sajikoduvath

Adverse Possession: Burden to Plead Sabotaged in Nazir Mohamed v. J. Kamala

Postscript – In the recent decision, Government of Kerala v. Joseph, 2023 KHC OnLine 6764, our Apex Court observed that burden of proof rests on the person claiming adverse possession. The Court followed P.T. Munichikkanna Reddy v. Revamma, (2007) 6 SCC 59.

Saji Koduvath.

1. Introduction.

Adverse Possession is a common law doctrine. The true title holder loses his title by adverse possession; and it is acquired by the ‘trespasser’. Period of limitation, for acquiring adverse possession, under Article 65 of The Limitation Act, is 12 years. It starts, ‘when the possession of defendant becomes adverse to the plaintiff’.

2. ‘Evolving’ Concept

Adverse possession being essentially a judge-made law, and not exhaustively defined in any statute, the concept of adverse possession has been ‘evolving’. It is interesting to note that there were divergent views even with respect to the very fundamentals of ‘adverse possession’.

3. Earlier view – Inaction of true-owner matters (not overt-acts of trespasser)

At one time it was considered that inaction/acquiescence of the true owner for 12 years brings-in adverse possession. Because,

Article 65, which speaks of as to limitation of suits (to be filed by the plaintiffs) does not specifically speak as to (i) intention to dispossess title owner or (ii) knowledge on the part of trespasser as to who is the true owner.
“Nec vi, nec clam, nec precario” does not refer to (or speak as to) ‘hostile’ possession
“Animus possidendi” also does not say – hostile possession.
Inaction, acquiescence etc. of true owner are the material considerations – to become a ‘possession’ adverse to plaintiff.
Therefore, to attract adverse possession the trespasser need not know the true owner.

Philosophy of the earlier view can be seen from Amrendra Pratap Singh v. Tej Behadur (Para 22 – AIR 2004 SC 3782)

“What is adverse possession? ………The process of acquisition of title by adverse possession springs into action essentially by default or inaction of the owner. ……… The law does not intend to confer any premium on the wrong doing of a person in wrongful possession; it pronounces the penalty of extinction of title on the person who though entitled to assert his right and remove the wrong doer and re-enter into possession, has defaulted and remained inactive for a period of 12 years, which the law considers reasonable for attracting the said penalty. ………..”

4. Present view – Give prominence to overt and adverse acts of trespasser.

Following are the important decisions to see the present view on adverse possession:

Karnataka Board of Wakaf v. Govt of India – AIR 2004 SC 2096
T. Anjanappa v. Somalingappa [(2006) 7 SCC 570]
PT Munichikkanna Reddy v. Revamma, AIR 2007 SC 1753
Ravinder Kaur Grewal v. Manjit KaurAIR 2019 SC 3827: (2019) 8 SCC 729

PT Munichikkanna Reddy v. Revamma, AIR 2007 SC 1753, is the latest decision of the Supreme Court that discussed various views on adverse possession. It is observed in this decision as under:

“Adverse possession in one sense is based on the theory or presumption that the owner has abandoned the property to the adverse possessor on the acquiescence of the owner to the hostile acts and claims of the person in possession. It follows that sound qualities of a typical adverse possession lie in it being open, continuous and hostile.”
“Thus, there must be intention to dispossess. And it needs to be open and hostile enough to bring the same to the knowledge and plaintiff has an opportunity to object. “

In a nutshell, adverse possession arises from:

acquiescence of the owner to the hostile acts
hostile acts of the trespasser.

5. Article 142 of the (Repealed) Limitation Act, 1908

Article 142 of the (repealed) Limitation Act, 1908, which dealt with the subject, did not put down the term ‘adverse’ in the relevant article concerned with “adverse possession”.

Article 142 of the Limitation Act, 1908 reads as under:

142. For possession of immovable property when the plaintiff, while in possession of the property, has been dispossessed or has discontinued the possession

12 years

The date of the dispossession or discontinuance

Article 142 of the Limitation Act, 1908 provided that the true owner would lose his right to recover the property from a trespasser if he failed to file a suit within the period of 12 years.

6. Article 65 of Limitation Act, 1963: Complete Change in Law of Adverse Possession

Articles 65 of the Limitation Act, 1963 brought-in complete change insofar as the onus of proof is concerned: The new provision casted onus on the trespasser to prove claims of title by ‘adverse’ possession. Adverse possession arises, under Article 65 of Limitation Act, 1963, only ‘by the positive and hostile acts’ of the trespasser; that is, mere possession is not sufficient, but, it must be ‘adverse’ to the true owner.

Article 65 of Limitation Act reads as under:

65. For possession of immovable property or any interest therein based on title.

12 years

When the possession of Defendant becomes
adverse to the plaintiff.

In T. Anjanappa v. Somalingappa, (2006) 7 SCC 570, it is observed by our Apex Court as under:

“The possession must be open and hostile enough to be capable of being known by the parties interested in the property, though it is not necessary that there should be evidence of the adverse possessor actually informing the real owner of the former’s hostile action. … … The person who bases his title on adverse possession, therefore, must show by clear and unequivocal evidence i.e. possession was hostile to the real owner and amounted to a denial of his title to the property claimed…. …. If the defendants are not sure who is the true owner the question of their being in hostile possession and the question of denying title of the true owner do not arise.“

7. Burden of Proof Sabotaged

Is it the burden of the defendant, in a suit for recovery, to plead adverse possession? Or, is it the duty of the plaintiff to show that the suit for possession was within the period of limitation prescribed in the Limitation Act (especially where there is a possible claim of Adverse Possession)?

Supreme Court of India considered hitherto that the burden fully rested upon the defendant.

But, in Nazir Mohamed v. J. Kamala, AIR 2020 SC 4321, arose from a suit for recovery of possession, the Apex Court held that the plaintiff had to plead the date on which the defendant took possession and in the absence of pleading to show that the relief of decree for possession was within limitation, the suit would be dismissed; for, Section 3 of the Limitation Act barred the institution of any suit after expiry of the period of limitation prescribed in the said Act, even though the plea of limitation had not been taken in defence. It is pointed out in this decision that the Presumption that possession must be deemed to follow title, arises only where there is no definite proof of possession by anyone else.

The dispute in the case as to title is stated in Para 5 and 6 of the judgment, as under:

“5. In the plaint filed in the said suit, it has been alleged that the said premises, which had been purchased by the Respondent Plaintiff’s father, by a registered sale deed dated 17.9.1940, had originally been let out to the Appellant’s father M. Abdul Aziz. After the death of M. Abdul Aziz, the tenancy was attorned in the name of the Appellant, who agreed to pay rent of Rs.25/- per month, and also the requisite Panchayat Tax.
6. Alleging that the Appellant had been trying to set up title in respect of the said premises, by applying for ‘Patta’ to the Tahsildar Natham, and further alleging that the Appellant was in arrears of rent to the tune of Rs.1225/- up to February, 1994, the Respondent Plaintiff filed the aforesaid suit.”

It is held further, as under:

“46. A decree of possession does not automatically follow a decree of declaration of title and ownership over property. It is well settled that, where a Plaintiff wants to establish that the Defendant’s original possession was permissive, it is for the Plaintiff to prove this allegation and if he fails to do so, it may be presumed that possession was adverse, unless there is evidence to the contrary.
47. The Appellant-Defendant has in his written statement in the suit, denied the title and ownership of the Respondent- Plaintiff to the suit property. The Appellant-Defendant has asserted that the Appellant-Defendant is the owner of the suit property and has been in possession and in occupation of the suit premises as owner from the very inception.
52. The maxim “possession follows title” is limited in its application to property, which having regard to its nature, does not admit to actual and exclusive occupation, as in the case of open spaces accessible to all. The presumption that possession must be deemed to follow title, arises only where there is no definite proof of possession by anyone else. In this case it is admitted that the Appellant-Defendant is in possession and not the Respondent Plaintiff.
53. A suit for recovery of possession of immovable property is governed by the Limitation Act, 1963. Section 3 of the Limitation Act bars the institution of any suit after expiry of the period of limitation prescribed in the said Act. The Court is obliged to dismiss a suit filed after expiry of the period of limitation, even though the plea of limitation may not have been taken in defence.”

After quoting Article 65 of the Limitation Act the Court observed as under:

“55. In the absence of any whisper in the plaint as to the date on which the Appellant-Defendant and/or his Predecessor-in-interest took possession of the suit property and in the absence of any whisper to show that the relief of decree for possession was within limitation, the High Court could not have reversed the finding of the First Appellate Court, and allowed the Respondent-Plaintiff the relief of recovery of possession, more so when the Appellant-Defendant had pleaded that he had been in complete possession of the suit premises, as owner, with absolute rights, ever since 1966, when his father had executed a Deed of Release in his favour and/or in other words for over 28 years as on the date of institution of the suit.
56. As held by the Privy Council in Peri v. Chrishold reported in (1907) PC 73, 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 right of possession by law, within the period prescribed by the provisions of the statute of limitation applicable to the case, his right is forever distinguished, and the possessory owner acquires an absolute title.”

Above decision stands against the consistent earlier view

It is pertinent to see that above decision stands against the consistent earlier view of the Supreme Court as expressed in L N Aswathama v. P Prakash, 2009-13 SCC 229, as under:

“In law, possession follows title. The plaintiffs having established title to the suit property, will be entitled to decree for possession, unless their right to the suit property was extinguished, by reason of defendant being in adverse possession for a period of twelve years prior to the suit.”

It is held in MS Jagadambal v. Southern Indian Education Trust, 1988 (Supp) SCC 144, that the possession continues with the title holder unless and until the defendant acquires title by adverse possession (possession follows title).

“34. The law in this behalf has undergone a change. In terms of Articles 142 and 144 of the Limitation Act, 1908, the burden of proof was on the plaintiff to show within 12 years from the date of institution of the suit that he had title and possession of the land, whereas in terms of Articles 64 and 65 of the Limitation Act, 1963, the legal position has underwent complete change insofar as the onus is concerned : once a party proves its title, the onus of proof would be on the other party to prove claims of title by adverse possession….”

Our Apex Court referred, in Government of Kerala v. Joseph, 2023 KHC OnLine 6764, the following decisions, also :

(i) M Siddiq v. Mahant Suresh Das (five-Judge Bench). It observed as under:
“748. A person who sets up a plea of adverse possession must establish both possession which is peaceful, open and continuous – possession which meets the requirement of being ‘nec vi nec claim and nec precario’. To substantiate a plea of adverse possession, the character of the possession must be adequate in continuity and in the public because the possession has to be to the knowledge of the true owner in order for it to be adverse. These requirements have to be duly established first by adequate pleadings and second by leading sufficient evidence.”
(ii) Thakur Kishan Singh v. Arvind Kumar, (1994) 6 SCC 591. It is held as under:
“5. A possession of a co-owner or of a licensee or of an agent or a permissive possession to become adverse must be established by cogent and convincing evidence to show hostile animus and possession adverse to the knowledge of real owner. Mere possession for howsoever length of time does not result in converting the permissive possession into adverse possession…”
(iii) Chatti Konati Rao v. Palle Venkata Subba Rao, (2010) 14 SCC 316, (two-Judge Bench). It is observed as under:
“15. Animus possidendi as is well known is a requisite ingredient of adverse possession. Mere possession does not ripen into possessory title until the possessor holds the property adverse to the title of the true owner for the said purpose. The person who claims adverse possession is required to establish the date on which he came in possession, nature of possession, the factum of possession, knowledge to the true owner, duration of possession and that possession was open and undisturbed…”

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Sec. 65B, Evidence Act: Arjun Paditrao Criticised.

Saji Koduvath.

Introduction.

Sec. 65A and 65B of the Evidence Act are the new enabling provisions introduced to confer a right to a party who wishes to rely upon the contents of an ‘electronic record’ by ‘computer output’ (copy or print – derived from original), adopting the procedure/drill given in Sec. 65B ‘without further proof or production of the original’; that is, without accounting for (original) ‘electronic record’. It is to simplify the proceedings and procedures.

Landmark Decisions

State (NCT of Delhi) v. Navjot Sandhu, (2005) 11 SCC 600, two- judge bench decision. It is held:
- “Irrespective of the compliance with the requirements of Section 65B, which is a provision dealing with admissibility of electronic records, there is no bar to adducing secondary evidence under the other provisions of the Evidence Act, namely, Sections 63 and 65. It may be that the certificate containing the details in sub-section (4) of Section 65-B is 26 not filed in the instant case, but that does not mean that secondary evidence cannot be given even if the law permits such evidence to be given in the circumstances mentioned in the relevant provisions, namely, Sections 63 and 65.”
Anvar PV v. PK Basheer, (2014-10 SCC 473), three- judge bench decision. It is held:
- “That (Sections 65A & 65B) is a complete code in itself. Being a special law, the general law under Sections 63 and 65 has to yield.”
- But finally held: “It is clarified that notwithstanding what we have stated herein in the preceding paragraphs on the secondary evidence of electronic record with reference to Sections 59, 65A and 65B of the Evidence Act, if an electronic record as such is used as primary evidence under Section 62 of the Evidence Act, the same is admissible in evidence, without compliance with the conditions in Section 65-B of the Evidence Act.”
Tomaso Bruno v. State of UP, (2015-7 SCC 178), three-bench decision.
- It is held, as to make CCTV footage admissible, as under:
  - “Secondary evidence of contents of document can also be led under Section 65 of the Evidence Act”.
Sonu v. State of Haryana (2017-8 SCC 570) two- judge bench decision. It is held:
- “The crucial test, as affirmed by this Court, is whether the defect could have been cured at the stage of marking the document. Applying this test to the present case, if an objection was taken to the CDRs being marked without a certificate, the court could have given the prosecution an opportunity to rectify the deficiency.”
Shafhi Muhammed v. State of HP, (2018-2 SCC 801 ) two- judge bench decision. Tomaso Bruno (2015) was followed in. It was held as under:
- “(11) The applicability of procedural requirement under Section 65B(4) of the Evidence Act of furnishing certificate is to be applied only when such electronic evidence is produced by a person who is in a position to produce such certificate being in control of the said device and not of the opposite party. In a case where electronic evidence is produced by a party who is not in possession of a device, applicability of Sections 63 and 65 of the Evidence Act cannot be held to be excluded. In such case, procedure under the said Sections can certainly be invoked. If this is not so permitted, it will be denial of justice to the person who is in possession of authentic evidence/witness but on account of manner of proving, such document is kept out of consideration by the court in absence of certificate under Section 65B(4) of the Evidence Act, which party producing cannot possibly secure. Thus, requirement of certificate under Section 65B(h) [sic-65B(4)] is not always mandatory.
- (12) Accordingly, we clarify the legal position on the subject on the admissibility of the electronic evidence, especially by a party who is not in possession of device from which the document is produced. Such party cannot be required to produce certificate under Section 65B(4) of the Evidence Act. The applicability of requirement of certificate being procedural can be relaxed by Court wherever interest of justice so justifies.”
Arjun Panditrao v. Kailash Kushanrao, (2020)3 SCC 216, three-judge bench decision. It substantially followed PV Anwar (2014) with a ‘clarification’.
- Because it is held in Anver PV v. PK Basheer that Section 62, 63 and 65 are not applied for electronic evidence – for 65A & B are ‘complete code’ – the further observation that ‘if an electronic record as such is used as primary evidence under Section 62’ stood incongruent and contradictory. Therefore, it is “clarified” and directed to “read” Anver “without the words – ‘under Section 62 of the Evidence Act’ ”.
- In Arjun Panditrao v. Kailash Kushanrao it is found – Tomaso Bruno v. State of UP is per-incurium as under:
  - “What is clear from this judgment is that the judgment of Anvar P.V. (supra) was not referred to at all. In fact, the judgment in State v. Navjot Sandhu (2005) 11 SCC 600 was adverted to, which was a judgment specifically overruled by Anvar P.V. (supra). It may also be stated that Section 65B(4) was also not at all adverted to by this judgment. Hence, the declaration of law in Tomaso Bruno (supra) following Navjot Sandhu (supra) that secondary evidence of the contents of a document can also be led under Section 65 of the Evidence Act to make CCTV footage admissible would be in the teeth of Anvar P.V., (supra) and cannot be said to be a correct statement of the law. The said view is accordingly overruled.”

ARJUN PANDITRAO v. KAILASH KUSHANRAO (2020)3 SCC 216, CRITICISED:

Arjun Panditrao v. Kailash Kushanrao, (2020) 3 SCC 216, is per incurium as it went wrong in observing:
- that ‘the certificate required under Section 65B(4) is a condition precedent to the admissibility’ of ‘computer output’ (secondary evidence);
- that by virtue of the non-obstante clause (‘Notwithstanding anything contained in the Act .. .. the computer output shall be deemed to be ALSO a document’) Sections 63 and 65 of the Evidence Act cannot at all be adverted to in proving a computer output (secondary evidence); and
- that Section 65B being a special law, the general law under Sections 63 and 65 has to yield; and therefore, the computer outputs (secondary evidence) cannot be proved under Sec. 65 read with Sec. 63 of the Evidence Act.
It failed to observe:
- that “Electronic record containing the statement“ alone can be proved with Sec. 65B(4) Certificate (statement is confined to the matters that can be made in a written form: e.g. call-records of phones, bank-account-statements); and not all information (such as: photo, video etc. in a computer, pen-drive or CD etc.).
- The non-obstante clause is for enabling admission of ‘computer output’ (derived from original) in evidence, as (original) ‘document’ itself (“the computer output shall be deemed to be ALSO a document”), in a simpler manner, ‘notwithstanding anything contained in the Act’.
It should have noticed:
- only formal evidence and admissibility (and not truth of contents) are dealt with in Sec. 65B; and
- correctness of the computer output produced by a computer (print out or other copy), is presumed under Sec. 65B(5)(c).
It was thoroughly mistaken in holding:
- that a certificate, swearing ‘best of the knowledge and belief’, can be brought by ‘force’ (as a ‘thing’).
It missed to see:
- that the changes made to law by the introduction of Sec. 65A and 65B are:
  1. simplification of procedure for proving electronic record (‘Notwithstanding anything contained in the Act) by producing a copy (computer output) by declaring the copy also as a (deemed) document – if the conditions are satisfied.
  2. “where it is desired to give a statement in evidence” it can be had by “a certificate” as provided in Sec. 65B(4).
  3. the computer output (print or copy) can be tendered in evidence without evidence as to the computer which (finally) produced it – for, it will be presumed (shall be taken) “to have been produced by a computer … by means of any appropriate equipment”, as per Sec. 65B(5)(c).

*Observations in* *Arjun Panditrao v. Kailash Kushanrao*	*Criticism*
1. Non-obstante clause is given in Sec. 63B – because, ‘Electronic Record’ is not a ‘document’. Arjun Panditrao v. Kailash Kushanrao, para 21 reads as under:	1. ‘Electronic records’ are already declared as ‘documents’(When defined ‘Evidence’ in S. 3 ). Section 65B (1) needed to declare ‘computer output’ (derived from original) alone as documents.
“Section 65B(1) opens with a non-obstante clause, and makes it clear that any information that is contained in an electronic record which is printed on a paper, stored, recorded or copied in optical or magnetic media produced by a computer shall be deemed to be a document, and shall be admissible in any proceedings without further proof of production of the original, as evidence of the contents of the original or of any facts stated therein of which direct evidence would be admissible. The deeming fiction is for the reason that “document” as defined by Section 3 of the Evidence Act does not include electronic records.”	The deeming fiction in S. 65B (1), need not be applied to an ‘electronic record’ (primary evidence). The principles of ‘presumption’ are introduced herein. It is needed only for the ‘computer output’; and not for ‘electronic record’. The doubt as to whether electronic – records are also ‘documents’ is already removed by the amendment to Sec. 3 Evd. Act. (‘Evidence’ means and includes … .. all documents including electronic records’.) Sec. 65A and 65B do not bar proving (i) (original) ‘electronic records’ under Sec. 62 and (ii) computer outputs (derived from original ) under Sec. 65. (Sec. 65 provides for adducing secondary evidence if the original is lost, not easily movable etc.)
*2. Non-obstante clause (‘notwithstanding anything …’) excludes S. 62 and 65*. It is observed in para 31:	2. Non-obstante clause does not exclude Sec. 62 and 65 –
“The non-obstante clause in sub-section (1) makes it clear that when it comes to information contained in an electronic record, admissibility and proof thereof must follow the drill of Section 65B, which is a special provision in this behalf – Sections *62 to 65 being irrelevant* for this purpose.” Para 59: “We may reiterate, therefore, that the certificate required under Section 65B(4) is a condition precedent to the admissibility of evidence by way of electronic record, as correctly held in Anvar P.V. (supra), and incorrectly “clarified” in Shafhi Mohammed (supra).”	The non-obstante clause is for enabling admission of ‘computer output’ (derived from original) as ‘document’ itself, in a simpler manner, by the deeming provision ‘notwithstanding anything contained in the Act’. The non-obstante clause is an *enabling* provision. (See ‘Note’ – 1 below.)
3. Production of Certificate under Sec. 65B(4):	3. *A certificate cannot be ordered to be given as a* ‘thing’**:
In Arjun Panditrao para 50 it is observed as under: “However, in cases where either a defective certificate is given, or in cases where such certificate has been demanded and is not given by the concerned person, the Judge conducting the trial must summon the person/ persons referred to in Section 65B(4) of the Evidence Act, and require that such certificate be given by such person/ persons.” Arjun Panditrao directs to seek help of the court to obtain the required certificate under S. 65B(4) invoking Sec. 165, Evidence Act; Order XVI, CPC or Ss. 91 & 349 of the Cr.P.C.	This certificate ‘to the best of the knowledge and belief’ of a person, is based on his ‘subjective-satisfaction’. It cannot be ordered to be given as a ‘thing’ under S. 165 and Ss. 91 & 349 Cr.P.C. (Order XVI Rule 6, CPC says as to document alone; not any ‘thing’.) A certificate, swearing ‘best of the knowledge and (or?) belief’, cannot be brought by ‘force’ also. (See ‘Note’ – 2 below.)
*4. Tomaso Bruno was held to be ‘per incurium‘:*	4. Should have been referred to a higher bench.
PV Anwar (2014-10 SCC 473), three-judge bench decision, was not followed in the three-judge bench decision in Tomaso Bruno (2015-7 SCC 178). Tomaso Bruno (2015) was followed in Shafhi Muhammed (2018-2 SCC 801 ). Arjun Panditrao substantially followed PV Anwar (2014).	It was observed in Arjun Panditrao (3-judge bench) that Tomaso Bruno was per incurium (3-judge bench). Tomaso Bruno being of a 3-judge bench, the case should have been referred to a higher bench. [PV Anwar (2014) was rendered by Kurian Joseph, J. He was a judge in the unanimous 3-bench decision in Tomaso Bruno (2015) which was ‘followed’ in Shafhi Muhammed (2018) ].

‘Note: 1’: Why the Non-obstante Clause

Sec. 65B speaks: ‘Notwithstanding anything contained in the Act .. .. the computer output shall be deemed to be ALSO a document’ (if the conditions laid down are fulfilled). It is clear:

Sec. 65B is an enabling provision. The non-obstante clause is introduced not to exclude Sec. 62 and 65. (Contra view in Arjun Panditrao).
It declares ‘computer output’ (derived from original or copy) ALSO as an (original) document by the deeming provision.
Section 65A and 65B deal with evidence ‘derived from original’ (computer output) alone; and not about original (electronic record).
From Sec. 65A and 65B it is clear that its application is ‘notwithstanding anything contained in the Act’, and the application of Sec. 62 to 65 are not curtailed; and, therefore, copy or computer outputs (derived from original ) can be used under Sec. 65 (Sec. 65 provides for adducing secondary evidence if the original is lost, not easily movable etc.); that is, otherwise than by producing the ‘Certificate’ under Sec. 65B(4).

It is correctly held in State (NCT of Delhi) v. Navjot Sandhu, (2005) 11 SCC 600, as under:

“Irrespective of the compliance with the requirements of Section 65B, which is a provision dealing with admissibility of electronic records, there is no bar to adducing secondary evidence under the other provisions of the Evidence Act, namely, Sections 63 and 65.

Sec. 65A and 65B do not bar proving (i) (original) ‘electronic records’ under Sec. 62 and (ii) computer outputs (derived from original ) under Sec. 65 (Sec. 65 provides for adducing secondary evidence if the original is lost, not easily movable etc.). From Sec. 65A and 65B it is clear that Sec. 62 to 65 are independent from Sec. 65B (‘notwithstanding anything contained in the Act’); and, therefore,

Sec. 62 to 65 can also be invoked to prove ‘computer output’ (secondary evidence of the ‘electronic record’). That is, otherwise than by producing the Certificate under Sec. 65B(4). (Contra view in Arjun Panditrao).

‘Note: 2’: Assume, the competent person gives a ‘statement’ that he cannot vouchsafe as to the truth and veracity of the document, then what will be the next step? Or, what will be the position if that person gives a false statement with respect to the document (though he knows it to be true and genuine)? Further, if the circumstances or admission by the parties show it is a genuine copy and the competent person pretends ignorance as to the truth of the document, how it will be dealt with?

In all these circumstances, the ultimate way-out is to apply the principle accepted by by Tomaso Bruno v. State of UP (and followed in Shafhi Muhammed – the overruled decision).

Does the duo by Sec. 65A & 65B Evid. Act Oust the Operation of Sec. 63 & 65?

That is, whether ‘computer output’ (secondary evidence of the ‘ electronic record’) can be proved only by Sec. 65B and it Constitute a ‘Complete Code’?

The Answer is No.

Then, what does the non-obstante clause (‘Notwithstanding anything’) denote? It is clear that Sec.62 to 65 are independent from the new provisions, Sec. 65A and 65B; and Sec. 62 to 65 can also be invoked to prove ‘computer output’ (secondary evidence of the ‘electronic record’). It is definite that the non-obstante clause (‘Notwithstanding anything contained in the Act .. .. ’) in Sec. 65B does not oust Sections 63 and 65 of the Evidence Act in proving a computer output (secondary evidence). Because:

Sec. 65A is an introductory provision to Sec. 65B.
Sec. 65A does not control Sec. 65B.
Sec. 65A directs only an (enabling) method to PROVE (not the only one method) the CONTENTS of electronic records – by print/copy – invoking Sec. 65B.
- (Sec. 65A reads: The contents of electronic records may be proved in accordance with the provisions of section 65B.)
- Thus, Sec. 65B is an Enabling or Added provision; and, other enabling (existing) provisions in the Indian Evidence Act, to prove documents by secondary evidence invoking Sec. 63 and 65, are not taken away.
Sec. 65B(1), further lays down that the computer output (copy) shall be “deemed to be ALSO” an (original) document, if the conditions in Sec. 65B(2) are satisfied, “notwithstanding anything contained in the Act”.
- That is, Sec. 65B, does not bar proving a print/copy (as secondary evidence) by satisfying the conditions laid down in Sec. 65, by oral evidence or affidavit, as to loss of original, original with other side and notice given, original not easily movable, etc., as the case may be.
Sec. 65B deals with ‘ADMISSIBILITY’ of ‘computer output’ (derived from original) alone.
The conditions in Sec. 65B(2) (such as: computer was used regularly and operating properly, information was regularly fed into in the ordinary course, etc.) have to be satisfied by oral evidence or affidavit. In case of ‘statements’ alone, it can be had by the ‘certificate’ provided under Sec. 65B(4).

In short, compliance of this enabling provision is not an invariable or imperative condition precedent to the admissibility’ of ‘computer output’ (secondary evidence); and it does not stand in the way of proving a secondary evidence of the contents of the ‘electronic record’, invoking the usual method laid down in Sec. 65 read with Sec. 63 of the Evidence Act – that is, satisfying the conditions laid down in Sec. 65, by oral evidence or affidavit. (Note: Contra view in: Arjun Panditrao v. Kailash Kushanrao, (2020)3 SCC 216).

‘STATEMENTS’ alone can be proved by ‘CERTIFICATE’ under Sec. 65B

Sec. 65B(2) conditions are to be satisfied for ADMISSIBILITY; and not authenticity. Sec. 65B(4) alone deals with authenticity; because, it is laid down that the certificate “shall be evidence of any(?) matter stated” therein.

Sec. 65B(4) reads as under:

“(4) In any proceedings where

it is desired to give a statement

in evidence, by virtue of this section,

a certificate doing any of the

following things, that is to say,—

(a) identifying the electronic record CONTAINING the STATEMENT and describing the manner in which it was produced;
(b) giving such particulars of any device involved in the production of that electronic record as may be appropriate for the purpose of showing that the electronic record was produced by a computer;
(c) dealing with any of the matters to which the conditions mentioned in sub-section (2) relate, and purporting to be signed by a person occupying a responsible official position in relation to the operation of the relevant device or the management of the relevant activities (whichever is appropriate) shall be evidence of any matter stated in the certificate;
and for the purposes of this sub-section

it shall be sufficient

for a matter to be stated to the

best of the knowledge and belief

f the person stating it.”

What is a “Statement” in Evidence Act?

According to Evidence Act, ‘statement’ is – that which can be expressed in the form of ‘oral evidence’. Because, “Evidence” is defined in Sec. 3 of the Evidence Act as under:

“Evidence means and includes—
- all statements which the Court permits or requires to be made before it by witnesses, in relation to matters of fact under inquiry; such statements are called oral evidence.
- all documents including electronic records produced for the inspection of the Court, such documents are called documentary evidence.”
See also: Sec. 8
- Explanation 1.––The word “conduct” in this section does not include statements, unless those statements accompany and explain acts other than statements; but this explanation is not to affect the relevancy of statements under any other section of this Act.
- Explanation 2.––When the conduct of any person is relevant, any statement made to him or in his presence and hearing, which affects such conduct, is relevant.
Section–32
- Cases in which statement of relevant fact by person who is dead or cannot be found, etc., is relevant.
Section–. 34
- Entries in books of account when relevant. …. but such statements shall not alone be sufficient evidence to charge any person with liability
Section–. 36
- Relevancy of statements in maps, charts and plans.
Section–. 32
- Relevancy of statement as to fact of public nature contained in certain Acts or notifications.
Section–. 37
- Relevancy of statements as to any law contained in law-books.
Section–. 38
- What evidence to be given when statement forms part of a conversation, document, electronic record, book or series of letters or papers.
Section–. 39
- What evidence to be given when statement forms part of a conversation, document, electronic record, book or series of letters or papers.
Section–. 145
- Cross-examination as to previous statements in writing
Section–. 157
- Former statements of witness may be proved to corroborate later testimony as to same fact
Section–. 158
- What matters may be proved in connection with proved statement relevant under section 32 or 33.

Thus it appears that the call-records of phones, bank-account-statements etc. alone can be proved as ‘statements’. The ‘statement’ referred to herein is that which can be pointed out “identifying the electronic record containing the statement and describing the manner in which it was produced” as stated in Section 65B(4)(a); and which can be ‘purporting to be signed‘, as stated in Section 65B(4)(c). And, it is clear that the ‘statement’ does not pertain to other ‘information’ like CCTV Footage, photo in a pen-drive or video in a CD. (Note – contra view in Supreme Court decisions).

See Blog: How to Prove WhatsApp Chats, Facebook Messages and Website Information in Courts?

‘Statement‘ in S. 65B(4) is the ‘STATEMENT ‘CONTAINED‘ IN THE ELECTRONIC RECORD‘and NOT that GIVEN IN COURT

Now, the potential question that arises for consideration is the following:

Whether the ‘statement’ mentioned in Sec. 65B(4) is
- (i) that given in court, to support the copy or printout, or
- (ii) that is contained in the electronic record?

It is beyond doubt that the ‘statement’ mentioned in Sec. 65B(4) is not the one that is given in court; but, the statement ‘CONTAINED‘ in “the electronic record“. Because:

The “statement” referred to in Sec. 65B (4) is one that-
- may be:
  - “desired to give” “in evidence by virtue of this section” (Sec. 65B(4) first clause); and
The “certificate”-
- must be one that
  - “identifying the ELECTRONIC RECORD CONTAINING THE STATEMENT and describing the manner in which it was produced” [Section 65B(4)(a)].

The above view is fortified by the following:

Sec. 65B(4) says that the certificate
1. must state, under Sec. 65B(4)(c), among other things, facts as to “dealing with any of the matters to which the conditions mentioned in sub-section (2) relate”
  - Note: Proving matter with ’certificate’ under Sec. 65B(4) is a species and proving the conditions laid down in Sec. 65B(2) is genus.
2. could be signed by a person who has
  - “a responsible official position in relation to the operation of the relevant device or the management of the relevant activities” (Section 65B(4)(c).

Thus, the formal assertions like statements of witnesses, call-records of phones, bank-account-statements, etc. alone can be proved as ‘statements’, by virtue of section 65B; and not ‘information’ like CCTV Footage, photo in a pen-drive or video in a CD.

In short, going by Sec. 65B, it is definite that-

the computer-output (copy) containing the ‘information’ (e.g. CCTV Footage, photo or video in a CD) in the electronic-record (original) can be admitted in evidence, under Sec. 65B, if only the conditions (such as: the computer was operating properly, the electronic record is derived from such information fed into the computer in the ordinary course of the activities, etc.) mentioned in Sec. 65B(2) are satisfied (that is, the conditions are to be proved through the usual mode of oral evidence or affidavit); and
the ‘statements’ (e.g. call-records of phones, bank-account-statements) alone can be admitted in evidence, under Sec. 65B (by computer-output, without further proof or production of the original electronic-record), through a ‘certificate‘ (Note – Contra view in Court decisions. In the binding Court decisions it is stated that sans the Certificate, no computer-output can be taken into consideration).

Photo or video captured in a mobile phone, ‘trap-video’, CCTV footage, etc. cannot be used under Sec. 65B.

It is clear that the computer output (copy) is ‘deemed to be (also) a document’ if only the conditions mentioned in S. 65B(2) are fulfilled, that is:
- S. 65B(2)(a) computer was USED REGULARLY to STORE or process information
  - of the activities REGULARLY CARRIED ON
  - BY THE PERSON having lawful control,
- S. 65B(2)(b) information was REGULARLY FED
  - in the ORDINARY COURSE,
- S. 65B(2)(d) the information is REPRODUCED in the
  - ORDINARY COURSE of the SAID ACTIVITIES.
- (For example – Computer Account statements in a Bank.)
For all other computer outputs (copy of, photo or video captured in a mobile phone, ‘trap-video’, CCTV footage, etc.), one has to resort other provisions of the Evidence Act, by producing the original or by producing the copy after satisfying the circumstances under Sec. 65.
- See Blog: Admissibility of Visual and Audio Evidence (Including Photographs, Cassettes, Tape-recordings, Films, CCTV Footage, CDs, e-mails, Chips, Hard-discs, Pen-drives)
Therefore, it is beyond any doubt that the following computer output (copy) cannot be used under Sec. 65B:
- CCTV footage – (i) not used to store or process information BY any PERSON and (ii) not reproduced in the ordinary course.
- CDs containing speech – (i) not used REGULARLY to store or process information, (ii) not regularly fed in the ordinary course and (iii) not reproduced in the ordinary course.
- videograph of the scene of crime or trap-video – (i) not used REGULARLY to store or process information, (ii) not regularly fed in the ordinary course and (iii) not reproduced in the ordinary course.

But, the Supreme Court dealt with CCTV footage in the following landmark cases:
- State (NCT of Delhi) v. Navjot Sandhu, (2005) 11 SCC 600,
- Tomaso Bruno v. State of UP, (2015-7 SCC 178),
CDs/VCDs in respect of video recording by the Election Commission
- Arjun Panditrao v. Kailash Kushanrao, (2020)3 SCC 216
CDs containing election speeches and songs in:
- Anvar PV v. PK Basheer, (2014-10 SCC 473).
Call Detail Records – CDR – of mobile phones in:
- Sonu v. State of Haryana (2017-8 SCC 570)
Tape recorded conversation on the landline phone
- Vikram Singh v. State of Punjab, (2017) 8 SCC 518
Propriety of videography of the scene of crime or scene of recovery during investigation, in:
- Shafhi Muhammed v. State of HP, (2018-2 SCC 801 ).

‘Computer output’ can be got produced by ‘any computer‘ and no evidence/certificate required

A ‘Computer Output’ can be got copied or printed by ‘any computer’. It need not be the part of the device that was “used regularly to store or process information”. It is clear from the phrase – shall be taken to have been produced by “a computer” – in 65B(5)(c). It stands contradistinct to “the computer” in Sec. 65B(2).

Presumption on ‘Computer output’ (print or copy)

From the very wordings in Sec. 65B(5)(c), the ‘proof’ (through witnesses or certificate) as to the involvement of the computer which (finally) produced the computer output (print or copy) need not be furnished. Because, the legislature contemplated a presumption as to correctness of the computer output (not truth of contents), under Sec. 65B(5)(c), as it reads:

‘a computer output shall be taken to have been produced by a computer whether it was produced by it directly or (with or without human intervention) by means of any appropriate equipment’.

It is similar to Sec. 63 clause (2) which reads as under:

“Copies made from the original by mechanical processes which in themselves insure the accuracy of the copy …. …”

Sec. 63 lays down the sorts of secondary evidence accepted by the Evidence Act. It is seen that Sec. 65B(5)(c) expressly says also as to presumption on correctness, as stated above.

Mere marking– not dispense with proof (of truth of contents)

In Sait Tarajee Khimchand v. Yelamarti Satyam, AIR 1971 SC 1865, the Supreme Court observed that mere marking of a documents (day book and ledger) as exhibits do not dispense with the proof of documents. In Nandkishore Lalbhai Mehta Vs. 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 does not prove contents of a document.

In Kaliya Vs. State of Madhya Pradesh (2013-10 SCC 758) it is held as under:

“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 Vs. The State, AIR 1966 SC 1457; Marwari Khumhar Vs. Bhagwanpuri Guru Ganeshpuri AIR 2000 SC 2629; RVE Venkatachala Gounder Vs. Arulmigu AIR 2003 SC 4548; Smt. Dayamathi Bai Vs. K.M. Shaffi, AIR 2004 SC 4082; and LIC of India Vs. Rampal Singh Bisen,2010-4 SCC 491).”
“The court is obliged to examine the probative value of documents produced in court or their contents and decide the question of admissibility of a document in secondary evidence.”
[Note: Further held: “In case, an objection is not raised at that point of time, it is precluded from being raised at a belated stage.”]

IF the TRUTH is IN ISSUE mere proof of handwriting or 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 Vs. 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 vs Marikar (Motors) Ltd., AIR 1983 Ker 81, 1976 Cr.LJ 1507; 2016 (1) Gau. LJ 88, 2012(1) CTC 53; 2013-1 KLT 293.)

Mere marking– not dispense with proof (of truth of contents): See Blog: EFFECT OF MARKING DOCUMENTS WITHOUT OBJECTION

Admissibility and Presumption as to correctness of Computer Output

Sec. 65B does not deal with ‘truth’ of the contents of the electronic record; it deals with only ‘admissibility of copy’.
The electronic record mentioned in Sec. 65B is – that is ‘relevant‘; for, it must be one “of which direct evidence would be admissible”.
Therefore, if truth is in question, it must be proved according to other provisions of the evidence act; ie. by oral, documentary (such as admission) or presumptive (including circumstantial) evidence.
- See Blog: Admissibility of Visual and Audio Evidence (Including Photographs, Cassettes, Tape-recordings, Films, CCTV Footage, CDs, e-mails, Chips, Hard-discs, Pen-drives)
Relevant portions of 65A & 65B read as under:
- Sec. 65A: Special provisions as to evidence relating to electronic record:
  - The contents of electronic records MAY BE proved in accordance with the provisions of section 65B.
- Sec. 65B: Admissibility of electronic records:
  - (1) … any information contained in an electronic record which is printed ….. or copied ….. shall be ADMISSIBLE in any proceedings ….. as evidence of any contents of the original … of which direct evidence would be admissible.”

Sec. 65B declares and expressly lays down that computer output (copy or print)

(i) shall be deemed to be also a document, if the conditions mentioned in this section are satisfied in relation to the information and computer in question and
(ii) shall be admissible in any proceedings, without further proof or production of the original, as evidence
- of any contents of the original or
- of any fact stated therein of which direct evidence would be admissible.

If the conditions mentioned in this Section Sec. 65B(2) are satisfied, by necessary implication, it will bring a presumption under Sec. 114 with respect to regularity of the computer output . Because, admissibility of ‘any fact stated therein‘ ‘without further proof’ is nothing but ‘presumption’ of its regularity and correctness. The net result is that (if the conditions in Sec. 65B(2) are satisfied) the burden to prove otherwise is cast on the person who opposes it.

The requirement in Sec. 65B(2) as to ‘proof’ (through witnesses or certificate) for ‘regularity‘ of feeding information into the computer in the ‘ordinary course‘ eloquently support this proposition.

Note:
- (i) ‘Statements’ alone can be proved by ‘certificate’ under Sec. 65B(4); other ‘information’ are to be proved by proper evidence.
- (ii) Presumption of ‘regularity’ under Sec. 114 Evd. Act can be applied in Sec. 65B.
- (iii) Presumption of a ‘fact or regularity’ under Sec. 114 Evd. Act is, essentially presumption of ‘Truth’ and ‘Correctness’.

Presumption of Fact Means Truth/Correctness of Fact

St. of West Bengal Vs. Mir Mohammad Omar (AIR 2000 SC 2988) it is held by our Apex Court as under:

“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. 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 Section 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.”

Substance and Conclusion

Sec. 65B is invoked only when a computer output (copy) is used in evidence.
- Sec. 65B pertains to ‘admissibility'(not truth) of a computer output/copy.
- It deals with computer output/copy alone; and it does not deal with (original) electronic record.
Non-obstante clause does not oust S. 63 and 65.
- The non-obstante clause in Sec. 65B does not oust operation of Secs. 63 & 65 of the Evidence Act; and, therefore, secondary evidence of an electronic record can be given in evidence, invoking Sec. 65, read with Sec. 63.
- Sec. 65B is an added and enabling provision to prove the copy or print out (otherwise than by proving the conditions laid down in Sec. 65, such as loss of original, original with other side).
- It relates to relevant matters alone “of which direct evidence would be admissible”.
Conditions in S. 65B(2) are to be satisfied through oral evidence or affidavit.
- The computer output (copy) containing the information, such as CCTV footage, photo or video in a CD etc., can be admitted in evidence under S. 65B if only the conditions (such as: computer was used regularly, information was regularly fed in the ordinary course, computer was operating properly) mentioned in S. 65B(2) are satisfied, through oral evidence or affidavit.
- A computer output (copy) cannot be used under Sec. 65B if the computer was one not used regularly, or the information was one not ‘regularly fed’ into the computer in the ordinary course, etc., (as in the case of a photo or video captured in a mobile phone; ‘trap-video’, etc.).
- In such a case (photo or video captured in a mobile phone; ‘trap-video’, etc.), we have to resort other provisions of the Evidence Act, by producing the original or by producing the copy after satisfying the circumstances under Sec. 65; because, if only the conditions (such as: computer was used regularly, information was regularly fed in the ordinary course, computer was operating properly) mentioned in S. 65B(2) are fulfilled, then only the computer output (copy) is ‘deemed to be (also) a document’.
Statements alone can be proved by ‘certificate’ under S. 65B(4).
- The statements (such as e-mail, call records of phones, bank account statements, etc.) alone can be admitted in evidence under S. 65B, through a ‘certificate’ provided under S. 65B(4).
- Sec. 65B(2) conditions are to be satisfied for ADMISSIBILITY; and not authenticity. Sec. 65B(4) alone deals with authenticity; because, it is laid down that the certificate “shall be evidence of any(?) matter stated” therein.
Presumption as to correctness of the copy or print-out ‘produced by a computer’ under S. 65B(5)(c).
- S. 65B(5)(c) lays down a presumption as to correctness (not truth) of the computer out-put, inasmuch as S. 65B(5)(c) lays down that ‘a computer out-put shall be taken to have been produced by a computer’.

As shown by Justice V. Ramasubramanian in Arjun Panditrao v. Kailash Kushanrao, Sec. 65B is a substantial reproduction of Sec. 5 of the UK Civil Evidence Act, 1968, and that it is introduced in India 10 years after it was repealed in UK. No doubt, it will stand as a masterly provision, if it aids simplification of procedure and leads to attain ends of justice. Even if any deflection in any corner, the judicial wisdom of the Apex Court will guide the courts in India through correct path.

The present UK Act (Civil Evidence Act 1995) does not make any special provision for Electronic Evidence or Computerised Records. It deals this matter under the head ‘hearsay evidence’ and makes ‘safeguards’ with respect to the hearsay evidence.

End Notes – 1

What is ‘certificate’, in law

The usual method to prove documents is by giving oral evidence or furnishing affidavit. 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. If presumption cannot be invoked under Clause (e) of Sec. 114 Evidence Act (that judicial and official acts have been regularly performed), no certificate or report 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’.)
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.

End Notes – 2

Landmark Decisions

State (NCT of Delhi) v. Navjot Sandhu, (2005) 11 SCC 600, two- judge bench decision. It is held:
- “Irrespective of the compliance with the requirements of Section 65B, which is a provision dealing with admissibility of electronic records, there is no bar to adducing secondary evidence under the other provisions of the Evidence Act, namely, Sections 63 and 65. It may be that the certificate containing the details in sub-section (4) of Section 65-B is 26 not filed in the instant case, but that does not mean that secondary evidence cannot be given even if the law permits such evidence to be given in the circumstances mentioned in the relevant provisions, namely, Sections 63 and 65.”
Anvar PV v. PK Basheer, (2014-10 SCC 473), three- judge bench decision. It is held:
- “That (Sections 65A & 65B) is a complete code in itself. Being a special law, the general law under Sections 63 and 65 has to yield.”
- But finally held: “It is clarified that notwithstanding what we have stated herein in the preceding paragraphs on the secondary evidence of electronic record with reference to Sections 59, 65A and 65B of the Evidence Act, if an electronic record as such is used as primary evidence under Section 62 of the Evidence Act, the same is admissible in evidence, without compliance with the conditions in Section 65B of the Evidence Act.”
Tomaso Bruno v. State of UP, (2015-7 SCC 178), three-bench decision.
- It is held, as to make CCTV footage admissible, as under:
- “Secondary evidence of contents of document can also be led under Section 65 of the Evidence Act”.
Sonu v. State of Haryana (2017-8 SCC 570): two- judge bench decision. It is held:
- “The crucial test, as affirmed by this Court, is whether the defect could have been cured at the stage of marking the document. Applying this test to the present case, if an objection was taken to the CDRs being marked without a certificate, the court could have given the prosecution an opportunity to rectify the deficiency.”
Shafhi Muhammed v. State of HP, (2018-2 SCC 801 ), two- judge bench decision. Tomaso Bruno (2015) was followed in. It was held as under:
- “(11) The applicability of procedural requirement under Section 65B(4) of the Evidence Act of furnishing certificate is to be applied only when such electronic evidence is produced by a person who is in a position to produce such certificate being in control of the said device and not of the opposite party. In a case where electronic evidence is produced by a party who is not in possession of a device, applicability of Sections 63 and 65 of the Evidence Act cannot be held to be excluded. In such case, procedure under the said Sections can certainly be invoked. If this is not so permitted, it will be denial of justice to the person who is in possession of authentic evidence/witness but on account of manner of proving, such document is kept out of consideration by the court in absence of certificate under Section 65B(4) of the Evidence Act, which party producing cannot possibly secure. Thus, requirement of certificate under Section 65B(h) [sic-65B(4)] is not always mandatory.
- (12) Accordingly, we clarify the legal position on the subject on the admissibility of the electronic evidence, especially by a party who is not in possession of device from which the document is produced. Such party cannot be required to produce certificate under Section 65B(4) of the Evidence Act. The applicability of requirement of certificate being procedural can be relaxed by Court wherever interest of justice so justifies.”
Arjun Panditrao v. Kailash Kushanrao, (2020)3 SCC 216, three-judge bench decision. It substantially followed PV Anwar (2014) with a ‘clarification’.
- Because it is held in Anver PV v. PK Basheer that Section 62, 63 and 65 are not applied for electronic evidence – for 65A & B are ‘complete code’ – the further observation that ‘if an electronic record as such is used as primary evidence under Section 62’ stood incongruent and contradictory. Therefore, it is “clarified” and directed to “read” Anver “without the words – ‘under Section 62 of the Evidence Act’ ”.
- In Arjun Panditrao v. Kailash Kushanrao it is found – Tomaso Bruno v. State of UP is per-incurium as under:
- “What is clear from this judgment (Tomaso Bruno) is that the judgment of Anvar P. V. (supra) was not referred to at all. In fact, the judgment in State v. Navjot Sandhu (2005) 11 SCC 600 was adverted to, which was a judgment specifically overruled by Anvar P. V. (supra). It may also be stated that Section 65B(4) was also not at all adverted to by this judgment. Hence, the declaration of law in Tomaso Bruno (supra) following Navjot Sandhu (supra) that secondary evidence of the contents of a document can also be led under Section 65 of the Evidence Act to make CCTV footage admissible would be in the teeth of Anvar P. V., (supra) and cannot be said to be a correct statement of the law. The said view is accordingly overruled.”

End Notes – 3

Sec. 65A and Sec. 65B of the Evidence Act reads:

Sec. 65A: Special provisions as to evidence relating to electronic record:

The CONTENTS of electronic records may be PROVED in accordance with the provisions of section 65B.

65B. Admissibility of electronic records

(1) Notwithstanding anything contained in this Act, any information contained in an electronic record which is printed on a paper, stored, recorded or copied in optical or magnetic media produced by a computer (hereinafter referred to as the computer output) shall be deemed to be also a document, if the conditions mentioned in this section are satisfied in relation to the information and computer in question and shall be admissible in any proceedings, without further proof or production of the original, as evidence of any contents of the original or of any fact stated therein of which direct evidence would be admissible.

(2) The conditions referred to in sub-section (1) in respect of a computer output shall be the following, namely:—

(a) the computer output containing the information was produced by the computer during the period over which the computer was used regularly to store or process information for the purposes of any activities regularly carried on over that period by the person having lawful control over the use of the computer;
(b) during the said period, information of the kind contained in the electronic record or of the kind from which the information so contained is derived was regularly fed into the computer in the ordinary course of the said activities;
(c) throughout the material part of the said period, the computer was operating properly or, if not, then in respect of any period in which it was not operating properly or was out of operation during that part of the period, was not such as to affect the electronic record or the accuracy of its contents; and
(d) the information contained in the electronic record reproduces or is derived from such information fed into the computer in the ordinary course of the said activities.

(3) Where over any period, the function of storing or processing information for the purposes of any activities regularly carried on over that period as mentioned in clause (a) of sub-section (2) was regularly performed by computers, whether—

(a) by a combination of computers operating over that period; or
(b) by different computers operating in succession over that period; or
(c) by different combinations of computers operating in succession over that period; or
(d) in any other manner involving the successive operation over that period, in whatever order, of one or more computers and one or more combinations of computers, all the computers used for that purpose during that period shall be treated for the purposes of this section as constituting a single computer; and references in this section to a computer shall be construed accordingly.

(4) In any proceedings where it is desired to give a statement in evidence by virtue of this section, a certificate doing any of the following things, that is to say,—

(a) identifying the electronic record containing the statement and describing the manner in which it was produced;
(b) giving such particulars of any device involved in the production of that electronic record as may be appropriate for the purpose of showing that the electronic record was produced by a computer;
(c) dealing with any of the matters to which the conditions mentioned in sub-section (2) relate, and purporting to be signed by a person occupying a responsible official position in relation to the operation of the relevant device or the management of the relevant activities (whichever is appropriate) shall be evidence of any matter stated in the certificate; and for the purposes of this sub-section it shall be sufficient for a matter to be stated to the best of the knowledge and belief of the person stating it.

(5) For the purposes of this section,—

(a) information shall be taken to be supplied to a computer if it is supplied thereto in any appropriate form and whether it is so supplied directly or (with or without human intervention) by means of any appropriate equipment;
(b) whether in the course of activities carried on by any official information is supplied with a view to its being stored or processed for the purposes of those activities by a computer operated otherwise than in the course of those activities, that information, if duly supplied to that computer, shall be taken to be supplied to it in the course of those activities;
(c) a computer output shall be taken to have been produced by a computer whether it was produced by it directly or (with or without human intervention) by means of any appropriate equipment.

Explanation.—For the purposes of this section any reference to information being derived from other information shall be a reference to its being derived therefrom by calculation, comparison or any other process.

Read in this cluster (Click on the topic):

Civil Suits: Procedure & Principles

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Easement

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Is the Basis of Every Easement, Theoretically, a Grant

Saji Koduvath, Advocate, Kottayam.

“An easement is a Right”

Easement is a right possessed by the owner of a land (dominant land),
- to use the land of another (servient land),
- for the beneficial enjoyment of the (dominant) land.

Easement Does Not Confer Ownership or Possession

No Ownership is bestowed in the (servient) land (AIR 2004 All 359; AIR 1925 Bom 335).
No Possession obtained in the (servient) land. (2011 (2) KLT 605; AIR 1925 Bom 335).
No Interest is created in the (servient) land. (2003 (1) KLT 320; AIR 1954 All 393).

Easement (सुखाधिकार) is Well Recognised; And Circumscribed by Law

Easement is a limited right to ‘use’or ‘enjoy‘ another’s land.
It is to do, or to prevent to do, some specific thing.
It is to be exercised in a way least onerous to ‘another’s land’.
It is not a right to build and enjoy.
The right gained cannot be enlarged.
- That is, an easement of way to a particular (dominant) property cannot be extended to another property by the dominant owner; an easement for residential purpose cannot be enlarged for an industrial purpose. (Sec. 28, 29, 43 etc.)
Servient owner can use his land in any manner (without disturbing enjoyment of the easement).

According to ‘Katiyar on Easements’:

Easement is not a right to land or exclude owner.
It is not a right to permanent occupation.
It does not confer exclusive right of user/enjoyment.
And, it is not a corporeal interest in land.

Easement – Definition under the Indian Easements Act

SECTION 4 of the Indian Easements Act defines Easements as under:

“An easement is a right
which the owner or occupier of certain land possesses,
- as such,
for the beneficial enjoyment of that land
to do and continue to do something, or to prevent and continue to prevent something being done,
in or upon, or in respect of, certain other land not his own.”

Salient Limitations of Easement under the Indian Easements Act

The owner of a land only ‘uses’or ‘enjoys‘ another’s land (Sec. 31)
Only ‘enjoyment’ of soil or things ‘subsisting’ (Explanation in Sec. 4).
Limited enjoyment of (a) land & (b) advantages from its situation: S. 7
Right be exercised in a way least onerous to ‘another’s land’: Sec. 22
Secure full enjoyment, cause as little inconvenience: Sec. 24: 2017-2 KLT 63

It is Not a right to:

tend to total destruction of servient tenement: S. 17 (2003 (1) KLT320)
make additional burden: S. 23
make constructions in, or cultivate upon: (2003 (1) KLT 320).
prevent servient owner to use: S. 27 : 2003 (1) KLT 320
enlarge purpose of, or accustomed user: S. 28
substantially increase an easement: S. 29
prevent servient owner from obstructing excessive ‘user’ of servient land – as ‘enjoyment of easement’: S. 31
increase burden by making permanent change in do. tent: S. 43
capable of forming grant – No easement, if Not capable of forming grant (without document or registration): Mohammed vs. Doomunhi Achari, 1987 (2) KLT 1037.

No easement if:

right claimed is incidents of ownership.
servient property belongs to him. Easement is a right with conscious knowledge that the servient property does not belong to him. AIR 1966 Raj 265. It must also be with proper animus as to easement: AIR 1973 Mad 173.

The word ‘Servient’ is derived from ‘Serve’

Literal meaning of the word ‘servient’ is – subordinate, subservient and subject to another. Etymologically it is derived from ‘servus’ (Latin) meaning – slave or servant.

Sec. 4 Explains ‘Servient Heritages’ as under:

“Dominant and Servient Heritages and Owners: The land for the beneficial enjoyment of which the right exists is called the dominant heritage, and the owner or occupier thereof the dominant owner; the land on which the liability is imposed is called the servient heritage, and the owner or occupier thereof the servient owner.”

Thus, the land upon which the right is claimed is ‘servient’ land.

Methods of Acquisition of Easements

The Indian Easements Act, 1882 refers to the different methods by which easements are acquired. They are pointed out (Ramkanya Bai v. Jagdish, AIR 2011 SC 3258) to be the following:

easements by grant: express grant by the owner of the servient heritage
easements of necessity: based on implied grants or reservations made by the owner of a servient heritage at the time of transfers or partitions
easements by prescription: that it is presumed to be acquired by peaceable and open enjoyment, without interruption for twenty years and
customary easements: it is inferred to be acquired by virtue of a local custom.

For easement by prescription, it is not necessary that the user should be exclusive, but the claimant should exercise it under some claim existing in his own favour independently of all others.

‘Grant’ in Law

The term ‘Grant’ is used to denote-

A generic term to mean ‘transfer’ of immovable property (e.g., sale, lease, gift etc.).
But, in judicial parlance, it will not be an absolute ‘transfer’ of property; and remain as a concession, permission, settlement, grant of easement etc., if it is used in place of ‘transfer’ of property.
Present, aid, help etc., and the act of a settlor of trust, or of donor of a charity.
A technical term to denote conditional-transfer of lands by sovereign especially when it is purposefully used to differentiate from ‘transfer’ of property.
More than a licence (which does not create an estate or interest) and less than an outright and unconditional ‘transfer’ of property similar to sale, gift etc. (Note: A license is personal to an individual, whereas a ‘grant’ in an easement pertains to a right attached to the land.)

Characteristics of ‘Grant’

Usually it denotes a grant by deed.
It can be with or without consideration.
Unless specifically specified, it is creation of an ‘interest’ in property.
As long as the conditions are fulfilled, grant is usually irrevocable.
Conditions can also be fixed to limit the period of grant.
Inferior interest, out of an interest retained by the grantor, e.g. the grant of a lease of land by the person holding the freehold. (Collins Dictionary of Law).

‘Grant’ – Salmond on Jurisprudence

What is ‘grant’ is stated in Salmond’s Jurisprudence, 12th Edition, at pages 338-339, under the heading ‘The Classes of Agreements’, as under:

• “…. A contract is an agreement which creates an obligation or a right in Personam between the parties to it. A grant is an agreement which creates a right of any other description; examples being grants of leases, easements, charges, patents, franchises, licences and so forth. An agreement which transfers a right may be termed generically an assignment. On which extinguishes a right is a release, discharge, or surrender.” (Quoted in H. Anraj v. Government of Tamil Nadu (& Shri Dipak Dhar v. The State of West Bengal), AIR 1986 SC 63: (1986) 1 SCC 414.)

Grant by a Co-owner

Grant effected by a co-owner with the consent of other co-owners, or validated by their approval or ratification, alone is valid. In proper cases such consent or ratification may be presumed.

Grant of Land by Government

The lands granted continued to be lands belonging to the Government and the grantees did not acquire absolute proprietary rights over the granted area under the grant. We can see the ‘conditions’ of deeds under which the grants were made by the Travancore government in the following decisions-

State of Kerala v. Kanan Devan Hills Produce Co. Ltd., (1991) 2 SCC 272
Kannan Devan Hills Produce v. The State of Kerala, AIR 1972 SC 2301
State of Kerala v. The Kannan Devan Hills Produce Co., AIR 1998 Ker 267

Polygraph, Narco Analysis and Brain Mapping Tests in Criminal Investigation

Saji Koduvath.

Introduction.

Polygraph (Lie Detector Test), Narco Analysis and Brain Mapping are tests used in Criminal Investigation. The investigation teams are not free to use it, as they think proper. It is so made clear in the Guidelines promulgated by the National Human Rights Commission, and in the Supreme Court decision in Selvi v. State of Karnataka, (2010) 7 SCC 263.

Guidelines of National Human Rights Commission, in 2000

The National Human Rights Commission laid down the Guidelines in 2000, for using Polygraph Test (Lie Detector Test) on the accused. It is made under Article 21 of the Constitution. Article 21 safeguards the rights of every person against cruel, inhuman or degrading treatment by any State-agency. These mandatory guiding principles read as under:

“(i) No Lie Detector Tests should be administered except on the basis of consent of the accused. An option should be given to the accused whether he wishes to avail such test.
(ii) If the accused volunteers for a Lie Detector Test, he should be given access to a lawyer and the physical, emotional and legal implication of such a test should be explained to him by the police and his lawyer.
(iii) The consent should be recorded before a Judicial Magistrate.
(iv) During the hearing before the Magistrate, the person alleged to have agreed should be duly represented by a lawyer.
(v) At the hearing, the person in question should also be told in clear terms that the statement that is made shall not be a ‘confessional’ statement to the Magistrate but will have the status of a statement made to the police.
(vi) The Magistrate shall consider all factors relating to the detention including the length of detention and the nature of the interrogation.
(vii) The actual recording of the Lie Detector Test shall be done by an independent agency (such as a hospital) and conducted in the presence of a lawyer.
(viii) A full medical and factual narration of the manner of the information received must be taken on record.”

Smt. Selvi v. State of Karnataka, (2010) 7 SCC 263

The Supreme Court has made it clear in Selvi v. State of Karnataka, (2010) 7 SCC 263 that these guidelines issued by the National Human Rights Commission, in 2000, pertained to Polygraph Test (Lie Detector Test), should be strictly adhered to. That is, if the accused objects such Tests, they cannot be forcibly administered. By virtue of the Supreme Court decision, similar safeguards should be adopted for conducting ‘Narco-Analysis Technique’ and the ‘Brain Electrical Activation Profile test’, also.

The Apex Court held that the forcible methods of carrying out Narco Analysis Test or Polygraph Test by the police are destructive of accused’s non-derogable rights against self-incrimination and personal liberty. It was held that this right against the self-incrimination was available even at the stage of investigation. In Smt. Selvi v. State of Karnataka, (2010) 7 SCC 263, the Apex Court observed as under:

“263. We are also of the view that forcing an individual to undergo any of the impugned techniques violates the standard of “substantive due process” which is required for restraining personal liberty. Such a violation will occur irrespective of whether these techniques are forcibly administered during the course of an investigation or for any other purpose since the test results could also expose a person to adverse consequences of a non-penal nature. The impugned techniques cannot be read into the statutory provisions which enable medical examination during investigation in criminal cases i.e. the Explanation to Sections 53, 53-A and 54 of the Code of Criminal Procedure, 1973. Such an expansive interpretation is not feasible in light of the rule of “ejusdem generis” and the considerations which govern the interpretation of statutes in relation to scientific advancements. We have also elaborated how the compulsory administration of any of these techniques is an unjustified intrusion into the mental privacy of an individual. It would also amount to “cruel, inhuman or degrading treatment” with regard to the language of evolving international human rights norms. Furthermore, placing reliance on the results gathered from these techniques comes into conflict with the “right to fair trial”. Invocations of a compelling public interest cannot justify the dilution of constitutional rights such as the “right against self-incrimination”.
264. In light of these conclusions, we hold that no individual should be forcibly subjected to any of the techniques in question, whether in the context of investigation in criminal cases or otherwise. Doing so would amount to an unwarranted intrusion into personal liberty. However, we do leave room for the voluntary administration of the impugned techniques in the context of criminal justice provided that certain safeguards are in place. Even when the subject has given consent to undergo any of these tests, the test results by themselves cannot be admitted as evidence because the subject does not exercise conscious control over the responses during the administration of the test. However, any information or material that is subsequently discovered with the help of voluntary administered test results can be admitted in accordance with Section 27 of the Evidence Act, 1872.”

The Supreme Court summarised its decision as under:

“VERY IMPORTANT POINTS

1. No individual should be forcibly subjected to any of the scientific techniques, Narcoanalysis, Polygraph Examination and Brain Electrical Activation Profile (BEAP) test whether in the context of investigation in criminal cases or otherwise. Doing so would amount to an unwarranted intrusion into personal liberty.
2. Scientific techniques such as narcoanalysis, polygraph examination and Brain Electrical Activation Profile (BEAP) test cannot be read into the statutory provisions which enable medical examination during investigation in criminal cases, i.e. the Explanation to Sections 53, 53-A and 54 of the Code of Criminal Procedure, 1973.
3. Placing reliance on the results gathered from scientific techniques such as narcoanalysis, polygraph examination and Brain Electrical Activation Profile (BEAP) test comes into conflict with the ‘right to fair trial’.
4. It is a settled principle that a statement obtained through coercion, threat or inducement is involuntary and hence inadmissible as evidence during trial , in circumstances where it is shown that a person was indeed compelled to make statements while in custody, relying on such testimony as well as its derivative use will offend Article 20(3).
5. Results obtained through involuntary administration of any of the scientific tests namely narcoanalysis technique, polygraph examination and the BEAP test come within the scope of ‘testimonial compulsion’, thereby attracting the protective shield of Article 20(3).
6. Compulsory administration of any of the scientific tests namely narcoanalysis technique, polygraph examination and BEAP test constitutes ‘cruel, inhuman or degrading treatment’ in the context of Article 21.”

(This judgment, Smt. Selvi v. State of Karnataka, is referred to in:

Ajit Mohan Vs. Legislative Assembly, NCT of Delhi, 2021-8 SCALE 8;
Tofan Singh Vs. State of Tamil Nadu, AIR 2020 SC 5592;
Ashish Jain Vs. Makrand Singh, 2019-1 JT 342;
Rajendra Pralhadrao Wasnik Vs. State of Maharashtra, 2018-12 JT 189
K.S. Puttaswamy v. Union of India, (2017) 10 SCC 1.)

The Supreme Court in Amlesh Kumar v. The State of Bihar on 9 June, 2025, 2025 INSC 810 (Sanjay Karol, Prasanna B. Varale), 9th June, 2025, held as under:

“21. In view of the above exposition in Selvi (Supra), the third question is answered in the following terms :
The accused has a right to voluntarily undergo a narco- analysis test at an appropriate stage. We deem it appropriate to add, that the appropriate stage for such a test to be conducted is when the accused is exercising his right to lead evidence in a trial. However, there is no indefeasible right with the accused to undergo a narco- analysis test, for upon receipt of such an application the concerned Court, must consider the totality of circumstances surrounding the matter, such as free consent, appropriate safeguards etc., authorizing a person to undergo a voluntary narco-analysis test. We deem it appropriate to reproduce and reiterate the guidelines issued in Selvi (Supra) in this regard as follows :
“265. The National Human Rights Commission had published Guidelines for the Administration of Polygraph Test (Lie Detector Test) on an Accused in 2000. These Guidelines should be strictly adhered to and similar safeguards should be adopted for conducting the “narcoanalysis technique” and the “Brain Electrical Activation Profile” test. The text of these Guidelines has been reproduced below:
(i). No lie detector tests should be administered except on the basis of consent of the accused. An option should be given to the accused whether he wishes to avail such test.
(ii). If the accused volunteers for a lie detector test, he should be given access to a lawyer and the physical, emotional and legal implication of such a test should be explained to him by the police and his lawyer.
(iii). The consent should be recorded before a Judicial Magistrate.
(iv). During the hearing before the Magistrate, the person alleged to have agreed should be duly represented by a lawyer.
(v). At the hearing, the person in question should also be told in clear terms that the statement that is made shall not be a “confessional” statement to the Magistrate but will have the status of a statement made to the police.
(vi). The Magistrate shall consider all factors relating to the detention including the length of detention and the nature of the interrogation.
(vii). The actual recording of the lie detector test shall be done by an independent agency (such as a hospital) and conducted in the presence of a lawyer.
(viii). A full medical and factual narration of the manner of the information received must be taken on record.”

Read in this cluster (Click on the topic):

Book No. 1. Handbook of a Civil Lawyer

Book No. 2: A Handbook on Constitutional Issues

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

Book No. 4: Common Law of TRUSTS in India

Who has to fix Damages in Tort and Contract?

Jojy George Koduvath.

Damages under Tort and Contract

Damages arise from ‘tortious liability’ and ‘breach of contract’. It is observed in Rajkot Municipal Corpn. v. Manjulben Jayantilal Nakum,(1997) 9 SCC 552, as under:

“In tort, liability is primarily fixed by law while in contract they are fixed by the parties themselves. In tort, the duty is towards the persons generally while in contract it is towards specific persons or persons. If the claim depends upon proof of proof of the contract, action does not lie in tort. If the claim arises, from the relationship between the parties, independent of the contract, an action would lie in tort at the election of the plaintiff, although the might alternatively have pleaded in contract.”

Tortious Liability

Blacks Law Dictionary defines ‘tort’ as violation of duty imposed by general law or otherwise upon all persons occupying the relation to each other involved in a given transaction. There must always be a violation of some duty owed to plaintiff and generally such a duty must arise by operation of law and not by mere agreement of the parties.

Essential Elements of Tortious Liability

The essential elements of tortious liability are –

(a) some wrong doing and (b) negligence or strict liability.

Actual Damage for Tort must be Established before a Court

For asserting tortious liability, as observed by our Apex Court, in Rajkot Municipal Corpn. v. Manjulben Jayantilal Nakum, it must be established before a court of law that:

(i) The defendant was under duty of care, primarily fixed by law, not to create physical danger to the person or property of third party;
(ii) The defendant ought to have reasonably foreseen the physical danger likely to be affected;
(iii) Violation of such duty fastened liability upon the defendant to pay damages; and
(iv) Actual physical damage must have been caused to the plaintiff or his property out of such breach of duty.

Foreseeability of Damages

In United India Insurance Co. v. Thomas, 1999-1 KLT 165; 1999 1 RCR(Civ) 610. the Kerala High Court held as under:

“In a suit for damages in a tort case, the court has power to award pecuniary compensation to the plaintiff for the injury or damage caused to him out of the wrongful act of the defendant. The test employed for determining whether the defendant is liable for damages is the test of directness, that is to say the defendant is liable for all direct consequences of the tortuous acts suffered by the plaintiff whether or not a reasonable man would have foreseen them. The Court of Appeal in Re Polemis and Furness, Withy & Co. Ltd. (1921) 3 K.B. 560) held that once the tortuous act is established the defendant is to be held liable for all the damages which ‘is in fact directly traceable to the negligent act, and not due to independent causes having no connection with the negligent act’.
Foreseeability of some damage is relevant to decide whether the act complained of was negligent or not. But the liability for damages is not restricted to foreseeable damage but extends to all the damage directly traceable to the negligent act. This view was adopted by the Privy Council in Overseas Tankship (U.K.) Ltd. v. Morts Dock & Engineering Co. Ltd. (1961) 1 All. E.R.404 (PC). In holding foresee ability to be the correct test, the judicial committee observed that Polemis” case (supra) should not be regarded as a good law. Lord Viscound Simonds observed:
- “For it does not seem consonant with current ideas of justice or morality that, for an act of negligence .however slight or venial, which results in some trivial foreseeable damage, the actor should be liable for all consequences, however, unforeseeable and however grave, so long as they can be said to be “direct”. It is a principle of civil liability subject only to qualifications which have no present relevance, that a man must be considered to be responsible for the probable consequences of his act.”
His Lordship further said:
- “But, with great respect to the full court, this is surely irrelevant, or, if it is relevant, only serves to show that the Polemis rule works in a very strange way. After the event even a fool is wise. Yet it is not the hindsight of a fool, but it is the foresight of the reasonable man which alone can determine responsibility. The Polemis rule, by substituting “direct” for “reasonably foreseeable” consequence, leads to a conclusion equally illogical and unjust.”
The above test of foresee ability was affirmed in The Wagon Mound (No. 2) (1966) 2 All. E.R.709) and Hughes v. Lord Advocate (1963) 1 All. E.R.705). While adjudicating the claim for compensation by the Tribunal under S.165 of the Act the foresee ability test has no application. It is for the Civil Court to apply this test while assessing the damages in accordance with the facts and circumstances of each case.”

Law of Tort Offers Compensation for Injuries; But, Not to All Losses

In Rajkot Municipal Corpn. v. ManjulbenJayantilalNakum,(1997) 9 SCC 552, a celebrated decision on this subject, it is pointed out as under:

“The law of tort prevents hurting one another. All torts consist of violation of a right in the plaintiff. Tort law, therefore, is primarily evolved to compensate the injured by compelling the wrong-doer to pay for the damage done. Since distributive losses are an inevitable by-product of modern living in allocating the risk, the law of tort makes less and less allowance to punishment, admonition and deterrence found in criminal law. The purpose of the law of tort is to adjust these losses and offer compensation for injuries by one person as a result of the conduct of another. The law could not attempt to compensate all losses.”

Damages Awarded After Adjudication

It is pointed out in State of UP v. Miss Nikhat Parveen, 2005-3 All WC 2733, that in case any person claims damage and compensation, he shall have to resort to the remedies provided to him in law and that the claim of damages requires adjudication and determination of facts. The Court observed further as under:

“11. A liability in tort arises from a breach of duty primarily fixed by law and this duty is towards person (s) generally and its breach is redressable by an action for unliquidated damages. In general, torts consist of some act done without just cause or excuse. Injury and damage are two basic ingredients of torts. These may be found either in contract or otherwise, the violation of which may result in tortuous liability as breach of duty primarily fixed by law or by parties in a contract. An action in tort is usually a claim for pecuniary compensation in respect of damages suffered as a result of invasion, of a legally protected interest. The action is founded and structured on morality, as no one has right to injure or harm others intentionally or even innocently. The liability in tort, in course of time has become known as strict liability, absolute liability or fault liability. The difference between strict liability and fault liability, arises from presence and absence of mental element. A breach of legal duty wilfully, or deliberately or even menacingly, is negligence emanating from fault liability, to injure and damage resulting without any intention, yet due to lack of foresight etc. is strict liability. The duty is the primary yardstick to determine the tortuous liability, and its ambit keeps on widening on the touchstone on fairness and practicability of the situation etc. These rules laid down in Rylands v. Fletcher, (1932) AC 562 were recognised by Indian Courts in Jai Laxmi Salt Works (P.) Ltd. v. State of Gujarat, (1994) 4 SCC 1.
12. Actionable negligence as a tort is to breach of a legal duty to take care which results in the State or an individual liable when the State is found reluctant in discharge of its duties or public responsibilities. It also amounts to negligence and is accountable in law of torts. According to Dias, liability in negligence, is technically prescribed ‘as arising out of damage caused by the breach of a duty to take care. The concept of duty, its reasonableness, the standard of care required however cannot be put into straitjacket formula or a rigid fixed formulae. The more advanced the society becomes, the more sensitive it grows to the violation of the duties by private or even public functionary. The negligence, in law of torts, is influenced by social, economic and political development. The distinction arising out of damages due to negligence and even when it, rather unintentionally and innocently is a firmly established branch of the law of torts. The negligence is only descriptive of those sum of activities which may result in injury and damage to the other side for voluntary discharging of duty both legal and due to lack of foresight and may comprise of more than one concept known and recognised in law intended or unintended.”

No Pecuniary Obligation or Debt for Breach of Contract (By Itself)

The Apex Court held in Union of India v. Raman Iron Foundry, (1974)2 SCC 231, that when there is a breach of contract, the party who commits the breach does not incur any pecuniary obligation nor does the party complaining of the breach become entitled to a debt due from the other party. In Kaikkara Kaikkara Construction Company v. State Of Kerala, (2022) 1 Ker HC 541, the Kerala High Court observed as under:

“Two principles are laid down by the Apex Court in Raman Iron Foundry’s case:
1) The law is well settled that a claim for unliquidated damages does not give rise to debt until the liability is adjudicated and damages assessed by a decree or order of a court or other adjudicatory authority. When a party who commits the breach does not eo instanti incur any pecuniary obligation nor does the party complaining of the breach become entitled to a debt due from the other party. The only right that the party aggrieved by the breach of the contract will get is the right to sue for damages.
2) A claim for damages for breach of contract is therefore not a claim for a sum presently due and payable and the purchaser is not entitled, in exercise of the right conferred upon it under Clause 18, to recover the amount for such claim by appropriating other sum due to the contractor.”

It is held in Raman Iron Foundry‘s case as under.

“11. Having discussed the proper interpretation of clause 18, we may now turn to consider what is the real nature of the claim for recovery of which the appellant is seeking to appropriate the sums due to the respondent under other contracts. The claim is admittedly one for damages for breach of the contract between the parties. Now, it is true that the damages which are claimed are liquidated damages under clause 14, but so far as the law in India is concerned, there is no qualitative difference in the nature of the claim whether it be for liquidated damages or for unliquidated damages. S.74 of the Indian Contract Act eliminates the somewhat elaborate refinements made under the English common law in distinguishing between stipulations providing for payment of liquidated damages and stipulations in the nature of penalty. Under the common law a genuine pre-estimate of damages by mutual agreement is regarded as a stipulation naming liquidated damages and binding between the parties; a stipulation in a contract in terrorem is a penalty and the Court refuses to enforce it, awarding to the aggrieved party only reasonable compensation. The Indian Legislature has sought to cut across the web of rules and presumptions under the English common law, by enacting a uniform principle applicable to all stipulations naming amounts to be paid in case of breach, and stipulations by way of penalty, and according to this principle, even if there is a stipulation by way of liquidated damages, a party complaining of breach of contract can recover only reasonable compensation for the injury sustained by him, the stipulated amount being merely the outside limit. It, therefore makes no difference in the present case that the claim of the appellant is for liquidated damages. It stands on the same footing as a claim for unliquidated damages. Now the law is well settled that a claim for unliquidated damages does not give rise to a debt until the liability is adjudicated and damages assessed by a decree or order of a Court or other adjudicatory authority. When there is a breach of contract, the party who commits the breach does not eo instanti incur any pecuniary obligation, nor does the party complaining of the breach become party. The only right which the party aggrieved by the breach of the contract has is the right to sue for damages. That is not an actionable claim and this position is made amply clear by the amendment in S.6(e) of the Transfer of Property Act, which provides that a mere right to sue for damages cannot be transferred. This has always been the law in England and as far back as 1858 we find it stated by Wightman, J., in Jones v. Thompson, (1858) 27 LJQB 234. “Ex parte Charles and several other cases decide that the amount of a verdict in an action for unliquidated damages is not a debt till judgment has been signed.” It was held in this case that a claim for damages does not become a debt even after the jury has returned a verdict in favour of the plaintiff till the judgment is actually delivered. So also in O’Driscoll v. Manchester Insurance Committee, 1915 (3) KB 499. Swinfen Eady, L., J., said in reference to cases where the claim was for unliquidated damages “……. in such cases there is no debt at all until the verdict of the jury is pronounced assessing the damages and judgment is given”. The same view has also been taken consistently by different High Court in India. We may mention only a few of the decisions, namely, Jabed Sheikh v. Taher Mallik, 45 Cal WN 519 : AIR 1941 Cal. 639; S. Milkha Singh v. M/s. N. K. Gopala Krishna Mudaliar, AIR 1956 Punj 174 Iron and Hardware (India) Co. v. Firm Shamlal and Bros, AIR 1954 Bom 423. Chagla, C. J., in the last mentioned case, stated the law in these terms:(at pp.425-26) “In my opinion it would not be true to say that a person who commits a breach of the contract incurs any pecuniary liability, nor would it be true to say that the other party to the contract who complains of the breach has any amount due to him from the other party.
As already stated, the only right which he has is the right to go to a Court of law and recover damages. Now, damages are the compensation which a Court of law gives to a party for the injury which he has sustained. But, and this is most important to note, he does not get damages or compensation by reason of any existing obligation on the part of the person who has committed the breach. He gets compensation as a result of the fiat of the Court. Therefore, no pecuniary liability arises till the Court has determined that the party complaining of the breach is entitled to damages. Therefore, when damages are assessed, it would not be true to say that what the Court is doing is ascertaining a pecuniary liability which already existed. The Court in the first place must decide that the defendant is liable and then it proceeds to assess what that liability is. But till that determination there is no liability at all upon the defendant.”
This statement in our view represents the correct legal position and has our full concurrence. A claim for damages for breach of contract is, therefore, not a claim for a sum presently due and payable and the purchaser is not entitled, in exercise of the right conferred upon it under clause 18, to recover the amount of such claim by appropriating other sums due to the contractor. On this view, it is not necessary for us to consider the other contention raised on behalf of the respondent, namely, that on a proper construction of clause 18, the purchaser is entitled to exercise the right conferred under that clause only where the claim for payment of a sum of money is either admitted by the contractor, or in case of dispute, adjudicated upon by a Court or other adjudicatory authority. We must, therefore, hold that the appellant had no right or authority under Clause 18 to appropriate the amounts of other pending bill of the respondent in or towards satisfaction of its claim for damages against the respondent and the learned Judge was justified in issuing an interim injunction restraining the appellant from doing so.”

The Supreme Court, in State of Karnataka v. Rameswara Rice Mill, (1987) 2 SCC 160, it is held as under:

“7 …. The terms of clause 12 do not afford scope for a liberal construction being made regarding the powers of the Deputy Commissioner to adjudicate upon a disputed question of breach as well as to assess the damages arising from the breach. The crucial words in Cl.12 are “and for any breach of conditions set forth herein before, the first party shall be liable to pay damages to the second party as may be assessed by the second party.”
On a plain reading of the words, it is clear that the right of the second party to assess damages would arise only if the breach of conditions is admitted or if no issue is made of it. It it was the intention of the parties that the officer acting on behalf of the State was also entitled to adjudicate upon a dispute regarding the breach of conditions the wording in clause 12 would have been entirely different. It cannot also be argued that a right to adjudicate upon an issue relating to a breach of conditions of the contract would flow from or is inhered in the right conferred to assess the damages arising from a breach of conditions. The power to assess damages, as pointed out by the Full Bench, is a subsidiary and consequential power and not the primary power. Even assuming for argument’s sake that the terms of clause 12 afford scope for being construed as empowering the officer of the Sate to decide upon the question of breach as well as assess the quantum of damages, we do not think that adjudication by the Officer regarding the breach of the contract can be sustained under law because a party to the agreement cannot be an arbiter in his own cause. Interests of justice and equity require that where a party to a contract disputes the committing of any breach of conditions, the adjudication should be independent person or body, and not by the other party to the contract.
The position will, however, be different where there is no dispute or there is consensus between the contracting parties regarding the breach of conditions. In such a case, the Officer of the State, even though a party to the contract, will be sell within his rights in assessing the damages occasioned by the breach in view of the specific terms of clause 12.
8. We are, therefore, in agreement with the view of the Full Bench that the powers of the State under an agreement entered into by it with a private person providing for assessment of damages for breach of conditions and recovery of the damages will stand confined only to those cases where the breach of conditions is admitted or it is not disputed.”

In Abdul Rahiman v. Divisional Forest Officer, 1988 (2) KLT 290, the Kerala High Court observed as follows”

“When a contract is broken, the party who suffers by such breach is entitled to receive from the party who has broken the contract, compensation for any loss or damage caused to him thereby. This principle of S.73 of the Contract Act equally applies where one of the contesting parties is the Government. It is the breach of the contract that gives rise to the cause for damages. The primary duty therefore is to fix the liability for the breach. Assessment of damages is only an incidental or subsidiary function. The liability to pay damages is thus fastened where there is breach of contract.
However, when a dispute arises as to whether the contract has been broken or not, that dispute cannot be settled by one of the parties to the contract, for, he cannot be an arbiter in his own cause. The dispute may have to be referred to an arbitrator or the matter has to be settled in a court of law. This principle applies to the Government also as a party to the contract.
Where the breach of the contract is admitted ie. where there is no dispute that the contract has been broken by one of the parties, the Government as the party entitled to claim compensation for the breach need not wait for a determination by any outside agency as to whether there was any breach of contract. In that event, the question of damages alone remains to be considered. A sum can be named in the contract as the amount to be paid in case of breach, an amount in liquidation of the claim for compensation. The contract can thus provide for liquidated damages in the event of breach and the Government claiming that amount as compensation for the admitted breach committed by the other party to the contract, need not seek the aid of court or any outside agency for the fixation of the quantum of damages.
Similarly, if the contract itself provides that “that one party shall be liable to pay damages to the second party as may be assessed by the second party”, the assessment by the second party, in case the breach is admitted, is binding on the first party and there is no more any necessity for a further quantification of the damages by any outside agency. The party assessing the damage can straight away seek to recover the amount and if that party is the Government, it can have recourse to the remedy available under the Kerala Revenue Recovery Act.”

After quoting this decision it is held in Build Tech India Ltd. v. State of Kerala, 2000 (2) Ker LJ 142 as under:

“The cumulative effect of the aforesaid decisions is that when breach is not admitted, one of the contracting parties cannot arrogate to itself the power to claim compensation for the breach from the other party without there being any adjudication by an outside agency as to whether there was any breach of contract. In the case on hand, going by the pleadings as already noticed, it cannot be held that the petitioner has admitted the breach. Therefore the respondents have no jurisdiction to quantify the damage or loss alleged to have sustained by it on account of the alleged breach.”

(All the aforesaid cases are referred to in Kaikkara Kaikkara Construction Company v. State Of Kerala, (2022) 1 Ker HC 541.)

Sec. 73 and 74 deals with Compensation for Breach of Contract

73. Compensation for loss or damage caused by breach of contract.—When a contract has been broken, the party who suffers by such breach is entitled to receive, from the party who has broken the contract, compensation for any loss or damage caused to him thereby, which naturally arose in the usual course of things from such breach, or which the parties knew, when they made the contract, to be likely to result from the breach of it.
—When a contract has been broken, the party who suffers by such breach is entitled to receive, from the party who has broken the contract, compensation for any loss or damage caused to him thereby, which naturally arose in the usual course of things from such breach, or which the parties knew, when they made the contract, to be likely to result from the breach of it.
Such compensation is not to be given for any remote and indirect loss or damage sustained by reason of the breach. Compensation for failure to discharge obligation resembling those created by contract.
—When an obligation resembling those created by contract has been incurred and has not been discharged, any person injured by the failure to discharge it is entitled to receive the same compensation from the party in default, as if such person had contracted to discharge it and had broken his contract.
—When an obligation resembling those created by contract has been incurred and has not been discharged, any person injured by the failure to discharge it is entitled to receive the same compensation from the party in default, as if such person had contracted to discharge it and had broken his contract.”
Explanation.—In estimating the loss or damage arising from a breach of contract, the means which existed of remedying the inconvenience caused by the non-performance of the contract must be taken into account.

74 Compensation for breach of contract where penalty stipulated for:- [When a contract has been broken, if a sum is named in the contract as the amount to be paid in case of such breach, or if the contract contains any other stipulation by way of penalty, the party complaining of the breach is entitled, whether or not actual damage or loss is proved to have been caused thereby, to receive from the party who has broken the contract reasonable compensation not exceeding the amount so named or, as the case may be, the penalty stipulated for.
Explanation.— A stipulation for increased interest from the date of default may be a stipulation by way of penalty.]
(Exception) — When any person enters into any bail-bond, recognizance or other instrument of the same nature or, under the provisions of any law, or under the orders of the [Central Government] or of any [State Government], gives any bond for the performance of any public duty or act in which the public are interested, he shall be liable, upon breach of the condition of any such instrument, to pay the whole sum mentioned therein.
Explanation.— A person who enters into a contract with Government does not necessarily thereby undertake any public duty, or promise to do an act in which the public are interested.

Can a Party to Contract Adjudicate Upon Breach and Quantum?

The Supreme Court, in State of Karnataka v. Rameshwara Rice Mills, Thirthahalli, AIR 1987 SC 1359, observed that even when the State is one of the contracting parties and seek to recover damages for breach of contract, the State cannot be a Judge in its own cause and cannot be its own arbitrator to determine the liability and quantum of damages. The Apex Court held as under:

“The terms of Clause 12 do not afford scope for a liberal construction being made regarding the powers of the Deputy Commissioner to adjudicate upon a disputed question of breach as well as to assess the damages arising from the breach. The crucial words in Clause 12 are “and for any breach of conditions set forth hereinbefore, the first party shall be liable to pay damages to the second party as may be assessed by the second party. On a plain reading of the word, it is clear that the right of the second party to assess damages would arise only if the breach of conditions is admitted or if no issue is made of it. If it was the intention of the parties that the officer acting on behalf of the State was also entitled to adjudicate upon a dispute regarding the breach of conditions the wording in Clause 12 would have been entirely different. It cannot also be argued that right to adjudicate upon an issue relating to a breach of conditions of the contract would flow from or is inhered in the right conferred to assess the damages arising from a breach of conditions. The power to assess damages, as pointed out by the Full Bench, is subsidiary and consequential power and not the primary power. Even assuming for argument’s sake that the terms of Clause 12 afford scope for being construed as empowering the office of the State of decide upon the question of breach as well as assess the quantum of damages, we do not think that adjudication by the officer regarding the breach of the contract can be sustained under law because a party to the agreement cannot be an arbiter in his own cause. Interests of justice and equity require that where a party to a contract disputes the committing of any breach of conditions the adjudication should be by an independent person or body and not by the other party to the contract. The position will, however, be different where there is no dispute or there is consensus between the contracting parties regarding the breach of conditions. In such a case, the Officer of the State, even though a party to the contract will be well within his rights in assessing the damages occasioned by the breach in view of the specific terms of Clause 12. .. We are, therefore, in agreement with the view of the Full Bench that the powers of the State under an agreement entered into by it with a private person providing for assessment of damages for breach of conditions and recovery of the damages will stand confined only to those cases where the breach of conditions is admitted or it is not disputed.”

This principles, dispute about the liability for damages is a matter for the civil court, and a party to an agreement cannot be an arbiter in its own cause, are followed in the following cases:

Abdul Rahiman v. Divisional Forest Officer, AIR 1989 Ker 1;
Latheef v. Superintending Engineer, ILR 1993(2) Ker 426;
Rambal Co. v. Kerala State Science & Technology Museum, 2000 (3) Arb. LR 212;
Bharat Sanchar Nigam Ltd. v. Motorola India Pvt. Ltd., AIR 2009 SC 357: 2009 2 SCC 337;
Mohammed Kunhi v. Executive Engineer, 2001(3) KLT 733;
Union of India v. Tejinder Kumar Dua, 2013-200 DLT 60;
Tulsi Narayan Garg v. Madhya Pradesh Road Development Authority, Bhopal, 2019 SCC OnLine SC 1158.

It is held in the following cases that if breach alleged by a party to the contract is denied by the other a unilateral decision as to damages is not proper.

Union of India v. Raman Iron Foundry, AIR 1974 SC 1265: (1974) 2 SCC 231. (The principles in this decision is followed in the following cases.)
State of Karnataka v. Rameshwara Rice Mills, Thirthahalli, AIR 1987 SC 1359
JG Engineers Private Limited v. Union of India, AIR 2011 SC 2477: (2011) 5 SCC 758
State of Kerala and others v M.K.Jose, (2015) 9 SCC 433
M/s. Gangotri Enterprises Limited v Union of India, (2016) 11 SCC 720, AIR 2016 SC 2199.

It is pointed out in Perkins Eastman Architects DPC v. HSCC (India) Limited, AIR 2020 SC 59, 2019 SCC Online SC 1517, by our Apex Court that a Chief Managing Director of a Company by himself cannot appoint a sole arbitrator, as he himself cannot act as an arbitrator, emphasising the principle that ‘what cannot be done directly cannot be done indirectly’. (See also: TRF Limited vs. Energo Projects Ltd., (2017) 8 SCC 377.)

Tender issuer cannot forfeit pre-bid payment as damages; He has to Prove it

In Sushil Kumar Thard v. National Jute Manufactures Corpn. Ltd., (2023) 2 HCC (Cal) 217, the successful bidder refused to sign the contract. It is held that the tender issuer cannot forfeit the earnest money or the pre-bid payment as damages. He has to prove the loss or damage by reason of such alleged breach; for, Sec. 73 of the Contract Act requires damages to be the reasonable compensation of breach suffered by the claimant and not remote. The High Court relied on the judgment of the Madras High Court in Rubina v. The Authorised Officer, M/s. Axis Bank Limited which held that the existence of a forfeiture clause does not imply that the entire amount deposited can be forfeited and that the right to forfeit must be balanced against the rule of unjust enrichment.

If Special Forum Provided, it must be Approached

Supreme Court in the case of Western India Plywood Limited v. P Ashokan, AIR 1997 SC 3883, and BS Bharti v. IBP Co. Ltd, AIR 2004 SC 4355, it is laid down that where a special statute (Motor Vehicles Act, Workman’s Compensation Act, ESI Act, Industrial Disputes Act, etc.) bars jurisdiction of the civil court, and a special forum is provided, then the injured must seek his remedy before the special forum, and he cannot resort to remedy in a civil suit.

Pleadings and Future Damages

In Bhagwati Prasad v. Chandramaul, AIR 1966 SC 735; 1966-2 SCR 286, It was held as under:

“Once it is held that the plaintiff is entitled to eject the defendant, it follows that from the date of the decree granting the relief of ejectment to the plaintiff, the defendant who remains in possession of the property despite the decree, must pay mesne profits or damages for use and occupation of the said property until it is delivered to the plaintiff. A decree for ejectment in such a case must be accompanied by a direction for payment of the future mesne profits or damages. Then as to the rate at which future mesne profits can be awarded to the plaintiff, we see no reason to differ from the view taken by the trial Court that the reasonable amount in the present case would be Rs. 300/- per month.”

Read in this cluster (Click on the topic):

Civil Suits: Procedure & Principles

Evidence Act

Constitution

Contract Act

Easement

Club/Society

Trusts/Religion

Can Courts Award Interest on Equitable Grounds?

Jojy George Koduvath.

Abstract of this Blog:

The Supreme Court, in the significant decision, Dushyant N. Dalal v. Securities and Exchange Board of India, AIR 2018 SC 447; 2017-9 SCC 660, it is held that the Interest Act of 1978 enables the courts and tribunals to award interest ‘in equity’. The Apex Court upheld the view that the words ‘other rule of law or usage having the force of law‘, in Sec. 4 (1) of the Interest Act, 1978, would justify payment of interest, in proper cases, ‘in equity’.

When courts award interest.

In Life Insurance Corporation of India v. S. Sindhu, AIR 2006 SC 2366 : (2006) 5 SCC 258 it is held that interest prior to the date of suit (as contrasted to pendente-lite interest and future interest) is awarded where:

(a) the contract provides;
(b) the statute applicable to the transaction, provides for; or
(c) as per the provisions of the Interest Act, 1978.

Interest Act, 1839 and interest ‘payable by law’ under ‘equity’

Proviso to Section 1 of the Interest Act, 1839 reads as under:

“Provided that interest shall be payable in all cases in which it is now payable by law.”

It was uniformy held that interest was ‘payable by law’ under that Act in ‘equity’. (Bengal Nagpur Railway Co. Ltd. vs. Rultanji Ramji, AIR 1938 PC 67; Satinder Singh v. Umrao Singh, AIR 1961 SC 908; Hirachand Kothari v. State of Rajasthan, 1985 Supp SCC 17.) In Trojan and Co. v. Nagappa Chettiar, 1953 SCR 789, the Supreme Court observed that it was well settled that interest could be allowed by a Court of equity where money was obtained or retained by fraud.

Earlier view: Interest Act, 1978 did not Canvas Interest on Equitable Grounds

In Life Insurance Corporation of India v. S. Sindhu, AIR 2006 SC 2366 : (2006) 5 SCC 258 it is pointed out that the Interest Act, 1978 made a significant departure from the old Interest Act of 1839. It is pointed out that the present Act does not contain the following provision contained in the proviso to section (1) of the old Act:

“Interest shall be payable in all cases in which it is now payable by law”.

Sections 3, 4 and 5 of the Interest Act, 1978 read as follows

3. Power of court to allow Interest.-
(1) In any proceeding for the recovery of any debt or damage or in any proceedings in which a claim for interest in respect of any debt or damages already paid is made, the court may, if it thinks fit, allow interest to the person entitled to the debt or damages or to the person making such claim, as the case may be, at a rate not exceeding the current rate of interest, for the whole or part of the following period, that is to say ;-
- (a) If the proceedings relate to a debt payable by virtue of a written instrument at a certain time, then, from the date when the debt is payable to the date of institution of the proceedings;
- (b) if the proceedings do not relate to any such debt, then, from the date mentioned in this regard in a written notice given by the person entitled or the person making the claim to the person liable that interest will be claimed to the date of institution of the proceedings:
  - Provided that where the amount of the debt or damages has been repaid before the institution of the proceedings, interest shall not be allowed under this section for the period after such repayment.
(2) Where in any such proceedings as are mentioned in sub-section (1),:—
- (a) judgment, order or award is given for a sum which, apart from interest on damages, exceeds four thousand rupees, and
- (b) the sum represents or includes damages in respect of personal injuries to the plaintiff or any other person or in respect of a person’s death, then, the power conferred by that sub-section shall be exercised so as to include in that sum interest on those damages or on such part of them as the court considers appropriate for the whole or part of the period from the date mentioned in the notice to the date of institution of the proceedings, unless the court is satisfied that there are special reasons why no interest should be given in respect of those damages.
(3) Nothing in this Section,—
- (a) shall apply in relation to—
  - (i) any debt or damages upon which interest is payable as of right, by virtue of any agreement; or
  - (ii) any debt or damages upon which payment of interest is barred, by virtue of an express agreement;
- (b) shall affect—
  - (i) the compensation recoverable for the dishonour of a bill of exchange, promissory note or cheque, as defined in the Negotiable instrument Act, 1881 (26 of 1881); or
  - (ii) the provisions of rule 2 of Order II of the First Schedule to the Code of Civil Procedure, 1908 (5 of 1908);
- (c) shall empower to court to award interest upon interest.
4. Interest payable under certain enactments.—
(1) Notwithstanding anything contained in section 3, interest shall be payable in all cases in which it is payable by virtue of any enactment or other rule of law or usage having the force of law.
(2) Notwithstanding as aforesaid, and without prejudice to the generality of the provisions of sub-section (1), the court shall, in each of the following cases, allow interest from the date specified below to the date of institution of the proceedings at such rate as the court may consider reasonable, unless the Court is satisfied that there are special reasons why interest should not be allowed, namely:-
- (a) where money or other property has been deposited as security for the performance of any obligation imposed by law or contract, from the date of the deposit;
- (b) where the obligation to pay money or restore any property arises by virtue of a fiduciary relationship, from the date of the cause of action;
- (c) where money or other property is obtained or retained by fraud, from the date of the cause of action;
- (d) where the claim is for dower or maintenance, from the date of the cause of action.
5. Section 34 of the Code of Civil Procedure, 1908 to apply.—Nothing in this Act shall affect the provisions of section 34 of the Code of Civil Procedure, 1908 (5 of 1908).”

Claim of Interest under Interest Act, 1978 – equity and common law principles

In Ferro Alloys Corporation Limited v. AP State Electricity Board, AIR 1993 SC 2005, the Supreme Court examined whether interest could be claimed on the basis of the Interest Act, 1978, equity or common law on deposits made with the Electricity Board. The Apex Court observed as under:

“128. If this be the position, could interest be claimed either on equity or common law? The argument on behalf of the consumers is, if money belonging to any person is used by someone else he is obliged to pay interest for the period of its user. Halsbury, Volume 32 (page 53, para 106) defines “interest” as
- “the return or compensation for the use or retention by one person of a sum of money belonging or owed to another….
129. Strictly speaking, the word “interest” would apply only to cases where there is a relationship of debtor and creditor. A lender of money who allows the borrower to use certain funds deprives himself of the use of those funds. He does so because he charges interest which may be described as a kind of rent for the use of the funds. For example, a bank or a lender lending out money on payment of interest. In this case, as already noted, there is no relationship of debtor and creditor.
130. We may now refer to Halsbury, 4th Edn., Vol. 32, para 108:
“108. When interest is payable at common law.”
- At common law interest is payable
  - (1) where there is an express agreement to pay interest;
  - (2) where an agreement to pay interest can be implied from the course of dealing between the parties or from the nature of the transaction or a custom or usage of the trade or profession concerned;
  - (3) in certain cases by way of damages for breach of a contract (other than a contract merely to pay money) where the contract, if performed, would to the knowledge of the parties have entitled the plaintiff to receive interest. Except in the cases mentioned, debts do not carry interest at common law.”
Consumption security deposit does not fall under any of the categories mentioned above. Para 109 says:
- “Equitable right to interest.” In equity interest may be recovered in certain cases where a particular relationship exists between the creditor and the debtor, such as mortgagor and mortgagee, obligor and obligee on a bond, personal representative and beneficiary, principal and surety, vendor and purchaser, principal and agent, solicitor and client, trustee and beneficiary, or where the debtor is in a fiduciary position to the creditor. Interest is also allowed on pecuniary legacies not paid within a certain time, on the dissolution of a partnership, on the arrears of an annuity where there has been misconduct or improper delay in payment, or in the case of money obtained or retained by fraud. It may also be allowed where the defendant ought to have done something which would have entitled the plaintiff to interest at common law, or has wrongfully prevented the plaintiff from doing something which would have so entitled him.”
131. Even a case of wrongful detention of money cannot arise. In Bengal Nagpur Railway v. Ruttanji Ramji the question arose whether interest was payable on damages on account of wrongful detention of money. It was held: (IA pp. 71- 72)
- “The Interest Act, however, contains a proviso that “interest shall be payable in all cases in which it is now payable by law”. This proviso applies to cases in which the Court of equity exercises jurisdiction to allow interest. As observed by Lord Tomlin in Maine and New Brunswick Electrical Power Co. Ltd. v. Alice M. Hart: “In order to invoke a rule of equity, it is necessary in the first instance to establish the existence of a state of circumstances which attracts the equitable jurisdiction, as for example, non-performance of a contract of which equity can give specific performance.” The present case does not however attract the equitable jurisdiction of the Court and cannot come within the purview of the proviso.”

In H.P. State Financial Corporation, Shimla v. Prem Nath Nanda, (2000) 8 SCC 528, the Supreme Court rejected claim for interest on the ground that there was no statutory provision or agreement to pay interest. However, the Court noticed that in appropriate cases interest may be awarded in lieu of compensation or damages for wrongly retaining a amount payable to a party. For this, the Supreme Court relied upon Satinder Singh v. Umraon Singh, AIR 1961 SC 908 and Laxmichand v. Indore Improvement Trust, (1975) 1 SCC 565.

In Soviltorg (India) Ltd. v. State Bank of India, (1999) 6 SCC 406, the Delhi High Court observed as under:

“6. Relying upon the province of Section 34 of the Civil Procedure Code, the learned counsel for the appellant submitted that the appellant was entitled to the payment of interest at the rate at which moneys are lent or advanced by Nationalised Banks in relation to commercial transactions. Referring to IA No. 2 filed in this Court and Banking Law and Practice in India issued in 1991, she had contended that the appellant was entitled to the payment of interest minimum at the rate of 19.4 per cent per annum. The general submission made in this behalf cannot be accepted in view of the provision of Section 14 of the Act. There was no contract between the parties regarding payment of interest on delayed deposit or on account of delay on the part of the opposite party to render the services. Interest cannot be claimed under Section 34 of the Civil Procedure Code as its provisions have not been specifically made applicable to the proceedings under the Act. We, however, find that the general provision of Section 34 being based upon justice, equity and good conscience would authorise the Redressal Forums and Commissions to also grant interest appropriately under the circumstance of each case. Interest may also be awarded in lieu of compensation or damages in appropriate cases. The interest can also be awarded on equitable grounds…”

All these decisions are referred to in Ritu Sengupta v. Municipal Corporation of Delhi, 2008-152 DLT 68; 2008-106 DRJ 54; ILR 2009-1 Del 586.

SIGNIFICANT CHANGE IN LAW By AIR 2018 SC 447; 2017-9 SCC 660

“Other rule of law .. having the force of law” canvases ‘equity’

Section 4(1) of the Interest Act, 1978 provides that notwithstanding anything contained in section 3, interest shall be payable in all cases in which it is payable by virtue of any enactment or other rule of law or usage having the force of law.

In Dushyant N. Dalal v. Securities and Exchange Board of India, AIR 2018 SC 447; 2017-9 SCC 660, the Apex Court upheld the decision of the Bombay High Court in Prabhavati Ramgarib B. v. Divisional Railway Manager, (2010) 4 Mah LJ 691. The Bombay High Court held as under:

“35. The petitioner’s claim for interest would fall within the ambit of the words “or other rule of law“ in section 4(1). The other rule of law being on grounds of equity. Even under the Interest Act, 1839, interest was payable under the proviso to section 1 which reads: “Provided that interest shall be payable in all cases in which it is now payable by law.” Interest was payable by law under that Act in equity. This was recognized in a series of judgments. For instance in Trojan and Co. v. Nagappa Chettiar, 1953 SCR 789, the Supreme Court, in paragraph 23, observed that it was well settled that interest is allowed by a Court of equity in the case of money obtained or retained by fraud. Interest was, therefore, awarded in equity. …. ..
36. The position is not different under the Interest Act, 1978. The words, in section 4(1) “or other rule of law” would include interest payable in equity. In fact, interest has been awarded by our Courts in equity as well as on principles analogous to section 34 of the Code of Civil Procedure on the basis that section 34 is based upon principles of justice, equity and good conscience.”

After quoting the aforesaid passage from the Bombay decision it is held in Dushyant N. Dalal v. Securities and Exchange Board of India, AIR 2018 SC 447; 2017-9 SCC 660 as under:

“We agree with the aforesaid statement of the law. It is clear, therefore, that the Interest Act of 1978 would enable Tribunals such as the SAT to award interest from the date on which the cause of action arose till the date of commencement of proceedings for recovery of such interest in equity.”

Read in this cluster:

Public & Private Trusts in India

Saji Koduvath.

Introduction

Each civilisation has its own peculiar concepts as to religious and charitable endowments and ‘trust’ attached to it. India is rich of its ancient past with regard to the charitable and religious dedications and trusts. They have their own unique history of development and formulation of legal principles.

Private Trust – Indian Law and English Law

Charitable trusts of public nature alone, and not of private nature, are accepted as valid under English Law. The distinction between English Law and Hindu Law has been stated by Dr. Mukherjea in his Tagore Law Lectures ‘On the Hindu Law of Religious and Charitable Trusts’ as under:

“In English Law charitable trusts are synonymous with public trusts and what is called religious trust is only a form of charitable trust. The beneficiaries in a charitable trust being the general public or a Section of the same and not a determinate body of individuals, the remedies for enforcement of charitable trust are somewhat different from those which can be availed of by beneficiaries in a private trust. In English Law the Crown as ‘parens-patriae’ is the constitutional protector of all property subject to charitable trusts, such trusts being essentially matters of public concern. … One fundamental distinction between English and Indian Law lies in the fact that there can be religious trust of a private character under Hindu Law which is not possible in English Law.” [1]

Dedication to Family Idol – Recognised by Indian Law

In case of a public temple, dedication of property thereto is complete or absolute, as in the case of a public way. Though assignment of property in favour of a private temple is also recognised as ‘dedication’, it not ‘absolute’ as in the case of a public temple.

In Deoki Nandan Vs. Murlidhar[2] the Apex Court observed:

“(W)hen property is dedicated for the worship of a family Idol, it is a private and not a public endowment, as the persons who are entitled to worship at the shrine of the Deity can only be the members of the family, and that is an ascertained group of individuals. “[3]

Distinction: Beneficiaries, Individuals or General Public

Dr. BK Mukherjea, J., ‘On the Hindu Law of Religious and Charitable Trusts’, has set out the difficulty to make a distinction between public and private charitable trust as under:

“The line of distinction between a public purpose and a purpose which is not public is very thin and technical and is difficult of an easy definition.”[4]

Where the beneficiaries of a trust or charity are limited to a finite group of identifiable individuals, the trust or charity is of a private character.[5]

As to determination of the nature of a temple, whether public or private, it is held in Deoki Nandan Vs. Murlidhar,[6] as under:

“The distinction between a private and a public trust is that whereas in the former, the beneficiaries are specific individuals, in the latter, they are the general public or a class thereof. While in the former the beneficiaries are persons who are ascertained or capable of being ascertained, in the latter they constitute a body which is incapable of ascertainment.”

Public Trust – Cardinal Point, Intention of Founder

In Deoki Nandan Vs. Murlidhar,[7] it is held further:

“When once it is understood that the true beneficiaries of religious endowments are not the Idols but the worshippers, and that the purpose of the endowment is the maintenance of that worship for the benefit of the worshippers, the question whether an endowment is private or public presents no difficulty. The cardinal point to be decided is whether it was the intention of the founder that specified individuals are to have the right of worship at the shrine, or the general public or specified portion thereof. In accordance with this theory, it has been held that when property is dedicated for the worship of a family Idol, it is a private and not a public endowment, as the persons who are entitled to worship at the shrine of the Deity can only be the members of the family, and that is an ascertained group of individuals. But where the beneficiaries are not members of a family or a specified individual, then the endowment can only be regarded as public, intended to benefit the general body of worshippers.” [8]

No Document is Essential for Dedication in Public Trust

The act of delivering property, by its owner, for the use of the public is called ‘dedication’.

With regard to private trusts, under Sec. 5 of the Indian Trusts Act, for creation of trust on immovable property, ‘declaration by a non-testamentary instrument’ is essential; and for creation of trust on movable property, ‘transfer of ownership’ will be sufficient.

Section 5 of The Indian Trusts Act, 1882 (pertains to private trust lone) reads as under”

5. Trust of immovable property – No trust in relation to immoveable property is valid unless declared by a non-testamentary instrument in writing signed by the author of the trust or the trustee and registered, or by the will of the author of the trust or of the trustee.
Trust of moveable property – No trust relating to movable property is valid unless declared as aforesaid, or unless the ownership of the property is transferred to the trustee. These rules do not apply where they would operate so as to effectuate a fraud.

Public Trust – Nature of Dedication – Terms of the Document, Important

Declaration by a registered deed or vesting/transferring property to a trustee is the usual mode of dedication of immovable property; though no document is necessary for creating a religious endowment.

If the founders’ intention is clear from the document of foundation or other direct evidence, oral or documentary, no difficulty arises. In cases where express dedication cannot be proved, it will be a matter for legal inference from the proved facts and circumstances of each case. In Radhakanta Deb Vs. Commr. of Hindu Reli. Endts, it is held:

“Where, however, a document is available to prove the nature and origin of the endowment and the recitals of the document show that the control and management of the temple is retained with the founder or his descendants, and that extensive properties are dedicated for the purpose of the maintenance of the temple belonging to the founder himself, this will be a conclusive proof to show that the endowment was of a private nature.”[9]

In S. Shanmugam Pillai . Vs. K. Shanmugam Pillai .[10] it is held:

“Whether or not a dedication is complete would naturally be a question of fact to be determined in each case on the terms of the relevant document if the dedication in question was made under a document. … “[11]

In Hemanta Kumari Debi Vs. Gauri Shankar Tewari[12] it is held, while dealing with a bathing ghat on the banks of the River Ganges, that complete relinquishment of title was not the only form of dedication under Hindu Law.

It further observed as under:

“In the absence of a formal and express endowment evidenced by deed or declaration, the character of the dedication can only be determined on the basis of the history of the institution and the conduct of the founder and his heirs.”

Our Apex Court observed the following, interpreting a deed, in Idol of Sri Renganatha-swamy Vs. PK Thoppulan Chettiar[13]as under:

“The Deed of Settlement must be examined as a whole to determine the true intention of the settlor. Where the settlor seeks to divest himself of the property entirely for a religious purpose, a public religious charity is created. In the present case, the Deed of Settlement creates an absolute prohibition on the subsequent sale or mortgage of the suit property. The Deed of Settlement provides that, the settler purchased the punja land mentioned in the schedule of property… for the performance of charity work in reference to Sri Renganathan-swamy sanctum. The property outlined in the schedule of the Deedof Settlement is described as, property allotted for charity work. With respect to the legal heirs, the Deed of Settlement creates an obligation on the settlors legal heirs to continue the charitable activities at the suit property out of their business incomes. The settlor had a clear intent to divest himself and his legal heirs of the property and endow it for the continuation of the charitable activities at the suit property. The purpose of the endowment was to carry on charitable work. The Deed of Settlement obligates the legal heirs to continue the charitable activities at the suit property.”

Family Deity is also a Juristic Person

In case of dedication of property for creation of a public temple, the donor (i) completely relinquishes his title over the property, (ii) vests its ‘legal ownership’ with the Deity and (iii) transfers the possession thereof to the Shebaits (trustees) for administrating the same for the benefit of the public or a class thereof. It is beyond doubt that if the temple is a public temple, under Hindu Law, the idol is a juridical person; and so, the ownership of the temple and all its endowments including offerings made before the idol constitute the property of the idol.[14]

Principles as to legal personality, rights emanating therefrom, etc. with respect to a family temple are presented in the same manner as that of a public temple by Dr. BK Mukherjea, J. in his treatise ‘On Hindu Law of Religious & Charitable Trusts’.But it is observed (obiter) in Shriomani Gurudwara Prabandhak Committee, Amritsar Vs. Shri Som Nath Dass[15] as under:

“The idol may be revered in homes but its juristic personality is only when it is installed in a public temple.”

The following passages in the Tagore Law Lectures by Dr. B.K. Mukherjea are relevant in this context.

i. “In the first place even if property is dedicated to a family Deity, the endowment is a religious and charitable trust in the proper sense of the term, and as the law of perpetuity or remoteness cannot affect such dedication, there is no reason why the other incidents of private trust should be applied to it. In the second place, the Deity itself is a juridical person in Hindu Law and the dedicated property vests in it absolutely.” (Page 197)[16]
ii. “When the Shebait himself is the misconducting party, whose removal is sought for or where property has been improperly alienated by the Shebait and he is unwilling or incapable of bringing a suit himself, any other person interested in the family debutter can sue, or the Deity itself as a juristic person can institute a suit through somebody as next friend.” (Page 462).[17]

Dedication of Property for Establishment of Dharmasala

While dealing with dedication of property for creation of a Dharmasala it is held in Kuldip Chand Vs. AG to Government of HP[18] as under:

“When the complete control is retained by the owner – be it be appointment of a Chowkidar, appropriation of rents, maintenance thereof from his personal funds – dedication cannot be said to be complete.”

‘Valid and Complete’ Dedication in Family Temple

Though control and management of the property are retained by the founder, if the temple is bestowed for the benefit of the family members, it could also be qualified as ‘dedication’. When the founder of a family temple releases his individual rights over the endowed property and vest the legal ownership of the same with the family Deity, such a dedication is also ‘valid and complete’ in law.

Can a Private (Secular) Trust be Put to an End?

It is settled (Profulla Chorone Requitte Vs. Satya Chorone Requitte[19]) that in the matter of (secular) private trusts, English principles are followed in India which lay down that if the beneficiaries are sui juris and of one mind, the trust can be put to an end or use the trust fund for any purpose.

Chapter VIIII of the Indian Trusts Act is relevant here. It reads:
Chapter VIIII – The Extinction of Trusts
77. Trust how extinguished.—A trust is extinguished—(a) when its purpose is completely fulfilled; or (b) when its purpose becomes unlawful; or (c) when the fulfillment of its purpose becomes impossible by destruction of the trust property or otherwise; or (d) when the trust, being revocable, is expressly revoked.
78. Revocation of trust.—A trust created by will may be revoked at the pleasure of the testator. A trust otherwise created can be revoked only— (a) where all the beneficiaries are competent to contract—by their consent; (b) where the trust has been declared by a non-testamentary instrument or by word of mouth—in exercise of a power of revocation expressly reserved to the author, of the trust; or (c) where the trust is for the payment of the debts of the author of the trust, and has not been communicated to the creditors—at the pleasure of the author of the trust. Illustration A conveys property to B in trust to sell the same and pay out of the proceeds the claims of A’s creditors. A reserves no power of revocation. If no communication has been made to the creditors, A may revoke the trust. But if the creditors, are parties to the arrangement, the trust cannot be revoked without their consent.
79. Revocation not to defeat what trustees have duly done.—No trust can be revoked by the author of the trust so as to defeat or prejudice what the trustees may have duly done in execution of the trust.

Can Entire Family Members Put an End to Family Temple?

In case of public trusts, no doubt, the principle is: once a trust is made, it is final and irrevocable.[20] As observed by the Apex Court in Agasthyar Trust, Madras Vs. Commr. of Income Tax Madras, even the founder cannot revoke or put an end to it. Subsequent conduct of the founder or his descendants contrary to such dedication would amount to a breach of trust.[21]

But there is difference of opinion in the matter of private religious trusts. It is held by Calcutta High Court in Sukumar Bose Vs. Abani Kumar (1956)[22] that the property once dedicated and a private trust created, the same cannot be put to an end even with the consent of all parties interested in the endowment. It was followed by the Calcutta High Court in Panna Banerjee Vs. Kali Kinkor Ganguli (1974).[23] Kerala (1961)[24] and Madras (1998)[25] High Court also took the same view.

The contrary view in Narayan Vs. Narasing Charan (1876),[26] had been criticized by Sir George Rankin, in Surendra Krishna Roy Vs. Shree ShreeIswar Bhubaneshwari Thakurani (1933).[27]

It is observed by the Apex Court in Profulla Chorone Requitte Vs. Satya Chorone Requitte (1979)[28] as under:

“23. Then, there is a distinction between a public and private debutter. In a public debutter or endowment, the dedication is for the use or benefit of the public. But in a private endowment, when property is set apart for the worship of a family idol, the public are not interested. The present case is one of a private debutter. The distinction is important, because the results logically following therefrom have been given effect to by courts, differently.
24. According to English law, the beneficiaries in a private trust, if sui juris and of one mind, have the power or authority to put an end to the trust or use the trust fund for any purpose and divert it from its original object. Whether this principle applies to a private endowment or debutter created under Hindu Law, is a question on which authorities are not agreed. In Doorganath Roy Vs. Ram Chunder Sen, LR4 IA 52 : ILR 2 Cal 233 it was observed that while the dedication is to a public temple, the family of the founder could not put an end to it, but “in the case of a family idol, the consensus of the whole family might give the (debutter) estate another direction” and turn it into a secular estate.
25. Subsequently, in Pramatha Nath Mullick Vs. Pradhyumna Kumar Mullick, 52 IA 245 : AIR 1925 PC 139 the Judicial Committee clarified that the property cannot be taken away from the idol and diverted to other purposes without the consent of the idol through its earthly agents who, as guardians of the deity, cannot in law consent to anything which may amount to an extinction of the deity itself.”[29]

B.K. Mukherjea on ‘The Hindu Law of Religious and Charitable Trust’ speaks as under:

“In Narayan Vs. Narasing Charan, (1951)[30] there is an observation that the members of the family could by their consensus withdraw the endowment from the trust. But in Sukumar Bose Vs. Abani Kumar (1956)[31] it was held by the Calcutta High Court on a review of the authorities that it was not open to the members of the family even when there is a consensus of all of them to put an end to an endowment in favour of a family idol, and that the observations of Sir Montague Smith in Doorganath Roy v. Ram Chunder (1876)[32] to the contrary were not good law. It is submitted that the law has been correctly laid down in this decision.
Even if it be held that a consensus of the family can convert Debutter into secular estate, it must be noted that Shebaits qua Shebaits by their dealings with the property cannot give it a different turn. The Shebaits occupy the position of managers merely, and the acts of the manager which amount to breaches of trust cannot put an end to the trust. The consent must be expressed by all the beneficiaries which in the case of a family idol includes all the members of the family, both male and female, who are interested in the worship of the deity. If consent of the entire family is not proved, certain dealings with the property by some members of the family who happen to be Shebaits, as secular property, would not effect any conversion. Of course, if the transactions are such that the entire family took part in them they may be treated as evidence of consent. If the original Debutter character of the property is established, the fact that the property had been partitioned between the members of the family for the better enjoyment thereof, and that there had been sales and mortgages would not show that there was a consensus to give the property a secular turn”.

Private Temple Becoming Public Temple

In Goswami Shri Mahalaxmi Vahuji Vs. Rannchhoddas Kalidas,[33]it is held that most of the present day Hindu public temples have been founded as public temples, and there are instances of private temples becoming public temples in course of time.It is held further:

“Some of the private temples have acquired great deal of religious reputation either because of the eminence of its founder or because of other circumstances. They have attracted large number of devotees. Gradually in course of time they have become public temples. … If a temple is proved to have originated as a private temple or its origin is unknown or lost in antiquity then there must be proof to show that it is being used as a public temple.” [34]

Once the private character of the temple is established, more strong proof is necessary to show that the temple was subsequently dedicated to the public.[35]

Public Temple Cannotbe Converted to a Private One

A private temple can be converted to a public one. But vice versa is not legally accepted. It is based on the principles – ‘once a dedication, always stands dedicated’ and ‘once a trust always a trust’.[36]

Private Trust: Settlement of Scheme

Section 92 CPC will not apply to a private trust. It does not necessarily mean that the civil court has no jurisdiction to settle a scheme for the management of a private trust. It is a civil right under Section 9 of the Civil Procedure Code and governed entirely by the general law of the land which prescribes the remedies for enforcement of civil rights.If the trustee or Shebait is guilty of mismanagement, waste, wrongful alienation of debutter property or other neglect of duties, a suit can be instituted for remedying these abuses of trust. A suit can also be filed for settlement of a scheme for the purpose of effectively carrying out of the trust. [37]

In Thenappa Chettiar Vs. Karuppan Chettiar[38]and Ramchand Vs. Thakur Janki Ballabhji Maharaj[39] the Supreme Court held that a Civil Court may frame a scheme for the purpose of effectively carrying out the object of the trust, even in the case of a private endowment.[40] In Thenappa Chettiar Vs. Karuppan Chettiar it was observed that a suit could be brought in a civil court by any person interested, like contributors to the trust, for the removal of the trustee and for the proper administration of the endowment, if there was a breach of trust or mismanagement on the part of the trustee.

Admission of Public: Not Readily Inferred, Public Temple

In Babu Bhagvan Din Vs. Gir Har Saroop[41] it is held:

“Dedication to the public is not to be readily inferred when it is known that the temple property was acquired by grant to an individual or family. Such an inference, if made from the fact of user by the public, is hazardous, since it would not in general be consonant with Hindu sentiments or practice that worshippers should be turned away and, as worship generally implies offerings of some kind, it is not to be expected that the manager of a private temple should in all circumstances desire to discourage popularity.”
“Thus the mere fact of the public having been freely admitted to the temple cannot mean that courts should readily infer therefrom dedication to the public.[42] The value of such public user as evidence of dedication depends on the circumstances which give strength to the inference that the user was as of right.” [43]

Revenue Records and Private Ownership

Even if the ownership of property is set-down in revenue records in the name of Deity, it is not treated as inconsistent with its private ownership.[44]

Description of Property as Debutter in a Deed, Not Conclusive

Execution of a deed by itself will not prove dedication. Though it is a piece of evidence, it is not conclusive for determining the dedication. In Paras Nath Thakur Vs. Mohani Dasi Deceased Ana[45] it is held that when a document is solemnly executed and registered, burden is heavy on the person who plead it to be fictitious. [46]

Dedication and Long User and Inference

Long user of income from a land for support of an Idol renders strong corroborative evidence of debutter and that by itself would not lead to an inference that dedication of the property in favour of the public was complete and absolute. Instances of appropriation of property by a person to his own use for a long period will be a good evidence of his right; but, if instances are only recent or few and far between, it leads to inference as to abuse of trust.

In The Commissioner for Hindu Religious and Charitable Endowments, Mysore v. Sri Ratnavarma Heggade, (1977) 1 SCC 525, our Apex Court observed as under:

“Neither a document nor express words are essential for a dedication for a religious or public purpose in our country. Such dedications may be implied from user permitted for public and religious purposes for sufficient length of time. The conduct of those whose property is presumed to be dedicated for a religious or public purpose and other circumstances are taken into account in arriving at the inference of such a dedication.Although religious ceremonies of Sankalpa and Samarpanam are relevant for proving a dedication, yet, they are not indispensable.”

In R.M. Sundaram v. Sri Kayarohanasamy, AIROnLine 2022 SC 1022, it was held that the extinction of private character of a property can be inferred from the circumstances and facts on record, including sufficient length of time, which shows user permitted for religious or public purposes.

Registration of Public Trusts

Various State Public Trusts Acts require registration of all public trusts with the authorities appointed under the said Acts. In New Noble Educational Society v. Chief Commissioner of Income Tax-1, 2023-6 SCC 649, it is held with reference to Andhra Pradesh Charitable and Hindu Religious Institutions and Endowments Act, 1987, as under:

“67. In the event of failure to comply with Section 43(1), or failure to intimate changes in the trust, or for supplying false information, the trustee or other person in charge, can be penalized by Section 43 (11). Section 44 empowers the Commissioner to direct charitable organizations and trusts to comply and register under the Act.
68.The assessees had argued that since they were registered under the Andhra Pradesh Societies Registration Act, 2001 or were trusts duly registered, they could not be compelled to comply with state laws as a condition for consideration of their application as charitable institutions, under Section 10 (23C).
69. This court is of the opinion that the findings in the impugned judgment on this aspect are sound. The requirement of registration of every charitable institution is not optional. Aside from the fact that the consequences of non-registration are penal, which indicates the mandatory nature of the provisions of the A.P. Charities Act, such local laws provide the regulatory framework by which annual accounts, manner of choosing the governing body (in terms of the founding instrument: trust, society, etc.), acquisition and disposal of properties, etc. are constantly monitored. Entry 32 of List II of the Seventh Schedule to the Constitution reads as follows:
- “32. Incorporation, regulation and winding up of corporations, other than those specified in List I, and universities; unincorporated trading, literary, scientific, religious and other societies and associations; cooperative societies.”
By Entry 28, List III of the Seventh Schedule, the states have undoubted power to enact on the subject of charities:
- “28. Charities and charitable institutions, charitable and religious endowments and religious institutions.”

Private Religious Trusts

So far as private religious trusts are concerned, there are no specific statutory enactments to regulate their affairs. Such trusts are governed by the foundational principles upon which they are established, as evidenced by documents, if any; customs and usages;general law of contract and transfer of property, etc; apart from the Common Law of the Land applicable to such trusts.

How to Distinguish a Private Temple from a Public Temple

If the dedication with respect to a temple is proved to be for the benefit of members of a family, that temple will be identified as Family Temple. The facts and circumstances considered by our courts in this regard can be placed under two heads:

1. Decisive characteristics.
2. Indicative or relevant features.

Cardinal Point: Intention of Founder

As stated above, Cardinal Point[47] to solve the question, whether an endowment is private or public, is Intention of Founder – whether specified individuals are to have the right of worship at the shrine, or the general public or specified portion thereof. Similarly, if the founders’ intention is clear from a document[48] of foundation, full importance will be given to it.

Decisive Characteristics:

i. Is public the beneficiaries
- If the beneficiaries are the unascertainable general public or a class thereof, the temple will be identified as the public temple; if the beneficiaries are ascertainable, it will be characterised as private temple.
ii. Is there as-of-right user by public
- As of right entry, worship and offerings by public are held to be conclusive peculiarities of public temple. It may be noted that our courts have repeatedly cautioned that mere provision for unobstructed worship in a temple does not amount to ‘as of right user’; and that the facilities provided for public worship, by itself, will not make a temple with otherwise private character, a public temple.[49]

Indicative or Relevant Features

To determine the aforesaid ‘decisive characteristics’ (with regard to: who the beneficiaries are and as of right user) courts analyse various ‘indicative or relevant features’; and from among the heap of evidence the courts uphold certain features as significant and relevant, in the nature and circumstances of each case, in preference to other features.The supreme Court has alerted inKacha Kanti Seva Samity Vs. Kacha Kanti Devi[50]that the question as to whether a religious endowment is of a private nature or of a public nature has to be decided with reference to the facts proved in each case. It is difficult to lay down any test or tests, which may be of universal application.[51]

Following peculiarities are noticeable in support of public nature of the temple:

1	Worship by large number of devotees.	AIR 2007 SC 1917, AIR 1995 SC 167; 2006 AIR SCW 4622; AIR 1995 SC 167, AIR 1970 SC 2025,
2	Construction of temple by subscription of public.	AIR 1987 SC 2064, AIR 1999 SC 329, AIR 2009 (1) SC 1495, AIR 2007 SC 1917
3	Meeting of temple expenditure from the contribution of public	AIR 2009 (1) SC 1495, AIR 1995 SC 167, AIR 1970 SC 2025, AIR 1999 SC 329
4	Consciousness of management and devotees in treating the temple.	AIR 1924 PC 44, AIR 1987 SC 2064, AIR 1995 SC 167, AIR 1970 SC 2025, AIR 1999 SC 329, AIR 2009 (1) SC 1495
5	Sevas/Poojas, conducted – usually seen in public temples.	AIR 1995 SC 167, AIR 1970 SC 2025, AIR 2009 (1) SC 1495, AIR 2007 SC 1917, AIR 1999 SC 329]
6	Providing food and shelter for Sadhus and public.	AIR 1999 SC 329, AIR 1972 SC 1621, AIR 1980 SC 514
7	Collection boxes for cash and grains from public.	AIR 2009 (1) SC 1495, AIR 2003 SC 1685
8	Participation of public in festivals and ceremonies	AIR 2007 SC 1917, AIR 1999 SC 329
9	Various poojas on payment and issuance of pamphlets showing details as to poojas.	AIR 2007 SC 1917
10	Management – Appointment of Shebaits and managers from strangers to the family of founders.	AIR 1981 SC 798, AIR 1987 SC 2064, AIR 1999 SC 329, AIR 2007 SC 1917, AIR 1995 SC 167, AIR 2003 SC 1685, (2006) 7 SCC 490: 2006 AIR SCW 4622
11	Entries in revenue records as to nature of the temple.	AIR 1999 SC 329, AIR 2009 (1) SC 1495, (2006) 7 SCC 490=2006 AIR SCW 4622, AIR 2007 SC 1917, AIR 1995 SC 167
12	Exemption from taxes and revenues.	AIR 1987 SC 2064
13	Vastness/appearance of temple.	AIR 1960 SC 100, AIR 1987 SC 2064, AIR 1999 SC 329, AIR 2009 (1) SC 1495, AIR 1995 SC 167, AIR 1970 SC 2025, 2007 SC 1917
14	Construction of circular roads for processions.	AIR 1924 PC 44, AIR 1999 SC 329
15	Installation of Idols outside precincts of residential quarters.	AIR 1987 SC 2064, AIR 1995 SC 167, AIR 1999 SC 329, AIR 2009 (1) SC 1495, 1957 SC 133, AIR 2007 SC 1917, (2006) 7 SCC 490:2006 AIR SCW 4622
16	Permanent installation of Deity on pedestal.	AIR 2009 (1) SC 1495; 1957 SC 133
17	Procession taking out Idol.	AIR 2009 (1) SC 1495
18	Right of public to scrutinize the accounts.	AIR 2007 SC 1917, (2006) 7 SCC 490: 2006 AIR SCW 4622
19	Prathishta instead of Utsarga.	AIR 2007 SC 1917
20	Recitals of Geetha, Bhagavath, etc. before large number of devotees.	AIR 1999 SC 329
21	Placing along with permanent deities, minor deities.	AIR 1999 SC 329
22	Existence of a shop in the temple premises for sale of bhog articles.	AIR 1999 SC 329
23	Existence of a tank – it is usually a characteristic of public temple.	AIR 1999 SC 329
24	Existence of Dharmasala for visitors.	AIR 1999 SC 329
25	Cash allowance from treasury in the name of Deity.	AIR 1995 SC 167
	Finite group of identifiable individuals	2020 0 Supreme(SC) 177
	Rock inscription specifically states that the charity of feeding the Brahmins	AIR 2019 SC 4050 (2020) 5 Mad LJ 331(SC)

Following peculiarities support private nature of the temple

1	Family treated temple as a private property	AIR 1940 PC 7, AIR 1999 SC 329, AIR 2003 SC 1685, AIR 1971 SC 2057, AIR 1987 SC 2064, AIR 1981 SC 798
2	Consciousness of managers and devotees	AIR 1972 SC 1716, AIR 1970 SC 2025, AIR 1976 SC 871, AIR 1987 SC 2064, AIR 1999 SC 329; (2011) 13 SCC 431
2	Dedication of extensive family property and no provision made for offering or contribution from public.	AIR 2009 SC 1495; AIR 1987 SC 2064; AIR 2003 SC 1685, AIR 1981 SC 798
3	Provision for family members to reimburse the manager/ Shebait from the family.	AIR 1981 SC 798.
4	Vesting of management in family.	AIR 2003 SC 1685, AIR 1981 SC 798
5	Grant of property not in the name of Idol/temple, but in favour of founder.	AIR 1940 PC 7; AIR 1987 SC 2064, (2006) 7 SCC 490: 2006 AIR SCW 4622
6	Rent profits appropriated by family.	AIR 1940 PC 7, AIR 1999 SC 329

Read Blogs: Common Law of TRUSTS in India

General Principles
Dedication and Vesting
Trustees and Management
Breach of Trust
- Breach of Trust and Removal of Trustees
Suits by or against Trusts
- Suits By or Against Trusts and Trustees
- Remedies Under Sec. 92 CPC
Law on Hindu Religious Endowments
- Philosophy of Idol Worship
Temples, Gurudwaras, Churches and Mosques – General
- Legal Personality of Temples, Gurudwaras, Churches and Mosques
Constitutional Principles
Ayodhya and Sabarimala Disputes
- Ayodhya Disputes: M. Siddiq case – Pragmatic Verdict
- Sabarimala Review Petitions & Reference to 9-Judge Bench
- SABARIMALA REVIEW and Conflict in Findings between Shirur Mutt Case & Durgah Committee Case
General

[1] Quoted in Mahant Ram Saroop Dasji Vs. S P Sahi Special Officer In Charge of Hindu Religious Trust: AIR 1959 SC 942.

[2] AIR 1957 SC 133

[3] Deoki Nandan Vs.Murlidhar: AIR 1957 SC 133 is Quoted and followed in: Radhakanta Deb Vs. Commr. of Hindu Reli. Endts: AIR 1981 SC 798; State of Bihar Vs. Charusila Dasi: AIR 1959 SC 1002; Dhaneshwarbuwa Vs. Charity Commr., AIR 1976 SC 871; Pratapsinhji N Desai Vs. Dy. Chrty. Commr. Gujarat: AIR 1987 SC 2064; Jammi Raja Rao Vs. Anjaneya Swami Temple Valuair 1992 SC 1110; Gedela Satchidananda Vs. Dy. Commr. Endts, A P AIR 2007 SC 1917.

[4] Quoted in State of West Bengal Vs. Sri.Sri Lakshmi Janardan Thakur, (2006) 7SCC 490: 2006 AIR (SCW) 4622; Yelandau Arasikere Deshikendra Sammthana Vs.Gangadharaiah: 2007-5 AIR Kar R 565: 2008-4 Kat LJ 323.

[5]Idol of Sri Renganathaswamy Vs. PK Thoppulan Chettiar:(2020) 5 Mad LJ 331(SC); MJ Thulasiraman Vs. Comr, HR & CE: AIR 2019 SC 4050.

[6] AIR 1957 SC 133. See also: Commr. of Endowments Vs. VittalRao: AIR 2005 SC 454; Bala Shankar MahaShanker Bhattjee Vs. Charity Commr. Gujarat State: AIR 1995 SC 167, Jammi Raja Rao Vs. Anjaneya Swami Temple Valu: AIR 1992 SC 1110, Radhakanta Deb Vs. Commr. of Hindu Religious Endowments Orissa: AIR 1981 SC 798, Commr. For Hindu Religious And Charitable Endowments Mysore Vs. Ratnavarma Hegade: AIR 1977 SC 1848, Dhaneshwarbuwa Guru Purshottambuwa Owner of Shri Vithal Rukhamai Sansthan Vs. Charity Commr. State of Bombay Citations: AIR 1976 SC 871; Mahant Shri Srinivas Ramanuj Das Vs. Surajnarayan Das: AIR 1967 SC 256,

[7] AIR 1957 SC 133.

[8] Deoki Nandan Vs. Murlidhar (AIR 1957 SC 133): Cardinal Point, intention of founder – Followed in State of Bihar Vs. CharusilaDasi AIR 1959 SC 1002; Dhaneshwarbuwa Guru Vs. Char. Commr. Bom., AIR 1976 SC 871 Radhakanta Deb Vs. Commr. of Hindu Reli. Endts, AIR 1981 SC 798 Pratapsinhji N Desai Vs. Dy Char. Commr. Gujt, AIR 1987 SC 2064 Jammi Raja Rao Vs. Anjaneya Swami Temple Valuair, 1992 SC 1110 Gedela Satchid. Murthy Vs. Dy Commr. Endts, A P, AIR 2007 SC 1917.

[9] AIR 1981 SC 798; (quoted in Kuldip Chand Vs. Advocate General to Government of H P: AIR 2003 SC 1685).

[10] AIR 1972 SC 2069

[11] Quoted in Sitaram Agarwal Vs. Subarata Chandra: AIR 2008 SC 952; Controller of Estate Duty West Bengal Vs. Usha Kumar: AIR 1980 SC 312

[12] AIR 1941 PC 38; Quoted in Kuldip Chand Vs. AG to Government of H P: AIR 2003 SC 1685. Terms of the document, important:1951 SCR 1122; Sri. Govindlalji Vs. State of Rajasthan: AIR 1963 SC 1638; R Venugopala Reddiar Vs. Krishnaswamy: AIR 1971 Mad 262; Kuldip Chand Vs. A G to Govt of H P: AIR 2003 SC 1685. Importance of document: Radhakanta Deb Vs. Commr. of Hindu Endts.: AIR 1981 SC 798; Dr. BK Mukherjea, J. on the Hindu Law of Religious and Charitable Trusts: Page 188.

[13](2020) 5 Mad LJ 331(SC)

[14] Hindu Religious Endowments Vs. LakshmindraTirtha Swamiar: AIR 1963 SC 1638

[15]AIR 2000 SC 1421

[16] KM Senthivel Pillai Vs. Kulandaivel Pillai: 1970-2 MADLJ 555; P. Jayader Vs. Thiruneelakanta Nadar Chinnaneela Nadar: ILR 1966-2 Mad 92

[17] Quoted in: Commr. of Endowments Vs. Sri Radhakanta Deb: 1969-35 CutLT 992.

[18] AIR 2003 SC 1685.

[19] AIR 1979 SC 1682.

[20] See: Narayanan Vs. Nil: AIR 2005 Mad. 17; M Ashok Kumar Vs. N Janarthana: 2013(7) Mad. LJ 273; T C Chacko Vs. Annamma: AIR 1994 Ker. 107. Varghese Vs. St. Peters and Pauls Syrian Orthodox Church: (2017) 15 SCC 333

[21] 1998 AIR (SCW) 3945: (1998) 5 SCC 588. See also: Pramatha Nath Vs. Pradyumna Kumar, (1925) 52 IA 245; Profulla Chorone Requitte Vs. Satya Chorone, AIR 1979 SC 1682

[22]AIR 1956 Cal. 308

[23] AIR 1974 Cal 126. Appeal Judgment: Kali Kinkor Ganguly Vs. Panna Banerjee AIR 1974 SC 1932

[24] Karumankavu Devaswon Kshethram Trust Board Members Vs. Damodaran Nair: ILR 2008 (1) Ker 742; Rajasekharan Naicker Vs. Govindankutty 1983 Ker LJ 506. Kunhanandan Nambiar Vs. Kunhappa Nambiar: 1961 Ker LJ 1141

[25]Paramasivam Vs. SV Ravikumar: 1998-1 LW 37

[26]AIR 1951 Ori. 60

[27]AIR 1933 Cal. 286; ILR 60 Cal. 54

[28] AIR 1979 SC 1682.

[29] Quoted in Sri Marthanda Varma Vs State of Kerala, 2020 Supreme (SC) 444.

[30]AIR 1951 Ori. 60

[31]AIR 1956 Cal. 308

[32] 4 IndApp52

[33] AIR 1970 SC 2025.

[34] See also: Mahadeva Vs. Commr, H. R. and C. E 1956 (1) MLJ 309; Marua Dei Alias Maku Dei Vs. Muralidhar Nanda AIR 1999 SC 329; Teki Venkata Ratnam Vs. Commr. of Endowment AIR 2001 SC 2436.

[35] See: Commr. of HR&CE Admn Dept. Vs. N Sundaraswami Gounder, (2001) 2 Mad LJ 737; Chennammal Vs. Commr. of HR&CE, (1973) 2 Mad LJ 442; TD Gopalan Vs. Commr of Hindu R & C Endts, AIR 1972 SC 1716

[36] Radhakanta Deb Vs. Commr of Hindu Religious Endts: AIR 1981 SC 798; Bhagwan Din Vs. Gir Har Saroop: AIR 1940 PC 7; Varghese Vs. St. Peters and Pauls Syrian Orthodox Church: (2017) 15 SCC 333.

[37] Cheriyathu Vs. Parameswaran Namboodiripad: 1953 Ker LT 125; Also 1953 Ker LT 117; AIR 1922 P. C. 253: Pramatha Nath Mullick v. Pradyumna Kumar Mullick: AIR 1925 PC 139. Also see: ManoharMukherji Vs. Raja Peary Mohan Mukherji:24 CWN 478; Bimal Krishna Vs. Iswar Radha Balla: 1937 Cal 338; Rajasekharan Naicker Vs. Govindankutty 1983 KerLJ 506.

[38]AIR 1968 SC 915. Followed in: Sujan Mohinder Charitable Trust VS MohinderKaur: 2019 0 Supreme(Del) 281; Radhamohan Dev Vs.Nabakishore Naik: AIR 1979 Ori 181. Brindaban Vs. Ram Lakhan Lalji: AIR 1975 All 255.

[39]AIR 1970 SC 532

[40]Ramchand Vs. Thakur Janki Ballabhji Maharaj: AIR 1970 SC 532

[41] AIR 1940 PC 7.

[42] See also: Jadunath Roy Vs. Parameswar Mullick: (AIR 1940 P C 11), Sri. GovindlaljiVs. State of Rajasthan: (AIR 1963 SC 1638); Pratapsinhji N. Desai Vs. Deputy Charity Commr. Gujarat: Mundacheri Koman Vs. Thachangat Puthan Vittil Achuthan Nair: (AIR 1934 PC 230), Babu Bhagwan Din Vs. Gir Har Saroop: (AIR 1940 PC 7) The Bihar State Board of Religious Trust Vs. Mahanth Sri. Biseshwar Das: (AIR 1971 SC 2057), Shri Vallabharaya Swami Varu Vs. Deevi Hanumancharyulu: (AIR 1979 SC 1147).

[43] See also: Bihar State Board Religious Trust Patna Vs. Mahant Sri Biseshwar Das (AIR 1971 SC 2057); Radhakanta Deb Vs. Commr. of Hindu Religious Endts: AIR 1981 SC 798; Marua Dei Alias Maku Dei Vs. Muralidhar Nanda: AIR 1999 SC 329; Kuldip Chand Vs. A G to Government of H P: AIR 2003 SC 1685; Gurpur Guni V N Prabhu Vs. B. C. Achia: AIR 1977 SC 1192.

[44] 1964 KLT 1034; relied on in 2014 (3) KLT 497, 2013 (3) KLT 1017.

[45] AIR 1959 SC 1204

[46] ILR 18 Cal. 10; ILR 42 All. 295.

[47] DeokiNandan Vs. Murlidhar: AIR 1957 SC 133.

[48]Radhakanta Deb Vs. Commr. of Hindu Reli. Endts Orissa: AIR 1981 SC 798.

[49] Radhakanta Deb Vs. Commr. of Hindu Reli. Endts Orissa: AIR 1981 SC 798; GoswamiShri Mahalaxmi Vahuji Vs. Ranchhoddas: AIR 1970 SC 2025; Pratapsinhji N Desai Vs. Dy Charity Commr. Guj, AIR 1987 SC 2064; AIR 1995 SC 167; Marua Dei Alias Maku Dei Vs. Muralidhar Nanda: AIR 1999 SC 329; Kuldip Chand Vs. A G to Government of H P: AIR 2003 SC 1685; Gedela SatchidanandaVs. Dy Commr. Endwts AP: AIR 2007 SC 1917. As of right user: Gedela Satchidananda Vs. D Commr. EndwtsDeptt AP: AIR 2007 SC 1917; Radhakanta Deb Vs. Commr. of Hindu Rel. Endowts. Orissa: AIR 1981 SC 798; Bihar St. Brd. Religious Trust Vs. Mahant Biseshwar Das: AIR 1971 SC 2057; Marua Dei Alias Maku Dei Vs. Muralidhar Nanda: AIR 1999 SC 329; Kuldip Chand Vs. A G to Government of H P: AIR 2003 SC 1685; Gurpur Guni Venkataraya NarashimaVs. B. C. Achia: AIR 1977 SC 1192.

[50] AIR 2004 SC 608

[51]See also: Radhakanta Deb Vs. Commr. of Hindu Religious Endts: AIR 1981 SC 798; Kuldip Chand Vs. A G to Government of H P: AIR 2003 SC 1685; T D Gopalan Vs. Commr. of Hindu R & C Endts AIR 1972 SC 1716.

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EFFECT OF MARKING DOCUMENTS WITHOUT OBJECTION – Do Contents Stand Proved?

*^{Taken from the blog:}^{Admission of Documents in Evidence, on ‘Admission’}

Saji Koduvath, Advocate, Kottayam.

Abstract

              •➧ Order XIII Rule 3 CPC speaks as to rejection of irrelevant or inadmissible documents. Whenever a relevant and admissible document is tendered in evidence, otherwise than through its executant but through a person who can vouchsafe its authenticity, the Courts in India exhibit it ‘subject to proof’ or ‘subject to objection’.
              •➧ Sec. 56, 57 and 58, Evidence Act lay down that facts admitted need not be proved. Because, the court can hold ‘substantive‘ evidence alone, court does not recognise documents used for corroboration, refreshing memory and contradicting witnesses as authoritative evidence
             •➧ Effect of marking a documents, without formal proof, on admission, or without objection, is a matter of controversy.
              •➧ Order XIII Rule 3 CPC speaks as to rejection of irrelevant or inadmissible documents alone; and it is not applicable to a document which can be received in evidence ‘subject to objection/proof’ on the concession or admission of the opposite side.
              •➧ Where no objection (to the opposite side) to marking a document and the court sees deficiency, it should bring notice of it to counsel.

Introduction

What is the effect of marking documents without objection – Do contents stand proved?

Several views exist in this matter.

First view (a) Proof (Contents and ‘Truth of its 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; (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 N.C.T. of Delhi) reported in [2023] 4 SCC 731: If no objection as to its mode of proof , 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). (Note: It may not be legitimate to apply this principle literatim)	M. Chandra v. M. Thangamuthu, 2010-9 SCC 712 (Foundational evidence as to secondary evidence essential); LIC v. Ram Pal Singh Bisen: 2010-4 SCC 491 (Filing of the Inquiry Report or the evidence adduced during the domestic enquiry); Birad Mal Singhvi v. Anand Purohitb: 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 SC 3796.

Marked Without Objection – its ‘Contents’ stand Proved

When a document is marked without Objection Proof of execution is enough; and no separate proof is needed: Admission or exhibiting of documents in evidence and proving the same before the court are two different processes. In certain cases, as comes out from Sec. 56, 57 and 58 of the Evidence Act, when a document is admitted, separate proof need not be warranted. Similarly, separate proof may not be required when presumptions can be invoked, also (e.g. document in ordinary course of business, a letter obtained in reply).

Secondary-evidence: Admission of contents of documents arises in two ways:

documents in original
(by way) of secondary evidence.

Factual foundation to give secondary evidence must be established: The party has to lay down the factual foundation to establish the right to give secondary evidence where the original document cannot be produced [Rakesh MohindraVs. Anita Beri: 2015AIR(SCW) 6271].

Secondary-evidence – Marked Without Objection: 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 his objection ((if he has)) at the time of admission of such documents. In case, objection is not raised at that point of time, he is precluded from raising it at a belated stage. It stands waived. [Kaliya Vs. State of MP: 2013-10 SCC 758]

‘Contents’ stand proved: When a document is marked without objection, its ‘contents’ stand proved. See: RVE Venkatachala Gounder Vs. Arulmigu Viswesaraswami: AIR 2003 SC 4548. See also:

Narbada Devi Vs. Birendra Kumar: (2003) 8 SCC 745
Dayamati Bai Vs. K.M. Shaffi :2004 SC 4082
Oriental Insurance Co Vs. Premlata: (2007) 8 SCC 575
Thimmappa Rai v. Ramanna Rai,(2007) 14 SCC 63

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 proof of 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 proof of 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.”

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.”

2. MERE MARKING, DOES NOT PROVE THE CONTENTS – NOT AN UNQUALIFIED PROPOSITION

It is disgraceful that several courts in India apply this proposition (Mere Marking Does Not Prove the Contents) ineptly.

This proposition is not attracted–

when a document is marked on ‘admission’ by the opposite side.

This proposition is attracted–

when it is evident that the document is marked only for ‘identification‘, or
when the objection raised by the other side is sustained and the document is marked ‘subject to proof/objection’.
when the document is marked through an incompetent witness and not proved through a competent witness (in spite of the objection in this regard), afterwards;
when it has come out in cross examination of the witness through whom it is marked (by other evidence) that it is not proved ‘in accordance with law‘.

Each Case under this Head Requires Distinct Consideration

As this proposition (Mere Marking Does Not Prove the Contents) is not to be applied “literatim”, each case (which referred to this proposition) requires distinct consideration. (Some of these decisions mentioned this proposition, merely to show that such an argument was placed before it; but those decisions were quoted (subsequently) by some Courts as if those earlier decisions laid down a ‘ratio decidendi’.)

Read blog: Ratio Decidendi (alone) Forms a Precedent; Not the Final Order or Conclusion

Following are the often-cited cases on this subject.

The Proposition -Mere Marking Does Not Prove the Contents – was NOT applied in the following decisions.

Decision	Did the Documents Mark without Proper Proof was accepted in evidence?	Reason for NOT Appling the Proposition Mere Marking Does Not Prove the Contents
Narbada Devi Gupta v. Birendra Kumar Jaiswal, 2003-8 SCC 745	Yes. The rent receipts* were received in evidence. (without formal proof)*	The rent receipts were ‘not disputed’* by the other side.*
Kaliya v. State of Madhya Pradesh, 2013-10 SCC 758	Yes. The secondary evidence* of dying declaration produced in this case was accepted by the Court.*	Secondary evidence was adduced with foundational evidence (for producing copy; not original)

The Proposition -Mere Marking Does Not Prove the Contents – was applied in the following decisions; but, not unreservedly.

Decision	Did the proposition – Mere Marking Does Not Prove the Contents – unreservedly apply?	Reason for NOT applying the Proposition Mere Marking Does Not Prove Contents, unreservedly
Ramji Dayawala v. Invest Import: AIR 1981 SC 2085	No. Truth of contents of a letter and two telegrams were not taken. (though marked)	Truth of the facts in the document was “in issue“
M. Chandra v. M. Thangamuthu, 2010-9 SCC 712	No. Validity and Genuineness of the Photocopy (of the Caste Certificate) was not* accepted (though marked)*	Validity and Genuineness of the Caste Certificate was very much in question
H. Siddiqui v. A. Ramalingam, (2011) 4 SCC 240	No. *Contents* of the *Photocopy* was not* received as proof (though marked)*	*Photocopy* was shown to the witness during cross-examination alone, and Signature alone was admitted by the witness.
Tarajee Khimchand v. Yelamarti Satyam, AIR 1971 SC 1865	No. Accounts of the Plaintiff was not received as proof (though marked)	The accounts of the Plaintiff would not be proved by itself

(a) Narbada Devi Gupta v. Birendra Kumar Jaiswal, 2003-8 SCC 745

[The proposition (Mere Marking Does Not Prove the Contents) was neither attracted nor applied in this case, for – the rent receipts were taken as proved, for, it was ‘not disputed’ by the other side.]

It is held in Narbada Devi Gupta v. Birendra Kumar Jaiswal, 2003-8 SCC 745 as under:

“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”.

Narbada Devi Gupta v. Birendra Kumar Jaiswal (supra) continued as under:

“The plaintiff did not dispute his signatures on the back of them. There was, therefore, no further burden of proof on the defendant to lead additional evidence in proof of the writing on the rent receipts and its due execution by the deceased landlady.”

Note

“The plaintiff did not dispute his signatures on the back of them. There was, therefore, no further burden of proof on the defendant to lead additional evidence in proof of the writing on the rent receipts and its due execution by the deceased landlady.”

(b) Kaliya v. State of Madhya Pradesh, 2013-10 SCC 758

[The proposition (Mere Marking Does Not Prove the Contents) was neither attracted nor applied in this case, for – the secondary evidence of dying declaration produced in this case (with foundational evidence) was accepted by the Court]

In this case the Courts upheld the acceptance of the secondary evidence (of the dying declaration). Our Apex Court held as under-

“In the instant case, the Trial Court had granted permission to lead secondary evidence and the same had been adduced strictly in accordance with law and accepted by the courts below.”

It is only pointed out in this decision 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 the proof, which is otherwise required to be done in accordance with law.
- (Vide: The Roman Catholic Mission v. The State, AIR 1966 SC 1457;
- Marwari Khumhar v. Bhagwanpuri Guru Ganeshpuri, AIR 2000 SC 2629;
- RVE Venkatachala Gounder v. Arulmigu, AIR 2003 SC 4548;
- Smt. Dayamathi Bai v. K.M. Shaffi, AIR 2004 SC 4082; and
- LIC of India v. Rampal Singh Bisen,2010-4 SCC 491).”

(c) Ramji Dayawala v. Invest Import: AIR 1981 SC 2085

[The proposition (Mere Marking Does Not Prove the Contents) was neither attracted nor applied in this case, for – Truth of the facts in the document was “in issue“]

It is held as under:

“Obviously, in these circumstances the Privy Council observed that the fact that a letter and two telegrams were sent by itself would not prove the truth of the contents of the letter and, therefore, the contents of the letter bearing on the question of lack of testamentary capacity would not be substantive evidence. Undoubtedly, mere proof of the handwriting of a document would not tantamount to proof of all the contents or the facts stated in the document. 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 vouch safe for the truth of the facts in issue.”
_{Note: The aforequoted portion itself will show that the proposition – mere proof of the handwriting would not tantamount to proof of contents – is not absolute. It is attracted to this case, because the truth of the facts was “in issue“.}

(d) M. Chandra v. M. Thangamuthu, 2010-9 SCC 712

[The proposition (Mere Marking Does Not Prove the Contents) was attracted in this case, for – the Validity and Genuineness of the Photocopy (of the Caste Certificate) was very much in question]

In this decision it was held:

“The High Court while considering this issue has noticed that the appellant failed to produce the original certificate issued by Arya Samaj, Madurai and further has not examined Santnakumar, who was supposed to have received and retained the original certificate issued by the Arya Samaj and the original records have not been summoned from Arya Samaj and no steps have been taken to summon the responsible person from Arya Samaj to prove that the appellant underwent conversion. Therefore, the claim made by her about her reconversion cannot be accepted. We do not agree with the reasoning of the High Court. It is true that a party who wishes to rely upon the contents of a document must adduce primary evidence of the contents, and only in the exceptional cases will secondary evidence be admissible. However, if secondary evidence is admissible, it may be adduced in any form in which it may be available, whether by production of a copy, duplicate copy of a copy, by oral evidence of the contents or in another form. The secondary evidence must be authenticated by foundational evidence that the alleged copy is in fact a true copy of the original.”
_{Note: It was an appeal from an Election petition and the Supreme Court allowed the appeal. The}_{validity and genuineness of the Certificate was very much in question.}_{Therefore, the principles in RVE Venkatachala Gounder v. Arulmigu, AIR 2003 SC 4548}_{(where the secondary evidence was marked without objection)}_{, was not attracted to this case (and it was not referred to also)}_.
Principle of law laid down in M. Chandra v. M. Thangamuthu is followed in Rakesh Mohindra v. Anita Beri, 2016 -16 SCC 483.

(e) H. Siddiqui v. A. Ramalingam, (2011) 4 SCC 240

[The proposition (Mere Marking Does Not Prove the Contents) was applied in this case, for – the Photocopy was shown to the witness during cross-examination alone, and Signature alone was admitted by the witness.]

It was held that the power of attorney was not proved in accordance with the terms of Sec. 65 of the Evidence Act, for the following –

The power of attorney had not been proved.
Original had never been filed before the Trial Court.
Only a photocopy of the same was shown to the respondent during cross-examination.
The respondent has only admitted his signature thereon.
He had never admitted its contents or genuineness.

It is held in H. Siddiqui v. A. Ramalingam, 2011-4 SCC 240, as under:

“In our humble opinion, the Trial Court could not proceed in such an unwarranted manner for the reason that the respondent had merely admitted his signature on the photocopy of the power of attorney and did not admit the contents thereof.”

It is added:

“More so, the court should have borne in mind that admissibility of a document or contents thereof may not necessary lead to drawing any inference unless the contents thereof have some probative value.”
Note: Probative value is proof-value. A registered deed with a doubtful derivation—such as one claiming title based on long use—has little probative value..

(f) Tarajee Khimchand v. Yelamarti Satyam, AIR 1971 SC 1865.

[The proposition (Mere Marking Does Not Prove the Contents) was applied in this case, for – the accounts of the Plaintiff would not be proved by itself]

It is held that the documents do not prove themselves. It is also observed in this decision as under:

“15. The plaintiffs wanted to rely on Exs. A-12 and A-13, the day book and the ledger respectively. The plaintiffs did not prove these books. There is no reference to these books in the judgments. The mere marking of an exhibit does not dispense with the proof of documents. It is common place to say that the negative cannot be proved. The proof of the plaintiffs’ books of account became important because the plaintiffs’ accounts were impeached and falsified by the defendants’ case of larger payments than those admitted by the plaintiffs. The irresistible inference arises that the plaintiffs’ books would not have supported the plaintiffs.” (Quoted in: Vinod Jaswantray Vyas v. State of Gujarat, 2024-7 SCR 365.)

Other Important Decisions –

1. LIC v. Ram Pal Singh Bisen: 2010-4 SCC 491 (Filing of the Inquiry Report or the evidence adduced during the domestic enquiry);
2. Birad Mal Singhvi v. Anand Purohith: 1988 (Supp) SCC 604 (document on date of birth).
3. Nandkishore Lalbhai Mehta v. New Era Fabrics, AIR 2015 SC 3796 (It is observed that mere marking as exhibit and identification of executant’s signature by one of witnesses does not prove contents of a document).
4. Vinod Jaswantray Vyas v. State of Gujarat, 2024-7 SCR 365 (mere marking of exhibit – letter – without the expert deposing about the opinion given therein would not dispense with the proof of contents).

Marking Without Objection Sufficient Proof or Not Depends on Facts of the Case

In Cheni Ram Bora v. Arun Chandra Bora, 2021-1 GauLT 496, it is pointed out as regards marking a document on admission, as under:

“There may be a case where mere marking of the document or admission of the document in evidence may be sufficient and independent proof of the contents or execution may not be necessary. Because when a document is properly admitted, it’s contents are also admitted in evidence, though contents may not be conclusive evidence [Sheo Prasad Chouhan Vs. Jayradha Das 2015 (5) GLT 347]. For example – when execution of the document or it’s contents are not disputed, independent proof of execution or contents may not be necessary. Similarly, in a different situation, when the execution of the document is disputed, admission of the document or mere marking the document as exhibit would not suffice, it’s execution and contents also has to be proved independently.”

In Tahsildar, Land Acquisition, Visakhapatnam v. P. Narasing Rao, 1985-2 ALT 492; 1985-1 ALT(NRC) 42; 1985-1 APLJ 99 , it is observed as under:

“Of course in a given case where it was conceded or admitted that the price paid under those transactions under the sale deeds marked or the actual price paid, to that extent it can be taken as an admission under Sec. 17 of the Evidence Act and the need to examine either the vendor or the vendee would be redundant and the document cannot be rejected in such circumstances. But when there is no such admission mere marking the document does not amount to prove that the consideration recited under that document is the actual consideration paid thereunder.”

Objection to be Raised When document is admitted

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 R.V.E. 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.

In Re: To Issue Certain Guidelines Regarding Inadequacies And Deficiencies In Criminal Trials v. State of Andhra Pradesh, 2021-10 SCC 598, overruled (ruled – stood modified) Bipin Shantilal Panchal v. State of Gujarat, AIR 2001 SC 1158. It is directed as under:

“The presiding officer therefore, should decide objections to questions, during the course of the proceeding, or failing it at the end of the deposition of the concerned witness.”

It appears that the decision taken by a Magistrate to mark the document – “subject to objection” is improper; nevertheless, marking – “subject to proof” is a permissible action, for it is a “decision” ruled-down in In Re: To Issue Certain Guidelines Regarding Inadequacies And Deficiencies In Criminal Trials v. State of Andhra Pradesh, 2021-10 SCC 598.

3. IF ‘TRUTH’ IS IN ISSUE- Mere Marking Not Amounts to ‘Waiver’

The fundamental principles as to proof of execution a document is that the 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’ (Narbada Devi Gupta v. Birendra Kumar Jaiswal, 2003-8 SCC 745). But, in the facts and circumstances of each case, the court is at liberty to invoke its wisdom and fill certain gaps in evidence by applying ‘presumption’.

It is legitimate to say that this requirement as to proof of ‘truth’ is independent from inviting ‘proof of signature and handwriting’ in Sec. 67 to 71 of the Evidence Act. This proposition is clear from Sec. 67, which 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.”

Though proof of execution (dealt with in Sec. 67 to 71) is independent from proof as to ‘truth’ of contents of a document, proof as to ‘truth’ can be presumed by the court, in most cases, on ‘proof of execution’. It is more so, when a document is admitted without objection. Proof as to ‘truth’ is essential if ‘truth’ is in issue, or in dispute. It rarely occurs.

If ‘TRUTH’ is in issue, or in dispute, marking a document without objection, or mere proof of handwriting or execution, by itself, need not absolve the duty to prove the truth as to the contents of the documents. (Ramji Dayawala Vs. Invest Import, AIR 1981 SC 2085; Achuthan Pillai vs Marikar (Motors) Ltd., AIR 1983 Ker 81; Suresh v. Tobin, 2013-1 KerLT 293). Court has a duty to see that the statement of a witness gets independent corroboration, direct or circumstantial, in proper cases (Ahalya Bariha v. Chhelia Padhan, 1992 Cri.LJ 493).

In Ramji Dayawala Vs. 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.”

Admitted Expert-report u/s. 294 CrPC; Right to cross-examine not extinguished

In Babulal v. State of Madhya Pradesh, 2006-3 MPHT 286, it is pointed out that the right of the accused to cross-examine the expert on his report is not got extinguished merely because he has admitted the report under Section 294 of the CrPC.

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

Yes.

It will not be legitimate if the court does not even exhibit a relevant document which can be received in evidence on the concession or admission of the opposite side.

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

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

In this premises the Supreme Court held as under:

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

4. Admission of Contents – May Dispense with Proof; But Probative Value may be Less or Nil

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

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 Vs. Ram Pal Singh Bisen: 2010-4 SCC 491 (Filing of the Inquiry Report or the evidence adduced during the domestic enquiry); M. Chandra Vs. M. Thangamuthu. Nandkishore Lalbhai Mehta Vs. New Era Fabrics: AIR 2015 SC 3796; Birad Mal SinghviVs. 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.

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

“The court is obliged to examine the probative value of documents produced in court or their contents and decide the question of admissibility of a document in secondary evidence.”

[Note: Further held: “In case, an objection is not raised at that point of time, it is precluded from being raised at a belated stage.”]

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

In Kalyan Singh, Vs. 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.”

Document More Than 30 Years Old

Sec. 90 CPC, as regards 30-year-documents, in the main, speaks about two things:

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.

But, if the document is a public document presumption (as to correctness) under Section 114(e) can be invoked. See: Iqbal Basith v. N Subbalakshmi, (2021) 2 SCC 718.

Under Sec. 90, Presumption of Genuineness alone Established

Under Sec. 90, not truth of contents, but, only presumption of genuineness of a document (ie. existence or handwriting), is drawn. Therefore, besides TRUTH, the contents of the documents also have to be proved by cogent evidence.

In Lakhi Baruah v. Padma Kanta Kalita, (1996) 8 SCC 357, AIR 1996 SC 1253, with regard to admissibility in evidence of thirty years old documents produced from proper custody, it was observed as under:

“15. Section 90 of the Evidence Act, 1872 is founded on necessity and convenience because it is extremely difficult and sometimes not possible to lead evidence to prove handwriting, signature or execution of old documents after lapse of thirty years. In order to obviate such difficulties or improbabilities to prove execution of an old document, Section 90 has been incorporated in the Evidence Act, 1872 which does away with the strict rule of proof of private documents. Presumption of genuineness may be raised if the documents in question is produced from proper custody. It is, however, the discretion of the court to accept the presumption flowing from Section 90. There is, however, no manner of doubt that judicial discretion under Section 90 should not be exercised arbitrarily and not being informed by reasons.”

Read Blog: 30 Years Old Documents and Presumption of Truth of Contents, under Sec. 90 Evidence Act

5. Court should 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 shows that the court has jurisdiction to require the party concerned to prove that document. (Sec. 58 of Evidence Act and Order XII, Rule 2A Proviso of the CPC and Sec. 294 of the CrPC).

Inasmuch as (a) mere marking of a document on admission will not amount to proof, or evidence of the contents of the document or its truth; (b) the probative value of a document ‘marked without objection’ may be low or nil, for want of proper proof; and (c) there is a formal defect to the document for it is a secondary evidence because it is produced without adducing ‘foundational evidence’, it is legitimate to say that before taking an adverse stance as to proof in this count, the court should give an opportunity to the party who relies on the document to cure the deficiency.

Defect for not producing a proper power of attorney being curable, in Haryana State Coop. Supply and Marketing Federation Ltd. v. Jayam Textiles, 2014 AIR SC 1926 (a case under Section 138 Negotiable instruments Act), the Apex Court gave opportunity to the petitioner to produce the authorization of Board of Directors. It is observed that the in Raj Narian v. Indira Nehru Gandhi, (1972) 3 SCC 850 it was held that the rules of pleadings are intended as aids for a fair trial and for reaching a just decision. It is further pointed out that this principle is reiterated in following cases also:

F.A. Sapa v. Singora, (1991) 3 SCC 375;
H.D. Revanna v. G. Puttaswamy Gowda, (1999) 2 SCC 217;
V.S. Achuthanandan v. P.J. Francis, (1999) 3 SCC 737;
Mahendra Pal v. Ram Dass Malanger, (2000) 1 SCC 261;
Virender Nath Gautam v. Satpal Singh, (2007) 3 SCC 617; (observed that facta probanda (material facts) are to be set out in the pleadings and facta probantia (particulars or evidence) need not be set out in the pleadings);
Sardar Harcharan Singh Brar v. Sukh Darshan Singh, (2004) 11 SCC 196
(held that defective verification or affidavit is curable);
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

Courts to admit documents Without Proof

Section 163 of the Evidence Act, reads as under:

163. Giving, as evidence, of document called for and produced on notice: When a party calls for a document which he has given the other party notice to produce, and such document is produced and inspected by the party calling for its production, he is bound to give it as evidence if the party producing it requires him to do so.

It is observed in Government of Bengal v. Santiram Mondal, AIR 1930 Cal 370, with respect to a document used under Sec. 163, as under:

“The further contention is that if they are to be admitted, they cannot be put in or at any rate used without proof. But the section itself says that the party calling for it is bound to give it as evidence if required to do so, and that certainly means that it goes in as a record of the particular proceeding and that it can be looked at to see what it includes or omits.”

It is noteworthy that Order XI rule 15 and Order XII rule 8 are the provisions in the CPC to give notice to the other party to produce documents (for ‘inspection’ and ‘show court’, respectively). In Government of Bengal v. Santiram Mondal, AIR 1930 Cal 370, and R v. Makhan, AIR 1940 Cal 167 it was observed that Section 163 of the Evidence Act applies to Criminal Proceedings also.

Impounding of Documents – When Produced or When Exhibited

In Yogesh Kumar Sikka v. Monika (2019) the P & H High Court held as under:

“12. Court cannot say that it would impound the document only when the document is tendered in evidence for marking. There may be instances where duty and penalty payable may be very high and the party may not choose to rely upon such insufficiently stamped document in order to avoid stamp duty and penalty. In such circumstances, it would result in loss of revenue to the exchequer. The power of impounding a document is to collect stamp duty and penalty whenever there is an escape of duty. Therefore, when it is brought to the notice of the Court that a document is insufficiently stamped, the Court exercising its power under S. 33 of the Act has to pass an order at the first instance for impounding the document. Though there is a discretion vested in the Court to exercise powers under S. 33 and 34 of the Act, no Court can hold that it would wait till the document is tendered in evidence. In such circumstances, there may be chances of loss of revenue to the exchequer.”

UNREGISTERED DOCUMENTS – Effect of Marking Without Objection

Under section 49 of the Registration Act, if a document required to be registered is not registered, it is not admissible in evidence ; and such unregistered document can only be used as an evidence of collateral purpose.

With respect to Unregistered (Necessarily Registrable) Documents it is held by the Apex Court in K.B. Saha and Sons Private Limited v. Development Consultant Ltd, (2008) 8 SCC 564: AIR 2008 SC (Supp) 850, as under:

“34. From the principles laid down in the various decisions of this Court and the High Courts, as referred to here-in-above, it is evident that :
A document required to be registered is not admissible into evidence under section 49 of the Registration Act.
Such unregistered document can however be used as an evidence of collateral purpose as provided in the Proviso to section 49 of the Registration Act. ….”

In the light of the Supreme Court decision in K.B. Saha and Sons Private Limited , it appears that the observation of the Karnataka High Court in Nanda Behera v. Akhsaya Kumar Behera, 2017AIR (CC) 1893, that once the Court, rightly or wrongly, decides to admit the documents in evidence, so far as the parties are concerned, the matter is closed, is not applicable to unregistered (compulsorily registrable) documents.

However, the Calcutta High Court in Dipak Kumar Singh v. Park Street Properties (P) Limited, AIR 2014 Cal 167, distinguished K.B. Saha & Sons Private Limited, (2008) 8 SCC 564, and other decisions saying that ‘the question of admissibility of a document, which had been admitted in evidence, was not taken up for consideration’ in those decisions. The High Court relied on Javer Chand v. Pukhraj Surana, AIR 1961 SC 1655 (question as to admissibility on the ground that it has not been stamped), which held that once a document had been marked as an exhibit in a case and the trial had proceeded all along on the footing that the document was an exhibit in the case and had been used by the parties in examination and cross-examination of their witnesses, it was not open either to the trial court itself or to a court of appeal or revision to go behind that order.

The other decisions referred to and distinguished in Dipak Kumar Singh v. Park Street Properties (P) Limited are the following: Ram Kumar Das v. Jagdish Chandra Deo, Dhabal Deb: AIR 1952 SC 23, Satish Chand Makhan v. Govardhan Das Byas: (1984) 1 SCC 369, Anthony v. K.C. Ittoop: (2000) 6 SCC 394, Surya Kumar Manji v. Trilochan Nath: AIR 1955 Cal 495, Kunju Kesavan v. M.M. Philip: AIR 1964 SC 164, Prasanta Ghosh v. Pushkar Kumar Ash: 2006 (2) CHN 277.

INSUFFICIENTLY STAMPED DOCUMENTS

Instruments not duly stamped, inadmissible

Sec. 35, Indian Stamp Act reads as under:

“35. Instruments not duly stamped inadmissible in evidence, etc.–No instrument chargeable with duty shall be admitted in evidence for any purpose by any person having by law or consent of parties authority to receive evidence, or shall be acted upon, registered or authenticated by any such person or by any public officer, unless such instrument is duly stamped:
Provided that—(a) any such instrumentshall, be admitted in evidence on payment of the duty with which the same is chargeable, or, in the case of an instrument insufficiently stamped, of the amount required to make up such duty, together with a penalty of five rupees, or, when ten times the amount of the proper duty or deficient portion thereof exceeds five rupees, of a sum equal to ten times such duty or portion;
(b) where any person from whom a stamped receipt could have been demanded, has given an unstamped receipt and such receipt, if stamped, would be admissible in evidence against him, then such receipt shall be admitted in evidence against him, then such receipt shall be admitted in evidence against him on payment of a penalty of one rupee by the person tendering it;
(c) where a contract or agreement of any kind is effected by correspondence consisting of two or more letters and any one of the letters bears the proper stamp, the contract or agreement shall be deemed to be duly stamped;
(d) nothing herein contained shall prevent the admission of any instrument in evidence in any proceeding in a Criminal Court, other than a proceeding under Chapter XII or Chapter XXXVI of the Code of Criminal Procedure, 1898 (5 of 1898);
(e) nothing herein contained shall prevent the admission of any instrument in any Court when such instrument has been executed by or on behalf of theGovernment or where it bears the certificate of the Collector as provided by section 32 or any other provision of this Act.

Unstamped document cannot be looked at even for any collateral purpose

Privy Council in Ram Rattan v. Parma Nath, AIR 1946 PC 51, held that section 35 of the Stamp Act prohibited the unstamped (or inadequately stamped) document from being looked at even for any collateral purpose, as it enacts that no instrument chargeable with duty shall be admitted in evidence ‘for any purpose’. The unstamped (or inadequately stamped) document becomes admissible on payment of penalty under Stamp Act or on payment of the stamp duty after impounding.

In Omprakash v. Laxminarayan, (2014) 1 SCC 618, the Apex Court observed as under:

“From a plain reading of the aforesaid provision (S. 35 of the Stamp Act), it is evident that an authority to receive evidence shall not admit any instrument unless it is duly stamped. An instrument not duly stamped shall be admitted in evidence on payment of the duty with which the same is chargeable or in the case of an instrument insufficiently stamped, of the amount required to make up such duty together with penalty. As we have observed earlier, the deed of agreement having been insufficiently stamped, the same was inadmissible in evidence. The court being an authority to receive a document in evidence to give effect thereto, the agreement to sell with possession is an instrument which requires payment of the stamp duty applicable to a deed of conveyance. Duty as required, has not been paid and, hence, the trial court rightly held the same to be inadmissible in evidence.”

The Apex Court upheld the observation of the MP High Court in Writ Petition No. 6464 of 2008, overruling the impugned judgment (Laxminarayan v. Omprakash 2008 (2) MPLJ 416). The MP High Court had observed as under:

“To put the record straight, the correctness of the impugned judgment (Laxminarayan & Ors. v. Omprakash & Ors., 2008 (2) MPLJ 416) came up for consideration before a Division Bench of the High Court itself in Writ Petition No. 6464 of 2008 (Man Singh (deceased) through Legal Representatives Smt. Sumranbai & Ors. v. Rameshwar) and same has been overruled by judgment dated January 22, 2010. The High Court observed as follows:
- “8. A document would be admissible on basis of the recitals made in the document and not on basis of the pleadings raised by the parties. In the matter of Laxminarayan (supra), the learned Single Judge with due respect to his authority we don’t think that he did look into the legal position but it appears that he was simply swayed away by the argument that as the defendant was denying the delivery of possession, the endorsement/recital in the document lost all its effect and efficacy.
- 9. It would be trite to say that if in a document certain recitals are made then the Court would decide the admissibility of the document on the strength of such recitals and not otherwise. In a given case, if there is an absolute unregistered sale deed and the parties say that the same is not required to be registered then we don’t think that the Court would be entitled to admit the document because simply the parties say so. The jurisdiction of the Court flows from Sections 33, 35 and 38 of the Indian Stamp Act and the Court has to decide the question of admissibility. With all humility at our command we over-rule the judgment in the matter of Laxminarayan (supra).”
We respectfully agree with the conclusion of the High Court (Writ Petition No. 6464 of 2008) in this regard.
In view of what we have observed above, the order of the High Court (Laxminarayan v. Omprakash 2008 (2) MPLJ 416) is unsustainable and cannot be allowed to stand.”

Unstamped or Insufficiently Stamped Pro-note

Unstamped or insufficiently stamped promissory note cannot be marked in evidence. The weight of authority is on the side that says it is incurable. Hence no secondary evidence can also be lead on the same. It cannot be used for collateral purpose also. But the creditor can prosecute a suit upon ‘original consideration’.

Section 36 of the Stamp Act – Once admitted shall NOT be called in question

Section 36 of the Stamp Act provides as under:

“36. Admission of instrument where not to be questioned – Where an instrument has been admitted in evidence such admission shall not except as provided in Section 61, be called in question at any stage of the same suit or proceeding on the ground that the instrument has not been duly stamped “.

Objection as to sufficiency of stamp, be raised when document is tendered

The Apex Court held in Javer Chand v. Pukhraj Surana, AIR 1961 SC 1655, as under:

“Where a question as to the admissibility of a document is raised on the ground that it has not been stamped, or has not been properly stamped, it has to be decided then and there when the document is tendered in evidence. The Court has to judicially determine the matter as soon as the document is tendered in evidence and before it is marked as an exhibit in the case. … Once a document has been marked as an exhibit in the case and the trial has proceeded all along on the footing that the document was an exhibit in the case and has been used by the parties in examination and cross-examination of their witnesses, S. 36 of the Stamp Act comes into operation. Once a document has been admitted in evidence, as aforesaid, it is not open either to the Trial Court itself or to a Court of Appeal or revision to go behind that order. Such an order is not one of those judicial orders which are liable to be reviewed or revised by the same Court or a Court of superior jurisdiction.”

A document purporting to be an unregistered sale deed was marked as an Exhibit. The High Court directed that the aforesaid document should be de-marked and not be treated as an exhibit.

In Lothamasu Sambasiva Rao v. Thadwarthi Balakotiah, AIR 1973 AP 342, and several other decisions it had been held that Section 35 was only a bar to the admissibility of an unstamped or insufficiently stamped document; and that when it was admitted in evidence it cannot afterwards be withdrawn. See also:

Pankajakshan Nair v. Shylaja: ILR 2017-1 Ker 951;
Dundappa v. Subhash Bhimagouda Patil: 2017-3 AIR(Kar)(R) 570;
Savithramma R. C. v. Vijaya Bank; AIR 2015 Kar 175;
Jayalakshmamma v. Radhika: 2015 4 KarLJ 545;
K. Amarnath v. Smt. Puttamma: ILR 1999 Kar. 4634
Nanda Behera v. Akhsaya Kumar Behera, 2017AIR (CC) 1893

Latest view of the Supreme Court

It appears that the latest view of the Supreme Court is that given in Sirikonda Madhava Rao v. N. Hemalatha (SC), 12 April, 2022. Referring Javer Chand v. Pukhraj Surana, 1962-2 SCR 333; Shyamal Kumar Roy v. Sushil Kumar Agarwal, 2006-11 SCC 331, it is held as under:

“Once a document has been admitted in evidence, such admission cannot be called in question at any stage of the suit or proceedings on the ground that the instrument has not been duly stamped. Objection as to admissibility of a document on the ground of sufficiency of stamp, has to raised when the document is tendered in evidence. Thereafter, it is not open to the parties, or even the court, to reexamine the order or issue.”

Shall not Admit Unless Duly Stamped Vs. Once Admitted Immune from Challenge

Paradoxical and Incongruent Propositions – Remain yet to be solved

The following two forceful propositions stand paradoxical and incongruent.

There is a duty upon every Judge not to admit a document that is not duly stamped even if no objection to mark it.
The court should not exclude an insufficiently stamped (or unstamped) deed once marked without objection.

The Karnataka High Court held in Smt. Savithramma R.C v. M/s. Vijaya Bank, AIR 2015 Kar 175, as under:

“6. From the aforesaid statutory provisions and the decisions, it is clear that a duty is cast upon every judge to examine every document, which is produced or comes before him in the performance of his functions. On such examination, if it appears to the Judge that such instrument is not duly stamped, an obligation is cast upon him to impound the same. This duty is to be performed by the Judge irrespective of the fact whether any objection to its marking is raised or not. Hence, there is a need for diligence on the part of the Court having regard to the statutory obligation under Section 33 of the Karnataka Stamp Act. Section 34 of the Karnataka Stamp Act* mandates that an instrument, which is not duly stamped shall not be admitted in evidence. If any objection is taken to the admissibility of the evidence, it shall be decided then and there. If this document is found to be insufficiently stamped, then in terms of the proviso(a) to Section 34, the Court shall call upon the person, who is tendering the said document to pay duty and ten times penalty and thereafter admit the document in evidence. If duty and penalty is not paid, the document shall not be admitted in evidence.
- *^{Corresponding to Sec. 35, Indian Stamp Act}
If such an objection is not taken at the time of admitting the said instrument in evidence, and the insufficiently stamped document is admitted in evidence then Section 35** of the Act provides that such admission shall not be called in question at any stage of the same suit or proceedings on the ground that the instrument has not been duly stamped.
- ^**^{Corresponding to Sec. 36, Indian Stamp Act}
It has nothing to do with impounding the document. A duty is cast upon every judge to examine every document that is sought to be marked in evidence. The nomenclature of the document is not decisive. The question of admissibility will have to be decided by reading the document and deciding its nature and classification. Even while recording ex parte evidence or while recording evidence in the absence of the Counsel for the other side, the Court should be vigilant and examine and ascertain the nature of the document proposed to be marked and ensure that it is a document which is admissible. The Court should not depend on objections of the other Counsel before considering whether the document is admissible in evidence or not. Section 33 of the Stamp Act casts a duty on the Court to examine the document to find out whether it is duly stamped or not, irrespective of the fact whether an objection to its marking is raised or not.”

Should the court sit silent and question after marking unstamped document unopposed

Though Smt. Savithramma R.C v. M/s. Vijaya Bank, AIR 2015 Kar 175, clarified the position with great clarity, still, it is not definite whether the court should sit silent and mark the document if it is not opposed; and to raise its eye-brows after marking it unopposed. It is yet to be solved after considering all relevant aspects.

Referring Sec. 36 of the (Indian) Stamp Act, Karnataka High Court pointed out in Nanda Behera v. Akhsaya Kumar Behera, 2017AIR (CC) 1893, that once the Court, rightly or wrongly, decides to admit the documents in evidence, so far as the parties are concerned, the matter is closed. As stated earlier, this principle is followed in the following cases, with respect to insufficiently stamped document:

Court can Reject Irrelevant or Inadmissible Document at any stage

Order 13 Rule 3 CPC reads as under:

“Rejection of irrelevant or inadmissible documents. ― The Court may at any stage of the suit reject any document which it considers irrelevant or otherwise inadmissible, recording the grounds of such rejection.

Order 13 Rule 3 CPC speaks only as to ‘irrelevant’ or ‘inadmissible’ documents alone; and it is not applicable to a document which can be received in evidence on the concession or admission of the opposite side, (besides the documents proved by its author, witness or a person acquainted with hand writing – Sec. 67 Evidence Act). Court can also receive documents proved through an expert and under presumption or circumstantial evidence.

No Objection to Marking; If Court sees Deficiency, it should bring notice of it to counsel

In T.C. Lakshamanan v. Vanaja, ILR 2011-3 (Ker) 228; 2011-3 KHC 86; 2011-3 KLT 347, it is pointed out as under:

“There was no case for the respondent that before marking Ext.A1 any objection was raised as to the admissibility of Ext.A1. Since the affidavit was filed in lieu of chief-examination, through which documents were sought to be received in evidence, before starting cross examination the trial court has to record that an affidavit has been filed in lieu of chief examination and that such and such documents have been marked. It is not to be done mechanically. The Court has to apply its mind while marking the documents to ensure that those documents have been properly admitted in evidence. Simply because the counsel appearing for the other side did not raise any objection the Court is not absolved of its duty to see whether the marking of the documents was done correctly and whether any inadmissible document was sought to be admitted in evidence. If the Court finds that any inadmissible document, especially a document which cannot be admitted in evidence as it is unstamped or insufficiently stamped, is sought to be admitted, it should be brought to the notice of the counsel appearing for the parties and an order should be passed with regard to the same. It is not a case where the documents were tentatively marked, subject to objection regarding the admissibility and the ruling as to the admissibility of the same happened to be deferred, as it warranted a detailed argument. The Apex Court in the decision in 2000 (1) SC 1158 (Bipin Shantilal Panchal v. State of Gujarat) has held that such a procedure can be resorted to. Therefore, though document can be admitted tentatively reserving ruling on the admissibility to a later stage, in the case on hand no such objection was raised; on the other hand, it is argued by the learned counsel for the respondent that questions were put to PW1 with regard to the relevancy and other aspects of that document treating that document as having been properly admitted.”

Witness Admits Document – Can Court Refrain Marking, for no Formal Proof?

No.

Relevant and admissible documents have to be received in evidence ‘Subject to Proof’ or ‘Subject to Objection’.

Whenever a relevant and admissible document is tendered in evidence (seeking its marking, as an exhibit) the prudent Courts in India exhibit it ‘subject to proof’ or ‘subject to objection’, as it is the practice followed by Indian Courts.

The law also supports it. Sec. 136, Evidence Act is the relevant provision. It reads as under:

“S. 136. Judge to decide as to admissibility of evidence. When either party proposes to give evidence of any fact, the Judge may ask the party proposing to give the evidence in what manner the alleged fact, if proved, would be relevant; and the Judge shall admit the evidence if he thinks that the fact, if proved, would be relevant, and not otherwise.
If the fact proposed to be proved is one of which evidence is admissible only upon proof of some other fact, such last-mentioned fact must be proved before evidence is given of the fact first mentioned, unless the party undertakes to give proof of such fact, and the Court is satisfied with such undertaking.
If the relevancy of one alleged fact depends upon another alleged fact being first proved, the Judge may, in his discretion, either permit evidence of the first fact to be given before the second fact is proved, or require evidence to be given of the second fact before evidence is given of the first fact.”

In M. Siddiq v. Mahant Suresh Das, (Ayodhya Case), 2020-1 SCC 1, the practice of marking documents “subject to objection and proof” was referred to as under:

“539. On 7 February 2002, counsel for the plaintiffs in Suit 5 filed a report dated 3 February 2002 before the High Court of Dr. K V Ramesh, pertaining to the “Ayodhya Vishnu Hari temple inscription”. The documents were taken on record “subject to objection and proof” as required by the provisions of the Evidence Act 1872. During the course of the trial, the plaintiffs of Suit 5 claimed that the above inscription was recovered on 6/7 December 1992 from the debris of the disputed structure which was demolished. The inscription is in stone with a dimension of 115cm X 55cm. Under the orders of the Court, an e-stampage (paper no. 203 C- 1/1) was prepared and was deciphered by Dr. K V Ramesh (OPW-10) who is an epigraphist. The translation of the text was marked as Exhibit 2 in Suit 5. The case of the plaintiffs is that there was a Vishnu Hari temple at the site in dispute and it was on the demolition of the temple that a mosque was constructed in its place. In this segment, the inscription forms the fulcrum of the submission.”

In Uttaradi Mutt v. Raghavendra Swamy Mutt, 2018 0 AIR(SC) 4796; 2018-10 SCC 484,it is obserd as under:

“As regards this plea, we find that the High Court has made it amply clear that the fact that the applications are allowed per se is not to give any direction to straightaway exhibit the additional documents, but that it could be exhibited subject to proof. The High Court has unambiguously observed that the documents will have to be proved in accordance with law. We make it amply clear that by allowing the three applications filed by the respondent/defendant under Order XLI Rule 27 of CPC, it would not follow that the additional documents/additional evidence can be straightaway exhibited rather, the respondent would have to not only prove the existence, authenticity and genuineness of the said documents but also the contents thereof, as may be required by law.”

In Jarnail Singh v. State of Punjab, AIR 2022 SC 3350: 2022-10 SCC 451, acquitting the accused it is held as under:

“13. From the above statements of the Inspecting Team, they failed to firstly prove the recovery of the tickets to have been validly made. Secondly, they also failed to prove the enquiry report as only a photocopy was filed and objections to the same was recorded in the statement itself, that the same would be exhibited subject to proof of the existence of the documents in original and loss thereof. The prosecution did not make that effort to prove the existence of the original and loss thereof in order to take an order for leading secondary evidence.”

The practice of exhibiting documents ‘subject to proof and relevancy’ is also referred to in –

Ameer Minhaj v. Dierdre Elizabeth (Wright) Issar, 2018-7 SCC 639, and
State of Bihar v. P. P. Sharma, AIR 1991 SC 1260: 1992 Supp1 SCC 222.

Conclusion

It is not at all fair to say that if the court inadvertently marked a document or it failed to object marking, the document will stand good in favour of the party who tendered the document.

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Law on PRODUCTION, ADMISSIBILITY & PROOF OF DOCUMENTS – in a Nutshell

Saji Koduvath, Advocate, Kottayam.

Documents to be utilised in court has to pass through three steps. They are:

Production of documents in court
Admittance and exhibition.
Proof.

Production and Admission in evidence

Code of Civil Procedure, Order VII rule 14, Order VIII rule 8A and Order XIII rule 1 say as to ‘Production‘ of documents in court at various stages. At these stages the opposite party may not have a right to object. But the Court or even the office of the court (registry) can raise and note objection on the ground of insufficiency of stamp by virtue of the provisions of the Stamp Act concerned.

Order V rule 7 requires that the summons to the defendant to appear and answer shall order to produce all documents or copies thereof specified in rule 1A of Order VIII in his possession or power upon which he intends to rely in support of his case.

Order XIII rule 4 directs following endorsements on every document which has been admitted in evidence in the Suit:

(a) the number and title of the suit,
(b) the name of the person producing the document,
(c) the date on which it was produced, and
(d) a statement of its having been so admitted.

Code of Criminal Procedure, Section 173, deals with production of Police Report before the court, on completion of investigation. Sub section (5) of this section requires the police officer to forward to the Magistrate along with the report-

“(a) all documents or relevant extracts thereof on which the prosecution proposes to rely other than those already sent to the Magistrate during investigation;
(b) the statements- recorded under section 161 of all the persons whom the prosecution proposes to examine as its witnesses.”

Sec. 294 Cr PC deals with production of documents before court, and as to its proof.

“294. No formal proof of certain documents. (1) Where any document is filed before any Court by the prosecution or the accused, the particulars of every such document shall be included in a list and the prosecution or the accused, as the case may be, or the pleader for the prosecution or the accused, if any, shall be called upon to admit or deny the genuineness of each such document.
(2) The list of documents shall be in such form as may be prescribed by the State Government.
(3) Where the genuineness of any document is not disputed, such document may be read in evidence in any inquiry, trial or other proceeding under this Code without proof of the signature of the person to whom it purports to be signed:
Provided that the Court may, in its discretion, require such signature to be proved.”

Objection Regarding Admissibility of Documents – 2 counts

Disputes on admissibility of documents arise on 2 domains (See: Manakishore Lalbhai Vs. New Era Fabrics: AIR 2015 SC 3796). They are:

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.
Explanation.—This section shall not enable any person to give evidence of a fact which he is disentitled to prove by any provision of the law for the time being in force relating to Civil Procedure
Illustration s (a) A is tried for the murder of B by beating him with a club with the intention of causing his death. At A’s trial the following facts are in issue:— A’s beating B with the club; A’s causing B’s death by such beating; A’s intention to cause B’s death.
(b) A suitor does not bring with him, and have in readiness for production at the first hearing of the case, a bond on which he relies. This section does not enable him to produce the bond or prove its contents at a subsequent stage of the proceedings, otherwise than in accordance with the conditions prescribed by the Code of Civil Procedure.”

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.

Admissibility of Documents Determined First; Then only, Genuineness, veracity, etc.

The question of proof comes for consideration only if the first two steps (Production and Admittance) are successfully covered. In Anvar P.V. v. P.K. Basheer, AIR 2015 SC 180: (2014)10 SCC 473, it is held by our Apex Court as under:

“Genuineness, veracity or reliability of the evidence is seen by the court only after the stage of relevancy and admissibility.”

Document liable to be Objected on ‘Mode or Manner of Proof’

Following are improper modes:

Seeking exhibition through one who cannot vouchsafe veracity.
Inadmissible mode of secondary evidence. Eg:
- Certified copy produced without proving circumstances that entitles to give secondary evidence under Sec. 65 of the Evd. Act.
- No secondary evidence other than that is recognised under Sec. 63 or 65 (e)/(f) can be validly tendered as secondary evidence.
Unstamped or insufficiently/improperly stamped document.

Objection to be Raised When document is admitted

“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.”

“The presiding officer therefore, should decide objections to questions, during the course of the proceeding, or failing it at the end of the deposition of the concerned witness.”

Admissibility, Reliability of Documents be Considered at Hearing

In K. Mallesh v. K. Narender, 2015-12 Scale 341; 2016-1 SCC 670 (Anil R. Dave, Adarsh Kumar Goel, JJ.) allowed an appeal setting aside the order passed in an interlocutory stage, during the pendency of a suit, holding as under:

“2. In our opinion the High Court should not have interfered at the stage when the trial was still in progress. Therefore, we set aside the impugned order passed by the High Court without going into the merits of the case. We say that the admissibility, reliabiity and registrability of the documents shall be considered independently only at the time of hearing of the trial and not prior thereto. All questions with regard to the aforesaid issues shall remain open.

Discovery of Documents under O. XI r. 12 CPC and Question of Inadmissibility

The decision, M. L. Sethi v. R. P. Kapur, AIR 1972 SC 2379, emphasises that it is not necessary for an applicant under Order XI rule 12 to specify in detail the documents sought to be discovered when they are in the hands of the other side; and that the claim of privilege can be considered only after discovery, when the stage of production is reached. It is also made clear that if the document is relevant for the purpose of throwing light on the matter in dispute, though it might not be admissible in evidence, it can be put to discovery under rule 12.

Document Marked in Proof Affidavit, Court Records it – Objection in Cross Exam. – Effect

Our Procedural Codes do not specifically speak about it. Several propositions are seen raised.

Court evaluates documents only in Final Hearing. Hence, court cannot ignore the objection of the opposite party raised in cross examination.
For no objection at the time of ‘recording it by court’, objection raised in cross examination stand belated.
If a document ‘liable to be objected on mode or manner of proof,’ is allowed to be marked, or no objection is raised at that ‘proper’ time, subsequent cross examination is of no use.

It goes without saying that the pedantic approach in the latter propositions will adorn only over-scrupulous judges.

Rules as to Notice to Produce Documents

Order XI rule 15 and Order XII rule 8 are the provisions in the CPC to give notice to the other party to produce documents (for ‘inspection’ and ‘show court’, respectively).

See Blog (Click): Notice to Produce Documents in Civil Cases

Sec. 66 of the Evidence Act reads as under:

66. Rules as to notice to produce.—Secondary evidence of the contents of the documents referred to in section 65, clause (a) , shall not be given unless the party proposing to give such secondary evidence has previously given to the party in whose possession or power the document is, [or to his attorney or pleader,] such notice to produce it as is prescribed by law; and if no notice is prescribed by law, then such notice as the Court considers reasonable under the circumstances of the case.
Provided that such notice shall not be required in order to render secondary evidence admissible in any of the following cases, or in any other case in which the Court thinks fit to dispense with it:—
(1) when the document to be proved is itself a notice;
(2) when, from the nature of the case, the adverse party must know that he will be required to produce it;
(3) when it appears or is proved that the adverse party has obtained possession of the original by fraud or force;
(4) when the adverse party or his agent has the original in Court;
(5) when the adverse party or his agent has admitted the loss of the document;
(6) when the person in possession of the document is out of reach of, or not subject to, the process of the Court.

See Blogs:

Courts to admit documents Without Proof

Sections 163 of the Evidence Act, reads as under:

163. Giving, as evidence, of document called for and produced on notice: When a party calls for a document which he has given the other party notice to produce, and such document is produced and inspected by the party calling for its production, he is bound to give it as evidence if the party producing it requires him to do so.

It is observed in Government of Bengal v. Santiram Mondal, AIR 1930 Cal 370, with respect to a document used under Sec. 163, as under:

“The further contention is that if they are to be admitted, they cannot be put in or at any rate used without proof. But the section itself says that the party calling for it is bound to give it as evidence if required to do so, and that certainly means that it goes in as a record of the particular proceeding and that it can be looked at to see what it includes or omits.”

In Government of Bengal v. Santiram Mondal, AIR 1930 Cal 370, and R v. Makhan, AIR 1940 Cal 167 it was observed that Section 163 of the Evidence Act applies to Criminal Proceedings also.

Documents Marked by Consent – Does Oral Evidence Need to Prove Contents

There are three different views on this matter. They are-

1. There must be oral evidence. Even if consent is given for marking the documents, it will only absolve the parties from formally proving the documents and nothing beyond that. That is, though documents are marked by consent, they could not be relied on unless there is no oral evidence to prove their contents.
2. Document stands proved. When documents are marked by consent, there is no further need for a formal proof of the documents, it would amount to proof of whatever the documents contained.
3. If truth is in question it should be specifically proved by proper evidence. In most of the cases, the truth may not remain in question if the contents thereof are proved. But, in rare occasions, even if contents of documents are proved, truth thereof may remain (expressly or implicitly) in question or unrevealed.

Court’s Jurisdiction to Require to Prove an Admitted Document

Sec. 165 of Evidence Act gives wide powers to court to produce any document. Sec. 165 reads as under:

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

Besides the powers of the court under Sec. 165 Evidence Act, the scheme of the Procedural Acts (Evidence Act, CPC and CrPC) shows that the courts have jurisdiction to require the party concerned to prove any document despite the admission of the opposite party and the provisions in the Evidence Act as to presumptions. (See: Proviso to Sec. 58 of Evidence Act, Order XII, Rule 2A Proviso of the CPC and Sec. 294 of the CrPC.)

Sec. 58 of Evidence Act reads as under:

58 Facts admitted need not be proved. —No fact need to be proved in any proceeding which the parties thereto or their agents agree to admit at the hearing, or which, before the hearing, they agree to admit by any writing under their hands, or which by any rule of pleading in force at the time they are deemed to have admitted by their pleadings:
Provided that the Court may, in its discretion, require the facts admitted to be proved otherwise than by such admissions.

Order XII, Rule 2A reads as under:

2A. Document to be deemed to be admitted if not divided after service of notice to admit documents. (1) Every document which a party is called upon to admit, if not denied specifically or by necessary implication, or stated to be not admitted in the pleading of that party or in his reply to the notice to admit documents, shall be deemed to be admitted except as against a person under a disability :
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.
(2) Where a party unreasonably neglects or refuses to admit a document after the service on him of the notice to admit documents, the Court may direct him to pay costs to the other party by way of compensation.

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

Sec. 77 of the Evidence Act permits to produce certified copies of public documents in proof of its contents. Sec. 77 reads as under:

“77. Proof of documents by production of certified copies- Such certified copies may be produced in proof of the contents of the public documents or parts of the public documents of which they purport to be copies.”

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

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

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

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.)

First View: Court is under an Obligation to Exclude

S. 65, Evidence Act enumerates the instances where a party is entitled to furnish secondary evidence. It is a condition precedent to establish the circumstances laid down in S. 65, for letting in secondary evidence of a document. Pointing out the right and duty of the court to prevent rushing of inadmissible and irrelevant evidence, it is held in a good number of decisions that the court is under an obligation to exclude such materials, at the threshold. [See: Yeshoda Vs. Shoba Ram: AIR 2007 SC 1721; U. Sree Vs. U. Srinivas: AIR 2013 SC 415]

H. Siddiqui Vs. A. Ramalingam: AIR 2011 SC 1492 it is held as under:

“The court has an obligation to decide the question of admissibility of a document in secondary evidence before making endorsement thereon.”

Second view: If no objection (on Mode of Proof), Court has to mark

It is beyond doubt that marking of documents lie in the realm of procedural law. Therefore, a catena of decisions emphasize that it is a matter that falls for the opposite party to waive strict formal proof. That is, the court should not delve to object marking of a secondary evidence, if the opposite party has no objection. [See: RVE Venkatachala Gounder Vs. Arulmigu Viswesaraswami: AIR 2003 SC 4548; Narbada Devi Vs. Birendra Kumar: 2003-8 SCC 745; Dayamati Bai Vs. K.M. Shaffi :2004 SC 4082; Oriental Insurance Co Vs. Premlata: 2007-8 SCC 575] Karnataka High Court pointed out in Nanda Behera v. Akhsaya Kumar Behera, 2017AIR (CC) 1893, that once the Court, rightly or wrongly, decides to admit the documents in evidence, so far as the parties are concerned, the matter is closed. This principle is followed in the following cases, with respect to insufficiently stamped document:

Pankajakshan Nair v. Shylaja: ILR 2017-1 Ker 951;
Dundappa v. Subhash Bhimagouda Patil: 2017-3 AIR(Kar)(R) 570;
Savithramma R. C. v. Vijaya Bank; AIR 2015 Kar 175;
Jayalakshmamma v. Radhika: 2015 4 KarLJ 545;
K. Amarnath v. Smt. Puttamma: ILR 1999 Kar. 4634

In the light of the Supreme Court decision in K.B. Saha and Sons Private Limited (that a document required to be registered is not admissible in evidence under section 49 of the Registration Act; and such unregistered document can only be used as an evidence of collateral purpose), it appears that the observation of the Karnataka High Court in Nanda Behera v. Akhsaya Kumar Behera, 2017AIR (CC) 1893, that once the Court, rightly or wrongly, decides to admit the documents in evidence, so far as the parties are concerned, the matter is closed, is not applicable to unregistered (compulsorily registrable) documents.

Oral Evidence on contents of Documents – No Use, Unless Secondary Evidence Entitled

Sec. 22 and 144 of the Evidence Act postulate that the oral admissions or assertions as to contents of documents are not relevant, unless and until the party proposing to prove them shows that he is entitled to give secondary evidence of the contents of such document under Sec. 65, or unless the genuineness of a document produced is in question.

Sec. 22 emphasises that oral evidence as to contents of documents , even if adduced, will be of no use, as it will be ‘irrelevant’. By virtue of Sec. 144 of the Evidence Act, the adverse party may object to giving oral evidence as to contents of the same until such document itself is produced, or until facts have been proved which entitle the party who called the witness to give secondary evidence of it.

Sec. 22 of the Evidence Act reads as under:

22. When oral admissions as to contents of documents are relevant.—Oral admissions as to the contents of a document are not relevant, unless and until the party proposing to prove them shows that he is entitled to give secondary evidence of the contents of such document under the rules hereinafter contained, or unless the genuineness of a document produced is in question.

Sec. 144 of the Evidence Act reads as under:

144. Evidence as to matters in writing.—Any witness may be asked, whilst under examination, whether any contract, grant or other disposition of property, as to which he is giving evidence, was not contained in a document, and if he says that it was, or if he is about to make any statement as to the contents of any document, which, in the opinion of the Court, ought to be produced, the adverse party may object to such evidence being given until such document is produced, or until facts have been proved which entitle the party who called the witness to give secondary evidence of it.
Explanation.—A witness may give oral evidence of statements made by other persons about the contents of documents if such statements are in themselves relevant facts.
Illustration. The question is, whether A assaulted B. C deposes that he heard A say to D—”B wrote a letter accusing me of theft, and I will be revenged on him”. This statement is relevant as showing A’s motive for the assault, and evidence may be given of it, though no other evidence is given about the letter.

Sec. 59 of the Evidence Act lays down that contents of documents (or electronic records) are to be proved by oral evidence. Sec. 62 defines primary evidence to mean ‘the document itself’ produced for the inspection of the Court. Sec. 64 of the Act requires that that the documents to be proved primarily by ‘primary evidence’, except in cases where secondary evidence is provided under Sec. 65.

Sections 22, 59, 61, 62 and 64 of the Evidence Act project the ‘rule of best evidence’ and it directs that the contents of the document are to be proved by the original document itself, unless secondary evidence is provided under Sec. 65. (See: Bimla Rohal v. Usha, 2002-2 HLJ 745; 2002-2 Shim LC 341)

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 these provisions 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.”

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 (Jahuri Sah v. Dwarka Prasad Jhunjhunwala, AIR 1967 SC 109).

In Perumal Chettiar VS Kamakshi Ammal, AIR 1938 Mad 785; ILR 1938 Mad 933, it is held as under:

“Section 22 of the Indian Evidence Act adopted the stricter view and relegated oral admissions as to the contents of a document to the category of ‘secondary evidence’. 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 : 32 E.R. 1215 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)35MLJ555 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 I.L.R.(1893) 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.”

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: Thomas v. AA Henry, 2008(2) KLT 63.)

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Book No. 4: Common Law of TRUSTS in India

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Trustees and Management
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- Breach of Trust and Removal of Trustees
Suits by or against Trusts
- Suits By or Against Trusts and Trustees
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- Ayodhya Disputes: M. Siddiq case – Pragmatic Verdict
- Sabarimala Review Petitions & Reference to 9-Judge Bench
- SABARIMALA REVIEW and Conflict in Findings between Shirur Mutt Case & Durgah Committee Case
General

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; (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 SC 3796.