Possessory title is a good title as against everybody other than the lawful owner.
Injunction will not be passed to favour a trespasser or a person in unlawful possession.
It will suffice if he can prove his lawful possession (Rame Gowda v. M. Varadappa Naidu, 2004-1 SCC 769).
Even if the plaintiff is a trespasser, injunction will be granted if he can prove that his possession is settled/established.
If the possession of the plaintiff is ‘settled/established’, injunction will be ordered against a true owner. In such a case, the ‘injunction’ will be subject to the (result of) claim of recovery (if any) in a proper suit, by the true owner.
It is not necessary for the person (in possession) claiming injunction, to prove his title – as long as the defendant does not claim title.
Person in ‘settled/established possession’ may get injunction against true owner (not to disposes otherwise than on due process of law); but, it cannot be claimed after cancellation (by court) of the sale deed he relied (Padhiyar Prahladji Chenaji v. Maniben Jagmalbhai, 2022 SCC OnLine SC 258.
Possession is a Substantive Right
Possession by itself is a substantive right recognised by law. It is heritable and transferable, as explained in the following decisions –
Nair Service Society Ltd. v. K.C. Alexander, AIR 1968 SC 1165,
Kuttan Narayanan v. Thomman Mathayi, AIR 1966 Ker 179;
Phirayalal Kapur v. Jia Rani, AIR 1973 Delhi 186;
Nallammal v. Ayisha Beevi, 2017-5 Mad LJ 864).
Settled Possession, Established Possession & Possessory Title
In A. Subramanian v. R. Pannerselvam, AIR 2021 SC 821, the Supreme Court held that even a trespasser, who is in established possession of the property could obtain injunction. But, it was cautioned that the matter would be different, if the plaintiff himself elaborated in the plaint about title dispute and fails to make a prayer for declaration of title along with injunction relief.
In Poona Ram v. Moti Ram, AIR 2019 SC 813, it was pointed out in a case where there was no document to prove settled possession that ‘merely on doubtful material and cursory evidence, it cannot be held that the plaintiff was ever in possession of the property, and that too in settled possession’. It held further as under:
“13. The crux of the matter is that a person who asserts possessory title over a particular property will have to show that he is under settled or established possession of the said property. But merely stray or intermittent acts of trespass do not give such a right against the true owner. Settled possession means such possession over the property which has existed for a sufficiently long period of time, and has been acquiesced to by the true owner. A casual act of possession does not have the effect of interrupting the possession of the rightful owner. A stray act of trespass, or a possession which has not matured into settled possession, can be obstructed or removed by the true owner even by using necessary force. Settled possession must be (i) effective,(ii) undisturbed, and (iii) to the knowledge of the owner or without any attempt at concealment by the trespasser. There cannot be a straitjacket formula to determine settled possession. Occupation of a property by a person as an agent or a servant acting at the instance of the owner will not amount to actual legal possession. The possession should contain an element of animus possidendi. The nature of possession of the trespasser is to be decided based on the facts and circumstances of each case.”
Possessory Title
The term ‘Possessory Title’ (in contrast to legally recognised ‘title appertain to ownership’) arises in the following situations-
1.Acquisition of ‘Original Title’: It is acquisition of title contradistinct to ‘derivative’ acquisition of title.
2.Possessory Title: ‘Possessory Title’ against everybody other than the lawful owner (For, possession by itself is a substantive right and good title; and ‘Right to Possession’ is a “Property”, under law).
3.Statutory titleby Adverse Possession: Perfection of title by ‘Adverse Possession’ against the true owner; i.e., (legal) acquisition of title as recognised by Sec. 27 of the Limitation Act. (K V Swamynathan v. E V Padmanabhan, 1991-1 JT 83, 1990-2 Scale 1326)
‘Possessory Title’- On the Premise that ‘Possession’ is a Substantive Right
One who captures a property belonging to none, or reduces such a property to his possession, gets good title against the whole world – as in the case of birds in the air and fishes in the water. And, if it belongs to another, possession of the holder of such property is good title against all but the true owner (Somnath Barman v. Dr. SP Raju AIR 1970 SC 846, 1969-3 SCC 129); because, possession is the most important objective expression of ownership. According to Salmond, possession is the most basic relationship between men and things, and the possessor should have the ‘animus’ to possess the ‘corpus’.
‘Rival Titles’ in Adverse Possession – Title by ownership & Title by possession
Possessory title by adverse possession is basically a philosophical concept of property law; and it is merely acknowledged in common law and in the Limitation Act. It is explained in the thought provoking article, “Possessory Title: Its True Nexus with the Law of Limitation and the ‘Theory of Relativity’ ” by Anoop Bhaskar, Advocate, Thiruvananthapuram (2022 KLT). It is also pointed out that there are two ‘rival titles’ in a case of adverse possession; i.e., title by ownership (pertain to true owner) & title by possession (pertain to trespasser).
When a plea on adverse possession is propped up, the judicial determination is warranted on rival claims on ‘title on ownership’ and ‘title by adverse possession’; and also, ‘presumptions on title’ and ‘presumptions on possession’. If the trespasser can prove adverse possession against the true owner, as provided under Article 65 of the Limitation Act, the law favours the trespasser endorsing his Possessory Title. The learned author lays down the doctrine of ‘preference’ upon the two ‘rival titles’ as under:
“It is true by the operation of limitation prescribed under Article 65, the prior owner loses his right or remedy to sue for possession based on title. At this point, the adverse possessor acquires title by the virtue of original acquisition. … In other words, the possessor will have an entitlement to the right to possess the land against others; i.e., he is having the title to possess. At the same time the prior owner will be denying the adverse possessor’s entitlement to possession and be claiming the entitlement to all the incidents of ownership, including possession. Basically, he will be claiming title to ownership on the land. This is how there will exist two rival titles in the case of a title dispute, i.e., title to ownership & title to possession. Now the Courts will be called upon to measure the strength of each title. If the adverse possessor proves that the prior owner has lost his right to recover possession by way of limitation, it will mean that the title of the prior owner will be weaker than adverse possessor.”
Possessory Title & Adverse Possession
If ‘no title in either party, possession alone decides’.
Possession is a good title of right against any one who cannot show a better.
Possession is Good Title Against All but the True Owner
In Somnath Barman v. Dr. SP Raju AIR 1970 SC 846, 1969-3 SCC 129 our Apex Court relied on Narayana Row v. Dharmachar, ILR 26 Mad. 514, where the Madras High Court consisting of Bhashyam Ayyangar and Moore, JJ., held that possession was, under the Indian, as under the English law, good title against all but the true owner.
‘Possession is Good Against All But the True Owner’ & Sec. 6 of the Sp. Relief Act
The principle ‘Possession is Good against all but the True Owner’ is declared in Parry v. Clissold, (1907) AC 73.
The Supreme Court of India while accepting this principle in Nair Service Society Ltd. vs. K.C. Alexander, AIR 1968 SC 1165, pointed out that the law in India allows a plaintiff to maintain a possessory suit under Sec. 9 (preset Sec. 6) of the Specific Relief Act. Such a suit can be filed against a title holder, if he had dispossessed the plaintiff ‘otherwise than in due course of law’. It is held in this decision that if ‘no title in either party, possession alone decides‘.
In Nair Service Society Ltd. vs. K.C. Alexander, AIR 1968 SC 1165, it is observed as under:
“17. … To express our meaning we may begin by reading 1907 AC 73 (Perry V. Clissold), to discover if the principle that possession is good against all but the true owner has in any way been departed from.
1907 AC 73 reaffirmed the principle by stating quite clearly:
“It cannot be disputed that a person in possession of land in the assumed character of owner and exercising peaceably the ordinary rights of ownership has a perfectly good title against all the world but the rightful owner. And if the rightful owner does not come forward and assert his title by the process of law within the period prescribed by the provisions of the statute of Limitation applicable to the case, his right is for ever extinguished and the possessory owner acquires an absolute title.”
Therefore, the plaintiff who was peaceably in possession was entitled to remain in possession and only the State could evict him. The action of the Society was a violent invasion of his possession and in the law as it stands in India the plaintiff could maintain a possessory suit under the provisions of the Specific Relief Act in which title would be immaterial or a suit for possession within 12 years in which the question of title could be raised.”
In Poona Ram v. Moti Ram, AIR 2019 SC 813, our Apex Court explained the principle ‘possession is a good title of right against any one who cannot show a better’ as under:
“9. The law in India, as it has developed, accords with jurisprudential thought as propounded by luminaries like Salmond.
Salmond on Jurisprudence states:
“These two concepts of ownership and possession, therefore, may be used to distinguish between the de facto possessor of an object and its de jure owner, between the man who actually has it and the man who ought to have it. They serve also to contract the position of one whose rights are ultimate, permanent and residual with that of one whose rights are only of a temporary nature.x x x x xIn English law possession is a good title of right against any one who cannot show a better. A wrongful possessor has the rights of an owner with respect to all persons except earlier possessors and except the true owner himself. Many other legal systems, however, go much further than this, and treat possession as a provisional or temporary title even against the true owner himself. Even a wrongdoer, who is deprived of his possession, can recover it from any person whatever, simply on the ground of his possession. Even the true owner, who takes his own, may be forced in this way to restore it to the wrongdoer, and will not be permitted to set up his own superior title to it. He must first give up possession, and then proceed in due course of law for the recovery of the thing on the ground of his ownership. The intention of the law is that every possessor shall be entitled to retain and recover his possession, until deprived of it by a judgment according to law.
Legal remedies thus appointed for the protection of possession even against ownership are called possessory, while those available for the protection of ownership itself may be distinguished as proprietary. In the modern and medieval civil law the distinction is expressed by the contrasted terms petitorium (a proprietary suit) and possessorium (a possessory suit).”
10. As far back as 1924, in the case of Midnapur Zamindary Co. Ltd. v. Naresh Narayan Roy, AIR 1924 PC 144, the learned Judge observed that in India, persons are not permitted to take forcible possession; they must obtain such possession as they are entitled to through a court. Later, in the case of Nair Service Society Ltd. v. K.C. Alexander, AIR 1968 SC 1165, this Court ruled that when the facts disclose no title in either party, possession alone decides. It was further held that if Section 9 of the Specific Relief Act, 1877 (corresponding to the present Section6) is employed, the plaintiff need not prove title and the title of the defendant does not avail him. When, however, the period of six months has passed, questions of title can be raised by the defendant, and if he does so the plaintiff must establish a better title or fail. In other words, such a right is only restricted to possession in a suit under Section 9 of the Specific Relief Act (corresponding to the present Section 6) but does not bar a suit on prior possession within 12 years from the date of dispossession, and title need not be proved unless the defendant can provide one.
11. It was also observed by this Court in Nair Service Society Ltd. (supra) that a person in possession of land in assumed character of owner and exercising peaceably the ordinary rights of ownership has a perfectly good title against the entire world except the rightful owner. In such a case, the defendant must show in himself or his predecessor a valid legal title and probably a possession prior to the plaintiff’s, and thus be able to raise a presumption prior in time.”
Present Indian Law on Adverse Possession
In Parry v. Clissold, (1907) AC 73 it was pointed out that if the rightful owner did not come forward and assert his title within the period of limitation, his right would be extinguished and the possessory owner would acquire an absolute title.
After the Limitation Act, 1963, the legal position in India, on Adverse Possession, has been changed as under:
If the rightful owner did not come forward and assert his title within the period of limitation, his right may be extinguished and the (adverse) possessory owner may acquire an absolute title.
Because,
Articles 65 of the Limitation Act, 1963 casts onus on the trespasser to prove claims of title by ‘adverse’ possession.
The 3 important modern propositions brought-in as to adverse possession (in India) are:
Mere ‘animus possidendi’, not enough; there must have animus to dispossess.
Trespasser must know who the true owner is.
Burden to plead and prove adverse possession is upon the defendant.
Adverse possession arises from the provisions in Article 65 of Limitation Act, 1963. ‘Positive and hostile acts’ of the trespasser is the pre-requirement of Adverse Possession; because, mere possession is not sufficient under Article 65, but it requires ‘adverse’ possession.
65. For possession of immovable property or any interest therein based on title.
12 years
When the possession of Defendant becomes adverse to the plaintiff.
In T. Anjanappa v. Somalingappa, (2006) 7 SCC 570, it is observed that the possession must be open and hostile enough to be capable of being known by the parties interested in the property, though it is not necessary that there should be evidence of the adverse possessor actually informing the real owner of the former’s hostile action.
Following are the other important decisions on adverse possession:
Karnataka Board of Wakaf v. Govt of India – AIR 2004 SC 2096
PT Munichikkanna Reddy v. Revamma, AIR 2007 SC 1753
Ravinder Kaur Grewal v. Manjit KaurAIR 2019 SC 3827.
Prescriptive Rights – Inchoate until the title is upheld by a competent court
The ‘adverse’ possession of a property by one person (trespasser), for 12 years, bars the right to ‘recovery’ by the person in (earlier) lawful possession (or, the true owner). Because, Article 65 of the Limitation Act lays down 12 years as the period for (recovery of) possession of immovable property (or any interest therein based on title), from a person in ‘adverse’ possession (trespasser).
No doubt, it is true, one can acquire right of easement or adverse possession by prescription. But, prescriptive rights are said to be inchoate (started; but, not full-blown) until such title is declared or upheld by a competent court.
It was observed in Sultan Ahmad v. Valiullah (1912) 10 ALJ 227, that the result of the Easements Act and the similar provisions of the Limitation Act was that a right of easement could not be said to be perfected until the right was declared by a decree of court.
Sultan Ahmad v. Valiullah (1912) 10 ALJ 227 is referred to in:
Nachiparayan v. Narayana Goundan, (1920): 60 Ind Cas 171, (1920) 39 MLJ 574;
Arjuna Udayar v. Manuswamy Naicker, 1999-1 CurCC 97.
See also: Tradesh and Miners, Ltd v. Dhirendra Nath Banerjee, AIR 1944 Pat 261.
In Siti Kantapal v. Radha Gobindaen, AIR 1929 Cal 542, it was held as under:
“It has been authoritatively held that a tie to easement is not complete merely upon the effluxion of the period mentioned in the Statute viz., 20 years and that however long the period of actual enjoyment may be, no absolute or indefeasible right can be acquired until the right is brought in question in some suit, and until it is so brought in question, the right is inchoate only and in order to establish it when brought in question, the enjoyment relied on, must be an enjoyment for 20 years up to within 2 years of the institution of the suit.” (Quoted in – D. Ramanatha Gupta vs S. Razaack, AIR 1982 Kant 314.)
In Ramanunni Vaidyar v. Govindankutty Nair, 1998(2) Ker LT 47, it is found that a person who has not acquired or perfected a right cannot maintain an action against the owner of the land over which the right is claimed. It is held as under:
In my view, on the basis of an inchoate right or a right which has not ripened into an easement by prescription, but is merely one of user, no relief can be granted to the user of them as against the owner of that land. In other words, a right, properietory or otherwise, has to be shown for obtaining relief (Krishna Pillai v.Kunju Pillai 1990 (1) KLT 136, referred to).
S. 27, Lim. Act Gives Substantive Right so as to Seek Declaration and Recovery
Generally speaking, the Limitation Act only bars the remedy but doesn’t destroy the right to which the remedy relates to. The exception to the general rule is contained in Section 27 of the Limitation Act, 1963.
Sec. 27 of the Limitation Act speaks that at the determination of the period “hereby limited to any person for instituting a suit for possession of any property”, his right to such property shall be extinguished.
The Limitation Act is an Act of repose. “Adverse possession statutes, like other statutes of limitation, rest on a public policy that do not promote litigation and aim at the repose of conditions that the parties have suffered to remain unquestioned long enough to indicate their acquiescence.” (See: PT Munichikkanna Reddy and others v. Revamma, (2007) 6 SCC 59: AIR 2007 SC 1753)
Adverse possession confers title under Sec. 27 (by necessary implication, because extinguished title of real owner comes to vest in wrongdoer – because, rights thereon had already been lost to the true owner, and passed over to the ‘possessory/adverse’ owner).
Therefore it is clear that Sec. 27 is a provision in the Limitation Act that gives a substantial right to a party.
Person Acquiring Title by Adverse Possession can use it as a Sword
In view of Sec. 27 one can seek declaration of title by adverse possession and consequential injunction or recovery. That is why it is held in Ravinder Kaur Grewal v. Manjit Kaur, AIR 2019 SC 3827: (2019) 8 SCC 729, that the person acquiring title by adverse possession can use it as a sword.
Waiver being a Statutory Right, recognised in Sec. 63, Indian Contract Act (independent of Estoppel) –
it is an ‘Enforceable Right’, and may constitute a Cause of Action; and
if the promisee withdraws the ‘Waiver’ as to the performance of contract , the burden to show that he had validly withdrawn the ‘Waver’, and that no prejudice or injustice is caused to the other party (promisor) is upon the promisee .
Neither consideration nor an agreement would be necessary to attract Waiver.
In the matters of Waiver and its ‘withdrawal’, following aspects will be serious concern for the court
‘Public Policy’ (Sec. 23 Contract Act)
terms in the basic contract,
capacity of the person who Waived,
bargaining power,
injuries,
language used,
delay in withdrawal,
nature of declaration of Waiver,
malafides (if any) behind the withdrawal of Waiver.
What is Waiver?
Waiver is a unilateral act of abandonment of a right or claim against another.
It may arise as election between two alternatives, or as an unconditional promise.
The waiver must be clear and unambiguous.
If it is communicated to the other person and if that person, on the basis of the waiver, proceeds to perform his part, if any remains, the party who waived the right cannot assert the original contract.
Waiver being a statutory right, recognised in Sec. 63 Contract Act, independent of estoppel, it can give rise to a cause of action.
Sec. 63 Contract Act
The principles of waiver is contained in Sec. 63 of the Indian Contract Act.
It reads as under:
63. Promise may dispense with or remit performance of promise. Every promisee may dispense with or remit, wholly or in part, the performance of the promisee made to him, or may extend the time for such performance, or may accept instead of it any satisfaction which he thinks fit.
In Waman Shriniwas Kini v. Ratilal Bhagwandas & Co.(1959 Supp. 2 SCR 217) it is observed that Waiver is the abandonment of a right which normally everybody is at liberty to waive.
“A waiver is nothing unless it amounts to a release. It signifies nothing more than an intention not to insist upon the right.” (Quoted in Jagad Bandhu Chatterjee Vs. Nilima Rani 1969)
Doctrine of Waiver and Promissory Estoppel
The doctrine of Waiver and the Doctrine of Promissory Estoppel are legally recognised principles of law that arise from similar postulations. In both these cases, if one party (promisee) represents to, or made believe, the other party (promisor) that he had waived the burden of the first party (promisee), or he will not insist performance of a part of their contract, he (promisee) is barred from insisting the waived part of the contract.
Burden on who waived to show that he had validly withdrawn
Waiver being a statutory right ( Sec. 63, Contract Act) the burden is upon the party who waived the performance of contract (promisee) to show that he had the right to withdraw the ‘Waiver’ and that he had validly withdrawn the ‘Waver’. An unconditional and ‘communicated’ Waiver may give rise to a cause of action to the promisoer, and if delay, prejudice or injustice (to the other party – promisor) is a question, the burden as to the same is upon the person who Waived (i.e. promisee).
In the matters of Waiver and its ‘withdrawal’, following aspects will be serious concern for the court –
‘Public Policy’ (Sec. 23 Contract Act)
terms in the basic contract,
capacity of the person who Waived,
bargaining power,
injuries,
language used,
delay in withdrawal,
nature of declaration of Waiver,
malafides (if any) behind the withdrawal of Waiver.
Principle that “Admission cannot be Permitted to be Withdrawn” Applies
In Izhaar Ali v. Prescribed Authority, (2014) 107 And LR 88, 2014-144 AIC 910, it is observed that the principle that “admission cannot be permitted to be withdrawn by amendment” will apply in withdrawal of ‘Waiver’ also. It is held as under:
“5…. The petitioners filed his written statement and has not raised the plea regarding six months’ previous notice. Thus the petitioners waived their right as contemplated under the proviso to Sec. 21(1)(a). Proposed amendment amounts to withdrawal of the waiver of the petitioner which cannot be permitted to be withdrawn by way of amendment.
Supreme Court in Modi Spinning and Weaving Mills Co. Ltd. v. Ladha Ram and Company [(1976) 4 SCC 320.] , Heera lal v. Kalyan Mal [1998 (32) ALR 442 (SC); 1998 RD 140.] , Gautam Swaroop v. Leela Jetly [(2008) 7 SCC 85.] , Sumesh Singh v. Phoolan Devi [2009 (75) ALR 789 (SC).] and Vishwanath Agrawal v. Savitri Bera [(2009) 15 SCC 693.] held that an admission cannot be permitted to be withdrawn by amendment. Same principle will apply in this case also.”
Promissory Estoppel isneither in the realm of Contract nor in the realm of Estoppel
The Doctrine of Promissory Estoppel is explained in M/S Motilal Padampat Sugar Mills v.State Of Uttar Pradesh, AIR 1979 SC 621, as under:
“This doctrine has been variously called ‘promissory estoppel’, ‘equitable estoppel’, ‘quasi estoppel’ and ‘new estoppel’. It is a principle evolved by equity to avoid injustice and though commonly named ‘promissory estoppel’, it is, as we shall presently point out, neither in the realm of contract nor in the realm of estoppel.”
Waiver Clause
A contract may expressly state as to the right or option of ‘Waiver’. The Waiver conditions can be laid down in the contract; such as – it must be in writing, failure of conditions may make the ‘waiver’ ineffective, etc.
Waiver is ‘Enforceable Right’, and may constitute a Cause of Action
In Jagad Bandhu Chatterjee Vs. Nilima Rani, (1969) 3 SCC 445, it is held as under:
“Waiver is contractual, and may constitute a cause of action; it is an agreement to release or not to assert a right”
“In India the general principle with regard to waiver of contractual obligations is to be found in s. 63 of the Indian Contract Act. Under that section it is open to a promise to dispense with or remit, wholly or in part, the performance of the promise made to him or he can accept instead of it any satisfaction which he thinks fit. Under the Indian law neither consideration nor an agreement would be necessary to constitute waiver.”
In Krishna Bahadur v. Purna Theatre, (2004) 8 SCC 229, also it was held – though Estoppel will not give rise to a cause of action, and it is a rule of evidence, waiver is contractual and may constitute a cause of action. It is held as under:
“The principle of waiver although is akin to the principle of estoppel; the difference between the two, however, is that whereas estoppel is not a cause of action; it is a rule of evidence; waiver is contractual and may constitute a cause of action; it is an agreement between the parties and a party fully knowing of its rights has agreed not to assert a right for a consideration.
A right can be waived by the party for whose benefit certain requirements or conditions had been provided for by a statute subject to the condition that no public interest is involved therein. Whenever waiver is pleaded it is for the party pleading the same to show that an agreement waiving the right in consideration of some compromise came into being. Statutory right, however, may also be waived by his conduct.”
In PTC India Financial Services Limited Vs. Venkateswarlu Kari, 2022 SCC OnLine SC 608, also it is held – Waiver is contractual and Waiver may constitute a cause of action. It is held as under:
“7.10. Section 63 of the Contract Act governs the domain of waiver. It is a general principle of law that everyone has a right to waive the advantage of a law or rule made solely for the benefit and protection of the individual in his private capacity. (Cuilibet licet renuntiare juri pro se introducto i.e., Any one may waive or renounce the benefit of a principle or rule of law that exists only for his protection.) However, such a waiver cannot infringe any public right or public policy.
In. Krishna Bahadur v. Purna Theatre and Others, (2004) 8 SCC 229, this Court observed that –
“10. A right can be waived by the party for whose benefit certain requirements or conditions had been provided for by a statute subject to the condition that no public interest is involved therein. Whenever waiver is pleaded it is for the party pleading the same to show that an agreement waiving the right in consideration of some compromise came into being. Statutory right, however, may also be waived by his conduct.”
In Halsbury’s Laws of England, (Vol. 8, Third Edn., para 248 at p. 143.) it is stated thus:
“As a general rule, any person can enter into a binding contract to waive the benefits conferred upon him by an Act of Parliament, or, as it is said, can contract himself out of the Act, unless it can be shown that such an agreement is in the circumstances of the particular case contrary to public policy. Statutory conditions may, however, be imposed in such terms that they cannot be waived by agreement, and, in certain circumstances, the legislature has expressly provided that any such agreement shall be void.”
However, there is a difference between statutory provisions meant for the benefit of a person and statutory provisions which mandate contracts to be in a specific manner. One cannot waive the statutory obligations where the statute restraints explicitly or mandates parties to contract in a particular manner. Formalities and requirements for making contracts have generally been held to be mandatory. (G.P. Singh, Principles of Statutory Interpretation, 14th Edition, Lexis Nexis (2016) at page 462) Where a statute prescribes that a contract shall be in a specific form or shall or shall not contain certain terms, the statutory form must be followed. (Craies on Statute Law by S.G.G. Edgar, 7th Edition, Sweet & Maxwell Limited (1971) at page 255.) In reference to pledge, waiver by contract and statutorily mandated terms, the High Court of Calcutta in The Co-Operative Hindusthan Bank, Ltd. v. Surendranath De, (1931 SCC OnLine Cal 224.) observed:
“Section 176 of the Contract Act, unlike some other sections, e.g., sections 163, 171 and 174, does not contain a saving clause in respect of special contracts contrary to its express terms. The section gives the pawnee the right to sell only as an alternative to the right to have his remedy by suit. Besides, section 177 gives the pawner a right to redeem even after the stipulated time for payment and before the sale. In our opinion, in view of the wording of section 176 as compared with the wordings of the other sections of the Act, to which we have referred, and also, in view of he right which section 177 gives to the pawner, and, in order that the provision of that section may not be made nugatory, the proper interpretation to put on section 176 is to hold that, notwithstanding any contract to the contrary, notice has to be given.”
Even when the general law provides liberty to contract, the parties cannot contract contrary to express provisions of law. In Park Street Properties Private Limited v. Dipak Kumar Singh and Another, (2016) 9 SCC 268 in reference to Section 106 of the Transfer of Property Act, 1882, this Court held:
“While the agreement dated 7-8-2006 can be admitted in evidence and even relied upon by the parties to prove the factum of the tenancy, the terms of the same cannot be used to derogate from the statutory provision of Section 106 of the Act, which creates a fiction of tenancy in the absence of a registered instrument creating the same. If the argument advanced on behalf of the respondents is taken to its logical conclusion, this lease can never be terminated, save in cases of breach by the tenant. Accepting this argument would mean that in a situation where the tenant does not default on rent payment for three consecutive months, or does not commit a breach of the terms of the lease, it is not open to the lessor to terminate the lease even after giving a notice. This interpretation of Clause 6 of the agreement cannot be permitted as the same is wholly contrary to the express provisions of the law. The phrase “contract to the contrary” in Section 106 of the Act cannot be read to mean that the parties are free to contract out of the express provisions of the law, thereby defeating its very intent.”
Relevant Provisions Fall under “Some Other Provisions of this Act” in S. 43
Following provisions are pointed out frequently, in this regard –
Sec. 5(Facts in issue);
Sec. 8(which refers to motive, preparation and previous or subsequent conduct);
Sec. 11(which says when facts not otherwise relevant become relevant);
Sec. 13(when existence of right or custom is in question then any transaction or particular instances where the right or custom is claimed, recognized etc. become relevant),
Sec. 54Explanation (2), when a previous conviction is relevant as evidence of bad character), etc.
Sec. 58(Admitted Facts)
Import of “Relevant under other provisions of this Act”
The relevancy of a previous judgment (in a subsequent case) is governed by Sections 40 to 43 of the Indian Evidence Act, 1872.
Section 43, inter alia, permits the production of earlier judgments that are deemed “relevant under other provisions of this Act.”
There are divergent views on the applicability of Sections 5, 8, 11 and 13, Evidence Act, under this clause in Section 43.
First view—Sections 5, 8,11 and 13 being delineate the general provisions, and the relevance of prior judgments is primarily governed by Sections 40 to 43, the previous judgments will not be liberally permitted (invoking the clause “relevant under some other provisions of this Act”).
Second view—The phrase “relevant under some other provisions of this Act” as stated in Section 43, must be interpreted to encompass its complete and comprehensive significance.
Differences of opinion also exist as to the admissibility of a judgment not inter parties, under Section 13.
The legitimate view, it appears, is the following –
(i) Previous judgments can be admitted in evidence (invoking the clause “relevant under some other provisions of this Act”) if they fall under Sections 5, 8,11 and 13. Nevertheless, the admissibility of the previous judgments being essentially governed by Sections 40 to 43, they cannot be allowed to be freely imported, invoking the general provisions.
(ii) The probative value of the previous judgment has to be determined by the court, even if such a previous judgment is marked in evidence as ‘relevant’.
(iii) In any case, the use of the previous judgment is definitely relevant in certain contexts. For instance:
A motive for an offence (Section 8) – i.e., to see whether the judgment provoked anger in the accused.
The sentence or damages to be imposed
Disputes of Title, be adjudicated in Civil Procedure
In Smt. Janak Vohra v. DDA, 103-2003-DLT 789, it was held that in case of disputed questions of title, and mutation being asked for, it is appropriate that the disputes of title be adjudicated in appropriate civil procedure and no direction be issued to mutate the property in the name of a party. (Referred to in Syed Askari Hadi Ali Augustine Imam v. State (Delhi Admn.), 2009- 5 SCC 528)
Land Acquisition judgments, not inter partes, Relevant under S. 11 and 13
In The Land Acquisition Officer, City Improvement Trust Board v. H. Narayana, 1976 – 4 SCC 9; AIR 1976 SC 2403 our Apex Court approved the view that in land acquisition cases judgments, not inter partes, are relevant, under Sec. 11 and 13 Evidence Act, if such judgments relate to similarly situated properties and contain determinations of value on dates fairly proximate to the relevant date in a case.
Order directed rectification of Trust Deed Relevant under Sec. 11
In Commissioner of Income Tax, Kanpur v. Kamla Town Trust, 1996-7 SCC 349, it was held that the Order that directed rectification of Trust Deed would be relevant under Sec. 11 Evidence Act.
Judgment not inter partes admissible to find what lands involved
In State of Bihar v. Radha Krishna Singh, 1983-3 SCC 118, our Apex Court approved the view of the Calcutta High Court as under:
“129. In Gadadhar Chowdhury v. Sarat Chandra Chakravarty [AIR 1941 Cal 193 : (1940) 44 Cal WN 935 : 195 IC 412 : 72 Cal LJ 320] it was held that findings in judgments not inter partes are not admissible in evidence. In this connection a Division Bench of the Calcutta High Court observed as follows : ‘Though the recitals and findings in a judgment not inter partes are not admissible in evidence, such a judgment and decree are, in our opinion, admissible to prove the fact that a decree was made in a suit between certain parties and for finding out for what lands the suit had been decreed.’
130. This, in our opinion, is the correct legal position regarding the admissibility of judgments not inter partes.” (Quoted in V. Kalyanaswamy v. L. Bakthavatsalam, 2020-9 SCALE. 367)
Criminal proceeding will have precedence over the Civil proceeding
In Syed Askari Hadi Ali Augustine Imam v. State (Delhi Admn.), 2009- 5 SCC 528, it is held as under:
“10. It is, however, now well settled that ordinarily a criminal proceeding will have primacy over the civil proceeding. Precedence to a criminal proceeding is given having regard to the fact that disposal of a civil proceeding ordinarily takes a long time and in the interest of justice the former should be disposed of as expeditiously as possible.” (relied on: M.S. Sheriff v. State of Madras, AIR 1954 SC 397.)
3. There is neither any statutory nor any legal principle that findings recorded by the court, either in civil or criminal proceedings, shall be binding between the same parties (even) while dealing with the same subject-matter.
Iqbal Singh Marwah v. Meenakshi Marwah, (2005) 4 SCC 370,
Avitel Post Studioz Limited v. HSBC PI Holdings (Mauritius) Limited, 2021-4 SCC 713 (R.F. Nariman, J.)
4. Sections 41 to 43 of the Evidence Act deal with relevancy alone (Not conclusive except as provided in Section 41).
K.G. Premshanker v. Inspector of Police, (2002) 8 SCC 87
Avitel Post Studioz Limited v. HSBC PI Holdings (Mauritius) Limited, 2021-4 SCC 713
5. Criminal liability must be proved beyond reasonable doubt, while civil liability is based on preponderance of probabilities; different principles and different standards of proof.
Iqbal Singh Marwah v. Meenakshi Marwah, (2005) 4 SCC 370
P. Swaroopa Rani v. M. Hari Narayana, (2008) 5 SCC 765
Radheshyam Kejriwal v. State of West Bengal, (2011) 3 SCC 581.
Sec. 11 and 13, Evidence Act – Not Attracted to Sec. 43
In State of Bihar v. Radha Krishna Singh, AIR 1983 SC 684 (Syed Murtaza Fazalali, A. Varadarajan, V. Balakrishna Eradi, JJ.) it was held as under:
“We are, however, of the opinion that where there is a specific provision covering the admissibility of a document, it is not open to the court to call into aid other general provisions in order to make a particular document admissible. In other words, if a judgment is not admissible as not falling within the ambit of sections 40 to 42, it must fulfil the conditions of s. 43. Otherwise, it cannot be relevant under s. 13 of the Evidence Act. The words “other provisions of this Act” cannot cover s. 13 because this section does not deal with judgments at all.“
The same principle also applies to Sec. 11.
It is Not Correct – Civil Decisions Bind Criminal Courts (and Converse)
Our Apex Court had (earlier) observed in V. M. Shah v. State of Maharashtra, (1995) 5 SCC 767, that the finding recorded by the criminal court stands superseded by the finding recorded by the civil court. A Two Judge Bench, in KG Premshanker v. Inspector of Police, doubted the correctness of V. M. Shah case and required reconsideration by a larger Bench. Hence, in KG Premshanker v. Inspector of Police, (2002) 8 SCC 87, the Three-Judge Bench (M.B. Shah, Bisheshwar Prasad Singh, H.K. Sema, JJ.) overruled V. M. Shah v. State of Maharashtra, holding that the finding recorded by a criminal court stands superseded by the finding recorded by the civil court isnot correct.
KG Premshanker v. Inspector of Police, (2002) 8 SCC 87, also considered Karam Chand Ganga Prasad v. Union of India, 1970-3 SCC 694, wherein it was observed that the decisions of the civil court will be binding on the criminal courts, but the converse is not true. KG Premshanker v. Inspector of Police, (2002) 8 SCC 87, also overruled Karam Chand Ganga Prasad.
Referring KG Premshanker v. Inspector of Police (2002) 8 SCC 87, it is held in Syed Askari Hadi Ali Augustine Imam v. State (Delhi Admn.), 2009- 5 SCC 528 (Mukundakam Sharma, SB Sinha, JJ.) as under:
“It is, however, significant to notice a decision of this Court in M/s Karam Chand Ganga Prasad & Anr. etc. v. Union of India & Ors. [(1970) 3 SCC 694], wherein it was categorically held that the decisions of the civil court will be binding on the criminal courts, but the converse is not true, was overruled, stating:
“33. Hence, the observation made by this Court in V.M. Shah case that the finding recorded by the criminal court stands superseded by the finding recorded by the civil court is not correct enunciation of law. Further, the general observations made in Karam Chand case are in context of the facts of the case stated above. The Court was not required to consider the earlier decision of the Constitution Bench in M.S. Sheriff case (M.S. Sheriff v. State of Madras, AIR 1954 SC 397) as well as Sections 40 to 43 of the Evidence Act.”
11. Axiomatically, if judgment of a civil court is not binding on a criminal court, a judgment of a criminal court will certainly not be binding on a civil court. We have noticed hereinbefore that Section 43 of the Evidence Act categorically states that judgments, orders or decrees, other than those mentioned in sections 40, 41 and 42 are irrelevant, unless the existence of such judgment, order or decree, is a fact in issue, or is relevant under some other provisions of the Act. No other provision of the Evidence Act or for that matter any other statute has been brought to our notice.”
Sans Sec. 41 – 43, No Legal Principle – Findings of Civil Court Bind Cril. Court
Except as provided in Sections 41 to 43 of the Evidence Act, there is no general legal principle that findings of a civil court are binding on a criminal court, and vice versa.
In Avitel Post Studioz Limited v. HSBC PI Holdings (Mauritius) Limited (Rohinton Fali Nariman, Navin Sinha, Indira Banerjee, JJ.) 2021-4 SCC 713, the principles in K.G. Premshanker v. Inspector of Police, (2002) 8 SCC 87: AIR 2002 SC 3372, are followed and held as under:
“18. Thus, in view of the above, the law on the issue stands crystallised to the effect that the findings of fact recorded by the civil court do not have any bearing so far as the criminal case is concerned and vice versa. Standard of proof is different in civil and criminal cases. In civil cases it is preponderance of probabilities while in criminal cases it is proof beyond reasonable doubt. There is neither any statutory nor any legal principle that findings recorded by the court either in civil or criminal proceedings shall be binding between the same parties while dealing with the same subject-matter and both the cases have to be decided on the basis of the evidence adduced therein. However, there may be cases where the provisions of Sections 41 to 43 of the Evidence Act, 1872, dealing with the relevance of previous judgments in subsequent cases may be taken into consideration.”
It is further pointed out in Avitel Post Studioz Limited v. HSBC PI Holdings (Mauritius) Limited, 2021-4 SCC 713 –
“Moreover, the judgment, order or decree passed in previous civil proceedings, if relevant, as provided under Sections 40 and 42 or other provisions of the Evidence Act then in each case the court has to decide to what extent it is binding or conclusive with regard to the matters decided therein. In each and every case the first question which would require consideration is, whether the judgment, order or decree is relevant; if relevant, its effect. This would depend upon the facts of each case.”
Judgment of a Court is relevant if only conditions u/s 40 to 43 are satisfied
The position of law is laid down in K.G. Premshanker v. Inspector of Police, (2002) 8 SCC 87: AIR 2002 SC 3372, as under:
“30. What emerges from the aforesaid discussion is –
(1) the previous judgment which is final can be relied upon as provided under Sections 40 to 43 of the Evidence Act;
(2) in civil suits between the same parties, principle of res-judicata may apply;
(3) in a criminal case, Section 300 Cr.P.C. makes provision that once a person is convicted or acquitted, he may not be tried again for the same offence if the conditions mentioned therein are satisfied;
(4) if the criminal case and the civil proceedings are for the same cause, judgment of the civil Court would be relevant if conditions of any of the Sections 40 to 43 are satisfied, but it cannot be said that the same would be conclusive except as provided in Section 41. Section 41 provides which judgment would be conclusive proof of what is stated therein.”
Court has to Decide – To what extent previous Judgment is Binding
K.G. Premshanker v. Inspector of Police continued as under:
“31. Further, the judgment, order or decree passed in a previous civil proceeding, if relevant, as provided under Sections 40 and 42 or other provisions of the Evidence Act then in each case, Court has to decide to what extent it is binding or conclusive with regard to the matter(s) decided therein.
Take for illustration, in a case of alleged trespass by ‘A’ on ‘B’s property, ‘B’ filed a suit fordeclaration of its title and to recover possession from ‘A’ and suit is decreed. Thereafter, in a criminal prosecution by ‘B’ against ‘A’ for trespass, judgment passed between the parties in civil proceedings would be relevant and Court may hold that it conclusively establishes the title as well as possession of ‘B’ over the property. In such case, ‘A’ may be convicted for trespass. The illustration to Section 42** which is quoted above makes the position clear.
Hence, in each and every case, first question which would require consideration is whether judgment, order or decree is relevant?, if relevant its effect. It may be relevant for a limited purpose, such as, motive or as a fact in issue. This would depend upon facts of each case.
32. In the present case, the decision rendered by the Constitution Bench in M.S. Sheriff case would be binding, wherein it has been specifically held that no hard-and-fast rule can be laid down and that possibility of conflicting decision in civil and criminal courts is not a relevant consideration. The law envisages “such an eventuality when it expressly refrains from making the decision of one court binding on the other, or even relevant, except for limited purpose such as sentence or damages”.
**Note: Sec. 42 Evidence Act pertains to public right. Illustration also makes it clear. It is obvious that the Apex Court referred to it only to show that the earlier decision may be relevant – to show “motive or as a fact in issue” (under Section 43).
That is, where the prosecution case is that ‘the civil court decree made the accused increase enmity towards the victim’, the previous civil court decision may be relevant under “some other provision” stated in Section 43 (as “motive or as a fact in issue“).
Sec. 42 Evidence Act reads as under:
“42. Relevancy and effect of judgments, orders or decrees, other than those mentioned in section 41. Judgments, orders or decrees other than those mentioned in section 41, are relevant if they relate to matters of a public nature relevant to the enquiry, but such judgments, orders or decrees are not conclusive proof of that which they state.
Illustration:
A sues B for trespass on his land. B alleges the existence of a public right of way over the land, which A denies.
The existence of a decree in favour of the defendant, in a suit by A against C for a trespass on the same land in which C alleged the existence of the same right of way, is relevant, but it is not conclusive proof that the right of way exists.”
Case to be determined on Evidence, not on Previous Judgment
In Seth Ramdayal Jat v. Laxmi Prasad, AIR 2009 SC 2463, 2009 (11) SCC 545, it is pointed out that the observation in Shanti Kumar Panda v. Shakuntala Devi [(2004) 1 SCC 438] that a judgment of a civil court shall be binding on the criminal court (but the converse is not true) may not be entirely correct being in conflict with a Three-Judge Bench decision of the Apex Court in K.G. Premshanker vs. Inspector of Police and anr. [(2002) 8 SCC 87]. It is observed in Seth Ramdayal Jat v. Laxmi Prasad as under:
“Mr. Sharma also relies upon a decision of this Court in Shanti Kumar Panda v. Shakuntala Devi [(2004) 1 SCC 438] to contend that a judgment of a civil court shall be binding on the criminal court but the converse is not true. Therein it was held:
“(3) A decision by a criminal court does not bind the civil court while a decision by the civil court binds the criminal court. An order passed by the Executive Magistrate in proceedings under Sections 145/146 of the Code is an order by a criminal court and that too based on a summary enquiry. The order is entitled to respect and wait before the competent court at the interlocutory stage. At the stage of final adjudication of rights, which would be on the evidence adduced before the court, the order of the Magistrate is only one out of several pieces of evidence.”
With respect, the ratio laid down therein may not be entirely correct being in conflict with a Three-Judge Bench decision of this Court in K.G. Premshanker vs. Inspector of Police and anr. [(2002) 8 SCC 87].”
A judgment in rem (Section 43) is conclusive in criminal and civil proceedings
In Syed Askari Hadi Ali Augustine Imam v. State (Delhi Admn.), 2009- 5 SCC 528, it is held as under:
“Rendition of a final judgment which would be binding on the whole world being conclusive in nature shall take a long time. As and when a judgment is rendered in one proceeding subject to the admissibility thereof keeping in view Section 43 of the Evidence Act may be produced in another proceeding. It is, however, beyond any cavil that a judgment rendered by a probate court is a judgment in rem. It is binding on all courts and authorities. Being a judgment in rem it will have effect over other judgments. A judgment in rem indisputably is conclusive in a criminal as well as in a civil proceeding.” (Surinder Kumar v. Gian Chand, AIR 1957 SC 875, is relied on)
Civil or Criminal proceedings be stayed – Depends upon each case
In M.S. Sheriff v. State of Madras, AIR 1954 SC 397, the Constitution Bench considered whether a civil suit or a criminal case should be stayed in the event both are pending; and it was opined that the criminal matter should be given precedence.
In P. Swaroopa Rani v. M. Hari Narayana @ Hari Babu, AIR 2008 SC 1884, it was held as under:
“13. It is, however, well-settled that in a given case, civil proceedings and criminal proceedings can proceed simultaneously. Whether civil proceedings or criminal proceedings shall be stayed depends upon the fact and circumstances of each case.” (Quoted in: Syed Askari Hadi Ali Augustine Imam v. State (Delhi Admn.), 2009- 5 SCC 528)
No Statutory Provision nor any Legal Principle – Findings in one treated as Final
Standards of proof required in the two proceedings are entirely different
In Iqbal Singh Marwah v. Meenakshi Marwah (R.C.Lahoti CJI, B.N. Agrawal, Hotoi Khetoho Sema, G.P. Mathur & P.K. Balasubramanyan, JJ.), 2005-4 SCC 370, (relying inter alia on M.S. Sheriff v. State of Madras, AIR 1954 SC 397) it was held as under:
“32. Coming to the last contention that an effort should be made to avoid conflict of findings between the civil and criminal courts, it is necessary to point out that the standards of proof required in the two proceedings are entirely different. Civil cases are decided on the basis of preponderance of evidence while in a criminal case the entire burden lies on the prosecution and proof beyond reasonable doubt has to be given. There is neither any statutory provision nor any legal principle that the findings recorded in one proceeding may be treated as final or binding in the other, as both the cases have to be decided on the basis of the evidence adduced therein.”
End Notes:
Sec. 11 Civil Procedure Code, 1908, reads as under:
Res Judicata-No Court shall try any suit or issue in which the matter directly and substantially in issue has been directly and substantially in issue in a former suit between the same parties, or between parties under whom they or any of them claim, litigating under the same title, in a Court competent to try such subsequent suit or the suit in which such issue has been subsequently raised, and has been heard and finally decided by such Court.
Explanation I– The expression “former suit” shall denote a suit which has been decided prior to the suit in question whether or not it was instituted prior thereto.
Explanation II.- For the purposes of this section, the competence of a Court shall be determined irrespective of any provisions as to a right of appeal from the decision of such Court.
Explanation III.- The matter above referred to must in the former suit have been alleged by one party and either denied or admitted, expressly or impliedly, by the other.
Explanation IV.- Any matter which might and ought to have been made ground of defence or attack in such former suit shall be deemed to have been a matter directly and substantially in issue in such suit.
Explanation V.- Any relief claimed in the plaint, which is not expressly granted by the decree, shall, for the purposes of this section, be deemed to have been refused.
Explanation VI– Where persons litigate bona fide in respect of public right or of a private right claimed in common for themselves and others, all persons interested in such right shall, for the purposes of this section, be deemed to claim under the persons so litigating.
Explanation VII.- The provisions of this section shall apply to a proceeding for the execution of a decree and reference in this section to any suit, issue or former suit shall be construed as references, respectively, to proceedings for the execution of the decree, question arising in such proceeding and a former proceeding for the execution of that decree.
Explanation VIII.-An issue heard and finally decided by a Court of limited jurisdiction, competent to decide such issue, shall operate as res judicata in as subsequent suit, notwithstanding that such Court of limited jurisdiction was not competent to try such subsequent suit or the suit in which such issue has been subsequently raised.
All Lands Belonged to one Janmi or Other; Sircar was the largest Janmi
Effect of Royal Proclamation, 1899 – Sircar became Janmi of Poonjar Lands
Further Development – Pandaravaka and Janmam Lands
Pandaravaka Lands Nature- State landlord; right in Ryot derived from Sirkar
Pattom Proclamation of 1040 – converted Tenants into Permanent Leases
Edavagai Rights Acquisition Act, 1955
Kannan Devan Hills (Resumption of Lands) Act, 1971 & Land History
Land Belonged to Chief of Poonjar was Transferred to Travancore
Poonjar Raja was a Janmi
Royal proclamation dated 24.09.1899 – the Sircar became Janmi
All Lands Belonged to one Janmi or Other
Kannan Devan Hills (Resumption of Lands) Act, 1971
‘Pandaravaka lands’ and ‘Janmam lands’.
Kanan Devan Lands were ‘Pandaravaka lands’
Grant and the Right of Ownership
Grant – Land Continues to be Government lands
‘Jenmom Lands’ & Freehold Interest in Travancore
The lands granted by Erstwhile (Travancore or Cochin) Sircar continued to be lands belonging to the Sircar, and the grantees did not acquire absolute proprietary rights. It is made clear in the following decisions.
Kannan Devan Hills Produce v. The State Of Kerala, AIR 1972 SC 2301
Kenan Devan Hills Concession (ongrantdeeds) fall within the expression “Janmam right” vested with Sircar. This land is dealt with under this heading, i.e. Pandaravaka Lands, i.e. lands belonging to the Sircar.
State of Kerala v. Kanan Devan Hills Produce Co. Ltd., (1991) 2 SCC 272
Company did not acquire absolute proprietary rights over the Concession Area (on grant deeds)
Padmanabharu Govindaru v. The State of Kerala, AIR 1963 Ker 86
A coffee planter who holds lands under a grant is not a Jenmi.
Majeed v. State of Kerala,(2006) 1 KerLT 19
Petitionercontended – ‘grant’ was free hold property. The court did not accept.
Thomas Philip v. Forest Range Officer, 2021-2 KerLT 578
Arguement that deed of ‘grant’ ‘for coffee or tea cultivation’ was not a grant, but a title deedwas not accepted
All Lands Belonged to one Janmi or Other; Sircar was the largest Janmi
The Supreme Court, in Kannan Devan Hills Produce v. The State Of Kerala, AIR 1972 SC 2301 (Sikri (Cj), Shelat, A.N. Ray, I.D. Dua, , H.R. Khanna, JJ.) held that Kenan Devan Hills Concession (ongrantdeeds) fall within the expression “Janmam right” vested with Sircar. This land is dealt with under this heading, i.e. Pandaravaka Lands, i.e. lands belonging to the Sircar.
Points came for consideration were the following:
15. If any person wants land in Travancore, he must obtain it from, and hold it of, some one of the body of Janmis, i.e. from the Sircar, which is the Chief Janmi, or from some other Janmi.” (Sir T. Madava Row’s Memo.) In Mr. Kunhiraman Nair’s Memo on Land -Tenures it is stated:
“At present the Sircar is the largest Janmi in the State. The janmam lands of all the petty Rajas subdued in the last few centuries and of several Madampies, have lapsed to the State, and other causes such as escheat & c, have tended, to increase the extent of the Janmam possession of the Sircar. About three- fourths of the whole land in the State belong on Janmam to the Sircar, the remaining one-fourth being distributed among the classes mentioned in para 32 It is interesting to note that in certain parts of Madras Janmam rights existed ‘and the ‘Government lands were called government janman lands.
(See Government Order No. 1902 Revenue dated November 1, 1926) Para 3 of that order deals with the janmam estates and reads as under :
“3. JANMABHOGAM.-Paragraph 11 of ‘the Board’s Proceedings-“Lands have neither to been des- cribed as-
Government Janmam, i.e. lands which are held directly from the Government and on which taram assessment and janmabhogam are paid to the Government and
private janmam, i.e. lands which are held directly from the Government and on which taram assessment but not janmabhogam is paid to the Government.”
In Kannan Devan Hills Produce Company Ltd. v. State of Kerala, 1972-2 SCC 218, it is also found as under:
“12. Janmam lands are precisely what are in Europe called allodial properties as contra-distinguished from feudal.
13. It must be clear from what has been stated that all the lands in the Travancore belonged to a body of janmis. There are no lands that do not belong to some janmi or other.
14. Be it remembered that the Sircar itself is one of these janmis, it having come to possess janmam lands by gift, purchase, escheat, confiscation and other ways. It is only a great janmi, great in the sense that its janmam property is extensive.”
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This Article is Included in the Printed Book: Saji Koduvath on Kerala Land History & KLR Act Pages – 294: Rs. 850 Gpay/Whatapp/Phone No. 91-9387560056
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Effect of Royal Proclamation, 1899 – Sircar became the Janmi
In Kannan Devan Hills Produce Company Ltd. v. State of Kerala, 1972-2 SCC 218, our Apex Court concluded that the effect of the Royal Proclamation of 1899 (regarding the land leased by Poonjar Chief to Munro) must be that the Sircar became the Janmi. It was observed as under:
“It seems to us that on the material placed before us it is difficult to resist the conclusion that the lands in dispute fall within the expression “Janmam right”. If, as stated in Travancore Land Revenue Manual Volume IV, there are no lands that do not belong to a Janmi, and the Sircar becomes a janmi by gift, escheat, confiscation or otherwise, the effect of the Royal Proclamation of 1899 must be that the Sircar became the Janmi.”
Note: Poonjar Chief or Raja had subjugated himself to Travancore Sircar or Maharaja.
Pandaravaka and Janmam Lands Further Development
After making a definite finding that the land with Poonjar Raja was a janmam land and it became vested with Travancore Sircar, an alternative argument was considered by the Apex Court in Kannan Devan Hills Produce Company Ltd. v. State of Kerala, 1972-2 SCC 218, as under:
“Assuming that the lands do not fall with ‘Janmam Right’, we may now deal with the second point:
In the Travancore Land Revenue Manual, Vol. III, Revised Edition, 1936, Registered Lands are described as follows
“Registered lands are lands registered in the revenue accounts as held by or granted to individuals, families, corporations or institutions, and comprise all the different kinds of tenures bearing either the full assessment or wholly or partially free of assessment. These lands comprise not only the areas brought under cadastral survey but include also coffee, tea, rubber and other estates, cardamom gardens and other special grants outside the limits of cadastral survey.”
The Registered Lands include inter alia, (a) Pandaravaka lands and (b) Janmam lands. Regarding Pandaravaka lands it is stated :
“Pandaravaka or Sircar lands are, lands of which the State is the landlord or the Jenmi and whatever rights which vest in the ryots are derived from the Sircar.”
In the Travancore Land Revenue Manual, Vol. III, Registered Lands are described as under.
“Registered lands are lands registered in the revenue accounts as held by or granted to individuals, families, corporations or institutions, and comprise all the different kinds of tenures bearing either the full assessment or wholly or partially free of assessment. …” (Quoted in: Kannan Devan Hills Produce v. The State of Kerala, AIR 1972 SC 2301)
Section 4(1) of the Kerala Grants and Leases (Modification of Rights) Act, 1980, reads as under:
“4. Grantees and lessees to pay current seigniorage rates – Notwithstanding anything contained in any law for the time being in force, or in any grant, lease deed, contract or agreement, or in any judgment, decree or order of any court, with effect on and from the commencement of this Act, every grantee and every lessee shall be bound to pay to the Government the seigniorage rates in force for the time being for the timber cut and removed from any land held by him under the grant or lease.”
A Janmam Right is FREEHOLD interest described as “Estate” in Constitution
“In common law jurisdictions such as England and Wales, Australia, Canada, and Ireland, a freehold is the common mode of ownership of real property, or land, and all immovable structures attached to such land. It is in contrast to a leasehold, in which the property reverts to the owner of the land after the lease period expires or otherwise lawfully terminates” (Wikipedia). It doesn’t mean that such lands are free from payment of tax or revenue to the Government.
Travancore State Manual Vol. III published by the Travancore Government in 1940, says as to the class of jenmom land which were entirely freehold and exempted from payment of any kind of tax to Government under any circumstances. These were the special properties given by the Ruler to certain individuals considering their valid services or to certain institutions including temples.
‘Jenmom’ was the proprietary interest of a landlord in lands (Kavalappara Kottarathil Kochuni v. States of Madras and Kerala, AIR 1960 SC 1080). Subba Rao, J., observed as under:
“Under the definition, any janmam right in Kerala is an “estate”. A janmam right is the freehold interest in a property situated in Kerala.
Moor in his “Malabar Law and Custom” describes it as a hereditary proprietorship. A janmam interest may, therefore, be described as “proprietary interest of a landlord in lands” and such a janmam right is described as “estate” in the Constitution. Substituting “janmam right” in place of “estate” in cl. 2 (b), the “rights” in Art. 31 A (1) (a) will include the rights of a proprietor and subordinate tenure-holders in respect of a janmam right.
It follows that the extinguishment or modification of a right refers to the rights of a proprietor or a subordinate tenure-holder in the janmam right. A proprietor called the janmi or his subordinate tenure-holder has certain defined rights in janmam right”. Land-tenures in Malabar are established by precedents or immemorial usage. Janmam right is a freehold interest in property and the landlord is called “janmi”. He can create many subordinate interests or tenures therein.” (Quoted in: Kannan Devan Hills Produce v. The State of Kerala, AIR 1972 SC 2301)
In the Jenmi and Kudiyan Regulation, V of 1071, Jenmom land is defined as-
“land (other than Pandaravaka, Sripandaravaka, Kandukrishi or Sircar Devaswom land, recognised as such in the Sircar accounts) which is either entirely exempt from Government tax or if assessed to public revenue, is subject to Rajabhogam only, and the occupancy right in; which is created for a money consideration (Kanom) and is also subject to the payment of Michavaram or customary dues and the payment of the renewal fees.”
The Travancore Jenmi and Kudiyan Act, V of 1071, defines ‘Jenmi’ as under:
” ‘Jenmi’ means a person in whom the proprietary right over Jenmom lands is vested and includes, in the case of Devaswoms owning Jenmom lands, the managing Trustee or Trustees of the Institution for the time being.”
In Padmanabharu Govindaru v. The State of Kerala, AIR 1963 Ker 86, it was observed with respect to the ‘Janmi’ as under:
“What the definition stresses is the proprietary right in the land. We may in this connection extract a passage from the Memorandum of Mr. Kunhiraman Nair, one of the Judges of the High Court of Travancore, about 70 years ago:
“The term ‘Jenmom’ was originally used by the Brahmins exclusively to denote their allodial proprietorship and is still used in that sense in courts and cutcherries in Travancore, though in other parts of Malayalam and in popular parlance in Travancore, the term is now universally employed to denote the full proprietary right in the land of any class of people”.
Padmanabharu Govindaru v. The State of Kerala, further observed as under:
“18. Coming to the second category of lands, viz., Jenmom lands, the Jenmies have full proprietary rights in the soil. The origin of the title of the jenmies is shrouded in obscurity but the development of this branch of land tenure was on the assumption that Parasurama who conquered the land of Kerala or, as mythology would put it, reclaimed it from the sea, gave it as gift to Malayala Brahmins or Nambudiries. The rest of the people cultivated the lands under the Jenmies. In course of time, the Jenmies endowed certain temples built by them with lands and thus the Devaswom lands came into existence. These were similar in nature and incidents to Jenmom lands. These lands were enjoyed free of tax, the State imposing a light assessment only when the Jenmies alienated the land to others.
In the Travancore Land Revenue Manual Volume 4 it is, stated
“9. A Jamni differs from such landlords in that he does not derive his title to lands from the Sircar & Co. His title to the Janmam lands is inherent. …….. (Quoted in Kannan Devan Hills Produce Company Ltd. v. State of Kerala, 1972-2 SCC 218)
Nature of Pandaravaka Lands – State is landlord; rights in Ryots only derived from Sirkar
The nature of Pandaravaka lands is explained in the Travancore Land Revenue Manual (Revised Edition), Volume Ill, Part I, page 6, as follows:
“Pandaravaka or Sirkar lands are lands of which the State is the landlord or the Jenmi and whatever rights which vest in the ryots are derived from the Sirkar. They form the major portion of the registered lands.” (Quoted in -Padmanabharu Govindaru v. The State of Kerala, AIR 1963 Ker 86)
Pattom proclamation of 1040 –converted Tenants into Permanent Leases
Before 1040 M. E. the holders of Pandaravaka lands were mere tenants-at-will as the tenements created by the Sirkar till then was resumable and were of the nature of temporary leases just like tenements created by private jenmis. The pattom proclamation of 1040 converted them into permanent leases and conferred on the holders thereof permanent rights of occupancy, heritable and alienable.” (Quoted in -Padmanabharu Govindaru v. The State of Kerala, AIR 1963 Ker 86)
Edavagas:
The lands in the following areas were recognized in Sirkar Accounts as Edavagas:-
1. Sreepadam.
It comprised in 7 pakuthies in Chirayinkil Taluk.
These villages were originally hereditary domain of Ranis Attangal. Subsequently the sovereignty was transferred to Travancore Maha Raja.
Rent was collected from this land and accounted as public revenue.
2. Kilimanur.
It comprised in 2 pakuthies in Chirayinkil Taluk.
This land was granted to Kilimanur Koil Thampurans.
The land revenue was assigned to the family of Koil Thampurans.
3. Edappally.
It comprised in Edappally North and Edappally South Pakuthies in Alangad Taluk; Thrukkunnappuzha in Karthikappally Taluk; Kallooppara in Thiruvalla Taluk; and Vazhakkulam in Kunnathunad Taluk.
The land revenue was assigned to the Chief of the Edappally Edavaga.
4. Vanjipuzha
The administration and collection of rent from the tenants in this Edavaga was left to be settled by the Chief in 3 Pakuthies in Peermedu Taluk.
5. Poonjar
It comprised in Poonjar Pakuthi in Peermedu Taluk.
This Edavaga was the property of Poonjar Rajas.
They received grants from early sovereigns of Travancore.
According to the tradition, the Edavaga was purchased by the Rajas from Thekkumkur and from annexation of Thekkumkur by Travancore, the Poonjar Chief became the vassal of Travancore.
Edavagais
In Harska Turst v. Stateof Kerala, ILR 1960 Ker 345, 1960 Ker LT 378, it is observed as under:
“ The Edavagais were petty kingdoms or principalities which remained independent or quasi independent until the consolidation of Travancore in the 18th century. They were outside the State Ayacut and paid no land tax. The Chiefs, however, in exercise of their ancient sovereign powers, collected Melvaram or Melvara Rajgbhogam from the jenmis inside the Edavagais (See: 1945 T. L. R. 581 and 728).”
In Harrisons Malayalam Limited v. State of Kerala, 2018-2 KLT 369, it is observed as under:
“The Edavagai Act intended acquisition and extinguishing of all Edavagai rights over the Edavagais of Edapally, Kilimanoor, Poonjar and Vanjipuzha; then vested respectively in the Edapally Swaroopam, Kilimanoor Kottaram, Poonjar Koickal and Vanjipuzha Madom. Obviously Edavagai Chiefs were the Vassals of the Travancore-Maharaja and had rights over the lands within their jurisdiction as jenmies and otherwise, for collection of rent.”
Edavagai Rights Acquisition Act, 1955
Harska Turst v. State of Kerala, ILR 1960 Ker 345, 1960 Ker LT 378, observed as under:
“8. The rights of the Poonjar Chief were acquired by the State under the Edavagai Rights Acquisition Act, 1955, which came into force on 1-1-1956. Edavagai rights is defined in S.2(5) of that Act as follows:
Edavagai rights means all the rights and privileges vested in
the Edapally Swaroopam,
the Kilimanoor Kottaram,
the Poonjar Koickal and
the Vanjipuzha Matom
relating to heir respective Edavagais and includes in the case of the Poonjar Koickal the right to receive Melvaram in respect of lands situate within the Edavagai of Poonjar.
9. Sub-s.(1) of S.3 of the Act provided that on and from its commencement, the privileges of the Edapally Swaroopam and the Poonjar Koickal relating to Excise Revenues of the Edavagais of Edapally and Poonjar shall stand extinguished, and sub-s.(2):
“All the Edavagai rights of the Edapally Swaroopam and the Poonjar Koickal other than those mentioned in sub-section [1] and all the Edavagai rights of the Kilimanoor Kottaram and the Vanjipuzha Matom over their respective Edavagais, and all rights, title and interests vested in the Chiefs, in respect of waste lands or thanathu lands which have been assigned by them on Kuthagapattom or other like demises,
and all rights, title and interests vested in the Chiefs, in respect of waste lands or thanathu lands which have not been so assigned by them are herebyacquired by Government, and all such rights, title and interests shall vest in Government free of all encumbrances.”
Sub-s.(2) of S.4 fixed the compensation payable by the Government to the Edavagais for the acquisition of the rights, title, and interests mentioned in sub-s.(2) of S.3 at the amounts as specified in the Schedule, being 8 1/3 times the annual income of the respective Edavagais less five per cent for collection charges. It is clear from these provisions that what was acquired was the Chiefs rights, and it is difficult to understand how the acquisition of those rights can possibly affect the right of the State to tax the lands concerned.
10. The right to basic tax is in no sense a manifestation of the Chiefs right to Melvaram. It is a right founded on the Constitution and not on the acquisition of the rights of the Edavagais.”
Edavagai Rights Acquisition Act, did Not change Character of Holdings
Lease holdings of the Edavagais continued as Lease holdings with liability to pay Tax.
In Harrisons Malayalam Limited v. State of Kerala, 2018-2 KLT 369, it is pointed out-The Edavagai Rights Acquisition Act, 1955 did not change the character of the holdings and it only interfered with the right, title and interest of the respective Edavagais; they made made to vest with the Government. The effect was that the liability of the tenants to pay rent or other levies to the Edavagais stood altered as liability to tax imposed by the Government.
The 1955 Act is analysed in Harrisons Malayalam Limited v. State of Kerala, as under:
“There was also a saving clause in Section 11 which exempted from vesting, those lands held by the Chiefs as a Jenmy or as a pattadar under the Government and those held by the families, already settled and assessed, as also those lands in the direct possession of the Chiefs and any of the members of the respective families.”
Then it is observed by the High Court of Kerala as under:
“Hence land existing on a lease from either of the Edavagais or as freeholdon valid purchase made, continues in the possession and ownership of the land holder/lessee and the liability to payment of rent or other levies to the Edavagais would stand altered as liability to tax imposed by the Government. This does not change the character of the holdings and only interferes with the right, title and interest of the respective Edavagais; which stands vested with the Government.”
It was pointed out-
“The ‘Edavagai Rights’ is defined under sub-section (5), as the rights and privileges which vested in the families and ‘Chief’ was defined under sub-section (6) as the senior male member of the respective families, in whom the management of the family is vested.”
“The right, title and interest within the respective Edavagais, existing in favour of the families and the Chiefs, by the enactment, stood vested in the Government, free of all encumbrances.”
Note: Here the High Court of Kerala (in Harrisons Malayalam Limited v. State of Kerala, 2018-2 KLT 369) did not consider the effect of grant.
Kannan Devan Hills (Resumption of Lands) Act, 1971 & Land History
The Kannan Devan Hills (Resumption of Lands) Act, 1971 was enacted for the resumption of Kannan Devan lands, other than plantations in Kannan Devan Hills Village in Kottayam District and for the distribution of such lands for cultivation and purposes ancillary thereto. (Kottayam District Koottu Krishi Karshakasangam v. Stateof Kerala, 2015)
Constitution Bench of our Apex Court, in Kannan Devan Hills Produce Company Ltd. v. State of Kerala, 1972-2 SCC 218, upheld the Kannan Devan Hills (Resumption of Lands) Act.
Land Belonged to Chief of Poonjar was Transferred to Travancore
The Chief of Poonjar (H.H. the Maharaja – as mentioned in Kannan Devan Hills Produce Company Ltd. v. State of Kerala, 1972-2 SCC 218, Para 11) granted a lease for coffee cultivation (First Poonjat Concession) in 1877 without limit of time to late J.D. Munro of a tract of land known as Anchunad and Kannan Devan Hills. The chief was the Janmam holder (proprietary interest of a landlord in lands – Kannan Devan Hills Produce Company Ltd. v. State of Kerala, 1972-2 SCC 218, Para 11.
Agreement dated 18.09.1899 was entered into between Rohini Thirunal Kerala Varma Raja, the then Chief of Poonjar Koyikkal, and the Travancore Government, under which the ownership of the land described in the First Poonjat Concession had been transferred to the Government of Travancore.(Kottayam District Koottu Krishi Karshakasangam v. Stateof Kerala, 2015)
Poonjar Raja was a Janmi
Our Apex Court in Kannan Devan Hills Produce Company Ltd. v. State of Kerala, 1972-2 SCC 218, observed that the Poonjar Raja was a Janmi when the First Concession was granted and the whole lands have fallen within the expression ‘Janmam right’.
On 2.8.1886, the agreement called the Second Pooniat Concession was entered into modifying the previous deed of ratification. By this time a company called the North Travancore Land Planting and Agricultural Society, Ltd. had acquired the rights in the said land.
The Poonjar Chief surrendered certain rights, to Travancore Sircar, which he had been exercising over the tract known as Anjanad and Kannan Devan Hills. The Apex Court, in Kannan Devan Hills Produce Company Ltd. v. State of Kerala, 1972-2 SCC 218, considered the effect of this surrender, with reference of its previous judgment in Kavalappara Kottarathil Kochuni v. State of Madras (1960 (3) SCR 887) and observed, on the materials placed before the Court, that it was difficult to resist the conclusion that the lands in dispute fall within the expression ‘Janmam right’.
But the Royal Proclamation dated 24.9.1899 changed the situation.
Royal proclamation dated 24.09.1899 – the Sircar became Janmi
By a Royal proclamation dated 24.09.1899, the rights of the Poonjar Edavagai over the said tracts became vested in the Government of Travancore. The persons in possession of such lands were treated only as lessees under the Government. Government of Kerala, successor of the former Government of Travancore, was vested with the right, title and interest of the former Government.
As already explained, while perusing the nature of ‘janmam right’ it was held by our Apex Court in Kavalappara Kottarathil Kochuni v. State of Madras, 1960-3 S.C.R. 887, Subba Rao, J., observed:
(i) As per the definition in Royal proclamation, any janmam right in Kerala is an “estate”.
(ii) A janmam right is thefreehold interest in a property situated in Kerala (with liability to pay tax).
(iii) Moor in his “Malabar Law and Custom” describes it as a hereditary proprietorship.
(iv) A janmam interest may, therefore, be described as “proprietary interest of a landlord in lands“, and
(v) Such a janmam right is described as “estate” in the Constitution.” (Quoted in Kannan Devan Hills Produce Company Ltd. v. State of Kerala, 1972-2 SCC 218)
All Lands Belonged to one Janmi or Other
As already stated, in Kannan Devan Hills Produce Company Ltd. v. State of Kerala, 1972-2 SCC 218, it is observed as under:
“13. It must be clear from what has been stated that all the lands in the Travancore belonged to a body of janmis. There are no lands that do not belong to some janmi or other.
14. Be it remembered that the Sircar itself is one of these janmis, it having come to possess janmam lands by gift, purchase, escheat, confiscation and other ways. It is only a great janmi, great in the sense that its janmam property is extensive.”
Kannan Devan Hills (Resumption of Lands) Act, 1971
Later the Kerala Government found that a large extent of agricultural lands in Kannan Devan Hills Village had not been converted into plantations and such lands are not required for the purpose of existing plantations. Accordingly, the Government decided to resume such lands for distribution for cultivation and purposes ancillary thereto. Consequent to this, Kannan Devan Hills (Resumption of Lands) Act, 1971 was enacted. (Kottayam District Koottu Krishi Karshakasangam v. Stateof Kerala, 2015)
Kannan Devan Hills Produce v. The State of Kerala, AIR 1972 SC 2301
The Supreme Court, in Kannan Devan Hills Produce v. The State Of Kerala, AIR 1972 SC 2301 (Sikri (Cj), Shelat, A.N. Ray, I.D. Dua, , H.R. Khanna, JJ.) considered –
Whether the Kannan Devan Hills (Resumption of Lands) Act, 1971 was protected from challenge under Art. 31A of the Constitution. That is, whether these lands fall within expression ‘Janmam right’ or “estate” in art. 31A of the Constitution.
If the lands acquired were an “estate”, or with ‘Janmam right’ owned by the Company, the land reform enactment did not have stood valid. (Note: Kesavananda Bharathi Case came in 1973.)
According to the petitioner Company, ‘it has at all times been holding, cultivating, enjoying and dealing with the Concession Land as the absolute, owner thereof’.
The position taken by the State was –
that the petitioner Company was not an absolute owner, but only a lessee under the Government, especially since the 1899 Proclamation issued by H.H. the Maharaja.
that the petitioner’s predecessor-in-title was John Danial Munro, who obtained, the first Pooniat Concession from Punjar Valiya Raja, on July 11, 1877. This Concession recited that an, application was made for the grant of the above property to the Raja for coffee cultivation.
It was further stipulated in the Concession that
“you shall clear and remove the jungles, and reclaim the waste lands within the said boundaries, and cultivate them with coffee up to the year 1058 and from the year 1059, pay our rent collector a yearly rent at the rate of 3,000 British Rupees.”
H.H. the Maharaja executed a deed of ratification, dated November 28, 1878, by which the Government ratified the First Pooniat Concession dated July 11, 1877.
This deed of ratification laid down – the Government permitted the grantee to hold the land.
Clause 5 of the Deed of Ratification, is important. It pro- vides, inter alia, that
“the grantee can appropriate to his own use within the limits of the grant all timber except the following and such as may hereafter be reserved namely, Teak, Cole Teak, Blackwood, Ebony, Karoonthaly, Sandalwood; should he carry any timber without the limits of the grant it will be subject to the payment of Kooteekanom, or Customs Duty……….
The eleventh clause reads – “The land granted shall be held in perpetuity as heritable or transferable property, but every case of transfer of the grant by the grantee shall be immediately made known to the Sircar, who shall have the right of apportioning the tax, if a portion of the holding is transferred.”
The twelfth clause stipulates – “The discovery of useful mines and treasures within the limits of the grant shall be communicated to the Sircar, and the grantee shall in respect to such mines and treasures, abide by the decision of the Sircar.”
The sixteenth clause provides – “The grantee shall be bound to preserve the forest trees growing on the banks of the principal streams running through the tract to the extent of fifty yards in breadth on each side of the stream, the Underwood only being permitted to be cleared and coffee planted instead. Similarly he shall also be bound to preserve the, trees about the crest of the hill to the extent of a quarter of a mile on each side.”
A Royal Proclamation was made on September 24, 1899 provided that ‘Anjanad and Kannan Devan Hills is an integral portion of our territory and that the inhabitants of the said tract are ‘hereby informed and warned that they are not to pay any taxes, rents or dues, or make any other payment to the Poonjar Chief.
The Apex Court found the following:
The janmam rights (even if remained with the Poonjar Chief, H.H. the Maharaja became the janmi by the Royal proclamation of 1899.
The nature of ‘janmam right’ has been examined by this Court previously in Kavalappara Kottarathil Kochuni v. State of Madras [1960] 3 S.C.R. 887 Subba Rao, J., observed that janmam right in Kerala is an “estateand it is the freehold interest.
The Sircar itself is one of these janmisand it was the largest Janmi. It came to possess janmam lands by gift, purchase, escheat, confiscation and other ways
If any person wants land in Travancore, he must obtain it from, some one of the body of Janmis, i.e. from the Sircar, which is the Chief Janmi, or from some other Janmi.
The Apex Court held that it was difficult to resist the conclusion that the lands in dispute fall within the expression “Janmam right” vested with Sircar.
The Apex Court further found –
The Registered Lands included inter alia, (a) Pandaravaka lands and (b) Janmam lands.
Regarding Pandaravaka lands it is stated : “Pandaravaka or Sircar lands are, lands of which the State is the landlord or the Jenmi and whatever rights which vest in the ryots are derived from the Sircar.”
Kenan Devan Hills Concession is dealt with under this heading, i.e. Pandaravaka Lands.
It thus appears that the State grants like
Kanan Devan Hills Concession and
Ten Square Miles Concession, and
Munro Lands,
were treated under the heading ‘Pandaravaka Lands, i.e. lands belonging to the Sircar.
On these findings The Apex Court upheld the Kannan Devan Hills (Resumption of Lands) Act, 1971 and dismissed the challenge of the Company.
Position of jenmi
This definition is intended for the purposes of the Regulation, which regulates the relations between Janmis and their Kanapattom tenants. A Janmi has not only Kanapattom tenants but has other tenants as well holding on Adima Anubhogam, Thiruvulam and similar other tenures and the Regulation is not concerned with the latter class of tenants in whose case the ordinary law of landlord and tenant is applicable. Revenue law, on the other hand, makes no distinction between a Kanapattom tenant and a non Kanapattom tenant if he holds under a Janmi recognised in the revenue accounts.
Hence for revenue purposes, janmam lands were lands that were entered in the revenue accounts under the heads of Devaswomvaka, Brahmamaswomvaka and Madampimarvaka, i.e., to say a land to be classed as Janmom land should have been recognised as such in the revenue accounts. The mere circumstance that a land belongs to a janmi does not bring it under janmom tenure and conversely the mere fact that janmom land is absolutely transferred to a non janmi does not any the less detract from its original character. Janmom lands are allodial properties and the proprietary right in them is considered as inherent in the individual and not derived from the State. The Apex Court in Kannan Devan Hills Produce Company Ltd. v. State of Kerala, 1972-2 SCC 218, observed that, the State grants like Kannan Devan Hills Concession and Ten square Miles Concession and Munro Lands, were treated under the heading ‘Pandaravaka Lands’, i.e., lands belonging to the Sircar. (Kottayam District Koottu Krishi Karshakasangam v. Stateof Kerala, 2015)
Kerala Grants and Leases (Modification of Rights) Act, 1980
Kerala Grants and Leases (Modification of Rights) Act, 1980 was enacted with a view to modify the rights under grants and leases, for cultivation, made by the former States of Travancore and Cochin. The Act was made for the reason that such grants and leases brought about heavy loss to the Government and they resulted in huge un-earned profits to the grantees and lessees; and it was found necessary in the public interest that such undue profits to a few person were to be utilised for the common benefit of the general public. The Act required the Grantees and lessees to pay current seigniorage rates (for the trees cut by the grantees and leases) and rent to the Government. The Collector was authorised to revise assessment and rent.
Grant and the Right of Ownership
In Majeed v. State of Kerala,(2006) 1 KerLT 19, the State demanded seigniorage under Kerala Grants and Leases Modification of Rights Act, 1980. Petitioner was a person who purchased trees from Travancore Rubber and Tea Company Ltd. Disputes and questions arose in the light of of the Kerala Grants & Leases (Modification of Rights) Act, 1980. Admittedly there was originally a grant. The scope of ‘grant’ was disputed. The contention of the petitioner was that it was the free hold property. The court did not accept the argument.
The rejected contention was stated by the Court as – “The petitioner contends that the respondents have no authority to demand seigniorage in respect of the timber of the trees planted by the company, as the property in question granted in favour of the company is not a leasehold property, but a free hold property, as is revealed by the order of grant Exts. R2(i).”
Grant – Land Continues to be Government lands
During second half of the 19th century in erstwhile Kingdoms in South India gave very large extent of Government lands were on “grant” to various persons (mostly foreigners) or institutions for putting up plantation.
The Royal Proclamation made on 24.9.1899 recites as follows;
“Whereas we deem it expedient to clearly declare the position of this State in respect of the tract known as Anjanad and Kannan Devan Hills, we are pleased to declare as follows; (1) The tract known as Anjanad and Kannan Devan Hills is an integral portion of our territory and all rights over it belong to and vest in us.
(2) The inhabitants of the said tract and all others whom it may concern are hereby informed and warned that they are not to pay any taxes, rents or dues, or make any other payment to the Poonjar Chief or his representatives or to any person other than an officer of our Government authorised in this behalf, in respect of anything in, upon or connected with the said tract, with the exception, however, of a payment of rupee three thousand per annum from the successors in interests of the late Mr.J.D.Munro of London and Peermade now being paid to the said Chief in virtue of a Lease deed executed by the said Chief in favour of the said late Mr.J.D. Munro on the 11th July, 1877, and which we are pleased to permit the said Chief to continue to receive.
(3) The lands within the said tract will be dealt with by our Government in the same manner as lands in other parts of our territory with such modifications as the circumstances and conditions of the said tract may require and all taxes, rents and dues hitherto paid, and that may hereafter be imposed by our Government shall, with the exception of the sum of rupees three thousand aforesaid, be paid by the, occupants of lands within the said tract whose occupation has been or may be recognized or confirmed by our Government, and of such portions of the said tract as may from time to time hereafter, with the permission of our Government, be occupied, to the officers of our Government who may be authorised in this behalf.”
Landmark Enactments in Land Tenure Reforms that Culminated in KLR Act, 1963
Royal Pattom Proclamation of 1040(1865 AD) – Fist Gigantic Step
During the second half of the 19th century several Royal Proclamations were promulgated with a view to confer rights in the land to the tenants who were the real cultivators. Majority of the people were engaged in agriculture; but the lands belonged to Jenmies (Sircar, Brahmins or Devaswoms). The cultivators held the land under lease arrangement known as Pattom, Otti, Inam and Viruthi etc. One of the important Regulations came in the line of agrarian reforms was the Royal Proclamation of 1040 ME (1865 AD). It pertained to Pattom (lease) tenements created (by Sircar) on Sirkar lands known as Pandaravaka lands. It is exalted as the Magna Carta of peasants of Travancore it being led to conferring land to tillers, step by step.
Proclamation of 1040 (1865)– No Proprietary Rights; But, Permanency to Cultivators
Till 1040 ME (1865 AD), the agriculturists, who held the Pandaravaka lands under Pattom arrangement, were liable to be treated as mere tenants-at-will; the land being resumable resumable (by the Government) at any time, as they were in the nature of temporary leases just like tenements created by private jenmis.
The Pattom Proclamation of 1040 (1865) converted the pattom arrangement on pandaravaka lands into permanent leases and conferred on the holders thereof permanent rights of occupancy, heritable and alienable. Though the Proclamation of 1040 ME did not expressly confer full proprietary rights on tenants, it gave the tenants permanency in the Pandaravaka soil; and it recorded the fist gigantic step towards the land reforms in Travancore.
Royal Proclamation of 1061 (1886) Brings in Further Radical Changes
Paragraph 9 of the Proclamation of 1061 says, with reference to Royal Proclamation of the 21st Edavam 1040, as regards Pandarapattam lands, as under:
“these lands were originally the absolute property of Government, and the tenants were mere tenants-at-will; but, by the Royal Proclamation of the 21st Edavam 1040, Government generously waived all right to these lands, and declared them to be the private, hereitable, saleable property of the holders.”
Section 22 of the Settlement Proclamation of 1061 (1886) made radical changes in land tenure.
Those changes were:
(1) no debt shall be recognised as due to the holder;
(2) no interest shall be deducted from the Pattom on such debt;
(3) no reduction of debt or a corresponding enhancement of the Sirkar demand shall be made when such properties were transferred by sale.
The properties held on the tenures in question shall be recognised as so many favourably assessed lands or Inams and confirmed to the holders as such.
Clause 7 of Section 24 of the Proclamation provided as under:
“There shall be no further interference on the part of the Government with these free holds, except such as might be necessary for the punctual realization of the quit rent payable”.(Quoted in: Padmanabharu Govindaru v. The State of Kerala, AIR 1963 Ker 86.)
Jenmi & Kudiyan Act (1896) and Amendments – Made Kudiyan, Full Owner
‘Jenmam land’ is defined in the Jenmi and Kudiyan Regulation, V of 1071 (1896), as land (other than Pandaravaka, Sripandaravaka, Kandukrishi or Sircar Devaswom land, recognised as such in the Sircar accounts) which is either entirely exempt from Government tax or if assessed to public revenue, is subject to Rajabhogam only, and the occupancy right in which is created for a money consideration (Kanom) and is also subject to the payment of Michavaram or customary dues and the payment of the renewal fees.
This definition is intended for the purposes of the Regulation, which regulates the relations between Janmis and their Kanapattom tenants. A Janmi has not only Kanapattom tenants but has other tenants as well holding on Adima Anubhogam, Thiruvulam and similar other tenures and the Regulation is not concerned with the latter class of tenants in whose case the ordinary law of landlord and tenant is applicable. Revenue law, on the other hand, makes no distinction between a Kanapattom tenant and a non Kanapattom tenant if he holds under a Janmi recognised in the revenue accounts.
Before Travancore Jenmi and Kudiyan Act, V of 1071 (1896), lands were granted as Inams by the Sovereign to Devaswoms and Brahmin jenmies. (Sreekumaran Kesavan Namboori v. Gopalan Madhavan, 1956 KLT 256).
The Jenmi & Kudiyan Regulation of 1071 ME (1896) was passed to stop the injustices perpetrated on the Kudiyans (bond-servants). It was amended by the Amendment Regulation of 1108 ME. The report of the Committee which led to the Amendment Regulation of 1108 ME reads as under:
“6. The outstanding feature of the amendment is that it lays the ghost of the Jenmis’ ownership for ever. The Jenmi has been expropriated and reduced to the position of a mere rentier. Refined considerations in the interests of the reciprocal rights and obligations have all been swept away. The solution of the problem looks like the cutting of the Gordian knot and the process is rather rough and coarse by the side of the Regulation of 1071. The measure is eminently democratic. To some extent it is socialistic also. For, one of the aims of some schools of social reformers, is to make the labourer free by breaking down the relationship of master and servant and similar situations involving superiority and inferiority by means of legislative interference. Whatever it be, to all appearance the jenmi has received the knock-out-blow. Yet it may be asked whether he has not good reason to come back smiling. For what he is entitled to by way of michavaram, renewal fees and customary dues has been consolidated and spread out with the advantage that he is assured of the payment without any worry. The burden on the Kudiyan is clearly fixed and the door has been closed on the chance of his escape. It remains to be seen who is the better for the present amendment of the Regulation”. (Quoted in: Harrisons Malayalam Limited v. State of Kerala, 2018-2 KHC 719; 2018-2 KLT 369)
The changes introduced by the Amended Regulation reads as under:
“i. Jenmi is not the owner of the land hereafter, his right being confined to the receipt of Jenmikaram as fixed by the law;
ii. the Kudiyan is the full owner of the land subject only to the payment of the Jenmikaram to the Jenmi;
iii. Jenmikaram is to be regulated and controlled by the Settlement Pattamicham and not by the Kanappattam contract except till the next general Land Revenue Settlement and, that even, only subject to certain statutory limitations;
iv. no renewals are hereafter obligatory;
v. Jenmis’ dues may be fractioned out and paid annually and in money as prescribed by the Statute;
vi. the rate of interest on arrears of Jenmikaram has been reduced to nine per cent whether payable in kind or in money when collected by the Jenmy direct, or under the provisions of chapter III or otherwise through Court, and to six per cent when collected by the Government under the provisions of chapter IV;
vii. The period of limitation for recovery of arrears of Jenmikaram has been reduced from the former period of twelve years to a period of six years;
viii. Government have undertaken the collection of Jenmikaram and payment thereof over to the Jenmi;
ix. in the case of Government realising the Jenmikaram under the provisions of chapter IV only the land on which the Jenmikaram is a charge shall be sold for arrears of jenmikaram, though this restriction may not apply as regards the movables of the defaulter;
x. Section 45 enacts an equitable method of the distribution between Jenmi and Kudiyan of compensation money granted by the Sircar when the Government compulsorily acquire or purchase jenmom lands”.
Cochin Settlement Proclamation of 1080 (1905)
As shown above, the Sirkar or Pandaravaka tenure holders of the Kingdom of Cochin were conferred with fixity of tenure by the Settlement Proclamation of 1080 (1905).
The Settlement Proclamation of 1905 covered all lands in the State, including lands held under concessional tenures or as tax-free. The Rules made under the Act contained the procedure for the issue of title deeds in respect of lands held under such grants. As stated above, Clause 13 of the Settlement Proclamation provided that the holders of Pandaravaka Verumpattom lands would acquire ‘full rights to the soil of the lands‘ they held. Settlement Proclamation of Cochin of 1080 (1905) Clause 13 provided as under:
“At present holders of Pandaravaka Verumpattom lands do not possess any property in the soil. As we are convinced that proprietorship in soil will induce a cultivator to improve his land and thereby add to agricultural prosperity of the country, we hereby declare that our Verumpattom holders of lands shall, after the new settlement has been introduced, acquire full rights to the soil of the lands they hold and that their rights shall remain undisturbed so long as they regularly pay the State revenue, provided that the rights to metals and minerals, possessed by the State in all lands under whatever tenures they are held, are reserved to the State”.
The Settlement Proclamation of 1905 was expressly repealed by the Land Tax Act of 1955 of the united State of Travancore-Cochin; but this Act, as a whole, was struck down by the Supreme Court in AIR 1961 SC 552. In Kesavan Vadhyan Namboodri v. State of Kerala, AIR 1968 Ker 279, it was pointed out that this Proclamation of 1080 (1905) stood repealed by implication by the Land Tax Act of 1961.
Section 4 of the Cochin Verumpattomdars Act, 1118, reads as under:
“Notwithstanding any law, custom or contract to the contrary, every verumpattomdar shall have fixity of tenure in respect of his holding and shall not be evicted therefrom except as provided in Section 8 of this act.”
Section 4 concerned with the fixity of tenure, that is, fixity of the period of holding, possession or enjoyment of the land. The effect of such a mere conferment of fixity of tenure was not to continue the lease beyond the period specified therein, but to give to the person who continues to remain in possession of the land after the lease has come to an end the status of a statutory tenant. (Ittiravi Namboodiri Vs. Krishnankutty Menon AIR 1964 Ker 298. Dr. K. A. Dhairyawan V. J. R. Thakur, AIR 1958 SC 789, referred to.)
Travancore Jenmi and Kudiyan (Amendment) Act, 1935
‘Proceedings of the Travancore Sri Chitra State Council’ recorded the speech of Kayalam Paramesvaran Pillai (Additional Head Sircar Vakil) while moving the Travancore Jenmi and Kudiyan Regulation (Amendment) Bill, on 28th May 1935, as under:
“Sir, I beg to move that the Travancore Jenmi Kudiyan Regulation (Amendment) Bill, as passed by the Sri Mulam Assembly, be taken into consideration. I am sure that honourable members have carefully gone through the Bill and that it is not necessary for me to explain the principles underlying the Bill at great length. It will be noticed that the main point for which this Bill is proposed is in regard to jenmikaram in respect of cherikal lands held on Kanapattom. Honourable members know what a kanapattom transaction is. It is a demise by a jenmi to a person called kudiyan in respect of a Jenmam land on receipt by the jenmi of an amount as loan, called Kanam. The kudiyan has to pay a rent or pattom to the jenmi. The jenmi has to pay interest in respect of the kanam money advanced. The net result is that the kudiyan pays to the jenmi the rent or pattom minus the interest and this residual rent is called michavaram. Besides this michavaram the kudiyan has also to pay certain customary dues and periodical fees. Under the Jenmi and Kudiyan Regulation as amended, all these dues have been consolidated and their yearly value has been taken and fixed as the amount payable every year in lieu of all dues to the jenmi. This is the jenmivaram and this law further lays down what shall be the rent payable and this is called the jenmikaram. The jenmikaram may be “said to be the statutory rent and the jenmivaram the contract rent, and it has been laid down that in the case of Jenmom lands generally jenmivaram shall be the jenmikaram. But in the case of cherikal lands a differential provision is made and it has been laid down that in respect of cherikal lands that jenmikaram shall be the settlement pattamicham minus the interest on the kanam amount. Perhaps I may have to explain what settlement pattamicham is. Honourable members know that settlement pattom is the pattern fixed by Government in respect of Sirkar lands in the settlement of tax. The Settlement Pattamicham means the settlement pattom fixed at the settlement minus the tax actually payable in respect of the land. In respect of cherikal lands what has been fixed is that the kudiyan shall pay to the jenmi the settlement pattamicham minus the interest on the kanam amount. It has been assumed that the settlement pattamicham is the utmost fair rent that may be paid by the kudiyan to the jenmi. But it has been noticed in actual fact that the interest on the kanam is more than the settlement pattamicham, with the result that in many cases the jenmikaram is nil or a minus quantity. This was not the intention of the Legislature. Therefore provision is now proposed, in this Bill, that in respect of cherikal lands either the jenmivaram or settlement pattamicham minus the interest on kanam amount shall be the jenmikaram whichever is greater. I am sure that this will be admitted to be a reasonable arrangement. This is the main principle of the Bill.”
Effect of Travancore Govt. Leases afterRoyal Pattom Proclamations of 1040and 1061
During the second half of the 19th century several Royal Proclamations were promulgated with a view to confer rights in the land to the tenants who were the real cultivators. Majority of the people were engaged in agriculture; but the lands belonged to Jenmies (Sircar, Brahmins or Devaswoms). The cultivators held the land under lease arrangement known as Pattom, Otti, Inam and Viruthi etc. One of the important Regulations came in the line of agrarian reforms was the Royal Proclamation of 1040 ME (1865 AD). It pertained to Pattom (lease) tenements created (by Sircar) on Sirkar lands known as Pandaravaka lands. It is exalted as the Magna Carta of peasants of Travancore it being led to conferring land to tillers, step by step.
Paragraph 9 of the Royal Proclamation of 1061 (1886) brought in further radical changes as regards Pandarapattam lands. It said as under:
“These lands were originally the absolute property of Government, and the tenants were mere tenants-at-will; but, by the Royal Proclamation of the 21st Edavam 1040, Government generously waived all right to these lands, and declared them to be the private, hereitable, saleable property of the holders.”
Section 22 of the Settlement Proclamation of 1061 (1886) made further changes in land tenure.
Those changes were:
(1) no debt shall be recognised as due to the holder;
(2) no interest shall be deducted from the Pattom on such debt;
(3) no reduction of debt or a corresponding enhancement of the Sirkar demand shall be made when such properties were transferred by sale.
The properties held on the tenures in question shall be recognised as so many favourably assessed lands or Inams and confirmed to the holders as such.
Clause 7 of Section 24 of the Proclamation provided as under:
“There shall be no further interference on the part of the Government with these free holds, except such as might be necessary for the punctual realization of the quit rent payable”.(Quoted in: Padmanabharu Govindaru v. The State of Kerala, AIR 1963 Ker 86.)
Now a question arises: What is the impact of 1040 and 1061 (1886) Proclamations over the ‘Government Land Leases’ made after 1061 (1886)? Do such leased lands qualify as “estate” under Article 31A of the Constitution?
The legitimate answer is that the lands leased out (by the Government) after 1061 (1886) do not acquire the rights of ‘permanency of tenure’ or attain the ‘proprietary interest’ conferred by the Pattom Proclamations of 1040 and 1061. If such rights are axiomatically conferred as a matter of course, the result would be that the Government cannot ‘lease’ lands (after the Proclamations), for, the lease character would be lost at the moment it is made.
In Rev. Fr. Victor Fernandez v. Albert Fernandez (five Judge Bench), 1971 Ker LT 1, AIR 1971 Ker 168 (Per PT Raman Nayar, CJ, T Krishnamoorthy Iyer, P Unnikrishna Kurup, JJ.), concluded that the land covered by the Royal Proclamations of 1040 and 1061 were “estates” falling under Art. 31A of the Constitution. It was on the finding that the Proclamation “secured permanency of tenure”, and “proprietary interest” in the soil. It was observed as under:
“7. It is impossible to accept the contention advanced on behalf of the plaintiff in this case that,evenafter the Proclamation of 1040, the holders of these lands had no proprietary interest whatsoever in the soil and remained tenants in the strict sense of that term, with only the right of enjoyment, the only difference being that they secured permanency of tenure, the Government still remaining the full and absolute proprietor of the soil.”
Therefore, there is a clear difference between leases made before and after the Proclamations, and the rights conferred by the Proclamations do not apply to leases made after them.
Meaning of the Word ‘Thettom’
Generally meant – acquisition by Mortgage.
When ‘Thettom’ refers to a property dealing with a Jenmam holder, it can be any ‘subordinate tenure falling short of the full proprietary title‘.
When it refers to a property dealing with a Non-Jenmom holder, it may mean a sale’
As regards ‘Thettom’, Raman Menon, C.J., said, in Augusti v. The Dewan of Travancore, 8 Travancore LJ 438, as under:
“In S.A. 17 of 1074, this Court remarked:-‘In the Sirkar registry of 1011, the plaint property is entered as ‘Thettom’ in the name of defendants’ Tarwad.
That expression, according to its ordinary meaning, implies at least a mortgage lien, if not more, as held by this Court in A.S.166 of 1070 and A.S. 285 of 1071. It always implies something more than a simple lease’.
In S.A. 61 of 1075, the terms was taken to be generic and to include ‘all subordinate tenures falling short of the full proprietorytitle‘.
In S.A. 302 of 1075, it was observed that the word ‘Thettom’, as applied to Nambudiri Jenmies, had been held by this court to mean ordinarily a Kanom.
In S.A. 48 of 1076, Vencoba Chariar, C.J. and Mr. Justice Kunhiraman Nair construed the words thus:- ‘The chief ground of the plaintiff’s second appeal is that in arriving at this finding the lower courts have not given sufficient weight to the fact appearing from the Ext. B – an old Revenue account – in which the land in dispute is entered as ‘Thettam’ from plaintiff’s Illom; but the word ‘Thettom’ is a somewhat ambiguous one and though, as remarked in the case in 15 TLR 161 and in other cases, it is generally used in the Revenue accounts to signify the Kanom tenure under Jenmies, it is also sometimes used to denote other subordinate tenures‘.
In S.A. 343 of 1078, we find the following remarks:-‘Thettom ordinarily means a’Kanom’, and in any case, a derivative title when used in connection with Brahmaswam or Devaswom properties, as in the present case’.
Lastly, in A.S. Nos. 59 and 101 of 1083, Sadasiva Iyer, C.J., and Sankara Menon, J., observed thus:-‘Mr. Kochukrishna Marar quotes 15 TLR 161 and says the word ‘Thettom’ means a Kanom or mortgage.
No doubt, in the case of Jenmies, it has been so held; but we doubt whether in the case of non jenmies, any meaning other than the ordinary meaning of the word can be given to the word ‘Thettom’. The plaintiffs are Nairs and the tenure claimed is not Jenmom. The ordinary meaning of the word is acquisition. We are inclined to hold that a word ‘Thettom’, in cases of this sort, means only sale’.”
In Damodaran v. Sankaranarayanan Namboothiripad, ILR 1963-2 Ker. 707; 1964 KLT 25, the High Court referred to thanathu thettom land (nilam); and observed – it conveys the idea of ‘acquisition’.
‘Pandarappattoms’ before 1061 (1886) were Recorded as “Thettoms”
The ‘pandaravakappattoms’ before 1061 (1886) to which benefits of proprietary rights were conferred under the Proclamations (1040 and 1061) were recorded in 1910 Travancore Settlement Register as “Thettoms” (such as Devaswom Thettom, Namboori Thettom etc.)
Note: When those properties (upon which Brhamins or Devaswoms had pandarappattom rights) were sold or leased, they were termed in the transfer-deeds as “Devaswom Thettom”, “Namboori Thettom”.
An ‘Ex-parte’ Defendant can Cross Examine Plaintiff’s Witness. # When no written statement filed, the defendant can take part in further proceedings # But, he will not be able to cross-examine the plaintiff’s witnesses with regard to any question of fact which he could have pleaded. # He will, however, be competent to cross-examine the plaintiff’s witnesses in order to demolish their version of plaintiff’s case.
When a Defendant is Made Ex parte?
The relevant provisions of the CPC are the following –
Order VI Rule 2 (plead material facts only and not evidence),
Order VIII Rule 5 (discretion in the Court even when no Written Statement),
Order VIII, Rule 10 (when a party fails to present written statement, the Court shall pronounce judgment against him)
Order IX Rule 6 (If defendant absent, suit shall be heard ex parte),
Order IX Rule 7 (If defendant is made ex-parte and he appears and assigns good cause, he may be heard as if he had appeared on the day, fixed for his appearance.
Order XI Rule 21 (bars fresh suit on same cause of action if a suit is dismissed under r. 21),
Order XVII rule 2 (These provisions enable the Courts to pass an exparte decree merely relying on the averments in the plaint, and without being supported by evidence).
Order VIII, Rule 10 CPC
Order VIII, Rule 10 reads as follows:
“10. Procedure when party fails to present written statement called for by Court – Where any party from whom a written statement is required under Rule 1 or Rule 9 fails to present the same within the time permitted or fixed by the Court, as the case may be, the Court shall pronounce judgment against him or make such order in relation to the suit as it thinks fit and on the pronouncement of such judgment, a decree shall be drawn up.”
Order IX Rule 7 CPC
Order IX Rule 7 CPC reads as under:
“7. Procedure where defendant appears on day of adjourned hearing and assigns good cause for previous non-appearance.
Where the Court has adjourned the hearing of the suit ex-parte and the defendant, at or before such hearing, appears and assigns good cause for his previous non-appearance, he may, upon such terms as the Court directs as to costs or otherwise, be heard in answer to the suit as if he had appeared on the day, fixed for his appearance.”
The defendant can participate in the rest of the proceedings after setting him set ex-parte without recourse to the provisions of Order IX Rule 7. Therefore, he can
(1) Cross-examine the plaintiff’s witnesses
(2) Adduce evidence in defence and
(3) Place arguments on the entire case.
Therefore, whether or not the defendant has filed Written Statement, he can point out the defects and weakness of the plaintiff’s case on law and facts; so also the pleadings of the plaintiff are defective and the facts are not properly proved.
In Hira Lal Sahu v. Suku Majhi (Jhk), 15 Feb 2018, it is held as under:
“12. So far as the contention of the appellants regarding the defendants being illegally permitted to cross examine the witnesses of the plaintiffs even though the defendants have not filed any written statement is concerned, it is a settled principle of law that even if the defendant has not filed the written statement or his defence is struck off his right to cross-examine the witnesses of the Plaintiff is not taken away. The reason being as the Code of Civil Procedure envisages two consequences of not entering appearance. One is that the suit is liable to be heard ex parte and the other is that no written statement can be filed. In that context, it will not be proper to impose more punishment than those two so explicitly stated by the Code of Civil Procedure. Therefore a defendant not filing the written statement can still appear when the suit is called on for hearing not only to cross-examine the witnesses of the plaintiff and demolish in such manner the plaintiff’s case on evidence that the court will not pass any decree in the plaintiff’s favour but also to make such arguments and submissions on law and on such evidence as the plaintiff may have brought to the court. Moreover filing of written statement is not the only way of defending a suit. A defendant may in a particular case choose to successfully defend a suit against him by cross-examination of the witnesses of the plaintiff and arguments.
In Siai Sinha v. Shivadhari Sinha. AIR 1972 Pat 81, Untwalia J. laid down the law as under:
“The position of law in such a case is that a defendant, even without filing a written statement can take part in the hearing of the suit. He may cross-examine the plaintiff’s witnesses to demolish their version in examination-in-chief. Without written statement, however, he cannot be permitted to cross-examine the witnesses on questions of fact which he himself has not pleaded nor can he be allowed to adduce evidence on questions of fact which have not been pleaded by him by filing any written statement. It should be further made clear that if a defendant files a written statement and does not controvert the allegations in the plaint then tacitly the fact not controverted is said to be admitted, but if he does not file written statement, it cannot be said that he has admitted all the facts pleaded by the plaintiff.” (Quoted in Chuni Lal Chowdhary v. Bank of Baroda, 1981 JKLR 501; 1981 KashLJ 461)
In Chunni Lal Chowdhary v. Bank of Baroda, AIR 1982 J & K 93, the view taken by Untwalia, J., in Siai Sinha, AIR 1972 Pat 81, was followed. It was observed by the J&K High Court as under:
“Where the Court decides to proceed to hearing of the suit without the written statement that would not debar the defendant from taking part in further proceedings of the case. His participation would, however, be hedged in by several limitations. He will not be able either to cross-examine the plaintiff’s witnesses or to produce his own evidence with regard to any questions of fact which he could have pleaded in the written statement. He will, however, be competent to cross-examine the plaintiff’s witnesses in order to demolish their version of plaintiff’s case.” (Quoted in Ganpat Chand vs Jeth, AIR 1983 Raj 146)
In Balraj Taneja v. Sunil Madan, (1999)8 SCC 396, the Supreme Court, quoting Chuni Lal Chowdhry v. Bank of Baroda, AIR 1982 J&K 93, approved the law laid down in Siai Sinha v. Shivadhari Sinha, AIR 1972 Pat 81. The Apex Court in Balraj Taneja v. Sunil Madan, held that the Court shall not act blindly upon the admission of a fact made by the defendant in his written statement and the court shall not proceed to pass judgment blindly merely because a written statement has not been filed by the defendant. Before passing the judgment against the defendant the court must see whether a judgment could possibly be passed in favour of the plaintiff without requiring him to prove any fact mentioned in the plaint. It is only when the court is satisfied that there is no fact which need be proved on account of deemed admission, the court can conveniently pass a judgment against the defendant who has not filed written statement.
In T. Sheeja Vs. C. P. Balakrishnan, 2018-3 KerLT 1102, 2018-4 KHC 415, ILR 2018-3 Ker 880, Kerala High Court held as under:
“9. In the absence of denial of plaint averments, the burden of proof on the plaintiff is not very heavy. A prima facie proof of the relevant facts constituting the cause of action would suffice and the court would grant the plaintiff such relief as to which he may in law be found entitled. However, in a case in which the defendant is set ex parte, the trial court shall scrutinize the available pleadings and documents, consider the evidence adduced and decide whether the claim made by the plaintiff is proved [See Ramesh Chand Ardawatiya v. Anil Panjwam, A.I.R. 2003 S.C. 2508].
10. Even in a case where the defendant is set ex parte, the judgment shall reflect the facts of the case and the controversy involved and tried to be settled by the court. The process of reasoning by which the court came to the ultimate conclusion and decreed the suit shall be reflected clearly in the judgment. Even in a case where the written statement is not filed by the defendant, the court must be satisfied that there is no fact which need to be proved inspite of deemed admission by the defendant. The court must give reasons for passing such judgment, however, short it be. By reading the judgment, a party should be able to understand what were the facts and circumstances on the basis of which the court proceeded and what is the reason for decreeing the suit [See Shantilal Gulabchand Mutha v. Tata Engineering Locomotive Company, (2013) 4 SCC 396].
11. Absence of the defendant does not absolve the trial court from fully satisfying itself of the factual and legal veracity of the plaintiff’s claim. The factum of the defendant having been set ex parte, does not invite a punishment in the form of an automatic decree. The court is duty bound to diligently ensure that the plaint stands proved and the prayers therein are worthy of being granted [See Maya Devi v. Lalta Prasad, A.I.R. 2014 S.C. 1356].”
Court has discretion to require any fact in the plaint to be proved
In Dharam Pal Gupta v. District Judge, Etah, the Allahabad High Court held as under:
“Therefore, reading Order VIII, R. 10, C.P.C. along with O. VIII, R. 5, C.P.C., it seems that even though the filing of written statement has been made obligatory and the Court has now been empowered to pass a judgment on the basis of the plaint on the ground that no written statement has been filed by the defendant still, the discretion of the Court has been preserved and despite the non-filing of the written statement the Court may pass any other order as it may think fit (as laid down in O. VII R. 10) or the Court may in its discretion require any particular fact mentioned in the plaint to be proved as laid down in Order VIII, R. 5 sub-rule (2) C.P.C.” (Quoted in Balraj Taneja v. Sunil Madan, AIR 1999 SC 3381; 1999 8 SCC 396)
Even When Defence is Struck Off, Defendant can Cross-Examine Plaintiff’s Witnesses
In Paradise Industrial Corpn. v. Kiln Plastics Products, (1976) 1 SCC 91, the Supreme Court, held that even when the defence of the defence was struck off, by putting the defendant with the similar handicap as a defendant when debarred from filing the written statement, defendant is entitled to appear and cross-examine the plaintiff’s witnesses and can submit that even on the basis of the evidence on behalf of the plaintiff and why a decree cannot be passed against him. The same view was taken in Babbar Sewing Machine Co. v. Trilok Nath Mahajan, (1978) 4 SCC 188.
Court has not to act blindly – Even if Defendant has not filed WS
Balraj Taneja v. Sunil Madan, (1999) 8 SCC 396, it is held as under:
“As pointed out earlier, the court has not to act blindly upon the admission of a fact made by the defendant in his written statement nor should the court proceed to pass judgment blindly merely because a written statement has not been filed by the defendant traversing the facts set out by the plaintiff in the plaint filed in the court. In a case, specially where a written statement has not been filed by the defendant, the court should be a little cautious in proceeding under Order 8 Rule 10 CPC. Before passing the judgment against the defendant it must see to it that even if the facts set out in the plaint are treated to have been admitted, a judgment could possibly be passed in favour of the plaintiff without requiring him to prove any fact mentioned in the plaint. It is a matter of the court’s satisfaction and, therefore, only on being satisfied that there is no fact which need be proved on account of deemed admission, the court can conveniently pass a judgment against the defendant who has not filed the written statement. But if the plaint itself indicates that there are disputed questions of fact involved in the case regarding which two different versions are set out in the plaint itself, it would not be safe for the court to pass a judgment without requiring the plaintiff to prove the facts so as to settle the factual controversy. Such a case would be covered by the expression “the court may, in its discretion, require any such fact to be proved” used in sub-rule (2) of Rule 5 of Order 8, or the expression “may make such order in relation to the suit as it thinks fit” used in Rule 10 of Order 8”. (Quoted in CN Ramappa Gowda v. CC Chandregowda, AIR 2012 SC 2528; 2012-5 SCC 265)
Does Indian Evidence Act Speak Anything as to Proofon ‘Truth of Contents’ of Documents?
Answer – No.
Indian Evidence Act ExpoundsProof on ‘Existence’ of Documents and Proof on their ‘Contents’.
TRUTH of Contents of Documents is left to the ‘Judicial Discretion’.
Key Takeaways
Evidence Act does notexpresslysay as to “TRUTH“: Indian Evidence Act and other procedural laws do not expressly say anything as to “TRUTH of contents” of documents.
Truth is left to the discretion of the court. In proper cases court can presume truth.
Presumption as to truth: Presumption as to truth of the contents of a (proved) document can be invoked in proper cases. Official record is taken as correct on the presumption that the entries thereof are made only after satisfying its truth.
Courts tosave the TRUTH: Function of the Court is to save the TRUTHfrom falsehood, and the Courts are created for the very object of finding the TRUTH.
Formal proof& Truth: Proof of documents includes –
formal proof, and
truth of its contents.
Proof by one who can vouchsafe: Generally, proof must be given through persons who can vouchsafe for the truth.
Probative value: Probative value of a document, will be a matter for the court to determine.
Admittance of contents & truth: Admission and Marking of a document may amount to admittance of its contents, but not necessarily its truth.
Legal truth & substantive truth: In a well-designed system, judicial findings of formal legal truth should coincide with substantive truth.
Inherently inadmissible document: Where an inherently inadmissible document is marked, objections thereto can be raised at a later stage.
Objection to mode of proof, and truth can be waived: The objection to mode of proof, and proof as to truth of its contents, can be waived.
Objection – earliest opportunity:The objection to mode of proof, and proof as to truth, have to be raised at the earliest opportunity.
Admitted documents : Admitted documents (admitted by opposite side) need not be proved (Sec. 58 Evid. Act).
(Proviso to Sec. 58 says that the Court can require proof of admitted facts otherwise than by such admissions.)
Common knowledge and internal evidence: Facts of common knowledge and internal evidence afforded by the contents of the document can also be invoked for placing truth of contents of documents.
Document marked, probative value may be nil: Though a document is relevant and marked without objection, or on admission, the probative value of it may be low or nil, for want of proper proof (as to both ‘existence’ and ‘truth’).
Where truth of a document is in issue: Where truth of a document is in issue, marking without objection does not absolve the duty on the concerned party to prove the truth.
PROOF – Two Types
First, Formal Proof: Proof as to existence of the document. The modes of proof of documents are governed under Sec. 64 to 73A of the Evidence Act.
Second, Substantive Proof: Proof as to truth of the contents document. Besides the formal proof, in most cases (excepting a few cases where signature, hand-writing etc. alone are considered), the court acts upon a document, only when truth of the same is established.
Generally speaking, proof as to truth of a document is to be established-
(i) by oral evidence of one who can vouchsafe the same,
(ii) by circumstantial evidence,
(iii) by invoking presumption or
(iv) by express admission by the other side.
Modes of Proof of Documents
Proof of Documents (as to, both, ‘formal proof’ and ‘truth of the contents’) can be established invoking one of the following Modes:
Admission of the person who wrote or signed the document (Sec. 17, 21, 58, 67, 70).
Evidence of a person in whose presence the document was signed or written – ocular evidence (Sec. 59).
An attesting witness (Sec. 59).
Opinion of a person who is acquainted with the writing of the person who signed or wrote (Sec. 47).
Admission made by the person who signed or wrote the document made in judicial proceedings (Sec. 32, 33).
Evidence of a handwriting expert or other opinion/scientific-evidence (Sec.45).
Evidence of a person who, in routine, has been receiving the document; or a document signed by such a person in the ordinary course of his business or official duty, though he may have never seen the author signing the document (Sec. 32, 34, 35 or 114).
Invoking (specific) presumptions under Sec. 79 to 90A.
Presumptions (general) under Sec. 114.
Circumstantial evidence: on probability or inferences (Sec. 114).
Court-comparison (Sec. 73).
Facts judicially noticeable (Sec. 56 and 57).
A fact of common-knowledge. (It does not require proof. See: Union Of India v. Virendra Bharti: 2011-2 ACC 886, 2010 ACJ 2353; Rakhal Chakraborty v. Sanjib Kumar Roy: 1998-1 GauLR 253, 1997-2 GauLT 705)
Internal evidence afforded by the contents of the document; a link in a chain of correspondence; evidence of recipient of the document. (Mobarik Ali Ahmed v. State of Bombay, AIR 1957 SC 857)
Production, Admissibility & Proof of Documents
A document to be used in court has to pass through three steps. They are:
Production of documents in court
Admittance and exhibition
Proof (formal proof and truth of contents).
ADMISSIBILITY of Documents – Objection– 2 counts
Disputes on admissibility of documents arise on 2 domains. (See: Manakishore Lalbhai v. New Era Fabrics: AIR 2015 SC 3796)
document which is ab initio (or inherently) ‘inadmissible’
document liable to be objected on ‘mode or manner of proof’.
Even if an inherently-inadmissible document is marked, objections thereto can be raised ‘at a later stage’. Mode of proof (not inherent admissibility) falls within the realm of procedural law. Therefore, objection thereto can be waived.
Inherently-Inadmissible Documents
‘Inherent-inadmissibility of documents’ arises from the following:
Irrelevancy
Non-registration.
Section 5 of the Indian Evidence Act, 1872 deals with relevancy. It reads as under:
“5. Evidence may be given of facts in issue and relevant facts — Evidence may be given in any suit or proceedings of the existence or non-existence of every fact in issue and of such other facts as are hereinafter declared to be relevant, and of no others.”
In Jainab Bibi Saheb v. Hyderally Saheb, (1920) 38 MLJ 532, it was pointed out that neither an omission by an advocate to object to giving of irrelevant and inadmissible evidence nor the failure of the tribunal to exclude it of its own motion would validate a decree based on material which the Evidence Act declares to be inherently and in substance irrelevant to the issue. It was also held in this decision that the primary rule to prove relevant facts by the evidence of witnesses is to call them before the trial Judge and examine them viva voce in the manner stated in Chapter 10 of the Evidence Act.
Documents Marked Without Objection as to its MODE OF PROOF – Effect
The law prevails in India is the following –
If documents marked without objection as to its mode of proof, it is not open to the other side to object to their admissibility afterwards.
Following are the decisive decisions in this line.
Admissibility of police reports without examining the Head Constables who covered those meetings. Those reports were marked without any objection. Hence it was not open to the respondent to object to their admissibility.
Relied on: Bhagat Ram v. Khetu Ram, AIR 1929 PC 110.
R.V.E. Venkatchalla Gounder v. Arulmighu Viswesaraswamy and V.P.Temple, (2003) 8 SCC 752 (R.C. Lahoti, Ashok Bhan, JJ.)
Photo copies were admitted in evidence ‘without foundation‘ and without objection. They cannot be held inadmissible for originals were not produced.
Relied on: Padman v. Hanwanta, AIR 1915 PC 111 P.C. Purushothama Reddiar v. S.Perumal
Smt. Dayamathi Bai v. K.M. Shaffi, AIR 2004 SC 4082
Objection to be taken at trial before document is marked as an ‘exhibit’.
Relied on: Gopal Das v. Sri Thakurji R.V.E. Venkatachalam Gounder
PC Thomas v. PM Ismail, AIR 2010 SC 905; 2009-10 SCC 239.
Non-examination and absence of “proof of acknowledgment” by the author – If no objection on ‘mode of proof’ in trial court, it will be too late (in appeal) to raise objection on the ground of mode of proof – that is, “non production of John K as a witness”
…
Rafia Sultan v. Oil And Natural Gas Commission (I.C. Bhatt, S.B. Majmudar, JJ.), 1986 ACJ 616; 1986 Guj LH 27; 1985-2 GujLR 1315
No objection about the truth of contents of Ex. 32. The witness of the defendant accepted the contents. Therefore, too late in the day to canvass that contents of Ex. 32 were not proved.
….
Sarkar on Evidence .
If copies of the documents are admitted without objection in the trial Court, no objection can be taken in appeal
Referred to in: Smt. Dayamathi Bai v. K.M. Shaffi, AIR 2004 SC 4082.
Who Should Object FIRST – Court or Opposite Side?
There is divergence of judicial opinion as to saying ‘NO’ by court to marking a document with formal defect, beforehand it is objected by the other side. Eg. Tendering copy of a document without furnishing the ‘foundational evidence’ to admit secondary evidence.
First view Court is under an obligation to exclude inadmissible materials.
H. Siddiqui v. A. Ramalingam: AIR 2011 SC 1492 (Followed in: U. Sree v. U. Srinivas: AIR 2013 SC 415.) Yeshoda v. Shoba Ram: AIR 2007 SC 1721
Second view The court cannot object first. If no objection for other side, Court cannot refrain from marking a document on its own volition or choice (on the ground of formal defect).
R.V.E. Venkatchalla Gounder v. Arulmighu Viswesaraswamy and V.P. Temple, (2003) 8 SCC 752 Smt. Dayamathi Bai v. K.M. Shaffi, AIR 2004 SC 4082. (This view is generally followed in India.)
It is pointed out in Hemendra Rasiklal Ghia v. Subodh Mody, 2009 (2) AIR Bom R 296, 2008-6 MhLJ 886 (FB) that the weight of the authorities suggests that the objection to the admissibility of evidence should be raised by the objector, and decided by the Court, at the earliest opportunity. (That is, it support the second view.)
Controversy resolved
1. The court cannot object first. If no objection for other side, Court cannot refrain from marking a document on its own volition (on the ground of formal defect).
R.V.E. Venkatchalla Gounder v. Arulmighu Viswesaraswamy and V.P.Temple, (2003) 8 SCC 752;
Smt. Dayamathi Bai v. K.M. Shaffi, AIR 2004 SC 4082.
2. If the deficiency is pertaining to non-registration of a compulsory registrable document (as it falls under the head, inadmissible document) the court can desist the marking of the document.
3. By virtue of the decision, G. M. Shahul Hameed v. Jayanthi R. Hegde, AIR 2024 SC 3339, unless the court has not applied its mind to the insufficiency of stamp, and unless there is a ‘judicial determination‘, the objection thereof can be raised at any time.
Document Liable to be Objected on ‘Mode or Manner of Proof’
Following are improper modes (liable to objection):
Seeking exhibition through one who cannot vouchsafe veracity or truth.
Objectionable (mode of) secondary evidence. Eg:
Certified copy produced without proving circumstances that entitles to give secondary evidence under Sec. 65 of the Evd. Act.
Secondary evidence other than that is recognised under Sec. 63.
Unstamped or insufficiently/improperly stamped document.
Whether Proof of Admitted Documents Includes ‘Truth’ of its Contents
Sec. 58 of the Evidence Act says that ‘Admitted facts need not be proved’. Order VIII, Rule 5 CPC stipulates that every allegation of fact in the plaint, if not denied specifically or by necessary implication, shall be taken to be admitted except as against a person under disability.
Effect of marking a document without formal proof (on admission or without objection) brings-about divergent views.
First view (a) Proof (Contents) stands established. It cannot be questioned afterwards.
(b) Truth also: See: Rafia Sultan v. Oil And Natural Gas Commission, 1986 ACJ 616; 1985-2 GujLR 1315.
(c) Admission of contents – but, does not dispense with proof of truth of its contents.
(a)RVE Venkatachala Gounder v. Arulmigu Viswesaraswami: AIR 2003 SC 4548; Narbada Devi v. Birendra Kumar: (2003) 8 SCC 745; Dayamati Bai v. K.M. Shaffi : AIR 2004 SC 4082; Oriental Insurance Co v. Premlata: (2007) 8 SCC 575; Thimmappa Rai v. RamannaRai,(2007) 14 SCC 63; KalitaIqbal Basith v. N Subbalakshmi, (2021) 2 SCC 718. (b) Rafia Sultan v. Oil And Natural Gas Commission (I.C. Bhatt, S.B. Majmudar, JJ.), 1985-2 GujLR 1315: No objection about the truth of contents … before the trial Court. … It is therefore too late in the day for Miss Shah for the Commission to canvass for the first time before us in appeal. Neeraj Dutta Vs. State (Govt. of Delhi) [2023] 4 SCC 731: If no objection as to mode of proof (secondary evidence) when marked, no such objection could be allowed to be raised at any later stage. (c) Sait Tarajee Khimchand v. Yelamarti Satyam, AIR 1971 SC 1865; Nandkishore Lalbhai Mehta v. New Era Fabrics, AIR 2015 SC 3796.
Second View Even if no objection, it does not dispense with proof (as to, both, existence of the document and its truth). In such a case the document will not be taken as proved.
(Note: It may not be legitimate to apply this principle literatim)
LIC v. Ram Pal Singh Bisen: 2010-4 SCC 491 (Filing of the Inquiry Report or the evidence adduced during the domestic enquiry); H. Siddiqui v. A. Ramalingam, (2011) 4 SCC 240 (Copy of a power of attorney alone was shown to the respondent during cross-examination and he admitted his signature thereon only, and not its contents); Mal Singhvi v. Anand Purohith: 1988 (Supp) SCC 604 (date of birth).
Third view If truth is in issue, mere proof of contents, or marking without objection, is not proof of truth.
See: Narbada Devi Gupta v. Birendra Kumar Jaiswal, 2003-8 SCC 745; Ramji Dayawala Vs. Invest Import: AIR 1981 SC 2085.
Fourth view Admission of contents, and dispenses with proof and truth; but its probative value will be a matter for appreciation by court.
See: State of Bihar v. Radha Krishna Singh, AIR 1983 SC 684 (Admission and probative value – different); Rakesh Mohindra v. Anita Beri: 2015 AIR(SCW) 6271; Kaliya v. State of MP: 2013-10 SCC 758; H. Siddiqui v. A. Ramalingam: AIR 2011 SC 1492; Rasiklal Manikchand v. MSS Food Products: 2012-2 SCC 196.
Fifth view Admission of contents, and dispenses with proof and truth; but Court should require (in proper cases) the party producing the document to adduce proper evidence, and to cure formal defects, invoking – • Sec. 165 of Evidence Act • Sec. 58 of Evidence Act • O. XII, r. 2A Proviso, CPC and • Sec. 294 of the CrPC.
See: Harkirat Singh v. Amrinder Singh, (2005) 13 SCC 511; Umesh Challiyil v. K.P. Rajendra, (2008) 11 SCC 740; KK Ramachandran Master v. MV Sreyamakumar, (2010) 7 SCC 428; AIR 2015
Objection to be Raised When Document is Admitted; Otherwise, Opportunity Lost
It was observed by the Supreme Court in 2001 in Bipin Shantilal Panchal v. State of Gujarat, AIR 2001 SC 1158, that that ‘it is an archaic practice that during the evidence collecting stage, whenever any objection is raised regarding admissibility of any material in evidence the court does not proceed further without passing order on such objection’. And the Court directed as under:
“When so recast, the practice which can be a better substitute is this: Whenever an objection is raised during evidence taking stage regarding the admissibility of any material or item of oral evidence the trial court can make a note of such objection and mark the objected document tentatively as an exhibit in the case (or record the objected part of the oral evidence) subject to such objections to be decided at the last stage in the final judgment.”
But, the subsequent decisions in RVE Venkatachala Gounder: AIR 2004 SC 4082; Dayamathi Bai (2004) 7 SCC 107 took a contra view. It was held that the objection as to ‘mode of proof’ should be taken at the time of marking of the document as an exhibit, so that the defect can be cured by the affected party.
Privy Council in Padman v. Hanwanta, AIR 1915 PC 111,held that the objection to marking of documents and its admissibility should have been taken in the trial court. It was observed as under:
“The defendants have now appeal to the Majesty in Council, and the case has been argued on their behalf in great detail. It was urged in the course of the argument that a registered copy of the will of 1898 was admitted in evidence without sufficient foundation being led for its admission. No objection, however, appears to have been taken in the first court against the copy obtained from the Registrar’s office being put in evidence. Had such objection being made at the time, the District Judge, who tried the case in the first instance, would probably have seen that the deficiency was supplied. Their lordships think that there is no substance in the present contention.”
In P.C. Purushothama Reddiar v. S Perumal, 1972 (2) SCR 646,it was observed as under:
“Counsel contended that the police reports referred to earlier are inadmissible in evidence as the Head-constables who covered those meetings have not been examined in the case. Those reports were marked without any objection. Hence it is not open to the respondent now to object to their admissibility.”
Our Apex Court held in Lachhmi Narain Singh v. Sarjug Singh, AIR 2021 SC 3873, as under:
“24. In view of the foregoing discussion, it is clear that plea regarding mode of proof cannot be permitted to be taken at the appellate stage for the first time, if not raised before the trial Court at the appropriate stage. This is to avoid prejudice to the party who produced the certified copy of an original document without protest by the other side. If such objection was raised before trial court, then the concerned party could have cured the mode of proof by summoning the original copy of document. But such opportunity may not be available or possible at a later stage. Therefore, allowing such objection to be raised during the appellate stage would put the party (who placed certified copy on record instead of original copy) in a jeopardy & would seriously prejudice interests of that party. It will also be inconsistent with the rule of fair play as propounded by Justice Ashok Bhan in the case of RVE Venkatachala Gounder v. Arulmigu, AIR 2003 SC 4548.”
Effect of marking document without objection is laid down in the following two recent decisions of the Supreme Court. In both these cases, it is seen, the Apex Court has taken the view that the ‘truth’ is also stood proved.
Neeraj Dutta v. State (Govt. of N. C. T. of Delhi)
The Constitution Bench of our Apex Court laid down in Neeraj Dutta v. State (Govt. of N. C. T. of Delhi), AIR 2023 SC 330; 2023 4 SCC 731, as under:
Section 61 deals with proof of contents of documents which is by either primary or by secondary evidence.
When a document is produced as primary evidence, it will have to be proved in the manner laid down in Sections 67 to 73 of the Evidence Act.
Mere production and marking of a document as an exhibit by the court cannot be held to be due proofof its contents. Its execution has to be proved by admissible evidence. On the other hand, when a document is produced and admitted by the opposite party and is marked as an exhibit by the court, … (sic – no objection can be raised at any later stage with regard to proofof its contents).
The contents of the document must be proved either by the production of the original document i.e., primary evidence or by copies of the same as per Section 65 as secondary evidence.
So long as an original document is in existence and is available, its contents must be proved by primary evidence.
It is only when the primary evidence is lost, in the interest of justice, the secondary evidence must be allowed.
Primary evidence is the best evidence and it affords the greatest certainty of the fact in question.
Thus, when a particular fact is to be established by production of documentary evidence, there is no scope for leading oral evidence.
What is to be produced is the primary evidence i.e., document itself. It is only when the absence of the primary source has been satisfactorily explained that secondary evidence is permissible to prove the contents of documents.
Secondary evidence, therefore, should not be accepted without a sufficient reason being given for non-production of the original.
Once a document is admitted, the contents of that document are also admitted in evidence, though those contents may not be conclusive evidence.
Moreover, once certain evidence is conclusive it shuts out any other evidence which would detract from the conclusiveness of that evidence.
There is a prohibition for any other evidence to be led which may detract from the conclusiveness of that evidence and the court has no option to hold the existence of the fact otherwise when such evidence is made conclusive.
It is held further as under:
“44. Section 64 of the Evidence Act states that documents must be proved by primary evidence except in certain cases mentioned above. ….. Thus, once a document has been properly admitted, the contents of the documents would stand admitted in evidence, and if no objection has been raised with regard to its mode of proof at the stage of tendering in evidence of such a document, no such objection could be allowed to be raised at any later stage of the case or in appeal vide Amarjit Singh v. State (Delhi Admn.) 1995 Cr LJ 1623 (Del) (“Amarjit Singh”). But the documents can be impeached in any other manner, though the admissibility cannot be challenged subsequently when the document is bound in evidence.”
In PC Thomas v. PM Ismail, AIR 2010 SC 905; 2009-10 SCC 239, it is observed as under:
“No objection on pleas of “inadmissibility” or “mode of proof” was raised at the time of their exhibition or any time later during trial, when most of the witnesses, produced by the parties were confronted with these, as duly exhibited, bearing stamp marking with particulars, prescribed under Order XIII Rule 4 of the Code of Civil Procedure, 1908 and duly signed as such.
In our opinion, it is too late in the day now to object to their exhibition on the ground of “prescribed procedure” i.e. mode of proof.
Moreover, we also find that it was nobody’s case that the said documents were got printed by John K or distributed amongst voters by him. Absence of proof of acknowledgment by him because of non production of John K as a witness, in the circumstances, in our view, is inconsequential.
Admittedly, John K was a well known leader of high stature, recognized as such by Christian/Catholic voters including those mentioned in Para 17 (supra) and, therefore, there is no question of drawing an adverse inference against the election petitioner for not examining him, as strenuously urged on behalf of the appellant, particularly when the printing and circulation of offending material (Exts.P1 and P2) has been proved by the election petitioner beyond reasonable doubt.”
Mere Execution of a document, no Conclusion Recitals are Correct
In Gangamma v. Shivalingaiah, 2005 9 SCC 359, it is held as under:
“We may furthermore notice that even if a formal execution of a document is proved, the same by itself cannot lead to a presumption that the recitals contained therein are also correct. The mere execution of a document, h in other words, does not lead to the conclusion that the recitals made therein are correct, and subject to the statutory provisions contained in Sections 91 and 92 of the Evidence Act, it is open to the parties to raise a plea contra thereto.”
Objection as to Truth of Contents, First Time In Appeal – Effect
In Rafia Sultan v. Oil And Natural Gas Commission (I.C. Bhatt, S.B. Majmudar, JJ.), 1986 ACJ 616; 1986 Guj LH 27; 1985-2 GujLR 1315 it is observed as under:
“It was never the case of the Commission that report which was submitted in a sealed cover was not the genuine and true report of the committee appointed by the Commission itself. Thus in short no objection about the truth of contents of Ex. 24/1 i. e. Ex. 32 was ever put forward before the trial Court and rightly so as that was the report of its own committee of experts appointed by the Commission for enlightening itself about the causes of the accident and about the future safety steps which were required to be taken to avoid such accidents. … Not only that but the witness of the defendant accepted the contents of the said document Ex. 32. Nothing was suggested by him or even whispered to the effect that the contents of the said report were in any way untrue. …. In fact both the sides have relied upon different parts of Ex. 32 in support of their rival contentions on the aspect of negligence and contributory negligence. It is therefore too late in the day for Miss Shah for the Commission to canvass for the first time before us in appeal that contents of Ex. 32 were not proved in accordance with law and hence the document was required to be taken off the record. It is now well settled that objection about mode of proof can be waived by a party and that such objection is raised by the party at the earliest opportunity in the trial Court such objection will be deemed to have been waived and cannot be permitted to be raised for the first time in appeal (vide P. C. Purushottamman v. S. Perumal AIR 1972 SC 608; Pandappa v. Shivlingappa 47 BLR. 962; and Gopaldas and another v. Shri Thakurli, AIR 1943 PC 83 at page 87 ). In view of this settled legal position the objection raised by Miss Shah against admissibility of Ex. 32 viz. that its contents were not proved in accordance with law has to be repelled.”
PROBATIVE VALUE of a Documentis a Matter for the Court
Etymology of ‘Probative’ is from ‘Probare’ (Latin), means to prove; and ‘Probatio’ (Latin), means experience, proof, testing, probation etc. In law, ‘probative value’ imparts –
Sufficiency of evidence to prove something in a trial.
Probability of proof or truth while appreciating a fact.
Value or weight of evidence, considered by the court, in proof of something.
Extent of evidentiary value that can be taken to prove a proffered proposition.
Whenever a document is admitted in court, the probative value thereof will be a matter for the court to determine. It is important to note that probative value may ‘include’ truth of contents of documents; but, precisely it is independent from ‘truth’ of contents of documents.
Probative Value – Date of Birth in School Register has More Value Than Horoscope
If there is a dispute regarding age, the Supreme Court, in State of Punjab v. Mohinder Singh, AIR 2005 SC 1868, held that the date of birth available in the School Admission Register has more probative value than the horoscope.
Similarly the probative value of –
FIR,
Scene-Mahazar,
Post-Mortem Report,
Photocopy of a Registered Deed, etc.,
by itself, will be lesser. In such cases the court can refrain from acting upon such documents until substantive or regular evidence is offered by examining proper witness.
In Om Prakash v. State of Punjab, 1993(2) CLR 395, and in Jora Singh v. State of Punjab, 1984(2) Crimes 837, it has been held that an entry in the school leaving certificate regarding date of birth of a student is not a conclusive proof or high ‘probityevidence’ because it is a matter of common knowledge that the date of birth given at the time of the admission of a boy or girl in a school is seldom correct and more often than not the age given is less than the actual age of the child. (See also: C. Doddanarayana Reddy v. C. Jayarama Reddy, AIR 2020 SC 1912; Commissioner of Central Excise And Service Tax v. M/S. Sanjivani Non-Ferrous Trading: AIR 2019 SC 203.)
Trial is an inquiry into the Truth
In American Jurisprudence, Second Edition, 2007, it is stated as to the purpose of ‘trial’:
“The purpose of trial is to determine the validity of the allegations. The objective is to secure a fair and impartial administration of justice between the parties to the litigation ….Trial is not a contest between lawyers but a presentation of facts to which the law may be applied to resolve the issues between the parties and to determine their rights. It is also not a sport; it is an inquiry into the truth, in which the general public has an interest.” (Quoted in: Mohammed Abdul Wahid v. Nilofer, 2024-2 SCC 144)
Definition of“Fact” – Evid. Act does Not Specifically say as to ‘TRUTH’
Though ‘Truth’ may fall under ‘Fact’, Evidence Act does not specifically say as to ‘TRUTH’ when defines ‘Fact’. Sec. 3 Evidence Act reads as under:
“Fact” —“Fact” means and includes—
.(1) any thing, state of things, or relation of things, capable of being perceived by the senses;
(2) any mental condition of which any person is conscious. Illustrations
.(a) That there are certain objects arranged in a certain order in a certain place, is a fact.
(b) That a man heard or saw something, is a fact.
(c) That a man said certain words, is a fact.
(d) That a man holds a certain opinion, has a certain intention, acts in good faith, or fraudulently, or uses a particular word in a particular sense, or is or was at a specified time conscious of a particular sensation, is a fact.
(e) That a man has a certain reputation, is a fact.
“Proof” – Evid. Act, CPC & CrPC do Not Specifically say as to ‘TRUTH’
The express provisions of the procedural laws state only ‘Proof’ as to existence and contents of documents, and not TRUTH.
Sec. 58 of the Evidence Act emphasises that ‘Admitted Facts’ (admitted by opposite side) need not be proved.
Proviso to Sec. 58 says that the Court can require proof of admitted facts otherwise than by such admissions.
Besides Sec. 58 and the powers of the court under Sec. 165 of Evidence Act, the scheme of the Procedural Acts (CPC and CrPC) shows that the court has jurisdiction to require the party concerned to prove admitted (by opposite side) documents. We can see it in –
Order VIII Rule 5 CPC
Order XII, Rule 2A(1) Proviso of the CPC and
Sec. 294 of the CrPC .
Proviso to Sec. 58 of the Indian Evidence Act provides as under:
“Provided that the Court may, in its discretion, require the facts admitted to be proved otherwise than by such admissions.”
Order VIII Rule 5 Proviso of the CPC says as under:
“Provided that the Court may in its discretion require any fact so admitted to be proved otherwise than by such admission.”
Order XII, Rule 2A(1) Proviso of the CPC says as under:
Provided that the Court may, in its discretion and for reasons to be recorded, require any document so admitted to be proved otherwise than by such admission.
Proviso to Sec. 294(3) of Code of Criminal Procedure reads as follows:
“Provided that the Court may, in its discretion, require such signature to be proved.”
Therefore, it is clear –
Admitted documents stand ‘proved’, according to procedural laws. Its existence and contents cannot be challenged by the party which admit it.
But, the Court can, in its discretion, require proof of these admitted facts (existence and contents) “otherwise than by such admissions”.
The procedural laws contemplate here – ‘Proof’ (existence and contents) and not TRUTH.
Proof must be by one who can Vouchsafe for Truth – Not Correct in All Cases
In Narbada Devi Gupta v. Birendra Kumar Jaiswal, 2003-8 SCC 745, it is held:
“Reliance is heavily placed on behalf of the appellant on Ramji Dayawala v. Invest Import: AIR 1981 SC 2085.The legal position is not in dispute that mere production and marking of a document as exhibit by the court cannot be held to be a due proof of its contents. Its execution has to be proved by admissible evidence, that is, by the evidence of those persons who can vouchsafe for the truth of the facts in issue”.
Though it is the “normal principle” that Proof must be by one who can vouchsafe for truth (Assistant Commissioner of Customs v. Edwin Andrew Minihan, ILR 2024-1 Ker 596; 2023-7 KHC 512; 2024-1 KLT 24), it may not be correct in all cases; because, there may be cases where proof (as to ‘existence and contents’ of a document) can be given by a witnesses who cannot vouchsafe truth – e.g., a letter or a deed obtained by a witness in ‘due/common course’. In such cases, when ‘truth’ as to the contents of a document is in dispute, it has to be proved by a competent person.
Time for Consideration of ‘Truth‘ by the Court
In any case, the truth of the contents of a document is not considered by the court at the time of marking a document; and, it comes for consideration at the fag end, while considering entire evidence on the matter including the cross examination of the witness through whom the document is marked.
In Harendra Rai v. State of Bihar, , AIR 2023 SC 4331, 2023- 9 SCC 702, it is observed as under:
“At the stage of evidence, when any document/paper is formally produced for being treated as a piece of evidence, the Court looks at two basic aspects. Firstly, the existence of the document on the Court’s record and, secondly, the proof of its execution or its contents being sufficiently deposed to by a witness having requisite knowledge thereof, whereafter, the document in question is marked as exhibit. At the stage of exhibiting any document as a piece of evidence, the truth of what is stated in the document is not considered. It is left open to final evaluation at the trial after cross-examination, and the entire testimony of the witness about the existence and contents of the document is weighed in conjunction with various other factors emerging during a trial. At the final evaluation stage, the Trial Court concludes whether the document speaks the truth and decides what weight to give it for final decision. In other words, its evidentiary value is analysed by the Courts at the time of final judgment. In this view of the matter, the marking of a piece of evidence as ‘exhibit’ at the stage of evidence in a Trial proceeding is only for the purpose of identification of evidence adduced in the trial and for the convenience of the Court and other stakeholders in order to get a clear picture of what is being produced as evidence in a Trial proceeding.”
Courts are Created for the Very Object of Finding TRUTH
Following decisions of our Apex Court bespeak, as to the significance of TRUTH in judicial determinations, as under:
It is the function of the Court to save the truth from falsehood–
Bhagwan Tana Patil v. State of Maharashtra, AIR 1974 SC 1974
There is a legal duty for the courts to find the truth and administer justice–
Mohanlal Shamji Soni v. Union of India, 1991 Supp (1) SCC 271.
The Courts are created for the very object of finding the truth–
Mohan Singh v. State of MP, (1999) 2 SCC 428.
Right from the inception of the judicial system establishment of truth is the main purposes underlying existence of Courts of justice–
Zahira Habibullah Sheikh v. State of Gujarat, (2006) 3 SCC 374.
The trial should be a search for the truth–
Himanshu Singh Sabharwal v. State of Madhya Pradesh, (2008) 3 SCC 602,
The people would have faith in Courts when they would find that truthalone triumphs in Courts–
Chandra Shashi v. Anil Kumar Verma, (1995) 1 SCC 421.
The truth should be the guiding starin the entire legal process and it is the duty of the Judge to discover truth to do complete justice–
Maria Margarida Sequeria Fernandes v. Erasmo Jack de Sequeria, (2012) 5 SCC 370,.
It is the bounden duty of the Court to uphold the truth and do justice–
Shanmugam v. Ariya Kshatriya, (2012) 6 SCC 430.
Now a question comes – Which provision of the Indian Evidence Act deals with ‘deducing or deriving’ TRUTH ?
In such an inquisition, we legitimately arrive at in-
(i) the definition of “Proved” in Sec. 3, and
(ii) “Presumption” in Sec. 114, Evidence Act.
The definition of “Proved” in Sec. 3 gives vast discretion to the court. It reads as under:
” ‘Proved‘ — A fact is said to be proved when, after considering the matters before it, the Court; either BELIEVES it to exist, or CONSIDERS its existence so PROBABLE that a prudent man ought, under the circumstances of the particular case, to act upon the supposition that it exists.”
To fulfill the prime and onerous duty on the court, that is deducing or deriving TRUTH from the disputed matters, the Evidence Act further enables and authorises the court to invoke PRESUMPTION under Sec. 114 Evidence Act, wherever it is required.
Sec. 114 reads as under:
“114. Court may presume existence of certain facts —The Court may PRESUME the existence of any fact which it thinks likely to have happened, regard being had to the common course of natural events, human conduct and public and private business, in their relation to the facts of the particular case.”
Presumption of Truth is taken ‘on something Proved‘, or taken for granted
In Izhar Ahmad Khan v. Union of India, AIR 1962 SC 1052, the Supreme Court definitely observed that presumption of truth is taken ‘on something proved or taken for granted ‘. It reads as under:
“The term ‘presumption’ in its largest and most comprehensive signification, may be defined to mean inference, affirmative or dis-affirmative of the truth or falsehood of a doubtful fact or proposition drawn by a process of probable reasoning from something proved or taken for granted.”
The Apex Court further quoted James Bradley Tayer (American jurist and author of Treatise on Evidence) which reads as under:
“Presumptions are aids to reasoning argumentation, which assume the truth of certain matters for the purpose of some given inquiry. …”.
In State of West Bengal v. Mir Mohammad Omar, 2000-8 SCC 382, it is observed as under:
“33. Presumption of fact is an inference as to the existence of one fact from the existence of some other facts, unless the truthof such inference is disproved. Presumption of fact is a rule in law of evidence that a fact otherwise doubtful may be inferred from certain other proved facts. When inferring the existence of a fact from other set of proved facts, the court exercises a process of reasoning and reach a logical conclusion as the most probable position. The above principle has gained legislative recognition in India when Sec. 114 is incorporated in the Evidence Act. It empowers the court to presume the existence of any fact which it thinks likely to have happened. In that process court shall have regard to the common course of natural events, human conduct etc. in relation to the facts of the case.”
TRUTH is left to Discretion or Presumption of Court
Sec. 67, Evidence Act lays down the fundamental principles as to the proof of documents. Sec. 67 reads as under:
“67. Proof of signature and handwriting of person alleged to have signed or written document produced—If a document is alleged to be signed or to have been written wholly or in part by any person, the signature or the handwriting of so much of the document as is alleged to be in that person’s handwriting must be proved to be in his handwriting.”
Sec. 67 says as to ‘proof of signature and handwriting’ alone. Neither Sec. 67 nor any other section of the Ev
In this premise, it is legitimate to deduce the following inferences –
Evidence Act does not expressly proffer anything as to “TRUTH of contents” of documents.
It is left to the discretion (Sec. 3) of the court. In proper cases court can presume (Sec. 114) truth.
In most cases, ‘proof of execution’ may lead the court to presume ‘proof of truth’.
It is more so, when a document is admitted (by the other side) without objection.
But, when proof as to ‘truth’ is in issue, or in dispute, the party in whom the burden thereof rests has to discharge it.
Our Apex Court in Mahasay Ganesh Prasad Ray v. Narendra Nath Sen, AIR 1953 SC 431, while dealing with 30-year-old Book of Accounts, though it came from the possession of its keeper, held as under:
“3. … … … Exhibit 32 series as noticed by the High Court, consists of loose sheets of papers. They have not the probative force of a book of account regularly kept. Being old documents, naturally, the writer is not called and barring the fact that they were produced from the Receiver’s possession there is nothing to show their genuineness. Section 90, Evidence Act, does not help the appellants because this is not a case where the signature of a Particular person is in question or sought to be established. … …”.
In Harihar Prasad Singh v. Deonarain Prasad, AIR 1956 SC 305, the Apex Court observed as under:
“8. Strong reliance was placed by the respondents on Exhibits F-1 and F-1(1), which are khatians relating to the suit lands published on 7-12-1909, recording them as in the possession of the defendants of the second party as ‘kaimi’ and on the presumption under S. 103-B that entry is correct.
Court to invoke Presumptions Judiciously
Though discretionary presumptions (such as those under Section 114 of the Indian Evidence Act) do not bind the court, judicial discretion is not unbridled. As a matter of principle, such presumptions should not be ignored without justification.
The court –
is expected to assess whether the circumstances warrant drawing the presumption and record its reasons thereof; and
cannot disregard available presumptions, without furnishing adequate justification.
“Reason is the heartbeat of every conclusion, and without the same it becomes lifeless”: (Arijit Pasayat J.) AIR 2008 SC 1589, 2008 (15) SCC 711, and Raj Kishore Jha v. State of Bihar, 2003 (7) Supreme 152.
See also: State of U.P. v. Battan,2001 (10) SCC 607; State of Maharashtra v. Vithal Rao Pritirao Chawan, AIR 1982 SC 1215; Jawahar Lal Singh v. Naresh Singh, 1987 (2) SCC 222.
In Rathish Babu Unnikrishnan v. State (Govt. of NCT of Delhi), 2023 CrLJ 311; 2022-4 JT 477; 2022-6 Scale 794; 2022-4 SCR 989, it is held as under:
“In any case, when there is legal presumption, it would not be judicious for the quashing Court to carry out a detailed enquiry on the facts alleged, without first permitting the trial Court to evaluate the evidence of the parties. The quashing Court should not take upon itself, the burden of separating the wheat from the chaff where facts are contested. To say it differently, the quashing proceedings must not become an expedition into the merits of factual dispute, so as to conclusively vindicate either the complainant or the defence.”
‘Loose and Unfettered Discretion is a Dangerous Weapon‘
In Naresh Chandra Mital v. Bishamber Nath Chopra, 1966-2 DLT 352, it is observed as under:
“The Court has in exercising its discretion to keep in view the desirability of facilitating speedy decisions of suits upon bills of exchange, promissory notes and hundis and also to keep in view the drastic nature of the provisions contained in Rules 2 and 3 of Order 37. The presumption of consideration in the case of negotiable instruments on the one hand and the plea of the defendant and the attending circumstances tending to discount such presumption have to be considered and weighed judiciously by the Court. In otherwords, the Court has to exercise judicial discretion, keeping in view the basic dictates of justice when determining the question whether or not to permit the defendant to contest the suit and if so, whether unconditionally or on terms and what terms. The idea of discretion, which is always to be exercised in a disciplined and responsible manner, really represents a compromise between the idea that those who possess power should be trusted with free hand and not tied down to narrow and rigid groves and the competing notion that loose and unfettered discretion is a dangerous weapon to entrust to any one including Courts.”
Adjudication to Find Out Truth & Doctrines of Substantive Rights, Prejudice to Other Side, Procedure – a Handmaid Matter
In Jai Jai Ram Manohar Lal, (1969) 1 SCC 869 our Apex Court held, while dealing with amendment of pleadings, as under:
“5. …. Rules of procedure are intended to be a handmaid to the administration of justice. A party cannot be refused just relief merely because of some mistake, negligence, inadvertence or even infraction of the Rules of procedure. (Quoted in Varun Pahwa v. Renu Chaudhary, AIR 2019 SC 1186)
In Uday Shankar Triyar v. Ram Kalewar Prasad Singh, (2006) 1 SCC 75, our Apex Court held that procedural defects and irregularities which are curable should not be allowed to defeat substantive rights or to cause injustice. Procedure should never be made a tool to deny justice or perpetuate injustice by any oppressive or punitive use. The Court held as under:-
“17. Non-compliance with any procedural requirement relating to a pleading, memorandum of appeal or application or petition for relief should not entail automatic dismissal or rejection, unless the relevant statute or rule so mandates. Procedural defects and irregularities which are curable should not be allowed to defeat substantive rightsor to cause injustice.
Procedure, a handmaiden to justice, should never be made a tool to deny justice or perpetuate injustice, by any oppressive or punitive use. The well-recognised exceptions to this principle are:
.(i) where the statute prescribing the procedure, also prescribes specifically the consequence of non- compliance;
(ii) where the procedural defect is not rectified, even after it is pointed out and due opportunity is given for rectifying it;
(iii) where the non-compliance or violation is proved to be deliberate or mischievous;
(iv) where the rectification of defect would affect the case on merits or will affect the jurisdiction of the court;
(v) in case of memorandum of appeal, there is complete absence of authority and the appeal is presented without the knowledge, consent and authority of the appellant.” (Quoted in Varun Pahwa v. Renu Chaudhary, AIR 2019 SC 1186.)
Adjudication is to Render Justice; it is Unmindful of Consequences
It was held by the Kerala High Court in Gopalakrishnan v. Joint Registrar of Co operative Societies (General), 08 Dec 2015, (Dama Seshadri Naidu, J) as under:
“23. I am very conscious that this Court, as a constitutional adjudicatory machinery, is called upon to interpret the statute straight and simple and render justice. Justice is not an inventive judicial instrument; it is rather a necessary corollary to the judicious application of the law to the facts following certain accepted cannons of construction of the statutes and the Constitution, too. The whole process is compendiously called judicial adjudication. Trite is the truth that adjudication is unmindful of consequences; it is, on the other hand, in the legislative wisdom to consider all the eventualities and bring about legislation or legislative changes to see that the varied needs of the organisations and institutions, including the administrative agencies, are best served—adverse fallout on the application of law is avoided.
Sec. 90, Evid. Aact – Not Truth of Contents; But, Genuineness Drawn
Under Sec. 90, Not Truth of Contents, but, only presumption of Genuineness of a document (i.e., existence or handwriting), is drawn (Union of India v. Ibrahim Uddin: (2012) 8 SCC 148). Therefore, besides TRUTH, the contents of the documents also have to be proved by cogent evidence.
No doubt, under Sec. 114, TRUTH can be presumed, directly, in proper cases, in their peculiar ensuring facts (regard being had to the common course of natural events, human conduct and public and private business, in their relation to the facts of the particular case).
That is, if the document is a public document an “added presumption” (as to correctness) under Section 114(e) is available -KalitaIqbal Basith and others v. N Subbalakshmi, (2021) 2 SCC 718.
Sec. 90 CPC, basically, speaks about two things – as regards 30-year-documents:
1. A document purports to be in the handwriting of any particular person is presumed to be in his handwriting.
2. A document purports to be executed or attested is presumed to be duly executed and attested.
Our Courts Act Upon ‘LEGAL TRUTH’; and not ‘ULTIMATE TRUTH’
As shown above, the very duty of a court is to find TRUTH. Our courts are said to be functioning in ‘adversarial system’ where advocates present the case of their parties before an impartial judge for determining the truth and for getting a judgment accordingly. In such a system, the courts are concerned with ‘PROCEDURAL TRUTH’ or ‘LEGAL TRUTH’ as emerged from the pleadings and evidence; and not ULTIMATE TRUTH.
In State of Rajasthan v. Asharam @ Ashumal, AIR 2023 SC 2228, it is observed as under:
“In a well-designed system, judicial findings of formal legal truth should coincide with substantive truth.” (Also see: Kailash Vijayvargiya v. Rajlakshmi Chaudhuri, 2023-6 JT 138.)
Viscount Simon LC, explained it in Hickman v. Peacey, [1945] AC 304, as under:
“A court of law … is not engaged in ascertaining ultimate verities: it is engaged in determining what is the proper result to be arrived at, having regard to the evidence before it.”
Conjectures and Suspicion Should Not take the place ofLegal Truth.
In Ritesh Chakarvarti v. State of Madhya Pradesh, 2007-1 SCC(Cr) 744, our Apex Court warned as under:
“There is another aspect of the matter, which cannot be lost sight of. While dealing with a case of grave nature like the present one, there is always a danger that conjectures and suspicion may take the place oflegal truth.” (See also: Aloke Nath Dutta v. State of West Bengal, 2007-12 SCC 230.)
Subjective Satisfaction and Objective Consideration by the Court
It is evident from Sec. 3 of the Indian Evidence Act that TRUTH (or otherwise) of a disputed matter is left to the Subjective Satisfaction of the court. The definition of ‘proved’ in Sec. 3 of the Evidence Act says that ‘a fact is said to be proved when (after considering the matter before it) the court either believes it to exist, or considers its existence so probable that a prudent man ought, under the circumstances of the particular case, to act upon the supposition that it exists’. Further, S.114 of the Evidence Act allows the court to presume the existence of any fact which it thinks likely to have happened regard being had to the common course of natural events, human conduct, etc.
The Evidence Act itself lays down the objective methods, including adequate restrictions, to arrive at the subjective satisfaction to determine the truth. The definition of ‘proved’ itself provides for ‘consideration of the matters before it’. The provision in Sec. 27 which bars the use of statement, given to police while an accused is in custody, is an important restriction in that line.
In Karunakaran v. State, (1960) 2 Ker LR 247, it is observed as under:
“The practice of attestation of confessional statement by witnesses is an objectionable one. It prejudices the accused to safeguard whose interest the Legislature has enacted Ss. 24 fo 26 of the Evidence Act. It has no legal sanction behind it. There is no harm in recording the accused’s statement in the first person at any great length in the case diary when the accused is arrested and questioned and in the preamble to the recovery mahazar reference to the reasons leading to the recovery may be made.
The whole thing appears to be an “intentional whittling down” of the wholesome provisions of Ss. 25 and 26 of the Evidence Act. It is very easily said that the incriminating portion of a lengthy confessional “statement should be excluded. But it is a very difficult mental process to close your eyes to the details in the confessional statement and see only the bracketed portion and remain uninfluenced by the confession of the accused. This feat is possible of performance only by a few specially trained experts. There is no reason why the overburdened judicial officers should be saddled with an additional burden which has not the support of law or procedure.” (Quoted in: Mohammed v. State of Kerala, 1963 Cri LJ 175; Thadiyanevida Nazeer @ Ummer Haji v. State of Kerala (2022) and K Babu v. State of Kerala, 2023(6) KLT 96)
Our Courts Apply Different ‘STANDADARDS of Proof’
In the process to take a fact ‘proved’, ‘disproved’, or ‘not proved’ the courts have to weigh probabilities. In Bater v Bater, (1950) 2 All ER 458, Lord Denning pointed out – ‘there is no absolute standard’, and higher degree of proof is required for more serious matters like criminal cases. Therefore, the courts apply different ‘STANDADARDS of Proof’ in different cases and the courts use distinctive scales in the judicial process of pondering on probabilities.
From the above, it can be concluded –
‘Proof of Documents’ envisaged in the Evidence Act is proof of ‘facts’ as to the ‘existence’ or ‘contents’ of a document.
TRUTH of contents of documents being remain in the judicial discretion, it could not have been expressly or directly dealt with in Evidence Act with precision.
According to Sec. 3 of the Evidence Act ‘a fact is said to be proved when, after consideringthe matters before it, the Court either BELIEVES it to exist, or CONSIDERS its existence so PROBABLE that a prudent man ought under the circumstances of the particular case to act upon the supposition that it exists …’.
According to Sec. 114 of the Evidence Act ‘the Court may presume the existence of any fact which it THINKS likely to have happened,regard being had to the common course of natural events, human conduct, and public and private business …’
That is, TRUTH (or otherwise) of a disputed point is left to the SUBJECTIVE SATISFATION of the court inasmuch as the question whether a fact is proved (or not) is left to the evaluation of the court. Further, the court is specifically required to appraise – how a prudent man in the given circumstances “acts upon“. The court is also authorised to presume the existence of any fact which it thinks likely to have happened “regard being had to thecommon course of natural events, human conduct” etc.
It is equally important – TRUTH of a disputed item is to be appreciated on the legal (subjective) reasoning after OBJECTIVE“considerationof the matters before it” (Sec. 3 Evid. Act).
OldDocument: Recent Challenge – Direct Evidence Need Not Be as Strong as might be Naturally Expected in a Recent Transaction.
In Jagna Sanyasiah v. Mycherla Peda Atchanna Naidu, AIR 1921 Mad 624, it is held as under:
“5. The respondents’ contention in their memorandum of objections would, in my opinion, have to be allowed as the passing of consideration for a document which is more than 30 years old and which was ever questioned till this suits was brought should be taken as proved even if the direct evidence is not as strong as might be naturally expected in respect of recent transactions.”
Mechanical Interpretation with Dictionary and Grammar Inadequate
MH Beg, J. (as he then was) in Rishi Kesh Singh v. The State, AIR 1970 All. 51, pointed out as under:
“100. The concepts of ‘proved’, ‘disproved’, and ‘not proved,’ defined in alluringly simple terms in the Act, compress a great deal of judicial wisdom with history and processes of evolution and development behind them which have not yet ended. …. It is obvious that a mechanical interpretation with the help of a dictionary and rules of grammar, found to be inadequate on several occasionsby our Supreme Court (e.g. Deputy Custodian Evacuee Property New Delhi v. Official Receiver of the Estate of Daulat Ram Surana, AIR 1965 SC 951 at p. 957; Kanwar Singh v. Delhi Administration, AIR 1965 SC 871 at p. 875; R.L. Arora v. State of U. P., AIR 1964 SC 1230 at p. 1237; State of U. P. v. C. Tobit. AIR 1958 SC 414), may not suffice here also.”
Facts of Common Knowledge and Internal Evidence
The following things can also be invoked for placing ‘truth’ of contents of documents –
The matters of common knowledge (It does not require proof. See: Union of India v. Virendra Bharti: 2011-2 ACC 886, 2010 ACJ 2353; Rakhal Chakraborty v. Sanjib Kumar Roy: 1998-1 GauLR 253, 1997-2 GauLT 705) and
internal evidence afforded by the contents of the document (a link in a chain of correspondence; recipient of the document – Mobarik Ali Ahmed v. State of Bombay, AIR 1957 SC 857).
Admissibility of a Document is One Thing and its Probative (Proof) Value Quite Another
Admittance of documents in evidence, and its proof are two different matters. In Baldeo Sahai v. Ram Chander, AIR 1931 Lahore 546, it is held as under:
“There are two stages relating to documents. One is the stage when all the documents on which the parties rely are filed by them in Court. The next stage is when the documents proved and formally tendered in evidence. The word “proved” has been used by the Division Bench in the sense of ‘proposed to be proved’ as is clear from its having been used along with the word ‘tendered’ or “admitted” in evidence. The word proved has been loosely used for describing the stage after fling of the documents, when the Court would decide only whether they should be admitted or rejected. The Division Bench cannot be read as holding that the document is not to be endorsed with an Exhibit number unless and until proved. As stated hereinabove, the stages of tendering/admitting/rejecting in evidence and holding a document proved – are two distinct and different stages, not one. They are respectively the second and third stages. Admission of a document in evidence is not to be confused with proof of a document.”
Kaliya v. State of Madhya Pradesh, 2013-10 SCC 758– Victim in a murder case had been admitted in the hospital with burns. The dying declaration was recorded by the Doctor. The original dying declaration had not been filed by the prosecution and the carbon copy was produced. The Doctor deposed that even after conducting an extensive search, the original dying declaration could not have been traced. Pointing out that the secondary evidence can be adduced in any form, provided it is authenticated by foundational evidence that the alleged copy is in fact a true copy of the original, the Apex Court held as under:
“Section 65(c) of the Act 1872 provides that secondary evidence can be adduced relating to a document when the original has been destroyed or lost, or when the party offering evidence of its contents cannot, for any other reason, not arising from his own default, or neglect, produce it in reasonable time. The court is obliged to examine the probative value of documents produced in court or their contents and decide the question of admissibility of a document in secondary evidence. (Vide: H. Siddiqui (dead) by Lrs. v. A. Ramalingam, AIR 2011 SC 1492; and Rasiklal Manikchand Dhariwal & Anr. v. M.S.S. Food Products, (2012) 2 SCC 196).
In Rasiklal Manikchand Dhariwal v. M.S.S. Food Products, (2012) 2 SCC 196, it was held as under:
“Proviso appended to sub-rule (1) of Rule 4 of Order XVIII further clarifies that where documents are filed and the parties rely upon the documents, the proof and admissibility of such documents which are filed along with the affidavit shall be subject to the order of the court.”
In State of Bihar v. Radha Krishna Singh, AIR 1983 SC 684, it is observed:
“Admissibility of a document is one thing and its probative value quite another—these two aspects cannot be combined. A document may be admissible and yet may not carry any conviction and weight or its probative value may be nil.” (Quoted in: H. Siddiqui (dead) by Lrs. v. A. Ramalingam, AIR 2011 SC 1492)
E.g. – A per se ‘objectionable document’ marked without objection; un-cross-examined testimony of a witness; Photocopy of a deed certified copy of which is provided in law.
In Life Insurance Corporation of India v. Rampal Singh Bisen, (2010) 4 SCC 491, it is held as under:
“26. We are of the firm opinion that mere admission of document in evidence does not amount to its proof. In other words, mere marking of exhibit on a document does not dispense with its proof, which is required to be done in accordance with law. As has been mentioned herein above, despite perusal of the record, we have not been able to come to know as to under what circumstances respondent plaintiff had admitted those documents. Even otherwise, his admission of those documents cannot carry the case of the appellants any further and much to the prejudice of the respondent.
27. It was the duty of the appellants to have proved documents Exh. A-1 to Exh. A-10 in accordance with law. Filing of the Inquiry Report or the evidence adduced during the domestic enquiry would not partake the character of admissible evidence in a court of law. That documentary evidence was also required to be proved by the appellants in accordance with the provisions of the Evidence Act, which they have failed to do.”
“31. Under the Law of Evidence also, it is necessary that contents of documents are required to be proved either by primary or by secondary evidence. At the most,admission of documents may amount to admission of contents but not its truth. Documents having not been produced and marked as required under the Evidence Act cannot be relied upon by the Court. Contents of the document cannot be proved by merely filing in a court.”
Marking Document Without Objection– Not Dispense with Proof of Contents
When a document is marked without objection –
the affected party is precluded from raising objection to the existence of the document and its contents.
Still, he can point out – mere admission of a document in evidence does not amount to its proof; and the probative value of it is low or nil, for want of proper proof.
In Sait Tarajee Khimchand v. Yelamarti Satyam, AIR 1971 SC 1865, the Supreme Court observed that mere marking of documents (day book and ledger) as exhibits do not dispense with the proof of documents. In Nandkishore Lalbhai Mehta v. New Era Fabrics, AIR 2015 SC 3796, it is observed that mere marking as exhibit and identification of executor’s signature by one of witnesses do not prove contents of a document.
In Smt. Dayamathi Bai v. KM Shaffi, AIR 2004 SC 4082, it is observed as under:
“In the present case the objection was not that the certified copy of Ex.P1 is in itself inadmissible but that the mode of proof was irregular and insufficient. Objection as to the mode of proof falls within procedural law. Therefore, such objections could be waived. They have to be taken before the document is marked as an exhibit and admitted to the record (See: Order XIII Rule 3 of Code of Civil Procedure). This aspect has been brought out succinctly in the judgment of this Court in RVE Venkatachala Gounder v. Arulmigu Viswesaraswami & VP Temple & Another reported in [(2003) 8 SCC 752] to which one of us, Bhan, J., was a party vide para 20:
“20. The learned counsel for the defendant-respondent has relied on Roman Catholic Mission v. State of Madras [AIR 1966 SC 1457] in support of his submission that a document not admissible in evidence, though brought on record, has to be excluded from consideration. We do not have any dispute with the proposition of law so laid down in the abovesaid case. However, the present one is a case which calls for the correct position of law being made precise. Ordinarily, an objection to the admissibility of evidence should be taken when it is tendered and not subsequently. The objections as to admissibility of documents in evidence may be classified into two classes:
(i) an objection that the document which is sought to be proved is itself inadmissible in evidence; and
(ii) where the objection does not dispute the admissibility of the document in evidence but is directed towards the mode of proof alleging the same to be irregular or insufficient.
In the first case, merely because a document has been marked as “an exhibit”, an objection as to its admissibility is not excluded and is available to be raised even at a later stage or even in appeal or revision.
In the latter case, the objection should be taken when the evidence is tendered and once the document has been admitted in evidence and marked as an exhibit, the objection that it should not have been admitted in evidence or that the mode adopted for proving the document is irregular cannot be allowed to be raised at any stage subsequent to the marking of the document as an exhibit.
The latter proposition is a rule of fair play. The crucial test is whether an objection, if taken at the appropriate point of time, would have enabled the party tendering the evidence to cure the defect and resort to such mode of proof as would be regular. The omission to object becomes fatal because by his failure the party entitled to object allows the party tendering the evidence to act on an assumption that the opposite party is not serious about the mode of proof. On the other hand, a prompt objection does not prejudice the party tendering the evidence, for two reasons: firstly, it enables the court to apply its mind and pronounce its decision on the question of admissibility then and there; and secondly, in the event of finding of the court on the mode of proof sought to be adopted going against the party tendering the evidence, the opportunity of seeking indulgence of the court for permitting a regular mode or method of proof and thereby removing the objection raised by the opposite party, is available to the party leading the evidence. Such practice and procedure is fair to both the parties.
Out of the two types of objections, referred to hereinabove, in the latter case, failure to raise a prompt and timely objection amounts to waiver of the necessity for insisting on formal proof of a document, the document itself which is sought to be proved being admissible in evidence. In the first case, acquiescence would be no bar to raising the objection in a superior court.”
In Kaliya v. State of Madhya Pradesh, 2013-10 SCC 758, it is held as under:
“However, the secondary evidence of an ordinary document is admissible only and only when the party desirous of admitting it has proved before the court that it was not in his possession or control of it and further, that he has done what could be done to procure the production of it. Thus, the party has to account for the non-production in one of the ways indicated in the section. The party further has to lay down the factual foundation to establish the right to give secondary evidence where the original document cannot be produced. When the party gives in evidence a certified copy/secondary evidence without proving the circumstances entitling him to give secondary evidence, the opposite party must raise an objection at the time of admission. In case, an objection is not raised at that point of time, it is precluded from being raised at a belated stage.
Further, mere admission of a document in evidence does not amount to its proof. Nor, mere marking of exhibit on a document does not dispense with its proof, which is otherwise required to be done in accordance with law. (Vide:
The Roman Catholic Mission v. The State of Madras, AIR 1966 SC 1457;
Marwari Khumhar & Ors. v. Bhagwanpuri Guru Ganeshpuri & Anr., AIR 2000 SC 2629;
R.V.E. Venkatachala Gounder v. Arulmigu Viswesaraswami and V.P. Temple & Anr., AIR 2003 SC 4548;
Smt. Dayamathi Bai v. K.M. Shaffi, AIR 2004 SC 4082; and
Life Insurance Corporation of India v. Rampal Singh Bisen, (2010) 4 SCC 491).”
Execution of a Document – Question of Fact; Can be proved by Circumstantial Evidence Also
In Kishan Arjuna Khansole v. Ababuwa Baba Khansole, 2000-4 BomCR 433; 2000-4 MhLJ 854, it is pointed out that the execution of a document is a question of fact and can be proved like any other fact by direct as well as circumstantial evidence.
TRUTH has to be Established, Despite Waiver of Formal Proof
No doubt, presumption in Sec. 114 Evidence Act is wide enough, in the circumstance of a particular case, to presume ‘truth’ of contents of a ‘proved’ document.
In Dibakar Behera v. Padmabati Behera, AIR 2008 Ori 92, it is observed as under [referring various judgments including RVE Venkatachala Gounder v. Arulmigu Viswesaraswami, AIR 2003 SC 4548, Dayamati Bai v. K.M. Shaffi, 2004 SC 4082, Bhagyarathi Das v. Agadhu Charan Das, 62 (1986) CLT 298, Budhi Mahal v. Gangadhar Das, 46 (1978) CLT 287]:
“A close reading of the above noted judicial pronouncements would show that whenever a document is marked as exhibit without objection, it will be presumed that a party having right of objection has waived formal proof of the document and in such situation, the entire contents of the document would be admissible in evidence. However, by such admission of document, the truth and correctness of the contents by itself would not be established and there must be some evidence to support the contents of such document.”
IF ‘TRUTH’ IS IN ISSUE – Mere Marking Not Amounts to ‘Waiver’
IF the TRUTH is IN ISSUE mere proof of handwritingor execution not evidence of truth: IF the TRUTH of the facts stated in a document is IN ISSUE mere proof of the hand-writing and execution of the document would not furnish evidence of the truth of the facts or contents of the document.
In Ramji Dayawala v. Invest Import: AIR 1981 SC 2085, it us held as under:
“If the truth of the facts stated in a document is in issue mere proof of the handwriting and execution of the document would not furnish evidence of the truth of the facts or contents of the document. The truth or otherwise of the facts or contents so stated would have to be proved by admissible evidence, i.e. by the evidence of those persons who can vouchsafe for the truth of the facts in issue.”
If ‘truth’ is in issue, or in dispute, marking without objection by itself does not absolve the duty to prove the truth as to the contents of the documents. (See: Achuthan Pillai v. Marikar (Motors) Ltd., AIR 1983 Ker 81, 1976 Cr.LJ 1507; 2016 (1) Gau. LJ 88, 2012(1) CTC 53; 2013-1 KLT 293.)
Secondary Evidence Relating to the Contents of a Document
Secondary evidence relating to the contents of a document is inadmissible, until the non-production of the original is accounted for. The secondary evidence must be authenticated by foundational evidence that the alleged copy is in fact a true copy of the original. Mere admission of a document in evidence does not amount to its proof. Therefore, the documentary evidence is required to be proved in accordance with law.
The court has an obligation to decide the question of admissibility of a document in secondary evidence before making endorsement thereon. [H. Siddiqui v. A. Ramalingam: AIR 2011 SC 1492; Nandkishore Lalbhai Mehta v. New Era Fabrics: AIR 2015 SC 3796]
In Rakesh Mohindra v. Anita Beri, 2015 AIR(SCW) 6271, it is held:
“Mere admission of secondary evidence, does not amount to its proof. The genuineness, correctness and existence of the document shall have to be established during the trial and the trial court shall record the reasons before relying on those secondary evidences.”
Court Examines Probative Value of Secondary Evidence
It is well settled that if a party wishes to lead secondary evidence, the Court is obliged to examine the probative value of the document produced in the Court or their contents and decide the question of admissibility of a document in secondary evidence [Rakesh Mohindra v. Anita Beri: 2015 AIR(SCW) 6271].
Admissionmay Dispense with Proof; but Probative Value May Be Less or Nil
The discretion vested with the court to take presumption and evaluate probative value are to be exercised judiciously.
Contents of the document cannot be proved by mere filing the document in a court. Under the Law of Evidence, it is necessary that contents of documents are required to be proved either by primary or by secondary evidence. Mere marking a document as an ‘exhibit’ will not absolve the duty of to prove the documents in accordance with the provisions of the Evidence Act. At the most, marking ‘exhibit’may amount to proof of contents, but not its truth.
Documents which are not produced and marked as required under the Evidence Act cannot be relied upon by the Court.
See: LIC v. Ram Pal Singh Bisen, 2010-4 SCC 491 (Filing of the Inquiry Report or the evidence adduced during the domestic enquiry);
M. Chandra v. M. Thangamuthu. Nandkishore Lalbhai Mehta Vs.New Era Fabrics, AIR 2015 SC 3796;
Birad Mal Singhvi v. Anand Purohitb, 1988 (Supp) SCC 604 (date of birth).
Even when a document is technically admitted in court, the probative value thereof will always be a matter for the court to determine. That is, it is depended upon the nature of each case. The probative value of Scene-Mahazar, Postmortem Report, photocopy of a Registered Deed etc. without supporting legal evidence may be lesser. In such cases the court can refrain from acting upon such documents until regular evidence is tendered.
In Life Insurance Corporation of India v. Ram Pal Singh Bisen, 2010-4 SCC 491, it is observed as under:
“26. We are of the firm opinion that mere admission of document in evidence does amount to its proof. In other words, mere marking of exhibit on a document does dispense with its proof, which is required to be done in accordance with law. …..
27. It was the duty of the appellants to have proved documents Exh.-A-1 to Exh. A-10 in accordance with law. Filing of the Inquiry Report or the evidence adduced during the domestic enquiry would partake the character of admissible evidence in Court of law. That documentary evidence was also required to be proved by the appellants in accordance with the provisions of the Evidence Act, which they have failed to do.”
The Calcutta High Court (DB) quoting Life Insurance Corporation of India v. Ram Pal Singh Bisen [2010-4 SCC 491] it is observed in Bajaj Allianz General Insurance Company v. Smt. Santa Dey (2019-2 ACC 36: 2018-3 TAC 473) as under:
“On the authority of the aforesaid decision, we hold that even if the document had been marked as Exhibit-A without objection, without a formal proof thereof in accordance with the provisions of the Evidence Act, such document lost its credibility and is of no probative value.”
In Kalyan Singh v. Chhoti, AIR 1990 SC 396, it is observed as under:
“A certified copy of a registered sale deed may be produced as secondary evidence in the absence of the original. But in the present case Ex. 3 is not certified copy. It is just an ordinary copy. There is also no evidence regarding content of the original sale deed. Ex.3 cannot therefore, be considered as secondary evidence. The appellate Court has a right and duty to exclude such evidence.”
Should the Court Allow to Adduce Proper Evidence to Prove Documents
As stated in detail above, besides the powers of the court under Sec. 165 of Evidence Act, the scheme of the Procedural Acts (Sec. 58 of Evidence Act and Order XII, Rule 2A Proviso of the CPC and Sec. 294 of the CrPC) show that the courts have jurisdiction to require the parties concerned to prove documents that are marked on admission (by the opposite side) –
without proper proof (of contents of the document or its truth), and
without ‘foundational evidence’ for a secondary evidence.
In such a case, it is legitimate to say that the court should, before taking an adverse stance as to proof in this count, give an opportunity to cure the deficiency by the party who relies on such document.
PROOF INVOKING PRESUMPTION – Sec. 114, read with Sec. 35, Evid. Act
The evidence/proof of contents of document may be given by proving circumstances for the same or by invoking presumption also. ‘Common course of natural events’, ‘human conduct’ etc. under S. 114, Evd. Act can be used to prove the existence and genuineness/ truth of a document.
Sec. 35 of the Evidence Act reads as under:
“35. Relevancy of entry in public record or an electronic record made in performance of duty: An entry in any public or other official book, register or record or an electronic record, stating a fact in issue or relevant fact, and made by a public servant in the discharge of his official duty, or by any other person in performance of a duty specially enjoined by the law of the country in which such book, register, or record or an electronic record is kept, is itself a relevant fact.
Under S. 114, Illustration (e) for Judicial and official acts there is presumption as to ‘regularity’. It is not presumption as to correctness or truth. For such presumption, one can resort to main section, Sec. 114 – that is, ‘common course of natural events’, ‘human conduct’ etc. (and not ‘regularity’ in Illus.–e).
Presumption and Truth
As shown above, in Izhar Ahmad Khan v. Union of India, AIR 1962 SC 1052, it was observed that the term ‘presumption’ includes, in its largest and most comprehensive signification, inference of the truth or falsehood of a doubtful fact. And in St. of West Bengal v. Mir Mohammad Omar, AIR 2000 SC 2988, it is held that the Presumption of fact is an inference as to the existence of one fact from the existence of some other facts, unless the truth of such inference is disproved.
In Dalchand Mulchand v. Hasanbi, AIR 1938 Nag 152 (Vivian Bose and Puranik JJ.), held as under:
“The initial burden of proving execution of a document when it is denied is upon the person alleging execution. But if nothing else is known the mere fact that a document is admitted to bear a certain signature and that it comes from proper custody ought to be enough to raise an inference that it was signed with the intention of execution. This inference arises in India directly from Sec. 114, Evidence Act. Persons do not ordinarily sign documents without intending to execute them: that is not the common course of human conduct, nor yet the common course their public or private business. Consequently if any person wants to rely on an exceptional circumstance, if he wants to show that in some particular instance the ordinary rule was abrogated surely he must prove it and thus the burden shifts on him”.
Referring relevant provisions of Himachal Land Revenue Act, 1954 and Sec. 35 of the Indian Evidence Act, 1872, it is held in Partap Singh v. Shiv Ram: AIR 2020 SC 1382, that Record-of-rights (Revenue document) carries the ‘presumption of correctness‘.
Presumption of Correctness to Revenue Record Entries
In Vishwa Vijay Bharathi v. Fakhrul Hassan, (1976) 3 SCC 642, it is held as under:
“It is true that the entries in the revenue record ought, generally, to be accepted at their face value and courts should not embark upon an appellate inquiry in to their correctness. But the presumption of correctness can apply only to genuine, not forged or fraudulent, entries. The distinction may be fine but it is real. The distinction is that one cannot challenge the correctness of what the entry is the revenue record states but the entry is open to the attack that it was made fraudulently or surreptitiously. Fraud and forgery rob a document of all its legal effect and cannot found a claim to possessory title.”
In Karewwa v. Hussensab Khansab Khansaheb Wajantri, AIR 2002 SC 504 : (2002) 10 SCC 315 , it is held as under:
“We do not dispute the legal position as stated by the learned counsel for the appellant, but the presumption of correctness of an entry in revenue record cannot be rebutted by a statement in the written statement. Mere statement of fact in the written statement is not a rebuttal of presumption of correctness of an entry in the revenue record. The respondent was recorded as a tenant in the revenue record in the year 1973 and under law the presumption is that the entry is correct. It was for the appellant to rebut the presumption by leading evidence. The appellant has not led any evidence to show that entry in the revenue record is incorrect. We, therefore, do not find any merit in the contention.”
In Avadh Kishore Das v. Ram Gopal, AIR 1979 SC 861, (1979) 4 SCC 790, it is observed as under:
“Wajibularz is village administration paper prepared with due care and after due enquiry by a public servant in the discharge of his official duties. It is a part of the settlement record and a statutory presumption of correctness attaches to it. Properly construed, this Wajibularz shows that the entire revenue estate of village Bahawalpura vests in the Temple or the Math as a juristic person.”
In Inder Singh v. S. Raghbir Singh, AIR 1978 P&H 98, it is observed as under:
“The principle is that an official record, kept by a person, upon whom there is a public duty to make entries in it only after satisfying himself of the truth of those entries, is presumed to be correct. Such a document itself is evidence of the truth of its contents unless and until its falsity can be demonstrated by any of the various methods by which the evidentiary value of any public book, register or document may be attacked.”
Evidence in Old Transaction – Vigor in RECENT TRANSACTIONS could Not be EXPECTED
In Muthialpet Benefit Fund Ltd. v. V. Devarajulu Chetty, AIR 1955 Mad 455, it is held as under:
“7. To my mind, neither of the first two points is convincing because the first is based on the rather over-optimistic and facile profession of faith made in every minors suit that he the minor is going to win and to which the statistics of our Courts do not unfortunately lend any support and especially so in this case and in the circumstances set out above, which make out prima facie that the mortgagee public institution made proper and bona fide enquiry as to the existence of necessity and did all that was reasonable to satisfy itself as to the existence of such necessity. In such a case even if there was no necessity in fact or even if the money borrowed was not applied to meet the necessity, the alienation will be upheld. The recitals of necessity in the deed are admissible in evidence as admissions of the Manager or father and also amount to representation ofnecessity though in the case of RECENT TRANSACTIONS evidence aliunde** would be NORMALLY EXPECTED. These elementary propositions require no buttressing by citations (See Mulla, Hindu Law, Edn.10, p.285; Raghavachari: Hindu Law, Edn.3, p.335 and following; Mayne: Hindu Law, Edn.11, Re-print pp.474-475). Secondly, it is in the best interest of the mortgagors themselves to prevent the deterioration of the value of the corpus and market it into cash and keep the sale proceeds in Court pending and abiding the result of the suit.”
(**from other sources)
Exhibits in a Writ Petition
A certified copy of a writ petition is marked by the plaintiff as an exhibit in a civil suit. The petitioner in the writ petition was the defendant. Can the documents that were proved and exhibited by the defendant, in the writ petition, be read in evidence in the civil suit as admission or otherwise?
The answer can be derived from the following decisions –
1. M. Chandra v. M. Thangamuthu, (2010) 9 SCC 712
“Documents filed in writ proceedings may be relevant but cannot be treated as substantive evidence unless properly proved in accordance with law.“
2. Sait Tarajee Khimchand v. Yelamarti Satyam, AIR 1971 SC 1865
“The mere marking of a document as an exhibit does not dispense with its proof.“
3. Union of India v. Ibrahim Uddin, (2012) 8 SCC 148
“An admission can be used in subsequent proceedings, but must be clear and proved. Documentary evidence must still be tested under the Evidence Act.“
Conclusion
From the above, the accepted position of law, as regards the PROOF and TRUTH of documents, can be summarised as under:
1.Probative value of a document will be a matter for the court to determine on the basis of legal reasoning.
2. Though a document is relevant and marked without objection, or marked on admission, the probative value of it may be low or nil, for want of proper PROOF.
3. Admittance and Marking of a document may amount to admission of its contents, but not necessarily its TRUTH.
4. The Evidence Act and other procedural laws do not expressly say as to TRUTH of contents of Documents. It is left to the ‘judicial discretion’ of the Court to be ‘deduced or derived’ by legal reasoning.
5. The scheme of the Evidence Act is to presume TRUTH of contents of documents (in proper cases) when ‘existence and contents’ of the same are proved.
6. For ‘deducing or deriving’ TRUTH of contents of Documents, the party concerned can place for consideration of the court – (i) oral evidence of one who can vouchsafe the same, (ii) express admission by the other side and (iii) circumstantial evidence or ‘presumptions’ available in the matter.
It can be seen that the ‘discretion’ conferred on the courts as regards TRUTH of contents of documents is founded in Indian Law following, the English Legal Principles which allows high degree of discretion to the trial courts to determine whether a document stands proved or not and it is honoured by the appellate courts.
•➧ Plain meaning of ‘cognisance’ is – to take notice of something. •➧ Taking cognizance does not involve any formal action. •➧ In law, it is ‘taking judicial notice’ on a cause or offence. •➧ The word ‘cognizance’ is not defined in the CPC or Cr PC. •➧ But, it has well defined contours (by a catena of decisions). •➧ Unless cognizance is barred by a statute, anyone can file a civil suit. •➧ Magistrate has a discretion not to take Cognizance (of a criminal case). •➧ For taking cognizance, the offence must be one punishable under law. •➧ Cognizance is taken against the suspected commission of offence; not offender. •➧ It is the application of mind by the Magistrate “to the suspected commission of offence”. •➧ Cognizance is taken by a Magistrate by 3 ways. They are – • (a) upon a complaint; • (b) upon a police report (in both, ‘offence-made-out’ and ‘refer-charge’); • (c) upon information from any person or upon his own knowledge.
Introduction
In legal parlance ‘cognizance’ is “taking judicial notice of a matter, with a view to initiate legal action”.
Under Sec. 190, Criminal Procedure Code, 1973, ‘cognizance’ of an offence is taken by a Magistrate in the following situations –
(i) upon receiving a complaint,
(ii) upon a police report,
(iii) upon information received from any person other than a police officer, or
(iv) upon his own knowledge.
It is important to note –
The CrPC does not precisely specify – what is ‘cognizance’.
Dictionary meaning of ‘cognizance’ is – ‘knowledge or awareness’, ‘taking notice of’ etc.
What is Cognizance, Deciphered
What is ‘cognizance’ can be deciphered from the following propositions of law –
Cognizance is taken against an offence; and not against the offender.
Cognizance can be taken by a court on a complaint, or on a police report.
It can also be on facts presented before a court, or brought into its focus.
It is application of judicial mind on the materials, oral and documentary.
While taking cognizance, the court prima facie apply the facts to the concerned law analysing both.
Taking cognizance is not the same thing as issuance of process; for, Cognizance is taken first, and process is issued subsequently.
A Magistrate can order investigation (by Police) under Sec. 156(3) of Cr.P.C. before taking cognizance of the offence.
In short, Cognizance is the judicial process made by a court for arriving at a conclusion whether a legal action be initiated against an offence by a process of reasoning, analysing facts in the light of the law applicable.
In simple terms, it is a fact finding process at the beginning stage of proceedings – to see whether, prima facie, an offence has been committed.
Supreme Court Decisions on Cognizance
Taking cognizance occurs as soon as a Magistrate applies his judicial mind to the suspected commission of offence.
R.R. Chari v. State of U.P. AIR 1951 SC 207;
Tula Ram v. Kishore Singh, AIR 1977 SC 2401.
Taking cognizance does not involve any formal action or procedure.
R.R. Chari v. State of U.P. AIR 1951 SC 207;
Tula Ram v. Kishore Singh, AIR 1977 SC 2401.
In broad and literal sense cognizance means taking notice of an offence. This would include the intention of initiating judicial proceedings against the offender in respect of that offence or taking steps to see whether there is any basis for initiating judicial proceedings or for other purposes.
The word ‘cognizance’ indicates the point when a Magistrate or a Judge first takes judicial notice of an offence. It is entirely a different thing from initiation of proceedings; rather it is the condition precedent to the initiation of proceedings by the Magistrate or the Judge.
State of W.B. v. Mohd. Khalid, (1995) 1 SCC 684.
But, when a Magistrate applies his mindfor taking action of some other kind, such as directing an investigation under Section 156(3) of Cr.P.C. or issuing a search warrant or a warrant of arrest for the purpose of investigation, he cannot be said to have taken cognizance of the offence. If he does so, he is not to examine the complainant on oath because he was not taking cognizance of any offence therein.
The powers under Section 156(3) to direct a police investigation can be invoked by the Magistrate at a pre-cognizance stage, whereas powers under Section 202 of the Code are to be invoked after cognizance is taken on a complaint, but before issuance of process.
Tula Ram v. Kishore Singh, AIR 1977 SC 2401;
Narayandas Bhagwandas Madhavdas v. West Bengal, AIR 1959 SC 1118;
D. Lakshminarayana v. V. Narayana, AIR 1976 SC 1672
Dilawar Singh v. State of Delhi, (2007) 12 SCC 641.
Court of Session has no jurisdiction to take cognizance of an offence as a court of original jurisdiction. But, on committal, Sessions Court gets jurisdiction, to take cognizance of offence of persons not named as offenders, whose complicity in the crime comes to light from the material available on record. Hence on committal under S.209, Sessions Judge may summon, without recording evidence, the appellants not named in police report under S. 173 to stand trial along with those already named therein.
Kishun Sing v. State of Bihar, (1993) 2 SCC 16.
At the time of taking cognizance of the offence, the Court considers only the averments made in the complaint or in the charge-sheet filed under Section 173. It is not open for the Court to sift or appreciate the evidence at that stage with reference to the material and come to the conclusion that no prima facie case is made out for proceeding further in the matter.
State of Bihar V. Rajendra Agarwall (1996 (8) SCC 164);
Rashmji Kumar v. Mahesh Kumar Bhada, 1997 SCC (Cri) 415.
It is open to the Court, before issuing the process, to record the evidence, and on consideration of the averments made in the complaint and the evidence thus adduced, it is required to find out whether an offence has been made out. On finding that such an offence has been made out and after taking cognizance thereof, process would be issued to the respondent to take further steps in the matters.
Rashmji Kumar v. Mahesh Kumar Bhada, 1997 SCC (Cri) 415.
The complaint filed by a private party can be dismissed by the learned Magistrate under Section 203 Cr.P.C., if he thinks that there is no sufficient ground for proceeding. While exercising his discretionary powers, the Magistrate should not allow himself to evaluate and appreciate the sworn statements recorded by him under Section 202 Cr.P.C. All that he could do would be, to consider as to whether there is a prima facie case for a criminal offence, which, in his judgment, would be sufficient to call upon the alleged offender to answer. At the stage of Section 202 Cr.P.C. enquiry, the standard of proof which is required finally before finding the accused guilty or otherwise should not be applied at the initial stage.
Ponnal @ Kalaiyarasi v. Rajamanickam, 1998 (4) Crimes 543
Taking cognizance of an offence is not the same thing as issuance of process. Cognizance is taken at the initial stage when the Magistrate applies his judicial mind to the facts mentioned in a complaint or to a police report or upon information received from any other person that an offence has been committed. The issuance of process is at a subsequent stage when after considering the material placed before it the court decides to proceed against the offenders against whom a prima facie case is made out.
State of Karnataka v. Pastor P. Raju, (2006) 6 SCC 728.
To proceed under Section 156(3) of the Code, what is required is a bare reading of the complaint and if it discloses a cognizable offence, then the Magistrate instead of applying his mind to the complaint for deciding whether or not there is sufficient ground for proceeding, may direct the police for investigation.
Srinivas Gundluri v. SEPCO Electric Power Construction Corporation, (2010) 8 SCC 206,
Anju Chaudhary v. State of U.P., (2013) 6 SCC 384.
Based on the allegations made in the complaint or the evidence led in support of the same, at the stage of issuing the process to the accused,the Magistrate is to beprima facie satisfied that there are sufficient grounds for proceeding against the accused (and not whether there is sufficient ground for conviction; it is determined only at the trial). At this stage, the Magistrate is not required to record reasons. Though speaking or elaborate reasoned orders are not required at this stage, the order of the Magistrate summoning the accused must reflect that he has applied his mind to the facts of the case and the law applicable thereto. And the Magistrate is not to act as a post office in taking cognizance of the complaint.
Mehmood Ul Rehman v. Khazir Mohammad Tunda, (2015) 12 SCC 420,
Birla Corporation Ltd. v. Adventz Investments and Holdings, (2019) 16 SCC 610.
‘Cognizable Offence’ and ‘Non-Cognizable Offence’
‘Cognizable offence’ is defined in Section 2 (c) of the CrPC as under:
“Cognizable offence means an offence for which, and ‘cognizable case’ means a case in which a police officer may, in accordance with the First schedule or under any other law for the time being in force, arrest without warrant “.
Section 2(l) defines ‘non-cognizable offence’ as under:
“Non-Cognizable offence means an offence for which and ‘non cognizbale case’ means a case in which a police officer has no authority to arrest without warrant.”
Cognizance of Offences By Magistrate
Section 190:
Cognizance of offences by Magistrates: (1) Subject to the provisions of this Chapter, any Magistrate of the first class, and any Magistrate of the second class specially empowered in this behalf under subsection (2), may take cognizance of any offence-
(a) upon receiving a complaint of facts which constitute such offence;
(b) upon a police report of such facts;
(c) upon information received from any person other than a police officer, or upon his own knowledge, that such offence has been committed.
(2) The Chief Judicial Magistrate may empower any Magistrate of the second class to take cognizance under subsection (1) of such offences as are within his competence to inquire into or try.
Section 191:
Transfer on application of the accused: When a Magistrate takes cognizance of an offence under clause (c) of sub-section (1) of section 190, the accused shall, before any evidence is taken, be informed that he is entitled to have the case inquired into or tried by another Magistrate, and if the accused or any of the accused, if there be more than one, objects to further proceedings before the Magistrate taking cognizance, the case shall be transferred to such other Magistrate as may be specified by the Chief Judicial Magistrate in this behalf.
Section 192:
Making over of cases to Magistrates: (1) Any Chief Judicial Magistrate may, after taking cognizance of an offence, makeover the case for enquiry or trial to any competent Magistrate subordinate to him. (2) Any Magistrate of the first class empowered in this behalf by the Chief Judicial Magistrate may, after taking cognizance of an offence, makeover the case for enquiry or trial to such other competent Magistrate as the Chief Judicial Magistrate may, by general or special order, specify, and thereupon such Magistrate may hold the inquiry or trial.
Section 200
Sec. 200. Examination of complainant: A Magistrate taking cognizance of an offence on complaint shall examine upon oath the complainant and the witnesses present, if any, and the substance of such examination shall be reduced to writing and shall be signed by the complainant and the witnesses, and also by the Magistrate;
Provided that, when the complaint is made in writing, the Magistrate need not examine the complainant and the witnesses, if a public servant acting or purporting to act in the discharge of his official duties or a Court has made the complaint; or if the Magistrate makes over the case for inquiry or trial to another Magistrate under section 192;
Provided further that if the Magistrate makes over the case to another Magistrate under section 192 after examining the complainant and the witnesses, the latter Magistrate need not re-examine them.
It is clear thatunder Sec. 200, in case of a (private) complaint, cognizance is taken by a Magistrate when the Magistrate applies his mind to proceed and examine the complainant.
Subsequent proceedings after taking cognizance (Chapter XVI: Sections 204 to 208)
On getting police report, the Magistrate may resort to one of the following three steps:
(i) accept the report and take cognizance of the offence and issue process;
(ii) disagree with the report and drop the proceedings or
(iii) direct further investigation under Section 156(3).
Where the report of the police states that no offence appears to have been committed, then the Magistrate may resort to one of the following three steps:
(a) accept the (refer) report and drop the proceedings;
(b) disagree with the report and take cognizance of the case and issue process or
(c) direct further investigation to be made by the police under Section 156(3).
If the Magistrate decides not to take cognizance of offence or drop proceedings against some persons mentioned in F.I.R., he must give notice and hear first the informant. Bhagwant Singh v. Commissioner of Police, AIR 1985 SC 1285.
Similarly, where the Magistrate decides not to take cognizance of the offence in spite of Report under sub-sec.(2) of S.173 and to drop the proceeding or takes the view that there is no sufficient ground for proceeding against some of the persons mentioned in the First Information Report, the Magistrate must give notice to the informant (not to the injured or to a relative of the deceased, unless such person is the informant) and provide him an opportunity to be heard at the time of consideration of the report. (However, such injured or to a relative of the deceased can appear before the Magistrate and make his submissions when the report is considered by the Magistrate.) Bhagwant Singh v. Commissioner of Police, AIR 1985 SC 1285.
•➧There is difference of opinion. Three views are possible. • First: Call at lest one witness, in spite of express admission. • Second: No need, even when admitted impliedly. • Third: No need if the Will is expressly or categorically admitted. •➧ The proposition of law in the third view above sounds good.
•➧ Two arguments on admitted facts need not be proved – •First, general provisions of Sect. 58 of the Evidence Act has ‘to give way to the special provisions’ of Sec. 68; and Sec. 68 places an emphatic ‘non-obstante clause’ – “it shall not be used as evidence until one attesting witness at least has been called for the purpose of proving its execution”. •Second, it will also be a forceful argument if one says that a section in the Evidence Act cannot be protected from certain fundamental principles of the Evidence Act which include ‘best evidence rule’, ‘admitted facts need not be proved’ etc., unless strong persuasive indications are laid down in the provision concerned. (It is also noteworthy that Sec. 68 does not proceed with a non-obstante clause.) • The scheme of the Evidence Act shows that Chapter III (the beginning Chapter of Part II) which deals with “Facts Need Not be Proved”, is meant to govern the succeeding chapters including the Chapter V that deals with ‘Documentary Evidence’ wherein Sec. 68 is included. • It is also significant – Sec. 58 says that ‘Admitted facts need not be proved’; and Sec. 68 speaks as to “Proof of execution of document required by law to be attested” and that the attesting witness is called “for the purpose of proving its execution”. •➧ That is, the question of ‘proof’ under Sec. 68 does not arise if ‘execution of document’ has already been admitted by the other side.
•➧ Therefore, an authoritative judicial pronouncement is yet to be arrived, taking note of various potential contentions in this regard.
Introspection
Section 68 of the Evidence Act, 1872 mandates examination of one attesting witness at least to prove documents required by law to be attested (including Wills). When execution of a Will is ‘Admitted’ by the opposite side, should it be ‘Proved’?
There is difference of opinion.
Following latest decisions assuredly lay down that when execution of the will is ‘admitted’ by the opposite side, it need not be ‘proved’ as required in Sec. 68 (by examining at least one witness).
Boomathi v. Murugesan, 2023-2 Mad LJ 684 (DB)
P. Radha v. Irudayadoss, 2022 SCCOnline Mad 886
Rajeev Gupta v. Prashant Garg, 2022-1 All LJ 435.
Following decisions laid down that even when execution of a will was ‘admitted’ by the opposite side, it must have been ‘proved’ by examining at least one attesting witness.
S.R. Srinivas v. S. Padmavathamma, (2010) 5 SCC 274 – It is observed – the execution of a Will can be held to have been proved only when the statutory requirements for proving the Will are satisfied. Admission in the pleadings as to the Will can only be about the “making of the Will” and not the “genuineness of the Will”.
Vadakkayil Gopalan v. Vadakkayil Paru, (2013) 3 KerLT 69 –It is observed – proof of the Will by examining at least one witness was necessary (even if the Will has been admitted in the pleadings).
Poulose A. V. v. Indira M.R., 2010 (3) KerLT Suppl. 185 : ILR 2010 Ker.388 – It is observed – No distinction is drawn, by Sec. 68, between an admitted Will and a disputed Will in the mode of proof of execution; and therefore, in all cases in which the Will is set up the procedure prescribed in Sec. 68 will have to be followed.
Ramesh Verma v. Lajesh Saxena (2017) 1 SCC 257 – It is observed – the mandate of Section 68 of the Evidence Act has to be followed even in a case where the opposite party does not specifically deny the execution of the document in the written statement.
Sarada v. Radhamani, 2017 (2) KLT 327. In this decision, rendered in a ‘Refence’ to resolve the dispute in the question we discuss, the Kerala High Court (DB) referred all the above decisions. And, declared the following decisions, as Per Incuriam
Princelal G. v. Prasannakumari, 2009 (3) KerLT Suppl. 1342: ILR 2009 (3) Ker. 221 – It is observed – where the execution of the Will is expressly admitted, neither Section 68 nor its proviso is attracted obliging the propounder of the Will to prove due execution of the Will (for, admitted facts need not be proved: Sec. 58 of the Evidence Act).
Thayyullathil Kunhikannan v. Thayyullathil Kalliani, AIR 1990 Ker.226 – Relying on Order VIII Rule 5 C.P.C. and Sec. 58 of the Indian Evidence Act, it is held that when the execution of the Will is admitted, there will not be any requirement to prove the Will.
P. Malliga v. P. Kumaran, 2022 (2) LW 393, (Followed in Ranga Pillai v. Mannar Pillai, 2022, Mad) – It is held by the Madras High Court that a Will shall not be used as evidence until it is proved in the manner prescribed under Section 68 of the Evidence Act. The judge did not agree the view in P. Radha v. Irudayadoss, 2022 SCCOnline Mad 886. (Note: This decision, P. Malliga v. P. Kumaran, is overruled in Boomathi v. Murugesan, 2023-2 Mad LJ 684, DB)
S. 68 to be Followed, Even When the Opp. party does not Deny Execution
Sec. 68 of the Evidence Act reads as under:
“68. Proof of execution of document required by law to be attested—If a document is required by law to be attested, it shall not be used as evidence until one attesting witness at least has been called for the purpose of proving its execution, if there be an attesting witness alive, and subject to the process of the Court and capable of giving evidence:
Provided that it shall not be necessary to call an attesting witness in proof of the execution of any document, not being a will, which has been registered in accordance with the provisions of the Indian Registration Act, 1908 (16 of 1908), unless its execution by the person by whom it purports to have been executed is specifically denied.
In Ramesh Verma v. Rajesh Saxena, 2017-1 SCC 257, our Apex Court held as under:
“13. A will like any other document is to be proved in terms of the provisions of Sec. 68 of the Evidence Act and the Succession Act, 1925. The propounder of the will is called upon to show by satisfactory evidence that the will was signed by the testator, that the testator at the relevant time was in a sound and disposing state of mind, that he understood the nature and effect of the disposition and put his signature to the document on his own free will and the document shall not be used as evidence until one attesting witness at least has been called for the purpose of proving its execution. This is the mandate of Sec. 68 of the Evidence Act and the position remains the same even in a case where the opposite party does not specifically deny the execution of the document in the written statement.”
Contra View: If ‘Admission’ (by the other side), Need not Prove the Will
It may be pointed out that the Apex Court did not consider in this decision, Ramesh Verma v. Rajesh Saxena – what is the position when the opposite party expressly admit the execution of the document.
Boomathi v. Murugesan, 2023-2 Mad LJ 684 (DB)
It is held in a recent Division Bench decision in Boomathi v. Murugesan, 2023-2 Mad LJ 684, that the position will be different if the Will is ‘categorically’ and ‘clearly’ admitted. The Madras High Court referred Sec. 17 (Admission) and Sec. 58 (Facts admitted need not be proved) and came to the conclusion , Sec. 68 will not be attracted where the Will is “admitted” by the other side. The Division Bench held as under:
“23. First and foremost, it is to be borne in mind that before the Hon’ble Supreme Court in Jagdish Chand Sharma Vs. Narain Singh Saini [Dead] through Legal Representatives and Others, reported in 2015 [8] SCC 615, the validity of the Will was a core issue and the Hon’ble Supreme Court proceeded to discuss the law with regard to proof of a Will in accordance with the statute. In such context, the Hon’ble Supreme Court has held that the position with regard to proof of a Will remains the same even if the opposite party does not specifically deny execution of the same.
24. The above judgment has been followed by learned Single Judges of this Court in P. Malliga Vs. P. Kumaran reported in 2022 [2] LW 393 and Akkinirajan Vs. Maheswari and Others reported in 2023 [1] LW 72.
25. This Court draws the distinction between ‘specifically denied’, ‘not specifically denied’ and ‘admitted‘. The first two instances, namely, ‘specifically denied’ and ‘not specifically denied’, would fall within one category. Insofar as proof of a Will in both cases in this category, the Will would have to be necessarily proved by the propounder. However, where the opposite party categorically admits to the Will, the position would be certainly different. In India, we follow what is called the system ‘adversarial proceedings’, which is also followed in the British Courts. The foundation of this School is that parties before a Court would have to deal with facts in issue namely facts that are asserted and denied by the parties to the lis and the Court would proceed to adjudicate on such issues. When there is no dispute between the parties on certain matters, the Court would not venture to require proof of such admitted facts.”
“33. This Court has applied its mind to the various principles laid down by the Hon’ble Supreme Court as well as this Court and other High Courts, especially in the context of Sec. 68 of the Indian Evidence Act, proof of a Will where execution is not specifically denied and in cases where the execution is categorically admitted. The ratio laid down by the Hon’ble Supreme Court in Ramesh Verma’s case [cited supra] reported in 2017 [1] SCC 257, cannot be a precedent for the proposition where the opposite party clearly admits to the execution of the subject Will as in the instant case. Therefore, we are not in respectful agreement with the judgments in P. Malliga’s case(P. Malliga v. P. Kumaran, 2022 (2) LW 393) andAkkinirajan’s case (Akkinirajan Vs. Maheswari, 2023 [1] LW 72) following the ratio laid down by the Hon’ble Supreme Court in Jagdish Chand Sharma’s case. On the contrary, we approve the ratio laid down in P. Radha Vs. Irudayadoss and Others reported in 2022 SCC Online Mad 886 and Vanjiammal and Others Vs. Vidya and Others in the order dtd. 21/4/2017 made in CRP.[PD] No.3659/2013.”
The same view is taken in Rajeev Gupta v. Prashant Garg, 2022-1 All LJ 435. The court held as under:
“The admission were in the pleadings of the parties and therefore there was no requirement of proving the will in the present suit. Admittedly, the defendant Nos. 2 to 4/appellants have claimed their title through Ramesh Chand Garg who never disputed the validity of the will rather in the Original Suit No. 458 of 1992, he admitted its validity and therefore, the lower appellate court has rightly decreed the suit and held that the will was neither required to be proved in the present suit nor the filing of original will was necessary.”
Do General Provisions of S. 58 give way to Special Provisions of S. 68
Three views are possible:
First: Requirement of calling at lest one witness to prove those documents that requires attestation, in spite of express admission from the opposite party as to the execution of the document in the written statement.
Second: If the Will is (even impliedly) admitted, Sec. 68 need not be invoked.
Third: If only the Will is expressly or categorically admitted, then only there will be alleviation of burden laid down in Sec. 68.
In the light of the Apex Court decision in Ramesh Verma v. Rajesh Saxena, 2017-1 SCC 257, (that the position – as to proof of documents requires attestation – remains the same even in a case where the opposite party does not specifically deny the execution of the document in the written statement) it appears that the second view stated above (taken in Thayyullathil Kunhikannan v. Thayyullathil Kalliani, AIR 1990 Ker 226) is not sustainable.
But, the proposition of law in the third view above, applied in Boomathi v. Murugesan (supra), and other decisions (that the position – as to proof of documents requires attestation – will be different if the Will is “categorically admitted“), sounds good.
Authoritative Judicial Pronouncement is yet to be Arrived
It is also pertinent to note that the Kerala High Court, in Sarada v. Radhamani (supra), pointed out that the general provisions of Sect. 58 of the Evidence Act has ‘to give way to the special provisions’ of Sec. 68 of the Act; and it was remarked that there was no distinction between an ‘admitted Will’ and a ‘disputed Will’ as to the mode of proof.
It appears that the placing the doctrine of ‘specific provisions override general provisions‘ is rational; for, the following words in Sec. 68 places a ‘non-obstante clause’ –
“it shall not be used as evidence until one attesting witness at least has been called for the purpose of proving its execution”.
However, it will also be a forceful argument if one says that a section in the Evidence Act cannot be protected from certain fundamental principles of the Evidence Act which include ‘best evidence rule’, ‘admitted facts need not be proved’ etc., unless strong persuasive indications are laid down in the provision concerned. (It is also noteworthy that Sec. 68 does not proceed with a non-obstante clause.) In any event, the scheme of the Evidence Act shows that Chapter III (the beginning Chapter of Part II) which deals with “Facts Need Not be Proved”, is meant to govern the succeeding chapters including the Chapter V that deals with ‘Documentary Evidence’ wherein Sec. 68 is included.
It is also significant – Sec. 58 says that ‘Admitted facts need not be proved’; and Sec. 68 speaks as to “Proof of execution of document required by law to be attested” and that the attesting witness is called “for the purpose of proving its execution”. That is, the question of ‘proof’ under Sec. 68 does not arise if ‘execution of document’ has already been admitted by the other side.
Note: Proviso to Sec. 58 enables the court to require proof, despite the admission of the other side, if it finds proper. Proviso to Sec. 58 reads as under:
“Provided that the Court may, in its discretion, require the facts admitted to be proved otherwise than by such admissions.”
Therefore, an authoritative judicial pronouncement is yet to be arrived, taking note of various potential contentions in this regard.
Conclusion
Following documents are required by law to be attested by attesting witnesses.
Will: Sec. 63 of the Succession Act.
Mortgage deed: Sec. 59 of the T P Act.
Gift deed: Sec. 123 of the T P Act.
Bond: Sec. 2(5) of the Indian Stamp Act, 1899.
Section 68 of the Evidence Act, 1872 mandates examination of one attesting witness at least to prove the aforesaid four documents required by law to be attested. The proviso to Sec. 68 lays down the following: if the aforesaid documents, EXCEPT WILL, are (i) registered in accordance with the provisions of Indian Registration Act, 1908 and (ii) not specifically denied by the person who executed it, execution of those documents need not necessarily be proved by calling ‘an attesting witness’. That is, for the purpose of proving the Will (alone), the examination of ‘an attesting witness’ is necessary. It is difficult to support the logic and grounds for picking out Will (in Sec. 68 Evidence Act), from other (three) documents that are required by law to be attested by attesting witnesses.
But, note – the Will stands picked out (in Sec. 68 Evidence Act) from other (three) documents that are required by law to be attested by attesting witnesses.
1. A concession or Admission of a fact by a defence counsel would bind on his client. In criminal trials, suggestions in cross-examination may take the position of ‘pleadings’ in civil cases. 2. In a civil trial, it is not required to put its case to the witness, as pleadings already exist. 3. The probative value of suggestions and admissions made during cross-examination varies depending on the specific facts and context of each case, and admission in cross-examination varies depending on the facts of each case. 4. In civil proceedings, where pleadings are well-defined and play a central role in shaping the issues, such suggestions or admissions by counsel during cross-examination (as regards the pleaded matters) may carry less weight. In contrast, in criminal trials, where the stakes are higher and such admissions or suggestions can hold greater evidentiary significance.
Section 15 of the Bharatiya Sakshya Adhiniyam (Indian Evidence Act, 1872, Section 17) defines an admission as a statement, oral or documentary, which suggests any inference as to a fact in issue or relevant fact, made by a party to the proceeding.
Therefore, technically, a question posed by counsel can be a “statement” under this section.
In Balu Sudam Khalde v. State of Maharashtra, Sudhanshu Dhulia, J.B. Pardiwala, JJ., AIR 2023 SC 1736; 2023-13 SCC 365, our Apex Court held as under:
38. Thus, from the above, it is evident that the suggestion made by the defence counsel to a witness in the cross-examination if found to be incriminating in nature in any manner would definitely bind the accused and the accused cannot get away on the plea that his counsel had no implied authority to make suggestions in the nature of admissions against his client.”
Suggestion in Cross-Examination Cannot Be Used As Evidence; But, It May Aid
In Mahavir v. State of Uttar Pradesh, 2017-3 All Cri R 2407, it is held as under:
36. The suggestion made in cross-examination form part of the evidence on record. Those suggestion can be taken into consideration while determining whether the reply given was believable or not. Though suggestion in cross-examination which is denied by the witness, is not evidence at all. Any suggestion made in the cross-examination of the prosecution witness by the defence, can not be used as an evidence against the accused but at the same time it can be called in aid when the other evidence establishes the guilt of the accused.
37. Though the suggestion made in the cross-examination is not evidence but certainly the same may be called into aid to lend assurance to the prosecution case particularly when other evidence establishes the guilt of the accused.”
It appears that this view has not been followed later on.
Suggestions in Cross-ExaminationCould be taken into account
The Kerala High Court, in A. K. Ali v. C. H. Mammuty, 1989 CrLJ 1820, opined that a suggestion made in the cross-examination of witnesses, though not binding on the accused as admissions, those suggestions in cross-examination and statements of the accused given when questioned under S.313 could be taken into account for ascertaining the bona fides of the contentions.
Admission for No challenge in Cross Examination
In Srichand and Shivan Das v. The State, 1985-28 DLT 360, the Delhi High Court held as under:
“6…. The law is well settled that where the evidence of a witness is allowed to go unchallenged with regard to any particular point it may safely be accepted as true ….”.
Purportof Cross-examination is not to give Suggestions
The Delhi High Court held in Sher Mohammad v. Mohan Magotra (Rajiv Sahai Endlaw, J.), 2013-202 DLT 708; 2013 SCC OnLine Del 2530, as under:
“However, I am of the opinion that in a civil trial which is based on pleadings, there is no need for such suggestions to be given. The respondent in his written statement had already denied the said payment and it was for the appellant to prove the same. The practice of giving suggestions in cross examination to witnesses is of criminal trials where there are no pleadings and the defence is built up by giving such suggestions. … The purport of cross-examination is to challenge the testimony and/or to falsify the witness or his creditworthiness, and not to give suggestions to the effect that each and every deposition in examination-in-chief is false. Similarly, a party in a civil trial is not required to in cross-examination, put its case to the witness as the same as aforesaid already exists in the pleadings.” (Note: Not followed in Sher Mohammad v. Mohan Magotra , 2013-202 DLT 708.)
The Delhi High Court, subsequently, in Sa v. Aa, 2016 SCC OnLine Del 1818 (taking note of Srichand and Shivan Das v. The State, 1985-28 DLT 360) preferred not to follow Sher Mohammad v. Mohan Magotra , 2013-202 DLT 708; 2013 SCC OnLine Del 2530. It is held that non-cross-examination of a witness on a suggestion will not be so serious as in a criminal case (for there are pleadings).
It appears that even the above view in Srichand and Shivan Das v. The State, 1985-28 DLT 360, is not the correct proposition of law, especially in view of Balu Sudam Khalde v. The State of Maharashtra, AIR 2023 SC 1736.
It appears that the following may be the correct legal position – in civil matters, where pleadings are well-defined and play a central role in shaping the issues, such suggestions or admissions by counsel during cross-examination, as regards the pleaded matters, may carry less weight.
Suggestion or Admission in Cross-Examination – Evidentiary Value
Suggestion and admission in cross-examination being come in ‘appreciation of evidence’, probative value of the same is a matter for the court, and it varies depending on the facts of each case. The principle involved therein is consistent – that is, truth should prevail.
There being well-defined pleadings as Plaint and Written Statement in civil cases, they get prime importance in determining the case of parties to civil cases. Therefore, the suggestion or admission in cross-examination (by the advocate) has no importance as that in a criminal case.
In Tarun Bora alias Alok Hazarika v. State of Assam, 2002-7 SCC 39; 2002 Cri. LJ 4076 (SC), the presence of the accused was admitted in a suggestion put to one of the witnesses. Considering the reply given by the witness, the court arrived at the conclusion that the presence of the accused was admitted. (Referred to in: Balu Sudam Khalde v. The State of Maharashtra, AIR 2023 SC 1736.)
In Rakesh Kumar alias Babli v. State of Haryana, 1987-2 SCC 34, a suggestion was put by the defence to the witness with regard to the colour of the shirt worn by one of the accused persons at the time of the incident. The Apex Court, considering the suggestion and the reply, arrived at the conclusion that the presence of the accused, namely Dharam Vir was established on the spot at the time of occurrence. (Referred to in: Balu Sudam Khalde v. The State of Maharashtra, AIR 2023 SC 1736.)
In Balu Sudam Khalde v. The State of Maharashtra (Sudhanshu Dhulia, J.B. Pardiwala), AIR 2023 SC 1736, it was held as under:
38. Thus, from the above it is evident that the suggestion made by the defence counsel to a witness in the cross-examination if found to be incriminating in nature in any manner would definitely bind the accused and the accused cannot get away on the plea that his counsel had no implied authority to make suggestions in the nature of admissions against his client.
39. Any concession or admission of a fact by a defence counsel would definitely be binding on his client, except the concession on the point of law. As a legal proposition we cannot agree with the submission canvassed on behalf of the appellants that an answer by a witness to a suggestion made by the defence counsel in the cross- examination does not deserve any value or utility if it incriminates the accused in any manner.
40. It is a cardinal principle of criminal jurisprudence that the initial burden to establish the case against the accused beyond reasonable doubt rests on the prosecution. It is also an elementary principle of law that the prosecution has to prove its case on its own legs and cannot derive advantage or benefit from the weakness of the defence. We are not suggesting for a moment that if prosecution is unable to prove its case on its own legs then the Court can still convict an accused on the strength of the evidence in the form of reply to the suggestions made by the defence counsel to a witness. Take for instance, in the present case we have reached to the conclusion that the evidence of the three eyewitnesses inspires confidence and there is nothing in their evidence on the basis of which it could be said that they are unreliable witnesses. Having reached to such a conclusion, in our opinion, to fortify our view we can definitely look into the suggestions made by the defence counsel to the eyewitnesses, the reply to those establishing the presence of the accused persons as well as the eyewitnesses in the night hours. To put it in other words, suggestions by itself are not sufficient to hold the accused guilty if they are incriminating in any manner or are in the form of admission in the absence of any other reliable evidence on record. It is true that a suggestion has no evidentiary value but this proposition of law would not hold good at all times and in a given case during the course of cross-examination the defence counsel may put such a suggestion the answer to which may directly go against the accused and this is exactly what has happened in the present case.
41. The principle of law that in a criminal case, a lawyer has no implied authority to make admissions against his client during the progress of the trial would hold good only in cases where dispensation of proof by the prosecution is not permissible in law. For example, it is obligatory on the part of the prosecution to prove the post mortem report by examining the doctor. The accused cannot admit the contents of the post mortem report thereby absolving the prosecution from its duty to prove the contents of the same in accordance with law by examining the doctor. This is so because if the evidence per se is inadmissible in law then a defence counsel has no authority to make it admissible with his consent.
42. Therefore, we are of the opinion that suggestions made to the witness by the defence counsel and the reply to such suggestions would definitely form part of the evidence and can be relied upon by the Court along with other evidence on record to determine the guilt of the accused.”
43. The main object of cross-examination is to find out the truth on record and to help the Court in knowing the truth of the case. It is a matter of common experience that many a times the defence lawyers themselves get the discrepancies clarified arising during the cross-examination in one paragraph and getting themselves contradicted in the other paragraph. The line of cross-examination is always on the basis of the defence which the counsel would keep in mind to defend the accused. At this stage, we may quote with profit the observations made by a Division Bench of the Madhya Pradesh High Court in the case of Govind v. State of M.P. reported in 2005 Cri.LJ 1244. The Bench observed in paragraph 27 as under:
“27. The main object of cross-examination is to find out the truth and detection of falsehood in human testimony. It is designed either to destroy or weaken the force of evidence a witness has already given in person or elicit something in favour of the party which he has not stated or to discredit him by showing from his past history and present demeanour that he is unworthy of credit. It should be remembered that cross- examination is a duty, a lawyer owes to his clients and is not a matter of great personal glory and fame. It should always be remembered that justice must not be defeated by improper cross-examination. A lawyer owes a duty to himself that it is the most difficult art. However, he may fail in the result but fairness is one of the great elements of advocacy. Talents and genius are not aimed at self-glorification but it should be to establish truth, to detect falsehood, to uphold right and just and to expose wrongdoings of a dishonest witness. It is the most efficacious test to discover the truth. Cross-examination exposes bias, detects falsehood and shows mental and moral condition of the witnesses and whether a witness is actuated by proper motive or whether he is actuated by enmity towards his adversaries. Cross-examination is commonly esteemed the severest test of an advocate’s skill and perhaps it demands beyond any other of his duties exercise of his ingenuity. There is a great difficulty in conducting cross-examination with creditable skill. It is undoubtedly a great intellectual effort. Sometimes cross-examination assumes unnecessary length, the Court has power to control the cross- examination in such cases. (See Wrottescey on cross-examination of witnesses). The Court must also ensure that cross-examination is not made a means of harassment or causing humiliation to the victim of crime [See State of Punjab v. Gurmit Singh, 1996 SCC (Cri) 316].”
44. During the course of cross-examination with a view to discredit the witness or to establish the defence on preponderance of probabilities suggestions are hurled on the witness but if such suggestions, the answer to those incriminate the accused in any manner then the same would definitely be binding and could be taken into consideration along with other evidence on record in support of the same.
45. However, it would all depend upon the nature of the suggestions and with what idea in mind such suggestions are made to the witness. Take for instance in case of a charge of rape under Section 376 of the Indian Penal Code, the statement of the accused contained plain denial and a plea of false implication, a subsequent suggestion by the defence lawyer to the prosecutrix about consent on her part would not, by itself, amount to admission of guilt on behalf of the accused. In cases of rape, it is permissible for the accused to take more than one defence. In such type of cases a suggestion thrown by the defence counsel to a prosecution witness would not amount to an admission on the part of the accused. At the same time, if the defence in the cross examination of the prosecutrix, with a view to support their alternative case of consent procure answers to the questions in the form of suggestions implicating the accused for the offence of rape then such suggestions would definitely lend assurance to the prosecution case and the Court would be well justified in considering the same. We may give one more example of a case where the accused would plead right of a private defence. Such a defence is always available to the accused but although if such a defence is not taken specifically during the course of trial yet if the evidence on record suggests that the accused had inflicted injuries on the deceased in exercise of his right of private defence then the Court can definitely take into consideration such defence in determining the guilt of the accused. However, if a specific question is put to a witness by way of a suggestion indicative of exercise of right of private defence then the Court would well be justified in taking into consideration such suggestion and if the presence of the accused is established the same would definitely be admissible in evidence.”
Admission of Counsel Must Be Taken as a Whole
Generally speaking, concession or admission of a fact by a defence counsel would definitely be binding on his client, except the concession on the point of law (Balu Sudam Khalde v. The State of Maharashtra, AIR 2023 SC 1736).
But, our Apex Court in Moran Mar Basselios Catholicos v. The Most Rev. Mar Poulose, AIR 1954 SC 526, held as regards admission of counsel, as under:
“If it should be treated as an admission at all, it must have been accepted or rejected as a whole. It must not have been torn piecemeal and part used and part rejected.”
Suggestions (in Cross Exam) BY ITSELF – Not Sufficient to Hold Accused Guilty
In Balu Sudam Khalde v. State of Maharashtra, 2023 SCC OnLine SC 355, our Apex Court held that if the prosecution failed to prove its case, then it could not take advantage from the weakness of the defence, and it cannot base its case on the reply of the witnesses given to the suggestions of the defence counsel. It held as under:
“Suggestions by itself are not sufficient to hold the accused guilty if they are incriminating in any manner or are in the form of admission in the absence of any other reliable evidence on record.”
Mere Suggestions in Cross Examination- No Evidence
The Gujarat High Court held in Umedmiya R. Rathod v. State of Gujarat (J.B. Pardiwala, J.), AIR 2017(NOC) Guj 1146 (Guj), as under:
“It is a settled position of law that mere suggestions are not sufficient to dislodge or disprove the case of the plaintiff. Suggestions in cross examination have no evidentiary value. In absence of any evidence, nor any material traced in the cross-examination in support thereof, the findings so far could not have been answered in the affirmative by the Trial Court as well as by this Court in the First Appeal.”
In Bibhuti Bhusan Roy v. State of West Bengal, 2019 CrLJ 1140, held that mere suggestion in cross-examination unsupported by defence evidence has no evidentiary value.
Effect of non-cross-examination of a witness (on a point in chief examination) is that that statement is taken as undisputed or accepted.
A party in a civil trial is not required to in cross examination put its case to the witness as the same (already) exists in the pleadings.
In criminal cases, the case of the accused(similar to pleading in civil cases) is put on recordby way of suggestions to the (concerned) prosecution witnesses. (Note – all suggestions may not give such an out-turn.)
Suggestionsin cross examination, if not admitted by the witness, are no evidence.
Suggestion made by a counsel in the cross-examination will definitely bind his party. Whole case must be apprised for arriving at such an inference.
Probative value of evidence of a person died after examination in chief (not cross-examined) depends upon the facts of the case.
Probative value of evidence of a witness –partly cross examined, depends upon the facts of the case.
Probative value of document marked without objection ‘can’ be nil.
Effect of “No Effective Cross-Examination” (on Execution of sale deed)
Our Apex Court considered the effect of “no effective cross-examination” with respect to factum of execution of sale deed spoken to by a witness, in Muddasani Venkata Narsaiah v. Muddasani Sarojana, AIR 2016 SC 2250 (Followed in: Arvind Singh v. State of Maharashtra, AIR 2020 SC 2451, 2021-11 SCC 1). It was held in this decision –
Cross-examination is a matter of substance, not of procedure one.
A party is required to put his own version in cross-examination of opponent.
The effect of non-cross-examination is that the statement of witness has not been disputed.
Court may repel a submission – on the ground that same was not put either to the witnesses, or suggested before the courts below (referred to: Bhoju Mandal v. Debnath Bhagat, AIR 1963 SC 1906).
If no such questions are put, the court would presume that the witness account has been accepted (referred: M/s. Chuni Lal Dwarka Nath v. Hartford Fire Insurance Co. Ltd., AIR 1958 Punjab 440.)
In Maroti Bansi Teli v. Radhabai w/o Tukaram Kunbi & Ors. AIR 1945 Nagpur 60, it has been laid down that the matters sworn to by one party in the pleadings not challenged either in pleadings or cross-examination by other party must be accepted as fully established.
The High Court of Calcutta in A.E.G. Carapiet v. A.Y. Derderian AIR 1961 Cal. 359 has laid down that the party is obliged to put his case in cross-examination of witnesses of opposite party.
The rule of putting one’s version in cross-examination is one of essential justice and not merely technical one.
In Kuwarlal Amritlal v. Rekhlal Koduram, AIR 1950 Nagpur 83, has laid down that when attestation is not specifically challenged and witness is not cross-examined regarding details of attestation, it is sufficient for him to say that the document was attested.
If the other side wants to challenge that statement, it is their duty, quite apart from raising it in the pleadings, to cross-examine the witness along those lines.
In Karnidan Sarda v. Sailaja Kanta Mitra, AIR 1940 Patna 683, has laid down that it must be assumed that when the witnesses were not tested in that way, their evidence is to be ordinarily accepted.
Effect of NOT Challenging Validity of a deed in Cross Examination
When a deed is duly proved in the trial by the evidence of a witness, and the legality or validity of the same is not challenged in the cross examination, the court will act upon the deed as a legal and valid one (Atluri Brahmanandam v. Anne Sai Bapuji, 2013-4 SCC 97 : AIR 2013 SC 1204).
Effect of Not Cross-Examining a Witness (on a point)
Lord Herschell, L.C. in Browne vs. Dunn [(1893) 6 The Reports 67] clearly elucidates the principle underlying those provisions. It reads thus:
“I cannot help saying, that it seems to me to be absolutely essential to the proper conduct of a cause, where it is intended to suggest that a witness is not speaking the truth on a particular point, to direct his attention to the fact by some questions put in cross- examination showing that imputation is intended to be made, and not to take his evidence and pass it by as a matter altogether unchallenged, and then, when it is impossible for him to explain, as perhaps he might have been able to do if such questions had been put to him, the circumstances which, it is suggested, indicate that the story he tells ought not to be believed, to argue that he is a witness unworthy of credit. My Lords, I have always understood that if you intend to impeach a witness, you are bound, whilst he is in the box, to give an opportunity of making any explanation which is open to him; and, as it seems to me, that is not only a rule of professional practice in the conduct of a case, but it is essential to fair play and fair dealing with witnesses”. (Quoted in State of UP v. Nahar Sing, 1998-3 SCC 561.)
The effect of not cross-examining a witness, on a particular point, has been considered by the Supreme Court, in Laxmibai v. Bhagwantbuva, AIR 2013 SC 1204. It is observed as under:
“31. Furthermore, there cannot be any dispute with respect to the settled legal proposition, that if a party wishes to raise any doubt as regards the correctness of the statement of a witness, the said witness must be given an opportunity to explain his statement by drawing his attention to that part of it, which has been objected to by the other party, as being untrue. Without this, it is not possible to impeach his credibility. Such a law has been advanced in view of the statutory provisions enshrined in Sec. 138 of the Evidence Act, 1872, which enable the opposite party to cross-examine a witness as regards information tendered in evidence by him during his initial examination in chief, and the scope of this provision stands enlarged by Sec. 146 of the Evidence Act, which permits a witness to be questioned, inter-alia, in order to test his veracity. Thereafter, the unchallenged part of his evidence is to be relied upon, for the reason that it is impossible for the witness to explain or elaborate upon any doubts as regards the same, in the absence of questions put to him with respect to the circumstances which indicate that the version of events provided by him, is not fit to be believed, and the witness himself, is unworthy of credit. Thus, if a party intends to impeach a witness, he must provide adequate opportunity to the witness in the witness box, to give a full and proper explanation. The same is essential to ensure fair play and fairness in dealing with witnesses.”
In State of UP v. Nahar Sing, 1998-3 SCC 561, a criminal case, the Supreme Court observed as under:
“13. It may be noted here that that part of the statement of PW-1 was not cross-examined by the accused. In the absence of cross-examination on the explanation of delay, the evidence PW-1 remained unchallenged and ought to have been believed by the High Court. Section 138 of the Evidence Act confers a valuable right of cross-examining the witness tendered in evidence by the opposite party. The scope of that provision is enlarged by Section 146 of the Evidence Act by allowing a witness to be questioned:
to test his veracity.
to discover who he is and what is his position in life, or
to shake his credit, by injuring his character, although the answer to such questions might tend directly or indirectly to incriminate him or might expose or tend directly or indirectly to expose him to a penalty or forfeiture.
EFFECT OF MARKING DOCUMENTS WITHOUT OBJECTION
Effect of marking a document without formal proof on admission (or without objection) is a subject of controversy.
First view
Admission of contents & it dispenses with proof. See: RVE Venkatachala Gounder v. Arulmigu Viswesaraswami: AIR 2003 SC 4548; Narbada Devi v. Birendra Kumar: (2003) 8 SCC 745; Dayamati Bai v. K.M. Shaffi : AIR 2004 SC 4082; Oriental Insurance Co v. Premlata: (2007) 8 SCC 575; Thimmappa Rai v. Ramanna Rai,(2007) 14 SCC 63; Kalita Iqbal Basith v. N Subbalakshmi, (2021) 2 SCC 718.
Second View
Admission of contents – but, does not dispense with proof. See: Sait Tarajee Khimchand v. Yelamarti Satyam, AIR 1971 SC 1865; Nandkishore Lalbhai Mehta v. New Era Fabrics, AIR 2015 SC 3796.
Third view
If truth is in issue, mere proof of contents, or marking without objection, is not proof of truth. See: Narbada Devi Gupta v. Birendra Kumar Jaiswal, 2003-8 SCC 745; Ramji Dayawala Vs. Invest Import: AIR 1981 SC 2085
Fourth view
Admission of contents, dispenses with proof and truth; but its probative value will be a matter for appreciation by court. See: State of Bihar v. Radha Krishna Singh, AIR 1983 SC 684 (Admission and probative value – different); Rakesh Mohindra v. Anita Beri: 2015 AIR(SCW) 6271; Kaliya v. State of MP: 2013-10 SCC 758; H. Siddiqui v. A. Ramalingam: AIR 2011 SC 1492; Rasiklal Manikchand v. MSS Food Products: 2012-2 SCC 196.
Fifth view
Court should require (in proper cases) the party producing the document to adduce proper evidence as to execution, and to cure formal defects. See: Harkirat Singh v. Amrinder Singh, (2005) 13 SCC 511; Umesh Challiyil v. K.P. Rajendra, (2008) 11 SCC 740; KK Ramachandran Master v. MV Sreyamakumar, (2010) 7 SCC 428; AIR 2015 SC 3796.
Value of Evidence of Witness Untested (for death) by Cross-Examination
Andhra High Court (SB Sinha, CJ, as he then was) in Somagutta Sivasankara Reddy v. Palapandla Chinna Gangappa, 2002 Supp1 ALD 600, 2002-1 Andh WR 475, held that the evidence of a person who had died after examination in chief and could not be cross-examined, the weight or probative value of his evidence would vary from case to case and in a given case it could be disregarded.
In Anamika Pranav v. Anil Kumar Choudhary, 8 Feb, 2023, Patna High Court (Sunil Dutta Mishra, J.), it was held that the evidence of a witness untested by cross-examination can have no value but the evidence cannot be rejected as inadmissible. It is held as under:
“The correct rule is that the evidence is admissible but the weight to be attached to such evidence should depend on the circumstances of each case and that though in some cases the Court may act upon it, if there is other evidence on record, its probative value may be very small and may even be disregarded. The Court should look at the evidence carefully to see whether there are indications that by a complete cross-examination the testimony of the witness was likely to be seriously shaken or his good faith to be successfully impeached. If the evidence is inadmissible the Court is not entitled to consider it at all whereas if it admissible the Court must decide on the circumstances of each case whether any weight should be attached to it or not.”
The Single Judge followed the following decisions:
Mt. Horil Kuer v. Rajab Ali, AIR 1936 Pat 34
Srikishun Jhunjhunwalla v. Emperor, AIR 1946 Pat 384
Ahmad Ali v. Joti Prasad,AIR 1944 All. 188
Srikumar Mukherjee v. Avijit Mukherjee, 2015 SCC Online Cal. 6445.
Effect of Part Cross-Examination
In a civil case where there is no pleading as to fraud as to a document, it is not material that the party did not get an opportunity to cross-examine the witness through whom it was marked. In Dever Park Builders Pvt. Ltd. v. Smt. Madhuri Jalan, AIR 2003 Cal 55, the witness was partly cross examined. It is held as under:
“19. …. I find here a portion of the examination-in-chief has been cross-examined and such portion in my view should be absolutely admissible in evidence and be considered without any hesitation by the learned Judge at the time of hearing and deciding of the suit. Cross-examination is essentially needed to bring out the truth of the oral testimony, but in case of documentary evidence where there is no suggestion or pleading as to fraud and forgery the cross-examination hardly matters.
20. Therefore, I am unable to accept the argument of Mr. Dutt that the evidence of the deceased defendant shall be expunged and/or rejected altogether. It shall be considered and how much weight shall be attached should be decided considering the other facts and circumstances surrounding it. So the earlier order passed by me expunging the evidence of deceased defendant is recalled and the document and evidence already received in commission shall now be admitted as records of this case. Parties would be at liberty to use any of the exhibited documents.”
Prosecution Must Stand on Its Own Legs; Not on Weakness of Defence
Prosecution must stand or fall on its own legs and it cannot derive any strength from the weakness of the defence (Sharad B. Sarda v. State of Maharashtra, (1984) 4 SCC 116; AIR 1984 SC 1622).
The Apex Court also observed that though thesuggestion made in the cross-examination was not evidenceit certainly be called into aid to lend assurance to the prosecution case, particularly when other evidence establishes the guilt of the accused.
Effect of NO Cross-Exam. of Witness – Taken as Unchallenged
In Mahavir v. State of Uttar Pradesh, 2017-3 All Cri R 2407, it is held as under:
“35. The main object of cross-examination is to bring out falsity and to find out the truth. Cross-examination is an art. It would help the Court to assess the relative merits of the case projected by the parties. Matter of cross-examination is not a mere empty formality, but one is required to put its own case in cross-examination, otherwise deposition of the witness has to be taken as unchallenged. The matter has been considered in a number of decisions that it is the duty to put ones own version to opponent in cross-examination, otherwise deposition of the witness cannot be discredited as was held in Maroti Bansi Teli v. Radhabai, AIR 1945 Nag 60: 1944 NLJ 492. In Chunni Lal Dwarka Nath v. Hartford Fire Insurance Co.Ltd., AIR 1958 Punj 440 it has been held as under:
” It is well established rule of evidence that a party should put to each of his opponent’s witnesses so much of his case as concerns that particular witness. If no such questions are put, the Courts presume that the witness’s account has been accepted. If it is intended to suggest that a witness was not speaking the truth upon a particular point, his attention must first be directed to the fact by cross-examination so that he may have an opportunity of giving an explanation.”
Referring Jesu Asir Singh v. State, (2007) 12 SCC 19 : AIR 2007 SC 3015, it is held in Muneem Ahmad v. State of U. P., 2017-171 AIC 895, 2017-98 All CriC 405, that the question put in the cross-examination to a great extent probabilise the prosecution version; and that, though questions put in cross-examination are not always determinative in finding an accused guilty, they are certainly relevant.
Effect of NO Cross-Exam. of Witness – Taken as Afterthought
In Mehra v. State of Rajasthan, AIR 1957 SC 369 Yusuf Ali v. State of Maharashtra, AIR 1968 SC 147 it was held that when the accused did not suggest to prosecution witnesses in cross-examination indicating his defence, it was held that the defence version may be rejected as an afterthought. (Referred to in: Mahavir v. State of Uttar Pradesh, 2017-3 All Cri R 2407)
It is permissible for the accused to take more than one defence
It is an accepted principle that it is permissible for the accused to take more than one defence in a criminal case. In such type of cases a suggestion thrown by the defence counsel to a prosecution witness (especially when it is not admitted by the witness) would not amount to an admission on the part of the accused.
But, it may not be the same result, in civil cases.
It is Permissible to take more than one defence in cases of Rape
In Tarjubhai Narsingbhai Rathwa v. State of Gujarat, (J.B. Pardiwala, J.) 2014-1 GLH 781, 2014-2 GLR 943, 2014-36 GHJ 282, 2014-6 RCR(Cri) 297, though it is observed that it is permissible for the accused to take more than one defence in cases of rape, it is further pointed out as under:
“33. Any concession or admission of a fact by a defence counsel would definitely be binding on his client, except the concession on the point of law. As a legal proposition we cannot agree with the views expressed by Their Lordships of this Court in Koli Trikam Jivraj v. The State of Guj., 1969 CrLJ 409, AIR 1969 Guj 69. that an answer by a witness to a suggestion made by the defence counsel in the cross-examination does not deserve any value or utility if it incriminates the accused in any manner. At the same time, we are also unable to agree with the views expressed by Their Lordships of this Court that a statement of an accused recorded under Section 313 of the Criminal Procedure Code does not deserve any value of utility if it contains inculpatory admissions.”
It is also held as under:
“43. … At the same time, if the defence in the cross- examination of the prosecutrix, with a view to support their alternative case of consent procure answers to the questions in the form of suggestions implicating the accused for the offence of rape then such suggestions would definitely lend assurance to the prosecution case and the Court would be well justified in considering the same.”
Suggestions in Cross Examination to Witnesses
Concession or Admission of a fact by a defence counsel would bind on his client.
Suggestions in cross examination, by itself, are no evidence.
In criminal trials, suggestions in cross examination may take the position as ‘pleadings’ in civil cases.
In a civil trial it is not required to put its case to the witness, as pleadings already exists.
Probative value of suggestion and admission in cross-examination varies depending on the facts of each case.
There being well defined pleadings in civil cases, the suggestion or admission in cross-examination (by the advocate) has no importance as that in a criminal case.
It appears that the acceptable view is that laid down in Mahavir v. State of Uttar Pradesh, 2017-3 All Cri R 2407. It is held:
Any suggestion made in the cross-examination of the prosecution witness by the defence, can not be used as an evidence against the accused
but at the same time it can be called in aid when the other evidence establishes the guilt of the accused.
In Mahavir v. State of Uttar Pradesh, 2017-3 All Cri R 2407, it is held as under:
36. The suggestion made in cross-examination form part of the evidence on record. Those suggestion can be taken into consideration while determining whether the reply given was believable or not. Though suggestion in cross-examination which is denied by the witness, is not evidence at all. Any suggestion made in the cross-examination of the prosecution witness by the defence, can not be used as an evidence against the accused but at the same time it can be called in aid when the other evidence establishes the guilt of the accused.
37. Though the suggestionmade in the cross-examination is not evidence but certainly the same may be called into aid to lend assurance to the prosecution case particularly when other evidence establishes the guilt of the accused.”
The Kerala High Court, in A. K. Ali v. C. H. Mammuty, 1989 CrLJ 1820, opined that a suggestion made in the cross examination of witnesses though not binding on the accused as admissions, those suggestions in cross examination and statements of the accused given when questioned under S.313 could be taken into account for ascertaining thebona fides of the contentions.
But, in Khimjibhai Kurjibhai v. The State of Gujarat, 1982 CrLR (Guj), it is held that the suggestion in cross examination are no evidence. It appears that this view has not been followed later on.
Suggestions in Cross Examination to Witnesses – in Civil Cases
In Srichand and Shivan Das v. The State, 1985-28 DLT 360, the Delhi High Court held as under:
“6…. The law is well settled that where the evidence of a witness is allowed to go unchallenged with regard to any particular point it may safely be accepted as true ….”.
The Delhi High Court held in Sher Mohammad v. Mohan Magotra (Rajiv Sahai Endlaw, J.), 2013-202 DLT 708; 2013 SCC OnLine Del 2530, as under:
“However, I am of the opinion that in a civil trial which is based on pleadings, there is no need for such suggestions to be given. The respondent in his written statement had already denied the said payment and it was for the appellant to prove the same. The practice of giving suggestions in cross examination to witnesses is of criminal trials where there are no pleadings and the defence is built up by giving such suggestions. … The purport of cross examination is to challenge the testimony and/or to falsify the witness or his credit worthiness and not to give suggestions to the effect that each and every deposition in examination-in-chief is false. Similarly, a party in a civil trial is not required to in cross examination put its case to the witness as the same as aforesaid already exists in the pleadings.”
The Delhi High Court, subsequently, in Sa v. Aa, 2016 SCC OnLine Del 1818 (taking note of Srichand and Shivan Das v. The State, 1985-28 DLT 360) preferred not to follow Sher Mohammad v. Mohan Magotra , 2013-202 DLT 708; 2013 SCC OnLine Del 2530, which held that non-cross examination of a witness on a suggestion will not be so seriousas in a criminal case (for there are pleadings). It appears that it is not the correct proposition of law.
Admission of Counsel Must Be Taken as a Whole
Generally speaking, concession or admission of a fact by a defence counsel would definitely be binding on his client, except the concession on the point of law (Balu Sudam Khalde v. The State of Maharashtra, AIR 2023 SC 1736).
But, our Apex Court in Moran Mar Basselios Catholicos v. The Most Rev. Mar Poulose, AIR 1954 SC 526, held as regards admission of counsel, as under:
“If it should be treated as an admission at all, it must have been accepted or rejected as a whole. It must not have been torn piecemeal and part used and part rejected.”
Suggestion or Admission in Cross-Examination – Evidentiary Value
Suggestion and admission in cross-examination being come in ‘appreciation of evidence’, probative value of the same is a matter for the court, and it varies depending on the facts of each case. The principle involved therein is consistent – that is, truth should prevail.
There being well defined pleadings as Plaint and Written Statement in civil cases, it gets prime importance in determining the case of parities to civil cases. Therefore, the suggestion or admission in cross-examination (by the advocate) has no importance as that in a criminal case.
In Tarun Bora alias Alok Hazarika v. State of Assam, 2002-7 SCC 39; 2002 Cri. LJ 4076 (SC), the presence of the accused was admitted in a suggestion put to one of the witnesses. Considering the reply given by the witness the court arrived at the conclusion that the presence of the accused was admitted. (Referred to in: Balu Sudam Khalde v. The State of Maharashtra, AIR 2023 SC 1736.)
In Rakesh Kumar alias Babli v. State of Haryana, 1987-2 SCC 34, a suggestion was put by the defence to the witness with regard to the colour of the shirt worn by one of the accused persons at the time of the incident. The Apex Court considering the suggestion and the reply arrived at the conclusion that the presence of the accused namely Dharam Vir was established on the spot at the time of occurrence. (Referred to in: Balu Sudam Khalde v. The State of Maharashtra, AIR 2023 SC 1736.)
In Balu Sudam Khalde v. The State of Maharashtra (Sudhanshu Dhulia, J.B. Pardiwala), AIR 2023 SC 1736, it was held as under:
38. Thus, from the above it is evident that the suggestion made by the defence counsel to a witness in the cross-examination if found to be incriminating in nature in any manner would definitely bind the accused and the accused cannot get away on the plea that his counsel had no implied authority to make suggestions in the nature of admissions against his client.
39. Any concession or admission of a fact by a defence counsel would definitely be binding on his client, except the concession on the point of law. As a legal proposition we cannot agree with the submission canvassed on behalf of the appellants that an answer by a witness to a suggestion made by the defence counsel in the cross- examination does not deserve any value or utility if it incriminates the accused in any manner.
40. It is a cardinal principle of criminal jurisprudence that the initial burden to establish the case against the accused beyond reasonable doubt rests on the prosecution. It is also an elementary principle of law that the prosecution has to prove its case on its own legs and cannot derive advantage or benefit from the weakness of the defence. We are not suggesting for a moment that if prosecution is unable to prove its case on its own legs then the Court can still convict an accused on the strength of the evidence in the form of reply to the suggestions made by the defence counsel to a witness. Take for instance, in the present case we have reached to the conclusion that the evidence of the three eyewitnesses inspires confidence and there is nothing in their evidence on the basis of which it could be said that they are unreliable witnesses. Having reached to such a conclusion, in our opinion, to fortify our view we can definitely look into the suggestions made by the defence counsel to the eyewitnesses, the reply to those establishing the presence of the accused persons as well as the eyewitnesses in the night hours. To put it in other words, suggestions by itself are not sufficient to hold the accused guilty if they are incriminating in any manner or are in the form of admission in the absence of any other reliable evidence on record. It is true that a suggestion has no evidentiary value but this proposition of law would not hold good at all times and in a given case during the course of cross-examination the defence counsel may put such a suggestion the answer to which may directly go against the accused and this is exactly what has happened in the present case.
41. The principle of law that in a criminal case, a lawyer has no implied authority to make admissions against his client during the progress of the trial would hold good only in cases where dispensation of proof by the prosecution is not permissible in law. For example, it is obligatory on the part of the prosecution to prove the post mortem report by examining the doctor. The accused cannot admit the contents of the post mortem report thereby absolving the prosecution from its duty to prove the contents of the same in accordance with law by examining the doctor. This is so because if the evidence per se is inadmissible in law then a defence counsel has no authority to make it admissible with his consent.
42. Therefore, we are of the opinion that suggestions made to the witness by the defence counsel and the reply to such suggestions would definitely form part of the evidence and can be relied upon by the Court along with other evidence on record to determine the guilt of the accused.”
43. The main object of cross-examination is to find out the truth on record and to help the Court in knowing the truth of the case. It is a matter of common experience that many a times the defence lawyers themselves get the discrepancies clarified arising during the cross-examination in one paragraph and getting themselves contradicted in the other paragraph. The line of cross-examination is always on the basis of the defence which the counsel would keep in mind to defend the accused. At this stage, we may quote with profit the observations made by a Division Bench of the Madhya Pradesh High Court in the case of Govind v. State of M.P. reported in 2005 Cri.LJ 1244. The Bench observed in paragraph 27 as under:
“27. The main object of cross-examination is to find out the truth and detection of falsehood in human testimony. It is designed either to destroy or weaken the force of evidence a witness has already given in person or elicit something in favour of the party which he has not stated or to discredit him by showing from his past history and present demeanour that he is unworthy of credit. It should be remembered that cross- examination is a duty, a lawyer owes to his clients and is not a matter of great personal glory and fame. It should always be remembered that justice must not be defeated by improper cross-examination. A lawyer owes a duty to himself that it is the most difficult art. However, he may fail in the result but fairness is one of the great elements of advocacy. Talents and genius are not aimed at self-glorification but it should be to establish truth, to detect falsehood, to uphold right and just and to expose wrongdoings of a dishonest witness. It is the most efficacious test to discover the truth. Cross-examination exposes bias, detects falsehood and shows mental and moral condition of the witnesses and whether a witness is actuated by proper motive or whether he is actuated by enmity towards his adversaries. Cross-examination is commonly esteemed the severest test of an advocate’s skill and perhaps it demands beyond any other of his duties exercise of his ingenuity. There is a great difficulty in conducting cross-examination with creditable skill. It is undoubtedly a great intellectual effort. Sometimes cross-examination assumes unnecessary length, the Court has power to control the cross- examination in such cases. (See Wrottescey on cross-examination of witnesses). The Court must also ensure that cross-examination is not made a means of harassment or causing humiliation to the victim of crime [See State of Punjab v. Gurmit Singh, 1996 SCC (Cri) 316].”
44. During the course of cross-examination with a view to discredit the witness or to establish the defence on preponderance of probabilities suggestions are hurled on the witness but if such suggestions, the answer to those incriminate the accused in any manner then the same would definitely be binding and could be taken into consideration along with other evidence on record in support of the same.
45. However, it would all depend upon the nature of the suggestions and with what idea in mind such suggestions are made to the witness. Take for instance in case of a charge of rape under Section 376 of the Indian Penal Code, the statement of the accused contained plain denial and a plea of false implication, a subsequent suggestion by the defence lawyer to the prosecutrix about consent on her part would not, by itself, amount to admission of guilt on behalf of the accused. In cases of rape, it is permissible for the accused to take more than one defence. In such type of cases a suggestion thrown by the defence counsel to a prosecution witness would not amount to an admission on the part of the accused. At the same time, if the defence in the cross examination of the prosecutrix, with a view to support their alternative case of consent procure answers to the questions in the form of suggestions implicating the accused for the offence of rape then such suggestions would definitely lend assurance to the prosecution case and the Court would be well justified in considering the same. We may give one more example of a case where the accused would plead right of a private defence. Such a defence is always available to the accused but although if such a defence is not taken specifically during the course of trial yet if the evidence on record suggests that the accused had inflicted injuries on the deceased in exercise of his right of private defence then the Court can definitely take into consideration such defence in determining the guilt of the accused. However, if a specific question is put to a witness by way of a suggestion indicative of exercise of right of private defence then the Court would well be justified in taking into consideration such suggestion and if the presence of the accused is established the same would definitely be admissible in evidence.”
Suggestions (in Cross Exam) BY ITSELF – Not Sufficient to Hold Accused Guilty
In Balu Sudam Khalde v. State of Maharashtra, 2023 SCC OnLine SC 355, our Apex Court held that if the prosecution failed to prove its case, then it could not take advantage from the weakness of the defence, and it cannot base its case on the reply of the witnesses given to the suggestions of the defence counsel. It held as under:
“Suggestions by itself are not sufficient to hold the accused guilty if they are incriminating in any manner or are in the form of admission in the absence of any other reliable evidence on record.”
Mere Suggestions in Cross Examination- No Evidence
The Gujarat High Court held in Umedmiya R. Rathod v. State of Gujarat (J.B. Pardiwala, J.), AIR 2017(NOC) Guj 1146 (Guj), as under:
“It is a settled position of law that mere suggestions are not sufficient to dislodge or disprove the case of the plaintiff. Suggestions in cross examination have no evidentiary value. In absence of any evidence, nor any material traced in the cross-examination in support thereof, the findings so far could not have been answered in the affirmative by the Trial Court as well as by this Court in the First Appeal.”
In Bibhuti Bhusan Roy v. State of West Bengal, 2019 CrLJ 1140, held that mere suggestion in cross-examination unsupported by defence evidence has no evidentiary value.
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