Sec. 74 of the Evidence Act defines Public Documents. It reads as under:
74. Public documents.
The following documents are public documents :
(1)Documents forming the acts or records of the acts
(i) of the sovereign authority;
(ii) of official bodies and tribunals; and
(iii) of public officers, legislative, judicial and executive, of any part of India or of the Commonwealth or of a foreign country;
(2) public records kept in any State of private documents.
Sec. 76 of the Evidence Act defines Certified copies of public documents. It reads as under:
76. Certified copies of public documents.
Every public officer having the custody of a public document, which any person has a right to inspect, shall give that person on demand a copy of it on payment of the legal fees therefor, together with a certificate written at the foot of such copy that it is a true copy of such document or part thereof, as the case may be, and such certificate shall be dated and subscribed by such officer with his name and his official title, and shall be sealed, whenever such officer is authorized by law to make use of a seal; and such copies so certified shall be called certified copies.
Explanation. – Any officer who, by the ordinary course of official duty is authorized to deliver such copies, shall be deemed to have the custody of such documents within the meaning of this section.
Section 77 in The Indian Evidence Act, 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 part of the public documents of which they purport to be copies.
Public Documents can be Proved by Certified copy
In R. V. E. Venkatachala Gounder v. Arulmigu Viswesaraswami & V. P. Temple, AIR 2003 SC 4548; 2003-8 SCC 752it is held as under:
“It is not disputed that the order of Charity Commissioner is a public document admissible in evidence without formal proof and certified copy of the document is admissible in evidence for the purpose of proving the existence and contents of the original. An order of Charity Commissioner is not per se the evidence of title inasmuch as the Charity Commissioner is not under the law competent to adjudicate upon questions of title relating to immovable property which determination lies within the domain of a Civil Court.”
In Kalyan Singh v. Chhoti, AIR 1990 SC 396, it is held that correctness of certified copies can be presumed under Section 79.
Certified copies of the public documents can be proved without formal proof. See:
Jaswant Singh v. Gurdev Singh, 2012-1 SCC 425 ,
Shyam Lal @ Kuldeep v. Sanjeev Kumar, AIR 2009 SC 3115; 2009-12 SCC 454
P. Purushottam Reddy v. Pratap Steels LTD. , AIR 2002 SC 771; 2002-2 SCC 686
Harpal Singh and Another v. State of Himachal Pradesh, AIR 1981 SC 361
Madamanchi Ramappa v. Muthalur Bojjappa, AIR 1963 SC 1633
Vijayamma v. G. Venugopal, 2024-2 Ker HC 553
Arti Meena v. Rajasthan High Court, Jodhpur, 2020-1 SCT 1 (Raj).
Collector (L. A. ), South Andaman v. Himangshu Mondal, 2015-2 CalLT 1
Poddar Plantations Limited v. Thekkemariveettil Madhavi Amma, ILR 2014-1 Ker 813; 2014 1 KLT 439
Rajasthan State Road Trans. Corp. v. Nand Kishore, 2002 ACJ 1564 (Raj)
Md. Akbar v. State of A.P., 2002 CrLJ 3167 (And)
In Madamanchi Ramappa v. Muthalur Bojjappa (Gajendragadkar , J.), AIR1963 SC1633; 1964-2 SCR 673, it is held as under:
“9. … The document in question being a Certified copy of a public document need not have been proved by calling a witness.”(Referred to in Rangaraju v. Kannayal, 10 Jan 2012, (Mad).
In Harpal Singh and Another v. State of Himachal Pradesh, AIR 1981 SC 361, it is held as under:
“3.… We cannot agree with him for the simple reason that the entry was made by the concerned official in the discharge of his official duties, that it is therefore clearly admissible under Section 35 of the Evidence Act and that it is not necessary for the prosecution to examine its author ” (Quoted in: Manikanta v. State of Karnataka, 2024 Kar HC 21233)
In Shyam Lal @ Kuldeep v. Sanjeev Kumar, AIR 2009 SC 3115; 2009-12 SCC 454, it was observed as under:
“25. The findings of the learned District Judge holding Ex. P. 2 to be a public documentand admitting the same without formal proof cannot be questioned by the defendants in the present appeal sinceno objection was raised by them when such document was tendered and received in evidence.
It has been held in Dasondha Singh and Others v. Zalam Singh and Others [1997(1) P.L.R. 735] that an objection as to the admissibility and mode of proof of a document must be taken at the trial before it is received in evidence and marked as an exhibit.
Even otherwise such a document falls within the ambit of Section 74, Evidence Act, and is admissible per se without formal proof”.
The Supreme Court, in Jaswant Singh v. Gurdev Singh, 2012-1 SCC 425, it is held that certified copy of a public document prepared under Section 76 of the Act, in terms of Section 74 of the Indian Evidence Act, 1872 is admissible in evidence under Section 77 of the said Act, without being proved by calling witness. It is said as under:
“9. … To put it clear, the compromise had become a part of the decree which was passed by the court of Sub-Judge Ist Class, Hoshiarpur. Hence, it is a public document in terms of Section 74 of the Indian Evidence Act, 1872 (in short ‘the Act’) and certified copy of the public document prepared under Section 76 of the Act is admissible in evidence under Section 77 of the said Act. A certified copy of a public document is admissible in evidence without being proved by calling witness. Inasmuch as the decree was passed and drafted in the light of the compromise entered into between the parties, viz., the plaintiff and the defendants, the certified copy of such document which was produced before the Court, there is presumption as to the genuineness of such certified copy under Section 78 of the Act.”
See also the following cases where documents were accepted in evidence and acted upon on the basis of Section 35 Evidence Act:
Umesh Chandra v. State of Rajasthan, AIR 1982 SC 1057 (admission forms as also the School’s register)
Harpal Singh v. State of Himachal Pradesh, AIR 1981 SC 361 (certified copy of the birth register).
In Mosomat Jago Devi v. Mahabir Prasad Joshi, 2007-2 PCCR 164; 2007-3 PLJR 197 (Pat), it is held as under:
“It is true that this order-sheet is not an exhibited document but admittedly, it is a public document and since it is on record, as such judicial notice of the public document can be legally taken.”
In Silli Man Subba VS Man Bahadur Subba, 2015 ACJ 2575, it is pointed out as under:
“there was no necessity to examine the BDO to prove as the certificate would fall within the meaning of a public document as provided under Section 74 of the Indian Evidence Act, 1872 and that judicial notice can be taken of it under Clauses (6) and (7) of Section 57 thereof.”
In Sumer v. Bator, 2020-143 AllLR 55; 2020-4 AWC 4072 (All) it is held as under:
“Certified copies of these documents that are public documents, do no require formal proof. They are read in evidence as public documents.”
The Court can Take Judicial Notice of Public Records
In Kalpana Mehta v. Union of India, AIR 2018 SC 2493; 2018-7 SCC 1
“123. There can be no dispute that parliamentary standing committee report being in the public domain is a public document. Therefore, it is admissible under Section 74 of the Evidence Act and judicial notice can be taken of such a document as envisaged under Section 57(4) of the Evidence Act. There can be no scintilla of doubt that the said document can be taken on record.”
In Bangalore Development Authority v. Bhagavandas Patel 2017 2 AIR(Kar)(R) 695; ILR 2017 Kar 1319, it is held as under:
“25. The documents now sought to be produced along with I.A.2/2007 are public documents and merely compliment the exhibits already marked as D1 and D2. The same being public documents, this Court takes judicial notice of the same.”
In Juhi Chawla v. Gangandeep Singh, 2020-1 MPWN 7, it is held as under:
“8. The Income Tax Return of the respondent cannot be treated a public document and the Court cannot take judicial notice of the same.”
Rama Association Private Limited v. Delhi Development Authority, 1998-74 DLT 653 (Del), it is held as under:
“It is a document emanating from DDA and it is a document for public use and, therefore. Court can take judicial notice of it and can look into the contents of the Master Plan.”
In Income Tax Officer v. Abdul Majeed, 1987-2 KLT 303 (KT Thomas, J.) observed as under:
“Proceedings under S.279(1) of the Act are official acts and the document evidencing the proceedings of the Commissioner is a public document, the production of which would be sufficient to enable the court to take judicial notice thereof. Even if the document containing the proceedings of the Commissioner has not been formally marked as an exhibit, the document cannot be overlooked by the Criminal Court. No formal proof through oral evidence is required for a public document. In Income tax Officer, Hassan v. Dharmchand Multanmul (1972 (Vol. 86) ITR 70) a similar situation arose. In Chat case the counsel for the accused pointed out at the time of argument that there was no sanction to prosecute him and hence the complaint was liable to be dismissed. At that stage, the Income-tax Officer filed an application for recalling the first witness for the purpose of formally proving the proceedings by which sanction was accorded. As the Magistrate did not accede to the request, the matter was taken up before the High Court of Mysore. It was observed by the High Court that recalling of the witness for the purpose of proving the sanction was not necessary “as it would be open to the Magistrate to look into the sanction produced by the prosecution”. I respectfully agree with the aforesaid reasoning of the learned single judge of the Mysore High Court. I therefore hold that the acquittal, on the ground that there was no formal proof of sanction, cannot be sustained.”
In Mangilal v. Mankunwarbai, 1986-2 MPWN 231, it is pointed out as under:
“Ex. D-1 being a public document, the Court below should have taken a judicial notice of the same.”
Official Document Relevant by itself, and no other proof required
In Shiv Ram v. Shiv Charan Singh, AIR 1964 Raj 126, it is observed as under:
“Where Section 35 properly comes into play, an entry made by a public servant in any public or official book in the discharge of his official duty becomes relevant by itself, and no other proof of such entry is requiredas a matter of law by our Evidence Act, but this, does not exclude the possibility that such an entry may become admissible otherwise if it is properly proved to have been made by a person ordinarily competent to make it.” (Quoted in Mayadhar Nayak vs Sub-Divisional Officer, Jajpur, AIR 1982 Ori 221).
Tax Paid Receipts are “Public Documents”
Bangli Nagappa v. G. Venkatakrishana Rao, AIR 2022 Kar 164
Boopathiammal v. Ranganayaki Ammal, 2021-4 CTC 451 (Mad)
Cazi Mohammad Patchmiam v. Sitabai Balaram Nipanikar, 2010-3 AllMR 823; 2010-5 BomCR 285; 2010 4 MhLJ 102;
M. S. Meiyappan v. The Special Commissioner and Commissioner for Land Revenue, Chepauk, 1994-1 LW 501 (Mad)
Laxmikant Slnal Lotlekar v. Raghuvir Sinai Lotlekar: 1984 MhLJ 938,
Yella Papayya v. Yella Suryanarayana: 1947-1 MLJ 79.
Author Need Not be Examined for Proving Document Admissible underS. 35
In Harpal Singh v. State of H. P. , AIR 1981 SC 361; 1981-1 SCC 560, it was held as under:
“A certified copy of the relevant entry in the birth register which shows that Saroj Kumari, who according to her evidence was known as Ramesh during her childhood, was born to Lajwanti wife of Daulot Ram on 11-11-1957. Mr. Hardy submitted that in the absence of the examination of the officer/chowkidar concerned who recorded the entry, it was inadmissible in evidence. We cannot agree with him for the simple reason that the entry was made by the concerned official in the discharge of his official duties, that it is therefore clearly admissible under Section 35 of the Evidence Act and that it is not necessary for the prosecution to examine its author.”
Sub Registrar cannot refuse registration on the ground, No Title
In K. Gopi v. The Sub-Registrar our Apex Court (Neutral Citation: 2025 INSC 462: Abhay S Oka and Ujjal Bhuyan, JJ.; 7. 4. 2025) held that the registering officer cannot refuse to register a document, on the ground that the vendor has not established his title and ownership.
SC declared TN Rules, ultra vires the 1908 Act
The Supreme Court declared Rule 55A of the Registration Rules under the Registration Act, 1908, framed by the Government of Tamil Nadu, as ultra vires the 1908 Act. This rule provided that theSub-Registrar wasentitled to refusethe registration of the sale deed on the ground that the vendor has not established his title and ownership.
The court said as under:
“15. The registering officer is not concerned with the title held by the executant. He has no adjudicatory power to decide whether the executant has any title. Even if an executant executes a sale deed or a lease in respect of a land in respect of which he has no title, the registering officer cannot refuse to register the document if all the procedural compliances are made and the necessary stamp duty as well as registration charges/fee are paid. We may note here that under the scheme of the 1908 Act, it is not the function of the Sub-Registrar or Registering Authority to ascertain whether the vendor has title to the property which he is seeking to transfer.
Once the registering authority is satisfied that the parties to the document are present before him and the parties admit execution thereof before him, subject to making procedural compliances as narrated above, the document must be registered. The execution and registration of a document have the effect of transferring only those rights, if any, that the executant possesses. If the executant has no right, title, or interest in the property, the registered document cannot effect any transfer.
16. Therefore, assuming that there is a power under Section 69 of the 1908 Act to frame the Rules, Rule 55A(i) is inconsistent with the provisions of the 1908 Act. Due to the inconsistency, Rule 55A(i) will have to be declared ultra vires the 1908 Act. The rulemaking power under Section 69 cannot be exercised to make a Rule that is inconsistent with the provisions of the 1908 Act.”
Earlier Decision of the Apex Court
Earlier, the Supreme Court, in Satya Pal Anand v. State of MP, AIR 2016 SC 4995; 2016-10 SCC 767, held as under:
“He is not expected to evaluate the title or irregularity in the document as such. The examination to be done by him is incidental, to ascertain that there is no violation of provisions of the Act of 1908. In the case of Park View Enterprises (Park View Enterprises v. State of Tamil Nadu, AIR 1990 Mad 251) it has been observed that the function of the Registering Officer is purely administrative and not quasi-judicial. He cannot decide as to whether a document presented for registration is executed by person having title, as mentioned in the instrument.”
Note: No Rules had to be looked into in this case (as one came for consideration in K. Gopi v. The Sub-Registrar).
Registering officer is not permitted to inquire into validity of the Deed
The same view (in Satya Pal Anand v. State of MP) was taken in State of Gujarat v. Rajiv Maheshkumar Mehta (09 Aug 2016, Guj.) holding that the registering officer is not permitted to undertake inquiry into legality and validity of the title and document; and that the registering officer is not empowered to act like a judicial officer. The Gujarat High Court referred to the following decisions:
(1) Krishna Gopal Kataria v. State of Punjab, AIR 1986 P & H 328. That powers of Registrar are clearly defined and demarcated and any instruction by the State Government to the Registrar and in turn to the Sub-Registrar not to register sale deeds or lease deeds in respect of properties belonging to religious/charitable institutions in absence of any statutory provision was held to be illegal. It was further held that Act 1908 is a complete code of deeds.
(2) Bihar Deed Writers Association v. State of Bihar, AIR 1989 Pat 144, in which, it was held that it is not for registering authority to ascertain title to its own satisfaction and in the fact of that case absence of any declaration by the parties in respect of Bihar Land Reforms Act 1961 and refusal to register the sale deed was held bad in law.
(3) E. Eshaque v. Sub-Registrar, Kozhikode, AIR 2002 Ker 128 whereby it was held that registering authorities is not required to satisfy title, possession or encumbrances in respect of property sought to be registered. In this case also reliance was placed by the High Court of Kerala on the decision in the case of Bihar Deed Writers Association v. State of Bihar.
(4) State of Rajasthan v. Basant Nahata, (2005) 12 SCC 77 In the above case Section 22A inserted by Registration Amendment Act 16 of 1976 whereby documents to be registered if found opposed to public policy and notifications issued in this regard was held to be unconstitutional and secondly notifications issued thereunder where quashed and set aside. In the above decision even power of attorney was also interpreted in light of Chapter X of Contract Act, 1872.
(5) Captain Dr. R. Bellie v. Sub-Registrar, Sulur, AIR 2007 Mad 331. It was the case when registration of document was denied on the ground that it was opposed to public policy and relying on decision in the case of State of Rajasthan v. Basant Nahata, AIR 2005 SC 3401 provision made vide Government Order No. 150 pertaining to commercial taxes was set aside and provisions of Section 22A inserted by registration (Tamil Nadu Amendment) Act, 1994) was held to be unconstitutional.
(6) Pandurangan v. Sub-Registrar, Reddiar-palayam Pondicherry, AIR 2007 Mad 159, in which it was held that withholding of registration of document is not permissible based on executive instructions in absence of any statutory rule and that registering authority has no power to make inquiry relating to title. In this case even amendment made to Rule 54 framed in exercise of powers under Section 69 of the Act 1908, by which, scope of power conferred upon registering authority under Sections 34 and 35 of the Act came to be enlarged and was held to be illegal by holding that statutory rules cannot override express provisions of the statute and execution instructions cannot override either of the two.
(7) Rajni Tandon v. Dulal Ranjan Ghosh Dastidar, 2009 (3) GLH 533 whereby the Apex Court held that holder of power of attorney himself is executant of the document to be registered is entitled to present such document before registering officer for registration and in such a case namely where a deed is executed by a agent for principal and the same agent signs, appears and presents the deed or admits an execution before Registering Officer, it is not a case of presentation under Section 32(c) of the Act 1908. In other words, only in cases where the person signing the document cannot present the document before the registering officer and gives a power of attorney to another to present the document that the provisions of Section 33 get attracted. It is only in such a case, that the said power of attorney has to be necessarily executed and authenticated in the manner provided under Section 33(1)(a) of the Act 1908.
(8) Shakuntala Devi v. State of Jharkhand, AIR 2010 Jha 56 keeping in mind Sections 34 and 35 of the Act 1908, whereby it is held that registering officer can only see whether document is duly stamped to valuation given and that he has no jurisdiction to withhold or refuse registration of sale deed on the ground that vendor has no title.
No provision empowers Sub Registrar to satisfy himself as to the title
In Eshaque v. Sub Registrar, 2002 (1) KLT 330, it is held that there is no provision which empowers the Sub Registrar to satisfy himself as to the title; and that the Sub Registrar is not justified in requiring the executant of the deed to produce possession certificate from the competent authority to establish possession of property. It is followed in the following decisions:
Sumathi v. State of Kerala, ILR 2018-4 Ker 956; 2018-5 KHC 586; 2018-4 KLT 959
Nilambur Rubber Company Ltd. v. State of Kerala, 2024-4 KLT 642 (Held- registration of a sale deed cannot be refused, on the premise that the executant has no ownership, but only possession over the property conveyed.)
Pankaj Kumar Harlalka v. State of Jharkhand, 2002-3 JCR 152; 2005-2 JLJR 118.
High Courts were unanimous on this issue
In Makhanbala Chakraborty v. Pranab Kanti Basu, 26 Sep 2014, the Tripura High Court observed that the High Courts seem to be unanimous on this issue that the Registrar/Sub-Registrar cannot refuse to register a conveyance entered into by a squatter, since the Registrar does not have the authority to question the title of the transferor. Following decisions were referred to:
Bihar Deed Writers Association v. State of Bihar: AIR 1989 Pat 144(DB) (para 3);
Hari Singh v. Sub-Registrar, : (1998) 120 PLR 787 (DB) (paras 8 to 11),
K. Eshaque v. Sub-Registrar, : AIR 2002 Ker 128 (paras 7 to 9);
Gopal v. District Collector, Bhandara, (2003) 3 Mah LJ 883 (para 11);
Yadla Ramesh Naidu v. Sub-Registrar, : (2009) 1 ALD 337 (paras 22 to 25);
Ashwini Ashok Khirsagar vs. State of Maharashtra, (2010) 3 AIR Bom R (NOC 318) 90 (paras 4 to 8);
Deep Apartment v. State of Maharashtra, : (2012) 6 Bom LR 3782; (paras 6 to 9);
Gurjeet Singh Madaan v. Sub-Registrar, CS (OS) 340/2013, decided on 26-09-2013 (Delhi High Court, paras 23 to 25).
How to Prove the Validity of Resolutions of a Company: Are Minutes Essential?
Yes.
Section 118 of the Companies Act, 2013 speaks about ‘Minutes’. It reads as under:
118: Minutes of proceedings of general meeting, meeting of Board of Directors and other meeting and resolutions passed by postal ballot.
.(1) Every company shall cause minutes of the proceedings of every general meeting of any class of shareholders or creditors, and every resolution passed by postal ballot and every meeting of its Board of Directors or of every committee of the Board, to be prepared and signed in such manner as may be prescribed and kept within thirty days of the conclusion of every such meeting concerned, or passing of resolution by postal ballot in books kept for that purpose with their pages consecutively numbered.
(2) The minutes of each meeting shall contain a fair and correct summary of the proceedings thereat.
(3) All appointments made at any of the meetings aforesaid shall be included in the minutes of the meeting.
(4) In the case of a meeting of the Board of Directors or of a committee of the Board, the minutes shall also contain–
(a) the names of the directors present at the meeting; and
(b) in the case of each resolution passed at the meeting, the names of the directors, if any, dissenting from, or not concurring with the resolution.
(5) There shall not be included in the minutes, any matter which, in the opinion of the Chairman of the meeting,–
(a) is or could reasonably be regarded as defamatory of any person; or
(b) is irrelevant or immaterial to the proceedings; or
(c) is detrimental to the interests of the company.
(6) The Chairman shall exercise absolute discretion in regard to the inclusion or non-inclusion of any matter in the minutes on the grounds specified in sub-section (5).
(7) The minutes kept in accordance with the provisions of this section shall be evidence of the proceedings recorded therein.
(8) Where the minutes have been kept in accordance with sub-section (1) then, until the contrary is proved, the meeting shall be deemed to have been duly called and held, and all proceedings thereat to have duly taken place, and the resolutions passed by postal ballot to have been duly passed and in particular, all appointments of directors, key managerial personnel, auditors or company secretary in practice, shall be deemed to be valid.
(9) No document purporting to be a report of the proceedings of any general meeting of a company shall be circulated or advertised at the expense of the company, unless it includes the matters required by this section to be contained in the minutes of the proceedings of such meeting.
(10) Every company shall observe secretarial standards with respect to general and Board meetings specified by the Institute of Company Secretaries of India constituted under section 3 of the Company Secretaries Act, 1980 (56 of 1980), and approved as such by the Central Government.
(11) If any default is made in complying with the provisions of this section in respect of any meeting, the company shall be liable to a penalty of twenty-five thousand rupees and every officer of the company who is in default shall be liable to a penalty of five thousand rupees.
(12) If a person is found guilty of tampering with the minutes of the proceedings of meeting, he shall be punishable with imprisonment for a term which may extend to two years and with fine which shall not be less than twenty-five thousand rupees but which may extend to one lakh rupees.
‘Minutes’ must be “Proved” by Producing the Original
From Sec. 118(8) it is clear that the ‘Minutes’ must be “proved” by a competent witness like signatory or a person who wrote or who has seen it recording.
There is no provision in the Companies Act or in any other Act which allows ‘extracts’ of the board minutes, or a certified copy to be given in evidence without producing the original. Therefore only way to prove a ‘resolution’ is to prove the ‘minutes’.
Only way to prove a resolution is “Proving” the Minutes
In Escorts Ltd. v. Sai Autos , (1991) 72 Comp Cas. 483 (Delhi); 42(1990) DLT 446, it is observed as under:
“(14) The manner in which such a resolution of the Board of Directors of Companies are to be proved, is clearly stated by Hardayal Hardy, J. in a judgment passed in Suit No. 469 of 1986 in M/s. Oberoi Hotels (India) Pvt. Ltd. v. M/s. Observer Publications (P) Ltd. and others. In this judgment it has been stated that “the ONLY WAY to prove that a particular resolution was passed at a meeting of the Board of Directors of a company is that the minutes book in which the said resolution was recorded as having been passed should be produced in Court as that alone can form evidence of the fact under section 194 of the Act”. Section 194 of the Companies Act reads as under :
“194. Minutes of meetings kept in accordance with the provisions of section 193 shall be evidence of the proceedings recorded therein”.
(Escorts Ltd. v. Sai Autos is referred to in: Havells India Ltd. v. Dilip Rathi, 16 Feb 2018, Delhi High Court; Manoj Kumar Kanuga v. Marudhar Power Pvt. Ltd. , 23 Apr 2013, AP High Court).
Even when exhibit number is given, it cannot be treated as proved
In Ashish C. Shah v. M/s. Sheth Developers Pvt. Ltd., CDJ 2011 BHC 339: 2011 KHC 6506, it is held as under:
“Section 194 of the Companies Act provides that the minutes of meetings kept in accordance with the provisions of section 193 shall be evidence of the proceedings recorded therein. However, no provision in the Companies Act is brought to my notice which provides that the certified copy or extract of the minutes would be admissible in evidence without proof of the original. Section 65(f) of the Evidence Act provides that secondary evidence may be given of the existence, condition and contents of the document when the original is the document of which a certified copy is permitted by the Evidence Act or by any other law in force in India to be given in evidence. As no provision from the Companies Act is brought to my notice under which the certified copy of the minutes of the meetings of the board of directors is admissible in evidence without proof of the original, it must be said that the copy of the minutes cannot be admitted in evidence directlyunless theoriginal is proved or the copy is admitted by opposite party. Therefore, even though that document is given exhibit number, it cannot be treated to have been proved unless the complainant leads appropriate evidence to prove the minutes.”
Minute Books Not open for inspection to the Strangers
In Shri Kishan Rathi v. Mondal Brothers And Co. (Private) Ltd. , AIR 1967 (Cal) 75, [1967] 37 Comp Cas 256, it is held as under:
“The minute books and the book of resolution of the board of directors are books of the company and arenot open to strangers and outsiders. This was also within the special knowledge of the defendant company. If the defendant company was trying to prove that its manager and director had no authority to borrow money, then it was for the company to prove from its own books of minutes and resolutions that no authority was given to Naresh Chandra Mondal, its manager and director. Section 106 of the Evidence Act says that when any fact is specially within the knowledge of any person, the burden of proving that fact is upon him. It is strange that neither the defendant company nor its witness, director Sambhu Nath Mondal, produced the minute book or the book of resolutions in this case. The only inference that can be drawn from such non-production on the facts and circumstances of this case is that,had they been produced, they would have shown that there was good authority and resolution in favour of Naresh Chandra Mondal. That presumption is irresistible in this case. Articles 103 and 114 of the articles of association of this company cast a mandatory duty upon the directors to record minutes of the proceedings of all meetings of the directors in the minute book. The defendant company or its director witness, Sambhu Nath Mondal, being in possession of such minute book and being in special knowledge of the contents of that minute book, it was their duty to produce them and not the duty of the plaintiff.”
It continued as under:
“Whether there was resolution by Board of Directors delegating such power again is a fact within the special knowledge of the defendant company and its Directors. They could have easily produced the resolution book or the minute book to show that there was no such delegation But they had not done so and therefore, an adverse inference must be drawn against them to the effect that had they produced them, they would have shown such delegation to the Manager, Naresh Chandra Mondal.” (Quoted in: Hoshiarpur Azad Transport Co. Ltd. v. Sutlej Land Finance Pvt. Ltd., 2001-103 CC 969; 1995-109 PLR 506 (P&H).
It is held in Hoshiarpur Azad Transport Co. Ltd. v. Sutlej Land Finance Pvt. Ltd. (P&H, Ashok Bhan, J.), 2001-103 CC 969; 1995-109 PLR 506, (quoting above passage in Shri Kishan Rathi v. Mondal Brothers And Co. (Private) Ltd. , AIR 1967 (Cal) 75, [1967] 37 Comp Cas 256) as under:
“The petitioner-company did not produce its book of resolution. The minutes regarding the resolution passed are in possession of the company and are not open for inspection to the strangers. Since the petitioner had taken the stand that its general manager had no authority to borrow the money, it was for the company to prove from its own books of minutes and resolution that no authority was given to its general manager to borrow any money. The only inference which under the circumstances can be drawn from the non-production of these books would be that had these books been produced then the same would have shown that there was a resolution passed by the company authorising its general manager to borrow the money.”
Unpleasant and Inharmonious Judgment of Kerala High Court
Kerala High Court (Single Judge) in Sree Gokulam Chit & Finance Co.(P) v. P.R. Balakrishnan on 8 November, 2024,Crl. A No. 1029 of 2008, 2024: KER:82742, distinguished (i) Escorts Ltd. v. Sai Autos, (1991) 72 Comp Cas. 483 (Delhi); 42(1990) DLT 446, and (ii) Ashish C. Shah v. M/s. Sheth Developers Pvt. Ltd., CDJ 2011 BHC 339: 2011 KHC 6506, saying as under:
“8. Learned counsel for respondents 1 and 2 would contend that, Ext.P8 extract of the minutes is not admissible in evidence and the minutes has to be proved by producing the original. He would rely on a decision of the High Court of Judicature at Bombay in Ashish C. Shah v. M/s. Sheth Developers Pvt. Ltd. & Others reported in [CDJ 2011 BHC 339: 2011 KHC 6506], to say that, Section 194 of the Companies Act provides that, the minutes of meetings kept in accordance with the provisions of Section 193, shall be evidence of the proceedings recorded therein. No provision in the Companies Act was brought to the notice of that court(see End Notes) which provides that, certified copy or extract of the minutes would be admissible in evidence, without proof of the original. Section 65(f) of the Evidence Act provides that, secondary evidence may be given, of the existence, condition and contents of the document, when the original is the document, of which a certified copy is permitted by the Evidence Act or by any other law in force in India, to be given in evidence.
He would rely on another decision of the Delhi High Court in Escorts Ltd. v. Sai Autos and Others [1991 Company Cases Volume 72 Page 483] to say that, copy of resolution was not enough and the original of the minutes book, containing the resolution relied on, has to be brought to the court.
9. Section 119 of the Companies Act, 2013 which corresponds to Section 196 of the Companies Act, 1956 says that, the books containing the minutes of the proceedings of any general meeting of a company or of a resolution passed by postal ballot shall be kept at the registered office of the company, and it shall be open for inspection by any member during business hours and if any member make a request, for a copy of the minutes, it shall be furnished within seven days, on payment of prescribed fees. So, Section 119 of the Companies Act provides for copy of the minutes, and moreover, learned counsel for the appellant would say that, copy of every resolution shall be sent to the Registrar for recording the same within 30 days of passing the same.
Moreover, as per Section 54 of the Companies Act, 1956, a document which requires authentication by a company may be signed by a director, the manager, the secretary or other authorised officer of the company, and need not be under its common seal. So, according to the appellant, Ext.P8 extract of the minutes, which contains the resolution authorising the Assistant Manager to file criminal or civil cases or to give evidence etc., signed by the director of Sree Gokulam Chit & Finance Co. (P) Ltd., was sufficient authority for PW1, to file the complaint and to give evidence, on behalf of the company.
The Single Judge took the stand – the requirement that some law must have been “permitted” to give certified copy in evidence, as provided in Sec. 65 (f), is satisfied (and a resolution or extract can be exhibited), for the Companies Act “provides for copy of the minutes” to “any member“. The stance is totally baseless. Because, a member’s right to to get copy of the minutes is different from the right to “be given“ in evidence the certified copy, as “permitted by the Evidence Act or by any other law in force in India“.
The minutes is not a document “open for inspection to the strangers” as held by Ashok Bhan, J. in Hoshiarpur Azad Transport Co. Ltd. v. Sutlej Land Finance Pvt. Ltd., 2001-103 CC 969; 1995-109 PLR 506).
And, the aforesaid legal position has no connection at all with Section 54 of the Companies Act, 1956, also.
In any event, if Sec. 65 (f) is attracted, “a certified copy of document, but no other kind of secondary evidence, is admissible”; and the certified extract or copy of “resolution” (other than the certified copy of the “minutes”) is insufficient.
End Notes I
Ashish C. Shah v. M/s. Sheth Developers Pvt. Ltd., CDJ 2011 BHC 339: 2011 KHC 6506, observed as under:
“15. Next comes the document No.1 – the certified true copy of the resolution dated 16.2.2009, whereby the complainant company had allegedly resolved to give consent of the Board of Directors to execute power of attorney in favour of Ashwin Sheth, Managing Director and/or Sharad Doshi, Executive Assistant to the Managing Director to institute or defend any suit or criminal proceedings. The learned trial Court observed in the impugned order that there is no clear-cut provision about issuance of certified copy of extract of minutes book but if sub-sec. (2) of Section 196 of the Companies Act is read, it may be stated that certified copy of the minutes can be given. The learned trial Court observed that the witness Sharad Doshi in his affidavit had deposed about the said document and thereby he has proved the genuineness of the document. Under Section 195 of the Companies Act, where minutes of the proceedings of any general meeting of the company have been kept in accordance with the 17 WP-40-11.sxw provisions of section 193, then, until the contrary is proved, the meeting shall be deemed to have been duly called and held, and all proceedings thereat to have duly taken place. Section 194 of the Companies Act provides that the minutes of meetings kept in accordance with the provisions of section 193 shall be evidence of the proceedings recorded therein. However, no provision in the Companies Act is brought to my notice which provides that the certified copy or extract of the minutes would be admissible in evidence without proof of the original.Section 65(f) of the Evidence Act provides that secondary evidence may be given of the existence, condition and contents of the document when the original is the document of which a certified copy is permitted by the Evidence Act or by any other law in force in India to be given in evidence. As no provision from the Companies Act is brought to my notice under which the certified copy of the minutes of the meetings of the board of directors is admissible in evidence without proof of the original, it must be said that the copy of the minutes cannot be admitted in evidence directly unless the original is proved or the copy is admitted by opposite party. Therefore, even though that document is given exhibit number, it cannot be treated to have been proved, unless the 18 WP-40-11.sxw complainant leads appropriate evidence to prove the minutes.”
In Escorts Limited vs Sai Autos, (1991)72 Comp Cas 483 (Delhi), 42(1990) DLT 446, it is observed as under:
“(16) The next question that arises is what amount is due from defendants No. to 3 to the plaintiff company. For this purpose, copies of accounts have been produced by the plaintiff company. Copies of the accounts produced by the plaintiff company deals with the transaction between the plaintiff defendants No. to 3. In none of the affidavits filed by the plaintiff, have these accounts been proved in accordance with the provision of section 34 of the Evidence Act, which sets out the manner in which any person can be charged with liability on accounts, and how the liability is to be proved.
(17) Section 34 of the Evidence Act reads as under:
“Entries in books of account regularly kept in the course of business are relevant whenever they refer to a matter into which the Court has to inquire, but each statements shall not alone be sufficient evidence to charge any person with liability”.
(18) In view of the provisions of section 34 of the Evidence Act, entries in the books of account are not alone sufficient evidence to charge any person with liability. Nor can copies of entries in the books of account be sufficient to charge any person with liability. The manner in which entries in the books df account are to be proved to charge any person with liability, has been dealt with by the Supreme Court in (Chandradhar Goswami & others v. Gauhati Bank Ltd., AIR 1967 SC 1058), the Supreme Court has clearly stated that the entries in the books of account are not primary evidence of indebtedness. A plaintiff has to lead evidence in the shape of vouchers, bills etc. to prove the entries in the books of account.
(19) In this view of the matter, neither the copy of the ledger account, nor the ledgers themselves, in respect of account of defendants No. 1, 2 and 3 is enough evidence to charge them with liability, and no decree can be passed against the defendants on the basis thereof.”
End Notes III
Section 34 in The Indian Evidence Act, 1872 reads as under:
34. Entries in books of accounts including those maintained in an electronic form, when relevant: Entries in books of accounts, including those maintained in an electronic form, regularly kept in the course of business, are relevant whenever they refer to a matter into which the Court has to inquire, but such statements shall not alone be sufficient evidence to charge any person with liability.
Section 4 in The Bankers Books Evidence Act, 1891 reads as under:
4. Mode of proof of entries in bankers books: Subject to the provisions of this Act, a certified copy of any entry in a bankers book shall in all legal proceedings be received as prima facie evidence of the existence of such entry, and shall be admitted as evidence of the matters, transactions and accounts therein recorded in every case where, and to the same extent as, the original entry itself is now by law admissible, but not further or otherwise.
S. 4 Banker’s Books Evidence Act cannot charge any person liability
In Chandradhar Goswami v. Gauhati Bank Ltd., AIR 1967 SC 1058, it is held, after quoting Sec. 34, Evidence Act, as under:
“It is clear from a bare perusal of the section that no person can be charged with liability merely on the basis of entries in books of account, even where such books of account are kept in the regular course of business. There has to be further evidence to prove payment of the money which may appear in the books of account in order that a person may be charged with liability thereunder, except where the person to be charged accepts the correctness of the books of account and does not challenge them. In the present case, however, the appellants did not accept the correctness of the books of account.
…. But all that the bank did was to produce a certified copy of account under s. 4 of theBanker’s Books Evidence Act, No. XVIII of 1891. Section 4 of that Act reads thus-
“Subject to the provisions of this Act, a certified copy of any entry in a banker’s book shall in all legal proceedings be received as prima facie evidence of the existence of such entry, and shall be admitted as evidence of the matters, transactions and accounts therein recorded in every case where, and to the same extent as, the original entry itself is now by law admissible, but not further or otherwise”.
It will be clear that s. 4 gives a special privilege to banks and allows certified copies of their accounts to be produced by them and those certified copies become prima facie evidence of the existence of the original entries in the accounts and areadmitted as evidenceof matters, transactions and accounts therein, but such admission is only where, and to the same extent as, the original entry itself would be admissible by law and not further or otherwise.
Original entries alone under s. 34 of the Evidence Act would not be sufficient to charge any person with liability and as such copies produced under s. 4 of theBanker’s Books Evidence Act obviously cannot charge any person with liability.
Therefore, where the entries are not admitted it is the duty of the bank if it relies on such entries to charge any person with liability, to produce evidence in support of the entries to show that the money was advanced as indicated therein and thereafter the entries would be of use as corroborative evidence. But no person can be charged with liability on the basis of mere entries whether the entries produced are the original entries or copies under s. 4 of the Banker’s Books Evidence Act.
… We are therefore of opinion that in view of s. 34 of the Evidence Act the appellants cannot be saddled with liability for the sum of Rs. 10,000/- said to have been advanced on March, 19,1947 on the basis of a mere entry in the amount. Section 34 says that such entry alone shall not be sufficient evidence, and so some independent evidence had to be given by the bank to show that this sum was advanced.”
This decision (Chandradhar Goswami v. Gauhati Bank Ltd.) is referred to in:
Kottayam District Co-operative Bank Ltd. v. P. S. Mohanan Nair, 2008-2 KerHC 125,
Gobind Singh v. State Bank of India, AIR 2016 CC 2225; ILR 2016-3 HP 336,
Corporation Bank v. Shri Ganpati, 1992-2 WLC 48,
State Bank of India v. Hegde and Golay Limited, ILR 1987 Kar 2364
Section 2(2) of the Code of Civil Procedure defines “decree” as under:
“2(2). “decree” means the formal expression of an adjudication which, so far as ragards the Court expressing it, conclusively determines the rights of the parties with regard to all or any of the matters in controversy in the suit and may be either preliminary or final. It shall be deemed to include the rejection of a plaint and the determination of any question within Section 144, but shall not include-
.(a) any adjudication from which an appeal lies as an appeal from an order, or
(b) any order of dismissal for default.
Explanation.- A decree is preliminary when further proceedings have to be taken before the suit can be completely disposed of. It is final when such adjudication completely disposes of the suit. It may be partly preliminary and partly final.”
Order 23 Rule 1 CPC
Order 23 Rule 1 CPC provides as under:-
“1. Withdrawal of suit or abandonment of part of claim:
(1) At any time after the institution of a suit, the plaintiff may as against all or any of the defendants abandon his suit or abandon a part of his claim: ….
(2) ……..
(3) Where the Court is satisfied,-
that a suit must fail by reason of some formal defect, or
that there are sufficient grounds for allowing the plaintiff to institute a fresh suit for the subject- matter of a suit or part of a claim, it may, on such terms as it thinks fit, grant the plaintiff permission to withdraw from such suit or such part of the claim with liberty to institute a fresh suit in respect of the subject-matter of such suit or such part of the claim.
(4) …..
(5) Nothing in this rule shall be deemed to authorise the Court to permit one of several plaintiffs to abandon a suit or part of a claim under sub-rule (1), or to withdraw, under sub-rule (3), any suit or part of a claim, without the consent of the other plaintiffs.”
Restriction To Withdraw From The Suit At The Appellate Stage
There is restriction on the right to withdraw from the suit at the appellate stage. The plaintiff has no absolute right, at the appellate stage, to withdraw from the suit. An application made at the appellate stage to withdraw the suit cannot be allowed by the court if granting such permission would have the effect of depriving or destroying or nullifying or annulling any right which has come to be vested with the defendant under the decree. The court shall keep in mind the fact that, when permission is granted to withdraw from the suit with liberty to file a fresh suit, the parties are placed in the same position as they would have been, had the suit not been instituted at all. (Sabu Issac v. Antony Chacko, ILR 2020-4 Ker 725)
Rights under a decree cannot be taken away Unless Very Strong Reasons
In Sneh Gupta v. Devi Sarup (SB Sinha, J.), (2009) 6 SCC 194, referring Order 23 of the CPC it has been held that the parties are bound by the compromise. It is observed as as under:
“22. In view of the above discussion, it comes out that where a decree passed by the trial court is challenged in appeal, it would not be open to the plaintiff, at that stage, to withdraw the suit so as to destroy that decree. The rights which have come to be vested in the parties to the suit under the decree cannot be taken away by withdrawal of the suit at that stage unless very strong reasons are shown that the withdrawal would not affect or prejudice anybody’s vested rights.”
In Sneh Gupta v. Devi Sarup, the Apex Court relied on the earlier judgment, R. Rathinavel Chettiar v. V. Sivaraman, (1999) 4 SCC 89, where the case of the respondent was placed as under:
“As a desperate bid to save the lost battle, learned counsel for plaintiff-respondent No. 1 contended that since the appellants had obtained the sale-deed by fraud, which would not have the effect of conveying any title to them, they cannot, in the matter of withdrawal of suit, intervene nor can they be heard to oppose withdrawal.”
The Apex Court did not agree with the plaintiff; and held as under:
“We are not entering into the legality of the sale-deed as it is not the subject matter of the suit under appeal. Since appellants had already been impleaded as respondents in the appeal on the basis of that sale-deed, they have a right to be heard in the matter of withdrawal of suit.”
Certified copies of the public documents can be proved without formal proof.
Jojy George Koduvath.
Statutory Registers are Admissible under S. 35, Evidence Act
In terms of Section 35 of the Indian Evidence Act, 1872, the entries made in the statutory registers are admissible in evidence (as they are declared to be relevant): CIDCO v. Vashudha Gorakhnath Mandevleka, 2009 (7) SCC 283.
Section 35 of the Evidence Act reads as under:
“35. Relevancy of entry in public record or an electronic record made in performance of duty: An entry in any public or other official book, register or record or an electronic record, stating a fact in issue or relevant fact, and made by a public servant in the discharge of his official duty, or by any other person in performance of a duty specially enjoined by the law of the country in which such book, register, or record or an electronic record is kept, is itself a relevant fact.
Under S. 114, Court can presume existence of Any Fact
Sec. 114 of the Evidence Act allows the Court to presume the existence of any fact. It reads as under:
“114. Court may presume existence of certain facts —The Court may presume the existence of any fact which it thinks likely to have happened, regard being had to the common course of natural events, human conduct and public and private business, in their relation to the facts of the particular case. Illustrations ……”
Public Documents carry the ‘Presumption of Correctness‘
Following are the general rules:
1. Mere ExecutionNot Prove – Recitals Are Correct
Gangamma v. Shivalingaiah, 2005 9 SCC 359
“We may furthermore notice that even if a formal execution of a document is proved, the same by itself cannot lead to a presumption that the recitals contained therein are also correct. The mere execution of a document, h in other words, does not lead to the conclusion that the recitals made therein are correct, and subject to the statutory provisions contained in Sections 91 and 92 of the Evidence Act, it is open to the parties to raise a plea contra thereto.”
2. A Writing, By Itself, Is Evidence Of Nothing
The Bombay High Court, in Bank of India v. M/s. Allibhoy Mohammed, AIR 2008 Bom 81, it is held as under:
“33. The mode of proving the contents of the documents has been dealt with in Sections 61-66. As already stated hereinabove the production of the document purporting to have been signed or written by a certain person is no evidence of its authorship. It is necessary to prove their genuineness and execution. Proof, therefore, has to be given of the handwriting, signature and execution of a document. No writing can be received in evidence as a genuine writing until it has been proved to be a genuine one, and none as a forgery until it has been proved to be a forgery. A writing, by itself, is not evidence of the one thing or the other. A writing, by itself, is evidence of nothing, and therefore is not, unless accompanied by proof of some sort, admissible as evidence.” (Quoted in: Akbarbhai Kesarbhai Sipai VS Mohanbhai Ambabhai Patel, 2019-3 GLH 523)
But, Public Documents Stand on a Different Footing
Presumption of Correctness to Revenue Record Entries
In Vishwa Vijay Bharathi v. Fakhrul Hassan, (1976) 3 SCC 642, it is held as under:
“It is true that the entries in the revenue record ought, generally, to be accepted at their face value and courts should not embark upon an appellate inquiry in to their correctness. But the presumption of correctness can apply only to genuine, not forged or fraudulent, entries. The distinction may be fine but it is real. The distinction is that one cannot challenge the correctness of what the entry is the revenue record states but the entry is open to the attack that it was made fraudulently or surreptitiously. Fraud and forgery rob a document of all its legal effect and cannot found a claim to possessory title.”
In Karewwa v. Hussensab Khansab Khansaheb Wajantri, AIR 2002 SC 504 : (2002) 10 SCC 315 , it is held as under:
“We do not dispute the legal position as stated by the learned counsel for the appellant, but the presumption of correctness of an entry in revenue record cannot be rebutted by a statement in the written statement. Mere statement of fact in the written statement is not a rebuttal of presumption of correctness of an entry in the revenue record. The respondent was recorded as a tenant in the revenue record in the year 1973 and under law the presumption is that the entry is correct. It was for the appellant to rebut the presumption by leading evidence. The appellant has not led any evidence to show that entry in the revenue record is incorrect. We, therefore, do not find any merit in the contention.”
Our Apex Court, in Partap Singh v. Shiv Ram: AIR 2020 SC 1382, referring relevant provisions of Himachal Land Revenue Act, 1954 and Section 35 of the Evidence Act, held that Record-of-rights (Revenue document) carries the ‘presumption of correctness‘.
In The State of Haryana v. Amin Lal, 2024-4 CurCC(SC) 222, our Apex Court held as under:
“Revenue records are public documents maintained by government officials in the regular course of duties and carry a presumption of correctness under Section 35 of the Indian Evidence Act, 1872. While it is true that revenue entries do not by themselves confer title, they are admissible as evidence of possession and can support a claim of ownership when corroborated by other evidence.”
In Inder Singh v. S. Raghbir Singh, AIR 1978 P&H 98, it is observed as under:
“The principle is that an official record, kept by a person, upon whom there is a public duty to make entries in it only after satisfying himself of the truth of those entries, is presumed to be correct. Such a document itself is evidence of the truth of its contents unless and until its falsity can be demonstrated by any of the various methods by which the evidentiary value of any public book, register or document may be attacked.”
See also: Kalyan Singh v. Chhoti, AIR 1990 SC 396 (Correctness of certified copies is presumed under Section 79).
Wajibul-Arz – Part of Settlement RecordPresumption of Correctness Attached
The Privy Council has held in Fatea Chand v. Knshan, 10 ALJ 335, that wajibul-arz is a cogent evidence of rights as they existed when it was made.
The value of wazibul-aiz has been accepted to be very high in Anant Prasad v. Raja Ram, 1984 Supp AWC 194 and Yash Pat Singh v. Jagannath, 1946 ALJ 132.
In Avadh Kishore Das v. Ram Gopal, AIR 1979 SC 861, (1979) 4 SCC 790, it is observed as under:
“Wajibularz is village administration paper prepared with due care and after due enquiry by a public servant in the discharge of his official duties. It is a part of the settlement record and a statutory presumption of correctnessattaches to it. Properly construed, this Wajibularz shows that the entire revenue estate of village Bahawalpura vests in the Temple or the Math as a juristic person.”
Revenue Record Presumption of Truth Attached
It is held in Krishnamurthy S. Setlur v. O.V. Narasimha Setty, 2019-9 SCC 488, that revenue record proves possession. It is said as under:
“14. In our considered view, the High Court has not given any cogent reasons for coming to the conclusion that KS was not in possession of the property. His name figured in the revenue record from 1963 to 1981 as the owner in possession. Presumption of truth is attached to revenue record which has not been rebutted.”
Public document – Presumption (as to correctness) under Section 114(e)
Iqbal Basith v. N Subbalakshmi, (2021) 2 SCC 718.
Oriental Insurance Company Ltd. v. Poonam Kesarwani , (2010) ACJ 1992 (Register of Driving Licences is a public document)
Where Truth of Public Document Disputed, itmust be Established
In Om Prakash Berlia v. Unit Trust of India, AIR 1983 Bom 1, it is held that even when the contents of a document is proved, the truth of what the document states must be separately established. It was a case where truth of contents disputed. It is clear from this decision that the proposition as to proving truth is more apposite when a contention was raised regarding the correctness of truth of the documents. It was further held in this case that annual return under the provisions of Section 164 of the Companies Act was prima facie evidence of any matters directed or authorised to be inserted therein by the Companies Act. The said extract prima facie establishes the truth of the contents of its original.
It is made clear in Ramji Dayawala Vs. Invest Import: AIR 1981 SC 2085, as under:
“If the truth of the facts stated in a document is in issue mere proof of the handwriting and execution of the document would not furnish evidence of the truth of the facts or contents of the document. The truth or otherwise of the facts or contents so stated would have to be proved by admissible evidence, i.e. by the evidence of those persons who can vouchsafe for the truth of the facts in issue.”
Public Document Admissible per se without Formal Proof
In R. V. E. Venkatachala Gounder v. Arulmigu Viswesaraswami & V. P. Temple, AIR 2003 SC 4548; 2003-8 SCC 752it is held as under:
“It is not disputed that the order of Charity Commissioner is a public document admissible in evidence without formal proof and certified copy of the document is admissible in evidence for the purpose of proving the existence and contents of the original. An order of Charity Commissioner is not per se the evidence of title inasmuch as the Charity Commissioner is not under the law competent to adjudicate upon questions of title relating to immovable property which determination lies within the domain of a Civil Court.”
In Kalyan Singh v. Chhoti, AIR 1990 SC 396, it is held that correctness of certified copies can be presumed under Section 79.
Certified copies of the public documents can be proved without formal proof. See:
Jaswant Singh v. Gurdev Singh, 2012-1 SCC 425 ,
Shyam Lal @ Kuldeep v. Sanjeev Kumar, AIR 2009 SC 3115; 2009-12 SCC 454
P. Purushottam Reddy v. Pratap Steels LTD. , AIR 2002 SC 771; 2002-2 SCC 686
Harpal Singh and Another v. State of Himachal Pradesh, AIR 1981 SC 361
Madamanchi Ramappa v. Muthalur Bojjappa, AIR 1963 SC 1633
Vijayamma v. G. Venugopal, 2024-2 Ker HC 553,
Arti Meena v. Rajasthan High Court, Jodhpur, 2020-1 SCT 1 (Raj).
Collector (L. A. ), South Andaman v. Himangshu Mondal, 2015-2 CalLT 1
Poddar Plantations Limited v. Thekkemariveettil Madhavi Amma, ILR 2014-1 Ker 813; 2014 1 KLT 439
Rajasthan State Road Trans. Corp. v. Nand Kishore, 2002 ACJ 1564 (Raj)
Md. Akbar v. State of A.P., 2002 CrLJ 3167 (And)
In Madamanchi Ramappa v. Muthalur Bojjappa (Gajendragadkar , J.), AIR1963 SC1633; 1964-2 SCR 673, it is held as under:
“9. … The document in question being a Certified copy of a public document need not have been proved by calling a witness.”(Referred to in Rangaraju v. Kannayal, 10 Jan 2012, (Mad).
In Harpal Singh and Another v. State of Himachal Pradesh, AIR 1981 SC 361, it is held as under:
“3.… We cannot agree with him for the simple reason that the entry was made by the concerned official in the discharge of his official duties, that it is therefore clearly admissible under Section 35 of the Evidence Act and that it is not necessary for the prosecution to examine its author ” (Quoted in: Manikanta v. State of Karnataka, 2024 Kar HC 21233)
In Shyam Lal @ Kuldeep v. Sanjeev Kumar, AIR 2009 SC 3115; 2009-12 SCC 454, it was observed as under:
“25. The findings of the learned District Judge holding Ex. P. 2 to be a public documentand admitting the same without formal proof cannot be questioned by the defendants in the present appeal sinceno objection was raised by them when such document was tendered and received in evidence.
It has been held in Dasondha Singh and Others v. Zalam Singh and Others [1997(1) P.L.R. 735] that an objection as to the admissibility and mode of proof of a document must be taken at the trialbefore it is received in evidence and marked as an exhibit.
Even otherwise such a document falls within the ambit of Section 74, Evidence Act, and is admissible per se without formal proof“.
In Jaswant Singh v. Gurdev Singh, 2012-1 SCC 425, it is held that certified copy of a public document prepared under Section 76 of the Act, in terms of Section 74 of the Indian Evidence Act, 1872 is admissible in evidence under Section 77 of the said Act, without being proved by calling witness. It is said as under:
“9. … To put it clear, the compromise had become a part of the decree which was passed by the court of Sub-Judge Ist Class, Hoshiarpur. Hence, it is a public document in terms of Section 74 of the Indian Evidence Act, 1872 (in short ‘the Act’) and certified copy of the public document prepared under Section 76 of the Act is admissible in evidence under Section 77 of the said Act. A certified copy of a public document is admissible in evidence without being proved by calling witness.
See also the following cases where documents were accepted in evidence and acted upon on the basis of Section 35 Evidence Act:
Umesh Chandra v. State of Rajasthan, AIR 1982 SC 1057 (admission forms as also the School’s register)
Harpal Singh v. State of Himachal Pradesh, AIR 1981 SC 361 (certified copy of the birth register).
In Mosomat Jago Devi v. Mahabir Prasad Joshi, 2007-2 PCCR 164; 2007-3 PLJR 197 (Pat), it is held as under:
“It is true that this order-sheet is not an exhibited document but admittedly, it is a public document and since it is on record, as such judicial notice of the public document can be legally taken.”
In Silli Man Subba VS Man Bahadur Subba, 2015 ACJ 2575, it is pointed out as under:
“there was no necessity to examine the BDO to prove as the certificate would fall within the meaning of a public document as provided under Section 74 of the Indian Evidence Act, 1872 and that judicial notice can be taken of it under Clauses (6) and (7) of Section 57 thereof.”
The Court can Take Judicial Notice of Public Records
In Kalpana Mehta v. Union of India, AIR 2018 SC 2493; 2018-7 SCC 1
“123. There can be no dispute that parliamentary standing committee report being in the public domain is a public document. Therefore, it is admissible under Section 74 of the Evidence Act and judicial notice can be taken of such a document as envisaged under Section 57(4) of the Evidence Act. There can be no scintilla of doubt that the said document can be taken on record.”
In Bangalore Development Authority v. Bhagavandas Patel 2017 2 AIR(Kar)(R) 695; ILR 2017 Kar 1319, it is held as under:
“25. The documents now sought to be produced along with I.A.2/2007 are public documents and merely compliment the exhibits already marked as D1 and D2. The same being public documents, this Court takes judicial notice of the same. This Court is of the considered opinion that further trial is not required as the fact remains that the veracity or authenticity of the said documents is not disputed by the plaintiff/respondent. Hence, the application I.A.2/2007 is accordingly, allowed and this Court takes judicial notice of the documents produced along with the said application.”
In Juhi Chawla v. Gangandeep Singh, 2020-1 MPWN 7, it is held as under:
“8. The Income Tax Return of the respondent cannot be treated a public document and the Court cannot take judicial notice of the same.”
Rama Association Private Limited v. Delhi Development Authority, 1998-74 DLT 653 (Del), it is held as under:
“It is a document emanating from DDA and it is a document for public use and, therefore. Court can take judicial notice of it and can look into the contents of the Master Plan.”
In Income Tax Officer v. Abdul Majeed, 1987-2 KLT 303 (KT Thomas, J.) observed as under:
“Proceedings under S.279(1) of the Act are official acts and the document evidencing the proceedings of the Commissioner is a public document, the production of which would be sufficient to enable the court to take judicial notice thereof. Even if the document containing the proceedings of the Commissioner has not been formally marked as an exhibit, the document cannot be overlooked by the Criminal Court. No formal proof through oral evidence is required for a public document. In Income tax Officer, Hassan v. Dharmchand Multanmul (1972 (Vol. 86) ITR 70) a similar situation arose. In Chat case the counsel for the accused pointed out at the time of argument that there was no sanction to prosecute him and hence the complaint was liable to be dismissed. At that stage, the Income-tax Officer filed an application for recalling the first witness for the purpose of formally proving the proceedings by which sanction was accorded. As the Magistrate did not accede to the request, the matter was taken up before the High Court of Mysore. It was observed by the High Court that recalling of the witness for the purpose of proving the sanction was not necessary “as it would be open to the Magistrate to look into the sanction produced by the prosecution”. I respectfully agree with the aforesaid reasoning of the learned single judge of the Mysore High Court. I therefore hold that the acquittal, on the ground that there was no formal proof of sanction, cannot be sustained.”
In Mangilal v. Mankunwarbai, 1986-2 MPWN 231, it is pointed out as under:
“Ex. D – l being a public document, the Court below should have taken a judicial notice of the same.”
Official Document Relevant by itself, and no other proof required
In Shiv Ram v. Shiv Charan Singh, AIR 1964 Raj 126, it is observed as under:
“Where Section 35 properly comes into play, an entry made by a public servant in any public or official book in the discharge of his official duty becomes relevant by itself, and no other proof of such entry is requiredas a matter of law by our Evidence Act, but this, does not exclude the possibility that such an entry may become admissible otherwise if it is properly proved to have been made by a person ordinarily competent to make it.” (Quoted in Mayadhar Nayak vs Sub-Divisional Officer, Jajpur, AIR 1982 Ori 221).
Author Need Not be Examined for Proving Document Admissible underS. 35
In Harpal Singh v. State of H. P. , AIR 1981 SC 361; 1981-1 SCC 560, it was held as under:
“A certified copy of the relevant entry in the birth register which shows that Saroj Kumari, who according to her evidence was known as Ramesh during her childhood, was born to Lajwanti wife of Daulot Ram on 11-11-1957. Mr. Hardy submitted that in the absence of the examination of the officer/chowkidar concerned who recorded the entry, it was inadmissible in evidence. We cannot agree with him for the simple reason that the entry was made by the concerned official in the discharge of his official duties, that it is therefore clearly admissible under Section 35 of the Evidence Act and that it is not necessary for the prosecution to examine its author.”
Must be shown, Prepared in discharge Official Duty
In Ravinder Singh Gorkhi v. State of U.P. (2006) 5 SCC 584, it was observed as under:
“23. Section 35 of the Evidence Act would be attracted both in civil and criminal proceedings. The Evidence Act does not make any distinction between a civil proceeding and a criminal proceeding. Unless specifically provided for, in terms of Section 35 of the Evidence Act, the register maintained in the ordinary course of business by a public servant in the discharge of his official duty, or by any other person in performance of a duty specially enjoined by the law of the country in which, inter-alia, such register is kept would be a relevant fact. Section 35, thus, requires the following conditions to be fulfilled before a document is held to be admissible thereunder:
it should be in the nature of the entry in any public or official register;
it must state a fact in issue or relevant fact;
entry must be made either by a public servant in the discharge of his official duty, or by any person in performance of a duty specially enjoined by the law of the country and
all persons concerned indisputably must have an access thereto.”
In Durairaju v. Neela, 1976 CriLJ 1507, Ratnavel Pandian, J., it was held that it was the duty of the court, before making the order for maintenance, to find though in a summary manner, the paternity of the child. It was held that Ex. P. 1, the intimation received by the Municipality from the Government Hospital, and Ex. P. 2 a copy of the birth extract made on the basis of Ex, P. 1, were not sufficient to raise Presumption of paternity for,
the medical officer who made the entries in Ex. P. 1 had not been examined.
The author of the information is not mentioned in Ex. P. 1. PW 2 herself had not stated that she mentioned to the doctor that the child was born to her through the petitioner.
In the absence of such evidence, the document could not by itself prove the relevant entries made thereon. It was also observed that to prove a document under Section 35 it must be shown that the document was prepared by a public servant in discharge of his official duty or by any person in performance of a duty specially enjoined by the law.
If a Document Ex Facie Requires Truth, No Question of Shifting Burden.
The proposition, ‘Presumption Shifts Burden of Proving Registered Documents‘, is not an invariable rule. If it comes out from the pleadings or issues that the burden is upon the person who produced the registered document to prove its truth, the presumed presumption will not help him.
For example – The executant of the registered deed would not have executed such a deed (he being abroad), in all probabilities (regard being had to the common course of natural events, human conduct etc.) as revealed from the pleadings or documents produced; or, its untrue nature can be ‘judicially noticed’(ex-facie).
Court can take Judicial Notice; But, Parties should get Opportunity to Challenge
In Poddar Plantations Limited v. Thekkemariveettil Madhavi Amma, ILR 2014-1 Ker 813; 2014 1 KLT 439, it is held as under:
“70. There could be no dispute that the court has the power to take judicial notice of public records. Assuming that the settlement register referred to by the Tribunal is a public record, it is not as if the contents of the settlement register cannot be disputed. Parties should get opportunity to challenge correctness of the contents of the document. The 2nd defendant did not get that opportunity. Hence the Tribunal was not correct in relying on the settlement register as referred to in its order.”
Public Register is Public Document; A Certificate, Not
In Oriental Insurance Company Ltd. v. Poonam Kesarwani , (2010) ACJ 1992, the Division Bench of Allahabad High Court considered whether the letter/certificate issued by Regional Transport Officer coluld be considered to be a public document as defined in Section 74 of the Indian Evidence Act which required no proof. It is pointed out –
‘A public document is a document that is made for the purpose of public making use of it. When a public officer is under a duty to make some entries in the official book or register, the entries made therein are admissible in evidence to prove the truth of the facts entered in the official book or register. The entries are evidence of the particular facts which was the duty of the officer to record. The law reposes confidence in the public officer entrusted with public duties and the law presumes that public officers will discharge their duties with responsibility. A driving licence is issued under Chapter II of the Act. Section 26 of the Act makes it mandatory for the State Government to maintain a register known as State Register of Driving Licences. The entries with regard to issuance or renewal of driving licence by the licensing authorities which contains particulars of the licence and the licence holder are entered by the Regional Transport Officer/the licensing authority in discharge of their official duty enjoined by law. The State Register of Driving Licences is record of the acts of public officers. The State Register of Driving Licences is a public record. It can be inspected by any person. We are of the considered opinion that the State Register of Driving Licences is a public document as defined by Section 74 of the Evidence Act.
10. Section 76 of the Evidence Act gives the right to obtain a certified copy of a public document which any person has a right to inspect on payment of fee. A certified copy of the entries made in the public record is required to be issued on payment of fee in Form 54 as laid down by rule 150 (2). Form 54 being a certified copy of a public document, namely, the State Register of Driving Licences need not be proved by examining a witness. Once a certified copy of the entries made in the register maintained under Section 26 (1) read with rule 23 is issued in Form 54 it is admissible in evidence under Section 77 of the Evidence Act, and no further proof of Form 54 by oral evidence by examining witnesses is required.
12. The aforesaid information is in the form of a letter written to the investigator appointed by the insurance company. It cannot be deemed to be a certificate or certified copy in Form 54 of the Rules. Deposit of fee would not convert the letter into a certificate under rule 150. Therefore, the aforesaid letter issued by the Regional Transport Officer, Raipur (Chhattisgarh) was required to be proved by the insurance company before the Tribunal by oral evidence by examining witnesses. Insurance company had failed to lead any evidence to prove the aforesaid letter by examining witnesses before the Tribunal. The Tribunal rightly refused to place reliance on the letter dated 20.4.2005.”
Oriental Insurance Company Ltd. v. Poonam Kesarwani , (2010) ACJ 1992 is quoted and followed in New India Assurance Company Ltd. v. Indu Bala, ILR 2016-3 HP 1829 (Tarlok Singh Chauhan, J.).
Proof on Date of Birth
In Ravinder Singh Gorkhi v. State of U. P. , AIR 2006 SC 2157; 2006 5 SCC 584, it was observed that there was nothing on record to show that the said date of birth was recorded in a register maintained by the school in terms of the requirements of law as contained in Section 35 of the Indian Evidence Act, and thereafter it was held as under:
“22. Section 35 of the Evidence Act would be attracted both in civil and criminal proceedings. The Evidence Act does not make any distinction between a civil proceeding and a criminal proceeding. Unless specifically provided for, in terms of Section 35 of the Evidence Act, the register maintained in ordinary course of business by a public servant in the discharge of his official duty, or by any other person in performance of a duty specially enjoined by the law of the country in which, inter alia, such register is kept would be a relevant fact. Section 35, thus, requires the following conditions to be fulfilled before a document is held to be admissible thereunder :
(i) it should be in the nature of the entry in any public or official register;
(ii) it must state a fact in issue or relevant fact;
(iii) entry must be made either by a public servant in the discharge of his official duty, or by any person in performance of a duty specially enjoined by the law of the country; and
(iv) all persons concerned indisputably must have an access thereto.”
In Ravinder Singh Gorkhi v. State of U.P. (2006) 5 SCC 584, the proof of copy of a school leaving certificate was also considered under Section 35 of the Evidence Act and it is held as under:
“17. “The school leaving certificate was said to have been issued in the year 1998. A bare perusal of the said certificate would show that the appellant was said to have been admitted on 01.08.1967 and his name was struck off from the roll of the institution on 06.05.1972. The said school leaving certificate was not issued in ordinary course of business of the school There is nothing on record to show that the said date of birth was recorded in a register maintained by the school in terms of the requirements of law as contained in Section 35 of the Indian Evidence Act. No statement has further been made by the said Head Master that either of the parents of the appellant who accompanied him to the school at the time of his admission therein made any statement or submitted any proof in regard thereto. The entries made in the school leaving certificate, evidently had been prepared for the purpose of the case. All the necessary columns were filled up including the character of the appellant. It was not the case of the said Head Master that before he had made entries in the register, age was verified. If any register in regular course of business was maintained in the school; there was no reason as to why the same had not been produced.
19. The school leaving certificate was not an original one. It was merely a second copy. Although it was said to have been issued in July 1972, the date of issuance of the said certificate has not been mentioned. The copy was said to have been signed by the Head Master on 30.04.1998. It was accepted before the learned Additional Sessions Judge, Bulandshahr on 27.01.1999. The Head Master has also not that the copy given by him was a true copy of the original certificate. He did not produce the admission register.
23. Section 35 of the Evidence Act would be attracted both in civil and criminal proceedings. The Evidence Act does not make any distinction between a civil proceeding and a criminal proceeding. Unless specifically provided for, in terms of Section 35 of the Evidence Act, the register maintained in ordinary course of business by a public servant in the discharge of his official duty, or by any other person in performance of a duty specially enjoined by the law of the country in which, inter alia, such register is kept would be a relevant fact.Section 35, thus, requires the following conditions to be fulfilled before a document is held to be admissible thereunder : (i) it should be in the nature of the entry in any public or official register;; (ii) it must state a fact in issue or relevant fact; (iii) entry must be made either by a public servant in the discharge of his official duty, or by any person in performance of a duty specially enjoined by the law of the country; and (iv) all persons concerned indisputably must have an access thereto.
35. We have not been shown as to whether any register was required to be maintained under any statute. We have further not been shown as to whether any register was maintained in the school at all. The original register has not been produced. The authenticity of the said register, if produced, could have been looked into. No person had been examined to prove as to who had made entries in the register. The school leaving certificate which was not issued by a person who was in the school at the time when the appellant was admitted therein, cannot be relied upon.”
In Sushil Kumar v. Rakesh Kumar, (2003) 8 SCC 673, it is held that transfer certificate issued by a Primary School does not satisfy the requirement of Section 35 of Indian Evidence Act. Para 32 and 33 of the judgment read as under:
“32. Under Section 35 of the Indian Evidence Act, a register maintained in terms of a statute or by statutory authority in regular course of business would be relevant fact. Had such a vital evidence been produced, it would have clinched the issue. The respondent did not choose to do so.
33. In the aforementioned backdrop the evidence brought on record are required to be considered. The Admission Register or a Transfer Certificate issued by a Primary School do not satisfy the requirements of Section 35 of the Indian Evidence Act. There is no reliable evidence on record to show that the date of birth was recorded in the school register on the basis of the statement of any responsible person.”
Age of a Person in a School Register – Not Much Evidentiary Value
In Birad Mal Singhvi v. Anand Purohit ,1988 Supp. SCC 604, it was held as under:
“To render a document admissible under Section 35, three conditions must be satisfied, firstly, entry that is relied on must be one in a public or other official book, register or record; secondly, it must be an entry stating a fact in issue or relevant fact; and thirdly, it must be made by a public servant in discharge of his official duty, or any other person in performance of a duty specially enjoined by law. An entry relating to date of birth made in the school register is relevant and admissible under Section 35 of the Act but the entry regarding the age of a person in a school register is of not much evidentiary value to prove the age of the person in the absence of the material on which the age was recorded
Entry on Caste in School Admission Registers- Relevant and Admissible
In Desh Raj v. Bodh Raj, AIR 2008 SC 632; 2008-2 SCC 186, it is held as under:
“Having regard to the provisions of Section 35, entries in school admission registers in regard to age, caste etc., have always been considered as relevant and admissible. [See : Umesh Chandra vs. State of Rajasthan, 1982 (2) SCC 202 and State of Punjab vs. Mohinder Singh, – 2005 (3) SCC 702]. In Kumari Madhuri Patil vs. Addl. Commissioner, [1994 (6) SCC 241], this Court observed that caste is reflected in relevant entries in the public records or school or college admission register at the relevant time and certificates are issued on its basis.”
In Dalchand Mulchand v. Hasanbi AIR 1938 Nag 152 (Vivian Bose and Puranik JJ.) held as under:
“The initial burden of proving execution of a document when it is denied is upon the person alleging execution. But if nothing else is known the mere fact that a document is admitted to bear a certain signature and that it comes from proper custody ought to be enough to raise an inference that it was signed with the intention of execution. This inference arises in Indiadirectly from Sec. 114, Evidence Act. Persons do not ordinarily sign documents without intending to execute them: that is not the common course of human conduct, nor yet the common course their public or private business. Consequently if any person wants to rely on an exceptional circumstance, if he wants to show that in some particular instance the ordinary rule was abrogated surely he must prove it and thus the burden shifts on him”.
1910SETTLEMENT REGISTERS of Travancore, Basic Record
The Kerala High Court held in Mohandas v. Santhakumari Amma, 2018-3 KLT 606 as under:
“We notice that, a new survey and settlement was undertaken in the erstwhile Travancore State for the purpose of putting in place a sound Revenue administration. Accordingly, it appears that a complete survey and reassessment of the entire State ’embracing an accurate measurement, demarcation, mapping and valuation of properties of every description and a registration of titles, as the basis of a sound Revenue Administration’ was carried out. On the basis of such a statement a proclamation was issued by the Maharaja of Travancore on 14 th Kumbhom 1061 corresponding to 24th February 1886.”
If Settlement Register says Government Land, Petitioner to Establish Title
In Sahana Industries v. State of Kerala (2021 KHC OnLine 7110), Kerala High Court (Devan Ramachandran, J.) held (October 11, 2021) as under:
“… If the Settlement Register shows this land to be Government land, then certainly, the petitioner is obliged to establish their title over the property through competent documents”.
Chitharanjan v. State of Kerala – 0n Settlement Register
In Chitharanjan v. State of Kerala, WP(C) No. 25830/2010 (2025:KER:5422) 24.01. 2025 (Harisankar V. Menon, J.) it is pointed out as under:
“7. …. In the Settlement Registerat Ext. R1(a), there is no dispute that the entire properties under old Survey No. 2211 having an extent in excess of 107 Acres are shown as “puramboke“….
8…. As regards the petitioner in WP(C) No. 25830 of 2010 also, the title is traceable to some documents of the Attingal Sub Registry of the yeas 1959, 1957 and 1061. But, it is categorically found that even in these documents, there is no mention as to the receipt of pattayam with respect to the property in question.
11. …. As already noticed, the settlement register describes the property as “Puramboke”. … In view of the discussions made above, I am of the opinion that the contentions raised by the learned Senior Government Pleader with respect to the malpractices committed, cannot be brushed aside.
13….. However, I notice that WP(C) No.25830 of 2010 the entry with respect to the Settlement Registeris to be considered at first, which admittedly is against the petitioner. The case of the State is that some foul play is carried out subsequently at the instance of those interested and therefore, the subsequent entries cannot be acted upon.
14. On the other hand, the learned Government Pleader relied on Vallikunnil Janaki Amma and Ors. v. Sree Amruthamangalam Kshethram Moorthi, Kozhikode and Anr. [2014 (1) KHC 57], which laid down the principle with respect to the acceptability/relevance of the Settlement Register. As already noticed, I have found that the Settlement Register describes the property under old Survey No. 2211 as “Puramboke”. To the same effect is the judgment of a learned Single Judge in WP(C) No. 20520 of 2021 dated 11.10.2021. This Court further notices the judgment of the Apex Court in Suraj Bhan and Ors. v. Financial Commissioner and Ors. [(2007) 6 SCC 186] which held that mere entry in the revenue records does not confer title on a person. As already noticed, in view of the entries in the Settlement Register, the requirement of an appropriate assignment cannot be lost sight of.”
In Travancore Devaswom Board v. Mohanan Nair M.N., (2013) 3 KLT 132, (T.R. Ramachandran Nair, J; A.V. Ramakrishna Pillai, J), it is observed as under:
“52. As far as the property herein is concerned, the land register and the settlement register produced herein are relevant. The property having the entire extent of 2.26 acres is described as ‘kavu’ (holy grove) in the settlement register. In the land register also it is described as ‘kshethram irippu sthalam’ (property where the temple is situated). No other document or other evidence is there to prove the contrary.Therefore, these documents will definitely show that the item of property will fit in with the requirement of Section 3(1)(x) of the Act.”
Document Admissible Under Section 35, May (still) Require Corroboration
In Satpal Singh v. the State of Haryana, (2010) 8 SCC 714, it is held as under:
“22. Therefore, a document may be admissible, but as to whether the entry contained therein has any probative value may still be required to be examined in the facts and circumstances of a particular case. The aforesaid legal proposition stands fortified by the judgments of this Court in
Ram Prasad Sharma Vs. State of Bihar, AIR 1970 SC 326;
Ram Murti Vs. State of Haryana, AIR 1970 SC 1029;
Dayaram & Ors. v. Dawalatshah, AIR 1971 SC 681;
Harpal Singh & Anr. v. State of HP, AIR 1981 SC 361;
Ravinder Singh Gorkhi v. State of U.P., (2006) 5 SCC 584;
Babloo Pasi v. State of Jharkhand, (2008) 13 SCC 133;
Desh Raj v. Bodh Raj, AIR 2008 SC 632; and
Ram Suresh Singh v. Prabhat Singh, (2009) 6 SCC 681.
In these cases, it has been held that even if the entry was made in an official record by the official concerned in the discharge of his official duty, it may have weight but stillmay require corroboration by the person on whose information the entry has been made and as to whether the entry so made has been exhibited and proved. The standard of proof required herein is the same as in other civil and criminal cases. Such entries may be in any public document; i.e. school register, voters listor family register prepared under the rules and regulations, etc, in force, and may be admissible under Section 35 of the Evidence Act as held in Mohd, Ikram Hussian v. State of U.P. and Santenu Mitra v. State of W.B.”
Are the Pleadings In a Previous Case Public Documents?
Can the Certified copies be filed as Public Documents?
Divergent opinions.
Sec. 74 0f the Indian Evidence Act, 1872, defined Public Documents in Section 74. It reads as under:
“74. public Documents: The following documents are public documents:
(1) documents forming the acts, or records of the acts
(i) of the sovereign authority,
(ii) of official bodies and tribunals, and
(iii) of public offices, legislative, judicial and executive, [of any part of India or of the Commonwealth], or of a foreign country;
(2) public records kept [in any State] of private documents.”
After referring Sec. 74, the Punjab High Court in Bawa Singh VS Harnam Singh, 2008-4 CivCC 376; 2008-4 LawHerald 2891; 2009-5 RCR(Civ) 183, held as under:
“9. pleadings of a party, does not fall in any of the public documents as specified under Section 74 of the Act and, thus, comes within the purview of private document as all documents other than specified in Section 74 of the Act, are private documents. Therefore, certified copy of a written statement allegedly filed by the plaintiff in an earlier suit, is not per se admissible in evidence.”
The Kerala High Court taking a contra view in Usha Kumari v. Santha Kumari, 2023-3 ILR(Ker) 307; 2023-4 KHC 507; 2023-4 KLT 291, it is observed as under:
“11. … On the question as to whether the pleadings in a suit are public documents, there have been divergent opinions.
The Calcutta, Bombay and Orissa High Court have taken the view that pleadings are not public documents
[See: Shazada vs. Wedgeberry, (1873) 10 Bengal Law Reports App. 31
Akshoy Kumar vs. Sukumar, AIR 1951 Cal 320 (321),
Smt. Shamlata Wd/o Manohar Raut vs. Vishweshara Jukarami Giripunje and Others, AIR 2008 Bom. 155,
Bijayanti Nanda vs. Jagannath Mahaprabhu Marfat Adhikari Mahanta Bansidhar Das Goswami, AIR 2014 Ori. 128].
In Saritha S. Nair vs. Union of India and Another, 2022 (5) KHC 527, this Court referring to Section 74(1)(iii) of the Act held that pleadings, affidavits and petitions filed in Court are not acts of the Court or record of such acts.
However, a Full Bench of the Madras High Court expressed a contrary view in Katikineni Venkata Gopala Narasimha Rama Rao vs. Chitluri Venkataramayya, AIR 1940 Mad 768. The full bench observed,
“As the learned Judges who have made the reference have pointed out, a plaint or a written statement has always been regarded by this Court as forming part of the record of a case and a public document of which an interested party may obtain a certified copy.”
In Chandulal and Another vs. Bhagwan Dass and Others, (2010) 49 RCR (Civil) 136, the Punjab and Haryana High Court held certified copy of written statement to be proceedings of judicial record and per se admissible under Section 74 of the Evidence Act.
In Jagdishchandra Chandulal Shah vs. State of Gujarat, 1988 Supreme (Guj) 139, the Gujarat High Court held that certified copy of a plaint is a public document.
12. It is relevant to note that, the divergent views expressed by various Courts as above, have been made with reference to Section 74(1)(iii) of the Evidence Act. While some High Courts took the view that pleadings will fall within the scope of “acts and record of acts” of the Court, a contrary view was taken by other Courts.
13. According to me, what Section 74(1)(iii) refers to are, acts of the Court which are documents by themselves viz. orders, judgments and the like, and records of the acts of the Courts are, the documents wherein the acts of the Court have been recorded viz. deposition of the witnesses. Incidentally it is to be noticed that, Section 3 of the Evidence Act defines “Document” as, “any matter expressed or described upon any substance by means of letters, figures or marks, or by more than one of those means, intended to be used, or which may be used, for the purpose of recording that matter.” Section 74(1)(iii) will not take within its sweep the pleadings of the parties they being neither an act of the Court nor a document recording an act of the Court.
14. However, Section 74(2) of the Act is of significance. The applicability of the same in respect of pleadings, have not gone into the zone of consideration in the cases referred to supra. It reads, “Public records kept in any State of private documents.” Clause (2) of Section 74 refers to private documents kept as public records. The term “kept” can only be understood to mean, “maintained.” The Apex Court in Gurudial Singh and Others vs. Raj Kumar Aneja and Others, AIR 2002 SC 1003 held that “a pleading once filed is part of the record of the Court and cannot be touched, modified, substituted, amended or withdrawn except by the leave of the Court.” Though pleadings of a party are private in character, once filed in Court, the Court is to retain custody of the same. Therefore, it becomes a record maintained by the Court which is a public office. Records held by a public office partake the character of public records. Therefore pleadings, which are private documents, once filed in Court, form part of public records kept in the Court, thus attracting clause 2 of Section 74 of the Act. The Apex Court in Anitha Malhotra v. Apparel Export Promotion Council and Ors., AIR 2012 SC 31, referring to Section 74(2) of the Act held that, the annual returns filed under the Companies Act, 1956 though a private document, it forms part of the public records in terms of Section 74(2) of the Act. In Narendra Prasad and Others vs. Indian Express Newspapers (Bombay) Private Limited and Others, 2015 (5) L.W. 221, the High Court of Madras held that, once a plaint is registered and taken on file by the Court it partakes the character of a public document.
15. Rules 113 and 240 of the Civil Rules of Practice, Kerala, Rule 226 of the Criminal Rules of Practice, Kerala, and Rule 129 of the Rules of the High Court of Kerala, 1971, enable even strangers to the proceedings to search for and obtain certified copy of the records and documents filed in Court, of course, subject to orders of the Court. This is in tune with Section 76 of the Evidence Act which provides that certified copies of public documents are liable to be issued to any person who has a “right” to inspect such documents. As held in Rasipuram Union Motor Service Ltd. vs. Commr. of Income Tax, Madras, AIR 1957 Mad. 151, it is the person who has a right to inspect, that is given the right to obtain copy.
16. Thus, it could be concluded that, pleadings of parties once filed in Court becomes part of the public records maintained by the Court and thus, is a public documentwithin the purview of Section 74(2) of the Evidence Act. A similar view was also taken by the Gauhati High Court in Narattam Das and Others vs. Md Masaddar Ali Barbhuiya and Others, (1991) 1 Gau LR 197 (DB). Though the Patna High Court in Gulab Chand vs. Shree Karam Lal, AIR 1964 Pat 45 (DB) has taken the view that plaint is not a public document within 74(2) of the Act, for the reasons stated supra, I am unable to concur with the same.”
End Notes
Presumption on REGISTERED Deeds – Both Execution & Genuineness
The party in whom the ‘burden of proof’ rests can rely on ‘presumption’ of registration, for proving a deed.
E.g.: The certificate endorsed on a registered deed by the registering officer is a relevant piece of evidence for proving its execution – Piara v. Fatnu, AIR 1929 Lah 711.
Our Apex Court in Suraj Lamp and Industries Private Limited v. State of Haryana, (2009)7 SCC 363, it is held as under:
“15. The Registration Act, 1908, was enacted with the orderliness, discipline and public notice in regard to transactions relating to immovable property and protection from fraud and forgery of documents of transfer. This is achieved by requiring compulsory registration of certain types of documents and providing for consequences of non-registration.”
It being presumed to be VALID & CORRECT, it further gives a presumption as to truth of the contents also, under Sec. 114 Evid. Act (regard being had to the common course of natural events, human conduct etc.). In Akbarbhai Kesarbhai Sipai v Mohanbhai Ambabhai Patel, 2019-3 GLH 523, it is observed (J.B. Pardiwala, J.) as under:
“Registration provides safety and security to transactions relating to immovable property, even if the document is lost or destroyed. It gives publicity and public exposure to documents thereby preventing forgeries and frauds in regard to transactions and execution of documents.”
There being presumption as to ‘VALID EXECUTION & CORRECTNESS’ and thereby presumption as to truth of the contents also, the onus of proof is shifted upon the party who challenges the presumption as to truth of the contents.
(Note: it is held in Vimal Chand Ghevarchand Jain v. Ramakant Eknath Jajoo (SB Sinha, J.), 2009- 5 SCC 713, that there is also a presumption on registered deed that the “transaction is agenuine one”
Objection need not be raised strictly when the documents are marked; it can be by a challenge during cross-examination.
It is true, some decisions say – objection to marking a document should be raised at the time the document is sought to be marked; and it cannot be deferred to cross-examination. However, this is not entirely correct in principle, as clarified by the Supreme Court in RVE Venkatachala Gounder v. Arulmigu, AIR 2003 SC 4548, where it is laid down as under:
“The crucial test is whether an objection, if taken at the appropriate point of time, would have enabled the party tendering the evidence to cure the defect and resort to such mode of proof as would be regular. …. Out of the two types of objections, referred to hereinabove, in the later case, failure to raise a prompt and timely objection amounts to waiver of the necessity for insisting on formal proof of a document, the document itself which is sought to be proved being admissible in evidence. In the first case, acquiescence would be no bar to raising the objection in superior Court….
Privy Council in Padman and Others vs. Hanwanta and Others [AIR 1915 PC 111] did not permit the appellant to take objection to the admissibility of a registered copy of a will in appeal for the first time.”
Admissibility of Documents – Inquisitions
When should the admissibility of a document be challenged?
Should it be insisted – objection must be placed at the very moment the document is exhibited?
Or, will it suffice to question the marking during the cross-examination of the witness (through whom it is marked)?
Objection as toDocuments ‘INADMISSIBLE IN ITSELF‘and ‘MODE OF PROOF’
In the classic and authoritative, widely accepted decision in this subject, RVE Venkatachala Gounder v. Arulmigu, AIR 2003 SC 4548, it is held by our Apex Court that the objections as to admissibility of documents in evidence can be “classified into two classes“:
“(i) an objection that the document which is sought to be proved is itself inadmissible in evidence; and
(ii) where the objection does not dispute the admissibility of the document in evidence but is directed towards themode of proofalleging the same to be irregular or insufficient.”
The Apex Court held that in the first case, merely because a document has been marked as ‘an exhibit’, an objection as to its admissibility is not excluded and is available to be raised even at a later stage or even in appeal or revision.
In Dayamathi Bai v. K. M. Shaffi, AIR 2004 SC 4082; 2004-7 SCC 107, it is reiterated in the following words:
“13. We do not find merit in this civil appeal. In the present case the objection was not that the certified copy of Ex.P1 is in itself inadmissiblebut that the mode of proof was irregular and insufficient. Objection as to the mode of prooffalls within procedural law. Therefore, such objections could be waived. They have to be taken before the document is marked as an exhibit and admitted to the record (See: Order XIII Rule 3 of Code of Civil Procedure). This aspect has been brought out succinctly in the judgment of this Court in R.V.E. Venkatachala Gounder v. Arulmigu Viswesaraswami & V.P. Temple & Another reported in [(2003) 8 SCC 752] to which one of us, Bhan, J., was a party…”
Documents ‘INADMISSIBLE IN ITSELF‘: Examples
Computer output (secondary evidence) without Sec. 65B (Sec. 63) Certificate.
Photo copy of a certified copy of a recent registered sale deed without laying foundation).
This proposition in RVE Venkatachala Gounder v. Arulmigu, AIR 2003 SC 4548, Dayamathi Bai v. K. M. Shaffi, AIR 2004 SC 4082; 2004-7 SCC 107, is referred to in the following decisions-
1. Z. Engineers Construction Pvt. Ltd. v. Bipin Bihari Behera, AIR 2020 SC 1140; 2020-4 SCC 358,
2. Sonu @ Amar Vs State Of Haryana, AIR 2017 SC 3441; 2017-8 SCC 570,
3. State of Karnataka v. Selvi J. Jayalalitha, 2017-6 SCC 263,
4. Nandkishore Lalbhai Mehta v. New Era Fabrics Pvt. Ltd. , AIR 2015 SC 3796; 2015-9 SCC 755,
5. Shalimar Chemical Works Ltd. v. Surendra Oil & Dal Mills (Refineries), 2010-8 SCC 423,
6. Malay Kumar Ganguly v. Sukumar Mukherjee, AIR 2010 SC 1162; 2009-9 SCC 221.
Positive Propositions that Support ‘Sufficiency during Cross Exam.‘
Whether the challenge in cross examination can be entertained after marking a document without protest is a potential question in our legal sphere. Our Procedural Codes do not specifically speak about the time for raising objections in this regard. The following propositions support allowing cross-examination (even if a document is marked without objection).
1. Sec. 3 of the Evidence Act stipulates that ‘proof’ shall be evaluated by the court “after considering the matters before it“. Sec. 3 defines ‘Proved’ as under:
“A fact is said to be proved when, after considering the matters before it, the Court either believes it to exist, or considers its existence so probable that a prudent man ought, under the circumstances of the particular case, to act upon the supposition that it exists.”
2. A document is proved – or disproved – only when the Court is called upon to apply its judicial mind to the document with reference to Section 3 of the Evidence Act (Dalgreen Agro Pvt Ltd v. Shaikh Asadur Rahman, 2020 AIR (Cal) 108). Usually it takes place only in Final Hearing of a case (Sudhir Engineering Co. v. NITCO Roadways Ltd., 1995 (34) DRLJ 86).
3. Documents are marked through witnesses, during “Chief Examination”; while the other party has the right of Cross Examination.
4. Cross-examination is a powerful and valuable legal weapon, by which truth may be elicited out.
See:
Mechanical etc. Inventions v. Austin, 1935 A.C. 346;
Padakalingam v. Yesudasan, 1953 KLT 587;
Velu Pillai v. Paramanandam, AIR 1954 Trav.-Co. 152;
Mt. Basanti v. Pholo, AIR 1955 HP 37;
Kansi Ram v. Jai Ram, AIR 1956 HP 4;
Rachpal Singh v. Gurmit Kaur, AIR 2009 SC 2448; 2009-15 SCC 88.
Sharda v. State of Rajasthan, AIR 2010 SC 408; 2010-2 SCC 85;
State of Rajasthan v. Shravan Ram, AIR 2013 SC 1890; 2013-12 SCC 255
Anil Bajaj v. Vinod Ahuja, AIR 2014 SC 2294; 2014-15 SCC 610;
5. The principle of timely objection is propounded with a view to avoid surprise to the other side.
6. The only reason that can be set-forth to exclude cross-examination is legal “injury” or “prejudice” that may be caused to the party that produced the document (though possibility thereon is little). Conversely, the legal “injury” or “prejudice” resulting from the refusal of such cross examination testimony, to the other party, will be more serious.
7. It is pointed out – objections to marking documents cannot be raised in appeal, for the first time; if such objection was raised in trial court, the concerned party could have cured the deficiency. (RVE Venkatachala Gounder v. Arulmigu, AIR 2003 SC 4548: (2003) 8 SCC 752; Lachhmi Narain Singh v. Sarjug Singh, AIR 2021 SC 3873: (2022) 13 SCC 746).
March of Law on this Matter
1. Bipin Shantilal Panchal v. State of Gujarat, AIR 2001 SC 1158 (earlier view).
It was observed by the Supreme Court in Bipin Shantilal Panchal v. State of Gujarat, AIR 2001 SC 1158, that that ‘it is an archaic practice that during the evidence collecting stage, whenever any objection is raised regarding admissibility of any material in evidence the court does not proceed further without passing order on such objection’. And the Court directed as under:
“When so recast, the practice which can be a better substitute is this: Whenever an objection is raised during evidence taking stage regarding the admissibility of any material or item of oral evidence the trial court can make a note of such objection and mark the objected document tentatively as an exhibit in the case (or record the objected part of the oral evidence) subject to such objections to be decided at the last stage in the final judgment.”
But, the subsequent decisions in RVE Venkatachala Gounder v. Arulmigu, AIR 2003 SC 4548: (2003) 8 SCC 752; Smt. Dayamathi Bai v. K.M. Shaffi, AIR 2004 SC 4082; (2004) 7 SCC 107, took a contra view.
2. RVE Venkatachala Gounder v. Arulmigu, AIR 2003 SC 4548 (obviously, primary aim was to overcome Bipin Shantilal Panchal v. State of Gujarat).
It was held that the objection as to ‘mode of proof’ (contra-distinct to inadmissible in itself) 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.
“Ordinarily an objection to the admissibility of evidence should be taken when it is tendered, and not subsequently. The objections as to admissibility of documents in evidence may be classified into two classes:-
(i) an objection that the document which is sought to be proved is itself inadmissible in evidence; and
(ii) where the objection does not dispute the admissibility of the document in evidence but is directed towards the mode of proof alleging the same to be irregular or insufficient.
In the first case, merely because a document has been marked as ‘an exhibit’, an objection as to its admissibility is not excluded and is available to be raised even at a later stage or even in appeal or revision. In the latter case, the objection should be taken before the evidence is tendered and once the document has been admitted in evidence and marked as an exhibit, the objection that it should not have been admitted in evidence or that the mode adopted for proving the document is irregular cannot be allowed to be raised at any stage subsequent to the marking of the document as an exhibit. The later proposition is a rule of fair play. The crucial test is whether an objection, if taken at the appropriate point of time, would have enabled the party tendering the evidence to cure the defect and resort to such mode of proof as would be regular. …. Out of the two types of objections, referred to hereinabove, in the later case, failure to raise a prompt and timely objection amounts to waiver of the necessity for insisting on formal proof of a document, the document itself which is sought to be proved being admissible in evidence. In the first case, acquiescence would be no bar to raising the objection in superior Court….
Privy Council in Padman and Others vs. Hanwanta and Others [AIR 1915 PC 111] did not permit the appellant to take objection to the admissibility of a registered copy of a will in appeal for the first time. …
Similar is the view expressed by this Court in P.C. Purushothama Reddiar vs. S. Perumal [1972-2 SCR 646]. …”
3. Lachhmi Narain Singh v. Sarjug Singh, AIR 2021 SC 3873: (2022) 13 SCC 746.
In this decision it is held as under:
“24. In view of the foregoing discussion, it is clear that plea regarding mode of proofcannot be permitted to be taken at the appellate stage for the first time, if not raised before the trial Court at the appropriate stage. This is to avoid prejudice to the party who produced the certified copy of an original document without protest by the other side. If such objection was raised before trial court,then the concerned party could have cured the mode of proof by summoning the original copy of document. But such opportunity may not be available or possible at a later stage. Therefore, allowing such objection to be raised during the appellate stage would put the party (who placed certified copy on record instead of original copy) in a jeopardy & would seriously prejudice interests of that party. It will also be inconsistent with the rule of fair play as propounded by Justice Ashok Bhan in the case of RVE Venkatachala Gounder v. Arulmigu, AIR 2003 SC 4548.”
Note: It is held – the objection must have been raised (in the ‘trial court’) at the “appropriate stage“: that is, (i) while marking the document or (ii) during cross-examination of the witness through whom it is marked or (iii) by a written document.
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.
Judicial Reflections on the ‘Challenge’ by Cross-Examination
The law on the point (whether a challenge in cross-examination, sufficient) can be deduced from the following decisions-
(i) In Thakor Rajuji Takhaji v. Owner of Tractor No. RJ-21-3R-8180, Kawarilal, 2024 Guj HC 14451), it is held as under:
“The cross examination of the respondent/s does not suggest that they had any objection to the documents produced.”
(ii) Khan v. Habib Khan @ Abdul Mujeeb Khan, 11 Mar 2020 (Del), where it is observed –
“5. Learned counsel appearing for the respondents submits that the original documents were duly produced before the Trial Court at the time of the recording of the evidence of the respondent and the copies of the said documents, after comparison, were exhibited and marked as Exhibit PW1/6 to PW1/8 and no objection was taken by the petitioner with regard to the proof of the said documents and exhibit marking of the copies and there is even no cross-examination or suggestion during cross examination that the originals have not been produced.”
(iii) In Corporation of Calcutta v. Baldeo Shaw, 2011-3 Crimes (HC) 784; 2011-2 CalLJ 221; 2011-1 CriLR 890, it is held as under:
“The cash memo, i.e., Exhibit-A was admitted into evidence and marked Exhibit. No objection was raised by the complainant in course of cross-examination in the matter of admission of such a document.”
(iv) In Kuntal Kundu v. National Insurance Company Limited, 2008-3 WBLR 717), it is held as under:
“In the case before us, the appellant in his evidence-in-chief specifically tendered the said certificate and the same along with others was marked as Exhibit without objection. We have already pointed out that even no suggestion was given in cross-examination disputing either the contents or the genuineness of those documents.
(v) In Noorjahan, Altaf Ahmed v. Sadrunisa, Hajifatehulla Khan, 2005-3 BomLR 625; 2005-3 MhLJ 10, it is pointed out as under:
“It is further pertinent to note that there was no effective cross-examination in respect of this document. There was no objection taken to the document being received and marked in evidence either.”
(vi) In Alacs Finanz Ltd v. Oksh Technologies, AIR 2005 (Del) 376, it is held as under:
“When the certified copy of the Resolution was tendered in evidence, no objection to its admission or mode of proof was raised. Not even in the cross-examination.”
(vii) In R. Vijayabalan v. D. Jayakumari, 2001-1 MLJ 555, it is observed as under:
“… when those documents were marked, there was no objection raised for marking the documents and even in the cross-examination there was no challenge made with reference to those documents marked before the court and since the said act would amount to waiver…”.
(viii) In Lionel Edwards Ltd. v. State of West Bengal, AIR 1967 Cal-191, it is held as under:
“Documents are either proved by witnesses or marked on admission. When it is marked on admission without reservation, the contents are not only evidence but are taken as admitted, the result being the contents cannot be challenged either by way of cross-examination or otherwise. In respect of documents marked on admission dispensing with formal proof, the contents are evidence, although the party admitting does not thereby accept the truth of the contents and is free to challenge the contents by way of cross-examination or otherwise.” (Quoted in: Life Insurance Corporation of India v. Manjula Mohanlal Joshi, AIR 1975 Ori 116; ILR 1975 Cut 422).
Earlier (Contra) View on Objection on Insufficiency of Stamp Duty
(i) In Jatti Veera Venkata Satyam v. Bosukonda Chinnadevi, 2023-3 ALT 345, it is held as under:
“20. In the present case, the agreement of sale which requires stamp duty under Article 47-A is executed on a deficit stamped paper, i.e., of Rs.100/- only, yet, the same was marked without raising any such objection. It is only during the cross-examination of PW1, such an objection was raised by the defendants. In view of the express prohibition made under Section 36 of the Stamp Act, no such objection can be raised on the ground of insufficiency of stamp duty.”
(ii) Srinivasa Builders v. A. Janga Reddy, 2016-3 ALD 343; 2016-2 ALT 321, it is seen that the court accepted the following argument-
“With respect to the agreement of sale executed on Rs.50/- stamp paper, the Court imposed stamp duty and penalty, the amount was already remitted and in view of the same, the said document was marked as exhibit without any objection from the defendants. Therefore, the defendants cannot raise objection at the stage of cross-examination.”
Present View on Insufficiency of Stamp Duty
In G. M. Shahul Hameed v. Jayanthi R. Hegde, AIR 2024 SC 3339, it is held that the key point regarding the marking of a deficiently-stamped document is not the “objection from the opposite party,” but rather the “judicial determination,” regardless of whether an objection had been made or not.
Irrelevant And Inadmissible Evidence
In Jainab Bibi Saheb v. Hyderally Saheb, (1920) 38 MLJ 532, it was determined that the failure of an advocate to raise objections to the admission of irrelevant and inadmissible evidence, or the tribunal’s own failure in excluding such evidence, does not confer validity upon a decree if the Evidence Act declares the evidence as irrelevant.
A document not admissible in evidence, though brought on record, has to be excluded from consideration. (Roman Catholic Mission v. State of Madras, AIR 1966 SC 1457; Dayamathi Bai v. K.M. Shaffi, AIR 2004 SC 4082).
Effect of marking documents with ‘Consent‘
When a document is marked as an exhibit with the ‘consent’ of the opposing party, its admissibility remains unassailable at all subsequent stages of the proceedings. If the truth of contents of a document is disputed (and truth cannot be presumed under Ser. 114 Evidence Act), just marking the document, even with the (formal) consent of the opposite side, does not prove ‘truth’ of its contents. See:
Narbada Devi Gupta v. Birendra Kumar Jaiswal,2003-8 SCC 745;
Pramod E. K. v. Louna V. C., AIR 2019 Ker 85; V.S. Perumal v. Vadivelu Asari, 1986 MLJ 283.
However, the party against whom the document is presented can admit truth of the contents also.
Document Marked in Proof Affidavit & Marked for Identification
In Dalgreen Agro Pvt Ltd v. Shaikh Asadur Rahman, 2020 AIR (Cal) 108, the court considered the significance of a document being marked as an exhibit (in Proof Affidavit), and held as under:
“Order XIII Rule 4 of the CPC provides for appropriate endorsements on the documents which have been admitted as evidence in a suit. Under Order XIII Rule 7, every document which has been admitted in evidence shall form part of the record of the suit. These provisions would show that marking a document as an exhibit is only for the purpose of identification and has no bearing with proof of the document. Hence, admission of documents as exhibits is not equivalent to the documents being proved and does not bind the parties. A document is proved – or disproved – only when the Court is called upon to apply its judicial mind to the document with reference to section 3 of the Evidence Act. This would also be in line with Lionel Edwards (Lionel Edwards Ltd. v. State of West Bengal, AIR 1967 Cal 191) where the .. Court held that a party does not lose its right to cross examination in respect of documents whose contents are disputed. In the present case therefore, the defendants will not be deprived of their right to cross-examine the plaintiff’s witness on the documents disclosed in the affidavit of evidence and which are proposed to be marked as exhibits. On the other hand, if the plaintiff is called upon to lead oral evidence on these documents by way of an examination in chief, the amendments introduced by the Commercial Courts Act to Order XI Rule 4 to expedite and streamline the hearing of commercial suits will be reduced to a pointless insertion.”
Document to be Proved by Competent Witness; Otherwise, Inadmissible
Correctness of a Plan Cannot be proved thorough one who has (only) seen making it
In Reg v. Jora Hasji, 11 Bom HCR 242, a plan of certain fields was prepared before the chief constable. It was sought to be proved by the chief constable. The person who prepared the plan was not called. That plan had been admitted in evidence, and the appeal Court observed as under:
“…. A plan of fields which the Chief Constable says, he saw made before him, is admitted. To say that it was prepared in his presence and bears his signature is not a sufficient reason for admitting the plan. The witness did not depose that to his knowledge the plan was a correct one, and if he could not say this, the person who made the measurements and prepared the plan should himself have been called….. but we mention the matter in order that our opinion regarding its non-admissibility in evidence may be known.” (Quoted in: Madholal Sindhu v. Asian Assurance Co. Ltd., AIR 1954 Bom 305; Mohan Sons v. Lady Sonoo Jamsetji Jejeebhoy, AIR 1976 Bom 417)
Similarly, the mere marking of a document (even without objections) will not establish its ‘proof’ if-
(i) it is a certificate issued by an expert (Subhash Maruti Avasare v. State Of Maharashtra, 2006-10 SCC 631, SB Sinha, J.)
(ii) it is an enquiry Report or the evidence adduced during the domestic enquiry (M. Chandra v. M. Thangamuthu, (2010) 9 SCC 712; Nandkishore Lalbhai Mehta v. New Era Fabrics: AIR 2015 SC 3796; Life Insurance Corporation of India v. Ram Pal Singh Bisen, 2010-4 SCC 491).
A document, like a Will, required by law to be attested, has to he “proved” in the manner contemplated by Section 68 of the Evidence Act, by examining at least one witness. Mere marking, without objection, does not dispense with the legally required proof.
Conclusion
An authoritative judicial pronouncement has yet to come concerning the following essential and fundamental issues:
1. How it can be understood whether a document is marked solely for identification purposes, which does not require an objection at the time of its marking?
2. Is there any deadline for placing objections to the documents?
3. What are the methods legally available for placing the objections to the admissibility of documents? Is it permissible to record all and whatsoever objections pertaining to(both) genuineness of a marked document and the truth of its contents, through the process of cross-examination?
It appears that the legal position as of now stands as follows:
The objections to the admissibility of documents have to be raised while the documents are marked as exhibits.
However, it does not preclude the right of a party to place on record all and whatsoever objections to the (exhibited) documents by way of ‘cross examination’ of the witness through whom it is marked. It is for the reason that the cross examination is a right guaranteed by the law to elicit truth; and court applies its judicial mind to the document only in Final Hearing. This stance is also supported by the following judicial reasoning –
“If such objection was raised before trial court,then the concerned party could have cured the mode of proofby summoning the original copy of document.” (Lachhmi Narain Singh v. Sarjug Singh, AIR 2021 SC 3873: (2022) 13 SCC 746).
Tailpiece
It goes without saying that the pedantic approach—namely, failure to raise objection to the admissibility of a document at the moment it was marked, renders subsequent cross-examination ineffective—will adorn only hyper-technical judges.
End Notes:
1. Mere marking– not dispense with proof (of truth of contents)
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’.)
Accepted law on this point –
1. MERE MARKING PROVE THE CONTENTSif no objection. E.g. Rent receipt executed by the opposite side; Photocopy of a document.
2. MERE MARKING WILL NOT PROVE THE CONTENTS if Truth of the facts in the document was “in issue“ or validity was very much in question.
Following are the often-cited cases in this regard.
Cited to support the Proposition – MERE MARKING PROVE THE CONTENTS
From the following it is clear that this proposition is not absolute and unreservedly apply.
Decision Cited to support – MERE MARKING PROVE THE CONTENTS
Were the criticised document or its copy ‘marked without proper proof‘ accepted in evidence?
Reason for MARKING
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)
Cited to support the Proposition –MERE MARKING DOES NOT PROVE THE CONTENTS
From the following it is clear that this proposition is not absolute and unreservedly apply.
Decision Cited to support –MERE MARKING DOES NOT PROVE THE CONTENTS
Did the proposition – Mere Marking Does Not Prove the Contents –unreservedly apply?
Reason for NOTMARKING
Ramji Dayawala v. Invest Import: AIR 1981 SC 2085
No. Truth of contents of (i) a letter and (ii) 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 notaccepted (though marked)
Validity and Genuineness of the Caste Certificate was very much in question. (The question in this Election Case was ‘Conversion of Religion‘.
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
2. Xerox Copies Should Not be Marked if Objection.
In Shalimar Chemical Works Ltd. v. Surendra Oil & Dal Mills (Refineries), 2010-8 SCC 423, our Apex Court viewed the following mistakes were “serious” –
“The trial court should not have “marked” as exhibits the Xerox copies of the certificates of registration of trade mark in face of the objection raised by the defendants…. rather than leaving the issue of admissibility of those copies open and hanging, by marking them as exhibits subject to objection of proof and admissibility. …
The learned single judge rightly allowed the appellant’s plea for production of the original certificates of registration of trade mark as additional evidence because that was simply in the interest of justice and there was sufficient statutory basis for that under clause (b) of Order 41, Rule 27. But then thesingle judge seriously erred in proceeding simultaneously to allow the appeal and not giving the defendants/respondents an opportunity to lead evidence in rebuttal of the documents taken in as additional evidence.
The division bench was again wrong in taking the view that in the facts of the case, the production of additional evidence was not permissible under Order 41, Rule 27.”
Note: Sec. 136, Evidence Act permits to use a fact before proving it formally on “the party undertakes to give proof of such fact, and the Court is satisfied with such undertaking”.
The “Golden Rule of Interpretation” is destined to be employed, opening the tool-box of interpretation, in the following circumstances:
(i) the ordinary sense of the words in a document requires modification to avoid absurdity or inconsistency,
(ii)the application of ‘literal rule of interpretation’ is inappropriate or unsuitable.
But, mere “literal interpretation” (the interpretation in conformity with the plain language) is (inadvisedly) characterised, in several decisions, as the “Golden Rule of Interpretation”.
Saji Koduvath, Advocate, Kottayam.
Abstract
Rules of Interpretation of Statutes and Documents (Mohan v. Kanagavalli, 2014-6 MLJ 582) are as follows: 1. ‘Plain meaning rule’ or Literal rule – words are taken in its plain meaning. 2. Golden rule – when the words require modification to avoid absurdity. 3. Mischief rule – gives effect to the intention of the legislature/author looking at the mischiefs which intended to redress.
THE LITERAL RULE
According to this rule, the words in the statute or the document are taken in its literal or plain meaning. It is also called the ‘plain meaning rule or Grammatical Rule’.
This rule can be applied only when the language in the statute or the document renders only one meaning, and the intention of the legislature or author is unambiguous and completely clear. When a court has to give effect to the statute or document, it has to simply give effect to the language of the statute or document and it need not look into the consequences that may be arisen therefrom.
Literal Rule of Interpretation mandates ‘Reading-through-the-Lines’
The Literal Rule of Interpretation mandates ‘reading-through-the-lines’, whereas the other two interpretations, Golden Rule and Mischief Rule require ‘reading-between-the-lines’.
THE GOLDEN RULE – Grey v. Pearson, 1857
The ‘golden rule of interpretation’ was laid down by the House of Lords in Grey v. Pearson, (1857) 6 HLC 61 (Shilpa Mittal v State of NCT of Delhi, AIR 2020 SC 405, 2020-2 SCC 787; Vasant Ganpat Padave v. Anant Mahadev Sawant,2019-19 SCC 577).
The rule, propounded for the first time by Lord Wensleydale (Grey v. Pearson), declared as under:
“I have been long and deeply impressed with the wisdom of the rule, now, I believe, universally adopted, at least in the Courts of Law in Westminster Hall, that in construing wills and indeed statutes, and all written instruments, the grammatical and ordinary sense of the words is to be adhered to, unless that would lead to some absurdity, or some repugnance or inconsistency with the rest of the instrument, in which case the grammatical and ordinary sense of the words may be modified, so as to avoid that absurdity and inconsistency, but no farther. This is laid down by Mr Justice Burton, in a very excellent opinion, which is to be found in Warburton v. Loveland [Warburton v. Loveland, (1831) 2 Dow & Cl 480 : 6 ER 806] (see ante, p. 76. n.)
This celebrated passage has since come to represent what has been described as the ‘golden rule‘ of interpretation of statutes (Ms. Eera v. State (Govt. of NCT of Delhi), (2017) 15 SCC 133).
This Golden Rule of interpretation (in Grey v. Pearson) is quoted/referred in the following decisions:
Shilpa Mittal v. State of NCT of Delhi, 2020-2 SCC 787
Vasant Ganpat Padave v. Anant Mahadev Sawant, 2019-19 SCC 577
Nova Ads v. Metropolitan Transport Corpn., 2015-13 SCC 257
Nandinisatpathy v. P. L. Dani, AIR 1978 SC 1025; 1978-2 SCC 424
Corporation of the City of Victoria v. Bishop of Vancouver Island, AIR 1921 PC 240.
It is beyond doubt that this ‘golden rule’ is not a simple declaration of the ‘literal rule of interpretation’. It is invoked (and marked in jurisprudence as a Characteristic Rule) when a deviation from the literal rule is necessitated, or a modification is warranted to the ‘ordinary sense’ of the words.
In other words, this rule is applied when ‘literal rule’ fails for the words used by the author of a document or legislature could not be given their natural meaning for, its lack of clarity, or it renders another meaning also. In such cases the apt meaning is given by interpretation, modifying the meaning of the absurd term, or choosing one meaning from more than one meaning.
Thus the golden rule of interpretation aims (minimum) modification of the ‘ordinary sense’ of the words used in a statute or a document so as to avoid the ‘absurdity and inconsistency’ convey by those words and to give effect to the meaning of the words (actually) intended in those statutes or documents.
Golden Rule of Interpretation – Courts add or subtract words
Our Apex Court, in Rakesh Kumar Paul v. State of Assam, (2017) 15 SCC 67, held as under:
“67. While interpreting any statutory provision, it has always been accepted as a Golden Rule of Interpretation that the words used by the legislature should be given their natural meaning. Normally, the courts should be hesitant to add words or subtract words from the statutory provision. An effort should always be made to read the legislative provision in such a way that there is no wastage of words and any construction which makes some words of the statute redundant should be avoided. No doubt, if the natural meaning of the words leads to an interpretation which is contrary to the objects of the Act or makes the provision unworkable or highly unreasonable and arbitrary, then the courts either add words or subtract words or read down the statute, but this should only be done when there is an ambiguity in the language used.” Quoted in: V. Senthil Balaji Vs. The State represented by Deputy Director (2023)
Golden Rule of Interpretation – Examples
Lee v. Knapp, (1967) 2 QB 442.
In this case, it was required to interpret the world ‘stop’. Under the relevant Act, a driver causing an accident had to ‘stop’ after the accident. But, the driver in this case stopped the vehicle for a moment after causing the accident and then moved away. Applying the Golden Rule the Court held that requirement of the section had not been followed for the driver did not ‘stop for a reasonable period of time’ and made an attempt to look for the interested persons to make necessary inquiries for him about the accident.
U. P. Bhoodan Yagna Samiti v. Brij Kishore, AIR 1988 SC 2239
In this case Section 14 of the UP Bhoodan Yagna Act, 1953 had to be interpreted. This Section provided land for “landless person”. It was interpreted as the “landless agricultural labourers” though the Section did not specify that such landless persons should be agricultural labourers or whose source of livelihood should be agriculture; and source of livelihood of those persons should not be trade and business.
‘Golden Rule’ is appliedas a “Deviation From” Literal Rule
The “golden rule of interpretation” as established in Grey v. Pearson, 1857 (6) HLC 61, is adhered to by the Courts in India in numerous rulings.
In Authorised Officer v. S. Nagamatha Ayyar, AIR 1979 SC 1487; 1979-3 SCC 466, our Apex Court quoted from the article of Prof. R. B. Stevens of the Yale University (Modern Law Review, Vol. 28, 1965, p. 525) which explains ‘Golden Rule of interpretation’. It reads as under:
“Whenever the Judges purport to depart fromthe literalor ordinary meaning, and apply the mischief rule or the golden rule, there is a danger that in place of those irrelevant criteria, the canons of construction, they have more obviously substituted their own (perhaps more harmful) impressions, views, prejudices or predispositions. Such conflicts between what Parliament intended and what the Judges assumed Parliament to have intended have long been appreciated.”
In A. R. Antulay v. R. S. Nayak, AIR 1988 SC 1531; 1988-2 SCC 602, it is held as under:
“It is only, where the literal meaning is not clear that one resorts to the golden rule of interpretation or the mischief rule of interpretation.”
In Hindustan Lever v. Ashok Vishnu Kate, AIR 1996 SC 285; 1995-6 SCC 326, our Apex Court expressly approved the observation in the decision of the Full Bench of Industrial Court of Maharashtra which said as under:
“I have no doubt in my mind in observing that here the language is not plain. It does not admit of but one meaning. Therefore, one would be justified in adverting to the Mischief Rule also the Golden Rule while interpreting the words appearing in Item 1 of Schedule IV.”
Craies on Statute Law, Pages 86-88, says as under:
“The fourth rule known as the golden rule is a variation of the primary rule of literal or grammatical construction. Adherence to the grammatical or literal meaning of words of a statute may lead to interpretation which is manifestly absurd, at variance wither repugnant to the legislative intent. In such cases the language of the statute may be varied or modified. In other words, a construction based on literal or grammatical meaning of words, which by reason by its absurdity, or repugnance to the legislative intent, reduces the legislation to futility, should be avoided. In such cases the bolder construction based the view that the legislature would legislate only for the purpose of bringing about an effective result should be accepted” (The Federal Bank Ltd v K. Meenakshi Kanikan, ILR 1992-2 Ker 295).
In Cross Statutory Interpretation by Dr. John Bell and Sir George Engle (II Edition), it is stated as under:
“.. The mischief rule came to be largely, though not entirely, superseded by the ‘literal‘ or, as it came to be called in America, the ‘plain meaning’ rule. …. This had been recognised by Parker CB in the middle of 18th Century; but his words may be thought to have contained the germs of a third rule which, in order that it may be distinguished from the mischief and literal rules, is commonly called the ‘golden rule‘. It allows for a departure from the literal rulewhen the application of the statutory words in the ordinary sense would be repugnant to or inconsistent with some other provision in the statute or even when it would lead to what the Court considers to be an absurdity. The usual consequence of applying the golden rule is that words which are in the statute are ignored or words which are not there are read in.” (Quoted in: Baburao Vishvanath Mathpati v. State of Maharashtra, AIR 1996 Bom 227)
Rupert Gross in ‘Statutory Interpretation’ said as under:
“… this had been recognised by Parker, C. B. in the middle of the 18th century; but his words may be thought to have contained the germs of a third rule which, in order that it may be distinguished from the mischief and literal rules, is commonly called the “golden” rule. It allows for a departure from the literal rule when the application of the statutory words in the ordinary sense would be repugnant to or inconsistent with some other provision in the statute or even when it would lead to what the Court considered to be an absurdity. The usual consequence of applying the golden rule is that words which are in the statute are ignored or words which are not there are read in…. . ” (Quoted in: Bansidhar v. Duryodhan, AIR 1985 Ori 84)
Maxwell in his treatise 12th edition at page 43 observed as under:
“The so-called golden rule is really a modification of the literal rule. It was stated in this way by Parke B :
“it is a very useful rule, in the construction of a statute, to adhere to the ordinary meaning of the words used, and to the grammatical constriction, unless that is at variance with the intention of the Legislature, to be collected from the statute itself, or leads to any manifest absurdity or repugnance, in which case the language may be varied or modified, so as to avoid such inconvenience, but no further”. (Quoted in: Municipal Corporation of Delhi v. J. B. Bottling Company Private Limited, ILR 1978-1 Del. 129)
In Annaya Kocha Shetty v. Laxmibai Narayan Satose: 8.4. 2025; 2025 INSC 466, it is authoritatively held as under
“The contract is first constructed in its plain, ordinary and literal meaning. This is also known as the literal rule of construction.
If there is an absurdity created by literally reading the contract, a shift from literal rule may be allowed. This construction is generally called the golden rule of construction.
Lastly, the contract may be purposively constructed in light of its object and context to determine the purpose of the contract. This approach must be used cautiously..”
‘Golden Rule’is Misconceived as “Literal Ruleof Interpretation”
As shown above, ‘Golden Rule of Interpretation‘ is a “departure from” or “modification of” the literal rule.
This rule is destined to be employed, opening the tool-box of interpretation, in the following circumstances:
(i) the ordinary sense of the words in a document requires modification to avoid absurdity or inconsistency,
(ii) the application of ‘literal rule of interpretation’ is inappropriate or unsuitable.
However, the concept of “literal interpretation” (giving effect to the plain meaning of the language), has been (mistakenly) referred to in some court decisions as the “Golden Rule of Interpretation”.
The Golden Rule of Interpretation is referred to in the following decisions
NBCC (India) Ltd. v. State of West Bengal, 10 Jan 2025, 2025 INSC 54
M/S Patil Automation Private Ltd. v. Rakheja Engineers Private Ltd., AIR 2022 SC 3848, 2022-10 SCC 1.
National Highways Authority of India v. Pan Dari Nathan Govindarajulu, AIR 2021 SC 560
Jaishri Laxmanrao Patil v. Chief Minister, 2021-8 SCC 1
State of Andhra Pradesh v. Linde (India) Ltd., (2020) 16 SCC 335;
Grid Corpn. of Orissa Ltd. v. Eastern Metals & Ferro Alloys, (2011) 11 SCC 334
Karnataka State Financial Corpn. v. N. Narasimahaiah, (2008) 5 SCC 176
Dental Council of India v. Hari Prakash, (2001) 8 SCC 61
Harbhajan Singh v. Press Council of India, (2002) 3 SCC 722
Bifurcation of the ‘Golden Rule‘
Dr. Arijit Pasayat, J., in Union of India v. Dharamendra Textile Processors, AIR 2008 SC 668; 2008-13 SCC 369 (and in several other decisions rendered by his lordship), bifurcated the ‘Golden Rule‘ in Grey v. Pearson into two parts and observed as under:
“22. The latter part of this “Golden Rule” must, however, be applied with much caution. “If”, remarked Jervis, C.J., “the precise words used are plain and unambiguous, in our judgment, we are bound to construe them in their ordinary sense, even though it do lead, in our view of the case, to an absurdity or manifest injustice. Words may be modified or varied, where their import is doubtful or obscure. But we assume the functions of legislators when we depart from the ordinary meaning of the precise words used, merely, because we see, or fancy we see, an absurdity or manifest injustice from an adherence to their literal meaning”. (See Abley v. Dale, ER p.525).
It appears that the bifurcation is not proper for two reasons:
1. The ‘first part’ definitely refers to ‘literal interpretation’; it is not the ‘Golden Rule‘. Fundamentals of this rule lie in the latter part. The ‘first part’ is only an introductory one.
2. The bifurcation stands against the ‘Golden Rule‘. The Golden Rule is a departure from (or modification of) the ‘literal interpretation’ as laid down in Supreme Court of India itself (Authorised Officer v. S. Nagamatha Ayyar, AIR 1979 SC 1487, Hindustan Lever v. Ashok Vishnu Kate, AIR 1996 SC 285; 1995-6 SCC 326 and A. R. Antulay v. R. S. Nayak, AIR 1988 SC 1531; 1988-2 SCC 602), and the treatises stated above (Craies on Statute Law; Cross Statutory Interpretation by Dr. John Bell and Sir George Engle; Rupert Gross in ‘Statutory Interpretation’ and Maxwell).
Golden Rule of Interpretation Covers Wills, Statutes and Instruments
Ms. Eera Through Dr. Manjula v. State (Govt. Of NCT of Delhi), AIR 2017 SC 34577
After quoting Grey v. Pearson, 1857 (6) HLC 61, it is observed in Ms. Eera Through Dr. Manjula v. State (Govt. Of NCT of Delhi), AIR 2017 SC 34577, as under:
“This celebrated passage has since come to represent what has been described as the ‘Golden Rule’ of interpretation of statutes. The construction of a clause in a will was before the House of Lords and not the construction of a statute. Nevertheless, the “Golden Rule” was held to cover the construction of wills, statutes and all other written instruments.”
Advantages of Golden Rule
This rule simply puts the words in the statute or deed work. It is intended to operate in between ‘literal interpretation’ and ‘mischief-rule interpretation’.
Applying the Golden Rule, one can deviate from the meaning of words given previously, if it is susceptible to more than one meaning.
It gives effect to the words used by the legislature or author, in its ordinary meaning; but, picking up the most sensible and apt meaning to the words used the statute or deed – susceptible to more than one meaning.
Drafting errors in status and documents can be corrected without much effort.
Disadvantages of Golden Rule
It has no clear framework or guidelines.
It is susceptible for change according to the interpreter or court.
THE MISCHIEF RULE (Purposive Construction Rule)
It applies basically to the interpretation of Statutes; and usually not to (private) documents. The aim of this rule is to cure or prevent the mischiefof the language in a statute, and give effect to its intention or purpose. Therefore, it is called purposive construction rule.
The Mischief Rule (Purposive Construction Rule) is applied when the court finds ambiguity in the language of the statute, and determines it necessary to give effect to the “intention” of the legislature. Thus, this rule of interpretation is broader in its application when compared to the ‘Golden Rule’.
In Kehar Singh v. State (Delhi Admn.), (1988) 3 SCC 609, a three-judge Bench of our Apex Court held as under:
“Before I come to consider the arguments put forward by each side, I venture to refer to some general observations by way of approach to the questions of construction of statutes. In the past, the Judges and lawyers spoke of a ‘Golden Rule’ by which statutes were to be interpreted according to grammatical and ordinary sense of the word. They took the grammatical or literal meaning unmindful of the consequences. Even if such a meaning gave rise to unjust results which legislature never intended, the grammatical meaning alone was kept to prevail. They said that it would be for the legislature to amend the Act and not for the Court to intervene by its innovation.
During the last several years, the “Golden Rule” has been given a go-by. We now look for the “intention” of the legislature or the “purpose” of the statute. First, we examine the words of the statute. If the words are precise and cover the situation in hand, we do not go further. We expound those words in the natural and ordinary sense of the words. But, if the words are ambiguous, uncertain or any doubt arises as to the terms employed, we deem it as our paramount duty to put upon the language of the legislature rational meaning. We then examine every word, every section and every provision. We examine the Act as a whole. We examine the necessity which gave rise to the Act. We look at the mischiefs which the legislature intended to redress. We look at the whole situation and not just one-to-one relation. We will not consider any provision out of the framework of the statute. We will not view the provisions as abstract principles separated from the motive force behind. We will consider the provisions in the circumstances to which they owe their origin. We will consider the provisions to ensure coherence and consistency within the law as a whole and to avoid undesirable consequences.” (Quoted in: X v. Principal Secretary, Health And Family Welfare Department, Govt. of NCT of Delhi, AIR 2022 SC 4917; Indian Handicrafts Emporium v. Union of India, 2003-7 SCC 589, National Insurance Co. Ltd. v. Laxmi Narain Dhut, 2007-3 SCC 700)
Heydon’s case, (1584)
The mischief rule is also called Heydon’s rule, as it is originated by Lord Poke in Heydon’s case, (1584) 3 Co Rep 7a: (1584) 76 ER 637. As per this rule, the meaning and purport of the statute or document is explored and interpreted in that way. The rule of purposive interpretation was articulated in this case in the following terms:
“for the sure and true interpretation of all statutes in general (be they penal or beneficial, restrictive or enlarging of the common law) four things are to be discerned and considered:
1st. What was the common law before the making of the Act.
2nd. What was the mischief and defect for which the common law did not provide.
3rd. What remedy Parliament hath resolved and appointed to cure the disease of the commonwealth.
And, 4th. The true reason of the remedy; and then the office of all the Judges is always to make such construction as shall suppress the mischief, and advance the remedy, and to suppress subtle inventions and evasions for continuance of the mischief, and pro privato commodo, and to add force and life to the cure and remedy, according to the true intent of the makers of the Act, pro bono publico” (Quoted in: X v. Principal Secretary, Health And Family Welfare Department, Govt. of NCT of Delhi, AIR 2022 SC 4917)
Smith v. Huges, 1960 WLR 830
In 1959, the Street Offences Act was enacted in the UK with a view to prohibit prostitutes from soliciting public passing on the roads. Thereon, the prostitutes started soliciting from balconies and windows of the buildings by the side of the roads. The prostitutes were charged under the Act. The courts applied the mischief rule of interpretation and gave effect to the intention of the Act.
Kanwar Singh v. Delhi Administration, AIR 1965 SC 871
Facts of the case were as follows- Delhi Corporation Act, 1902 authorised the corporation to round up the abandoned cattle grazing on the government land. The MCD rounded up the cattle belonging to Kanwar Singh. It was contended by Kanwar Singh that the word abandoned means the loss of ownership and those cattle which were round up belonged to him and hence, was not abandoned. The court held that the mischief rule had to be applied and the word abandoned must be interpreted to mean let loose or left unattended and even the temporary loss of ownership would be covered as abandoned.
The Supreme Court of India held in Pradeep Nirankarnath Sharma v. The State of Gujarat, 17 March, 2025, (Vikram Nath, Prasanna B. Varale, JJ.,2025 INSC 350) the following –
Where the information clearly discloses a cognizable offence, the police have no discretion to conduct a preliminary inquiry before registering an FIR.
The scope of a preliminary inquiry is limited to situations where the information received does not prima facie disclose a cognizable offencebut requires verification.
The decision in Lalita Kumari (2014-2 SCC 1) does not create an absolute rule that a preliminary inquiry must be conducted in every case.
Rather, it reaffirms the settled principle that the police authorities are obligated to register an FIR when the information received prima facie discloses a cognizable offence.
The Apex Court quoted the following from Lalita Kumari (2014-2 SCC 1) –
“114. It is true that a delicate balance has to be maintained between the interest of the society and protecting the liberty of an individual. As already discussed above, there are already sufficient safeguards provided in the Code which duly protect the liberty of an individual in case of registration of false FIR. At the same time, Section 154 was drafted keeping in mind the interest of the victim and the society. Therefore, we are of the cogent view that mandatory registration of FIRs under Section 154 of the Code will not be in contravention of Article 21 of the Constitution as purported by various counsel.
Exceptions
115. Although, we, in unequivocal terms, hold that Section 154 of the Code postulates the mandatory registration of FIRs on receipt of all cognizable offences, yet, there may be instances where preliminary inquiry may be required owing to the change in genesis and novelty of crimes with the passage of time. One such instance is in the case of allegations relating to medical negligence on the part of doctors. It will be unfair and inequitable to prosecute a medical professional only on the basis of the allegations in the complaint.
…
Conclusion/Directions
120. In view of the aforesaid discussion, we hold:
120.1. The registration of FIR is mandatory under Section 154 of the Code, if the information discloses commission of a cognizable offence and no preliminary inquiry is permissible in such a situation.
120.2. If the information received does not disclose a cognizable offence but indicates the necessity for an inquiry, a preliminary inquiry may be conducted only to ascertain whether cognizable offence is disclosed or not.
120.3. If the inquiry discloses the commission of a cognizable offence, the FIR must be registered. In cases where preliminary inquiry ends in closing the complaint, a copy of the entry of such closure must be supplied to the first informant forthwith and not later than one week. It must disclose reasons in brief for closing the complaint and not proceeding further.”
After quoting the above, the Apex Court (in Pradeep Nirankarnath Sharma vs The State of Gujarat) said as under:
“12. The scope of a preliminary inquiry, as clarified in the said judgment, is limited to situations where the information received does not prima facie disclose a cognizable offencebut requires verification. However, in cases where the information clearly discloses a cognizable offence, the police have no discretion to conduct a preliminary inquiry before registering an FIR. The decision in Lalita Kumari (2014-2 SCC 1) does not create an absolute rule that a preliminary inquiry must be conducted in every case before the registration of an FIR. Rather, it reaffirms the settled principle that the police authorities are obligated to register an FIR when the information received prima facie discloses a cognizable offence.”
The leading case, Udit Narain Singh Malpaharia v. Addl. Member, Board of Revenue, Bihar, AIR 1963 SC 786, beholds the whole law on the topic.
Key Takeaways from this Decision, Udit Narain
Necessary Party
A necessary party is one without whom no order can be made effectively.
The parties whose rights are directly affected are the necessary parties.
A tribunal exercising a judicial or quasi-judicial act cannot decide against the rights of one person without giving him a hearing or an opportunity to present his case in the manner known to law.
If the provisions of a particular statute or rules made thereunder do not provide for it, principles of natural justice demand it.
Any order that may be issued behind the back of such a party can be ignored by the said party.
Any such order made without hearing the affected parties would be void.
Proper Party
A proper party is one whose presence is not necessary for making an effective order; but whose presence is necessary for a complete and final decision on the question involved in the proceeding, or whose presence may facilitate the settling of all the questions that may be involved in the controversy.
The question of making such a person as a party to a writ proceeding depends upon the judicial discretion of the High Court in the circumstances of each case.
Either one of the parties to the proceeding may apply for the impleading of such a party or such a party may suo motu approach the court for being impleaded therein.
Udit Narain Singh Malpaharia v. Addl. Member, Board of Revenue, Bihar
In Udit Narain Singh Malpaharia v. Addl. Member, Board of Revenue, Bihar AIR 1963 SC 786 our Apex Court held, in para 7 and 9, as under:
“7. To answer the question raised it would be convenient at the outset to ascertain who are necessary or proper parties in a proceeding. The law on the subject is well settled: it is enough if we state the principle. A necessary partyis one without whom no order can be made effectively’; a proper party is one in whose absence an effective order can be made but whose presence is necessary for a complete and final decision on the question involved in the proceeding.”
“A tribunal, therefore, exercising a judicial or quasi-judicial act cannot decide against the rights of one party without giving him a hearing or an opportunity to represent his case in the manner known to law. If the provisions of a particular statute or rules made thereunder do not provide for it, principles of natural justice demand it. Any such order made without hearing the affected parties would be void.
9. The next question is whether the parties whose rights are directly affected are the necessary parties to a writ petition to quash the order of a tribunal. As we have seen, a tribunal or authority performs a judicial or quasi- judicial act after hearing parties. Its order affects the right or rights of one or the other of the parties before it. In a writ of certiorari, the defeated party seeks for the quashing of the order issued by the tribunal in favour of the successful party. How can the High Court vacate the said order without the successful party being before it? Without the presence of the successful party the High Court cannot issue a substantial order affecting his right. Any order that may be issued behind the back of such a party can be ignored by I the said party, with the result that the tribunal’s order would be quashed but the right vested in that party by the wrong order of the tribunal would continue to be effective. Such a party, therefore, is a necessary party and a petition filed for the issue of a writ of certiorari without making him a party or without impleading him subsequently, if allowed by the court, would certainly be incompetent. A party whose interests are directly affected is, therefore, a necessary party. In addition, there may be parties who may be described as proper parties, that is parties whose presence is not necessary for making an effective order but whose presence may facilitate the settling of all the questions that may be involved in the controversy. The question of making such a person as a party to a writ proceeding depends upon the judicial discretion of the High Court in the circumstances of each case. Either one of the parties to the proceeding may apply for the impleading of such a party or such a party may suo motu approach the court for being impleaded therein.”
Following are the recent Supreme Court Judgments that followed Udit Narain Singh
(1) Vishal Ashok Thorat v. Rajesh Shrirambapu Fate, 2019 AIR SC 3616
(2) Swapna Mohanty v. State of Odisha, 2018 17 SCC 621
(3) Kanaklata Das v. Naba Kumar Das, 2018 AIR SC 682
(4) Poonam v. State of U. P. , 2016 2 SCC 779
(5) Asstt. G.M State Bank of India v. Radhey Shyam Pandey, 2015 (3) SCALE 39
(6) Sh Jogendrasinhji Vijaysinghji VS State of Gujarat, 2015 AIR SC 3623
(7) Census Commissioner v. R. Krishnamurthy, 2015 2 SCC 796
(8) H. C. Kulwant Singh v. H. C. Daya Ram, 2014 AIR SC 3083,
(9) Ranjan Kumar v. State Of Bihar, 2014 16 SCC 187
(10) State of Rajasthan v. Ucchab Lal Chhanwal, (2014) 1 SCC 144
(11) Manohar v . State of Maharashtra, 13 Dec 2012
(12) Vijay Kumar Kaul v. Union of India, (2012) 7 SCC 610
(13) Delhi Development Authority v. Bhola Nath Sharma, AIR 2011 SC 428
(14) State of Assam v. Union of India, 30 Sep 2010
(15) Competition Commission of India v. Steel Authority of India Ltd. , (2010) 10 SCC 744
(16) Public Service Commission v. Mamta Bisht, (2010) 12 SCC 204
(17) JS Yadav v. State of UP (2011) 6 SCC 570
(18) T. Vijendradas v. M. Subramanian , 09 Oct 2007
(19) Avtar Singh Hit v. Delhi Sikh Gurdwara Mangt. Comte., (2006) 8 SCC 487
(20) Assam Small Scale Ind. Dev. Corp. v. J. D. Pharmaceuticals, 2005 (13) SCC 19
Non-joinder of a Party – Relevant Provision of CPC
Section 99 of the CPC reads as under:
99. No decree to be reversed or modified for error or irregularity not affecting merits or jurisdiction: No decree shall be reversed or substantially varied, nor shall any case be remanded in appeal on account of any misjoinder or non-joinder of parties or causes of action or any error, defect or irregularity in any proceedings in the suit, not affecting the merits of the case or the jurisdiction of the Court.
Provided that nothing in this section shall apply to non-joinder of a necessary party.
Rule 9 of Order I CPC reads as under:
9. Misjoinder and nonjoinder: No suit shall be defeated by reason of the misjoinder or nonjoinder of parties, and the Court may in every suit deal with the matter in controversy so far as regards the rights and interests of the parties actually before it: Provided that nothing in this rule shall apply to nonjoinder of a necessary party.
Non-joinder or misjoinder of Parties – Objection
13. Objections as to non-joinder or misjoinder. All objections on the ground of non-joinder or misjoinder of parties shall be taken at the earliest possible opportunity and, in all cases where issues are settled, at or before such settlement, unless the ground of objection has subsequently arisen, and any such objection not so taken shall be deemed to have been waived.
Necessary Party – for Effectually and Completely settle the questions
In Razia Begum vs. Anwar Begum, AIR 1958 SC 886, our Apex Court observed as under:
“The only reason which makes it necessary to make a person a party to an action is so that he should be bound by the result of the action and the question to be settled, therefore, must be a question in the action which cannot be effectually and completely settled unless he is a party. The line has been drawn on a wider construction of the rule between the direct interest or the legal interest and commercial interest. It is, therefore, necessary that the person must be directly or legally interested in the action in the answer, i.e., he can say that the litigation may lead to a result which will affect him legally that is by curtailing his legal rights.”Quoted in: Poonam VS State of UP, 2016-2 SCC 779
Easement – owners of properties who obstruct alone are necessary parties
If easement right is claimed over a way that passes through various (servient) properties, the owners of properties who obstruct the way alone are necessary parties; and those who do not raise any obstruction are not necessary parties.
Madan Mohan Chakravarthy v. Sashi Bhusan, AIR 1915 Cal 403 (19 Cal WN 1211);
Lal Mohammad Biswas v. Emajuddin Biswas, AIR 1964 Cal 548;
Varkey Joseph v. Mathai Kuriakose, (1992) 2 Ker LJ 135; (1992) 2 Ker LT 169.
Owners Of Other Servient FieldsAre Not Necessary Parties
In K.Palaniappa Moopan v. Angammal, (1967) I M.L.J. 177, it was held as under:
“It may be that the owners of other fields over which the channel flows are proper parties, but certainly they are not necessary parties. Their non- joinder cannot be fatal to the suit. There are several servient tenements over which the channel passes, but the defendants alone have obstructed according to the plaintiffs. There has been no obstruction from the State or from the owner of field S.No.15 of the exercise of the right claimed by the plaintiffs. I am unable to appreciate the contention that the plaintiffs cannot have effectual relief in their absence. If any of them should interfere with the mamool flow of water or at any subsequent period, that would give a fresh cause of action to the plaintiffs and a cause of action to the defendants also if they are inconvenienced and injured. In my view, it would be unreasonable to compel the plaintiffs to implead the owners of the servient lands all along the course of the channel whether they had any cause of action against them or not and even though there was no obstruction to or denial of the plaintiffs right by these persons. “
All persons interested in Easement are not Necessary Parties
In S. Narain Bera v. Chandra Bera, AIR 1924 Cal. 1050, the Division Bench of Calcutta High Court observed that all persons interested in the right of easement are not necessary parties to the suit where the cause of action on the pleadings is against those persons only who are alleged to have interfered with the plaintiffs right. The persons who have the right of easement cannot be held to be necessary parties so long as their right is not interfered with. In order to determine whether a suit is maintainable and whether certain parties are necessary parties or not, it is necessary to ascertain the nature of the plaintiffs case as set out in the plaint. . (Referred to in : Durvasula Dakshina Murthy v. Vajjala Vijaya Kumari, 2008 1 AndLD 347)
In Mukherjj v. Kalipada Bhattacharji, A. I. R. 1936 Cal. 534, it was held that every owner of servient tenement denying the plaintiffs right and every person obstructing the use of the right were necessary parties. (Referred to in: Ram Singh Sharma v. Parmod Kumari, 1992-102 PujLR 396)
Not Necessary To Add Who Are Not Parties To Obstruction
Justice B.K.Mukherjea in Kedaruddin Ahamad v. Sm. Samsur Mata, (41 Cal.WN 769) took the view that it was not necessary to add as defendants those persons who are not parties to the act of obstruction complained of.
In Varkey Joseph v. Mathai Kuriakose, 1992-2 KerLJ 135; 1992-2 KerLT 169, it is held as under:
“The said decision (Kedaruddin Ahamad v. Sm. Samsur Mata) also took note of the decision reported in Surja Narain V. Chandra Bera (AIR 1924 Cal.1050) to hold that the absence of other servient owner is in no way fatal to the plaintiffs suit complaining of obstruction by a servient land owner. These authorities were considered elaborately by his Lordship P.B. Mukharji, J. in the decision reported in Lal Mohd. v. Emajuddin (AIR 1964 Cal.548). After noticing the conflict of authorities the learned judge preferred to follow the view expressed in the decision reported in 19 Cal.WN 1211 which was affirmed by a Division Bench of which Chief Justice Jenkins himself was a party and that of B.K. Mukherjea, J. in the decisions reported in 41 Cal WN. 769. His Lordship Justice P.B. Mukharji observed:
“The actual complaint in this case against the defendants is that they put two obstructions at two places on the road over which a right of way was claimed by the plaintiffs. The real nature of the suit is for removal of those obstructions. The persons who obstruct in my judgment are the only proper and necessary persons to be joined as defendants in such a suit, Hundred and thousand of villagers who have done nothing to obstruct such a way are neither necessary nor proper parties.
If that were so then a single obstruction by a single villager will make it necessary to make the whole village,. i.e., all the villagers, parties. In that view a person who suffers has to join all other numerous persons as defendants although they have done nothing and there is no cause of action or grievance against them. I do not think that is the law….”
Read in the light of 0.1 R.9 of the Code of Civil Procedure and the practical considerations put forward by Mr. Justice P.B. Mukharji I respectfully agree with the view taken by Mr. Justice P.B. Mukharji in the decision reported in AIR 1964 Cal.548.”
Owner of the Servient Tenement – Not Necessarily a Party
In Varkey Joseph v. Mathai Kuriakose, 1992-2 KerLJ 135; 1992 2 KerLT 169, it is observed as under:
In Thayappan v. Kunhahammed (S.A, No.629 of 1986) considered this question in the light of the decision reported in AIR 1964 Cal. 548 and the decision of the Hon’ble Supreme Court reported in Udti Narain Singh Malpharia v. Additional Member, Board of Revenue, Bihar (1963(1) SCR 676) and has held as follows:
“…The learned counsel for the appellant raised a contention that the suit is bad for non joinder of necessary parties, as the owner of the servient tenement is not made a party to the suit and therefore it is contended that no effective decree for declaration could be passed in this case and the lower appellate court erred in reversing the findings of the trial court. The respondent’s counsel contended that the owner of the servient tenement is not a necessary party and it is pointed out that the appellant has not raised this contention in the written statement. Who is a ‘necessary party’ has been explained by the Supreme Court in Udit Narain Singh Malpaharia v. Additional Member, Board of Revenue, Bihar (1963-1 SCR 676) wherein it was held,
“Necessary party is one without whom no order can be made effectively; a proper party is one in whose absence an effective order can be made but whose presence is necessary for a complete and final decision on the question involved in the proceeding”.
It is true that if the owner of the servient tenement is a necessary party and whose presence is necessary for passing an effective decree, he is to be impleaded as a party and the non-joinder of such a party may entail the dismissal of the case. I do not think that the owner of the servient tenement is a necessary party in all cases where a declaration of easement right is claimed by the plaintiff. In the present case the real dispute is between the plaintiff and the defendant. Defendant is the owner of an adjacent property and according to the plaintiff he is causing obstruction to the pathway. The plaintiff has no case that the owner of the servient tenement caused any obstruction to the use of the pathway. Even if the court passed a declaration of his easement right in respect of the plaint schedule pathway it would bind only the defendant, who allegedly caused the obstruction. Therefore, the owner of the servient tenement is not a necessary party in all suits for declaration of easement right. An effective decree can be passed even without impleading the owner of the servient tenement as a party to the suit,…”
Necessary Party – Person Likely to Suffer has to be Impleaded
In Census Commissioner v. R. Krishnamurthy, 2015-2 SCC 796, it is observed as under:
19. As we evince from the sequence of events, the High Court in the earlier judgment had issued the direction relating to carrying of census in a particular manner by adding certain facets though the lis was absolutely different. The appellant, the real aggrieved party, was not arrayed as a party-respondent. The issue was squarely raised in the subsequent writ petition where the Census Commissioner was a party and the earlier order was repeated. There can be no shadow of doubt that earlier order is not binding on the appellant as he was not a party to the said lis. This view of ours gets fructified by the decision in
H.C. Kulwant Singh v. H.C. Daya Ram JT 2014 (8) SC 305 wherein this Court,
after referring to the judgments in
Khetrabasi Biswal v. Ajaya Kumar Baral, (2004) 1 SCC 317
UditNarain Singh Malpaharia v. Board of Revenue, AIR 1963 SC 786
Prabodh Verma v. State of U.P. (1984) 4 SCC 251 and
Tridip Kumar Dingal v. State of W.B. (2009) 1 SCC 768
has ruled thus:
‘….. if a person who is likely to suffer from the order of the court and has not been impleaded as a party has a right to ignore the said order as it has been passed in violation of the principles of natural justice’.”
Necessary parties in suit on Partial destruction of Stair Case and its Removal
Smt. Subhra Sinha Roy v. Iman Kalyan Dey, (2011) 2 CalHN 959, considered it and stated as under:
“In CWN (19) 1211 (Sir Lawrence Jenkins, C.J., Justice D. Chatterjee Madan Mohan Chakravarty v. Sashi Bhusan Mukherji, (1915) 31 Ind. Cas. 549 : 19 C.W.N. 1211) it is held, inter alia, that a dominant owner has no cause of action against servant owners who have neither caused obstruction nor raised any objection to the exercise of his right of easement. In a suit for declaration of his right of way he is not bound to make parties any servant owners other than those who have so obstructed or challenged his right. The said case relates to a suit for declaration of right of way, for restoration of the path to its former condition and for perpetual injunction. The said suit was decreed against which appeal was preferred with the contention that the suit ought to have failed as the owners of all the servant tenements over which the way is claimed have not been made parties to the suit. The instant case relates to removal of partial obstruction from the existing pathway in terms of a compromise decree which has been waived or relinquished. There is no denial of the fact that the said staircase is now in occupation of the tenants inducted by co-sharers. If such a staircase is to be removed affecting the rights of all the co-owners, they must be treated as necessary party and in such case in absence of all the co-owners no effective decree can be passed. From this point of view the learned Trial Court as well as the Hon”ble Division Bench has not committed any error apparent on the face of record which may be reviewed and the ratio in the aforesaid case is not applicable in the facts and circumstances of the case.”
Claim of possessory right over Govt. land: State need not be a party
In Vavvakkavu Muslim Thaikkavupally v. Narayanan Purushan, ILR 1992-1 Ker 221; 1991-2 KLJ 526; 1991-2 KLT 477, it was held as under:
“Regarding the first question it is clear from the pleadings and evidence in the case that the plaintiffs have not claimed either possession of the plaint B schedule property or even an easement right over it as against the State. The gist of their claim in the plaint is that as the owners of the property abutting plaint B schedule property they are using the same as a passage to have access from their residential house in plaint B schedule property to N.H. 47. Of course they have also stated that they have no other pathway to have access to any public road. However, they have not even alleged and proved any of the ingredients to establish an easement right of way through the plaint B schedule property. Learned counsel for the respondents has also not advanced any such contention before me. Probably being land kept for the purpose of N.H. 47 State has also not chosen to obstruct the plaintiffs in the matter of using plaint B schedule property as a passage so far. In these circumstances, I do not think that it was necessary for the plaintiffs to have impleaded the State as a party to the suit. In a more or less similar case, a Division Bench of the Orissa High Court in the decision reported in Girish Chandra v. Nagendranath (AIR 1978 Orissa 211) has held that the owner of land is not a necessary party to the suit so long as none of the parties to the suit have claimed any right specifically against the owner. In the said decision, the Division Bench has actually referred to two earlier decisions of the Calcutta High Court reported in Sabirer Ma v. Behari Mohan Lai (AIR 1928 Cal. 23) and in Kedaruddin v. Asrafali (AIR 1937 Cal. 355) in support of their view. In AchutKalsai v. MadhuKalsai (1972) 38 Cut.LT 105) the Orissa High Court in a more or less similar case has held thus:
“In this case there is no allegation of any resistance from the State of Orissa to the flow of Avatar over the Government land intervening between the plaintiffs premises and the channel by the side of the village road. The entire obstruction came from the defendants and the plaintiffs really aggrieved by the defendants action. There may be cases where the owner of the servant tenement would not resist and the resistance would come from quite a different quarter. In such cases the Owner of the servant tenement would certainly not be required to be before the Court as a necessary party to the litigation. The present case seems to be one of that type and the State of Orissa which is the owner of the intervening plot not being before the Court would not affect the suit in any manner”.
I am in agreement with the view expressed in the above decisions and would hold that the State is not a necessary party to the suit and the suit is not liable to be dismissed on that ground.”
Admission is discussed, in Sections 17 to 21 of the Evidence Act. The general and important propositions on admission are the following:
An unambiguous and straightforward admission is the best evidence in a case.
An admission is not conclusive.
It can be explained as provided under Sec. 31 of the Evidence Act.
In many cases it may be conclusive; in some cases, it may shift the burden of proof.
Sec. 31 of the Evidence Act – Admissions are not conclusive proof, but may estop
Sec. 31 of the Evidence Act lays down that admissions are not conclusive proof, but may estop. It reads as under:
“31. Admissions not conclusive proof, but may estop – Admissions are not conclusive proof of the matters admitted, but they may operate as estoppels under the provisions hereinafter contained.”
Facts Admitted need not be Proved
Order VIII Rule 5 of the CPC lays down that a fact not specifically denied in written statement shall be taken to be admitted.
In Badat and Co. v. East India Trading Co., 1963 SCC OnLine SC 9, it is held that evasive denial in pleadings is tantamount to an admission, which obviates the need for further proof.
Admission isSubstantive Evidence
In Thiru John v. Returning Officer, AIR 1977 SC 1724, the Supreme Court held that it is well settled that a party’s admission is substantive evidence – proprio vigore.
But at the same time the Court, in its discretion, may require such fact to be proved and established.
Judgment on Admissions: Order XII Rule 6
Order XII Rule 6 of the Code of Civil Procedure 1908 reads as under:
“6. Judgment on admissions – (1) Where admissions of fact have been made either in the pleading or otherwise; whether orally or in writing, the Court may at any stage of the suit, either on the application of any party or of its own motion and without waiting for the determination of any other question-between the parties, make such order or give such judgment as it may think fit, having regard to such admissions.
(2) Whenever a judgment is pronounced under sub-rule (1) a decree shall be drawn up in accordance with the judgment and the decree shall bear the date on which the judgment was pronounced.”
In Karam Kapahi v. Lal Chand Public Charitable Trust, (2010) 4 SCC 753, after considering Uttam Singh Duggal & Co. Ltd. v. United Bank of India, (2000) 7 SCC 120, the Supreme Court pointed out that Order 12 Rule 6 of CPC is not limited to admissions contained in pleadings. The Supreme Court held in Karam Kapahi as follows:
“40. If the provision of Order 12 Rule 1 is compared with Order 12 Rule 6, it becomes clear that the provision of Order 12 Rule 6 is wider inasmuch as the provision of Order 12 Rule 1 is limited to admission by “pleading or otherwise in writing” but in Order 12 Rule 6 the expression “or otherwise” is much wider in view of the words used therein, namely: “admission of fact … either in the pleading or otherwise, whether orally or in writing”.
41. Keeping the width of this provision (i.e. Order 12 Rule 6) in mind this Court held that under this Rule admissions can be inferred from the facts and circumstances of the case (see Charanjit Lal Mehra v. Kamal Saroj Mahajan [(2005) 11 SCC 279] , SCC at p. 285, para 8). Admissions in answer to interrogatories are also covered under this Rule (see Mullas’s Commentary on the Code, 16th Edn., Vol. II, p. 2177).
xxx xxx xxx
47. Therefore, in the instant case even though statement made by the Club in its petition under Section 114 of the Transfer of Property Act does not come within the definition of the word “pleading” under Order 6 Rule 1 of the Code, but in Order 12 Rule 6 of the Code, the word “pleading” has been suffixed by the expression “or otherwise”. Therefore, a wider interpretation of the word “pleading” is warranted in understanding the implication of this Rule. Thus the stand of the Emphasis supplied.
Club in its petition under Section 114 of the Transfer of Property Act can be considered by the Court in pronouncing the judgment on admission under Order 12 Rule 6 in view of clear words “pleading or otherwise” used therein especially when that petition was in the suit filed by the Trust.” (Quoted in: Rattan India Power Ltd. vs Bharat Heavy Electricals Ltd. (Delhi) 6 March, 2025).
Judicial Admissions & Order XII of CPC Rule 1 to 6.
“1. Notice of admission of case. – Any party to a suit may give notice, by his pleading, or otherwise in writing, that he admits the truth of the whole or any part of the case of any other party.
2. Notice to admit documents. – Either party may call upon the other party [to admit, within 7 [seven] days from the date of service of the notice any document,] saving all exceptions; and in case of refusal or neglect to admit, after such notice, the costs of proving any such document shall be paid by the party so neglecting or refusing, whatever the result of the suit may be, unless the Court otherwise directs; and no costs of proving any document shall be allowed unless such notice is given, except where the omission to give the notice is, in the opinion of the Court, a saving of expense.
2A. Document to be deemed to be admitted if not denied 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.]
3. Form of notice – A notice to admit documents shall be in Form No. 9 in Appendix C, with such variations as circumstances may require.
3A. Power of Court to record admission. Notwithstanding that no notice to admit documents has been given under rule 2, the Court may, at any stage of the proceeding before it, of its own motion, call upon any party to admit any document and shall, in such a case, record whether the party admits or refuses or neglects to admit such document.]
4. Notice to admit acts. – Any party may, by notice in writing, at any time not later than nine days before the day fixed for the hearing, call on any other party to admit, for the purposes of the suit only, any specific fact or facts, mentioned in such notice. And in case of refusal or neglect to admit the same within six days after service of such notice, or within such further time as may be allowed by the Court, the costs of proving such fact or facts shall be paid by the party so neglecting or refusing, whatever the result of the suit may be, unless the Court otherwise directs: Provided that any admission made in pursuance of such notice is to be deemed to be made only for the purposes of the particular suit, and not as an admission to be used against the party on any other occasion or in favour of any person other than the party giving the notice.
5. Form of admissions. – A notice to admit facts shall be in Form No. 10 in Appendix C, and admissions of facts shall be in Form No. 11 in Appendix C, with such variations as circumstances may require.
6. Judgment on admissions. – (1) Where admissions of fact have been made either in the pleading or otherwise, whether orally or in writing, the Court may at any stage of the suit, either on the application of any party or of its own motion and without waiting for the determination of any other question between the parties, make such order or give such judgment as it may think fit, having regard to such admissions. (2) Whenever a judgment is pronounced under sub-rule (1) a decree shall be drawn up in accordance with the judgment and the decree shall bear the date on which the judgment was pronounced”
Judicial Admissions,Stand on a Higher Footing
Admissions in pleadings are judicial admissions. They stand on a higher footing than evidentiary admissions.
They may give rise to ‘Foundation of Rights’.
They are fully binding on the party that makes them and constitute a waiver of proofs.
Evidentiary admissions are not conclusive by themselves and they can be shown to be wrong.
Admissions in pleadings or judicial admissions
In Nagindas Ramdas v. Dalpatram Iccharam, AIR 1974 SC 471, it was held by the Supreme Court as under:
“26. Admissions if true and clear are by far the best proof of the facts admitted. Admissions in pleadings or judicial admissions admissible under Section 58 of the Evidence Act, made by the parties or their agents at or before the hearing of the case, stand on a higher footing than evidentiary admission. The former class of admissions are fully binding on the party that makes them and constitute a waiver of proof. They by themselves can be made the foundation of the rights of the parties. On the other hand evidentiary admissions which are receivable at the rival as evidence are by themselves not conclusive. They can be shown to be wrong.” (Quoted in: Sangramsinh P. Gaekwad v. Shantadevi P. Gaekwad: AIR 2005 SC 809, 2005 (11) SCC 314.)
A party will not be permitted to resile from admission
at subsequent stage
in the subsequent proceedings
In State of Haryana v. M.P. Mohla, 2007 (1) SCC 457 (SB Sinha), it is held as under:
“25. The law as regards the effect of an admission is also no longer res integra. Whereas a party may not be permitted to resile from his admission at a subsequent stage of the same proceedings, it is also trite that an admission made contrary to law shall not be binding on the State.
26. Reliance has been placed on Sangaramsinh P. Gaekwad vs. Shantadevi P. Gaekwad, 2005 (11) SCC 314 wherein the court was considering the effect of an admission made in the pleadings which was binding on the party proprio vigore in the subsequent proceedings.”
In Ranganayakamma v. K. S. Prakash, 2008-15 SCC 673 (SB Sinha), it is held as under:
“The pleadings of the appellants in the said suit in which they were parties are binding on them in thesubsequent proceedingsproprio vigore.”
See also:
Biswanath Prasad v. Dwarka Prasad, AIR 1974 SC 117,
Steel Authority of India Ltd v. Union of India, AIR 2006 SC 3229, 2006 (12) SCC 233,
Union of India v. Pramod Gupta, (2005) 12 SCC 1.
In Modi Spinning and Weaving Mills Co. Ltd. v. Ladha Ram & Co., (1976) 4 SCC 320 it was held as under:
“10. It is true that inconsistent pleas can be made in pleadings but the effect of substitution of paras 25 and 26 is not making inconsistent and alternative pleadings but it is seeking to displace the plaintiff completely from the admissions made by the defendants in the written statement. If such amendments are allowed the plaintiff will be irretrievably prejudiced by being denied the opportunity of extracting the admission from the defendants. The High Court rightly rejected the application for amendment and agreed with the trial court.”
In Gautam Sarup v. Leela Jetly and others, (2008) 7 SCC 85, it was held as under::
“28. What, therefore, emerges from the discussions made hereinbefore is that a categorical admission cannot be resiled from but, in a given case, it may be explained or clarified. Offering explanation in regard to an admission or explaining away the same, however, would depend upon the nature and character thereof. It may be that a defendant is entitled to take an alternative plea. Such alternative pleas, however, cannot be mutually destructive of each other.”
Burden on party who made Admission to show that it was Erroneous.
In Nizar v. Raseena, 2018-5 Ker HC 356; 2018-4 KerLT 870, it is held as under:
“An admission by a party in a previous suit or proceedings is admissible in evidence in a subsequent suit or proceedings. What a party himself admits to be true may reasonably be presumed to be so. The burden is upon the party who has made the admission to show that it was wrong or erroneous. Admission is only a piece of evidence to prove a fact. It does not operate as estoppel unless the other party has acted upon it.”
Admission in pleadings cannot be Permitted to be withdrawn by Amendment
Our Apex court, in Ram Niranjan Kajaria v. Sheo Prakash Kajaria, (2015) 10 SCC 203, held – by amendment of pleadings, admission made in the pleadings cannot be permitted to be withdrawn. It reads (para 22 and 23) as under:
“22. Delay in itself may not be crucial on an application for amendment in a written statement, be it for introduction of a new fact or for explanation or clarification of an admission or for taking an alternate position. It is seen that the issues have been framed in the case before us, only in 2009. The nature and character of the amendment and the other circumstances as in the instant case which we have referred to above, are relevant while considering the delay and its consequence on the application for amendment. But a party cannot be permitted to wholly withdraw the admission in the pleadings, as held by this Court in nagindas Ramdas vs. Dalpatram Ichharam. To quote para 27: (SCC pp. 251-52)
“27. From a conspectus of the cases cited at the Bar, the principle that emerges is, that if at the time of the passing of the decree, there was some material before the Court, on the basis of which, the Court could be prima facie satisfied, about the existence of a statutory ground for eviction, it will be presumed that the Court was so satisfied and the decree for eviction though apparently passed on the basis of a compromise, would be valid. Such material may take the shape either of evidence recorded or produced in the case, or, it may partly or wholly be in the shape of an express or implied admission made in the compromise agreement, itself. Admissions, if true and clear, are by far the best proof of the facts admitted. admissions in pleadings or judicial admissions, admissible under Section 58 of the Evidence Act, made by the parties or their agents at or before the hearing of the case, stand on a higher footing than evidentiary admissions. The former class of admissions are fully binding on the party that makes them and constitute a waiver of proof. They by themselves can be made the foundation of the rights of the parties. On the other hand, evidentiary admissions which are receivable at the trial as evidence, are by themselves, not conclusive. They can be shown to be wrong.”
23. We agree with the position in Nagindas Ramdas and as endorsed in Gautam Sarup that a categorical admission made in the pleadings cannot be permitted to be withdrawn by way of an amendment. To that extent, the proposition of law that even an admission can be withdrawn, as held in Panchdeo Narain Srivastava (Panchdeo Narain Srivastava v. Km. Jyoti Sahay, (1984) Supp. SCC 594 ), does not reflect the correct legal position and it is overruled.”
Admission on Contents of (Inadmissible) Document in Pleadings
In Perumal Chettiar v. Kamakshi Ammal, AIR 1938 Mad 785; (1938) 2 MLJ 189, it is observed, as to pleadings, as under:
“The result, in India, is that if by reason of the document being unstamped, no evidence of its contents whether primary or secondary is admissible, evidence of admissions by the defendant is equally inadmissible. The position may be different where admissions are made in the pleadings themselves (cf. Huddleston v, Briscoe (1805) 11 Ves. 583 (596) : 32 E.R. 1215 (1220) and Thynne v. Protheroe (1814) 2 M. & S. 553 : 105 E.R. 488), because by reason of Section 58 of the Evidence Act, it may not be necessary to prove admitted facts and the objection under Section 91 will not arise unless the plaintiff is called upon to go into evidence. (Mallappa v. Mat an Naga Chetty (1918) 35 M.L.J. 555 : I.L.R. 42 Mad. 41 (F.B.))
This was the position in Pramatha Nath Sandal v. Dwarka Nath Dey (1896) I.L.R. 23 Cal. 851; cf. however Chenbasappa v. Lakshman Ramchandra (1893) I.L.R. 18 Bom. 369, where it was suggested that in a suit on an unstamped promissory note, even an admission in the written statement may not avail the plaintiff, as the Court when giving a decree on such admission may be “acting on” the document within the meaning of Section 35 of the Stamp Act; see also Ankur Chunder Roy Chowdhry v. Madhub Chunder Gkose (1873) 21 W.R. 1.”
Admission is a Mode of Proof; ‘Facts Admitted Need Not be Proved’
Usually, a document is proved through its author, or through a witness or a person acquainted with handwriting. Concession or admission by the opposite side is an acceptable form of proving documents in evidence (under Sec. 17, 21, 58, 59 Evidence Act). ‘Truth of the contents’ of documents can also be established by concession or admission from the other side (“at the hearing”). Sec. 58, Evidence Act reads as under:
“58. Facts admitted need not be proved: No fact need 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 or 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.”
Sec. 58 says that no fact need be proved in any proceeding in three circumstances:
the parties or their agents agree to admit at the hearing
before the hearing, they agree to admit by any writing under their hands
by any rule of pleading they are deemed to have admitted by their pleadings.
Admissions are Substantive Evidence by themselves
In Bharat Singh v. Bhagirathi, AIR 1966 SC 405: [1966] 1 SCR 606, it was observed as under:
“Admissions are substantive evidence by themselves, in view of ss. 17 and 21 of the Indian Evidence Act, though they are not conclusive proof of the matters admitted. We are of opinion that the admissions duly proved are admissible evidence irrespective of whether the party making them appeared in the witness box or not and whether that party when appeared as witness was confronted with those statements in case it made a statement contrary to those admissions. The purpose of contradicting the witness under s. 145 of the Evidence Act is very much different from the purpose of proving the admission. Admission is substantive evidence of the fact admitted while a previous statement used to contradict a witness does not become substantive evidence and merely serves the purpose of throwing doubt on the veracity of the witness. What weight is to be attached to an admission made by a party is a matter different from its use as admissible evidence.”
Bharat Singh v. Bhagirathi is Quoted/referred to in:
Dipakbhai Jagdishchandra Patel v. State Of Gujarat, AIR 2019 SC 3363; 2019-16 SCC 547.
Union Of India v. Moksh Builders And Financiers Ltd., 1977 AIR SC 409; 1977-1 SCC 60.
Bishwanath Prasad v. Dwarka Prasad AIR 1974 SC 117, 1974-1 SCC 78
Priya Bala Ghosh v. Suresh Chandra Ghosh, AIR 1971 SC 1153; 1971-1 SCC 864.
“Hearing” Partakes ‘recording evidence’
Legal implication of the term ‘hearing’ is clear from Rule 2 (1) of Order XVIII (Hearing of the suit and examination of witnesses) of the CPC – that is, hearing partakes ‘recording evidence’. Rule 2 (1) reads as under:
“2. Statement and production of evidence – (1) On the day fixed for the hearing of the suit or on any other day to which the hearing is adjourned, the party having the right to begin shall state his case and produce his evidence in support of the issues which he is bound to prove.”
Recitals in a Judgment – no evidence of Admission made by a Witness
In Ishar Dass v. Arjan Singh, 1966 CurLJ 537 (P&H), it is observed as under:
“It is not denied that the appellant sought to prove the previous admission from a recital in the judgment delivered by the learned Subordinate Judge, 1st Class on 23rd February, 1962 copy Exhibit D.3. It is equally clear that recitals in a judgment are no evidence to prove the exact admission made by a party or a witness unless whole of the statement is recited therein. In this connection reference may be made to the cases, Sardar Bahadur Sardar Indra Singh v. Commissioner of Income Tax Bihar and Orissa, A.I.R. 1943 Patna 169, and Saradamba v. Pattabhiramayya, A.I.R. 1931 Madras 207.”
Modes of Proof of Documents
Modes of Proof of Documents (as to, both, ‘formal proof’ and ‘truth of the contents’) include the following:
Admission of the person who wrote or signed the document (Sec. 17, 21, 58, 67, 70).
Evidence of a person in whose presence the document was signed or written – ocular evidence (Sec. 59).
An attesting witness (Sec. 59).
Opinion of a person who is acquainted with the writing of the person who signed or wrote (Sec. 47).
Admission made by the person who signed or wrote the document made in judicial proceedings (Sec. 32, 33).
Evidence of a handwriting expert-opinion evidence/scientific evidence (Sec.45).
Evidence of a person who in routine has been receiving the document; or a document signed by such a person in the ordinary course of his business or official duty, though he may have never seen the author signing the document (Sec. 32, 34, 35 or 114).
Invoking (specific) presumptions under Sec. 79 to 90A.
Presumptions (general) under Sec. 114.
Circumstantial evidence: on probability or inferences (Sec. 114).
Court-comparison (Sec. 73).
Facts judicially noticeable (Sec. 56 and 57).
A fact of common-knowledge. (It does not require proof. See: Union Of India v. Virendra Bharti: 2011-2 ACC 886, 2010 ACJ 2353; Rakhal Chakraborty v. Sanjib Kumar Roy: 1998-1 GauLR 253, 1997-2 GauLT 705)
Internal evidence afforded by the contents of the document; a link in a chain of correspondence; recipient of the document. (Mobarik Ali Ahmed v. State of Bombay, AIR 1957 SC 857)
Truth of Contents of Document Invoking ADMISSION
Truth of the contents of a document, can be established
(i) by oral evidence of one who can vouchsafe the same,
(ii) by invoking circumstantial evidence or ‘presumption’ or
(iii) by express admission by the other side.
Admission of Contents of Documents
Admission may dispense with proof; but probative value may be less or nil.
Admissibility & probative value – two matters.
In State of Bihar v. Radha Krishna Singh, AIR 1983 SC 684, it is observed by our Apex Court as under:
“Admissibility of a document is one thing and its probative value quite another—these two aspects cannot be combined. A document may be admissible and yet may not carry any conviction and weight or its probative value may be nil.”
Secondary Evidence – Marked without Objection – Court Examines Probative Value
It is well settled that if a party wishes to lead secondary evidence, the Court is obliged to examine the probative value of the document produced in the Court or their contents and decide the question of admissibility of a document in secondary evidence [Rakesh Mohindra v. Anita Beri: 2015 AIR(SCW) 6271; 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].
See Notes below under the heading –
“Court examines probative value of secondary evidence.”
Court Has Obligation to Decide Admissibility of Secondary Evidence
As shown above, it is held in Kaliya v. State of MP: 2013-10 SCC 758 (relying on H. Siddiqui v. A. Ramalingam: AIR 2011 SC 1492, and Rasiklal Manikchand v. MSS Food Products: 2012-2 SCC 196) that the court is obliged to decide the question of admissibility of a document in secondary evidence.
In H. Siddiqui v. A. Ramalingam: AIR 2011 SC 1492 it is held as under:
“12. The provisions of Section 65 of the 1872 Act provide for permitting the parties to adduce secondary evidence. However, such a course is subject to a large number of limitations. In a case where the original documents are not produced at any time, nor has any factual foundation been laid for giving secondary evidence, it is not permissible for the court to allow a party to adduce secondary evidence. Thus, secondary evidence relating to the contents of a document is inadmissible, until the non-production of the original is accounted for, so as to bring it within one or other of the cases provided for in the section. The secondary evidence must be authenticated by foundational evidence that the alleged copy is in fact a true copy of the original. Mere admission of a document in evidence does not amount to its proof. Therefore, the documentary evidence is required to be proved in accordance with law. The court has an obligation to decide the question of admissibility of a document in secondary evidence before making endorsement thereon. (Vide Roman Catholic Mission v. State of Madras [AIR 1966 SC 1457] , State of Rajasthan v. Khemraj [(2000) 9 SCC 241 : AIR 2000 SC 1759] , LIC v. Ram Pal Singh Bisen [(2010) 4 SCC 491 : (2010) 1 SCC (L&S) 1072 : (2010) 2 SCC (Civ) 191] and M. Chandra v. M. Thangamuthu [(2010) 9 SCC 712 : (2010) 3 SCC (Civ) 907])”.
H. Siddiqui v. A. Ramalingam is followed in U. Sree v. U. Srinivas: AIR 2013 SC 415
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.
If No Objection, Can a Photocopy of Document be Marked?
Yes.
It would not be legitimate for the court to refrain from exhibiting a relevant document which could be received in evidence on the (express or implied) concession or admission of the opposite side (as regards mode of proof, including production of a photocopy), in the scheme of our Procedure Codes and Evidence Act.
In Kalita Iqbal Basith v. N Subbalakshmi, (2021) 2 SCC 718, our Apex Court considered admission of a photocopy of an official document, in the following factual matrix:
The failure to produce the originals or certified copies of other documents was properly explained as being untraceable after the death of the brother of P.W.1 who looked after property matters.
The attempt to procure certified copies from the municipality was also unsuccessful as they were informed that the original files were not traceable.
The photocopies were marked as exhibits without objection.
The respondents never questioned the genuineness of the same.
Despite the aforesaid, and the fact that these documents were more than 30 years old, were produced from the proper custody of the appellants along with an explanation for nonproduction of the originals, they were rejected (by the High Court) without any valid reason holding that there could be no presumption that documents executed by a public authority had been issued in proper exercise of statutory powers.
In this premises the Supreme Court held as under:
“This finding in our opinion is clearly perverse in view of Section 114(e) of the Indian Evidence Act 1872, which provides that there shall be a presumption that all official acts have been regularly performed. The onus lies on the person who disputes the same to prove otherwise.”
Delhi High Court held in Sumita @ Lamta v. Devki, (Valmiki J.Mehta, J.), 25 Sep 2017 (Indiakanoon), as under:
“…. it is conceded by the counsel for the appellants/defendants that before commencement of cross-examination of PW-1 and PW-2 there was no objection raised that the Will cannot be proved inasmuch as the Will only is a photocopy. Once no objection is raised to the mode of proof on account of lack of original, then now the objection cannot be raised to the mode of proof as the objection to the mode of proof stands waived in view of the ratio as laid down in the judgment of the Supreme Court in the case of R.V.E. Venkatachala Gounder Vs. Arulmigu Viswesaraswami & V.P. Temple and Another, (2003) 8 SCC 752.”
Can the Court Refrain from Marking Documents for no Formal Proof?
No.
Relevant and Admissible Documents have be received in evidence ‘Subject to Proof’ or ‘Subject to Objection’?
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 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.
In Rajathi v. Arukkani Ammal, 2001-3 CTC 34; 2001-2 MLJ 364 it is held by F.M. Ibrahim Kalifulla, J., as under:
“Therefore, there should not be any impediment for the court below to receive the document in question subject to the proof of the said document, so as to rely upon the same at later point of time, I am of the view that to reject the receipt of the very document at the threshold, under the facts and circumstances of the case is totally unjustified and not in accordance with law. In fact as contended by the learned counsel for the petitioner, the court below unfortunately concentrated it’s whole attention towards the validity of the said document, instead of finding out as to whether it could be received as secondary evidence under Section 65(a) of the Indian Evidence Act. The mere receipt of the said document subject to the proof as rightly contended by the learned counsel for the petitioner would not, in any way, cause prejudice to the respondent.
4. In the result, this revision petition is allowed. The order impugned in this petition is set aside. The court below is directed to receive of it the document, subject to proof by the petitioner in the manner known to law.”
Court’s Jurisdiction to Require to Prove an Admitted Document
The principles in the proviso to Sec. 58 Evidence Act (that the Court may, in its discretion, require the facts admitted to be proved otherwise than by such admissions) apply to category of documents that require specific evidence as to proof of its contents (other than the mere statements in the document).
See: Kaliya v. State of MP: 2013 10 SCC 758; Rakesh Mohindra v. Anita Beri: 2015 AIR SCW 6271.
In any case, besides the powers of the court under Sec. 165 of Evidence Act, the scheme of the Procedural Acts (Evidence Act, CPC and CrPC) shows that the court has jurisdiction to require the party concerned to prove that document. We can see it in Sec. 58 of Evidence Act, Order XII, Rule 2A Proviso of the CPC and Sec. 294 of the CrPC .
Section 294 of Code of Criminal Procedure reads as follows:
“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.”
Relevancy Stand on Another Footing
In Pandappa Mahalingappa v. Shivalingappa Murteppa, AIR 1946 Bombay 193, it is observed as under:
“As held in 10 L.A. 79 and 5 Bom. L.R. 708 the discretion exercised by the trial Court in admitting secondary evidence on the ground that the original is lost should not be interfered with in appeal. But it is urged that the certified copy should not have been exhibited without proof of the execution. From the application (Ex.66) and the roznama it appears that the trial Court exhibited it under S. 90, Evidence Act, on the ground that it was more than 30′ years old. In the lower appellate court the admissibility of the document does not appear to have been challenged. It is urged that as held in 44 Bom. 192 the erroneous omission before the lower Courts to object to the admission of evidence does not make that evidence relevant. The principle of that ruling, however, applies only where the document is per se irrelevant or inadmissible and no objection was taken to its admissibility: 8 Pat. 788. Where evidence is admitted in the trial Court without any objection to its reception, and the evidence is admissible and relevant, then no objection will be allowed to be taken to its reception at any stage of the litigation on the ground of improper proof. But if the evidence is irrelevant or inadmissible, as for instance, owing to want of registration, omission to take objection to its reception does not make it admissible, and the objection may be raised even in appeal for the first time; 28 L.A. 106. As observed by Das J. in A.L.R. 1922 Pat. 122 “the question of relevancy is a question of law and can be raised at any stage, but the question of proof is a question of procedure, and is capable of being waived.“
In this case the secondary evidence of the mortgage-deed was held to be admissible as the original was lost. What is now urged is that the execution should have been proved and this objection was not raised either in the trial Court or in the lower appellate Court. It is however true that no evidence was adduced to prove the execution of the original of Ex.68 as the trial Court was prepared to raise the presumption in favour of the genuineness of the document under S. 90, Evidence Act. Whether such a presumption can be raised or not is a question of law, and it can, therefore, be urged at any stage of the litigation. It is now well settled by the ruling of the Privy Council in 37 Bom. L.R. 805 that the statutory presumption under S. 90, Evidence Act, cannot be made in respect of a document merely on production of its copy under S. 65 of the Act. Their Lordships observed (p. 811) “Section 90 clearly requires the production to the Court of the particular document in regard to which the Court may make the statutory presumption. If the document produced is a copy, admitted under S.65 as secondary evidence, and it is produced from proper custody, and is over 30 years old, then the signatures authenticating the copy may be presumed to be genuine.”
PART II
EFFECT OF MARKING DOCUMENTS WITHOUT OBJECTION
Effect of marking a document without formal proof on admission (or without objection) is also a subject of controversy.
Effect of Marking Documents Without Objection
Effect of marking a document without formal proof, or on admission (or without objection), is also a subject of controversy.
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.
Propositions Analysed
1. Marked Without Objection – Its ‘Contents’ Stand Proved, as Admission
(a) Admission, or exhibiting, of documents in evidence and proving the truth of its contents (veracity of the same) 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, or marked without objection, separate proof need not be warranted. Similarly, separate proof may not be required when presumptions can be invoked (e.g. document in ordinary course of business, a letter obtained in reply).
When a document is marked without objection, its ‘contents’ stand proved. See: RVE Venkatachala Gounder v. Arulmigu Viswesaraswami: AIR 2003 SC 4548. See also:
Narbada Devi v. Birendra Kumar: (2003) 8 SCC 745
Dayamati Bai v. K.M. Shaffi : AIR 2004 SC 4082
Oriental Insurance Co v. Premlata: (2007) 8 SCC 575
Thimmappa Rai v. Ramanna Rai,(2007) 14 SCC 63.
Effect of marking document without objection is laid down in the following two recent decisions of the Supreme Court. In both these cases, it is seen, the Apex Court has taken the view that the ‘truth’ is also stood proved.
Neeraj Dutta v. State (Govt. of N. C. T. of Delhi)
The Constitution Bench of our Apex Court laid down in Neeraj Dutta v. State (Govt. of N. C. T. of Delhi), AIR 2023 SC 330; 2023 4 SCC 731, as under:
Section 61 deals with proof of contents of documents which is by either primary or by secondary evidence.
When a document is produced as primary evidence, it will have to be proved in the manner laid down in Sections 67 to 73 of the Evidence Act.
Mere production and marking of a document as an exhibit by the court cannot be held to be due 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 proofof its contents).
The contents of the document must be proved either by the production of the original document i.e., primary evidence or by copies of the same as per Section 65 as secondary evidence.
So long as an original document is in existence and is available, its contents must be proved by primary evidence.
It is only when the primary evidence is lost, in the interest of justice, the secondary evidence must be allowed.
Primary evidence is the best evidence and it affords the greatest certainty of the fact in question.
Thus, when a particular fact is to be established by production of documentary evidence, there is no scope for leading oral evidence.
What is to be produced is the primary evidence i.e., document itself. It is only when the absence of the primary source has been satisfactorily explained that secondary evidence is permissible to prove the contents of documents.
Secondary evidence, therefore, should not be accepted without a sufficient reason being given for non-production of the original.
Once a document is admitted, the contents of that document are also admitted in evidence, though those contents may not be conclusive evidence.
Moreover, once certain evidence is conclusive it shuts out any other evidence which would detract from the conclusiveness of that evidence.
There is a prohibition for any other evidence to be led which may detract from the conclusiveness of that evidence and the court has no option to hold the existence of the fact otherwise when such evidence is made conclusive.
It is held further as under:
“44. Section 64 of the Evidence Act states that documents must be proved by primary evidence except in certain cases mentioned above. ….. Thus, once a document has been properly admitted, the contents of the documents would stand admitted in evidence, and if no objection has been raised with regard to its mode of proof at the stage of tendering in evidence of such a document, no such objection could be allowed to be raised at any later stage of the case or in appeal vide Amarjit Singh v. State (Delhi Admn.) 1995 Cr LJ 1623 (Del) (“Amarjit Singh”). But the documents can be impeached in any other manner, though the admissibility cannot be challenged subsequently when the document is bound in evidence.”
In PC Thomas v. PM Ismail, AIR 2010 SC 905; 2009-10 SCC 239, it is observed as under:
“No objection on pleas of “inadmissibility” or “mode of proof” was raised at the time of their exhibition or any time later during trial, when most of the witnesses, produced by the parties were confronted with these, as duly exhibited, bearing stamp marking with particulars, prescribed under Order XIII Rule 4 of the Code of Civil Procedure, 1908 and duly signed as such.
In our opinion, it is too late in the day now to object to their exhibition on the ground of “prescribed procedure” i.e. mode of proof.
Moreover, we also find that it was nobody’s case that the said documents were got printed by John K or distributed amongst voters by him. Absence of proof of acknowledgment by him because of non production of John K as a witness, in the circumstances, in our view, is inconsequential.
Admittedly, John K was a well known leader of high stature, recognized as such by Christian/Catholic voters including those mentioned in Para 17 (supra) and, therefore, there is no question of drawing an adverse inference against the election petitioner for not examining him, as strenuously urged on behalf of the appellant, particularly when the printing and circulation of offending material (Exts.P1 and P2) has been proved by the election petitioner beyond reasonable doubt.”
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.”
(b) Proof of Execution may not be Enough: Exhibiting of documents in evidence, without objection, and proving the same before the court are two different process.
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. Separate proof may not be required when presumptions can be invoked (e.g. document in ordinary course of business, a letter obtained in reply).
(c) Factual foundation to give secondary evidence must be established:
Contents of documents are presented in two ways:
documents in original
(by way) of secondary evidence.
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 – Objection stands waived. 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 so) at the time of admission of such documents. In case, an objection is not raised at that point of time, it is precluded from being raised at a belated stage. It stands waived. [Iqbal Basith v. N Subbalakshmi, (2021) 2 SCC 718;Kaliya v. State of MP: 2013-10 SCC 758]
2. Mere Marking – Not Dispense with Proof (of truth of contents)
Following are the often-cited cases on this subject.
The Proposition -Mere Marking Does Not Prove the Contents – was NOTapplied 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 – unreservedlyapply?
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
In Sait Tarajee Khimchand v. Yelamarti Satyam, AIR 1971 SC 1865, the Supreme Court observed that mere marking of documents (day book and ledger) as exhibits do not dispense with the proof of documents. In Nandkishore Lalbhai Mehta v. New Era Fabrics, AIR 2015 SC 3796, it is observed that mere marking as exhibit and identification of executor’s signature by one of witnesses do not prove contents of a document.
In Kaliya v. 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 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).”
[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 Dibakar Behera v. Padmabati Behera, AIR 2008 Ori 92, it is observed [referring RVE Venkatachala Gounder v. Arulmigu Viswesaraswami, AIR 2003 SC 4548, Dayamati Bai v. K.M. Shaffi, 2004 SC 4082, Bhagyarathi Das v. Agadhu Charan Das, 62 (1986) CLT 298, Budhi Mahal v. Gangadhar Das, 46 (1978) CLT 287 etc.] that a close reading of the above judicial pronouncements would show that whenever a document is marked as exhibit without objection, it will be presumed that a party having right of objection has waived formal proof of the document and in such situation, the entire contents of the document would be admissible in evidence. How ever, by such admission of document, the truth and correctness of the contents by it self would not be established and there must be some evidence to support the contents of such document.
Secondary evidence relating to the contents of a document is inadmissible, until the non-production of the original is accounted for. The secondary evidence must be authenticated by foundational evidence that the alleged copy is in fact a true copy of the original. Mere admission of a document in evidence does not amount to its proof. Therefore, the documentary evidence is required to be proved in accordance with law.
The court has an obligation to decide the question of admissibility of a document in secondary evidence before making endorsement thereon. [H. Siddiqui v. A. Ramalingam: AIR 2011 SC 1492; Nandkishore Lalbhai Mehta v. New Era Fabrics: AIR 2015 SC 3796]
In Rakesh Mohindra v. Anita Beri [2015AIR(SCW) 6271] it is held:
“Mere admission of secondary evidence, does not amount to its proof. The genuineness, correctness and existence of the document shall have to be established during the trial and the trial court shall record the reasons before relying on those secondary evidences.”
Court can Reject Irrelevant or Inadmissible Documentat 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.
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.
Objection About Mode of Proof Can Be Waived
RVE Venkatachala v. Arulmiga Viswesaraswami & V.P. Temple: AIR 2004 SC 4082, is often relied on by the courts to establish the proposition – mode of proof can be waived..
In Sk. Farid Hussinsab v. State of Maharashtra, 1983 CrLJ 487, it was held as under:
“6. In civil cases mode of proof can be waived by the person against whom it is sought to be used. Admission thereof or failure to raise objection to their tendering in evidence amount to such waiver. No such waiver from the accused was permissible in criminal cases till the enactment of the present Code of Criminal Procedure in 1973…
Section 294(1) of the Code enables the accused also, to waive this mode of proof, by admitting it or raising no dispute as to its genuineness when called upon to do so under sub-section (1). Sub-section (3) enables the Court to read it in evidence without requiring the same to be proved in accordance with the Evidence Act. There is nothing in Section 294 to justify exclusion of it, from the purview of “documents” covered thereby. The mode of proof of it also is liable to be waived as of any other document.”
(Quoted in Sonu @ Amar v. State of Haryana, AIR 2017 SC 3441; 2017-8 SCC 570)
It is held in Rafia Sultan Widow of Mirza Sultan Ali Baig v. Oil And Natural Gas Commission (I.C.Bhatt, S.B. Majmudar, JJ.), 1986 GujLH 27; 1985-2 GujLR 1315, as under:
“It is now well settled that objection aboutmode 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 ).”
3. IF ‘TRUTH’ IS IN ISSUE- Mere Marking Not Amounts to ‘Waiver’
The fundamental principles as to proof of a document is that the proof must be given by a person who can vouchsafe for the Truth of its contents (Narbada Devi Gupta v. Birendra Kumar Jaiswal, 2003-8 SCC 745).
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’ of contents 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 v. 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.”
Presumption on a registered document and undue influence under S. 16, Contract Act: In Lakshmi v. Muthusamy, 2012(1) CTC 53 it was contended that there was presumption on a registered document that the contents of the said document are true and genuine (Vimalchand Ghevarchand Jain v. Ramakant Eknath Jadoo, 2009-5 SCC 713, relied on). The Madras High Court (S. Nagamuthu, J.) rejected the argument for, there was another question – whether the plaintiff had discharged the burden of proving ‘absence of undue influence’ as contemplated in Section 16 of the Indian Contract Act which provided for the burden of proof of absence of undue influence. It was pointed out that once the initial burden of proving the position of the plaintiff to dominate the will of the defendant was discharged, the burden was shifted on the plaintiff to prove absence of undue influence. The Court found it not safe to rely on the evidence of the plaintiff alone to hold absence undue influence on the part of the plaintiff. The High Court relied on the Supreme Court decision in Krishnamohan Kul v. Pratima Maity, (2004) 9 SCC 468, where it was held as under:
“The onus to prove the validity of the deed of settlement was on Defendant 1. When fraud, mis-representation or undue influence is alleged by a party to the suit, normally, the burden is on him to prove such fraud, undue influence or mis-representation. But when a person is in a fiduciary relationship with another and the latter is in a position of active confidence the burden of proving the absence of fraud, mis-representation or undue influence is upon the person in the dominating position, and he has to prove that there was fair play in the transaction and that the apparent is the real, in other words, that the transaction is genuine and bona fide. In such a case, the burden of proving the good faith of the transaction is thrown upon the dominant party, that is to say, the party who is in a position of active confidence. A person standing in a fiduciary relation to another has a duty to protect the interest given to his care and the court watches with jealously all transactions between such persons so that the protector may not use his influence or the confidence to his advantage. When the party complaining shows such relation, the law presumes everything against the transaction and the onus is cast upon the person holding the position of confidence or trust to show that the transaction is perfectly fair and reasonable, that no advantage has been taken of his position. This principle has been ingrained in Section 111 of the Indian Evidence Act.”
If payment disputed, mere marking of a registered sale deed not sufficient. In Suresh CV v. Tobin, ILR 2013(1) Ker. 30: 2013-1 KLT 293, the Kerala High Court held that if payment of price for sale was disputed, such fact would not be proved by mere production and marking of a registered sale deed which stated or narrated the payment, and that it was necessary to adduce oral evidence to prove such fact. The Court relied on Ramji Dayawala Vs. Invest Import (AIR 1981 SC 2085) which held that 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 and that 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.
4. Admission of Contents– May dispense with proof; but Probative Value may be less or nil
Admissibility & probative value – two matters. State of Bihar v. Radha Krishna Singh (AIR 1983 SC 684) it is observed:
“Admissibility of a document is one thing and its probative value quite another—these two aspects cannot be combined. A document may be admissible and yet may not carry any conviction and weight or its probative value may be nil.”
Court examines probative value of secondary evidence:
It is well settled that if a party wishes to lead secondary evidence, the Court is obliged to examine the probative value of the document produced in the Court or their contents and decide the question of admissibility of a document in secondary evidence, Rakesh Mohindra v. Anita Beri: 2015 AIR(SCW) 6271.
Contents of the document cannot be proved by mere filing the document in a court. Under the Law of Evidence, it is necessary that contents of documents are required to be proved either by primary or by secondary evidence. Mere marking a document as an ‘exhibit’ will not absolve the duty of to prove the documents in accordance with the provisions of the Evidence Act. At the most, marking ‘exhibit’may amount to proof of contents, but not its truth.
Documents which are not produced and marked as required under the Evidence Act cannot be relied upon by the Court.
See: LIC v. Ram Pal Singh Bisen: 2010-4 SCC 491 (Filing of the Inquiry Report or the evidence adduced during the domestic enquiry);
M. Chandra v. M. Thangamuthu, AIR 2015 SC 3796.
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.
In Kaliya v. State of MP: 2013-10 SCC 758 (relying on H. Siddiqui v. A. Ramalingam: AIR 2011 SC 1492, and Rasiklal Manikchand v. 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 v. Ram Pal Singh Bisen [2010-4 SCC 491], it is observed as under:
“26. We are of the firm opinion that mere admission of document in evidence does amount to its proof. In other words, mere marking of exhibit on a document does dispense with its proof, which is required to be done in accordance with law. …..27. It was the duty of the appellants to have proved documents Exh.-A-1 to Exh. A-10 in accordance with law. Filing of the Inquiry Report or the evidence adduced during the domestic enquiry would partake the character of admissible evidence in Court of law. That documentary evidence was also required to be proved by the appellants in accordance with the provisions of the Evidence Act, which they have failed to do.”
The Calcutta High Court quoting Life Insurance Corporation of India v. Ram Pal Singh Bisen, 2010-4 SCC 491, it is observed in Bajaj Allianz General Insurance Company v. Smt. Santa, 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, v. Chhoti, AIR 1990 SC 396, it is observed as under:
“A certified copy of a registered sale deed may be produced as secondary evidence in the absence of the original. But in the present case Ex. 3 is not certified copy. It is just an ordinary copy. There is also no evidence regarding content of the original sale deed. Ex.3 cannot therefore, be considered as secondary evidence. The appellate Court has a right and duty to exclude such evidence.”
5.Court should allow concerned party, 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).
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. This principle is reiterated in ever so many cases. They include:
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; AIR 2015 SC 3796
In Shail Kumari v. Saraswati Devi, 96 (2002) DLT 131, it is observed as under:
“14. In case a document is marked exhibit without an objection from the party which is affected by that document ordinarily its admissibility cannot be questioned at a later stage of the proceedings in the suit. But in cases where such document is marked exhibit without due application of mind in violation of provisions of a statute requiring a particular mode of proof etc., the opposite party may still show during the hearing of final arguments that the document is inadmissible in evidence and should be excluded from consideration because of statutory bar or non-compliance of statutory requirement about mode of proof or otherwise. For instance a will is required to be proved by examining at least one of the attesting witnesses in accordance with Section 68 of the Evidence Act. A document which is inadmissible for want of registration or proper stamp is inadmissible in evidence, unless use of it is permissible for collateral purposes or extracts of accounts book without production of books of account and proof that they were kept in ordinary course of business. Mere putting of exhibits number on these documents in the absence of their proof in accordance with law does not make them part of the evidence to be read for deciding the suit.”
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 documentwas sought to be admittedin 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.”
When Execution of Will is Admitted, Should it be Proved?
Section 68 of the Evidence Act, 1872 mandates examination of one attesting witness at least to prove documents required by law to be attested (including Wills). When execution of a Will is ‘Admitted’ by the opposite side, should it be ‘Proved’?
There is difference of opinion.
Following latest decisions assuredly lay down that when execution of the will is ‘admitted’ by the opposite side, it need not be ‘proved’ as required in Sec. 68 (by examining at least one witness).
Boomathi v. Murugesan, 2023-2 Mad LJ 684 (DB)
P. Radha v. Irudayadoss, 2022 SCCOnline Mad 886
Rajeev Gupta v. Prashant Garg, 2022-1 All LJ 435.
Following decisions laid down that even when execution of a will was ‘admitted’ by the opposite side, it must have been ‘proved’ by examining at least one attesting witness.
S.R. Srinivas v. S. Padmavathamma, (2010) 5 SCC 274 – It is observed – the execution of a Will can be held to have been proved only when the statutory requirements for proving the Will are satisfied. Admission in the pleadings as to the Will can only be about the “making of the Will” and not the “genuineness of the Will”.
Vadakkayil Gopalan v. Vadakkayil Paru, (2013) 3 KerLT 69 –It is observed – proof of the Will by examining at least one witness was necessary (even if the Will has been admitted in the pleadings).
Poulose A. V. v. Indira M.R., 2010 (3) KerLT Suppl. 185 : ILR 2010 Ker.388 – It is observed – No distinction is drawn, by Sec. 68, between an admitted Will and a disputed Will in the mode of proof of execution; and therefore, in all cases in which the Will is set up the procedure prescribed in Sec. 68 will have to be followed.
Ramesh Verma v. Lajesh Saxena (2017) 1 SCC 257 – It is observed – the mandate of Section 68 of the Evidence Act has to be followed even in a case where the opposite party does not specifically deny the execution of the document in the written statement.
Sarada v. Radhamani, 2017 (2) KLT 327. In this decision, rendered in a ‘Refence’ to resolve the dispute in the question we discuss, the Kerala High Court (DB) referred all the above decisions. And, declared the following decisions, as Per Incuriam
Princelal G. v. Prasannakumari, 2009 (3) KerLT Suppl. 1342: ILR 2009 (3) Ker. 221 – It is observed – where the execution of the Will is expressly admitted, neither Section 68 nor its proviso is attracted obliging the propounder of the Will to prove due execution of the Will (for, admitted facts need not be proved: Sec. 58 of the Evidence Act).
Thayyullathil Kunhikannan v. Thayyullathil Kalliani, AIR 1990 Ker.226 – Relying on Order VIII Rule 5 C.P.C. and Sec. 58 of the Indian Evidence Act, it is held that when the execution of the Will is admitted, there will not be any requirement to prove the Will.
P. Malliga v. P. Kumaran, 2022 (2) LW 393, (Followed in Ranga Pillai v. Mannar Pillai, 2022, Mad) – It is held by the Madras High Court that a Will shall not be used as evidence until it is proved in the manner prescribed under Section 68 of the Evidence Act. The judge did not agree the view in P. Radha v. Irudayadoss, 2022 SCCOnline Mad 886. (Note: This decision, P. Malliga v. P. Kumaran, is overruled in Boomathi v. Murugesan, 2023-2 Mad LJ 684, DB)
S. 68 to be Followed, Even When the Opp. party does not Deny Execution
Sec. 68 of the Evidence Act reads as under:
“68. Proof of execution of document required by law to be attested—If a document is required by law to be attested, it shall not be used as evidence until one attesting witness at least has been called for the purpose of proving its execution, if there be an attesting witness alive, and subject to the process of the Court and capable of giving evidence:
Provided that it shall not be necessary to call an attesting witness in proof of the execution of any document, not being a will, which has been registered in accordance with the provisions of the Indian Registration Act, 1908 (16 of 1908), unless its execution by the person by whom it purports to have been executed is specifically denied.
In Ramesh Verma v. Rajesh Saxena, 2017-1 SCC 257, our Apex Court held as under:
“13. A will like any other document is to be proved in terms of the provisions of Sec. 68 of the Evidence Act and the Succession Act, 1925. The propounder of the will is called upon to show by satisfactory evidence that the will was signed by the testator, that the testator at the relevant time was in a sound and disposing state of mind, that he understood the nature and effect of the disposition and put his signature to the document on his own free will and the document shall not be used as evidence until one attesting witness at least has been called for the purpose of proving its execution. This is the mandate of Sec. 68 of the Evidence Act and the position remains the same even in a case where the opposite party does not specifically deny the execution of the document in the written statement.”
Effect of ‘Admission’ of Execution of Will (by the other side)
It may be pointed out that the Apex Court did not consider in this decision, Ramesh Verma v. Rajesh Saxena – what is the position when the opposite party expressly admit the execution of the document.
Boomathi v. Murugesan, 2023-2 Mad LJ 684 (DB)
It is held in a recent Division Bench decision in Boomathi v. Murugesan, 2023-2 Mad LJ 684, that the position will be different if the Will is ‘categorically’ and ‘clearly’ admitted. The Madras High Court referred Sec. 17 (Admission) and Sec. 58 (Facts admitted need not be proved) and came to the conclusion , Sec. 68 will not be attracted where the Will is “admitted” by the other side. The Division Bench held as under:
“23. First and foremost, it is to be borne in mind that before the Hon’ble Supreme Court in Jagdish Chand Sharma Vs. Narain Singh Saini [Dead] through Legal Representatives and Others, reported in 2015 [8] SCC 615, the validity of the Will was a core issue and the Hon’ble Supreme Court proceeded to discuss the law with regard to proof of a Will in accordance with the statute. In such context, the Hon’ble Supreme Court has held that the position with regard to proof of a Will remains the same even if the opposite party does not specifically deny execution of the same.
24. The above judgment has been followed by learned Single Judges of this Court in P. Malliga Vs. P. Kumaran reported in 2022 [2] LW 393 and Akkinirajan Vs. Maheswari and Others reported in 2023 [1] LW 72.
25. This Court draws the distinction between ‘specifically denied’, ‘not specifically denied’ and ‘admitted‘. The first two instances, namely, ‘specifically denied’ and ‘not specifically denied’, would fall within one category. Insofar as proof of a Will in both cases in this category, the Will would have to be necessarily proved by the propounder. However, where the opposite party categorically admits to the Will, the position would be certainly different. In India, we follow what is called the system ‘adversarial proceedings’, which is also followed in the British Courts. The foundation of this School is that parties before a Court would have to deal with facts in issue namely facts that are asserted and denied by the parties to the lis and the Court would proceed to adjudicate on such issues. When there is no dispute between the parties on certain matters, the Court would not venture to require proof of such admitted facts.”
“33. This Court has applied its mind to the various principles laid down by the Hon’ble Supreme Court as well as this Court and other High Courts, especially in the context of Sec. 68 of the Indian Evidence Act, proof of a Will where execution is not specifically denied and in cases where the execution is categorically admitted. The ratio laid down by the Hon’ble Supreme Court in Ramesh Verma’s case [cited supra] reported in 2017 [1] SCC 257, cannot be a precedent for the proposition where the opposite party clearly admits to the execution of the subject Will as in the instant case. Therefore, we are not in respectful agreement with the judgments in P. Malliga’s case(P. Malliga v. P. Kumaran, 2022 (2) LW 393) andAkkinirajan’s case (Akkinirajan Vs. Maheswari, 2023 [1] LW 72) following the ratio laid down by the Hon’ble Supreme Court in Jagdish Chand Sharma’s case. On the contrary, we approve the ratio laid down in P. Radha Vs. Irudayadoss and Others reported in 2022 SCC Online Mad 886 and Vanjiammal and Others Vs. Vidya and Others in the order dtd. 21/4/2017 made in CRP.[PD] No.3659/2013.”
The same view is taken in Rajeev Gupta v. Prashant Garg, 2022-1 All LJ 435. The court held as under:
“The admission were in the pleadings of the parties and therefore there was no requirement of proving the will in the present suit. Admittedly, the defendant Nos. 2 to 4/appellants have claimed their title through Ramesh Chand Garg who never disputed the validity of the will rather in the Original Suit No. 458 of 1992, he admitted its validity and therefore, the lower appellate court has rightly decreed the suit and held that the will was neither required to be proved in the present suit nor the filing of original will was necessary.”
Do General Provisions of S. 58 give way to Special Provisions of S. 68
Three views are possible:
First: Requirement of calling at lest one witness to prove those documents that requires attestation, remains the same even in a case where the opposite party expressly admit the execution of the document in the written statement.
Second: If the Will is (even impliedly) admitted, Sec. 68 need not be invoked.
Third: If only the Will is expressly admitted, then only there will be alleviation of burden laid down in Sec. 68.
In the light of the Apex Court decision in Ramesh Verma v. Rajesh Saxena, 2017-1 SCC 257, (that the position – as to proof of documents requires attestation – remains the same even in a case where the opposite party does not specifically deny the execution of the document in the written statement) it appears that the second view stated above (taken in Thayyullathil Kunhikannan v. Thayyullathil Kalliani, AIR 1990 Ker 226) is not sustainable.
But, the proposition of law in the third view above, applied in Boomathi v. Murugesan (supra), and other decisions (that the position – as to proof of documents requires attestation – will be different if the Will is “categorically admitted“), sounds good.
Authoritative Judicial Pronouncement is yet to be Arrived
It is also pertinent to note that the Kerala High Court, in Sarada v. Radhamani (supra), pointed out that the general provisions of Sect. 58 of the Evidence Act has ‘to give way to the special provisions’ of Sec. 68 of the Act; and it was remarked that there was no distinction between an ‘admitted Will’ and a ‘disputed Will’ as to the mode of proof.
It appears that the placing the doctrine of ‘specific provisions override general provisions‘ is rational; for, the following words in Sec. 68 places a ‘non-obstante clause’ –
“it shall not be used as evidence until one attesting witness at least has been called for the purpose of proving its execution”.
However, it will also be a forceful argument if one says that a section in the Evidence Act cannot be protected from certain fundamental principles of the Evidence Act which include ‘best evidence rule’, ‘admitted facts need not be proved’ etc., unless strong persuasive indications are laid down in the provision concerned. (It is also noteworthy that Sec. 68 does not proceed with a non-obstante clause.) In any event, the scheme of the Evidence Act shows that Chapter III (the beginning Chapter of Part II) which deals with “Facts Need Not be Proved”, is meant to govern the succeeding chapters including the Chapter V that deals with ‘Documentary Evidence’ wherein Sec. 68 is included.
It is also significant – Sec. 58 says that ‘Admitted facts need not be proved’; and Sec. 68 speaks as to “Proof of execution of document required by law to be attested” and that the attesting witness is called “for the purpose of proving its execution”. That is, the question of ‘proof’ under Sec. 68 does not arise if ‘execution of document’ has already been admitted by the other side.
Note: Proviso to Sec. 58 enables the court to require proof, despite the admission of the other side, if it finds proper. Proviso to Sec. 58 reads as under:
“Provided that the Court may, in its discretion, require the facts admitted to be proved otherwise than by such admissions.”
Therefore, an authoritative judicial pronouncement is yet to be arrived, taking note of various potential contentions in this regard.
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