g. – previous criminal conduct of an accused, photocopy of a deed certified copy of which is provided in law, ‘objectionable document’ marked without objection, un-cross-examined testimony of a witness etc.
If there is a dispute regarding age, the Supreme Court, in State of Punjab Vs. Mohinder Singh (AIR 2005 SC 1868), held that the date of birth available in the School Admission Register has more probative value than the horoscope. The probative value of FIR, Scene-Mahazar, Post-Mortem Report, photocopy of a Registered Deed etc., by itself, will be lesser. In such cases the court can refrain from acting upon such documents until substantive or regular evidence is offered, by examining the proper witness.
In Om Prakash Vs. State of Punjab, 1993(2) CLR 395, and Jora Singh Vs. State of Punjab, 1984(2) Crimes 837, it has been held that an entry in the school leaving certificate regarding date of birth of a student is not a conclusive proof or high ‘probityevidence’because it is a matter of common knowledge that the date of birth given at the time of the admission of a boy or girl in a school is seldom correct and more often than not the age given is less than the actual age of the child. (See also: C. Doddanarayana Reddy Vs. C. Jayarama Reddy: AIR 2020 SC 1912; Commissioner of Central Excise And Service Tax v. M/S. Sanjivani Non-Ferrous Trading: AIR 2019 SC 203.)
A ‘Certificate’ or ‘Expert Opinion’ is NOT Per Se Admissible
A certificate, in most cases, is an opinion, and prepared on the basis of other documents or evidences. In such cases, when it is an assumption or inference, it by itself, is not admissible, as it will only be, at the most, a secondary evidence. A Wound Certificate is not a substantive evidence. It has to be proved by a competent witness. Unless presumption can be invoked under Clause (e) of Sec. 114 Evidence Act (that judicial and official acts have been regularly performed), no certificate can be taken as proved unless its contents are proved in a formal manner.
This is why Order XXVI rule 10 CPC specifically says – Commission Report shall ‘form part of the record’.
Unless the expert is examined in the court, his opinion cannot be relied on. (State of Maharashtra vs. Damu, AIR 2000 SC 1691). Opinion or report of a finger print expert is not a substantive evidence. Such evidence can only be used to corroborate some items of substantive evidence which are otherwise on record (Musheer Khan Vs. State of M.P, 2019-7 SCC 781; AIR. 2010 SC 3762).
Our Apex Court held in Dharmarajan v. Valliammal, 2008 (2) SCC 741, that ‘a certificate issued by the Tahsildar cannot be relied on without examining the Tahsildar who issued the same’. It is referred to in Pankajakshan Nair v. Shylaja, ILR 2017-1 Ker 951.
Appreciation of Evidence is Both an Art and a Science
R. Basant, J., in Basheer Vs. Mahasakthi Enterprises – 2005-3 Ker LT 163: 2005-1 Mad LJ 965, held as under:
“The appreciation of evidence is both an art and a science. All relevant inputs have to be taken into consideration for the Court to answer a disputed question of fact. Each circumstance including the opinion tendered by an expert must be taken into consideration. All the relevant inputs must be placed in the crucible. But the result of such appreciation must stem from prudence, reasonableness and intelligence of the Court. The knowledge of men and matters of the Court would be crucial. The knowledge of the court of common course of events and natural and probable behaviour of human beings will be vital. The yardsticks of a reasonably prudent mind have to be accepted. All relevant circumstances must go into the decision making. When the evidence is sifted, weighed, tested, analysed and evaluated, no one piece of evidence can be said to overrule the others unless such evidence be clinching, convincing and beyond doubt.”
Classification of Evidence
On a broad classification, according to Sec. 3 (definitions) and 45 of the Evidence Act, ‘evidence’ can be classified into following categories –
Oral evidence;
Documentary evidence including electronic records; and
Opinions of experts including views of persons specially skilled in foreign law, science or art, or in questions as to identify of handwriting or finger-impressions. It may also be termed as scientific evidence.
Difference in appreciation of evidence in Criminal and Civil matters.
Civil courts proceeds on the principle – “preponderance of probability”. Criminal courts proceeds on the principle – guilt of the accused must be ‘proved beyond all reasonable doubts’.
Preponderance of Probabilities
‘Preponderance’ is used for it carries or conveys the idea that the conscience of the judge is important in appreciation of evidence and law in civil matters. It is also used in contrast to ‘certainty beyond doubt’ (pertains to criminal law). In the process of appreciation of evidence, the ‘slight’ evidence may ‘tilt the balance’ in Civil cases on applying the principle of ‘preponderance’. Therefore, it is said that the evidence is to be weighed. That is, ‘count’ is not the material thing, for a ‘genuine’ judge. It is laid down in Section 134 of the Evidence Act which reads as under:
“No particular number of witnesses shall in any case be required for the proof of any fact.”
In Narayan Ganesh Dastane v. Sucheta Narayan Dastane, AIR 1975 SC 1534, our Apex Court observed as under:
“The normal rule which governs civil proceedings is that a fact can be said to be estabilshed if it is proved by a preponderance of probabilities. This is for the reason that under the Evidence Act, Sec. 3, a fact is said to be proved when the court either believes it to exist or considers its existence so probable that a prudent man ought, under the circumstances of the particular case, to act upon the supposition that it exists. The belief regarding the existence of a fact may thus be founded on a balance of probabilities. A prudent man faced with conflicting probabilities concerning a fact-situation will act on the supposition that the fact exists, if on weighing the various probabilities he finds that the preponderance is in favour of the existence of the particular fact. As a prudent man, so the court applies this test for finding whether a fact in issue can be said to be proved. The first step in this process is to fix the probabilities, the second to weigh them, though the two may often intermingle. The impossible is weeded out at the first stage, the improbable at the second. Within the wide range of probabilities the court has often a difficult choice to make but it is this choice which ultimately determines where the preponderance of probabilities lies.”
Our Apex Court referred the following two English decisions-
(1) Per Dixon,J.in Wright v.Wright (1948)77 C.L.R.191. It observed as under:
“The nature and gravity of an issue necessarily determines the manner of attaining reasonable satisfaction of the truth of the issue”;
(2) Blyth v. Blyth, [1966] 1 A.E.R. 524 (Lord Denning). It is observed as under:
“The degree of probability depends on the subject-matter. In proportion as the offence is grave, so ought the proof to be clear”
Standard of proof required under Sect. 139 NI Act is ‘preponderance of probabilities’
In Rangappa v. Sri Mohan, (2010) 11 SCC 441, our Apex Court held that Sec. 139, Negotiable Instruments Act, 1881 (liability of accused is presumed “unless the contrary is proved”) contains ‘reverse onus clause‘; and that under Sect. 139, the standard of proof required for rebutting that presumption is ‘preponderance of probabilities’. (Followed in Anss Rajashekar v. Augustus Jeba Ananth, AIR 2019 SC 942).
In Basalingappa v. Mudibasappa, 2019-5 SCC 418, while considering the presumption in 138 NI Act, it is held that when financial capacity is questioned, it was incumbent on the complainant to have explained his financial capacity and that the Court cannot insist on a person to lead negative evidence.
In Basalingappa v. Mudibasappa, 2019-5 SCC 418, while considering the presumption in 138 NI Act, it is held that when financial capacity is questioned, it was incumbent on the complainant to have explained his financial capacity and that the Court cannot insist on a person to lead negative evidence.
In Oriental Bank of Commerce v. Prabodh Kumar Tewari (AS Bopanna, Dhananjaya Y Chandrachud), 2022-7 SCR 72, it is held as under:
“12. Section 139 of the Act mandates that it shall be presumed, unless the contrary is proved, that the holder of a cheque received it, in discharge, in whole or in part, of a debt, or liability.
The expression “unless the contrary is proved” indicates that the presumption under Section 139 of the Act is rebuttable. Terming this as an example of a “reverse onus clause” the three-Judge Bench of this Court in Rangappa held that in determining whether the presumption has been rebutted, the test of proportionality must guide the determination. The standard of proof for rebuttal of the presumption under Section 139 of the Act is guided by a preponderance of probabilities.”
Reasonable Possibility alone is needed to Rebut Presumption
In Kali Ram Vs. State of Himachal Pradesh, (1973) 2 SCC 808, it was laid down by our Apex Court as under:
“23. ……One of the cardinal principles which has always to be kept in view in our system of administration of justice for criminal cases is that a person arraigned as an accused is presumed to be innocent unless that presumption is rebutted by the prosecution by production of evidence as may show him to be guilty of the offence with which he is charged. The burden of proving the guilt of the accused is upon the prosecution and unless it relieves itself of that burden, the courts cannot record a finding of the guilt of the accused. There are certain cases in which statutory presumptions arise regarding the guilt of the accused, but the burden even in those cases is upon the prosecution to prove the existence of facts which have to be present before the presumption can be drawn. Once those facts are shown by the prosecution to exist, the Court can raise the statutory presumption and it would, in such an event, be for the accused to rebut the presumption. The onus even in such cases upon the accused is not as heavy as is normally upon the prosecution to prove the guilt of the accused. If some material is brought on the record consistent with the innocence of the accused which may reasonably be true, even though it is not positively proved to be true, the accused would be entitled to acquittal.” (Quoted in: Basalingappa v. Mudibasappa: 2019-5 SCC 418.)
In M.S. Narayana Menon v. State of Kerala, (2006) 6 SCC 39 (SB Sinha), it was held that a probable defence or reasonable possibilityalone is needed to rebut the presumption, which must meet the standard of “preponderance of probability”. In M.S. Narayana Menon v. State of Kerala, (2006) 6 SCC 39 (SB Sinha) observed as under:
“In Hiten P. Dalal v. Bratindranath Banerjee [(2001) 6 SCC 16], a 3- Judge Bench of this Court held that although by reason of Sections 138 and 139 of the Act (NI Act), the presumption of law as distinguished from presumption of fact is drawn, the court has no other option but to draw the same in every case where the factual basis of raising the presumption is established. Pal, J. speaking for a 3-Judge Bench, however, opined:
“Presumptions are rules of evidence and do not conflict with the presumption of innocence, because by the latter, all that is meant is that the prosecution is obliged to prove the case against the accused beyond reasonable doubt. The obligation on the prosecution may be discharged with the help of presumptions of law or fact unless the accused adduces evidence showing the reasonable possibility of the non-existence of the presumed fact.
In other words, provided the facts required to form the basis of a presumption of law exist, no discretion is left with the court but to draw the statutory conclusion, but this does not preclude the person against whom the presumption is drawn from rebutting it and proving the contrary. A fact is said to be proved when, ‘after considering the matters before it, the court either believes it to exist, or considers its existence so probable that a prudent man ought, under the circumstances of the particular case, to act upon the supposition that it exists’. Therefore, the rebuttal does not have to be conclusively established but such evidence must be adduced before the court in support of the defence that the court must either believe the defence to exist or consider its existence to be reasonably probable, the standard of reasonability being that of the ‘prudent man’.”
Lack of Source of Income of Complainant Negatives Presumption
Under Sec. 139 of NI Act, the burden is on the accused to rebut the presumptions available. If the court comes to the conclusion that the complainant had no source of income to lend a large sum to the accused, court can came to the conclusion that the complainant had failed to prove that there is no legally recoverable debt payable by the accused to him. (K Subramani v. K Damodar Naidu, (2015) 1 SCC 99.)
Admissibility & Relevancy in Evidence Act
Admissions (Evid. Act: Sec 24-30)
Confessions (Sec 24-30)
Extra Judicial
Judicial
Burden of Proof (Sec 101, 103, 108, 110, 113)
Presumption (Sec 4)
May presume
Shall presume.
Relevancy of Facts (Sec. 5 to 14)
Evidence may be given in any suit or proceedings of every fact in issue. S. 5 onwards.
Facts though not in issue but connected with a fact in issue which form part of same transaction. S. 6
Facts which are cause or effect of facts in issue. S. 7
Facts is that shows motive, preparation and previous or subsequent conduct. S. 8
Facts that establish identity of a thing or person or fix the time or place of a relevant fact or transaction. S. 9
Things said or done by conspirator in reference to common design. S. 10
Facts showing existence of state of mind, or of body. S. 14
Relevancy of Admissions (S. 17)
Statements made by party or his agent. S. 18 .
Admissions can be proved against the person who makes them. S. 21 .
Oral admissions as to contents of documents or electronic records are not relevant. Ss. 22 & 22A.
No confession made under inducement and that to a police officer to be proved against accused. S. 24, S.25 & S.26 except under S. 27, S.28 & S.29.
Confession affecting person making it and others jointly under trial. S. 30.
Relevancy of Facts (Sec. 32 to 44)
Statement of relevant fact by dead or missing person. S. 32.
Evidence by dead or missing person in a judicial proceeding. S. 33.
Entries in books and official records. S. 34 & S.35.
Facts in maps or charts, notifications and law books under the authority of the Government. S. 36, S.37 & S.38.
When to be proved. S. 39.
Previous judgments bar a second suit or trial. S.40.
Any final judgment in probate or insolvency jurisdiction. S.41.
Relevancy of Opinion (Sec. 45 to 51)
Opinion of an expert. S.45.
Opinion of any person acquainted with the handwriting of the person. S.47
Our Apex Court continued in Narayan Ganesh Dastane v. Sucheta Narayan Dastane, AIR 1975 SC 1534, as under:
“In civil cases this, normally, is the standard of proof to apply for finding whether the burden of proof is discharged. Proof beyond reasonable doubt is proof by a higher standard which generally governs criminal trials or trials involving inquiry into issues of a quasi-criminal nature. A criminal trial involves the liberty of the subject which may not be taken away on a mere preponderance of probabilities. If the probabilities are so’ nicely balanced that a reasonable, not a vascillating, mind cannot find where the preponderance lies, a doubt arises regarding the existence of the fact to be proved and the benefit of such reasonable doubt goes to the accused. It is wrong to import such considerations in trials of a purely civil nature.”
Evidence in Old Transaction – Vigor in RECENT TRANSACTIONS could Not be EXPECTED
In Muthialpet Benefit Fund Ltd. v. V. Devarajulu Chetty, AIR 1955 Mad 455, it is held as under:
“7. To my mind, neither of the first two points is convincing because the first is based on the rather over-optimistic and facile profession of faith made in every minors suit that he the minor is going to win and to which the statistics of our Courts do not unfortunately lend any support and especially so in this case and in the circumstances set out above, which make out prima facie that the mortgagee public institution made proper and bona fide enquiry as to the existence of necessity and did all that was reasonable to satisfy itself as to the existence of such necessity. In such a case even if there was no necessity in fact or even if the money borrowed was not applied to meet the necessity, the alienation will be upheld. The recitals of necessity in the deed are admissible in evidence as admissions of the Manager or father and also amount to representation ofnecessity though in the case of RECENT TRANSACTIONS evidence aliunde** would be NORMALLY EXPECTED. These elementary propositions require no buttressing by citations (See Mulla, Hindu Law, Edn.10, p.285; Raghavachari: Hindu Law, Edn.3, p.335 and following; Mayne: Hindu Law, Edn.11, Re-print pp.474-475). Secondly, it is in the best interest of the mortgagors themselves to prevent the deterioration of the value of the corpus and market it into cash and keep the sale proceeds in Court pending and abiding the result of the suit.”
(**from other sources)
In Jagna Sanyasiah v. Mycherla Peda Atchanna Naidu, AIR 1921 Mad 624, it is held as under:
“5. The respondents’ contention in their memorandum of objections would, in my opinion, have to be allowed as the passing of consideration for a document which is more than 30 years old and which was ever questioned till this suits was brought should be taken as proved even if the direct evidence is not as strongas might be naturally expected in respect of recent transactions.”
Conflict Between Oral Evidence and Scientific Evidence, Which Will Prevail
It depends upon the nature of the subject matter.
In case of a conflict between oral evidence and scientific evidence, which will prevail? The answer is that it depends upon the nature of the subject matter. In everyday practice we see that trustworthy and credible oral evidence get primacy status over the scientific evidence. It is on the principle that the scientific evidence is always an ‘opinion’ or ‘possibility’ only. By the advent of scientific techniques in the field of judicial investigation and enquiry, our judicial process began to assign due importance to scientific evidence. Still, the oral evidence has primacy over the scientific evidence.
Expert Evidence is only Corroborative
It is important that Section 45 of the Evidence Act does not say anything as to the weight to be attached to the expert evidence. This Section only says that expert’s evidence is admissible. The expert-evidence is not substantive evidence; and it is generally used as a piece of evidence for corroboration or conflict with oral evidence. The evidence of an expert only aids and helps the Court as advisory material. The expert being not a witness of fact, his opinion is to be analysed objectively by the court. The decision making process is never delegated to the expert; the expert only helps and assists the Court to decide. Courts always give due importance to the opinion of the experts. But, it will not substitute proof. Court is said to be the expert of experts.
In Solanki Chimanbhai Ukabhai v. State of Gujarat, (1983) 2 SCC 174, it was held that the evidence of eyewitnesses should be preferred unless the medical evidence completely rules it out. It was held as under:
“13. Ordinarily, the value of medical evidence is only corroborative. It proves that the injuries could have been caused in the manner alleged and nothing more. The use which the defence can make of the medical evidence is to prove that the injuries could not possibly have been caused in the manner alleged and thereby discredit the eyewitnesses. Unless, however the medical evidence in its turn goes so far that it completely rules out all possibilities whatsoever of injuries taking place in the manner alleged by eyewitnesses, the testimony of the eyewitnesses cannot be thrown out on the ground of alleged inconsistency between it and the medical evidence.”
In State of Haryana v. Bhagirath, (1999) 5 SCC 96, the Supreme Court held as under:
“15. The opinion given by a medical witness need not be the last word on the subject. Such opinion shall be tested by the court. If the opinion is bereft of logic or objectivity, the court is not obliged to go by that opinion. After all opinion is what is formed in the mind of a person regarding a fact situation. If one doctor forms one opinion and another doctor forms a different opinion on the same facts it is open to the Judge to adopt the view which is more objective or probable. Similarly if the opinion given by one doctor is not consistent with probability the court has no liability to go by that opinion merely because it is said by the doctor. Of course, due weight must be given to opinions given by persons who are experts in the particular subject.”
The blood group on the dress of the accused and the dress of the deceased matched. It corroborates the prosecution story. However that by itself is not conclusive proof of the culpability of the accused (Binder Munda v. State, 1992 CrLJ 3508 (Ori) DB).
In Surinder Singh v. State of Punjab, 1989 SCC (Cri) 649, it is observed that it would not be helpful to the prosecution if it was not shown that the blood-stains on the weapon recovered from the possession of the accused were of the same group as the blood of the deceased. (See also: Kansa Behera. v. State of Orissa. AIR 1987 SC 1507).
In State of U.P. v. Krishna Gopal, AIR 1988 SC 2154, the eye-witnesses were found credible and trustworthy. Therefore, the medical opinion pointing to alternative possibilities was not accepted as conclusive. The Apex Court pointed out that witnesses, as Bantham said, were the eyes and ears of justice. Hence the importance and primacy of the orality of the trial process. Eyewitnesses’ account would require a careful independent assessment and evaluation for their credibility, which should not be adversely prejudged making any other evidence, including medical evidence as the sole touchstone for the test of such credibility. The evidence must be tested for its inherent consistency and the inherent improbabilities.
Decision which Changed the Concept of Law on ‘Conclusive Presumption’
Nandlal Wasudeo Badwaik v. Lata Nandlal Badwaik, AIR 2014 SC 932, is a very important decision which changed the concept of law on ‘conclusive presumption’ on Sec. 112 which reads as under:
“112. Birth during marriage, conclusive proof of legitimacy. The fact that any person was born during the continuance of a valid marriage between his mother and any man, or within two hundred and eighty days after its dissolution, the mother remaining unmarried, shall be conclusive proof that he is the legitimate son of that man, unless it can be shown that the parties to the marriage had no access to each other at any time when he could have been begotten.”
It is held in Nandlal Wasudeo Badwaik case as under:
“17. We may remember that Section 112 of the Evidence Act was enacted at a time when the modern scientific advancement and DNA test were not even in contemplation of the Legislature. The result of DNA test is said to be scientifically accurate. Although Section 112 raises a presumption of conclusive proof on satisfaction of the conditions enumerated therein but the same is rebuttable. The presumption may afford legitimate means of arriving at an affirmative legal conclusion. While the truth or fact is known, in our opinion, there is no need or room for any presumption. Where there is evidence to the contrary, the presumption is rebuttable and must yield to proof. Interest of justice is best served by ascertaining the truth and the court should be furnished with the best available science and may not be left to bank upon presumptions, unless science has no answer to the facts in issue. In our opinion, when there is a conflict between a conclusive proof envisaged under law and a proof based on scientific advancement accepted by the world community to be correct, the latter must prevail over the former.”
Appreciation of Evidence of Experts In practice, the investigating agencies and courts give very high importance to wound-certificates and post-mortem certificates. They are considered as an indispensable part in most criminal cases. Same is the case of evidence of Ballistic expert. Here also primacy is given to ocular evidence if it is found credible by the court, especially when the ocular evidence is supported by the wound certificate or post-motem report.
Post-Mortem Report is not a Substantive Evidence
Post-mortem Report or Wound Certificate is not a substantive evidence [Mohan Singh v. Emperor, AIR 1925 All. 413 (DB); State v. Rakshpal Singh, AIR 1953 All. 520; Ram Pratap v. State, 1967 All.W.R. (H.C.) 395; Ram Balak Singh v. State, AIR 1964 Pat. 62(DB); Mellor v. Walnesley, 1905, 2Ch. 164 (CA);Hadi Kisani v. State, AIR 1966 Orissa 21; Gofur Sheikh v. State, 1984 Cr.L.J. 559 (Cal); Bhanda Gorh v. State of Assam, 1984 Cr.L.J.217 (Gau); Jagdeo Singh v. State, 1979 Cr.L.J.236 (All); K. Pratap Reddy v. State of A.P., 1985 Cr.L.J.1446].
Burden of Proof Not Relevant when “Both Sides had Adduced Evidence”
In Moran Mar Basselios Catholicos v. Thukalan Paulo Avira, AIR 1959 SC 31, the Constitution bench of the Supreme Court held as under:
The question of burden of proof at the end of the case when both the parties have adduced their evidence is not of very great importance and the Court has to come to a decision on a consideration of all the materials.
In Kalwa Devadattam v. Union of India, (1964) 3 SCR 191, the Supreme Court held as under:
“The question of onus probandi is certainly important in the early stages of a case. It may also assume importance where no evidence at all is led on the question in dispute by either side; in such a contingency the party on whom the onus lies to prove a certain fact must fail. Where however evidence has been led by the contesting parties on the question in issue; abstract considerations of onus are out of place; truth or otherwise of the case must always be adjudged on the evidence led by the parties. ”
In Arumugham v. Sundarambal, AIR 1999 SC 2216, it has been held as under:
“On the question of burden of proof we are of the view that even assuming burden of proof is relevant in the context of the amended provision of Sec. 100 C.P.C., the same would not be relevant when both sides had adduced evidence. It would be relevant only if a person on whom the burden of proof lay, failed to adduce any evidence altogether.”
The Supreme Court, in Anil Rishi v. Gurbaksh Singh, AIR 2006 SC 1971, referring Sec. 102 of the Evidence Act (The burden of proof in a suit or proceeding lies on that person who would fail if no evidence at all were given on either side), explained ‘burden of proof’ as under:
“Pleading is not evidence, far less proof. Issues are raised on the basis of the pleadings. The defendant-appellant having not admitted or acknowledged the fiduciary relationship between the parties, indisputably, the relationship between the parties itself would be an issue. The suit will fail if both the parties do not adduce any evidence, in view of Section 102 of the Evidence Act. Thus, ordinarily, the burden of proof would be on the party who asserts the affirmative of the issue and it rests, after evidence is gone into, upon the party against whom, at the time the question arises, judgment would be given, if no further evidence were to be adduced by either side.”
Burden of proof remains only Academic
In Raghunathi v. Raju Ramappa Shetty, AIR 1991 SC 1040, it is observed that it is a settled law that once the parties have been permitted to produce evidence in support of their respective cases and it is not their grievance that any evidence was shut out the question of burden of proof loses significance and remains only academic.
It is held by the Supreme Court in Thiruvengada Pillai v. Navaneethammal, AIR 2008 SC 1541, that when the execution of an unregistered document put forth by the plaintiff was denied by the defendants, it was for the plaintiffs to establish that the document was forged or concocted. It is observed that the party who asserts something has to prove that thing. It is pointed out that when the plaintiff had come to Court alleging that the first defendant had executed an agreement of sale in his favour and when the defendant denied it, the burden was on the plaintiff to prove that the defendant had executed the agreement, and not on the defendant to prove the negative.
Our Apex Court in National Insurance Company Limited v. Rattani, 2009-2 SCC 75: AIR 2009 SC 1499, it is observed as under:
“14. The question as to whether burden of proof has been discharged by a party to the lis or not would depend upon the facts and circumstances of the case. If the facts are admitted or, if otherwise, sufficient materials have been brought on record so as to enable a court to arrive at a definite conclusion, it is idle to contend that the party on whom the burden of proof lay would still be liable to produce direct evidence to establish that the deceased and the injured passengers were gratuitous passengers.” (See also: Mohd. Abdullah Azam Khan Vs. Nawab Kazim Ali Khan, 2022 (11 ) JT 214: 2022 (16 ) SCALE 689: 2023 KLT OnLine 1084 (SC), National Insurance Company Ltd. v. Savitri Devi, 2013-11 SCC 554.)
Even if No Plea, Propounder has to clear Suspicion
In K. Laxmanan v. Thekkayil Padmini, AIR 2009 SC 951, the Apex Court held that when there were suspicious circumstances regarding the execution of a Will, the onus was on the propounder to explain them to the satisfaction of the Court; and only when such responsibility was discharged, the Court would accept the Will as genuine. It was further observed that even where there were no such pleas, but circumstances gave rise to doubt, it was on the propounder to satisfy the conscience of the Court. These decisions are followed in Joseph John Peter Sandy v. Veronica Thomas Rajkumar, AIR 2013 SC 2028.
The Privy Council in Seturatnam v. Venkatachella, AIR 1920 PC 67, observed that where the parties have led all the evidence and relevant facts were before the court and all that remained for decision was what interference was to be drawn from them, the question of burden of proof was not important. In Chidambara v. Veerama, AIR 1922 PC 292, the Privy Council held that when entire evidence was once before the court, the debate as to onus of proof was purely academic. (See: Legal Heirs of Renushree Lahkar v. Pradip Kumar Lahkar, 2018-4 Gau LT 733).
See also:
Standard Chartered Bank v. Andhra Bank Financial Services Ltd., (2006) 6 SCC 94,
Union of India v. Sugauli Sugar Works (P) Ltd., (1976) 3 SCC 32,
Presumption on a Registered Document – “It is VALIDLY EXECUTED“
Section 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.
In short, 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.
Therefore, there is a presumption – registered document is validly executed –
Prem Singh v. Birbal, AIR 2006 SC 3608;
Abdul Rahim v. Abdul Zabar, AIR 2010 SC 211
Jamila Begum v. Shami Mohd., AIR 2019 SC 72;
Manik Majumder v. Dipak Kumar Saha, AIR 2023 SC 506.
A registered document carries with it a presumption that it was executed in accordance with law – Bellachi v. Pakeeran, AIR 2009 SC 3293.
The facts spelled out by the endorsements made under Sections 58 and 59 of the Registration Act may be presumed to be correct without formal proof thereof – Bhagat Ram v. Suresh, AIR 2004 SC 43.
Registered Deeds: Proof of CORRECTNESS drawn, 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; Jamila Begum v. Shami Mohd., AIR 2019 SC 72) .
And, there is a presumption of Correctness also(Majumder v. Dipak Kumar Saha, AIR 2023 SC 506, BV Nagaratna, J.). The onus of proof, therefore, would be on the person who questions the same.
Do Presumptions as to VALIDEXECUTION & CORRECTNESS Import TRUTH?
Two views emerge on registered documents-
First, Presumption as to VALID EXECUTION & CORRECTNESS lead to further (invariable) presumption as to ‘truth’ of contents.
Second (and more cogent), under Sec. 114 of the Evidence Act, court may presume the existence of any fact. In most cases, the court will infer ‘truth’ if there is presumption as to VALID EXECUTION & CORRECTNESS. But, in proper cases, the court can desist to deduce ‘truth’ despite presumption as to VALID EXECUTION & CORRECTNESS.
In short, Presumptions as to VALID EXECUTION & CORRECTNESS may Import TRUTH. It may result:
1. Shift Burden in Most cases. The party in whom the ‘burden of proof’ rests can rely on ‘registration certificate’ as proof and truth of the contents of the 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.
It being presumed to be VALID & CORRECT, it further gives a presumption as to truth of the contents also, under Sec. 114 Evidence Act (regard being had to the common course of natural events, human conductetc.) .
There being presumption as to ‘VALID EXECUTION & CORRECTNESS’ and thereby presumption as to truth of the contents also, the onus of proof is shifted upon the party who challenges the presumption as to truth of the contents.
2. No Question of Shifting Burden in certain cases. But, the above proposition is not an invariable rule. If it comes out from the pleadings, documents or issues that the burden is upon the person who produced the registered document to prove its truth, the presumed presumption will not help him.
For example – The executant of the registered deed would not have executed such a deed, in all probabilities (regard being had to the common course of natural events, human conduct etc.) as revealed from the pleadings or documents produced; or, its untrue nature can be (prima facie) ‘judicially noticed’.
PART II
Admissions in Civil Cases
Order 8 Rule 5 CPC governs this matter. It reads as under:
Rule 5. Specific denial.
(1) Every allegation of fact in the plaint, if not denied specifically or by necessary implication, or stated to be not admitted in the pleading of the defendant, shall be taken to be admitted except as against a person under disability:
Provided that the Court may in it discretion require any fact so admitted to be proved otherwise than by such admission.
FOR COMMERCIAL COURTS-
“Provided further that every allegation of fact in the plaint, if not denied in the manner provided under Rule 3A of this Order, shall be taken to be admitted except as against a person under disability.”
(2) Where the defendant has not filed a pleading, it shall be lawful for the Court to pronounce judgment on the basis of the facts contained in the plaint, except as against a person under a disability, but the Court may, in its discretion, require any such fact to be proved.
(3) In exercising its discretion under the proviso to sub-rule (1) or under sub-rule (2), the Court shall have due regard to the fact whether the defendant could have, or has, engaged a pleader. (4) Whenever a judgment is pronounced under this rule, a decree shall be drawn up in accordance with such judgment and such decree shall bear the date on which the judgment was pronounced.
Order 12 Rule 6 CPC governs this matter. It reads as under:
Rule 6. Judgment on admissions
(1) Where admissions of fact have been made either in the pleading or otherwise, whether orally or in writing, the Court may at any stage of the suit, either on the application of any party or of its own motion and without waiting for the determination of any other question between the parties, make such order or give such judgment as it may think fit, having regard to such admissions.
(2) Whenever a judgment is pronounced under sub-rule (1) a decree shall be drawn upon in accordance with the judgment and the decree shall bear the date on which the judgment was pronounced.
In R.K. Markan v. Rajiv Kumar Markan, 2003 AIHC 632 (Delhi), it was observed that the admissions for passing a decree on the basis of admission of the defendants in the pleadings should be –
equivocal and unqualified and
the admission in the written statement should also be taken as a whole and not in part.
Court Must Read Whole Evidence and not One Stray Admission
In Vadugu Chanti Babu v. State of A.P. (2002) 6 SCC 547 it is observed that a stray statement of the doctor in cross-examination will not be a conclusive opinion; but it is only a possibility. In a maintenance dispute under Sec. 125 Cr PC our Apex Court, in Saygo Bai Vs. Chueeru Bajrangi, AIR 2011 SC 1557, observed that the Court must read whole evidence and that one stray admission cannot be read in isolation with the other evidence.
Court is not bound to grant Declaration on Admission if reason to Insist Proof
In Razia Begum v. Sahebzadi Anwar Begum, AIR 1958 SC 886, it was observed that the court is not bound to grant declaration prayed for on the mere admission of the claim by the defendant, if the court has reason to insist upon a clear proof apart from admissions.
See also : Uttam Singh Dugal and Co. Ltd. v. United Bank of India 2000 (4) RCR (Civil) 89;
M/s Puran Chand Packaging Industrial Pvt. Ltd. v. Smt. Sona Devi and another, 2009 (2) CCC 39.
In Perumal Chettiar v. Kamakshi Ammal, AIR 1938 Mad 785, (1938) 2 MLJ 189, it is observed, as to pleadings, as under:
“The result, in India, is that if by reason of the document being unstamped, no evidence of its contents whether primary or secondary is admissible, evidence of admissions by the defendant is equally inadmissible. The position may be different where admissions are made in the pleadings themselves (cf. Huddleston v, Briscoe (1805) 11 Ves. 583 (596) : 32 E.R. 1215 (1220) and Thynne v. Protheroe (1814) 2 M. & S. 553 : 105 E.R. 488), because by reason of Section 58 of the Evidence Act, it may not be necessary to prove admitted facts and the objection under Section 91 will not arise unless the plaintiff is called upon to go into evidence. (Mallappa v. Mat an Naga Chetty (1918) 35 M.L.J. 555 : I.L.R. 42 Mad. 41 (F.B.))
This was the position in Pramatha Nath Sandal v. Dwarka Nath Dey (1896) I.L.R. 23 Cal. 851; cf. however Chenbasappa v. Lakshman Ramchandra (1893) I.L.R. 18 Bom. 369, where it was suggested that in a suit on an unstamped promissory note, even an admission in the written statement may not avail the plaintiff, as the Court when giving a decree on such admission may be “acting on” the document within the meaning of Section 35 of the Stamp Act; see also Ankur Chunder Roy Chowdhry v. Madhub Chunder Gkose (1873) 21 W.R. 1.”
Plaintiff has to Win Suit for Recovery on Title, on the Strength of his Title
In Vijay Pullarwar v. Shri Hanuman Deostan, (2019) 11 SCC 718, the suit for possession instituted by the plaintiffs trust on the basis of title, was found to be devoid of merits; for, there was no reference in the registration application of the public trust under the BPT Act, 1950 or in schedule I, where to record the properties of the public trust, that the suit property belonged to the trust. Our Apex Court held as under:
“Needless to observe that the plaintiffs/respondents were primarily obliged to establish their title in the suit house bearing No.878 in Circle No.3 where the Padukas of Saint Haridas Baba have been installed, as being the property of the plaintiff trust. The plaintiffs must succeed or fail on the title they establish; and if they fail to do so, they must fail to get the relief of possession irrespective of title of the defendant in the suit property (See: Brahma Nand Puri v. Naki Puri, (1965) 2 SCR 233 and Bajaranglal Shivchandrai Ruia v. Shashikant N. Ruia, (2004) 5 SCC 272).”
In Brahma Nand Puri v. Neki Puri, AIR 1965 SC 1506, the Apex Court held as under:
“The plaintiff’s suit being one for ejectment he has to succeed or fail on the file that he establishes and if he cannot succeed on the strength of his title his suit must fail notwithstanding that the defendant in possession has no title to the property… …”
Prosecution Must Stand on Its Own Legs; Not on Weakness of Defence
Prosecution must stand or fall on its own legs and it cannot derive any strength from the weakness of the defence (Sharad B. Sarda v. State of Maharashtra, (1984) 4 SCC 116; AIR 1984 SC 1622). The Apex Court also observed that though the suggestion made in the cross-examination was not evidence it certainly be called into aid to lend assurance to the prosecution case, particularly when other evidence establishes the guilt of the accused.
EFFECT OF MARKING DOCUMENTS WITHOUT OBJECTION
Effect of marking a document without formal proof on admission (or without objection) is a subject of controversy.
First view
Admission of contents & it dispenses with proof. See: RVE Venkatachala Gounder v. Arulmigu Viswesaraswami: AIR 2003 SC 4548; Narbada Devi v. Birendra Kumar: (2003) 8 SCC 745; Dayamati Bai v. K.M. Shaffi : AIR 2004 SC 4082; Oriental Insurance Co v. Premlata: (2007) 8 SCC 575; Thimmappa Rai v. Ramanna Rai,(2007) 14 SCC 63; Kalita Iqbal Basith v. N Subbalakshmi, (2021) 2 SCC 718.
Second View
Admission of contents – but, does not dispense with proof. See: Sait Tarajee Khimchand v. Yelamarti Satyam, AIR 1971 SC 1865; Nandkishore Lalbhai Mehta v. New Era Fabrics, AIR 2015 SC 3796.
Third view
If truth is in issue, mere proof of contents, or marking without objection, is not proof of truth. See: Narbada Devi Gupta v. Birendra Kumar Jaiswal, 2003-8 SCC 745; Ramji Dayawala Vs. Invest Import: AIR 1981 SC 2085
Fourth view
Admission of contents, dispenses with proof and truth; but its probative value will be a matter for appreciation by court. See: State of Bihar v. Radha Krishna Singh, AIR 1983 SC 684 (Admission and probative value – different); Rakesh Mohindra v. Anita Beri: 2015 AIR(SCW) 6271; Kaliya v. State of MP: 2013-10 SCC 758; H. Siddiqui v. A. Ramalingam: AIR 2011 SC 1492; Rasiklal Manikchand v. MSS Food Products: 2012-2 SCC 196.
Fifth view
Court should require (in proper cases) the party producing the document to adduce proper evidence as to execution, and to cure formal defects. See: Harkirat Singh v. Amrinder Singh, (2005) 13 SCC 511; Umesh Challiyil v. K.P. Rajendra, (2008) 11 SCC 740; KK Ramachandran Master v. MV Sreyamakumar, (2010) 7 SCC 428; AIR 2015 SC 3796.
Suggestion or Admission in Cross-Examination – Evidentiary Value
In Tarun Bora alias Alok Hazarika v. State of Assam, 2002-7 SCC 39; 2002 Cri. LJ 4076 (SC), the presence of the accused was admitted in a suggestion put to one of the witnesses. Considering the reply of the witness the court arrived at the conclusion that the presence of the accused was admitted. (Referred to in: Balu Sudam Khalde v. The State of Maharashtra, AIR 2023 SC 1736.)
In Rakesh Kumar alias Babli v. State of Haryana, 1987-2 SCC 34, a suggestion was put by the defence to the witness with regard to the colour of the shirt worn by one of the accused persons at the time of the incident. The Apex Court considering the suggestion and the reply arrived at the conclusion that the presence of the accused was established on the spot at the time of occurrence. (Referred to in: Balu Sudam Khalde v. The State of Maharashtra, AIR 2023 SC 1736.)
In Balu Sudam Khalde v. The State of Maharashtra (Sudhanshu Dhulia, J.B. Pardiwala), AIR 2023 SC 1736, it is held as under:
38. Thus, from the above it is evident that the suggestion made by the defence counsel to a witness in the cross-examination if found to be incriminating in nature in any manner would definitely bind the accused and the accused cannot get away on the plea that his counsel had no implied authority to make suggestions in the nature of admissions against his client.
39. Any concession or admission of a fact by a defence counsel would definitely be binding on his client, except the concession on the point of law. As a legal proposition we cannot agree with the submission canvassed on behalf of the appellants that an answer by a witness to a suggestion made by the defence counsel in the cross- examination does not deserve any value or utility if it incriminates the accused in any manner.
40. It is a cardinal principle of criminal jurisprudence that the initial burden to establish the case against the accused beyond reasonable doubt rests on the prosecution. It is also an elementary principle of law that the prosecution has to prove its case on its own legs and cannot derive advantage or benefit from the weakness of the defence. We are not suggesting for a moment that if prosecution is unable to prove its case on its own legs then the Court can still convict an accused on the strength of the evidence in the form of reply to the suggestions made by the defence counsel to a witness. Take for instance, in the present case we have reached to the conclusion that the evidence of the three eyewitnesses inspires confidence and there is nothing in their evidence on the basis of which it could be said that they are unreliable witnesses. Having reached to such a conclusion, in our opinion, to fortify our view we can definitely look into the suggestions made by the defence counsel to the eyewitnesses, the reply to those establishing the presence of the accused persons as well as the eyewitnesses in the night hours. To put it in other words, suggestions by itself are not sufficient to hold the accused guilty if they are incriminating in any manner or are in the form of admission in the absence of any other reliable evidence on record. It is true that a suggestion has no evidentiary value but this proposition of law would not hold good at all times and in a given case during the course of cross-examination the defence counsel may put such a suggestion the answer to which may directly go against the accused and this is exactly what has happened in the present case.
41. The principle of law that in a criminal case, a lawyer has no implied authority to make admissions against his client during the progress of the trial would hold good only in cases where dispensation of proof by the prosecution is not permissible in law. For example, it is obligatory on the part of the prosecution to prove the post mortem report by examining the doctor. The accused cannot admit the contents of the post mortem report thereby absolving the prosecution from its duty to prove the contents of the same in accordance with law by examining the doctor. This is so because if the evidence per se is inadmissible in law then a defence counsel has no authority to make it admissible with his consent.
42. Therefore, we are of the opinion that suggestions made to the witness by the defence counsel and the reply to such suggestions would definitely form part of the evidence and can be relied upon by the Court along with other evidence on record to determine the guilt of the accused.”
43. The main object of cross-examination is to find out the truth on record and to help the Court in knowing the truth of the case. It is a matter of common experience that many a times the defence lawyers themselves get the discrepancies clarified arising during the cross-examination in one paragraph and getting themselves contradicted in the other paragraph. The line of cross-examination is always on the basis of the defence which the counsel would keep in mind to defend the accused. At this stage, we may quote with profit the observations made by a Division Bench of the Madhya Pradesh High Court in the case of Govind s/o Soneram v. State of M.P. reported in 2005 Cri.LJ 1244. The Bench observed in paragraph 27 as under:
“27. The main object of cross-examination is to find out the truth and detection of falsehood in human testimony. It is designed either to destroy or weaken the force of evidence a witness has already given in person or elicit something in favour of the party which he has not stated or to discredit him by showing from his past history and present demeanour that he is unworthy of credit. It should be remembered that cross- examination is a duty, a lawyer owes to his clients and is not a matter of great personal glory and fame. It should always be remembered that justice must not be defeated by improper cross-examination. A lawyer owes a duty to himself that it is the most difficult art. However, he may fail in the result but fairness is one of the great elements of advocacy. Talents and genius are not aimed at self-glorification but it should be to establish truth, to detect falsehood, to uphold right and just and to expose wrongdoings of a dishonest witness. It is the most efficacious test to discover the truth. Cross-examination exposes bias, detects falsehood and shows mental and moral condition of the witnesses and whether a witness is actuated by proper motive or whether he is actuated by enmity towards his adversaries. Cross-examination is commonly esteemed the severest test of an advocate’s skill and perhaps it demands beyond any other of his duties exercise of his ingenuity. There is a great difficulty in conducting cross-examination with creditable skill. It is undoubtedly a great intellectual effort. Sometimes cross-examination assumes unnecessary length, the Court has power to control the cross- examination in such cases. (See Wrottescey on cross-examination of witnesses). The Court must also ensure that cross-examination is not made a means of harassment or causing humiliation to the victim of crime [See State of Punjab v. Gurmit Singh, 1996 SCC (Cri) 316].”
44. During the course of cross-examination with a view to discredit the witness or to establish the defence on preponderance of probabilities suggestions are hurled on the witness but if such suggestions, the answer to those incriminate the accused in any manner then the same would definitely be binding and could be taken into consideration along with other evidence on record in support of the same.
45. However, it would all depend upon the nature of the suggestions and with what idea in mind such suggestions are made to the witness. Take for instance in case of a charge of rape under Section 376 of the Indian Penal Code, the statement of the accused contained plain denial and a plea of false implication, a subsequent suggestion by the defence lawyer to the prosecutrix about consent on her part would not, by itself, amount to admission of guilt on behalf of the accused. In cases of rape, it is permissible for the accused to take more than one defence. In such type of cases a suggestion thrown by the defence counsel to a prosecution witness would not amount to an admission on the part of the accused. At the same time, if the defence in the cross examination of the prosecutrix, with a view to support their alternative case of consent procure answers to the questions in the form of suggestions implicating the accused for the offence of rape then such suggestions would definitely lend assurance to the prosecution case and the Court would be well justified in considering the same. We may give one more example of a case where the accused would plead right of a private defence. Such a defence is always available to the accused but although if such a defence is not taken specifically during the course of trial yet if the evidence on record suggests that the accused had inflicted injuries on the deceased in exercise of his right of private defence then the Court can definitely take into consideration such defence in determining the guilt of the accused. However, if a specific question is put to a witness by way of a suggestion indicative of exercise of right of private defence then the Court would well be justified in taking into consideration such suggestion and if the presence of the accused is established the same would definitely be admissible in evidence.”
In Mahavir v. State of Uttar Pradesh, 2017-3 All Cri R 2407, it is held as under:
“35. The main object of cross-examination is to bring out falsity and to find out the truth. Cross-examination is an art. It would help the Court to assess the relative merits of the case projected by the parties. Matter of cross-examination is not a mere empty formality, but one is required to put its own case in cross-examination, otherwise deposition of the witness has to be taken as unchallenged. The matter has been considered in a number of decisions that it is the duty to put ones own version to opponent in cross-examination, otherwise deposition of the witness cannot be discredited as was held in Maroti Bansi Teli v. Radhabai, AIR 1945 Nag 60: 1944 NLJ 492. In Chunni Lal Dwarka Nath v. Hartford Fire Insurance Co.Ltd., AIR 1958 Punj 440 it has been held as under:
” It is well established rule of evidence that a party should put to each of his opponent’s witnesses so much of his case as concerns that particular witness. If no such questions are put, the Courts presume that the witness’s account has been accepted. If it is intended to suggest that a witness was not speaking the truth upon a particular point, his attention must first be directed to the fact by cross-examination so that he may have an opportunity of giving an explanation.”
36. The suggestion made in cross-examination form part of the evidence on record. Those suggestion can be taken into consideration while determining whether the reply given was believable or not. Though suggestion in cross-examination which is denied by the witness, is not evidence at all. Any suggestion made in the cross-examination of the prosecution witness by the defence, can not be used as an evidence against the accused but at the same time it can be called in aid when the other evidence establishes the guilt of the accused.
37. Though the suggestion made in the cross-examination is not evidence but certainly the same may be called into aid to lend assurance to the prosecution case particularly when other evidence establishes the guilt of the accused.
In Mehra v. State of Rajasthan, AIR 1957 SC 369 Yusuf Ali v. State of Maharashtra, AIR 1968 SC 147 it was held that when the accused did not suggest to prosecution witnesses in cross-examination indicating his defence, it was held that the defence version may be rejected as an afterthought.”
It is Permissible to take more than one defence in cases of rape
In Tarjubhai Narsingbhai Rathwa v. State of Gujarat, (J.B.Pardiwala, J.) 2014-1 GLH 781, 2014-2 GLR 943, 2014-36 GHJ 282, 2014-6 RCR(Cri) 297, though it is observed that it is permissible for the accused to take more than one defence in cases of rape, it is further pointedout as under:
“33. Any concession or admission of a fact by a defence counsel would definitely be binding on his client, except the concession on the point of law. As a legal proposition we cannot agree with the views expressed by Their Lordships of this Court in Koli Trikam Jivraj v. The State of Gujarat, 1969 CrLJ 409, that an answer by a witness to a suggestion made by the defence counsel in the cross-examination does not deserve any value or utility if it incriminates the accused in any manner. At the same time, we are also unable to agree with the views expressed by Their Lordships of this Court that a statement of an accused recorded under Section 313 of the Criminal Procedure Code does not deserve any value of utility if it contains inculpatory admissions.”
It is also held as under:
“43. … At the same time, if the defence in the cross- examination of the prosecutrix, with a view to support their alternative case of consent procure answers to the questions in the form of suggestions implicating the accused for the offence of rape then such suggestions would definitely lend assurance to the prosecution case and the Court would be well justified in considering the same.”
A Contra view is taken in Koli Trikam Jivraj v. The State of Gujrat, AIR 1969 Guj 69.
Claim of Lease by Witness; Inordinate Delay in Producing Lease Deed – Effect
Somnath Barman v. Dr. SP Raju AIR 1970 SC 846, 1969-3 SCC 129 (KS Hegde & JC Shah, JJ.), can be safely considered to see how evidence on adverse possession is appreciated by the Supreme Court of India. In this case the plaintiff claimed title on a document. The defendants pleaded adverse possession. According to them the second defendant had sold the property to the 1st defendant 3 years before the suit. Therefore, to establish the claim of title by adverse possession (for the period of 12 years), the fact that the second defendant was in possession of the suit property for a period of over nine years before he sold the same to the first defendant should have been proved. The Supreme Court found that the defendants failed to establish adverse possession observing the following:
“Though the second defendant filed a -written statement supporting the case of the 1st defendant and though he was present at the time of hearing several occasions, he was not examined as a witness in this case to support the plea of adverse possession put forward by the defendants. No explanation is forthcoming for his non- examination. This circumstance goes a long way to discredit the defendant’s plea of adverse possession. The 1st defendant’s evidence as regards adverse possession is of very little significance as his knowledge of the suit property prior to the date he purchased the same is very little. The only other evidence relied on in support of the plea of adverse possession is that of D.W.2, Shambhu Prashad who claims to have taken the suit property on lease from the second defendant. The lease deed said to have been executed by him is marked as Exh.D-1. It is not explained how the 1st defendant came into possession of Exh.D-l. Though the suit was filed as far back as 1949, Exh.D-1 was produced into court for the first time in the year 1960. No explanation has been given for this inordinate delay in producing Exh.D-1, (an unregistered document) in court. According to D.W.2, the 1st defendant knew about this document as far back as 1950. Under these circumstances, the High Court was fully justified in rejecting the testimony of D.W.2 and not relying on Exh.D-l.”
PART III
Suggestions in Cross Examination to Witnesses
General principles-
Mere suggestions in cross examination (not accepted by witness) are no evidence.
In criminal trials suggestions are given in cross examination for no ‘pleadings’ as in civil cases.
In a civil trial it is not required to put its case to the witness as pleadings already exists.
In Khimjibhai Kurjibhai v. The State of Gujarat, 1982 CrLR (Guj), it is held that the suggestion in cross examination are no evidence.
The Delhi High Court held in Sher Mohammad v. Mohan Magotra (Rajiv Sahai Endlaw, J.) 2013 SCC OnLine Del 2530, as under:
“The practice of giving suggestions in cross examination to witnesses is of criminal trials where there are no pleadings and the defence is built up by giving such suggestions. … The purport of cross examination is to challenge the testimony and/or to falsify the witness or his credit worthiness and not to give suggestions to the effect that each and every deposition in examination-in-chief is false. Similarly, a party in a civil trial is not required to in cross examination put its case to the witness as the same as aforesaid already exists in the pleadings.”
Suggestions (in Cross Exam) BY ITSELF – Not Sufficient to Hold Accused Guilty
In Balu Sudam Khalde v. State of Maharashtra, 2023 SCC OnLine SC 355, our Apex Court held that if the prosecution failed to prove its case, then it could not take advantage from the weakness of the defence, and it cannot base its case on the reply of the witnesses given to the suggestions of the defence counsel. It held as under:
“Suggestions by itself are not sufficient to hold the accused guilty if they are incriminating in any manner or are in the form of admission in the absence of any other reliable evidence on record.”
Effect of “No Effective Cross-Examination”
Our Apex Court considered the effect of “no effective cross-examination” with respect to factum of execution of sale deed spoken to by a witness, in Muddasani Venkata Narsaiah v. Muddasani Sarojana, AIR 2016 SC 2250 (Followed in: Arvind Singh v. State of Maharashtra, AIR 2020 SC 2451, 2021-11 SCC 1). It was held in this decision –
Cross-examination is a matter of substance, not of procedure one.
A party is required to put his own version in cross-examination of opponent.
The effect of non cross-examination is that the statement of witness has not been disputed.
Court may repel a submission – on the ground that same was not put either to the witnesses, or suggested before the courts below (referred to: Bhoju Mandal v. Debnath Bhagat, AIR 1963 SC 1906).
If no such questions are put, the court would presume that the witness account has been accepted (referred: M/s. Chuni Lal Dwarka Nath v. Hartford Fire Insurance Co. Ltd., AIR 1958 Punjab 440.)
In Maroti Bansi Teli v. Radhabai w/o Tukaram Kunbi & Ors. AIR 1945 Nagpur 60, it has been laid down that the matters sworn to by one party in the pleadings not challenged either in pleadings or cross-examination by other party must be accepted as fully established.
The High Court of Calcutta in A.E.G. Carapiet v. A.Y. Derderian AIR 1961 Cal. 359 has laid down that the party is obliged to put his case in cross-examination of witnesses of opposite party.
The rule of putting one’s version in cross-examination is one of essential justice and not merely technical one.
In Kuwarlal Amritlal v. Rekhlal Koduram, AIR 1950 Nagpur 83, has laid down that when attestation is not specifically challenged and witness is not cross-examined regarding details of attestation, it is sufficient for him to say that the document was attested.
If the other side wants to challenge that statement, it is their duty, quite apart from raising it in the pleadings, to cross-examine the witness along those lines.
In Karnidan Sarda v. Sailaja Kanta Mitra, AIR 1940 Patna 683, has laid down that it must be assumed that when the witnesses were not tested in that way, their evidence is to be ordinarily accepted.
Effect of Not Cross-Examining a Witness on a Point
The effect of not cross-examining a witness on a particular point has been considered by the Supreme Court, in Laxmibai v. Bhagwantbuva, AIR 2013 SC 1204. It is observed as under:
“31. Furthermore, there cannot be any dispute with respect to the settled legal proposition, that if a party wishes to raise any doubt as regards the correctness of the statement of a witness, the said witness must be given an opportunity to explain his statement by drawing his attention to that part of it, which has been objected to by the other party, as being untrue. Without this, it is not possible to impeach his credibility. Such a law has been advanced in view of the statutory provisions enshrined in Sec. 138 of the Evidence Act, 1872, which enable the opposite party to cross-examine a witness as regards information tendered in evidence by him during his initial examination in chief, and the scope of this provision stands enlarged by Sec. 146 of the Evidence Act, which permits a witness to be questioned, inter-alia, in order to test his veracity. Thereafter, the unchallenged part of his evidence is to be relied upon, for the reason that it is impossible for the witness to explain or elaborate upon any doubts as regards the same, in the absence of questions put to him with respect to the circumstances which indicate that the version of events provided by him, is not fit to be believed, and the witness himself, is unworthy of credit. Thus, if a party intends to impeach a witness, he must provide adequate opportunity to the witness in the witness box, to give a full and proper explanation. The same is essential to ensure fair play and fairness in dealing with witnesses.”
Effect of NOT Challenging Validity of a deed in Cross Examination
When a deed is duly proved in the trial by the evidence of a witness, and the legality or validity of the same is not challenged in the cross examination, the court will act upon the deed as a legal and valid one (Atluri Brahmanandam v. Anne Sai Bapuji, 2013-4 SCC 97 : AIR 2013 SC 1204).
Value of evidence of witness untested (for death) by cross-examination
Andhra High Court (SB Sinha, CJ, as he then was) in Somagutta Sivasankara Reddy v. Palapandla Chinna Gangappa, 2002 Supp1 ALD 600, 2002-1 Andh WR 475, held that the evidence of a person who had died after examination in chief and could not be cross-examined, the weight or probative value of his evidence would vary from case to case and in a given case it could be disregarded.
In Anamika Pranav v. Anil Kumar Choudhary, 8 Feb, 2023, Patna High Court (Sunil Dutta Mishra, J.), it was held that the evidence of a witness untested by cross-examination can have no value but the evidence cannot be rejected as inadmissible. It is held as under:
“The correct rule is that the evidence is admissible but the weight to be attached to such evidence should depend on the circumstances of each case and that though in some cases the Court may act upon it, if there is other evidence on record, its probative value may be very small and may even be disregarded. The Court should look at the evidence carefully to see whether there are indications that by a complete cross-examination the testimony of the witness was likely to be seriously shaken or his good faith to be successfully impeached. If the evidence is inadmissible the Court is not entitled to consider it at all whereas if it admissible the Court must decide on the circumstances of each case whether any weight should be attached to it or not.”
The Single Judge followed the following decisions:
Mt. Horil Kuer v. Rajab Ali, AIR 1936 Pat 34
Srikishun Jhunjhunwalla v. Emperor, AIR 1946 Pat 384
Ahmad Ali v. Joti Prasad,AIR 1944 All. 188
Srikumar Mukherjee v. Avijit Mukherjee, 2015 SCC Online Cal. 6445.
In Dever Park Builders Pvt. Ltd. v. Smt. Madhuri Jalan, AIR 2003 Cal 55, the witness was partly cross examined. It is held as under:
“19. …. I find here a portion of the examination-in-chief has been cross-examined and such portion in my view should be absolutely admissible in evidence and be considered without any hesitation by the learned Judge at the time of hearing and deciding of the suit. Cross-examination is essentially needed to bring out the truth of the oral testimony, but in case of documentary evidence where there is no suggestion or pleading as to fraud and forgery the cross-examination hardly matters.
20. Therefore, I am unable to accept the argument of Mr. Dutt that the evidence of the deceased defendant shall be expunged and/or rejected altogether. It shall be considered and how much weight shall be attached should be decided considering the other facts and circumstances surrounding it. So the earlier order passed by me expunging the evidence of deceased defendant is recalled and the document and evidence already received in commission shall now be admitted as records of this case. Parties would be at liberty to use any of the exhibited documents.”
It is permissible for the accused to take more than one defence
It is an accepted principle that it is permissible for the accused to take more than one defence in a criminal. In such type of cases a suggestion thrown by the defence counsel to a prosecution witness (especially when it is not admitted by the witness) would not amount to an admission on the part of the accused.
But, it may not be the same result, in civil cases.
Suggestion or Admission in Cross-Examination – Evidentiary Value
Mahavir v. State of Uttar Pradesh, 2017-3 All Cri R 2407, it is held as under:
“35. The main object of cross-examination is to bring out falsity and to find out the truth. Cross-examination is an art. It would help the Court to assess the relative merits of the case projected by the parties. Matter of cross-examination is not a mere empty formality, but one is required to put its own case in cross-examination, otherwise deposition of the witness has to be taken as unchallenged. The matter has been considered in a number of decisions that it is the duty to put ones own version to opponent in cross-examination, otherwise deposition of the witness cannot be discredited as was held in Maroti Bansi Teli v. Radhabai, AIR 1945 Nag 60: 1944 NLJ 492. In Chunni Lal Dwarka Nath v. Hartford Fire Insurance Co.Ltd., AIR 1958 Punj 440 it has been held as under:
” It is well established rule of evidence that a party should put to each of his opponent’s witnesses so much of his case as concerns that particular witness. If no such questions are put, the Courts presume that the witness’s account has been accepted. If it is intended to suggest that a witness was not speaking the truth upon a particular point, his attention must first be directed to the fact by cross-examination so that he may have an opportunity of giving an explanation.”
36. The suggestion made in cross-examination form part of the evidence on record. Those suggestion can be taken into consideration while determining whether the reply given was believable or not. Though suggestion in cross-examination which is denied by the witness, is not evidence at all. Any suggestion made in the cross-examination of the prosecution witness by the defence, can not be used as an evidence against the accused but at the same time it can be called in aid when the other evidence establishes the guilt of the accused.
37. Though the suggestion made in the cross-examination is not evidence but certainly the same may be called into aid to lend assurance to the prosecution case particularly when other evidence establishes the guilt of the accused.
In Mehra v. State of Rajasthan, AIR 1957 SC 369 Yusuf Ali v. State of Maharashtra, AIR 1968 SC 147 it was held that when the accused did not suggest to prosecution witnesses in cross-examination indicating his defence, it was held that the defence version may be rejected as an afterthought.”
The Kerala High Court, in A. K. Ali v. C. H. Mammuty, 1989 CrLJ 1820, opined that a suggestion made in the cross examination of witnesses though not binding on the accused as admissions, those suggestions in cross examination and statements of the accused given when questioned under S.313 could be taken into account for ascertaining the bona fides of the contentions.
Referring Jesu Asir Singh v. State, (2007) 12 SCC 19 : AIR 2007 SC 3015, it is held in Muneem Ahmad v. State of U. P., 2017-171 AIC 895, 2017-98 All CriC 405, that the question put in the cross-examination to a great extent probabilise the prosecution version; and that, though questions put in cross-examination are not always determinative in finding an accused guilty, they are certainly relevant.
Value of a Sec. 313 Statement
In Tarjubhai Narsingbhai Rathwa v. State of Gujarat, (J.B. Pardiwala, J.) 2014-1 GLH 781, 2014-2 GLR 943, it is observed as to Sec. 313 Statement as under:
34. So far as the value of a statement made by an accused recorded under Section 313 of the Criminal Procedure Code is concerned we should look into with profit the observations made by a three Judge Bench decision of the Supreme Court in the case of State of U.P. v. Lakhmi reported in AIR 1998 SC 1007. The Supreme Court made the following observations which, in our opinion, fortifies the view we propose to take on the issue.
“7. As a legal proposition we cannot agree with the High Court that statement of an accused recorded under Section 313 of the Code does not deserve any value of utility if it contains inculpatory admissions. The need of law for examining the accused with reference to incriminating circumstances appearing against him in prosecution evidence is not for observance of a ritual in a trial, nor is it a mere formality. It has a salutary purpose. It enables the Court to be apprised of what the indicated persons has to say about the circumstances pitted against him by the prosecution. Answers to the questions may sometimes be flat denial or outright repudiation of those circumstances. In certain cases accused would offer some explanations to incriminating circumstances. In very rare instances accused may even admit or own incriminating circumstances adduced against him, perhaps for the purpose of adopting legally recognized defences. In all such cases the Court gets the advantage of knowing his version about those aspects and it helps the Court to effectively appreciate and evaluate the evidence in the case. If an accused admits any incriminating circumstances appearing in evidence against him there is no warrant that those admissions should altogether be ignored merely on the ground that such admissions were advanced as a defence strategy.8. Sub -Section (4) of Section 313 of the Code contains necessary support to the legal position that answers given by the accused during such examination are intended to be considered by the Court. The words “may be taken into consideration in such enquiry or trial” in sub -Section (4) would amount to a legislative guideline for the Court to give due weight to such answers, though it does not mean that such answers could be made the sole basis of any finding.
9. Time and again, this Court has pointed out that such answers of the accused can well be taken into consideration in deciding whether the prosecution evidence can be relied on, and whether the accused is liable to be convicted of the offence charged against him; vide : Sampath Singh v. State of Rajasthan, (1969) 1 SCC 367 : (AIR 1969 SC 956); Jethamal Pithaji v. Assistant Collector of Customs, Bombay, (1974) 3 SCC 393 : (AIR 1974 SC 699); Rattan Singh v. State of Himachal Pradesh, (1997) 4 SCC 161 : (1997 AIR SCW 587).10. We make it clear that answers of the accused, when they contain admission of circumstances against him are not by themselves, delinked from the evidence, be used for arriving at a finding that the accused had committed the offence.”
34.1 Considering the aforesaid principles explained by the Supreme Court, it could necessarily be inferred that a suggestion made to a witness and the answer to the same would form part of the evidence on record. Those suggestions can be taken into consideration while determining whether the reply given was believable or not.
PART IV
Interpretation of Documents – as provided under Evidence Act
Produce Document itself
(i) Oral admissions as to contents of documents are not relevant (Sec. 22); The law requires production of Document itself (Sec. 91); .
No oral evidence can be given –
(ii) for varying, adding to, etc. its terms (S. 92).
(iii) to explain a document, on its face, ambiguous (S. 93).
(iv) to show a plain document not meant to apply such facts (S. 94).
Evidence can be given when –
(v) language of a document, plain in itself, but it is unmeaning in reference to existing facts – evidence may be given to show that it was used in a peculiar sense (S. 95).
(vi) language used – meant to apply to more – evidence may be given to show which of those persons or things was intended (S. 96).
(vii) language used – applies partly to one set facts and partly to another set – evidence may be given to show which of the two sets (S. 97).
(viii) language used – applies partly to one set facts and partly to another set – evidence may be given to show which of the two sets (S. 97).
(ix) Evidence can be given to show meaning of illegible or technical words -used in a peculiar sense (S. 98).
Interpretation of Will – Provisions of Law
(i) Sec. 91 to 99 of the Evidence Act do not affect construction of wills (S. 100).
(ii) Sec. 74 of the Indian Succession Act, 1925, contains the armchair rule. It conveys – intention of the testator is important.
The Supreme Court, in Delhi Development Authority v. Durga Chand, AIR 1973 SC 2609, has noticed Odgers Rules, in “Construction of Deeds and Statutes”, and quoted the First General Rule of Interpretation which reads as under:
“The meaning of the document or of a particular part of it is therefore to be sought for in the document itself”.
Give effect to words used, and Not to the presumed intention
Our Apex Court, in Delhi Development Authority v. Durga Chand, AIR 1973 SC 2609, further pointed out that ‘the primary rule of construction to which Sections 90 to 94 of the Indian Evidence Act give statutory recognition and effect’ and with certain exceptions contained in Sections 95 to 98 of the Act, “the document” means “the document” ‘read as a whole and not piecemeal’. Then the Apex Court observed as under:
“The rule stated above follows logically, from the Literal Rule of Construction which, unless its application produces absurd results must be resorted to first. This is clear from the following passages cited in Odgers’ short book under the First Rule of Interpretation set out above: Lord Wensleydale in Monypenny v. Monypenny(1) said: “the question is not what the parties to a deed may have intended to do by entering into that deed, but what is the meaning of the words used in that deed: a most important distinction in all cases of construction and the disregards of which often leads to erroneous conclusions.”
Brett, L.J., in Re Meredith, Chick ([1879] 11 Ch. D. 731) observed: “I am disposed to follow the rule of construction which was laid down by Lord Denman and Baron Parke… They said that in construing instruments you must have, regard not to the presumed intention of the parties, but to the meaning of the words which they have used.”
Mere Suggestions (not accepted by witness) in Cross Exam – No Evidence
The Gujarat High Court held in Umedmiya R. Rathod v. State of Gujarat (J.B. Pardiwala, J.), AIR 2017(NOC) Guj 1146 (Guj), as under:
“It is a settled position of law that mere suggestions are not sufficient to dislodge or disprove the case of the plaintiff. Suggestions in cross examination have no evidentiary value. In absence of any evidence, nor any material traced in the cross-examination in support thereof, the findings so far could not have been answered in the affirmative by the Trial Court as well as by this Court in the First Appeal.”
Bibhuti Bhusan Roy v. State of West Bengal, 2019 CrLJ 1140, held that mere suggestion in cross-examination unsupported by defence evidence has no evidentiary value.
Earlier words of deed, or main purpose accepted (rejecting uncertain words)
It is further laid down in Delhi Development Authority v. Durga Chand, AIR 1973 SC 2609, as under:
“Assuming, however, that there is some conflict between an earlier part of the deed containing a demise of land clearly for a period of 90 years on an annual rent of Rs. 365, and the proviso of covenant No. 9, annexed to the demise, in a later part of the deed, which cannot be resolved without discarding or disregarding some word or words, the respondent’s counsel contended that the earlier words of demise, consistently supported by the contents of other parts of the deed, should prevail over the inconsistency found in the proviso to one of the conditions in the later part of the deed. He relied for this proposition on: Sahebzada Mohd. Kamgar Shah v. Jagdish Chandra Rao Dhabel Deo ([1960] 3 SCR 604); Ramkishore Lal v. Kamal Narian ([1963] Supp. 2 SCR v. 417); Forbes v. Git ([1922] 1 AC 256).
We think that the proviso to covenant No. 9 could be said to suffer from the vice of an uncertainty which can only be removed by ignoring the words creating this uncertainty. We think that, in such a case, the ambiguous words can be disregarded so that the terms of the earlier operative part of the demise, which are clear, must prevail. Learned Counsel for the respondent also relied on the following passsage from Glyn and Ors. v. Margetson & Co.([1893] A. C. p. 351) in the judgment of Lords Halsbury :
“Looking at the whole of the instrument, and seeing that one must regard, for a reason which I will give in a moment, as its main purpose, one must reject words, indeed whole provisions, if they are inconsistent with what one assumes to be the main purpose of the contract.“
Gant to be construed in favour of the grantee
In Smt. Bina Das Gupta and Others v. Sachindra Mohan Das Gunta, AIR 1968 SC 39, the following statement of law in Stavill Eros., Ltd. v. Bethell ([1902]-2 Ch. 523) , by Sterling L.J., was cited with approval (as observed in Delhi Development Authority v. Durga Chand, AIR 1973 SC 2609) –
“It is a settled rule of construction that where there is a grant and an exception out of it, the exception is to be taken as inserted for the benefit of the garntor and to be construed in favour of the grantee. If then the grant be clear, but the exception be so framed as to be, bad for uncertainty, it appears to us that on this principle the grant is operative and the exception fails.”
The construction which give effect to all the clauses be adopted
It is further observed in Delhi Development Authority v. Durga Chand, AIR 1973 SC 2609, as under:
Another rule which seems to us to be applicable here was thus stated by this Court in Radha Sunder Dutta v. Mohd. Jahadur Rahim (AI R 1959 SC 24): “Now, it is a settled rule of interpretation that if there be admissible two constructions of a document, one of which will give effect to all the clauses therein while the other will render one or more of them nugatory, it is the former that should be adopted on the principle expressed in the maxim ut res magis valeat quam pereat”
In P. Madhusudhan Rao v. Lt. Col. Ravi Manan, 2015-4 ALD 409, after referring the Supreme Court decision, in Delhi Development Authority v. Durga Chand, AIR 1973 SC 2609, it is observed as under:
“As the observation of the Supreme Court (Delhi Development Authority v. Durga Chand) have the force of law of the land, it may be taken Odgers Rules (known as golden rules of interpretation) have been judicially recognized and may be adopted as Rules for interpretation of the documents in India.
These Rules are listed hereunder:
1. The meaning of the document or of a particular part of it is therefore to be sought for in the document itself.
2. The intention may prevail over the words used
3. words are to be taken in their literal meaning
4. literal meaning depends on the circumstances of the parties
5. When is extrinsic evidence admissible to translate the language?
6. Technical legal terms will have their legal meaning.
7. Therefore the deed is to be construed as a whole.
Apart from the said seven rules listed by Odger, it would be convenient to list the following rules for the sake of convenience are called additional rules and given number in continuation:
8. Same words to be given the same meaning in the same contract.
9. Harmonious construction must be placed on the contract as far as possible. However, in case of conflict between earlier or later clauses in a contract, later clauses are to be preferred to the earlier; while in a will, earlier clause is to be preferred to the later.
10. Contra Proferendum Rule- If two interpretations are possible, the one favourable to the party who has drafted the contract and the other against him, the interpretation against that party has to be preferred.
11. If two interpretation of a contract are possible the one which helps to make the contract operative to be preferred to the other which tends to make it inoperative
12. In case of conflict between printed clauses and typed clauses, type clauses are to be preferred. Similarly, in conflict between printed and hand written clauses, hand written clauses are to be preferred and in the event of conflict between typed and hand written clauses, the hand written calluses are to be preferred
13. the special will exclude the general
14. Rule of expression unius est exclusion alterius
15. Rule of noscitur a sociis
16. Ejusdem generis rule will apply both the contract and statute
17. place of Punctuation in interpretation of documents”.
Ejusdem Generis&Noscitur a Sociis
Ejusdem Generis is the principle of interpretation of applying meaning to a doubtful word or words taken from the associated words. Usually this principle is applied when doubts are arisen whether the word or words fall within the general words like – other articles, etc., such things, similar acts, etc.
The ejusdem generis is explained in Halsbury’s Laws of England as under:
“As a rule, where in a statute there are general words following particular and specific words, the general words must be confined to things of the same kind as those specified, although this, as a rule of construction; must be applied with caution, and subject to the primary rule that statutes are to be construed in accordance with the intention of Parliament. For the ejusdem rule to apply, the specific words must constitute a category, class or genus; if they do constitute such a category, class or genus, then only things which belong to that category, class or genus fall within the general words.”
Our Apex Court, in DN Singh v. Commissioner of Income Tax (2023), the question came for consideration was whether ‘bitumen’ (used for tarring roads) would fall under “other valuable article” stated in “any money, bullion, jewellery or other valuable article” in Section 69A of the Income Tax. Section 69A reads as under:
“69A. Unexplained money, etc. – Where in any financial year the assessee is found to be the owner of any money, bullion, jewellery or other valuable article and … not recorded in the books of account, … may be deemed to be the income of the assessee for such financial year.”
It was held in DN Singh v. Commissioner of Income Tax (2023) that ‘bitumen is not a valuable article’ when the Principle of Ejusdem Generis is applied.
Noscitur a Sociis is a rule is broader than the maxim ejusdem generis. It contains the basic philosophy that the meaning of a doubtful word is ascertained by reference to the meaning of words associated with it.
On applying this rule ‘(right to) rent’ will not include in the ‘(right to) chair, bench, table’. That is the questionable word (rent) does not take colour from the connected words (chair, bench, table). [In practice, it is seen that ‘ejusdem generis’ is applied when words like – other articles, etc., such things, similar acts, etc. are used; and ‘Noscitur a Sociis‘ is used even if those words are not used.]
Intention of the parties looked into When there is ambiguity
In P. Madhusudhan Rao v. Lt. Col. Ravi Manan, 2015-4 ALD 409 after quoting the above rules, it is observed as under:
“From the Rules stated above, when the language used in a document is unambiguous conveying clear meaning, the Court has to interpret the document or any condition therein taking into consideration of the literal meaning of the words in the document. When there is ambiguity, the intention of the parties has to be looked into. Ordinarily the parties use apt words to express their intention but often they do not. The cardinal rule again is that, clear and unambiguous words prevail over the intention. But if the words used are not clear or ambiguous, intention will prevail. The most essential thing is to collect the intention of the parties from the expressions they have used in the deed itself. What if, the intention is so collected will not secure with the words used. The answer is the intention prevails. Therefore, if the language used in the document is unambiguous, the words used in the document itself will prevail but not the intention.”
Words in the Instruments Matters; Not to the Presumed Intention
Brett L.J. in Re Meredith, ex parte Chick, (1879) 11 Ch D 731, observed as under:
“I am disposed to follow the rule of construction which was laid down by Lord Denman and Baron Parke ……. They said that in construing instruments you must have regard not to the presumed intention of the parties, but to the meaning of the words which they have used.” (Quoted in: VS Talwar v. Prem Chandra Sharma, AIR 1984 SC 664; Damodaram Pillai v. Dhanalakshmi Ammal, (1981) 1 MLJ 171; Thomas v. AA Henry, 2008(2) KLT 63.)
Vague and uncertain descriptions rejected; definite and certain, preferred
The Kerala High Court held in Velu v. Padmavathy Amma (1983 KLN 38 Case No.39), as under:
“According to learned counsel for the appellants, when there is conflict in description by measurements and boundaries, measurements prevail over boundaries while according to learned counsel for the respondents, the contrary is the correct position. I have been referred in this connection to the following decisions : Zamindar of Pahipenta vs. Maharajah of Jeypore (XXIII M.L.J. 97) Subbayya Chakkiliyan vs. Manjan Muthia Goundan and another (A.I.R. 1924 Mad. 493), Durga Prasad Singh vs. Rajendra Narain Bagehi (I.L.R. 37 Cal. 293), Kumara Krishnan vs. Ulahannan Mathai (1957 K.L.T. 42), Chacko Joseph vs. Varghese Markose (1957 K.L.T. 485), Savarimuthu Nadar Chellayyan Nadar vs. Kanakku Rali Pillai Padmanabha Pillai (1957 K.L.T.825) and Krishnamurthy Iyer vs. Janaki Amma (1957 K.L.T. 886).
A golden thread runs through all the decisions referred to above. A piece of land may be described in the document or decree correctly or wrongly. Description may be given by reference to village, locality, survey number, lekhom number, extent, measurements or boundaries. At times, descriptions may tally pointing unerringly to a particular plot of land in which case there will be no difficulty in locating the plot. Sometimes the various descriptions given in a document or decree may be in conflict with each other. In such a case, the court is called upon to adjudicate on the identity of the exact plot intended to be dealt with in the document or decree. No doubt, the court will at first try to reconcile the various descriptions. If that be not possible, one or more of the descriptions may have to be rejected and the other decision rested only on the other description or descriptions. When one of the descriptions is vague and uncertain and another description is definite and certain, the latter may be preferred. If none of the descriptions is vague or uncertain, that description which is more certain and stable and least likely to have been mistaken or inserted inadvertently must be preferred if it sufficiently identified the subject matter of the transaction and the other descriptions must be rejected as erroneous or inaccurate. This is not a rule of law and therefore is not inflexible in character; it is a mere rule of construction which appears to be safe and almost an infallible guide.” (Quoted in Chandrakumar vs Narayana Bahuleyan, 2011(3) KLT 185.)
Court cannot look intention when document applies squarely to existing facts
Smt. Kamala Devi v. Takhatmal, (1964) 2 SCR 152, dealt with the interpretation of a surety bond. The Court relied upon Sec. 94 of the Indian Evidence Act and found no reason to look for the intention of the parties, since the clear and express words in the bond applied squarely to the existing facts. The Court held as under:
“Sometimes when it is said that a Court should look into all the circumstances to find an author’s intention, it is only for the purpose of finding out whether the words apply accurately to existing facts. But if the words are clear in the context of the surrounding circumstances, the Court cannot rely on them to attribute to the author an intention contrary to the plain meaning of the words used in the document.” (Quoted in – Anglo American Metallurgical v. MMTC Ltd., 2021-3 SCC 308)
Sec. 91 and 92 provides that when terms of a contract, or of a grant, or of any other disposition of property, have been reduced to the form of a document, and in all cases in which any matter is required by law to be reduced to the form of a document, their terms alone are taken to be the sources of what the parties wished to state; and oral evidence to the contrary, are excluded.
Both Sec. 91 and 92 are based on “best evidence rule”. (Roop Kumar v. Mohan Thadani AIR 2003 SC. 2418: 2003-6 SCC 595; S. Saktivel v. M. Venugopal Pillai 2007-7 SCC 104; Mumbai International Airport v. Golden Chariot Airport, (2012) 10 SCC 422; Tulsi v. Chandrika Prasad, AIR 2006 SC 3359).
The Supreme Court held in Roop Kumar v. Mohan Thedani, AIR 2003 SC 2418, as under:
“The grounds of exclusion of extrinsic evidence are
(i) to admit inferior evidence when law requires superior would amount to nullifying the law,
(ii) when parties have deliberately put their agreement into writing, it is conclusively presumed, between themselves and their privies, that they intended the writing to form a full and final statement of their intentions, and one which should be placed beyond the reach of future controversy, bad faith and treacherous memory.”
In Bhima Tima Dhotre v. The Pioneer Chemical Co. (1968) 70 Bom LR 683, it is observed as under:
“Documentary evidence becomes meaningless if the writer has to be called in every case to give oral evidence of its contents. If that were the position, it would mean that, in the ultimate analysis, all evidence must be oral and that oral evidence would virtually be the only kind of evidence recognised by law. That, however, is not the position under the Evidence Act. … Section 59 of the said Act enacts that all facts, except the “contents” of documents, may be proved by oral evidence. This provision would clearly indicate that to prove the contents of a document by means of oral evidence would be a violation of that section.”
However, oral evidence can be given on a matter (adoption) which is not required by law to be in writing and it is not barred for the mere reason it was contained in a document (Taburi Sahai v. Jhunjhunwala, AIR 1967 SC 106).
Patent ambiguity and latent ambiguity
Patent ambiguity is that inherent in the words. Extrinsic evidence is inadmissible in such cases.
Sec. 93 and 94 of the Evidence Act deal with cases of patent ambiguity and Sec. 95 to 98 deal with cases of latent ambiguity.
Patent Ambiguity
Latent Ambiguity
Ambiguity On the Face
Hidden Ambiguity. Words of the instrument clear, but their application to the circumstances doubtful.
S. 93 and 94
S. 95 to 98
No oral evidence permitted
Oral evidence permitted Ambiguity is disclosed only when explored with extrinsic evidence. Therefore, the ambiguity is allowed to be removed by same means.
Makes the document useless. Ambiguity cannot be removed by legal construction or evidence.
Can remove its ambiguity by Oral evidence.
# Sell a horse to B for “Rs. 1,000 or Rs. 1,500” (Illustration- Sec. 93). # Deed contains blanks (Illus. – Sec. 93). # Sells estate at Rampur. No evidence another place (Illustration- Sec. 94).
# Sells house in Calcutta. No house in Calcutta. Can show at Howrah (Illus. – Sec. 95). # Sells white horse. Two white horses. Can show which (Illus. – Sec. 96). # Evidence be given Hayatabad in Dekkhan or Sind (Illus. – Sec. 96). # Sells B land at X occupation of Y. A has land at X, but not in occupation of Y, and he has land in occupation of Y not at X. Evidence be given which he meant to sell (Illus. – Sec. 97). # A sells “all my mods”. A has both models and modelling tools. Evidence may be given to show which he meant to sell (Illus. – Sec. 98).
“Patent Ambiguity”
After referring Smt. Kamala Devi v. Takhatmal, (1964) 2 SCR 152, it is observed in Anglo American Metallurgical v. MMTC Ltd., 2021-3 SCC 308 that the principle contained in Sec. 94 of the Evidence Act is that extrinsic evidence is inadmissible in cases of “patent ambiguity”, and that this principle is “fundamental to Indian jurisprudence.”
A “patent ambiguity” is explained in Starkie on Evidence as under:
“By patent ambiguity must be understood an ambiguity inherent in the words, and incapable of being dispelled, either by any legal rules of construction applied to the instrument itself, or by evidence showing that terms in themselves unmeaning or unintelligible are capable of receiving a known conventional meaning, the great principle on which the rule is founded is that the intention of parties, should be construed, not by vague evidence of their intentions independently of the expressions which they have thought fit to use, but by the expression themselves. … By patent ambiguity, therefore, must be understood an inherent ambiguity, which cannot be removed, either by the ordinary rules of legal construction or by the application of extrinsic and explanatory evidence, showing that expressions, prima facie, unintelligible, are yet capable of conveying a certain and definite meaning.” (Quoted in – Anglo American Metallurgical v. MMTC Ltd., 2021-3 SCC 308)
“Latent Ambiguity”
On the other hand, a “latent ambiguity” is described in Woodroffe and Ali’s Law of Evidence, as follows:
“Latent ambiguity, in the more ordinary application, arises from the existence of facts external to the instrument, and the creation by these facts of a question not solved by the document itself. A latent ambiguity arises when the words of the instrument are clear, but their application to the circumstances is doubtful; here the ambiguity, being raised solely by extrinsic evidence, is allowed to be removed by the same means. In strictness of definition, such cases, as those in which peculiar usage may afford a construction to a term different from its natural one as can be seen in s 98, would be instances of latent ambiguity, since the double use of the term would leave it open to the doubt in which of its two senses it was to be taken. It is not, however, to this class of cases that reference is now made, but to those in which the ambiguity is rather that of description, either equivocal itself from the existence of two subject matter, or two persons, both falling within its terms as can be seen in s 96, or imperfect when brought to bear on any given person or thing as per ss 95 and 97.” (Quoted in – Anglo American Metallurgical v. MMTC Ltd., 2021-3 SCC 308)
No mention of Price in Contract, but “crucial” emails – Whether Sec. 94 Bar Applies?
Though Sec. 94 applies only when a document applies accurately to existing facts, which includes how a particular word is used in a particular sense. Where no mention of the price at which coal was to be supplied, and there were three “crucial” emails, in Anglo American Metallurgical v. MMTC Ltd., 2021-3 SCC 308, it was held as under:
“These emails must be read as part of the entirety of the correspondence between the parties, which would then make the so-called “admissions” in the aforementioned emails apply to existing facts. Once this is done, it is clear that there is no scope for the further application of the “patent ambiguity” principle contained in section 94 of the Evidence Act, to the facts of the present case.”
In Anglo American Metallurgical v. MMTC Ltd., 2021-3 SCC 308t it was held to be a latent ambiguity comes under Sec. 95 of the Evidence Act, read with proviso (6) and illustration (f) to Sec. 92; and therefore, evidence can be led to show the peculiar sense of such language. It is pointed out that this approach is reflected in a recent judgment of this Court in Transmission Corpn. of Andhra Pradesh Ltd. v. GMR Vemagiri Power Generation Ltd., (2018) 3 SCC 716, where it was observed as under:
“21. In the event of any ambiguity arising, the terms of the contract will have to be interpreted by taking into consideration all surrounding facts and circumstances, including correspondence exchanged, to arrive at the real intendment of the parties, and not what one of the parties may contend subsequently to have been the intendment or to say as included afterwards, as observed in Bank of India v. K. Mohandas [Bank of India v. K. Mohandas, (2009) 5 SCC 313] : (SCC p. 328, para 28)
“28. The true construction of a contract must depend upon the import of the words used and not upon what the parties choose to say afterwards. Nor does subsequent conduct of the parties in the performance of the contract affect the true effect of the clear and unambiguous words used in the contract. The intention of the parties must be ascertained from the language they have used, considered in the light of the surrounding circumstances and the object of the contract. The nature and purpose of the contract is an important guide in ascertaining the intention of the parties.”” (page 727).
Irreconcilable inconsistency between two specific clauses
In case of documents like sale deeds, gift deeds, mortgage deeds also, if the apparently appearing inconsistency can be reconciled, the court will take that recourse.
But, if the inconsistency is irreconcilable, the earlier or the subsequent part or specific clauses, the earlier part will prevail over the latter; but, in case of a Will, latter part will prevail, under Sec. 88 of the Succession Act. (Uma Devi Nambiar v. T.C. Sidhan, (2004) 2 SCC 321.)
Interpretation of Contracts
In Provash Chandra Dalui v. Biswanath Banerjee, 1989 Supp (1) SCC 487, it is observed as under:
” ‘Ex praecedentibus et consequentibus optima fit inter-pretatio.’
The best interpretation is made from the context. Every contract is to be construed with reference to its object and the whole of its terms. The whole context must be considered to ascertain the intention of the parties. It is an accepted principle of construction that the sense and meaning of the parties in any particular part of instrument may be collected ‘ex antecedentibus et consequentibus;’ every part of it may be brought into action in order to collect from the whole one uniform and consistent sense, if that is possible.
As Lord Davey said in N.E. Railway v. Hastings, [1900] A.C. 260 (267),
“The deed must be read as a whole in order to ascertain the true meaning of its several clauses, and the words of each clause should be so interpreted as to bring them into harmony with the other provisions of the deed if that interpretation does no violence to the meaning of which they are naturally susceptible.”
In construing a contract the Court must look at the words used in the contract unless they are such that one may suspect that they do not convey the intention correctly. If the words are clear, there is very little the Court can do about it. In the construction of a written instrument it is legitimate in order to ascertain the true meaning of the words used and if that be doubtful it is legitimate to have regard to the circumstances surrounding their creation and the subject matter to which it was designed and intended they should apply.”
In Bharat Coking Coal Ltd. v. AMR Dev Prabha 2020 SCC OnLine SC 335, it is pointed out that ‘it must be noted that judicial interpretation of contracts in the sphere of commerce stands on a distinct footing than while interpreting statutes’. (Quoted in: Agmatel India Private Limited v. M/S Resoursys Telecom AIR 2022 SC 1103)
Contractual interpretation ought not to have been grounds for the Constitutional Court (High Court) (See: Bharat Coking Coal Ltd. v. AMR Dev Prabha, 2020 SCC OnLine SC 335; Agmatel India Private Limited v. M/S Resoursys Telecom, AIR 2022 SC 1103)
Tender – If two interpretations possible, the interpretation of the author be accepted: In Silppi Constructions Contractors v. Union of India, 2019 SCC OnLine SC 1133, it is held as under:
“The authority floating the tender is the best judge of its requirements and, therefore, the court’s interference should be minimal. The authority which floats the contract or tender, and has authored the tender documents is the best judge as to how the documents have to be interpreted. If two interpretations are possible then the interpretation of the author must be accepted. The courts will only interfere to prevent arbitrariness, irrationality, bias, mala fides or perversity. With this approach in mind we shall deal with the present case.” . (Quoted in: Agmatel India Private Limited v. M/S Resoursys Telecom AIR 2022 SC 1103)
Tenders or Award of Contracts
In Jagdish Mandal v. State of Orissa, (2007) 14 SCC 517, our Apex Court observed as under:
“22. Judicial review of administrative action is intended to prevent arbitrariness, irrationality, unreasonableness, bias and mala fides. Its purpose is to check whether choice or decision is made “lawfully” and not to check whether choice or decision is “sound”. When the power of judicial review is invoked in matters relating to tenders or award of contracts, certain special features should be borne in mind. A contract is a commercial transaction. Evaluating tenders and awarding contracts are essentially commercial functions. Principles of equity and natural justice stay at a distance. If the decision relating to award of contract is bona fide and is in public interest, courts will not, in exercise of power of judicial review, interfere even if a procedural aberration or error in assessment or prejudice to a tenderer, is made out. The power of judicial review will not be permitted to be invoked to protect private interest at the cost of public interest, or to decide contractual disputes. The tenderer or contractor with a grievance can always seek damages in a civil court. .. A court before interfering in tender or contractual matters in exercise of power of judicial review, should pose to itself the following questions:
(i) Whether the process adopted or decision made by the authority is mala fide or intended to favour someone; or Whether the process adopted or decision made is so arbitrary and irrational that the court can say:“the decision is such that no responsible authority acting reasonably and in accordance with relevant law could have reached”;
(ii) Whether public interest is affected.
If the answers are in the negative, there should be no interference under Article 226. Cases involving blacklisting or imposition of penal consequences on a tenderer/contractor or distribution of State largesse (allotment of sites/shops, grant of licences, dealerships and franchises) stand on a different footing as they may require a higher degree of fairness in action.” (Quoted in: Agmatel India Private Limited v. M/S Resoursys Telecom AIR 2022 SC 1103)
PART V
Presumptions
Sec. 114 of the Evidence Act gives a wide discretion to the Courts to presume the existence of facts regard being had to natural course etc. Sec. 114 allows to draw adverse inference against a party who deliberately withholds better evidence. Sec. 56 to 58 lays down that facts judicially noticeable matters need not be proved. Sect. 79 and 90 deal with presumptions as to documents.
Presumption is not in itself evidence
A presumption only makes a prima facie case for a party for whose benefit it exists, and it is not in itself evidence (Kumar Exports v. Sharma Carpets, (2009) 2 SCC 513; Basalingappa v. Mudibasappa – 2019(5) SCC 418).
Rebuttal: Standard of Proof –Preponderance of Probabilities
The required evidence or Standard of Proof for the ‘rebuttal of presumption’ is –
preponderance of Probabilities
See: Triyambak S. Hegde v. Sripad, 2022-1 SCC 742;
Anss Rajashekar v. Augustus Jeba Ananth, (2020) 15 SCC 348).
Rebuttal: Standard of Proof –‘Probable Defence’ which ‘Creates Doubts‘
The required evidence or Standard of Proof (for rebuttal of a factual presumption) can be –
‘Probable Defence’ which ‘Creates Doubts‘ about the existence of a legally enforceable debt.
Rangappa v. Sree Mohan, 2010(11) SCC 441;
M.S. Narayana Menon v. State of Kerala 2006-6 SCC 39;
Bharat Barrel & Drum Manufacturing Company v. Amin Chand Payrelal, (1999) 3 SCC 35)
Rebuttal need not be positively proved to be true
Rebuttal neednot beconclusively established or positively proved to be true (Kali Ram v. State of Himachal Pradesh, (1973) 2 SCC 808; Basalingappa v. Mudibasappa – 2019(5) SCC 418).
It need be reasonably probable
See: Rajaram v. Maruthachalam, AIR 2023 SC 471;
Basalingappa v. Mudibasappa – 2019(5) SCC 418
Hiten P. Dalal v. Bratindranath Banerjee, (2001) 6 SCC 16;
Vijay v. Laxman, (2013) 3 SCC 86
Rebuttal can be byinvoking another Presumption
Not necessary for the accused to rebut (consideration) bydirect evidence
Rebuttal (of presumption) can be by invoking another presumption
Kundanlal v. Custodian Evacuee property, AIR 1961 SC 1316) Referred to in: Priyamvada K. v. M. Rahufina, 2024-1 KerHC 245.
It can be the circumstances relied upon by the complainant (M.S. Narayana Menon v. State of Kerala 2006-6 SCC 39).
On such a ‘shifting’, the source of money and financial capacity of complainant to make the loan can be a point for consideration, and the complainant may have to produce bank-statement to
See: Rajaram v. Maruthachalam, AIR 2023 SC 471;
Basalingappa v. Mudibasappa, 2019-5 SCC 418).
K. Subramani v. K. Damodara Naidu, 2015 -1 SCC 99.
M.S. Narayana Menon v. State of Kerala 2006(6) SCC 39, SB Sinha, J.).
See: Bharat Barrel & Drum Manufacturing Company v. Amin Chand Payrelal, 1999-3 SCC 35;
Circumstantial Evidence
Hanumant Govind Nargundkar v. State of MP, AIR 1952 SC 343: 1953 Cri LJ 129 is the leading decision on circumstantial evidence. It is held-
“In cases where the evidence is of a circumstantial nature, the circumstances [which lead to the conclusion of guilt should be in the first instance] fully established, and all the facts so established should be consistent only with the hypothesis of the guilt of the accused. Again, the circumstances should be of a conclusive nature and tendency and they should be such as to exclude every hypothesis but the one proposed to be proved. In other words, there must be a chain of evidence so far complete as not to leave any reasonable ground for a conclusion consistent with the innocence of the accused and it must be [shown] that within all human probability the act must have been [committed] by the accused.”
It is followed in succeeding decisions. See:
Munikrishna v. State, 2022-13 SCR 415, 2023 CRLJ 673,
Dakkata Balaram Reddy v. State of Andhra Pradesh, 2023-4 SCR 887, 2023-6 SCALE 81
Venkatesh v. State of Karnataka, 2022-4 SCR 556, 2023 CRLJ 183,
Lochan Shrivas v. State Of Chhattisgarh, AIR 2022 SC 252,
Dev Kanya Tiwari v. The State of UP, AIR 2018 SC 1377.
Five Golden Principles, Or Panchsheel, on Circumstantial Evidence
Sharad Birdhi Chand Sarda v. State of Maharashtra, AIR 1984 SC 1622, laid down the five golden principles, or panchsheel as to proof on circumstantial evidence as under:
.(1) The circumstances from which the conclusion of guilt is to be drawn should be fully established.
It may be noted here that this Court indicated that the circumstances concerned ‘must or should’ and not ‘may be’ established. There is not only a grammatical but a legal distinction between ‘may be proved’ and ‘must be or should be proved’ as was held by this Court in Shivaji Sahabrao Bobade v. State of Maharashtra(AIR 1973 SC 2622) where the following observations were made:
“Certainly, it is a primary principle that the accused must be and not merely may be guilty before a court can convict and the mental distance between ‘may be’ and ‘must be’ is long and divides vague conjectures from sure conclusions.”
(2) The facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say. they should not be explainable on any other hypothesis except that the accused is guilty,
(3) The circumstances should be of a conclusive nature and tendency.
(4) They should exclude every possible hypothesis except the one to be proved, and
(5) There must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused.
These five golden principles, if we may say so, constitute the panchsheel of the proof of a case based on circumstantial evidence.”
Falsus In Uno, Falsus In Omnibus
Doctrine of “falsus in uno, falsus in omnibus” not applicable in India. It is a Latin maxim which means “false in one thing, false in everything.” In Gangadhar Behera v. State of Orissa, (2002) 8 SCC 381, it is held that if the testimony of a witness is found to be unreliable in respect of part of his statement, then the other part of the statement can be made basis to convict the accused. That is, the entire testimony of a witness cannot be discarded or disregarded merely because a part of the testimony is found to be not true.
State of Madhya Pradesh v. Phoolchand Rathore, 2023-5 SCR 601,
Ravasaheb v. State of Karnataka, 2023-5 SCC 391,
Ranvir Singh v. State Of Madhya Pradesh, 2023-1 SCR 841,
Rishi Pal Singh v. New India Assurance Co. Ltd., 2022 ACJ 1868,
Mahendra Singh v. State Of MP, AIR 2022 SC 2631,
Principles in deciding the cases
In Ravasaheb v. State of Karnataka, 2023-5 SCC 391, our Apex Court emanated following principles in deciding the cases.
Evidence of hostile witness:
Corroborated part of the evidence of a hostile witness regarding the commission of offence is admissible. Merely because there is deviation from the statement in the FIR, the witness’s statements cannot be termed totally unreliable;
Hostile witness
The evidence of a hostile witness can form the basis of conviction.
Quality over quantity of witnesses
The general principle of appreciating the evidence of eye-witnesses is that when a case involves a large number of offenders, prudently, it is necessary, but not always, for the Court to seek corroboration from at least two more witnesses as a measure of caution. Be that as it may, the principle is quality over quantity of witnesses. [Mrinal Das Vs. State of Tripura (2011) 9 SCC 479] 17.2 Effect of omissions, deficiencies:
Not give undue importance to omissions and discrepancies
Evidence examined as a whole, must reflect/ring of truth. The court must not give undue importance to omissions and discrepancies which do not shake the foundations of the prosecution’s case. [Rohtash Kumar Vs. State of Haryana (2013) 14 SCC 434; Bhagwan Jagannath Markad Vs. State of Maharashtra (2016) 10 SCC 537; and Karan Singh Vs. State of Uttar Pradesh (2022) 6 SCC 52]
Reliance on single witness:
If a witness is absolutely reliable then conviction based thereupon cannot be said to be infirm in any manner. [Karunakaran Vs. State of Tamil Nadu (1976) 1 SCC 434; and Sadhuram Vs. State of Rajasthan (2003) 11 SCC 231]
Testimony of a close relative:
A witness being a close relative is not a ground enough to reject his testimony. Mechanical rejection of an even “partisan” or “interested” witness may lead to failure of justice.
Falsus in uno, falsus in omnibus
The principle of “falsus in uno, falsus in omnibus” is not one of general application. [Bhagwan Jagannath Markad Vs. State of Maharashtra (2016) 10 SCC 537]
Benefit of a doubt
To entitle a person to the benefit of a doubt arising from a duality of views, the possible view in favour of the accused must be as nearly reasonably probable as that against him. [Gopal Reddy Vs. State of Andhra Pradesh (1979) 1 SCC 355]
Delay in sending FIR:
Unless serious prejudice is caused, mere delay in sending the FIR to the Magistrate would not, by itself, have a negative effect on the case of the prosecution. [[State of Rajasthan Vs. Doud Khan (2016) 2 SCC 607]
One of the external checks against ante-dating or ante- timing an FIR is the time of its dispatch to the Magistrate or its receipt by the Magistrate. A dispatch of a copy of the FIR forthwith ensures that there is no manipulation or interpolation in the FIR. [Mehraj Vs. State of U.P. (1994) 5 SCC 188; and Ombir Singh Vs. State of U.P. (2020) 6 SCC 378]
Last seen theory :
On its own, last seen theory is considered to be a weak basis for conviction. However, when the same is coupled with other factors such as when the deceased was last seen with the accused, proximity of time to the recovery of the body of deceased etc. The accused is bound to give an explanation under Section 106 of the Evidence Act, 1872. If he does not do so, or furnishes what may be termed as wrong explanation or if a motive is established – pleading securely to the conviction of the accused closing out the possibility of any other hypothesis, then a conviction can be based thereon. [Satpal Singh Vs. State of Haryana (2018) 6 SCC 610; and Ram Gopal Vs. State of M.P. (2023) SCC OnLine 158]
Cases involving several accused Persons
A three judge bench of which one of us (B.R Gavai J.) was a member, observed as under in respect of the application of Section 149, of the Indian Penal Code, 1860-
“30. Section 149 of the Indian Penal Code is declaratory of the vicarious liability of the members of an unlawful assembly for acts done in prosecution of the common object of that assembly or for such offences as the members of the unlawful assembly knew would be committed in prosecution of that object. If an unlawful assembly is formed with the common object of committing an offence, and if that offence is committed in prosecution of the object by any member of the unlawful assembly, all the members of the assembly will be vicariously liable for that offence even if one or more, but not all committed the offence. Again, if an offence is committed by a member of an unlawful assembly and that offence is one which the members of the unlawful assembly knew to be likely to be committed in prosecution of the common object, every member who had that knowledge will be guilty of the offence so committed.” [Hari v. State of UP 2021 SCC OnLine SC 1131; Shambhu Nath Singh v. State of Bihar, AIR 1960 SC 725] While overt act and active participation may indicate common intention of the person perpetrating the crime, the mere presence in the unlawful assembly may fasten vicariously criminal liability under Section 149. [Lalji Vs. State of U.P. (1989) 1 SCC 437] When a case involves large number of assailants it is not possible for the witness to describe the part played therein by each of such persons. It is not necessary for the prosecution to prove each of the members’ involvement especially regarding which or what act. [Masalti Vs. State of UP AIR 1965 SC 202]
Power of Court of Appeal:
The Court of appeal has wide powers of appreciation of evidence in an order of acquittal as in the order of conviction, along with the rider of presumption of innocence which continues across all stages of a case. Such Court should give due importance to the judgment rendered by the Trial Court. [Atley Vs. State of UP AIR 1955 SC 807]
Referring to Gurudutt Pathak Vs. State of U.P. [(2021) 6 SCC 116] the judgment in Geeta Devi Vs. State of U.P. [2022 SCC OnLine 57], this Court appreciated the law on this aspect and then observed that the High Court, being the First Appellate Court must discuss/re-appreciate the evidence on record. Failure to do so is a good ground enough to remand the matter for consideration.
When A Case Tried On Merits, It Should Not Be Reversed On Technical Grounds
Kiran Singh v. Chaman Paswan, AIR 1954 SC 340, the Supreme Court observed that when a case has been tried by a court on merits and judgment rendered, it should not be liable to be reversed purely on technical grounds, unless it has resulted in failure of justice.
How the First Appellate Court deals the Case
In B.V. Nagesh & Anr. v. H.V. Sreenivasa Murthy, (2010) 10 SCC 551, it is observed as under:
“The first appeal is a valuable right of the parties and unless restricted by law, the whole case therein is open for re-hearing both on questions of fact and law. The judgment of the appellate Court must, therefore, reflect its conscious application of mind and record findings supported by reasons, on all the issues arising along with the contentions put-forth and pressed by the parties for decision of the appellate Court. Sitting as a court of appeal, it was the duty of the High Court to deal with all the issues and the evidence led by the parties before recording its findings. The first appeal is a valuable right and the parties have a right to be heard both on questions of law and on facts and the judgment in the first appeal must address itself to all the issues of law and fact and decide it by giving reasons in support of the findings. [Vide Santosh Hazari vs. Purushottam Tiwari, (2001) 3 SCC 179 = JT (2001) 2 SC 407 and Madhukar and Others vs. Sangram and Others, (2001) 4 SCC 756]”
Finding on Question of Fact – Appellate Court Will Not Interfere
The general rule followed by our courts is that the appellate court should not interfere with the finding of the trial Judge on a pure question of fact, if the finding is not perverse (Sarju Pershad Vs Jwaleshwari Pratap, AIR 1951 SC 120; 1950 SCR 7839; Radha Prasad Vs Gajadhar Singh, AIR 1960 SC 115; Madhusudan Das Vs Smt. Narayanibai, AIR 1983 SC 114; 1983- 1 SCC 35; T.D.Gopalan v. H.R.& C.E, Madras, AIR 1972 SC 1716).
A Third Party can Prefer appeal
Smt. Jatan Kanwar Golcha v. M/s. Golcha Properties Private Ltd.[ AIR 1971 SC 374] it is held as under
“It is well settled that a person who is not a party to the suit may prefer an appeal with the leave of the appellate Court and such leave should be granted if he would be prejudicially affected by the judgment.”
In Banarsi v. Ram Phal, AIR 2003 SC 1989, it is held –
Sections 96 and 100 CPC do not enumerate the person who can file an appeal.
To file an appeal the person must be one aggrieved by the decree.
Unless a person is prejudicially or adversely affected by the decree he is not entitled to file an appeal.
No appeal lies against a mere finding.
Sections 96 and 100 CPC provide for an appeal against decree and not against judgment.
Possessory title is a good title as against everybody other than the lawful owner.
Injunction will not be passed to favour a trespasser or a person in unlawful possession.
It will suffice if he can prove his lawful possession (Rame Gowda v. M. Varadappa Naidu, 2004-1 SCC 769).
Even if the plaintiff is a trespasser, injunction will be granted if he can prove that his possession is settled/established.
If the possession of the plaintiff is ‘settled/established’, injunction will be ordered against a true owner. In such a case, the ‘injunction’ will be subject to the (result of) claim of recovery (if any) in a proper suit, by the true owner.
It is not necessary for the person (in possession) claiming injunction, to prove his title – as long as the defendant does not claim title.
Person in ‘settled/established possession’ may get injunction against true owner (not to disposes otherwise than on due process of law); but, it cannot be claimed after cancellation (by court) of the sale deed he relied (Padhiyar Prahladji Chenaji v. Maniben Jagmalbhai, 2022 SCC OnLine SC 258.
Possession is a Substantive Right
Possession by itself is a substantive right recognised by law. It is heritable and transferable, as explained in the following decisions –
Nair Service Society Ltd. v. K.C. Alexander, AIR 1968 SC 1165,
Kuttan Narayanan v. Thomman Mathayi, AIR 1966 Ker 179;
Phirayalal Kapur v. Jia Rani, AIR 1973 Delhi 186;
Nallammal v. Ayisha Beevi, 2017-5 Mad LJ 864).
Settled Possession, Established Possession & Possessory Title
In A. Subramanian v. R. Pannerselvam, AIR 2021 SC 821, the Supreme Court held that even a trespasser, who is in established possession of the property could obtain injunction. But, it was cautioned that the matter would be different, if the plaintiff himself elaborated in the plaint about title dispute and fails to make a prayer for declaration of title along with injunction relief.
In Poona Ram v. Moti Ram, AIR 2019 SC 813, it was pointed out in a case where there was no document to prove settled possession that ‘merely on doubtful material and cursory evidence, it cannot be held that the plaintiff was ever in possession of the property, and that too in settled possession’. It held further as under:
“13. The crux of the matter is that a person who asserts possessory title over a particular property will have to show that he is under settled or established possession of the said property. But merely stray or intermittent acts of trespass do not give such a right against the true owner. Settled possession means such possession over the property which has existed for a sufficiently long period of time, and has been acquiesced to by the true owner. A casual act of possession does not have the effect of interrupting the possession of the rightful owner. A stray act of trespass, or a possession which has not matured into settled possession, can be obstructed or removed by the true owner even by using necessary force. Settled possession must be (i) effective,(ii) undisturbed, and (iii) to the knowledge of the owner or without any attempt at concealment by the trespasser. There cannot be a straitjacket formula to determine settled possession. Occupation of a property by a person as an agent or a servant acting at the instance of the owner will not amount to actual legal possession. The possession should contain an element of animus possidendi. The nature of possession of the trespasser is to be decided based on the facts and circumstances of each case.”
Possessory Title
The term ‘Possessory Title’ (in contrast to legally recognised ‘title appertain to ownership’) arises in the following situations-
1.Acquisition of ‘Original Title’: It is acquisition of title contradistinct to ‘derivative’ acquisition of title.
2.Possessory Title: ‘Possessory Title’ against everybody other than the lawful owner (For, possession by itself is a substantive right and good title; and ‘Right to Possession’ is a “Property”, under law).
3.Statutory titleby Adverse Possession: Perfection of title by ‘Adverse Possession’ against the true owner; i.e., (legal) acquisition of title as recognised by Sec. 27 of the Limitation Act. (K V Swamynathan v. E V Padmanabhan, 1991-1 JT 83, 1990-2 Scale 1326)
‘Possessory Title’- On the Premise that ‘Possession’ is a Substantive Right
One who captures a property belonging to none, or reduces such a property to his possession, gets good title against the whole world – as in the case of birds in the air and fishes in the water. And, if it belongs to another, possession of the holder of such property is good title against all but the true owner (Somnath Barman v. Dr. SP Raju AIR 1970 SC 846, 1969-3 SCC 129); because, possession is the most important objective expression of ownership. According to Salmond, possession is the most basic relationship between men and things, and the possessor should have the ‘animus’ to possess the ‘corpus’.
Settled ‘Possessory Title’, in Part Performance
In Ghanshyam v. Yogendra Rathi, AIR 2023 SC 2754, 2023-7 SCC 361, the Supreme Court allowed the plaintiff (purchaser in an agreement for sale) to recover property from the defendant/title-holder (true-owner). It was on two, main, grounds:
First, the plaintiff/purchaser was having settled-possessory- title, in part performance under Sec. 53A of the Transfer of Property Act, 1882
Second, the defendant/title-holder (allowed to occupy a portion of the property for a period of 3 months as a licencee) failed to vacate despite notice.
‘Rival Titles’ in Adverse Possession – Title by ownership & Title by possession
Possessory title by adverse possession is basically a philosophical concept of property law; and it is merely acknowledged in common law and in the Limitation Act. It is explained in the thought provoking article, “Possessory Title: Its True Nexus with the Law of Limitation and the ‘Theory of Relativity’ ” by Anoop Bhaskar, Advocate, Thiruvananthapuram (2022 KLT). It is also pointed out that there are two ‘rival titles’ in a case of adverse possession; i.e., title by ownership (pertain to true owner) & title by possession (pertain to trespasser).
When a plea on adverse possession is propped up, the judicial determination is warranted on rival claims on ‘title on ownership’ and ‘title by adverse possession’; and also, ‘presumptions on title’ and ‘presumptions on possession’. If the trespasser can prove adverse possession against the true owner, as provided under Article 65 of the Limitation Act, the law favours the trespasser endorsing his Possessory Title. The learned author lays down the doctrine of ‘preference’ upon the two ‘rival titles’ as under:
“It is true by the operation of limitation prescribed under Article 65, the prior owner loses his right or remedy to sue for possession based on title. At this point, the adverse possessor acquires title by the virtue of original acquisition. … In other words, the possessor will have an entitlement to the right to possess the land against others; i.e., he is having the title to possess. At the same time the prior owner will be denying the adverse possessor’s entitlement to possession and be claiming the entitlement to all the incidents of ownership, including possession. Basically, he will be claiming title to ownership on the land. This is how there will exist two rival titles in the case of a title dispute, i.e., title to ownership & title to possession. Now the Courts will be called upon to measure the strength of each title. If the adverse possessor proves that the prior owner has lost his right to recover possession by way of limitation, it will mean that the title of the prior owner will be weaker than adverse possessor.”
Nature of Property and Claim of Occupant Whether Bona Fide were Determinative Factors
In Government of A.P. v. Thummala Krishna Rao, (1982) 2 SCC 134, the question considered was whether summary remedy for evicting a person provided for by section 6 of the Andhra Pradesh Land Encroachment Act, 1905, could be resorted to. It was pointed out
the duration of encroachment, short or long, was not the determinative matter
what was relevant for the decision was more the nature of the property and
whether the claim of the occupant was bona fide.
It was also found that if there was bona fide dispute, on title between the Government and the occupant, it must be adjudicated upon by the Ordinary courts of law. The Government cannot decide such questions unilaterally in its own favour and evict any person summarily. Duration of occupation would be relevant requiring an impartial adjudication according to the established procedure of law, if the person –
occupied openly for an appreciable length of time and
could be taken, prima facie, to have a bonafide claim to the property.
Possession is Good Title against all but the True Owner
In Somnath Barman v. Dr. SP Raju AIR 1970 SC 846, 1969-3 SCC 129 our Apex Court relied on Narayana Row v. Dharmachar, ILR 26 Mad. 514, where the Madras High Court consisting of Bhashyam Ayyangar and Moore, JJ., held that possession was, under the Indian, as under the English law, good title against all but the true owner. In Somnath Barman v. Dr. SP Raju, AIR 1970 SC 846, 1969-3 SCC 129 (KS Hegde & JC Shah, JJ.), it was observed as under:
“In our opinion the possession of the plaintiff prior to 1945 is a good title against all but the true owner. The defendants who are mere trespassers cannot defeat the plaintiff’s lawful possession by ousting him from the suit property. Possessory title is a good title as against everybody other than the lawful owner. In Ismail’ Ariff v. Mohamed Ghouse(I.L.R.20 1.A.99), the Judicial Committee came to the conclusion that a person having possessory title can get a declaration that he was the owner of the land in suit and an injunction restraining the defendant from interfering with his possession. Therein it was observed that the, possession of the plaintiff was a sufficient evidence of title as owner against the defendant.”
True Owner
Section 6 of the Specific Relief Act allows one to file a suit for recovery of property, on the strength of his prior possession, if he had lost his possession within 6 months of the suit. It can be invoked even when the true owner evicts a person in legal or settled possession (like tenant) otherwise than on due process of law. In such a case, he need not prove his ownership to the property; and he can succeed on establishing that he has been dispossessed otherwise than in accordance with law within six months.
‘Possession is Good Against All but the True Owner’ & Sec. 6 of the Sp. Relief Act
The principle ‘Possession is Good against all but the True Owner’ is declared in Parry v. Clissold, (1907) AC 73. In this decision it was also pointed out that if the rightful owner did not come forward and assert his title within the period of limitation, his right would be extinguished and the possessory owner acquires an absolute title.
The Supreme Court of India while accepting this principle in Nair Service Society Ltd. v. K.C. Alexander, AIR 1968 SC 1165, pointed out that the law in India allows a plaintiff to maintain a possessory suit under Sec. 9 (preset Sec. 6) of the Specific Relief Act. Such a suit can be filed against a title holder, if he had dispossessed the plaintiff ‘otherwise than in due course of law’.
In Nair Service Society Ltd. v. K.C. Alexander, AIR 1968 SC 1165, it is observed as under:
“17. … To express our meaning we may begin by reading 1907 AC 73 (Perry V. Clissold), to discover if the principle that possession is good against all but the true owner has in any way been departed from.
1907 AC 73 reaffirmed the principle by stating quite clearly:
“It cannot be disputed that a person in possession of land in the assumed character of owner and exercising peaceably the ordinary rights of ownership has a perfectly good title against all the world but the rightful owner. And if the rightful owner does not come forward and assert his title by the process of law within the period prescribed by the provisions of the statute of Limitation applicable to the case, his right is for ever extinguished and the possessory owner acquires an absolute title.”
Therefore, the plaintiff who was peaceably in possession was entitled to remain in possession and only the State could evict him. The action of the Society was a violent invasion of his possession and in the law as it stands in India the plaintiff could maintain a possessory suit under the provisions of the Specific Relief Act in which title would be immaterial or a suit for possession within 12 years in which the question of title could be raised.”
In Poona Ram v. Moti Ram, AIR 2019 SC 813, our Apex Court explained the principle ‘possession is a good title of right against any one who cannot show a better’ as under:
“9. The law in India, as it has developed, accords with jurisprudential thought as propounded by luminaries like Salmond. Salmond on Jurisprudence states:
“These two concepts of ownership and possession, therefore, may be used to distinguish between the de facto possessor of an object and its de jure owner, between the man who actually has it and the man who ought to have it. They serve also to contract the position of one whose rights are ultimate, permanent and residual with that of one whose rights are only of a temporary nature.
x x x x x
In English law possession is a good title of right against any one who cannot show a better. A wrongful possessor has the rights of an owner with respect to all persons except earlier possessors and except the true owner himself. Many other legal systems, however, go much further than this, and treat possession as a provisional or temporary title even against the true owner himself. Even a wrongdoer, who is deprived of his possession, can recover it from any person whatever, simply on the ground of his possession. Even the true owner, who takes his own, may be forced in this way to restore it to the wrongdoer, and will not be permitted to set up his own superior title to it. He must first give up possession, and then proceed in due course of law for the recovery of the thing on the ground of his ownership. The intention of the law is that every possessor shall be entitled to retain and recover his possession, until deprived of it by a judgment according to law.
Legal remedies thus appointed for the protection of possession even against ownership are called possessory, while those available for the protection of ownership itself may be distinguished as proprietary. In the modern and medieval civil law the distinction is expressed by the contrasted terms petitorium (a proprietary suit) and possessorium (a possessory suit).”
10. As far back as 1924, in the case of Midnapur Zamindary Co. Ltd. v. Naresh Narayan Roy, AIR 1924 PC 144, the learned Judge observed that in India, persons are not permitted to take forcible possession; they must obtain such possession as they are entitled to through a court. Later, in the case of Nair Service Society Ltd. v. K.C. Alexander, AIR 1968 SC 1165, this Court ruled that when the facts disclose no title in either party, possession alone decides. It was further held that if Section 9 of the Specific Relief Act, 1877 (corresponding to the present Section6) is employed, the plaintiff need not prove title and the title of the defendant does not avail him. When, however, the period of six months has passed, questions of title can be raised by the defendant, and if he does so the plaintiff must establish a better title or fail. In other words, such a right is only restricted to possession in a suit under Section 9 of the Specific Relief Act (corresponding to the present Section 6) but does not bar a suit on prior possession within 12 years from the date of dispossession, and title need not be proved unless the defendant can provide one.
11. It was also observed by this Court in Nair Service Society Ltd. (supra) that a person in possession of land in assumed character of owner and exercising peaceably the ordinary rights of ownership has a perfectly good title against the entire world except the rightful owner. In such a case, the defendant must show in himself or his predecessor a valid legal title and probably a possession prior to the plaintiff’s, and thus be able to raise a presumption prior in time.”
Possessory Title – Recognised in Law
A person in possession is at liberty to file a suit to recover his possession (with or without declaration) by a regular suit for recovery of possession, even if he failed to exercise his option to file a suit under Sec. 6 of the Specific Relief Act, within six months of losing possession. It can be based on title, or on his possession in assumed or presumed character of ownership (even if title not perfected by doctrine of adverse possession). It is on the principle that ‘possession is good title against all the world but the rightful owner’. The law on this matter is laid down in detail in Kuttan Narayanan v. Thomman Mathayi, AIR 1966 Ker 179, referring various authoritative authors and previous illuminative decisions. It is pronounced as under:
“6. Possession by itself is a substantive right recognised by law and has legal incidents attached to it apart from ownership. Even before the acquisition of statutory titleby adverse possession for the requisite period under the Limitation Act, the possessory owner has well defined rights in property. It is now settled beyond all dispute that this interest is heritable, devisable and transferable. This interest is referred to as possessory title as distinct from proprietary title. A person having such interest must be allowed to enforce those rights against all the world except those who have a better title or better right than himself.
Salmond on Jurisprudence, Eleventh edition, observes at page 345 :
“In English law possession is a good title of right against any one who cannot show a better. A wrongful possessor has the rights of an owner with respect to all persons except earlier possessors and except the true owner himself.”
and at pages 473 and 474 it is observed:
“On the other hand, the thing of which possession is taken may already be the property of some one else. In this case the title acquired by possession is good, indeed, against all third persons, but is of no validity at all against the true owner. Possession, even when consciously wrongful, is allowed as a title of right against all persons who cannot show a better, because a prior title in themselves. Save with respect to the rights of the original proprietor, my rights to the watch in my pocket are much the same whether. I bought it honestly, or found it, or abstracted it from the pocket of some one else. If it is stolen from me, the law will help me to the recovery of it. I can effectually sell it, lend it, give it away, or bequeath it, and it will go on my death intestate to my next of kin. Whoever acquires it from me, however, acquires in general nothing save my limited and imperfect title to it, and holds if, as I do, subject to the superior claims of the original owner.
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If a possessory owner is wrongfully deprived of the thing by a person other than the true owner he can recover it. For the defendant cannot set up as a defence his own possessory title since it is later than and consequently inferior to, the possessory title of the plaintiff. Nor can he set up as a defence the title of the true owner–the jus tertii as it is called; the plaintiff has a better, because an earlier, title than the defendant, and it is irrelevant that the title of some other person, not a party to the suit, is better still. The expediency of this doctrine of possessory ownership is clear. Were it not for such a rule, force and fraud would be left to determine all disputes as to possession, between persons of whom neither could show an unimpeachable title to the thing as the true owner of it.”
Pollock & Wright in their book ‘Possession in the Common Law’ expressed themselves thus at page 91:
“Existing possession, however acquired, is protected against any interference by a mere wrongdoer; and the wrongdoer cannot defend himself by showing a better title than the plaintiff’s in some third person though or under whom he docs not himself claim or justify. ‘Any possession is a legal possession‘–i.e. lawful and maintainable–against a wrong doer.”
and at page 95:
“It would be possible at first sight to suppose that, as between a succession of independent occupiers who were all wrongdoers as against the true owner, the law must be indifferent, with the result of conferring an absolute title upon the person who happens to he in possession when the time of limitation expires. Reflection, however, shows this to be contrary to the reason and principles of the law. Possession being once admitted to be a root of title, every possession must create a title which, as against all subsequent intruders, has all the incidents and advantages of a true title. In the language of the modern authorities, ‘Possession is good title‘– nothing less–‘against all but the true owner‘.”
7. The English doctrine of possessory title is expressed in the following terms by Cockburn, C. J., in Asher v. Whitelock, (1865) 35 LJQB 17:
“I take it to be established by authority that possession is good against all the world except the person who can show a better title than the one in possession Doe d Hughes v. Dyeball, (1829 Moo & M 346) shews that possession, even for a year, is sufficient against a mere subsequent possession. The whole law of disseisin was founded upon the principle that the desseisin gives title to the disorder against all the world but the disseisee.”
8. Their Lordships of the Judicial Committee of the Privy Council in Perry v. Clissold, 1907 AC 73 at p. 79 decided:
“It cannot be disputed that a person in possession of land in the assumed character of owner and exercising peaceably the ordinary rights of ownership has a perfectly good title against all the world but the rightful owner. And if the rightful owner does not come forward and assert his title by process of law within the period prescribed by the provisions of the Statute of Limitations applicable to the case, his right is for ever extinguished, and the possessory owner acquires an absolute title.”
9. The above is certainly the doctrine of English Law. The rule of English Law that possession is good title against all but the true owner has been adopted by the decisions of the Indian High Courts and also by the decisions of the Judicial Committee of the Privy Councilin the Indian cases. In Khajah Enaetoollah Chowdhry v. Kishen Soondur Surma, (1867) 8 Suth WR 386 at pp. 387 and 388, Dwarkanath Mitter, J. posed the question thus:
“Can the Civil Courts give a decree for immovable property on the bare ground of illegal dispossession in a suit brought after six months from the date of such dispossession, it being borne in mind, however, that the defendant has failed to prove his own title to the same?”
and answered the same in the following terms:
But we do not see any reason why a mere wrongful dispossess or should require proof from his adversary of anything beyond the illegal dispossession complained of. He himself has not got and never had any title to the land. The act of dispossession committed by him has been entirely without any sanction from law. Justice and equity require that he should be compelled to restore the party wronged by him to the same position which the latter enjoyed before the dale of the illegal ejectment. To adopt the contrary view appears to us to be tantamount to holding out a premium in favour of wrong and violence”
and in Hari v. Dhondi, (1906) 8 Bom LR 96 Sir Lawrence Jenkins, C. J. said:
“Possession is evidence of ownership, and is itself the foundation of a right to possession.”
and Subramania Ayyar, J. in Mustapha Saheb v. Santha Pillai, (1900) ILR 23 Mad 179 at p. 182 said:
“that the rule of law that a party ousted by a person who has no better right is, with reference to the person so ousting, entitled to recover by virtue of the possession he had held before the ouster even though that “possession was without any title” is so firmly established as to render a lengthened discussion about it quite superfluous.”
10. In Sundar v. Parbati, (1890) ILR 12 All 61 (PC) decided by their Lordships of the Judicial Committee of the Privy Council, the suit was for partition and recovery of possession filed by the junior widow of a deceased Hindu against the senior widow who denied the junior widow’s right to separate possession and contended that she was entitled to manage the whole estate. The Subordinate Judge decreed the plaintiff’s suit. A Bench of the Allahabad High Court reversed the decree of the Subordinate Judge and dismissed the suit. Lord Watson delivering the Judgment of the hoard, observed at page 57:
“If it were necessary to determine the point, their Lordships would probably have little difficulty in accepting the opinion of the High Court that a Hindu Brahman cannot lawfully adopt his own sister’s son. But apart from that question, and also from any question touching the legal effect of Baldeo Sahai’s will the fact of joint possession by the two widows of the estates which belonged to the testator, ever since the death of Premsukh in 1879, appears to them to be sufficient for disposing of this suit in favour of the appellant. Their Lordships are at a loss to understand, at all event to appreciate, the grounds upon which the Chief Justice endeavours to differentiate between the authorities which he cites, the import of which he correctly states, and the position of the parties to this action. Their possession was lawfully attained, in this sense, that it was not procured by force or fraud, but peaceably, no one interested opposing. In these circumstances, it does not admit of doubt that they were entitled to maintain their possession against all coiners except the heirs of Premsukh or of Baldco Sahai, one or other of whom (it is unnecessary to say which) is the only person who can plead a preferable title. But neither of these possible claimants is in the field, and the widows have therefore, each of them, an estate or interest in respect of her possession, which cannot be impaired by the circumstance that they may have ascribed their possession to one or more other titles which do not belong to them. It is impossible to hold that a joint estate is not also partible; and their Lordships will therefore humbly advise Her Majesty that the judgment of the High Court ought to be reversed, and that of the Subordinate Judge restored.”
The above principle was reiterated by their Lordships of the Judicial Committee in Ismail Ariff v. Mahomed Ghous, (1893) ILR 20 Cal 834 (PC). At page 843 their Lordships observed:
“It appears to their Lordships that there is here a misapprehension of the nature of the plaintiff’s case upon the facts stated in the judgment. The possession of the plaintiff was sufficient evidence of title as owner against the defendant. By Section 9 of the Specific Relief Act (Act 1 of 1877), if the plaintiff had been dispossessed otherwise than in due course of law, he could, by a suit instituted within six months from the date of the dispossession, have recovered possession, notwithstanding any other title that might be set up in such suit. If he could thus recover possession from a person who might be able to prove a title, it is certainly right and just that he should be able, against a person who has no title and is a mere wrongdoer, to obtain a declaration of title as owner, and an injunction to restrain the wrong-doer from interfering with his possession. Die Appellate Court, in accordance with the judgment above quoted, has dismissed the suit. Consequently, the defendant may continue to wilfully, improperly and illegally interferes with the plaintiff’s possession, as the learned Judge say he has done, and the plaintiff has no remedy. Their Lordships are of opinion that the suit should not have been dismissed; and that the plaintiff was entitled in it to a declaration of his title to the land.”
The principle underlying the rule that possession is a good title against all the world except the person who can show a better title is staled thus in Narayana Row v. Dharma-char, (1903) ILR 26 Mad 514 at p. 518:
“The principle underlying the rule of law in question seems to be that acquisition of title by operation of the law of limitation being a lawful mode of acquiring title, the person in peaceable possession is entitled to maintain such possession against all but the true owner and that therefore a third party who has no better title than the person in possession has no right to invade upon the possession of the latter and interrupt or arrest his lawful acquisition of title by his continuing to remain in possession for the statutory period. It is the true owner alone that is entitled to assert his title as against the person wrongfully in possession, and prevent such wrongful possession ripening into prescriptive title. But a third party who without deriving title under the true owner and without his authority, interrupts such possession before it has ripened into prescriptive title, is a trespasser, not only against the true owner, but also against the party actually in possession; and, subject to the law of limitation, either of them is entitled to maintain a suit in ejectment against such intruder as a trespasser.”
11. We are therefore of the view that a person in juridical possession, if dispossessed by a trespasser without title, can recover possession on the sole ground of his prior possession even beyond six months from the date of dispossession and this is enough to dispose of the second appeal.
12. But the learned advocate for the appellant relying on the decision in Nisa Chand Gaita v. Kanchiram Bagani, (1899) ILR 26 Cal 579 submitted that mere previous possession for any period short of the statutory period of twelve years will not entitle a plaintiff to a decree for recovery of possession in a suit brought more than six months after dispossession, even if the defendant could not establish any title to the disputed land. The point which arose for decision in (1899) ILR 26 Cal 579 was whether the plaintiff is entitled to a decree merely upon proof of previous possession for a period less than twelve years, on the ground that the defendant has established no title, the suit having been brought more than six months after the date of dispossession. (1893) ILR 20 Cal 834 (PC) was distinguished thus:
“There (in 1893) ILR 20 Cal 834 (PC) the plaintiff was in possession when he brought his suit, whereas in the present case the plaintiff is out of possession. What the plaintiff asked for in the case of Ismail Ariff v. Mahomed Ghous (1893-20 Cal 834 PC) was a decree declaring his right, and an injunction restraining the defendant from disturbing his possession; what the plaintiff asks for in this case is only recovery of possession; and what was said by their Lordships of the Judicial Committee with reference to the plaintiff’s right to obtain this relief is to be found in the following passage of their judgment:
“It appears to their Lordships that there is here a misapprehension of the nature of the plaintiff’s case upon the facts stated in the judgment. The possession of the plaintiff was sufficient evidence of title as owner against the defendant. By Section 9 of the Specific Relief Act (1 of 1877), if the plaintiff had been dispossessed otherwise than in due course of law, he could by a suit instituted within six months from the date of the dispossession, have recovered possession, notwithstanding any other title that might be set up in such suit. If he could thus recover possession from a person who might be able to prove a title, it is certainly right and just that he should he able, against a person who has no title and is a mere wrongdoer, to obtain a declaration of title as owner, and an injunction to restrain the wrong-doer from interfering with his possession.”
This shows, as we understand the judgment, that the reason for their Lordships’ decision was this that as the plaintiff, had his position been rendered somewhat worse by his being dispossessed, could, by instituting a suit within six months for recovery of possession under Section 9 of the Specific Relief Act, have recovered possession even as against a person who might establish a better title, it was only right and just that if he brought his suit before he was dispossessed he could be declared entitled to retain possession as against a mere wrong-doer, and should obtain an injunction restraining the wrong-doer from interfering with his possession. But, though that was so in the case of a plaintiff who was in possession, and had, therefore, a possibility open to him of being restored to possession upon mere proof of possession, by instituting a suit under section 9 of the Specific Relief Act upon being dis-possessed, it does not follow that it should be so in the case of a plaintiff who had been in possession, and allowed more than six months to elapse after his dispossession, and therefore, lost the possibility of recovering possession, by a suit under Section 9 of the Specific Relief Act, upon mere proof of previous possession.”
13. Distinguishing (1893) ILR 20 Cal 834 (PC) in the above manner, the Calcutta High Court in (1899) ILR 26 Cal 579 sought support for the dictum in the following observations of the Privy Council in J. P. Wise v. Ameerunnissa Khatoon, (1879-80) 7 Ind App 73 at p. 80 (PC):
“It is quite clear that the plaintiffs have failed to make out a title. The Defendants were put into possession by the Government, who were entitled to the lands, and they were ordered by the Magistrate under the Code of Criminal Procedure to be retained in possession. If the Plaintiffs had wished to contend that the Defendants had been wrongfully put into possession and that the Plaintiffs were entitled to recover on the strength of their previous possession without entering into a question of title at all, they ought to have brought their action within six months under Section 15 of Act XIV of 1859; but they did not do so. The High Court, with reference to this point say (and in their Lordships’ opinion, correctly say) : “Further, de facto possession having been given to the Defendants under Section 318 of the Code of Criminal Procedure, in accordance with the Deputy Collector’s award, the plaintiff will not be entitled to a decree until and unless he can show a better title to these lands than the Defendants. The fact that the Plaintiffs’ posses sion as regards B, C, and D was confirmed under Act IV of 1840, and that the defendants Nos. 2 and 3 unsuccessfully endeavoured to dis-turb them by regular suit, does not bar the right of Government. Section 2 of Act IV of 1840 only affects persons concerned in the dispute. If Kalkini-hud belonged to a private individual he might have reduced into his own possession lands which had accreted to the estate and which undoubtedly were his. But lands to which he is unable to make out a title cannot he recovered on the ground of previous possession merely, except in a suit under Section 15 of Act XIV of 1859, which must be brought within six months from the time of that dispossession.”
The Calcutta High Court on an interpretation of (1893) ILR 20 Cal 834 (PC) and (1879 80) 7 Ind App 73 (PC) has therefore taken the view that Section 9 of the Act operates as a bar to the institution of suits in which the claim for possession of any immovable property is based on anything but proprietary title.
14. On the other hand, the decision in (1893) ILR 20 Cal 834 (PC) was relied on by the other High Courts for the position that possessory title can be made the foundation for suits in ejectment filed after six months from the date of dispossession against trespassers who have no title.
15. The effective answer to the basis of the decision of the Calcutta High Court in (1899) ILR 26 Cal 579 has been furnished by Subra-mania Ayyar and O’ Farrell JJ. in (1900) ILR 23 Mad 179 at p. 183. Subramania Ayyar, J. at page 183 observed:
“And with reference to the grounds on which decision in (1899) ILR 26 Cal 579 seems to rest, it is necessary to make but two observations. The first is that Section 9 of the Specific Relief Act cannot possibly be held to take away any remedy available with reference to the well-recognised doctrine expressed in Pollock and Wright on Possession thus:–Possession in law is a substantive right or interest which exists and has legal incidents and advantages apart from the true owners title, (at page 19). The second observation is that in (1879-80) 7 Ind App 73 (PC) relied on in (1899) ILR 26 Cal 579 the defendant had a better right than the plaintiff, since the possession of the former was authorised by the Government whose properly the land in dispute was and consequently nothing said by their Lordships in a case wherein such were the facts can rightly be con-strued as intended to lay down the law differently from what it bad been all along understood to be.” and O’ Farrell, J. observed:
“All the dictum of the Privy Council in (1879-80) 7 Ind App 73 (PC) appears to amount to is this, that where a plaintiff in possession without any title seeks to recover possession of which be has been forcibly deprived by a defendant having a good title, he can only do so under the provisions of Section 9 of the Specific Relief Act and not otherwise.”
16. The Madras High Court again in (1903) ILR 26 Mad 514 relying on (1893 ILR 20 Cal 834 (PC) took the view that Section 9 of the Act is in no way inconsistent with the position that as against a wrong-doer, prior possession of the plaintiff in an action of ejectment is sufficient title, even if a suit is brought more than six months after the date of dispossession and the wrong-doer cannot successfully resist the suit by showing that the title and right to possession are in a third person, and a plea of jus tertii is no defence unless the defendant can show that the act complained of was done by authority of the true owner and it is immaterial however short or recent the plaintiff’s possession was. The only effect of Section 9 of the Act is that if a summary suit be brought within the time prescribed by that Section, the plaintiff therein who was dispossessed otherwise than in due course of law will be entitled to be reinstated even if the defendant who thus dispossessed him be the true owner or a person authorised by or claiming under him, but a decree in such a suit will not have the force of res judicata on the question of title.
17. We are in respectful agreement with the observations in (1900) ILR 23 Mad 179 and hold that the decision in (1899) ILR 26 Cal 579 has proceeded on an incorrect interpretation of the decisions in (1893) ILR 20 Cal 834 (PC) and (1879-80) 7 Ind App 73 (PC):
18. There remains only to consider the decision of Mr. Justice Raman Nayar in Vasudeva Kurup v. Ammini Amma 1964 Ker LT 468 where it was held that a person in possession without title is entitled to remain in possession even as against the lawful owner until evicted in due course of law and is therefore entitled to get an order of injunction restraining the true owner from disturbing his possession. The right of a person in possession without title to get an injunction on the basis of possessory title against the true owner is not a point arising in the second appeal and we are not expressing any opinion on that aspect. The point decided in 1964 Ker L. T. 468 has no direct bearing on the question to be decided in the second appeal except that possessory title is recognised as the foundation of a claim for maintaining one’s possession. This only supports the view we are taking in this appeal.”
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