Saji Koduvath Associates

Recovery of Possession Based on Title and on Earlier Possession

Jojy George Koduvath

Abstract

Suit on title for Recovery Against a Trespasser –
# Plaintiff has to succeed on the strength of his title.
# Suit on title – if plaintiff shows high degree of probability, onus shifts.
# Suit on title – once the onus is on the defendant, it is for the defendant to discharge his onus and in the absence thereof the burden of proof lying on the plaintiff shall be held to have been discharged so as to amount to proof of the plaintiff’s title.
# Suit on title – even if the defendant claims title as owner and fails to prove it, the plaintiff can win only if he establishes his title.
# Suit on title – if the defendant establishes his right to continue possession (honouring title of the plaintiff) as lessee, licencee, mortgagee etc., the plaintiff will fail.

Suit on possession under Sec. 6 of the Sp. Relf. Act –
# If a person is dispossessed ‘otherwise than in due course of law’, he can recover the property under Sec. 6 of the Sp. Relf. Act, on the strength of his earlier possession.
# Suit on possession – Though title is not perfected by adverse possession, one (plaintiff) in possession can eject a trespasser under Sec. 6 of the Sp. Relf. Act.

Introduction

Plaintiff has to win the title-suit (E.g. suit against a trespasser) on the strength of his title; and not on the weakness of the defence.
Landlord who is also the owner can recover his leased property on the strength of his title (if the tenant ‘forfeits’ the tenancy by claiming ownership in him or in a case where the lease is illegal); and evict the tenant on legal termination of tenancy.
Even if the owner/landlord failed to proves lease, he can recover the property on the strength of his title if the tenant ‘forfeits’ the tenancy by claiming ownership in him.
Landlord who is not the owner can evict the tenant on legal termination of tenancy; and on ‘forfeiture’ of the tenancy by the tenant by claiming ownership in him or in a case where the lease is illegal. In all these cases, the landlord should have proved tenancy.
The right of the owner/landlord to recover the property on the strength of his title is based on the principle that a tenant cannot deny the title of the landlord/owner (Sec. 116 of the Evidence Act).
Tenant can resist title-suit of owner or eviction-suit (after issuing Sec. 106 TP Act notice) by landlord, raising plea of ‘adverse possession’. The tenant cannot plead both title on adverse possession and right as lessee. It is on the principle – one cannot approbate and reprobate.
Once the title as owner or right as landlord is proved by the plaintiff, the tenant can succeed only if he wins on “adverse possession”

Plaintiff to Win Title-Suit, on the Strength of his Title

In City Municipal Council Bhalki v. Gurappa, 2016-2 SCC 200, it is held as under:

“31. It is a settled position of law that in a suit for declaration of title and possession, the onus is upon the plaintiff to prove his title. Further, not only is the onus on the plaintiff, he must prove his title independently, and a decree in his favour cannot be awarded for the only reason that the defendant has not been able to prove his title, as held by this Court in Brahma Nand Puri v. Neki Puri, AIR 1965 SC 1506, as under: (AIR p. 1508, para 8)
“8. … The plaintiff’s suit being one for ejectment he has to succeed or fail on the title that he establishes and if he cannot succeed on the strength of his title his suit must fail notwithstanding that the defendant in possession has no title to the property….”

In Vijay Pullarwar v. Shri Hanuman Deostan, (2019) 11 SCC 718, the suit for possession instituted by the plaintiffs trust on the basis of title, was found to be devoid of merits; for, there was no reference in the registration application of the public trust under the BPT Act, 1950 or in schedule I, where to record the properties of the public trust, that the suit property belonged to the trust. Our Apex Court held as under:

“Needless to observe that the plaintiffs/respondents were primarily obliged to establish their title in the suit house bearing No.878 in Circle No.3 where the Padukas of Saint Haridas Baba have been installed, as being the property of the plaintiff trust. The plaintiffs must succeed or fail on the title they establish; and if they fail to do so, they must fail to get the relief of possession irrespective of title of the defendant in the suit property (See: Brahma Nand Puri v. Naki Puri, (1965) 2 SCR 233 and Bajaranglal Shivchandrai Ruia v. Shashikant N. Ruia, (2004) 5 SCC 272).”

If Admission or Materials – Idle To Contend, No Sufficient Evidence

In National Insurance Co. Ltd. v. Rattani, 2009-2 SCC 75, it has been held:

“The question as to whether burden of proof has been discharged by a party to the lis or not would depend upon the facts and circumstances of the case. If the facts are admitted or, if otherwise, sufficient materials have been brought up on record so as to enable a court to arrive at a definite conclusion, it is idle to contend that the party on whom the burden lies could still be liable to produce sufficient evidence.”

Proof of Title – Preponderance of Probability Sufficient

In Kshetrimayum Ibohal Singh v. Ibemhal Devi, 2012-112 AIC 769; 2011-3 GauLD 803; 2011-6 GauLJ 629; 2012-6 GauLR 680; 2011 5 GauLT 680; 2012-4 NEJ 387, it is held as under: 525;

“In a civil suit, the plaintiff cannot be expected to prove his title beyond any reasonable doubt; a high degree of probability lending assurance of the availability of title with him would be enough to shift the onus on the defendant and if the defendant does not succeed in shifting back the onus, the plaintiff’s burden of proof can safely be deemed to have been discharged.” (relied on: R.V.E. Venkatachala Gounder v. Arulmigu Viswesaraswami, AIR 2003 SC 4548: (2003) 8 SCC 752.)

In Kshetrimayum Ibohal Singh, the Gauhati High Court relied on J. Yashoda v. K. Shobha Rani: (2007) 6 SCC 730, which held that the rule which is most universal, namely, that best evidence the nature of the case will admit shall be produced only means that, so long as the higher or superior evidence is within the possession of a person or may be reached by a person, that person shall give no inferior proof in relation toil.

R.V.E. Venkatachala Gounder v. Arulmigu Viswesaraswami: Onus Shifts

In a suit for recovery on title, where both plaintiff and defendant claim title, if plaintiff has been able to create a high degree of probability, he will Win, if the defendant fails to discharge his onus. In R.V.E. Venkatachala Gounder v. Arulmigu Viswesaraswami, AIR 2003 SC 4548: (2003) 8 SCC 752, the law is stated in the following terms :

“29. In a suit for recovery of possession based on title it is for the plaintiff to prove his title and satisfy the court that he, in law, is entitled to dispossess the defendant from his possession over the suit property and for the possession to be restored to him. However, as held in A. Raghavamma v. A. Chenchamma, AIR 1964 SC 136, there is an essential distinction between burden of proof and onus of proof: burden of proof lies upon a person who has to prove the fact and which never shifts. Onus of proof shifts. Such a shifting of onus is a continuous process in the evaluation of evidence. In our opinion, in a suit for possession based on title once the plaintiff has been able to create a high degree of probability so as to shift the onus on the defendant it is for the defendant to discharge his onus and in the absence thereof the burden of proof lying on the plaintiff shall be held to have been discharged so as to amount to proof of the plaintiff’s title.”

Quoted in:

Anil. Rishi v. Gurbaksh Singh, (2006) 5 SCC 558;
Sebastiao Luis Fernandes v K. V. P. Shastri, 2013-15 SCC 161;
City Municipal. Council, Bhalki v. Gurappa, (2016) 2 SCC 200)

Referred to in:

Mahakali Sujatha v. Branch Manager, Future Generali India Life Insurance Company Limited, AIR 2024 SC 2019; 22024-8 SCC 712
Smriti Debbarma v. Prabha Ranjan Debbarma, AIR 2023 SC 379; 2023-1 SCR 355
Mohd. Abdullah Azam Khan Vs. Nawab Kazim Ali Khan, 2022-11 JT 214; 2022-16 Scale 689

In Smriti Debbarma v. Prabha Ranjan Debbarma, AIR 2023 SC 379; 2023-1 SCR 355,it is held bu our Apex Court as under:

“31. The burden of proof
- [See Paragraph 19 in Anil Rishi v. Gurbaksh Singh, (2006) 5 SCC 558 where the expression ‘burden of proof’ is used in three ways, namely, (i) to indicate the duty of bringing forward evidence in support of a proposition at the beginning or later; (ii) to make that of establishing a proposition as against all counter-evidence; and (iii) an indiscriminate use in which it may mean either, or both of the others.]
to establish a title in the present case lies upon the plaintiff as this burden lies on the party who asserts the existence of a particular state of things on the basis of which she claims relief [See Addagada Raghavamma and Another v. Addagada Chenchamma and Another, AIR 1964 SC 136.] This is mandated in terms of Sec. 101
- [Sec. 101: Burden of Proof.- Whoever desires any Court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts, must prove that those facts exist. When a person is bound to prove the existence of any fact, it is said that the burden of proof lies on that person.]
of the Evidence Act, which states that burden on proving the fact rests with party who substantially asserts in the affirmative and not on the party which is denying it. This rule may not be universal and has exceptions,[See Ss. 103, 104 and 105 of the Evidence Act.] but in the factual background of the present case, the general principle is applicable. In terms of Sec. 102
- [Sec. 102: On whom the burden of proof lies.- The burden of proof in a suit or proceeding lies on that person who would fail if no evidence at all were given on either side.]
of the Evidence Act, if both parties fail to adduce evidence, the suit must fail.[See Anil Rishi v. Gurbaksh Singh, (2006) 5 SCC 558.] Onus of proof, no doubt shifts and the shifting is a continuous process in the evaluation of evidence, but this happens when in a suit for title and possession, the plaintiff has been able to create a high degree of probability to shift the onus on the defendant. In the absence of such evidence, the burden of proof lies on the plaintiff and can be discharged only when he is able to prove title.[See R.V.E. Venkatachala Gounder v. Arulmigu Viswesaraswami V.P. Temple and Another, (2003) 8 SCC 752.] The weakness of the defence cannot be a justification to decree the suit. [See Union of India and Others v. Vasavi Cooperative Housing Society Limited and Others, (2014) 2 SCC 269.] The plaintiff could have succeeded in respect of the Schedule ‘A’ property if she had discharged the burden to prove the title to the Schedule ‘A’ property which squarely falls on her. This would be the true effect of Ss. 101 and 102 of the Evidence Act. [See Sebastiao Luis Fernandes (DEAD) Through LRs. And Others v. K.V.P. Shastri (DEAD) Through LRs. And Others, (2013) 15 SCC 161.]
Therefore, it follows that the plaintiff should have satisfied and discharged the burden under the provisions of the Evidence Act, failing which the suit would be liable to be dismissed.”

When evidence has been led by both sides, “onus” is out of place

“Where, however, evidence has been led by the contesting parties, abstract considerations of onus are out of place and truth or otherwise must always be adjudged on the evidence led by the parties [Kalwa Devadattam vs. Union, AIR 1964 SC 880]”

If Title of Plaintiff is Nullity, Defendant Need Not file a Substantive Suit;

Plaintiff in ejection suit must succeed or fail on his title
If Plaintiff Shows Apparent Title, Defendant to Plead Defects Thereon
Once the plaintiff shows high degree of probability shift the onus

In Bajaranglal Shivchandrai Ruia v. Shashikant N. Ruia, AIR 2004 SC 2546, the defendants contended that the plaintiff’s title, on the basis of the alleged auction sale ‘was a nullity, as it was ultra vires the legal provisions and on the ground of lack of jurisdiction, non-service of demand notice on all the heirs and co-owners’. It was contended from the part of the (original) plaintiff that the sale proceedings could be challenged only by way of a substantive suit, and that the High Court was right in characterising the challenge to the suit by the defendant as a ‘backdoor method’. The Apex Court held as under:

“If the title claimed by the plaintiff was a nullity and wholly void, there was no need for any of the defendants including Bajranglal to challenge it by way of a substantive suit. They could always set up nullity of title as a defence in any proceeding taken against them based upon such title. If, in fact, the sale was a nullity, it was non est in the eye of law and all that defendant had to do was point this out. (See in this connection: Ajudh Raz and Ors. v. Moti S/o Mussadi, [1991] 3 SCC 136 and the opinion of the Full Bench of the Bombay High Court in Abdulla Mian v. Government of Bombay, (1942) 44 Bom LR 577.
In Vidyadhar v. Manikrao and Anr., [1999] 3 SCC 573, the plaintiff had filed a suit on the basis of a sale deed executed by D-2 in his favour and sought the relief of possession of the property from defendant no. 1 who was an absolute stranger to the sale deed. The question which arose was whether defendant No. l, who was in possession, could justify his possession by urging the nullity of sale transaction between the plaintiff and defendant No. 2. In these circumstances, this Court held (vide para 21):
- ‘The above decisions appear to be based on the principle that a person in his capacity as a defendant can raise any legitimate plea available to him under law to defeat the suit of the plaintiff. This would also include the plea that the sale deed by which the title to the property was intended to be conveyed to the plaintiff was void or fictitious or, for that matter, collusive and not intended to be acted upon. Thus, the whole question would depend upon the pleadings of the parties, the nature of the suit, the nature of the deed, the evidence led by the parties in the suit and other attending circumstances.’
Here, the plaintiffs suit is for ejection of the defendant and for possession of the suit property. She must succeed or fail on the title that she establishes. If she cannot succeed in proving her title, the suit must fail notwithstanding that the defendant in possession may or may not have title to the property. (See in this connection: Brahma Nand Puri v. Neki Puri, [1965] 2 SCR 233 at p. 237).
Appellant Bajranglal had sufficiently pleaded in his written statement the defects in the title of the plaintiff and it was, therefore, open for the learned Single Judge to go into this question and decide if the plaintiff had good title or not. …… In our view, the finding of the learned Single Judge that the plaintiff’s title was invalid and non est for contravention of the provisions of Section 206 of the BMC Act and the Regulations made thereunder, is fully justified and brooked no interference in appeal. ……. In our view, the principle in Vidyadhar’s case clearly applies to the case on hand.”

Section 116 of the Evidence Act

Section 116 of the Indian Evidence Act reads as under:

“Estoppel of tenant; and of licensee of person in possession. No tenant of immovable property, or person claiming through such tenant, shall, during the continuance of the tenancy, be heard to deny that the landlord of such tenant had, at the beginning of the tenancy, a title to such immovable property.”

In Sri Ram Pasricha v. Jagannath, AIR 1976 SC 2335: 1976 4 SCC 838, it is held as under:

“The tenant in such a suit is estopped from questioning the title of the landlord under section 116 of the Evidence Act. The tenant cannot deny that the landlord had title to the premises at the commencement of the tenancy. Under the general law, in a suit between landlord and tenant the question of title to the leased property is irrelevant”.

The principle behind the proposition, which asserts that the owner/landlord has the right to recover the property based on his title if the defendant-tenant raises claim of title, is founded upon the notion that a tenant is precluded from disputing the title of the landlord or owner, as laid down in Section 116 of the Evidence Act.

Bar u/S. 116: Not Extend To Challenge – Landlord Lost Tile After ‘Commencement Of The Tenancy’

D. Satyanarayana v. P. Jagadish (A.P. Sen, B.C. Ray, JJ.), AIR 1987 SC2192, 1987 (4) SCC 424, is a leading decision on this matter.

(Note: ‘D. Satyanarayana v. P. Jagadish’ is said to be an exception to the general rule. See: Masonic Club v. Jamna Lodge, 2014-207 DLT 62; 2014-140 DRJ 396; L. Rs. of Arjun Lal v. L. Rs. of Kundan Lal, 2013 AIR(CC) 2193; 201260 RCR(Civ) 769 (Raj); M. L. Dawar v. M. L. Seth, 2011-125 DRJ 564 (Del); Manoharlal v. Baijnath Jalan, 2005-4 Jhk CR 58; 2005-3 Jhk LJR 474.)

The following are the facts (of D. Satyanarayana v. P. Jagadish) in a nutshell.

The owner had leased the demised premises to a tenant. The (original) tenant sub-leased it to the respondent. The head-lessor (owner) served a notice of eviction on the sub-tenant, alleging that there was unlawful subletting by the lessee. The sub-tenant atoned in favour of the original lessor and started paying monthly rent directly to the superior landlord (owner).

In this decision, it is held that the estoppel or bar under Sec. 116 of the Evidence Act operates only –

(i) during the continuance of the tenancy,
(ii) to the challenge of the title of the landlord at the beginning of the tenancy.

In this decision, it is held as under:

“3. …Section 116 of the Evidence Act provides that no tenant of immovable property shall, during the continuance of the tenancy, be permitted to deny that the landlord of such tenant had, at the beginning of the tenancy, a title to such immovable property. Possession and permission being established, estoppel would bind the tenant during the continuance of the tenancy and until he surrenders his possession. The words ‘during the continuance of the tenancy’ have been interpreted to mean during the continuance of the possession that was received under the tenancy in question, and the Courts have repeatedly laid down that estoppel operates even after the termination of the tenancy so that a tenant who had been let into possession, however, defective it may be, so long as he has not openly surrendered possession, cannot dispute the title of the landlord at the commencement of the tenancy…”
“4. The rule of estoppel embodied under Section 116 of the Evidence Act is that, a tenant who has been let into possession cannot deny his landlord’s title, however defective it may be, so long as he has not openly restored possession by surrender to his landlord…”

It was further held that since (or, after) the date of tenancy, the title of landlord came to an end; for, the head-lessor (owner) served a notice of eviction on the sub-tenant, alleging that there was unlawful subletting by the lessee, and the sub-tenant atoned in favour of the original lessor. It was pointed out –

A tenant is not estopped from contending that the title of the lessor has “since come to an end” (or the landlord lost title after the commencement of the tenancy),

The Apex Court (in D. Satyanarayana v. P. Jagadish) quoted from Mangat Ram & Anr. v. Sardar Meharban Singh, AIR 1987 SC 1656, (1987) 4 SCC 319, (A.P. Sen, V. Balakrishnan Eradi, JJ.) saying:

“Quite recently, this Court in Mangat Ram v. Sardar Meharban Singh, [1987] 1 Scale 964, to which one of us was a party, observed:
“The estoppel contemplated by s. 116 is restricted to the denial of title at the commencement of the tenancy and by implication it follows that a tenant is not estopped from contending that the title of the lessor has since come to an end.”

See also: Fida Hussain v. Fazal Hussain & Ors., AIR (1963) MP 232,
K.S.M. Guruswamy Nadar v. N.G. Ranganathan, AIR (1954) Mad. 402,
S.A.A. Annamalai Chettiar v. Molaiyan & Ors., AIR (1970) Mad. 396 and
Chidambara Vinayagar Devasthanam v. Duraiswamy, ILR (1967) 1 Mad. 624.”

D. Satyanarayanana v. P. Jagdish Distinguished

In E. Parashuraman (v. V. Doraiswamy, AIR 2006 SC 376; 2006-1 SCC 658, it is stated as under:

“18. We have carefully examined the decisions of this Court in D. Satyanarayanana vs. P. Jagdish (supra) and A.V.G.P. Chettiar and Sons and others vs. T. Palanisamy Gounder : (2002) 5 SCC 337 and we are of the view that the principles laid down therein are not applicable to the facts of this case. The exception to the rule of estoppel embodied under Section 116 of the Evidence Act arises if it is shown that since the date of the tenancy of title of the landlord came to an end, or that he was evicted by a paramount title holder, or that even though there was no actual eviction or dispossession from the property, under a threat of eviction, the tenant had attorned to the paramount title holder and a new jural relationship of landlord and tenant had come into existence between them. Such a situation has not arisen in the instant case. In this case there is no finding that the title of the landlord has come to an end. The Corporation has not established its title in any proceeding in accordance with law. In these circumstances the exception to the rule of estoppel embodied in Section 116 of the Evidence Act cannot be pleaded by the appellants.”

Sec. 116 ceases to have applicability once the tenant has been evicted

In Vashu Deo v. Balkishan, 2002-1 SCR 171, it is held that Sec. 116 ceases to have applicability once the tenant has been evicted. (It stands incongruent to the view in D. Satyanarayana v. P. Jagadish where it was held – estoppel operates even after the termination.) It is said as under:

“6. …Section 116 of the Evidence Act, which codifies the common law rule of estoppel between landlord and tenant, provides that no tenant of immovable property or person claiming through such tenant, shall, during the continuance of the tenancy, be permitted to deny that the landlord of such tenant had at the beginning of the tenancy, a title to such immovable property. The rule of estoppel so enacted has three main features :
- .(i) the tenant is estopped from disputing the title of his landlord over the tenancy premises at the beginning of the tenancy;
- (ii) such estoppel continues to operate so long as the tenancy continues and unless the tenant has surrendered possession to the landlord; and
- (iii) Section 116 of the Evidence Act is not the whole law of estoppel between the landlord and tenant.
The principles emerging from Section 116 can be extended in their application and also suitably adapted to suit the requirement of an individual case… the rule of estoppel ceases to have applicability once the tenant has been evicted. His obligation to restore possession to his landlord is fulfilled either by actually fulfilling the obligation or by proving his landlord’s title having been extinguished by a paramount titleholder…”

Forfeiture of tenancy under Clause (g) of Section 111 of the TP Act

In Sheela v. Firm Prahlad Rai Prem Prakash (Ruma Pal, R.C. Lahoti, JJ.), AIR 2002 SC 1264; 2002-3 SCC 375 it is held as under:

“In our opinion, the denial or disclaimer to be relevant for the purpose of Section 12(1)(c) should take colour from Section 116 of the Evidence Act and Section 111(g) of the Transfer of Property Act. Section 116 of the Evidence Act embodies therein a rule of estoppel. No tenant of immovable property, or person claiming through such tenant, shall, during the continuance of the tenancy, be permitted to deny that the landlord of such tenant had, at the beginning of the tenancy, a title to such immovable property. This estoppel, so long as it binds the tenant, excludes the tenant from raising a plea disputing the title of his landlord at the commencement of the tenancy. It flows as a corollary therefrom that the proof of landlord-tenant relationship tantamounts during the continuance of tenancy to proof of ownership of landlord over the tenancy premises at the beginning of the tenancy so far as the tenant is concerned. It is significant to note that on the phraseology of Section 116 of the Evidence Act the rule of estoppel applies so long as the tenancy is not terminated and the rule estops the tenant from laying challenge to the ownership of the landlord at the commencement of the tenancy. But the rule of estoppel as incorporated in Section 116 is not exhaustive and it may be extended or suitably modified in its application to other situations as well, retaining the basic feature of the rule.
“Clause (g) of Section 111 of the Transfer of Property Act, insofar as relevant for our purpose, provides that a lease of immovable property determines by forfeiture in case the lessee renounces his character as such by setting up a title in a third person or by claiming title in himself. This provision contemplates two fact – situations which entail the lessee having renounced his character as such and they are: (i) when the lessee sets up a title in a third person, or (ii) when he claims title in himself.
“In either case, the tenant has disputed and denied the title of his landlord because a title in third person or title in himself cannot co-exist with the title in the landlord.
13. The law as to tenancy being determined by forfeiture by denial of the lessor s title or disclaimer of the tenancy has been adopted in India from the Law of England where it originated as a principle in consonance with Justice, equity and good conscience. On enactment of the Transfer of Property Act, 1882, the same was incorporated into clause (g) of Section 111. So just is the rule that it has been held applicable even in the areas where the Transfer of Property Act does not apply (See – Raja Mohammad Amir Ahmad Khan vs. Municipal Board of Sitapur and Anr. – AIR 1965 SC 1923). The principle of determination of tenancy by forfeiture consequent upon denial of the lessor s title may not be applicable where rent control legislation intervenes and such legislation while extending protection to tenants from eviction does not recognize such denial or disclaimer as a ground for termination of tenancy and eviction of tenant. However, in various rent control legislations such a ground is recognized and incorporated as a ground for eviction of tenant either expressly or impliedly by bringing it within the net of an act injurious to the interest of the landlord on account of its mischievous content to prejudice adversely and substantially the interest of the landlord.
“14. Denial of landlord’s title or disclaimer of tenancy, is it an act injurious to interest of landlord? How does this rule operate and what makes it offensive Evans & Smith state in the Law of Landlord and Tenant (Fourth Edition, 1993, at p.89) that it is an implied condition of every lease, fixed-term or periodic and formal or informal, that the tenant is not expressly or deny the landlord s title or prejudice it by any acts which are inconsistent with the existence of a tenancy. Disclaimer of the landlord’s title is analogous to repudiation of a contract. The rule is of feudal origin; the courts are not anxious to extend it, and so any breach of this condition must be clear and unambiguous. Hill & Redman in Law of Landlord and Tenant (Seventeenth Edition, para 382, at page 445-446) dealing with “Acts which prejudice lessor s title” state that there is implied in every lease a condition that the lessee shall not do anything that may prejudice the title of the lessor; and that if this is done the lessor may re-enter for breach of this implied condition. Thus, it is a cause of forfeiture if the lessee denies the title of the lessor by alleging that the title of the landlord is in himself or another; or if he assists a stranger to set up an adverse title or delivers the premises to him in order to enable him to set up a title. It is a question of fact, however, what intention underlies the words or the actions of a tenant, whether in fact he is definitely asserting a title adverse to the landlord or, as the case may be, intending to enable someone else to set up such a title. Thus, it is not sufficient that the lessee does not at once acknowledge the title of the landlord and a general traverse in the defence to an action for possession does no more than put the landlord to proof and does not assert that the title is in another. The essential characteristic of disclaimer by tenant as stated in Foa s General Law of Landlord and Tenant (Eight Edition, para 934, at p.589) is that it must amount to a renunciation by the tenant of his character of tenant, either by setting up a title in another, or by claiming title in himself. A mere renunciation of tenancy without more, though it may operate as a surrender, cannot amount to a disclaimer. The denial, though it need not be express and can be implied, must nevertheless be a clear denial and it must be clearly proved.”

Recovery on “GENERAL TITLE” and “SUPERIOR TITLE“

The legal proposition on “General Title” is seen adhered to in Mt. Sewti v.Rattan, AIR 1951 HP 54. It is observed as under:

“It has therefore been held that where a suit for recovery of possession of property based on a lease fails, a subsequent suit to recover the same property on the strength of general title is not barred by res judicata: Zamorin v. Narayanan, 22 Mad. 323 and Kuttt Ali v. Cindan, 23 Mad. 629.”

The legal proposition on “Superior Title” is seen adhered to in Shankarlal v. Gangabisan, AIR 1972 Bom 326, and it is observed as under:

“The plaintiff could have sued upon this document and the claim in that case would have been under the contract. But the plaintiff in the subsequent suit did not sue upon the contract but he sued upon his general title as the owner of the property. He alleged that the defendants were trespassers and that the plaintiff was entitled to get possession and further damages on the basis of his title as stated in the passage we have quoted above. Therefore, the plaintiff was claiming in the second suit on the basis not of a title arising under the contract but dehors the contract. In other words, the plaintiff was seeking to enforce in the subsequent suit his general title as owner and not his title to get back the property under the contract of lease. It is clear therefore that this title was superior to the contract between the parties and it was by virtue of this superior title that the plaintiff claimed in the second suit. The respective causes of action in the earlier suit and in the subsequent suit were therefore entirely distinct and separate.”

Landlord can win the TITLE SUIT if he Proves his GENERAL TITLE

In Biswanath Agarwalla v. Sabitri Bera, (2009) 15 SCC 693, the plaintiff-landlord sued defendant for eviction. The Defendant claimed title over the property. It is held–

“The landlord in a given case^#* although may not be able to prove the relationship of landlord and tenant, but in the event he proves his GENERAL TITLE, may obtain a decree on the basis thereof.”
- ^#^*Tenant challenges title of landlord; and no special law (e.g., BRC Act) bars to give such a relief in ‘civil suit’.
This decision is referred to in TribhuvanShankar v. Amrutlal (S.B. Sinha and Deepak Misra, JJ.), 2014-2 SCC 788.

In Biswanath Agarwalla v. Sabitri Bera, (2009) 15 SCC 693, the question was formulated by the Court as under:

“Whether a Civil Court can pass a decree on the ground that the defendant is a trespasser in a simple suit for eviction is the question involved in this appeal.”

Following were the facts:

The defendant-tenant entered the suit shop in 1970.
Plaintiffs purchased the suit premises in 1980.
The plaintiffs served a notice on the defendant under Sec. 106, TP Act.
Plaintiffs filed Suit for eviction claiming to be the owners and landlords.
Defendant denied that he had ever been a tenant.
He claimed independent title. He claimed to have an agreement for sale with the owner.

The trial judge dismissed the suit on the following findings, in a nutshell –

.i. The plaintiffs proved to be the owner.
ii. The defendant failed to prove his independent title.
iii. The plaintiffs failed to prove the relationship of landlord and tenant.
iv. The plaintiffs having failed to prove the tenancy, not entitled to a decree.

Appellate Court, relying on AIR 1984 ROC 78 (All.), page 35, and AIR 1984 All. 66 allowed the appeal and decreed the suit.

The High Court dismissed the Second Appeal.

The Apex Court in Appeal, on special leave, (Biswanath Agarwalla v. Sabitri Bera, (2009) 15 SCC 693) proceeded on the proposition on GENERAL TITLE.

The Plaintiffs- respondents contended as under:

.i. Even in a suit for eviction, the plaintiffs would be entitled to obtain a decree for possession relying on or on the basis of his title.
ii. In a suit for eviction, it is for the defendant to show that he has a right to remain on the tenanted premises either as a permanent tenant or otherwise.

The right of the plaintiff (landlord) to recover, on the basis of “GENERAL TITLE” is asserted by the Supreme Court (Biswanath Agarwalla v. Sabitri Bera, (2009) 15 SCC 693) referring following decisions.

1. Radha Devi v. Ajay Kumar Sinha, 1998 (2) BLJR 1061.

The Patna High Court accepted that a landlord is entitled to obtain a decree of eviction on the basis of his GENERAL TITLE, though he could not prove the relationship of landlord and tenant (when the tenant raised false claim of title).

2. Champa Lal Sharma v. Smt. Sunita Maitra, S.B. Sinha, J., (1990) 1 BLJR 268. It was held:

“It, therefore, logically follows that a finding of existence of relationship of landlord and tenant is a sine qua non for passing a decree for eviction against a tenant except in a case, as mentioned hereinbefore*^* the plaintiff on payment of ad valorem Court fee may obtain a decree for eviction on the basis of his general title. (Quoted in: Radha Devi v. Ajay Kumar Sinha, 1998-2 BLJR 1061; Biswanath Agarwala v. Sabitri Bera 2009-15 SCC 693)
- *^* Tenant challenges title of landlord; and no special law (e.g., BRC Act) bars to give such a relief.
“It is also well settled that one such relationship is admitted or established, tenant would be estopped and precluded from challenging the title of the landlord and if he does so, under the general rule, make himself liable for eviction on that ground.
It, therefore, logically follows that a finding of existence of relationship of landlord and tenant is a sine qua non for passing a decree for eviction against a tenant except in a case, as mentioned hereinbefore the plaintiff on payment of ad valorem Court fee may obtain a decree for eviction on the basis of his GENERAL TITLE.”

3. Hajee Golam Hossain Ostagar v. Sheik Abu Bakkar, AIR 1936 Cal. 351.

It was held – in a suit for ejectment, if the defendant claims the right to remain on a land permanently, he was ‘bound to show‘ the right ‘wherefore the onus would be on him‘.

The Apex Court remanded the case with the following direction:

“The plaintiffs may file an application for grant of leave to amend his plaint so as to enable him to pray for a decree for eviction of the defendant on the ground that he is a trespasser.”

In Abdul Waheed Khan v. Bhawani, AIR 1966 SC 1718, it was pointed out that unless jurisdiction was excluded the civil court has jurisdiction entertain a suit based title.

Payment of ad valorem court fee needed to obtain a decree on general title

In Anil Bansal v. Dinesh Kohli, ILR 2017-4 HP 524, it is held as under:

“22. It, therefore, logically follows that a finding of existence of relationship of landlord and tenant is a sine qua non for passing a decree for eviction against a tenant except in a case, as mentioned hereinbefore, the plaintiff on payment of ad valorem court fee may obtain a decree for eviction on the basis of his general title.”

Burden of Proof General Principles and Nuances of Sections 101 to 106

Our Apex Court in Mohd. Abdullah Azam Khan Vs. Nawab Kazim Ali Khan, 2022-11 JT 214; 2022-16 Scale 689, authoritatively lays down the General principles as to Burden of Proof. It reads:

12.1. The legal scheme governing various aspects of ‘burden of proof’ in the Indian context, is contained in Sections 101 to 106 of the Indian Evidence Act.
12.2. As per Section 101 of the Indian Evidence Act, when a person is bound to prove the existence of any fact, it is said that the burden of proof lies on that person. This section is based on the rule, ei incumbit probatio qui dicit, non qui negat, which means that the burden of proving a fact rests on the party who substantially asserts the affirmative of the issue and not upon the party who denies it, because a negative is usually incapable of proof. The burden of proving a fact always lies upon the person who asserts and until such burden is discharged, the other party is not required to be called upon to prove his case. The court has to examine as to whether the person upon whom the burden lies has been able to discharge his burden. However, the above rule is subject to the general principle that things admitted need not be proved.
12.3. The question as to whether burden of proof has been discharged by a party to the lis or not, would depend upon the facts and circumstances of the case. If the facts are admitted or, if otherwise, sufficient materials have been brought on record so as to enable a Court to arrive at a definite conclusion, it is idle to contend that the party on whom the burden of proof lies would still be liable to produce direct evidence, vide National Insurance Co. Ltd. vs. Rattani (2009) 2 SCC 75: AIR 2009 SC 1499.
12.4. Burden to prove documents lie on plaintiff alone as onus is always on the person asserting a proposition or fact which is not selfevident. This position is summarised in the observation to the effect that, an assertion that a man who is alive was born requires no proof; the onus, is not on the person making the assertion, because it is selfevident that he had been born. But to assert that he had been born on a certain date, if the date is material, requires proof; the onus is on the person making the assertion, vide Robins vs. National Trust & Co. Ltd. 1927 AC 515: 101 IC 903.
12.5. It is also to be noted at this juncture that there is an essential distinction between burden of proof and onus of proof. Burden of proof lies upon a person who has to prove the fact and it never shifts, onus of proof on the other hand, shifts. Such a shifting of onus is a continuous process in the evaluation of evidence. For instance, In a suit for possession based on title, once the plaintiff has been able to create a high degree of probability so as to shift the onus on the defendant, it is for the defendant to discharge his onus and in the absence thereof, the burden of proof lying on the plaintiff shall be held to have been discharged so as to amount to proof of the plaintiffs title, vide RVE Venkatachala Gounder vs. Arulmigu Viswesaraswami and VP Temple AIR 2003 SC 4548: (2003) 8 SCC 752.
12.6. In terms of section 102 of the Evidence Act, the initial burden to prove its claim is always on the plaintiff and if he discharges that burden and makes out a case which entitles him to a relief, the onus shifts to the defendant to prove those circumstances, if any, which would disentitle the plaintiff of the same.
12.7. Where, however, evidence has been led by the contesting parties, abstract considerations of onus are out of place and truth or otherwise must always be adjudged on the evidence led by the parties [Kalwa Devadattam vs. Union, AIR 1964 SC 880]
12.8. As per Section 103, the burden of proof as to any particular fact lies on that person who wishes the Court to believe in its existence, unless it is provided by any law that the proof of that fact shall lie on any particular person. This section amplifies the general rule in section 101 that the burden of proof lies on the person who asserts the affirmative of the issue. It lays down that if a person wishes the court to believe in the existence of a particular fact, the onus of proving that fact, is on him, unless the burden of proving it is cast by any law on any particular person.
12.9. Section 105 is an application of the rule in section 103. When parties to a dispute adduce evidence to substantiate their claim, onus becomes academic and divided, entailing each party to prove their respective plea.
12.10. Section 106 is an exception to the general rule laid down in Section 101, that the burden of proving a fact rest on the party who substantially asserts the affirmative of the issue. Section 106 is not intended to relieve any person of that duty or burden but states that when a fact to be proved is peculiarly within the knowledge of a party, it is for him to prove it. It applies to cases where the fact is especially within a party’s knowledge and to none else. The expression ‘especially’ used in Section 106 means facts that are eminently or exceptionally within one’s knowledge. This means a party having personal knowledge of certain facts has a duty to appear as a witness and if he does not go to the witness box, there is a strong presumption against him. In an Election Petition, the initial burden to prove determination of age of returned candidate lies on the petitioner, however, burden lies on the respondent to prove facts within his special knowledge. (Sushil Kumar vs. Rakesh Kumar [ (2003) 8 SCC 673) ].
12.11. The provisions of Section 106 are unambiguous and categorical in laying down that when any fact is especially within the knowledge of a person, the burden of proving that fact is upon him. If he does so, he must be held to have discharged his burden but if he fails to offer an explanation on the basis of facts within his special knowledge, he fails to discharge the burden cast upon him by Section 106. [Source: Sarkar on Law of Evidence, 20th Edition, Volume 2.]
12.12. In Sushil Kumar vs. Rakesh Kumar (supra), the controversy was with regard to the improper acceptance of the nomination of the sole respondent therein on the premise that he was under qualified to contest the Bihar Legislative Assemble election from 181, Parbatta Constituency. In the said case, inter alia, the horoscope of the respondent therein and admission register of New St. Xaviers School, Boring Road, Patna and transfer certificate issued by Swami Vivekananda Vidyalaya, Mithapur, Patna, were produced as documents to prove that the successful candidate therein was not eligible to contest the said Assembly election. In the said case, Section 35 of the Indian Evidence Act was referred to and it was observed that the register maintained in terms of a statute or by a statutory authority in regular course of business would be a relevant fact and if such vital evidence had been produced, it would clinch the issue. It was observed that there is no reliable evidence on record to show that the date of birth was recorded in the school register on the basis of the statement of any responsible person and that the admission register or a transfer certificate issued by a primary school do not satisfy the requirements of Section 35 of the Evidence Act.

The Supreme Court in the case of Gian Chand and Bros v. Rattan Lal, (2013) 2 SCC 606, has held as under:

18. It is well-settled principle of law that a person who asserts a particular fact is required to affirmatively establish it. In Anil Rishi v. Gurbaksh Singh [(2006) 5 SCC 558] (SCC p. 561, para 9), it has been held that the burden of proving the facts rests on the party who substantially asserts the affirmative issues and not the party who denies it and the said principle may not be universal in its application and there may be an exception thereto. The purpose of referring to the same is that if the plaintiff asserts that the defendant had acknowledged the signature, it is obligatory on his part to substantiate the same. But the question would be what would be the consequence in a situation where the signatures are proven and there is an evasive reply in the written statement and what should be construed as substantiating the assertion made by the plaintiff.
19. In Krishna Mohan Kul v. Pratima Maity [(2004) 9 SCC 468] it has been ruled thus: (SCC p. 474, para 12) “12. … When fraud, misrepresentation or undue influence is alleged by a party in a suit, normally, the burden is on him to prove such fraud, undue influence or misrepresentation.”
20. In Shashi Kumar Banerjee v. Subodh Kumar Banerjee [AIR 1964 SC 529] a Constitution Bench of this Court, while dealing with a mode of proof of a will under the Succession Act, 1925 observed that where the caveator alleges undue influence, fraud and coercion, the onus is on him to prove the same.
21. In A. Raghavamma v. A. Chenchamma [AIR 1964 SC 136], while making a distinction between burden of proof and onus of proof, a three-Judge Bench opined thus: (AIR p. 143, para 12) “12. … There is an essential distinction between burden of proof and onus of proof: burden of proof lies upon the person who has to prove a fact and it never shifts, but the onus of proof shifts. The burden of proof in the present case undoubtedly lies upon the plaintiff to establish the factum of adoption and that of partition. The said circumstances do not alter the incidence of the burden of proof. Such considerations, having regard to the circumstances of a particular case, may shift the onus of proof. Such a shifting of onus is a continuous process in the evaluation of evidence.”

If Sale on which Title rests is Vitiated, Title will be Nullity

It was held by the Bombay High Court in Sarang Avinash Kamtekar v. Alpha Organic (2005) relying on

(1) Himadri Coke and Petro Ltd. v. Soneko Developers (P) Ltd., (2005) 12 SCC 364;
(2) Bajaranglal Shivchandrai Ruia v. Shashikant N. Ruia, 2004(3) SCR 373; and
(3) A.V. Papayya Sastry v. Government of A.P., (2007) 4 SCC 221.

that a sale on which title of a party to the suit rests is vitiated, title will be bad in law.

Principle Not Applicable with its Full Vigor in a suit filed by the State

From R.V.E. Venkatachala Gounder v. Arulmigu Viswesaraswami, AIR 2003 SC 4548, it is clear that, though in a suit for recovery on title, a plaintiff cannot argue that the defendant failed to prove his title.

But, it may not be applicable with its full vigor in a suit filed by the State, for it is the paramount title holder of the property by virtue of the Constitution.

Read Blog: Ultimate Ownership of All Property Vests in State; It is an Incident of Sovereignty.

Law Recognises Efficacy of Possession in Section 6 of the Specific Relief Act

Section 6 of the Specific Relief Act allows one to file a suit for recovery of property, on the strength of his prior possession, if he had lost his possession within 6 months of the suit. In such a case, he need not prove his title; and he can succeed on establishing that he has been dispossessed otherwise than in accordance with law within six months.

Sec. 6 of the Specific Relief Act, 1963 reads as under:

6. Suit by person dispossessed of immovable property. (1) If any person is dispossessed without his consent of immovable property otherwise than in due course of law, he or any person claiming through him may, by suit, recover possession thereof, notwithstanding any other title that may be set up in such suit.
(2) No suit under this section shall be brought
- (a) after the expiry of six months from the date of dispossession; or
- (b) against the Government.
(3) No appeal shall lie from any order or decree passed in any suit instituted under this section, nor shall any review of any such order or decree be allowed.
(4) Nothing in this section shall bar any person from suing to establish his title to such property and to recover possession thereof.

If Title not Perfected by Adver. Posn, Can one Eject a Trespasser After 6 Months

High Courts differ, as pointed out in Kuttan Narayanan v. Thomman Mathayi, AIR 1966 Ker 179.

Now it is settled that if one fails to exercise his option by filing a suit under Section 6 of the Specific Relief Act within six months, he is at liberty to file a suit to recover his possession (with or without declaration) by a regular suit for recovery of possession. It can be based on title or on his possession in assumed or presumed character of ownership (even if title not perfected by doctrine of adverse possession) on the principle that possession is good title against all the world but the rightful owner. See: Kuttan Narayanan v. Thomman Mathayi, AIR 1966 Ker 179; Kanti Lal v. Smt. Shanti Devi, AIR 1997 Raj 230.

Read Blog: POSSESSION is a Substantive Right in Indian Law

Courts Protect Settled Possession

Possession by itself is a substantive right recognised by law.
- 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).
It is trite law that courts protect settled possession.
- Poona Ram v. Moti Ram, AIR 2019 SC 813
- Aarti v. Aruna Gautham. 2015 -1 RCR (Civil) 160,
- Rame Gowda v. M. Varadappa Naidu, 2004-1 SCC 769.
- Krishna Ram Mahale v. Shobha Venkat Rao, (1989) 4 SCC 131
- Ram Rattan v. State of Uttar Pradesh, (1977) 1 SCC 188.
- Puran Singh v. The State of Punjab, (1975) 4 SCC 518
- Munshi Ram v. Delhi Administration, (1968) 2 SCR 455.

Read Blog: Kesar Bai v. Genda Lal – Does Something Remain Untold?

Even Rightful Owner to Take Recourse to law; He cannot take the law in his own hands

In Rame Gowda v. M. Varadappa Naidu, (2004) 1 SCC 769, our Apex Court Court (R.C. Lahoti, B.N. Srikrishna, G.P. Mathur, JJ.) observed that the law will come to the aid of a person in peaceful and settled possession by injuncting even a rightful owner. It is held as under:

“8. It is thus clear that so far as the Indian law is concerned the person in peaceful possession is entitled to retain his possession and in order to protect such possession he may even use reasonable force to keep out a trespasser.
A rightful owner who has been wrongfully dispossessed of land may retake possession if he can do so peacefully and without the use of unreasonable force.
If the trespasser is in settled possession of the property belonging to the rightful owner, the rightful owner shall have to take recourse to law; he cannot take the law in his own hands and evict the trespasser or interfere with his possession.
The law will come to the aid of a person in peaceful and settled possession by injuncting even a rightful ownerfrom using force or taking law in his own hands, and also by restoring him in possession even from the rightful owner (of course subject to the law of limitation), if the latter has dispossessed the prior possessor by use of force.
In the absence of proof of better title, possession or prior peaceful settled possession is itself evidence of title. Law presumes the possession to go with the title unless rebutted. The owner of any property may prevent even by using reasonable force a trespasser from an attempted trespass, when it is in the process of being committed, or is of a flimsy character, or recurring, intermittent, stray or casual in nature, or has just been committed, while the rightful owner did not have enough time to have recourse to law. In the last of the cases, the possession of the trespasser, just entered into would not be called as one acquiesced to by the true owner.” (quoted in: Subramanya Swamy Temple, Ratnagiri v. V. Kanna Gounder, 2009-3 SCC 306; Poona Ram v. Moti Ram, AIR 2019 SC 813)

What is the settled possession or effective possession of a person without title which would entitle him to protect his possession even as against the true owner was made clear in Rame Gowda v. M. Varadappa Naidu, (2004) 1 SCC 769. It reads as under:

“9. …The “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. The phrase “settled possession” does not carry any special charm or magic in it; nor is it a ritualistic formula which can be confined in a straitjacket. An occupation of the property by a person as an agent or a servant acting at the instance of the owner will not amount to actual physical possession.” (quoted in Samarpan Varishtha Jan Parisar vs Rajendra Prasad Agarwal, AIR 2022 SC 2209)

Even the Rightful Owner cannot Eject a Trespasser with Force

In Karthiyayani Amma v. Govindan, AIR 1980 Ker 224, the Kerala High Court considered the question whether the rightful owner can eject a trespasser in possession with force; and whether a person in illegal possession could sustain a suit for injunction against the true owner, from forcibly dispossessing him from the property. It was held as under:

“The ultimate position, therefore, reduces itself to this:
Can a person in possession without title sustain a suit for injunction against the rightful owner if he proves possession?
Yes. In this case, plaintiff is found to in be possession. On the finding, he should be granted the injunction prayed for. A person in possession can be evicted only in due process of law. Even the rightful owner cannot eject him with force. If he cannot be evicted with force, he continues to be in possession and he can resist invasion of his possession by everyone including the rightful owner. If the rightful owner threatens his peaceful possession, he can approach Courts of Law and pray for the equitable relief of injunction to protect his possession”. (Followed in: Aiysumma v. Mariyamma, 1994-2 CIVCC 52, 1994-1 KerLT 570. )

It is pointed out in Suresh v. Ashok Girdharilal Chandak, 2016-1 MHLJ 171 that ‘bearing in mind the basic principle of law in civil jurisprudence that even a trespasser cannot be evicted without following due process of law and no one can be allowed to take law into his own hands to recover possession of the property without following due process of law and without proving title to the immovable property in possession of a person holding actual physical possession thereof’.

No Injunction in Favour of a Trespasser, Against the ‘True Owner’

It is observed by our Apex Court, in Prataprai N. Kothari v. John Braganza, AIR 1999 SC 1666, as under:

“It is quite obvious that the learned single Judge had not taken note of the principle of possessory title or the principle of law that a person who has been in long continuous possession can protect the same by seeking an injunction against any person in the world other than the true owner. It is also well settled that even the owner of the property can get back his possession only by resorting to due process of law.

Divergent Views are set out in Sopan Sukhdeo Sable v. Assistant Charity Commissioner, AIR 2004 SC 1801 also. They are the following:

first, a person in settled possession cannot be disposed by the owner except by recourse of law
second, a trespasser in possession cannotnot seek injunction against the true owner.

In this case, a forceful postulation is posed-

A trespasser ousted can seek restoration of possession under Section 6 of the Specific Relief Act, 1963, (even) against the true owner. If so, can’t the trespasser seek injunction as to possession, against the true owner?

In Sopan Sukhdeo Sable v. Assistant Charity Commissioner, AIR 2004 SC 1801, the appellants were the plaintiffs whose suit was rejected in terms of Order VII, Rule 11 of the Code of Civil Procedure. It is held in this decision as under:

“24. There are two different sets of principles which have to be borne in mind regarding course to be adopted in case of forcible dispossession. Taking up the first aspect, it is true that where a person is in settled possession of property, even on the assumption that he has no right to remain in property, he cannot be disposed by the owner except by recourse of law. This principle is laid down in Section 6 of the Specific Relief Act, 1963. That Section says that if any person is dispossession without his consent from immovable property otherwise than in due course of law, he or any person claiming through him may, by suit, recover possession thereof, notwithstanding any other title that may be set up in such suit. That a person without title but in “settled” possession – as against mere fugitive possession – can get back possession if forcibly dispossessed or rather, if dispossessed otherwise than by due process of law, has been laid down in several cases. It was so held by this Court in
- Yashwant Singh v. Jagdish Singh, AIR 1968 SC 620,
- Krishna Ram Mohate v. Mrs. Shobha Venkata Rao, (1989) 4 SCC 131 at p. 136;
- Ram Rattan v. State of UP, (1977) 1 SCC 188, and
- State of UP v. Maharaja Dharmender Prasad Singh, (1989) 2 SCC 505.
The leading decision quoted in these rulings is the decision of the Bombay High Court in
- K. K. Verma vs. Union of India, AIR 1954 Bom 358.
25. Now the other aspect of the matter needs to be noted. Assuming a trespasser ousted can seek restoration of possession under Section 6 of the Specific Relief Act, 1963 can the trespasser seek injunction against the true owner?
This question does not entirely depend upon Section 6 of the Specific Relief Act, but mainly depends upon certain general principles applicable to the law of injunctions and as to the scope of the exercise of discretion while granting injunction.
In Mahadeo Savlaram Sheike vs. Pune Municipal Corporation, (1995) 3 SCC 33, it was held, after referring to Woodrofe on “Law relating to injunction: L. C. Goyal Law of injunctions:
- David Bean Injunction Jayce on Injunctions and other leading Articles on the subject that the appellant who was a trespasser in possession could not seek injunction against the true owner.
In that context this Court quoted Shiv Kumar Chadha vs. MCD, (1993) 3 SCC 161, wherein it was observed that injunction is discretionary and that:
- “Judicial proceedings cannot be used to protect or to perpetuate a wrong committed by a person who approaches the Court.”
26. Reference was also made to Dalpat Kumar vs. Prahlad Singh (1992) 1 SCC 719 in regard to the meaning of the words prima facie case and balance of convenience and observed in Mahadeos case (supra) that:
- “It is settled law that no injunction could be granted against the owner at the instance of a person in unlawful possession.”
27. The question of forcible possession as claimed is also a matter which can be pressed into service by the parties before the trial Court and if raised the Court shall deal with it considering its relevance to the suit and accept it or otherwise reject the plea in accordance with law. We do not think it necessary to express any opinion in that regard.
28. …. Looking into the nature of dispute it would be appropriate if the trial Court makes an effort to complete the trial within six months from the date of the judgment. The parties are directed to co-operate for disposal of the suit early within the stipulated time. The appeal is allowed to the extent indicated without any order as to costs.”

Burden on plaintiff to Prove Title; Weakness of defence would not enable a decree

In Ram Chandra Sakharam Mahajan Vs. Damodar Trimbak, AIR 2007 SC 2577, it is observed –

In a recovery on title suit, the burden is on the plaintiff to establish title.
Court is also entitled to consider the rival title set up by the defendants.
Weakness of defence to establish title, would not enable plaintiff to a decree.

The Apex Court held:

“The suit is for recovery of possession on the strength of title. Obviously, the burden is on the plaintiff to establish that title. No doubt in appreciating the case of title set up by the plaintiff, the Court is also entitled to consider the rival title set up by the defendants. But the weakness of the defence or the failure of the defendants to establish the title set up by them, would not enable the plaintiff to a decree. There cannot be any demur to these propositions.”
“14. We find that the trial Court and the appellate Court were not justified in refusing the amendment of the plaint sought for by the plaintiff. No doubt there had been delay in seeking amendment but that delay could have been compensated by awarding costs to the contesting defendants 1 to 9. Therefore, we are satisfied that the amendment sought for by the plaintiff ought to have been allowed. We are inclined to allow the amendment sought for, since it would enable the Court to pin-pointedly consider the real dispute between the parties and would enable it to render a decision more satisfactorily to its conscience. We, therefore, allow the amendment as sought for by the plaintiff at a belated stage. The amendment will be carried out by the plaintiff in the trial Court within three months from this date as per the practice followed in the trial Court. Obviously defendants 1 to 9 would have an opportunity to file an additional written statement to the amended plaint. They will be entitled to file an additional written statement within a period of four months from the date of this judgment.”

LAW ON INSUFFICIENTLY STAMPED DOCUMENTS

Not to Admit Unstamped Documents Vs. Once Admitted, Cannot Question

Saji Koduvath, Advocate, Kottayam.

Introspection

The following forceful propositions stand paradoxical and incongruent.

1. Section 33 of the Stamp Act casts a duty on every authority including the Court to examine the document to find out whether it is duly stamped or not, irrespective of the fact whether an objection to its marking is raised or not. There is a duty upon every Judge under Sec. 35 of the Indian Stamp Act not to admit a document that is not duly stamped even if no objection to mark it.
2. Under Sec. 36 of the Indian Stamp Ac, the court should not exclude an insufficiently stamped (or unstamped) deed once marked without objection, or marked by mistake (overlooking the insufficiency of stamp).

Instruments Not Duly Stamped, Inadmissible

Sec. 35, Indian Stamp Act reads as under:

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

Unstamped document cannot be looked at even for any collateral purpose

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

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

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

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

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

Decisive point is ‘judicial determination’ and Not Whether Objection is Raised

In G. M. Shahul Hameed v. Jayanthi R. Hegde, AIR 2024 SC 3339 (Dipankar Datta, Pankaj Mithal, JJ.), it was emphatically held that the determinative point (as regards the ‘bar to question the marking of the document’) was not “objection” from the ‘opposite party’, but the decisive point is ‘judicial determination’ (alone), and it is “irrespective of whether objection is raised or not”.

Section 5 of the Indian Evidence Act, 1872 deals with relevancy. It says that ‘evidence may be given of facts in issue and relevant facts‘. The Court can also reject the document as it is inadmissible by exercising power under Order 13 Rule 3 CPC.

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.

“Admitted in Evidence”- admitted after “Judicial Consideration of Objections”

In Syed Yousuf Ali v. Mohd. Yousuf, (2016) 3 ALD 235 (M. Satyanarayana Murthy, J.), it is held –

The words “admitted in evidence” in Section 36 of the Indian Stamp Act mean admitted after “judicial consideration of objections” (applying its mind) relating to its admissibility (following, Athapuram Raghuramaiah v. Dyava Ramaiah, (2012) 6 ALD 505).
Mere marking for convenience of reference itself would not amount to admitting the document by applying judicial mind and it is not a judicial determination as to the admissibility of document in evidence.
The provisions of Stamp Act are fiscal in nature and such provisions have to be construed strictly.
It is the duty of the office to decide or determine judicially about admissibility of the document, irrespective of objection to avoid loss of revenue to the State
In the absence of any judicial determination about admissibility of the document, the same can be questioned at any stage though stamp is affixed marking the document as exhibit.
The Court can reject the document if it is irrelevant or inadmissible, at any stage of the suit, by exercising power under Order 13 Rule 3 CPC.
The objection as to admissibility can be raised by filing a petition to reject the document on the ground that it is inadmissible or by oral objection during pendency of the suit.
Oral objection (as to the admissibility under Order 13 Rue 3 CPC) can be raised by the counsel
Note: it appears that the observation of the court – “no judicial order can be passed on the memo”, is not supportable.

Admission of Contents of Document in Pleadings

In Perumal Chettiar v. Kamakshi Ammal, AIR 1938 Mad 785; (1938) 2 MLJ 189, it is observed, as to pleadings, as under:

“The result, in India, is that if by reason of the document being unstamped, no evidence of its contents whether primary or secondary is admissible, evidence of admissions by the defendant is equally inadmissible. The position may be different where admissions are made in the pleadings themselves (cf. Huddleston v, Briscoe (1805) 11 Ves. 583 (596) : 32 E.R. 1215 (1220) and Thynne v. Protheroe (1814) 2 M. & S. 553 : 105 E.R. 488), because by reason of Section 58 of the Evidence Act, it may not be necessary to prove admitted facts and the objection under Section 91 will not arise unless the plaintiff is called upon to go into evidence. (Mallappa v. Mat an Naga Chetty (1918) 35 M.L.J. 555 : I.L.R. 42 Mad. 41 (F.B.))
This was the position in Pramatha Nath Sandal v. Dwarka Nath Dey (1896) I.L.R. 23 Cal. 851; cf. however Chenbasappa v. Lakshman Ramchandra (1893) I.L.R. 18 Bom. 369, where it was suggested that in a suit on an unstamped promissory note, even an admission in the written statement may not avail the plaintiff, as the Court when giving a decree on such admission may be “acting on” the document within the meaning of Section 35 of the Stamp Act; see also Ankur Chunder Roy Chowdhry v. Madhub Chunder Gkose (1873) 21 W.R. 1.”

Pay Duty With Penalty to Admit Unstamped Deed for Collateral Purpose

In Yellapu Uma Maheswari v. Buddha Jagadheeswararao, (2015) 16 SCC 787, the Apex Court held in the suit for declaration of title that an unregistered document can be relied upon for collateral purposes i.e. to prove his possession, payment of sale consideration and nature of possession; but not for primary purpose i.e. sale between the plaintiff and defendant or its terms. It is held as under:

“In a suit for partition, an unregistered document can be relied upon for collateral purpose i.e. severancy of title, nature of possession of various shares but not for the primary purpose i.e. division of joint properties by metes and bounds. An unstamped instrument is not admissible in evidence even for collateral purpose, until the same is impounded. Hence, if the appellant-defendant wants to mark these documents for collateral purpose it is open for them to pay the stamp duty together with penalty and (sic?) get the document impounded and the trial court is at liberty to mark Exts. B-21 and B-22 for collateral purpose subject to proof and relevance.”

Section 49 of the Registration Act expressly states admissibility of unregistered documents in evidence for collateral purposes. The word ‘collateral’ signifies something beyond or parallel. According to Law Lexicon it means “that which is by the side, and not the direct line; that which is additional to or beyond a thing” (Amit Khanna. Vs Suchi Khanna, 2008-10 ADJ 426; 2009-75 All LR 34; 2009-1 AWC 929).

The Apex Court in K.B. Saha and Sons Private Limitedv. Development Consultant Ltd., (2008) 8 SCC 564: 2008 AIR SCW 4829, has laid down the principle in respect of the collateral purpose.

“34. From the principles laid down in the various decisions of this Court and the High Courts, as referred to here-in-above, it is evident that :-

A document required to be registered is not admissible into evidence under section 49 of the Registration Act.
Such unregistered document can however be used as an evidence of collateral purpose as provided in the Proviso to section 49 of the Registration Act.
A collateral transaction must be independent of, or divisible from, the transaction to effect which the law required registration.
A collateral transaction must be a transaction not itself required to be effected by a registered document, that is, a transaction creating, etc. any right, title or interest in immovable property of the value of one hundred rupees and upwards.
If a document is inadmissible in evidence for want of registration, none of its terms can be admitted in evidence and that to use a document for the purpose of proving an important clause would not be using it as a collateral purpose.

Unstamped or Insufficiently Stamped Pro-note

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

N.N. Global held – If Arb. Agreement Unstamped – No ‘Valid arb. Agreement Exists’

Before the 5-Judge-Bench of the Supreme Court, it was argued –

by the respondents/defendants, on the basis of the relevant provisions of the Arbitration and Conciliation Act, 1996 (especially Sec. 16), that an arbitration clause would stand as a distinct, separate and independent from the substantive contract and that an arbitration reference can be made by the court even if the arbitration agreement was insufficiently stamped; and
by the appellant/plaintiff, in view of the provisions in the Indian Stamp Act (especially Sec. 33 and 35), that the arbitration reference could not be made by the court on the basis of an insufficiently stamped agreement. It was pointed out that unstamped or insufficiently stamped documents cannot be used as evidence for any purpose, as provided in the Stamp Act; and that for reference under Sec. 8 of the Arbitration Act the court has to specifically find that prima facie a “valid arbitration agreement exists“.

It is held, by majority (3:2), in N.N. Global Mercantile (P) Ltd. v. Indo Unique Flame Ltd., 2023 SCC OnLine SC 495, that an arbitration reference cannot be made by the court under Sec. 8 of the Arb. Act, on the basis of an unstamped or insufficiently stamped agreement.

The Majority affirmed the findings in this regard, in the two earlier 3-Judge Bench decisions.

(i) Garware Wall Ropes Ltd. v. Coastal Marine Constructions & Engg. Ltd., (2019) 9 SCC 209 (it was held that an arbitration reference cannot be made on the basis of an unstamped or insufficiently stamped agreement).
(ii) Vidya Drolia v. Durga Trading Corporation, 2021-2 SCC 1 (it was held that landlord-tenant disputes covered and governed by rent control legislation would not be arbitrable when specific court or forum has been given exclusive jurisdiction to apply and decide special rights and obligations).

Impounding of Instruments

Section 33 of the Indian Stamp Act provides as under:

33. Examination and impounding of instruments—(1) Every person having by law or consent of parties, authority to receive evidence, and every person in charge of a public office, except an officer of police, before whom any instrument, chargeable, in his opinion, with duty, is produced or comes in the performance of his functions, shall, if it appears to him that such instrument is not duly stamped, impound the same.
(2) For that purpose every such person shall examine every instrument so chargeable and so produced or coming before him, in order to ascertain whether it is stamped with a stamp of the value and description required by the law in force inIndia when such instrument was executed or first executed: Provided that—
(a) nothing herein contained shall be deemed to require any Magistrate or Judge of a Criminal Court to examine or impound, if he does not think fit so to do, any instrument coming before him in the course of any proceeding other than a proceeding under Chapter XII or Chapter XXXVI of the Code of Criminal Procedure, 1898 (5 of 1898);
(b) in the case of a Judge of a High Court, the duty of examining and impounding any instrument under this section may be delegated to such officer as the Court appoints in this behalf.
(3) For the purposes of this section, in cases of doubt,—
(a) theState Government may determine what offices shall be deemed to be public offices; and
(b) theState Government may determine who shall be deemed to be persons in charge of public offices.

Section 36 of the Stamp Act – Once Admitted shall NOT be called in Question

Section 36 of the Indian Stamp Act provides as under:

“36. Admission of instrument where not to be questioned – Where an instrument has been admitted in evidence such admission shall not except as provided in Section 61, be called in question at any stage of the same suit or proceeding on the ground that the instrument has not been duly stamped “.
- Note: Sec. 61 of the Indian stamp act reads as under:
- 61. Revision of certain decisions of Courts regarding the sufficiency of stamps— (1) When any Court in the exercise of its civil or revenue jurisdiction of any Criminal Court in any proceeding under Chapter XII or Chapter XXXVI of the Code of Criminal Procedure, 1898 (5 of 1898), makes any order admitting any instrument in evidence as duly stamped or as not requiring a stamp, or upon payment of duty and a penalty under section 35, the Court to which appeals lie from, or references are made by, such first-mentioned Court may, of its own motion or on the application of the Collector, take such order into consideration.
- (2) … (3) …. (4) …..

Earlier View

Order Admitting Document, Not liable to be Reviewed or Reversed in Appeal

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

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

Earlier View: Objection be raised when Document Tendered

Our Apex Court held in Sirikonda Madhava Rao v. N. Hemalatha, 12 April, 2022 (referring Javer Chand v. Pukhraj Surana, (1962-2 SCR 333 and Shyamal Kumar Roy v. Sushil Kumar Agarwal, 2006-11 SCC 331) that after marking a document unopposed, it is not open to the parties, or even the court, to reexamine the order or issue. In this case. a document purporting to be an unregistered and insufficiently-stamped sale deed was marked as an Exhibit. The High Court directed that the aforesaid document should be de-marked and not be treated as an exhibit.It is said by the Supreme Court –

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

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

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

Earlier View

Not to Admit Unstamped Documents Vs. Once Admitted, Cannot Question

Paradoxical and Incongruent Propositions

The following forceful propositions stand paradoxical and incongruent to each other-

Section 33 of the Stamp Act casts a duty on every authority including the Court to examine the document to find out whether it is duly stamped or not, irrespective of the fact whether an objection to its marking is raised or not. There is a duty upon every Judge under Sec. 35 of the Indian Stamp Act not to admit a document that is not duly stamped even if no objection to mark it.
The court should not exclude an insufficiently stamped (or unstamped) deed once marked without objection under Sec. 36 of the Indian Stamp Act.

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

“”3. The trial Court is right to the extent that, once the document is marked without objection, no subsequent objection regarding its marking can be gone into and such document will have to be looked into while deciding the case on merits. This, however, does come in the way of the court discharging the statutory duty contemplated under Sec. 33 of the Act. …..
6. From the aforesaid statutory provisions and the decisions, it is clear that a duty is cast upon every judge to examine every document, which is produced or comes before him in the performance of his functions. On such examination, if it appears to the Judge that such instrument is not duly stamped, an obligation is cast upon him to impound the same. This duty is to be performed by the Judge irrespective of the fact whether any objection to its marking is raised or not. Hence, there is a need for diligence on the part of the Court having regard to the statutory obligation under Section 33 of the Karnataka Stamp Act. Section 34 of the Karnataka Stamp Act* mandates that an instrument, which is not duly stamped shall not be admitted in evidence. If any objection is taken to the admissibility of the evidence, it shall be decided then and there. If this document is found to be insufficiently stamped, then in terms of the proviso(a) to Section 34, the Court shall call upon the person, who is tendering the said document to pay duty and ten times penalty and thereafter admit the document in evidence. If duty and penalty is not paid, the document shall not be admitted in evidence.
- *^{Corresponding to Sec. 35, Indian Stamp Act}
If such an objection is not taken at the time of admitting the said instrument in evidence, and the insufficiently stamped document is admitted in evidence then Section 35** of the Act provides that such admission shall not be called in question at any stage of the same suit or proceedings on the ground that the instrument has not been duly stamped.
- ^**^{Corresponding to Sec. 36, Indian Stamp Act}
It has nothing to do with impounding the document. A duty is cast upon every judge to examine every document that is sought to be marked in evidence. The nomenclature of the document is not decisive. The question of admissibility will have to be decided by reading the document and deciding its nature and classification. Even while recording ex parte evidence or while recording evidence in the absence of the Counsel for the other side, the Court should be vigilant and examine and ascertain the nature of the document proposed to be marked and ensure that it is a document which is admissible. The Court should not depend on objections of the other Counsel before considering whether the document is admissible in evidence or not. Section 33 of the Stamp Act casts a duty on the Court to examine the document to find out whether it is duly stamped or not, irrespective of the fact whether an objection to its marking is raised or not.” (quoted in Sri R Suresh v. Smt Chandramma, (Kar.) 7 Dec, 2017)

Should the Court Sit Silent and Question Unstamped Documents Afterwards

Though Smt. Savithramma R.C v. M/s. Vijaya Bank (supra) clarified the position with great clarity. As shown above, it pointed out-

“6. …. The Court should not depend on objections of the other Counsel before considering whether the document is admissible in evidence or not. Section 33 of the Stamp Act casts a duty on the Court to examine the document to find out whether it is duly stamped or not, irrespective of the fact whether an objection to its marking is raised or not”

Therefore, it is not definite-

whether the court should be unfailingly diligent enough not to mark an unstamped or insufficiently stamped document,or
whether the court should sit silent and mark the document if it is not opposed, or
whether the court should raise its eye-brows after marking it unopposed.

It is yet to be solved after considering all relevant aspects.

Referring Sec. 36 of the (Indian) Stamp Act, Karnataka High Court pointed out in Nanda Behera v. Akhsaya Kumar Behera, 2017AIR (CC) 1893, relying on Javer Chand v. Pukhraj Surana, AIR 1961 SC 1655, and Yellapu Uma Maheswari v. Buddha Jagadheeswara Rao, (2015) 16 SCC 787, as under:

“12. Thus where a question as to the admissibility of a document is raised on the ground that it has not been stamped or has not been properly stamped, it has to be decided then and there when the document is tendered in evidence. Once the Court, rightly or wrongly, decides to admit the document in evidence, so far as the parties are concerned, the matter is closed. Parties to a litigation, where such a controversy is raised, have to be circumspect and the party challenging the admissibility of the document has to be alert to see that the document is not admitted in evidence by the Court. The Court has to judicially determine the matter as soon as the document is tendered in evidence and before it is marked as an exhibit. Once a document has been admitted in evidence, it is not open either to the trial court itself or to a Court of Appeal or revision to go behind that order. Such an order is not one of those judicial orders which are liable to be reviewed or revised by the same Court or a Court of superior jurisdiction. An unregistered document can be relied upon for collateral purpose i.e. severancy of title, nature of possession of various shares but not for the primary purpose i.e. division of joint properties by metes and bounds. An unstamped instrument is not admissible in evidence even for collateral purpose, until the same is impounded. If the petitioner wants to mark the documents for collateral purpose, it is open to him to pay the stamp duty together with penalty and get the document impounded. Thereafter the trial court shall consider the same for collateral purpose subject to proof and relevance.”

See Blog: Proof of Documents & Objections To Admissibility – How & When?

Is Impounding “Totally Different“ from Admissibility

Sec. 36 of the stamp Act deals with and bar questioning ‘admission of instrument‘, alone. That interdiction or bar applies to the courts also.

Karnataka High Court (N. Kumar, J.), in Rekha S. Chandru v. Chikka Venkatappa (2015), authoritatively held relying on Javer Chand v. Pukhraj Surana, AIR 1961 SC 1655, that when a document was already marked by the trial Court in evidence, the objection regarding stamp duty cannot be raised at a later stage. It further observed (obiter) by the Karnataka High Court that the impounding the document was “totally different” from admissibility; and therefore, an insufficiently stamped document, if admitted by mistake, was liable to be impounded by the Court and the procedure prescribed in the Stamp Act was to be followed in so far as collection of stamp duty and penalty were concerned.

In principle, no doubt, what is said by the Karnataka High Court is fully legally acceptable. But, it can be argued that the above proposition requires evaluation on the touchstone of the Apex Court verdict, Javer Chand v. Pukhraj Surana, AIR 1961 SC 1655, which reads as under:

“Once a document has been admitted in evidence, as aforesaid, it is not open either to the Trial Court itself or to a Court of Appeal or revision to go behind that order. Such an order is not one of those judicial orders which are liable to be reviewed or revised by the same Court or a Court of superior jurisdiction.”

Should an opportunity be given to Cure Defect, by Paying Deficit Stamp Duty?

In Kalaivani @ Devasena v. J. Ramu, 2010(1) CTC 27, it was held that an opportunity should be given to the party who produces the document with insufficient stamp, to pay the deficit stamp duty and penalty so that the document could be exhibited; and that if penalty is not paid, the document should be impounded. It is held as under:

“24. .. It is well settled that even an unregistered document is admissible in evidence for collateral purpose provided it is adequately stamped under the Stamp act. If the document is both unstamped and unregistered, as the document in question here, it is no doubt true that it cannot be looked into for collateral purpose also. But such a document should not be thrown out at the threshold itself and an opportunity must be extended to the party who wants to mark the document on his side by directing him to pay the deficit stamp duty along with the penalty upto date, then the document could be admitted in evidence for collateral purpose. If the person does not pay the Court, then the document is to be impounded and sent to the Collector for taking action under the law.”

Conclusion

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

Taken From the Blog: Unstamped & Unregistered Documents and Collateral Purpose

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General

Is it Mandatory to Set Aside the Commission Report – Where a Second Commissioner is Appointed?

Answer: Yes; According to the Law Now Outstands.

In Swami Premananda Bharathi v. Swami Yogananda Bharathi, AIR 1985 Ker 83, it is observed that the first commissioner’s report and proceedings should be set aside for reasons to be recorded and then only the court can proceed to appoint another commissioner to do the work.
It is followed (by other High Courts) in the following decisions –
- RV Ganesa Naicker v. Painter Selvaraj (Mad), 2018
- Saudagar Mahto v. Ram Charitra Mahto, 2015-2 Pat LJR 52
- Chinmayee Saha v. Renuka Halder, AIR 2016 Cal 33
- KN Vishwanathan Nair v. K Rajani, (Kar), 2010
- M Ramesh Babu v. M Sreedhar, 2009-5 AndLD 187, 2009-4 ALT 780
- Vemba Gounder v. Pooncholai Gounder, AIR 1996 Mad 347
- Asifunisa v. AH Imam, 1991 BBCJ 513, 1992-1 BLJ 452, 1992-1 Pat LJR 380 (Divergent views placed).

But, the Apparent Legal Position, on the First-Principles, is the following-

There is no bar to issue a second commission (without setting aside the earlier report) if it is found –
- (i) the earlier Report was not satisfactory and
- (ii) there is need for a further enquiry.
Because,
- O26 r 10 (3) expressly allows the Court, to direct such further inquiry as it thinks fit, if it is dissatisfied with the proceedings of the Commissioner, for any reason;
- Commission report is only a piece of evidence, and the court is not ‘bound by’ it.

Taken from: Powers and Duties of Commissioners to Make Local Investigations, Under CPC

Saji Koduvath, Advocate, Kottayam.

Introduction

Commission for local investigation is appointed to ‘elucidate‘ matters in dispute.
A commissioner has the duty to report matters that are relevant in the suit – even if they are not specifically put to him (to ascertain).
“Opinion” (evidence) of a commissioner (Eg. Whether a building is fit for ‘residence’) may not be relevant.
A commissioner cannot be asked to find out the physical possession of a property.
A Commission report will be ‘evidence’ even if it is not marked or exhibited.
Parties should prove their case by themselves by letting in legally acceptable evidence and the report of the Commissioner can only aid the court in evaluating the evidence.
It is not a condition precedent to set aside the Commission Report – where the (earlier) report suffered only some “deficiency or omission ”.
When a commission report is set aside, the court is bound to remit it back to the Commissioner for getting a fresh report.
If the Ex parte commission did not give notice to the defendant, the report cannot be accepted as ‘substantive’ evidence; it can be used only as a corroborative piece when the commissioner is examined in court.
There is no ‘provision’ to raise “objection” to a commission report on ‘local inspection’. The dissatisfied party has to challenge the evidence by cross-examination of the commissioner.
Surveyor-plan Attached to Commission Report will not be ‘ipso facto’ Evidence. If the commissioner could not vouchsafe its veracity, the surveyor should be examined.

Power of Courts to Issue Commissions

Courts derive power to issue Commissions from Sec. 75 CPC. It reads as under:

Sec. 75. Power of Court to Issue Commissions

Subject to such conditions and limitations as may be prescribed, the court may issue a commission-
- (a) to examine any person;
- (b) to make a local investigation;
- (c) to examine or adjust accounts; or
- (d) to make a partition;
- (e) to hold a scientific, technical, or expert investigation;
- (f) to conduct sale of property which is subject to speedy and natural decay and which is in the custody of the Court pending the determination of the suit;
- (g) to perform any ministerial act.

Commissions to Make Local Investigations

Order 26 rules 9 and 10 deal with appointment of Commissions to make local investigations. They read as under:

O 26 r 9. Commissions to make local investigations-

In any suit in which the Court deems a local investigation to be requisite or proper for the purpose of elucidating any matter in dispute, or of ascertaining the market-value of any property, or the amount of any mesne profits or damages or annual net profits, the Court may issue a commission to such person as it thinks fit directing him to make such investigation and to report thereon to the Court:
Provided that, where the State Government has made rules as to the persons to whom such commission shall be issued, the Court shall be bound by such rules.

O 26 r 10. Procedure of Commissioner-

(1) The Commissioner, after such local inspection as he deems necessary and after reducing to writing the evidence taken by him, shall return such evidence, together with his report in writing signed by him, to the Court.
(2) Report and deposition to be evidence in suit.
Commissioner may be examined in person-The report of the Commissioner and the evidence taken by him (but not the evidence without the report) shall be evidence in the suit and shall form part of the record; but the Court or, with the permission of the Court, any of the parties to suit may examine the Commissioner personally in open Court touching any part of the matters referred to him or mentioned in his report, or as to his report, or as to the manner in which he has made the investigation.
(3) Where the Court is for any reason dissatisfied with the proceedings of the Commissioner, it may direct such further inquiry to be made as it shall think fit.

Should First CR be Set Aside to Issue a Second Commission?

There is difference of opinion.

One view is that the Court Cannot (even) Set Aside a Commission Report, which “shall form part of the record” by virtue of O26 r. 10(2) CPC. There is no provision in the CPC to set aside a Commission Report.

O26 r. 10(3) CPC makes it clear:

Where the Court is for any reason dissatisfied with the proceedings of the Commissioner, it may direct such further inquiry to be made as it shall think fit.

O26 r. 10(3) does not specifically say –

(1) the court has the authority to set aside a commission report (See: Francis Assissi v. Sr. Breesiya, 2017 (1) KLT 1041);
(2) if the court is dissatisfied with the commission report, it can set aside the commission report; or
(3) for issuing a second/fresh commission the first commissioner’s report should have been set aside.

Following arguments can also be placed in support of the view that a commission report cannot be set aside:

Commissioner’s report is only a piece of evidence. (Paul K Lalthakima v. District Collector, Aizawl, 2018-4 GauLT 854; Sarojini v. Karthiyani Amma, ILR 2010-1Ker 17, 2010-1 KHC 193; Geetarani Panda v. Manmath Patra, 2009-108 Cut LT 355)
There can be any number of such reports.^#* If two Commission Reports differ on a point, the court can evaluate and assess the same with other evidence and can come to a correct conclusion.
- ^#*^{(No doubt, they cannot be allowed to overfill the court; the restrictive mechanism is provided by the words in O26 r. 10(3) – that is, a second commission can be ordered if only “the court is, for any reason, dissatisfied with the proceedings of the Commissioner” and there is need for a further enquiry.)}
It is laid down in O 26 r. 10(2) CPC that the commission report shall be evidence in the suit and shall form part of the record (See: Francis Assissi v. Sr. Breesiya, 2017 (1) KLT 1041). O 26 r. 10(2) reads-
- “The report of the Commissioner and the evidence taken by him (but not the evidence without the report) shall be evidence in the suit and shall form part of the record.”
Further, O26 r. 14(2), which stands for commission-to-make-partition, engrafts – “after hearing any objections which the parties may make to the report or reports, (court) shall confirm, vary or set aside the same“. But, such a power is conspicuously avoided in O26 r. 10 CPC (See: Francis Assissi v. Sr. Breesiya, 2017 (1) KLT 1041).

Other View – Court has to Set Aside the 1^st Report for Issuing a 2^nd Commission

A bunch of decisions authoritatively lay down that the first commissioner’s report must have been set aside for appointing another commissioner.

The courts brought forth, for that matter-

Inherent power under Sec. 151 CPC (See: Chinmaya Saha v. Renuka Halder, AIR 2016 Cal 33) and
Rule of law based on ‘Public Policy‘ (See: Swami Premananda Bharathi v. Swami Yogananda Bharathi, AIR 1985 Ker 83).
It is also pointed out that O26 r. 10(3) CPC is attracted (for directing further inquiry, without setting aside first CR) only when there are some deficiencies or omissions in the Report of the Commissioner.

Analysing O26 r. 10(3) CPC it is observed in Swami Premananda Bharathi v. Swami Yogananda Bharathi, AIR 1985 Ker 83, as under:

“The first commissioner’s report and proceedings should be set aside for reasons to be recorded and then only the court can proceed to appoint another commissioner to do the work is a wholesome rule of law based on public policy…. the appointment of the second Commissioner and the reports filed by him without setting aside the first Commissioner’s report is wholly illegal and without jurisdiction.”

In Yudathadevus v. Joseph, 2021-5 KerHC 668; 2021- 4 KerLJ 415; 2021-6 KerLT(SN) 42, following Swami Premananda Bharathi v. Swami Yogananda Bharathi (and discarding Francis Assissi v. Sr. Breesiya, 2017-1 Ker LT 1041), it is observed as under:

“If a court is dissatisfied with the proceedings of the commissioner, the court can direct further inquiry to be made as it shall think fit after setting aside the commission report and plan to get the mistakes or the defects rectified.”

Swami Premananda Bharathi, AIR 1985 Ker 83, is referred to in the following decisions also:

RV Ganesa Naicker v. Painter Selvaraj (Mad), 2018
Saudagar Mahto v. Ram Charitra Mahto, 2015-2 Pat LJR 52
Chinmayee Saha v. Renuka Halder, AIR 2016 Cal 33
KN Vishwanathan Nair v. K Rajani, (Kar), 2010
M Ramesh Babu v. M Sreedhar, 2009-5 ALD 187, 2009-4 ALT 780
Vemba Gounder v. Pooncholai Gounder, AIR 1996 Mad 347
Asifunisa v. AH Imam, 1991 BBCJ 513, 1992-1 BLJ 452, 1992-1 Pat LJR 380 (Divergent views placed).

Apparent Legal Position on the First-Principles

As pointed out in Francis Assissi v. Sr. Breesiya, 2017 (1) KLT 1041, O26 r. 10(3) does not specifically say that the court has the authority to set aside a commission report, which automatically forms part of the record.

A commission report is only a piece of evidence. Therefore, it is definite, on the first-principles, that there is no bar to issue a second commission in a proper case, without setting aside the earlier commission report; but, it can be done only after recording a definite finding that –

the earlier Commission Report was not satisfactory and
there is need for a further enquiry

as observed in R. Viswanathan v. P. Shanmugham, 1985-1 MLJ 254. It reads as under:

“It is well settled proposition that until the Court is dissatisfied with the proceedings and report of the Commissioner earlier appointed, it will not be proper to ignore the same and direct even further enquiry, much less the scrapping of the earlier report as a whole and appoint a fresh Commissioner. The power is circumscribed by the principles under O. 26, R. 10(3). The power can be exercised only after the Court below renders a finding that the proceedings and the report of the earlier Commissioner are not satisfactory and there is need for a further enquiry. In the present case, the order of the Court below does not express any opinion that the proceedings and the report of the earlier Commissioner are not satisfactory. The Court below has opined that the truth or otherwise of the allegations therein against the Commissioner’s report need not be gone into and it is better to change the Commissioner. This is not the proper way of dealing with the matter.”

Effect of Two Commission Reports in File

Assume, rightly or wrongly, two commission reports were brought to file; then, should the first report be discarded totally?

Since (i) the commission reports are pieces of evidence, (ii) it forms part of evidence and (iii) no express legal provision permits to discard such a report, it may not be proper to totally discard the first report.

Is it mandatory to set aside the Commission Report – where the report suffered only some “deficiency or omission”?

No.
It is to be remitted-back to the commissioner to cure the lacuna. Yudathadevus v. Joseph, 2021-5 KerHC 668; 2021-4 KerLJ 415; 2021-6 KerLT(SN) 42. Followed Joy Cherian v. George Cherian, 2009-3 KerLT 64.

Can the partiess be pushed to suffer for the Mistake of the Commissioner

In Yudathadevus v. Joseph, 2021-5 KerHC 668; 2021-4 KerLJ 415; 2021-6 KerLT(SN) 42, it is held as under:
“21. In a case where the court finds that the commission report is totally unacceptable as it is not in accordance with the true state of affairs, it can always attempt to get at the truth by deputing another commissioner and its power to act under sub rule (3) cannot be minimised or overlooked on the ground that the contesting party has not filed any objection to it. It is always the endeavour of the court to arrive at the correct decision in a given case and whenever it is found that the commission report is unacceptable for any valid reason it can legitimately exercise its power under sub rule (3). It is well within the competence of the appellate court also to exercise in appropriate cases power under Order 26 Rule 10(3) to set aside the commission report and call for fresh report by deputing another commissioner.”

It is beyond doubt that above observation is made on the principle that the parties should not be pushed to suffer for the lapse or mistake of the commissioner. We can take cue from the proposition that ‘a party should not be pushed to suffer a wrong occasioned by the inaction or fault on the part of the Court’. See :

(i) Jang Sing v. Brij Lal, AIR 1966 SC 1631;
(ii) A.R. Antulay v. R.S. Naik, 1988-2 SCC 602;
(iii) Mudit Verma v. Co-operative Tribunal, 2006 (63) ALR 208 (All)(LB)

When a commission report is set aside, is the court bound to remit it back to the Commissioner for getting a fresh report?

Yes.
Yudathadevus v. Joseph, 2021-5 KerHC 668; 2021-4 KerLJ 415; 2021-6 KerLT(SN) 42. The reason behind it is obvious –
Court can appoint a commissioner suo motu (Dinesh Chandra Gaur v. Abhay Sood, 2015 (2) ARC 243).
In Retnamma v. Mehaboob, 2013-3 Civil CC 65 it is held that the court should go through the report and see whether it was in Order, irrespective of whether any objection is filed or not; and that the Order 26 Rule 10(3) C.P.C. laid down that where the Court was dissatisfied with the proceedings of the Commissioner, for any reason, it might direct the commissioner to make such further inquiry as it thought fit.

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Read in this Cluster (Click on the topic):

Book No, 1 – Civil Procedure Code

Power of attorney

Title, ownership and Possession

Principles and Procedure

Land Laws/ Transfer of Property Act

Evidence Act – General

Contract Act

Easement

Stamp Act

Will

Divorce

Book No. 2: A Handbook on Constitutional Issues

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

Book No. 4: Common Law of TRUSTS in India

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

Can a Commission be Appointed to Find Out the Physical Possession of a Property?

Taken from: Powers and Duties of Commissioners to Make Local Investigations, Under CPC

Saji Koduvath, Advocate, Kottayam.

Introduction

Commission for local investigation is appointed to ‘elucidate‘ matters in dispute.
A commissioner has the duty to report matters that are relevant in the suit – even if they are not specifically put to him (to ascertain).
“Opinion” (evidence) of a commissioner (Eg. Whether a building is fit for ‘residence’) may not be relevant.
A commissioner cannot be asked to find out the physical possession of a property.
A Commission report will be ‘evidence’ even if it is not marked or exhibited.
Parties should prove their case by themselves by letting in legally acceptable evidence and the report of the Commissioner can only aid the court in evaluating the evidence.
It is not a condition precedent to set aside the Commission Report – where the (earlier) report suffered only some “deficiency or omission ”.
When a commission report is set aside, the court is bound to remit it back to the Commissioner for getting a fresh report.
If the Ex parte commission did not give notice to the defendant, the report cannot be accepted as ‘substantive’ evidence; it can be used only as a corroborative piece when the commissioner is examined in court.
There is no ‘provision’ to raise “objection” to a commission report on ‘local inspection’. The dissatisfied party has to challenge the evidence by cross-examination of the commissioner.
Surveyor-plan Attached to Commission Report will not be ‘ipso facto’ Evidence. If the commissioner could not vouchsafe its veracity, the surveyor should be examined.

Power of Courts to Issue Commissions

Courts derive power to issue Commissions from Sec. 75 CPC. It reads as under:

Sec. 75. Power of Court to Issue Commissions

Subject to such conditions and limitations as may be prescribed, the court may issue a commission-
- (a) to examine any person;
- (b) to make a local investigation;
- (c) to examine or adjust accounts; or
- (d) to make a partition;
- (e) to hold a scientific, technical, or expert investigation;
- (f) to conduct sale of property which is subject to speedy and natural decay and which is in the custody of the Court pending the determination of the suit;
- (g) to perform any ministerial act.

Commissions to Make Local Investigations

Order 26 rules 9 and 10 deal with appointment of Commissions to make local investigations. They read as under:

O 26 r 9. Commissions to make local investigations-

In any suit in which the Court deems a local investigation to be requisite or proper for the purpose of elucidating any matter in dispute, or of ascertaining the market-value of any property, or the amount of any mesne profits or damages or annual net profits, the Court may issue a commission to such person as it thinks fit directing him to make such investigation and to report thereon to the Court:
Provided that, where the State Government has made rules as to the persons to whom such commission shall be issued, the Court shall be bound by such rules.

O 26 r 10. Procedure of Commissioner-

(1) The Commissioner, after such local inspection as he deems necessary and after reducing to writing the evidence taken by him, shall return such evidence, together with his report in writing signed by him, to the Court.
(2) Report and deposition to be evidence in suit.
Commissioner may be examined in person-The report of the Commissioner and the evidence taken by him (but not the evidence without the report) shall be evidence in the suit and shall form part of the record; but the Court or, with the permission of the Court, any of the parties to suit may examine the Commissioner personally in open Court touching any part of the matters referred to him or mentioned in his report, or as to his report, or as to the manner in which he has made the investigation.
(3) Where the Court is for any reason dissatisfied with the proceedings of the Commissioner, it may direct such further inquiry to be made as it shall think fit.

Can a Commission be Appointed to Find Out the Physical Possession of a Property?

No.
In Bandi Samuel v. Medida Nageswara Rao, 2017 (1) ALT 493 it is pointed out that the factum of possession of the property in dispute, which is nothing, but fishing of information and not elucidating any matter in dispute.
See also: Malaya Gounder v. Palanisamy (1995) 1 MLJ 626,
Puttappa v. Ramappa, AIR 1996 Kant 257,
Rajendran v. Lilly Ammal alias Nelli Ammal, 1998 (II) CTC 163,
Benz Automobiles Private Limited v. Mohanasundaram, 2003 (3) MLJ 391,
D. Kuttiyappan v. Meenakshiammal Polytechnic Unit, 2005 (4) CTC 676,
Devadoss v. A. Duraisingh, 2002 (3) CTC 748,
Parepally Satyanarayana v, Vutukuri Meeneder Goad, 2008 (1) ALT 461;
KMA Wahab v. Eswaran, 2008 (3) CTC 597,
Ramdas Trimbak v. Bajirao Sanap, 2018-1 MHLJ 866, 2018-5 AIR BomR 57,
S. Kalam v. V. Valliammai, 2021-7 Mad LJ 137,
K. Sellammal v. M. Valarmathy, 2022, Madras High Court.

Kerala High Court held in Thomas VY@ Sajimon v. Joseph VY, ILR 2020-3 Ker446, 2020-3 Ker LJ 574, 2020-3 KHC 613, as under:

“15. In a suit for permanent prohibitory injunction, the burden is entirely on the plaintiff to bring convincing evidence to show his possession over the plaint schedule property and for so doing, it is not permissible for the plaintiff to invoke Order 26 Rule 9 CPC, which is intended for a different purpose. In a matter relating to the investigation into the disputed question of fact of possession, the power of appointment of Commissioner for local investigation cannot be exercised by the Court to assist the party to collect evidence, where the party can collect evidence by itself. If a party claims that, that party is in possession of the disputed property and if the other party denies the same by filing the written statement, the disputed fact can be adjudicated by the Court after framing of issues and recording the evidence of the parties. So many articles may be found in the building at the time of local inspection by the Commissioner. Even clothes and other articles may be found in the building. The Commissioner has to just make an inventory of the items found in the building. The Commissioner cannot report about the ownership of the articles found in the premises, as the said aspect is a matter for evidence. If at all the Commissioner makes any such report, the Court shall not accept the report, even for primary satisfaction without any other convincing material. If the Advocate Commission is deputed for the purpose of ascertaining the possession of the party over the property, the said aspect can be done only after gathering information from the people in the locality, which amounts to fishing out the evidence or gathering of evidence and hence the same is only hearsay information. The party can even otherwise examine the persons, with whom the Commissioner makes enquiry, before the Court to prove the possession of the person over the property in question. The fishing out of information is to make a local enquiry collecting hearsay materials from the persons gathered there or the like, which is different from collection of materials which he finds at the scene. That apart, if that task is left to be decided by the Advocate Commissioner, any fraudulent litigant can create evidence and with the assistance of the Commissioner, he will be able to prove that he is in possession of the property, which is not the purpose for which Order 26 was enacted. Therefore, it is always advisable not to appoint an Advocate Commissioner, as in the present case, to find out the possession of the property, which has to be decided only from oral and documentary evidence to be adduced by the parties. The High Court of Madras in Mr. D. Kuttiyappan v. Meenakshiammal Polytechnic Unit, (2005) 4 MLJ 592, held that the Advocate Commissioner cannot be appointed to note down the factum of possession or the enjoyment . I respectfully agree with the view of the High Court of Madras in D. Kuttiyappan (Supra). Thus, it is settled law that the power of appointment of Commissioner for local investigation cannot be exercised by the Court to enable any party to collect evidence through the Commissioner to prove the factum of possession or enjoyment. This being the situation, the argument of the learned Counsel for the defendant that the report of the Commissioner would show the possession of the defendant in the plaint schedule property cannot be accepted even for the prima facie satisfaction of the Court.”

Read in this Cluster (Click on the topic):

Book No, 1 – Civil Procedure Code

Power of attorney

Title, ownership and Possession

Principles and Procedure

Land Laws/ Transfer of Property Act

Evidence Act – General

Contract Act

Easement

Stamp Act

Will

Divorce

Book No. 2: A Handbook on Constitutional Issues

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

Book No. 4: Common Law of TRUSTS in India

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

Impounding of Documents – When Produced; Cannot Wait Till it is Exhibited

Copy of a Deed Cannot be Impounded

Jojy George Koduvath, Kottayam.

Introduction

The word ‘Impound’, in law, means ‘to keep in custody of the law’. It is usually, now-a-days, used to denote the legal action taken by the Courts and other Officials when an unstamped or insufficiently stamped document is produced (by a party) before it.

Duty of Every Court to Impound Unstamped or Insufficiently Stamped Document

It is the duty of every court to impound unstamped or insufficiently stamped document. It is emphatically pointed out, relying on Section 33 of the Maharashtra Stamp Act, 1958, in Shri Jayasingh Narayan Tupe v. Shri Sambhaji Baburao Pawar, 2013(3) MhLJ 433.

Time of Impounding is, When Produced; Cannot Wait Till it is Exhibited

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

“12. Court cannot say that it would impound the document only when the document is tendered in evidence for marking. There may be instances where duty and penalty payable may be very high and the party may not choose to rely upon such insufficiently stamped document in order to avoid stamp duty and penalty. In such circumstances, it would result in loss of revenue to the exchequer. The power of impounding a document is to collect stamp duty and penalty whenever there is an escape of duty. Therefore, when it is brought to the notice of the Court that a document is insufficiently stamped, the Court exercising its power under S. 33 of the Act has to pass an order at the first instance for impounding the document. Though there is a discretion vested in the Court to exercise powers under S. 33 and 34 of the Act, no Court can hold that it would wait till the document is tendered in evidence. In such circumstances, there may be chances of loss of revenue to the exchequer.”
See also: Miss. Sandra Lesly Annabartlets v. Miss. P. Gunavathy, ILR 2013 Kar 368

Order XIII Rule 8 of Code of Civil Procedure, 1908 reads as under-

“Rule 8: Court may order any document to be impounded. Notwithstanding anything contained in rule 5 or rule 7 of this Order or in rule 17 of Order VII, the Court may, if it sees sufficient cause, direct any document or book produced before it in any suit to be impounded and kept in the custody of an officer of the Court, for such period and subject to such conditions as the Court thinks fit. ”

Section 31 of The Indian Stamp Act, 1899 speaks as under:

“31. Adjudication as to proper stamp. (1) When any instrument, whether executed or not and whether previously stamped or not, is brought to the Collector, and the person bringing it applies to have the opinion of that officer as to the duty (if any) with which it is chargeable, and pays a fee of such amount (not exceeding five rupees and not less than[fifty naye paise]) as the Collector may in each case direct, the Collector shall determine the duty (if any) with which, in his judgment the instrument is chargeable.
(2) For this purpose the Collector may require to be furnished with an abstract of the instrument, and also with such affidavit or other evidence as he may deem necessary to prove that all the facts and circumstances affecting the chargeability of the instrument with duty, or the amount of the duty with which it is chargeable, are fully and truly set forth therein, and may refuse to proceed upon any such application until such abstract and evidence have been furnished accordingly: Provided that—
(a) no evidence furnished in pursuance of this section shall be used against any person in any civil proceeding, except in an enquiry as to the duty with which the instrument to which it relates is chargeable; and
(b) every person by whom any such evidence is furnished, shall, on payment of the full duty with which the instrument to which it relates, is chargeable, be relieved from any penalty which he may have incurred under this Act by reason of the omission to state truly in such instrument any of the facts or circumstances aforesaid.”
- Note: Similar provisions in the State-Stamp-Acts also.

Read Blogs: Adjudication as to Proper Stamp under Stamp Act

Unstamped & Unregistered Documents and Collateral Purpose

Unstamped or Insufficiently stamped Pro-note

Can a Copy of an Unstamped Instrument be Accepted in Evidence?

It cannot be.

It was so specifically held in Jupudi Kesava Rao v. Pulavarthi Venkata Subbarao, AIR 1971 SC 1070.Appellant (plaintiff) in this case instituted the suit against respondents (defendants) praying for specific performance of the agreement to lease. Copy alone was produced. The original was insufficiently stamped. Defendants denied the execution of the agreement. The original agreement was according to the plaintiff had remained with the defendants. Oral evidence was given by the plaintiff to prove the execution of the said document. The question arose before the Apex Court was whether the consideration of the copy of the written insufficiently stamped agreement was barred by the provisions of sections 35 and 36 of the Stamp Act.

S. 35 of the Stamp Act reads as under:

“No instrument chargeable with duty shall be admitted in evidence for any purpose by any person having by law or consent of parties authority to receive evidence, or shall be acted upon, registered or authenticated by any such person or by any public officer, unless such instrument is duly stamped
Provided that ……

The Apex Court held as under:

“13. The first limb of Section 35 clearly shuts out from evidence any instrument chargeable with duty unless it is duly stamped.
The second limb of it which relates to acting upon the instrument will obviously shut out any secondary evidence of such instrument, for allowing such evidence to be let in when the original admittedly chargeable with duty was not stamped or insufficiently stamped, would be tantamount to the document being acted upon by the person having by law or authority to receive evidence.”

Does S. 36 Bar Questioning an Unstamped Document Once Marked Without Objection

(See End Notes)

Sec. 36 reads as under:

“Where an instrument has been admitted in evidence, such admission shall not, except as provided in section 61, be called in question at any stage of the same suit or proceeding on the around that the instrument has not been duly stamped.”

In Jupudi Kesava Rao v. Pulavarthi Venkata Subbarao, AIR 1971 SC 1070, it is held as under:

If Section 35 only deals with original instruments and not copies, section 36 cannot he so interpreted so as to allow secondary evidence of an instrument to have its benefit. The words “an instrument” in Section 36 must have the same meaning as that in Section 35.

Can a Copy of an Unstamped Instrument be Impounded?

Cannot be.

In Hariom Agrawal v. Prakash Chand Malviya , AIR 2008 SC 166, it is held as under:

“8. It is clear from the decisions of this Court and a plain reading of Ss. 33, 35 and 2(14) of the Act (Madhya Pradesh Stamp Act) that an instrument which is not duly stamped can be impounded and when the required fee and penalty has been paid for such instrument it can be taken in evidence under Sec. 35 of the Stamp Act. Ss. 33 or 35 are not concerned with any copy of the instrument and party can only be allowed to rely on the document which is an instrument within the meaning of Sec. 2(14). There is no scope for the inclusion of the copy of the document for the purposes of the Indian Stamp Act. Law is now no doubt well settled that copy of the instrument cannot be validated by impounding and this cannot be admitted as secondary evidence under the Indian Stamp Act, 1899.”

Our Apex Court, in Jupudi Kesava Rao v. Pulavarthi Venkata Subbarao, AIR 1971 SC 1070, followed the Privy Council decision in Raja of Bobbili v. Imuganti China Sitaramaswami Garu, 23 Madras 49, where the Judicial Committee held as under:

“These clauses throughout deal with, and exclusively refer to, the admission as evidence of original documents which, at the time of their execution, were not stamped at all, or were insufficiently stamped. It is only upon production of the original writ, that the Collector has the power given him or the duty imposed upon him, of assessing and charging tie penalty, a duty which he must, in that case, perform by writing an indorsement upon the writ submitted to him, which then, and not till then, becomes probative in law.”

It is further pointed out in Jupudi Kesava Rao v. Pulavarthi Venkata Subbarao, AIR 1971 SC 1070, that the well-settled law that a copy of an instrument could not be validated is reiterated in The State of Bihar v. Karam Chand Thapar & Bros Ltd. [1962] 1 S.C.R. 827.

The Supreme Court observed that the reason for non-production of original, in this aspect, is immaterial. It is sated as under:

“The decisions of different High Courts make it quite clear that the cause of the non-production of the original instrument is immaterial, i.e. whether it was lost or whether it was destroyed or even if it was the allegation of the party seeking to prove its contents by alleging that the document was suppressed by his opponent.”

Stamp Duty to be Levied Would be the Duty Payable as on the Date of Execution

The stamp duty to be levied on impounding would be the duty payable as on the date of execution of the document and the value of the property as on that date; and not the date of its impounding.

Section 27 of the Indian Stamp Act, says as under:

27. Facts affecting duty to be set forth in instrument.—The consideration (if any) and all other facts and circumstances affecting the chargeability of any instrument with duty, or the amount of the duty with which it is chargeable, shall be fully and truly set forth therein.

Who has to Pay Stamp-Duty

Section 29 of The Indian Stamp Act, 1899 governs it. It reads as under:

29. Duties by whom payable: In the absence of any agreement to the contrary, the expense of providing the proper stamp shall be borne
- (a) in the case of any instrument described in any of the following Articles of Schedule I, namely-
  - No. 2. (Administration Bonds),
  - No. 6. (Agreement relating to Deposit of Title deeds, Pawn or Pledge),
  - No. 13. (Bill of Exchange),
  - No. 15. (Bonds),
  - No. 16. (Bottomry Bond),
  - No. 26. (Customs Bond),
  - No. 27. (Debenture),
  - No. 32. (Further Charge),
  - No. 34. (Indemnity-bond),
  - No. 40. (Mortgage-deed),
  - No. 49. (Promissory-note),
  - No. 55. (Release),
  - No. 56. (Respondentia Bond),
  - No. 57. (Security Bond or Mortgage-deed),
  - No. 58. (Settlement),
  - No. 62(a). (Transfer of shares in an incorporated company or other body corporate),
  - No. 62(b). (Transfer of debentures, being marketable securities, whether the debenture is liable to duty or not, except debentures provided for by section 8),
  - No. 62(c). (Transfer of any interest secured by a bond, mortgage-deed or policy of insurance),
by the person drawing, making or executing such instrument:
- (b) in the case of a policy of insurance other than fire-insurance –
by the person effecting the insurance:
- (bb) in the case of a policy of fire-insurance-
by the person issuing the policy:
- in the case of a conveyance (including a reconveyance of mortgaged property) by the grantee: in the case of a lease or agreement to lease-
by the lessee or intended lessee:
- in the case of a counterpart of a lease-
by the lessor:
- in the case of an instrument of exchange-
by the parties in equal shares:
- in the case of a certificate of sale-
by the purchaser of the property to which such certificate relates: and,
- in the case of an instrument of partition–
by the parties thereto in proportion to their respective shares in the whole property partitioned, or, when the partition is made in execution of an order passed by a Revenue-authority or civil court or arbitrator, in such proportion as such authority, court or arbitrator directs.

Instruments Impounded, How dealt with

Section 38 of The Indian Stamp Act, 1899 reads as under:

38. Instruments impounded, how dealt with—(1) Where the person impounding an instrument under section 33 has by law or consent of parties authority to receive evidence and admits such instrument in evidence upon payment of a penalty as provided by section 35 or of duty as provided by section 37, he shall send to the Collector an authenticated copy of such instrument, together with a certificate in writing, stating the amount of duty and penalty levied in respect thereof, and shall send such amount to the Collector, or to such person as he may appoint in this behalf.
(2) In every other case, the person so impounding an instrument shall send it in original to the Collector.

In N. Jagannadham v. V. Mangamma, 1997 (2) ALD 549, Andhra High Court held as under:

“If the party instead of requiring the document to be admitted in evidence merely wants the Court to send it to the Collector to be dealt with under Section 40, the Court has no option but to send it to the Collector as provided in Section 38 (2).
The Court cannot compel the party to pay duty and penalty and have it admitted in evidence”

Collector’s power to stamp instruments impounded

Sec. 40 deals with it. It reads:

40. Collector’s power to stamp instruments impounded

(1) When the Collector impounds any instrument under section 33, or receives any instrument sent to him under section 38, sub-section (2), not being an instrument chargeable with a duty not exceeding ten naye paise] only or a bill of exchange or promissory note, he shall adopt the following procedure–
- (a) if he is of opinion that such instrument is duly stamped, or is not chargeable with duty, he shall certify by endorsement thereon that it is duly stamp, or that it is not so chargeable, as the case may be;
- (b) if he is of opinion that such instrument is chargeable with duty and is not duly stamped, he shall require the payment of the proper duty or the amount required to make up the same, together with a penalty of five rupees; or, if he thinks fit, 2[an amount not exceeding] ten times the amount of the proper duty or of the deficient portion thereof, whether such amount exceeds or falls short of five rupees:
Provided that, when such instrument has been impounded only because it has been written in contravention of section 13 or section 14, the Collector may, if he thinks fit, remit the whole penalty prescribed by this section.
(2) Every certificate under clause (a) of sub-section (1) shall, for the purposes of this Act, be conclusive evidence of the matters stated therein.
(3) Where an instrument has been sent to the Collector under section 38, sub-section (2), the Collector shall, when he has dealt with it as provided by this section, return it to the impounding officer.

End Notes

Instruments not duly stamped, inadmissible

Insufficiency of Stamp: Sec. 35 of the Indian Stamp Act reads as under:

“35. Instruments not duly stamped inadmissible in evidence, etc.- No instrument chargeable with duty shall be admitted in evidence for any purpose by any person having by law or consent of parties authority to receive evidence, or shall be acted upon, registered or authenticated by any such person or by any public officer, unless such instrument is duly stamped:
Provided that-(a)any such instrument shall be admitted in evidence on payment of the duty with which the same is chargeable or, in the case of an instrument insufficiently stamped, of the amount required to make up such duty, together with a penalty of five rupees, or, when ten times the amount of the proper duty or deficient portion thereof exceeds five rupees, of a sum equal to ten times such duty or portion; … ….. ….”

Unstamped document cannot be looked at even for any collateral purpose

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

Section 36 of the Stamp Act provides as under:

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

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

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

Objection be raised when Document Tendered

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

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

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

Two forceful propositions stand paradoxical and incongruent

The following two forceful propositions stand paradoxical and incongruent.

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

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

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

Though Smt. Savithramma R.C v. M/s. Vijaya Bank, AIR 2015 Kar 175, clarified the position with great clarity, still, it is not definite whether the court should sit silent and mark the document if it is not opposed; and to raise its eye-brows after marking it unopposed. It is yet to be solved after considering all relevant aspects. It appears that the latest view of the Supreme Court is that given in Omprakash v. Laxminarayan, (2014) 1 SCC 618.

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

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

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

“8. A document would be admissible on basis of the recitals made in the document and not on basis of the pleadings raised by the parties. ….
9. It would be trite to say that if in a document certain recitals are made then the Court would decide the admissibility of the document on the strength of such recitals and not otherwise. In a given case, if there is an absolute unregistered sale deed and the parties say that the same is not required to be registered then we don’t think that the Court would be entitled to admit the document because simply the parties say so. The jurisdiction of the Court flows from Sec. 33, 35 and 38 of the Indian Stamp Act and the Court has to decide the question of admissibility. With all humility at our command we overrule the judgment in the matter of Laxminarayan (supra).”

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Stamp Act

Will

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Book No. 2: A Handbook on Constitutional Issues

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

Book No. 4: Common Law of TRUSTS in India

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

Admissibility, Substantive Evidence and Probative Value – General Principles

Jojy George Koduvath, Kottayam

PART I

INTRODUCTION

“Evidence” includes “statements” of witnesses; “documents” like writings, email, photos; and “objects” exhibited in court. How evidence is to be tendered in court is determined by Civil Procedure Code and Criminal Procedure Code. What kind of facts or information is admissible in evidence as “proof” is decided by the Evidence Act. It applies to both criminal and civil cases.

Relevant Evidence Alone is Admissible

Sec. 5 and 136 of the India Evidence Act stipulate that evidence can be given only on ‘facts in issue’ or ‘relevant facts’. Relevant facts are enumerated in Sec. 6 onwards.

Proof as to Truth

Proof as to truth is to be established:

(i) by oral evidence of one who can vouchsafe the same or
(ii) by circumstantial evidence or
(iii) by invoking ‘presumption’ or
(iv) by express admission by the other side.

Presumptions can be invoked when no direct evidence possible

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

“Presumption of fact is an inference as to the existence of one fact from the existence of some other facts, unless the truth of such inference is disproved. Presumption of fact is a rule in law of evidence that a fact otherwise doubtful may be inferred from certain other proved facts. When inferring the existence of a fact from other set of proved facts, the Court exercises a process of reasoning and reach a logical conclusion as the most probable position. The above principle has gained legislative recognition in India when Section 114 is incorporated in the Evidence Act. It empowers the Court to presume the existence of any fact which it thinks likely to have happened. In that process Court shall have regard to the common course of natural events, human conduct etc. in relation to the facts of the case.”

Best Evidence Rule

Certain evidence may be better than other. It is the judge who has to determine it.

According to the Indian Evidence Act (Sec. 3) ‘Evidence’ means and includes all statements made before the courts by witnesses, and all documents including electronic records produced in the Court. The ‘best evidence rule’ is laid down in-particular in Sec. 60 and 61 of the Evidence Act (oral evidence must be direct; and contents of documents are to be proved either by primary or by secondary evidence).

Indian Evidence Act lays down the following principles of ‘Rule of Best-Evidence’:

No.	Propositions	Sec. in Evd. Act
1	Best available evidence must be produced. If not, adverse presumption will be taken.	114 (g)
2	Oral evidence must be direct. Hearsay evidence is accepted in rare instances (that falls under Sec. 6 of the Evid. Act).	60
3	Documents must be proved by Primary Evidence. Secondary evidence will be allowed only when it is so permitted.	64 & 65; 22 & 144;
4	To prove the terms of a contract, or of a grant, or of any other disposition of property, have been reduced to the form of a document, and in all cases in which any matter is required by law to be reduced to the form of a document, document itself, or secondary evidence, must be produced.	91
5	No evidence of any oral agreement or statement shall be admitted, as between the parties to any such instrument or their representatives in interest, for the purpose of contradicting, varying, adding to, or subtracting from, its terms.	92
6	Sec. 93 and 94 speaks as to exclusion of evidence.	93 & 94
7	Sec. 94 to 99 lays down the circumstances in which evidence can be given with respect to documents.	94 to 99
8	Circumstantial and Presumptive evidence can be resorted to in proper cases.	114
9	Substantive evidence that requires corroboration must be corroborated.	157

The Standard of Evidence – If No Direct Evidence – is that of a Prudent Man

The standard of evidence is to be determined by the Judge after considering the ‘matters’ before it. The Court can act upon the matters placed before it in two ways.

He can say –

i. He believes a ‘matter’ to exist from (face of) the matters placed before it.
ii. He considers its existence of a matter “probable”. The standard to be adopted in such matters is that of a prudent man. That is, the judge can take a matter as proved if a prudent man, under the circumstances of the particular case, would act upon the supposition that it exists.

It is clear from Section 3 of the Evidence Act when it defines “Proved”. It reads:

“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.

PART II

ADMISSIBILITY, PROBATIVE VALUE, SUBSTANTIVE EVIDENCE

Admissibility of Evidence Determined First; Then only, Genuineness, Veracity, etc.

In Anvar P.V. v. P.K. Basheer, AIR 2015 SC 180: (2014)10 SCC 473, it is held as under:

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

Generally speaking, all relevant documents are admissible. But, various provisions of the Evidence Act, Civil and Criminal Procedure Codes, Stamp Act, Registration Act, etc. stipulate various formalities or regulations for tendering documents in evidence. ‘Relevancy’ is a matter of judicial application of the mind by the court. But, ‘admissibility’ is governed solely by the legal principles.

Read Blog: Relevancy, Admissibility and Proof of Documents

Probative Value of Documents

Origin of ‘Probative’ is from ‘Probare’ (Latin), means to prove; and ‘Probatio’ (Latin), means experience, trial, proof, testing, probation etc. In law, the meaning of ‘probative value’ is –

Sufficiency of evidence which is useful to prove something in a trial.
Probability of proof or truth while appreciating a fact.
Value or weight of evidence, considered by the court, in proof of something.
Extent of evidentiary value that can be taken to prove a proffered proposition.

Whenever a document is admitted in court, the probative value thereof will be a matter for the court to determine. State of Bihar v. Radha Krishna Singh, AIR 1983 SC 684, it is observed:

“Admissibility of a document is one thing and its probative value quite another—these two aspects cannot be combined. A document may be admissible and yet may not carry any conviction and weight or its probative value may be nil.”

E.g. – previous criminal conduct of an accused, photocopy of a deed certified copy of which is provided in law, ‘objectionable document’ marked without objection, un-cross-examined testimony of a witness etc.

If there is a dispute regarding age, the Supreme Court, in State of Punjab Vs. Mohinder Singh (AIR 2005 SC 1868), held that the date of birth available in the School Admission Register has more probative value than the horoscope. The probative value of FIR, Scene-Mahazar, Post-Mortem Report, photocopy of a Registered Deed etc., by itself, will be lesser. In such cases the court can refrain from acting upon such documents until substantive or regular evidence is offered, by examining the proper witness.

In Om Prakash Vs. State of Punjab, 1993(2) CLR 395, and Jora Singh Vs. State of Punjab, 1984(2) Crimes 837, it has been held that an entry in the school leaving certificate regarding date of birth of a student is not a conclusive proof or high ‘probity evidence’because it is a matter of common knowledge that the date of birth given at the time of the admission of a boy or girl in a school is seldom correct and more often than not the age given is less than the actual age of the child. (See also: C. Doddanarayana Reddy Vs. C. Jayarama Reddy: AIR 2020 SC 1912; Commissioner of Central Excise And Service Tax v. M/S. Sanjivani Non-Ferrous Trading: AIR 2019 SC 203.)

Evidence – Classifications

Evidence is classified under different heads – such as:

primary evidence secondary evidence;
oral, documentary and material objects;
direct evidence and circumstantial evidence;
substantial evidence and inadmissible evidence (or hearsay evidence);
substantive evidence and evidence used for refreshing memory or for corroboration.
real evidence, testimonial evidence and hearsay evidence;
judicial evidence and non-judicial evidence etc.

Substantive Evidence and Evidence for Refreshing Memory.

A Post-Mortem Report, Wound Certificate or Commission Report in a former case is not a substantive evidence. Doctor or Commissioner can refresh memory (Sec. 159, Evid. Act) with reference to the document. Similarly, mere marking of a Scene Mahazar, without examining the Investigating Officer who prepared it, will not render substantive aid to the prosecution case.

In Rameshwar Dayal v. State of U.P., AIR 1978 SC 1558, referring to Inquest Report, Site Plans etc., it is held by the Supreme Court, as follows:

“That part of such documents which is based on the actual observation of the witness at the spot being direct evidence in the case is clearly admissible under Section 60 of the Evidence Act whereas the other part which is based on information given to the Investigating Officer or on the statement recorded by him in the course of investigation is inadmissible under Section 162 CrPC except for the limited purpose mentioned in that section.”

[See also: Munshi Prasad Vs. State of Bihar,(2002) 1SCC 351; State of Haryana v. Ram Singh, (2002) 2SCC 426; Vijay Paul v. State of Delhi: 2015 SC 1495; Mohanan v. State of Kerala: 2011(4) Ker LT 59.]

Documents used for Contradicting

Credit of a witness can be impeached under Sec. 155 (3) of the Evidence Act with reference to his previous statements. Sec. 145 is the provision to cross examine a witness with regard to his previous writing. Sec. 145 reads as under:

“145. Cross-examination as to previous statements in writing.—A witness may be cross-examined as to previous statements made by him in writing or reduced into writing, and relevant to matters in question, without such writing being shown to him, or being proved; but, if it is intended to contradict him by the writing, his attention must, before the writing can be proved, be called to those parts of it which are to be used for the purpose of contradicting him.”

Sec. 145 Enables to Contradict Witnesses with his previous statements:

Without such the writing being shown to him
without such (previous) writing being proved.
even when the writing is used to contradict the witness by the writing and his attention is called to those parts of it which are to be used for the purpose of contradicting him, it need not be shown to the counsel of the witness (or other side) for his perusal.
the writing need not be one that is admissible in evidence (it can be unstamped, even if it requires stamp; or unregistered, even if it requires registration).
material ‘omissions’ (in the previous writings) may amount to contradiction.

Conditions for invoking Sec. 145:

The writing must be a ‘previous’ one.
The (previous) writing must be of that witness himself.
It must be relevant to matters in question
If it is intended to contradict the witness by the writing, his attention must be called to those parts of it which are to be used for the purpose of contradicting him.
If the writing is not ‘ready with’ the cross examiner while the attention of the witness is called to those parts used for the purpose of contradicting him, the cross examiner must have undertaken to prove the document, and the Court must have given the permission as envisaged in Sec. 136 of the Evidence Act.
If the witness denies such previous statement it can be proved, subsequently (for impeaching the credit of the witness).
When it is to be proved, original or other admissible copy must be produced.
This provision being a statutory one, the courts will allow to prove it , even if the ‘right to give evidence’ of that party ‘is over’.

Important points to be noted while invoking sec. 145

If the witness admits the previous statement, no question as to proving the same arises for consideration.
The purpose of invoking sec. 145 is only testing the veracity of the witness, under Sec. 155 (3); such writing will not be a substantive evidence.
Even if the document or the contradicting part is marked, and it is proved, for the purpose of contradicting him, it cannot be read in evidence (as the purpose of this provision is only impeaching the credit of the witness).
The court has to allow the cross examiner to produce and prove the previous statement (if the witness denies such previous statement) even if technically his ‘evidence is over’ (it being statutory right).

Documents used for Corroboration

Courts adjudicate the issues before it based on substantive evidence. In several cases it may be unusual that no direct evidence comes forth; for example, sexual offences, conspiracy, etc. In some cases certain corroborative evidence, to the already placed substantive evidence, may assure confidence to the minds of judges. Section 156 of the Evidence Act lays down that such testimonies can be brought into evidence. It is beyond doubt that such an evidence should also be an admissible one.

Section 156 of the Evidence Act reads as under:

“156. Questions tending to corroborate evidence of relevant fact, admissible.
When a witness whom it is intended to corroborate gives evidence of any relevant fact, he may be questioned as to any other circumstances which he observed at or near to the time or place at which such relevant fact occurred, if the Court is of opinion that such circumstances, if proved, would corroborate the testimony of the witness as to the relevant fact which he testifies.
Illustration A, an accomplice, gives an account of a robbery in which he took part. He describes various incidents unconnected with the robbery which occurred on his way to and from the place where it was committed. Independent evidence of these facts may be given in order to corroborate his evidence as to the robbery itself.”

The requirement of corroboration in certain cases is described by our Apex Court as under in Khema @ Khem Chandra v. The State of Uttar Pradesh, AIR 2022 SC 3765, as under:

“21. This Court, in the celebrated case of Vadivelu Thevar v. State of Madras, (1957) SCR 981, has observed thus:
“…….Hence, in our opinion, it is a sound and wellestablished rule of law that the court is concerned with the quality and not with the quantity of the evidence necessary for proving or disproving a fact. Generally speaking, oral testimony in this context may be classified into three categories, namely:
- Wholly reliable.
- Wholly unreliable.
- Neither wholly reliable nor wholly unreliable.
In the first category of proof, the court should have no difficulty in coming to its conclusion either way — it may convict or may acquit on the testimony of a single witness, if it is found to be above reproach or suspicion of interestedness, incompetence or subornation. In the second category, the court equally has no difficulty in coming to its conclusion. It is in the third category of cases, that the court has to be circumspect and has to look for corroboration in material particulars by reliable testimony, direct or circumstantial..……”
22. We find that the testimony of Inder (PW2) would fall under the 3rd category i.e. his evidence can be said to be “neither wholly reliable nor wholly unreliable”. As such, it will be necessary that there is some corroboration to his ocular testimony.”

Substantive Evidence and Evidence used for Refreshing Memory.

Section 157 in the Evidence Act reads as under:

“157. Former statements of witness may be proved to corroborate later testimony as to same fact.
In order to corroborate the testimony of a witness, any former statement made by such witness relating to the same fact, at or about the time when the fact took place, or before any authority legally competent to investigate the fact, may be proved.”

In Rameshwar Dayal v. State of U.P., AIR 1978 SC 1558, referring to Inquest Report, Site Plans etc., it is held by the Supreme Court, as follows:

“That part of such documents which is based on the actual observation of the witness at the spot being direct evidence in the case is clearly admissible under Section 60 of the Evidence Act whereas the other part which is based on information given to the Investigating Officer or on the statement recorded by him in the course of investigation is inadmissible under Section 162 CrPC except for the limited purpose mentioned in that section.”

[See also: Munshi Prasad v. State of Bihar,(2002) 1SCC 351; State of Haryana v. Ram Singh, (2002) 2SCC 426; Vijay Paul v. State of Delhi: 2015 SC 1495; Mohanan v. State of Kerala: 2011(4) Ker LT 59.]

Expert Evidence is only Corroborative; Not Substantive

In case of a conflict between oral evidence and scientific evidence, which will prevail? The answer is that it depends upon the nature of the subject matter. In everyday practice we see that trustworthy and credible oral evidence get primacy status over the scientific evidence. It is on the principle that the scientific evidence always renders an ‘opinion’ or ‘possibility’ only. By the advent of scientific techniques in the field of judicial investigation and enquiry, our judicial process began to assign due importance to scientific evidence. Still, the oral evidence has primacy over the scientific evidence.

It is important that Section 45 of the Evidence Act does not say anything as to the weight to be attached to the expert evidence. This Section only says that expert’s evidence is admissible. The expert-evidence is not substantive evidence; and it is generally used as a piece of evidence for corroboration or conflict with oral evidence. The evidence of an expert only aids and helps the Court as advisory material. The expert being not a witness of fact, his opinion is to be analysed objectively by the court. The decision making process is never delegated to the expert; the expert only helps and assists the Court to decide. Courts always give due importance to the opinion of the experts. But, it will not substitute proof. Court is said to be the expert of experts.

In Solanki Chimanbhai Ukabhai v. State of Gujarat, (1983) 2 SCC 174, it was held that the evidence of eyewitnesses should be preferred unless the medical evidence completely rules it out. It was held as under:

“13. Ordinarily, the value of medical evidence is only corroborative. It proves that the injuries could have been caused in the manner alleged and nothing more. The use which the defence can make of the medical evidence is to prove that the injuries could not possibly have been caused in the manner alleged and thereby discredit the eyewitnesses. Unless, however the medical evidence in its turn goes so far that it completely rules out all possibilities whatsoever of injuries taking place in the manner alleged by eyewitnesses, the testimony of the eyewitnesses cannot be thrown out on the ground of alleged inconsistency between it and the medical evidence.”

In State of Haryana v. Bhagirath, (1999) 5 SCC 96, the Supreme Court held as under:

“15. The opinion given by a medical witness need not be the last word on the subject. Such opinion shall be tested by the court. If the opinion is bereft of logic or objectivity, the court is not obliged to go by that opinion. After all opinion is what is formed in the mind of a person regarding a fact situation. If one doctor forms one opinion and another doctor forms a different opinion on the same facts it is open to the Judge to adopt the view which is more objective or probable. Similarly if the opinion given by one doctor is not consistent with probability the court has no liability to go by that opinion merely because it is said by the doctor. Of course, due weight must be given to opinions given by persons who are experts in the particular subject.”

The blood group on the dress of the accused and the dress of the deceased matched. It corroborates the prosecution story. However that by itself is not conclusive proof of the culpability of the accused (Binder Munda v. State, 1992 Cr.L.J. 3508 Ori. (DB).

In Surinder Singh v. State of Punjab, 1989 SCC (Cri) 649, it is observed that it would not be helpful to the prosecution if it was not shown that the blood-stains on the weapon recovered from the possession of the accused were of the same group as the blood of the deceased. (See also: Kansa Behera. v. State of Orissa.AIR 1987 SC 1507).

In State of U.P. v. Krishna Gopal, AIR 1988 SC 2154, the eye-witnesses were found credible and trustworthy. Therefore, the medical opinion pointing to alternative possibilities was not accepted as conclusive. The Apex Court pointed out that witnesses, as Bantham said, were the eyes and ears of justice. Hence the importance and primacy of the orality of the trial process. Eyewitnesses’ account would require a careful independent assessment and evaluation for their credibility, which should not be adversely prejudged making any other evidence, including medical evidence as the sole touchstone for the test of such credibility. The evidence must be tested for its inherent consistency and the inherent improbabilities.

Appreciation of Evidence of Experts
In practice, the investigating agencies and courts give very high importance to wound-certificates and post-mortem certificates. They are considered as an indispensable part in most criminal cases. Same is the case of evidence of Ballistic expert. Here also primacy is given to ocular evidence if it is found credible by the court, especially when the ocular evidence is supported by the wound certificate or post-mortem report.

Post-Mortem Report is not a Substantive Evidence

Post-mortem Report or Wound Certificate is not a substantive evidence [Mohan Singh v. Emperor, AIR 1925 All. 413 (DB); State v. Rakshpal Singh, AIR 1953 All. 520; Ram Pratap v. State, 1967 All.W.R. (H.C.) 395; Ram Balak Singh v. State, AIR 1964 Pat. 62(DB); Mellor v. Walnesley, 1905, 2Ch. 164 (CA);Hadi Kisani v. State, AIR 1966 Orissa 21; Gofur Sheikh v. State, 1984 Cr.L.J. 559 (Cal); Bhanda Gorh v. State of Assam, 1984 Cr.L.J.217 (Gau); Jagdeo Singh v. State, 1979 Cr.L.J.236 (All); K. Pratap Reddy v. State of A.P., 1985 Cr.L.J.1446].

In Vadugu Chanti Babu v. State of A.P. (2002) 6 SCC 547 it is observed that a stray statement of the doctor in cross-examination will not be a conclusive opinion; but it is only a possibility. In a maintenance dispute under Sec. 125 Cr PC our Apex Court, in Saygo Bai Vs. Chueeru Bajrangi, AIR 2011 SC 1557, observed that the Court must read whole evidence and that one stray admission cannot be read in isolation with the other evidence.

Decision which Changed the Concept of Law on ‘Conclusive Presumption’

Nandlal Wasudeo Badwaik Vs. Lata Nandlal Badwaik, AIR 2014 SC 932, is a very important decision which changed the concept of law on ‘conclusive presumption’ on Sec. 112 which reads as under:

“112. Birth during marriage, conclusive proof of legitimacy. The fact that any person was born during the continuance of a valid marriage between his mother and any man, or within two hundred and eighty days after its dissolution, the mother remaining unmarried, shall be conclusive proof that he is the legitimate son of that man, unless it can be shown that the parties to the marriage had no access to each other at any time when he could have been begotten.”

It is held in Nandlal Wasudeo Badwaik case as under:

“17. We may remember that Section 112 of the Evidence Act was enacted at a time when the modern scientific advancement and DNA test were not even in contemplation of the Legislature. The result of DNA test is said to be scientifically accurate. Although Section 112 raises a presumption of conclusive proof on satisfaction of the conditions enumerated therein but the same is rebuttable. The presumption may afford legitimate means of arriving at an affirmative legal conclusion. While the truth or fact is known, in our opinion, there is no need or room for any presumption. Where there is evidence to the contrary, the presumption is rebuttable and must yield to proof. Interest of justice is best served by ascertaining the truth and the court should be furnished with the best available science and may not be left to bank upon presumptions, unless science has no answer to the facts in issue. In our opinion, when there is a conflict between a conclusive proof envisaged under law and a proof based on scientific advancement accepted by the world community to be correct, the latter must prevail over the former.”

Appreciation of Evidence is Both an Art and a Science

R. Basant, J., in Basheer Vs. Mahasakthi Enterprises – Ker LT 2005-3 163: 2005-1 Mad LJ 965, held as under:

“The appreciation of evidence is both an art and a science. All relevant inputs have to be taken into consideration for the Court to answer a disputed question of fact. Each circumstance including the opinion tendered by an expert must be taken into consideration. All the relevant inputs must be placed in the crucible. But the result of such appreciation must stem from prudence, reasonableness and intelligence of the Court. The knowledge of men and matters of the Court would be crucial. The knowledge of the court of common course of events and natural and probable behaviour of human beings will be vital. The yardsticks of a reasonably prudent mind have to be accepted. All relevant circumstances must go into the decision making. When the evidence is sifted, weighed, tested, analysed and evaluated, no one piece of evidence can be said to overrule the others unless such evidence be clinching, convincing and beyond doubt.”

Old Document: 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.”

PART III

PROOF

Formal Proof & Substantive Proof or Truth of Contents of Documents

Proof is of 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 Evd. 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. Proof as to truth is to be established (i) by oral evidence of one who can vouchsafe the same or (ii) by circumstantial evidence or (iii) by invoking ‘presumption’ or (iv) by express admission by the other side.

Modes of Proof of Documents

Modes of Proof of Documents (as to, both, ‘formal proof’ and ‘truth of the contents’) include the following:

Admission of the person who wrote or signed the document (Sec. 17, 21, 58, 67, 70).
Evidence of a person in whose presence the document was signed or written – ocular evidence (Sec. 59).
An attesting witness (Sec. 59).
Opinion of a person who is acquainted with the writing of the person who signed or wrote (Sec. 47).
Admission made by the person who signed or wrote the document made in judicial proceedings (Sec. 32, 33).
Evidence of a handwriting expert-opinion evidence/scientific evidence (Sec.45).
Evidence of a person who in routine has been receiving the document; or a document signed by such a person in the ordinary course of his business or official duty, though he may have never seen the author signing the document (Sec. 32, 34, 35 or 114).
Invoking (specific) presumptions under Sec. 79 to 90A.
Presumptions (general) under Sec. 114.
Circumstantial evidence: on probability or inferences (Sec. 114).
Court-comparison (Sec. 73).
Facts judicially noticeable (Sec. 56 and 57).
A fact of common-knowledge. (It does not require proof. See: Union Of India Vs. Virendra Bharti: 2011-2 ACC 886, 2010 ACJ 2353; Rakhal Chakraborty Vs. Sanjib Kumar Roy: 1998-1 GauLR 253, 1997-2 GauLT 705)
Internal evidence afforded by the contents of the document; a link in a chain of correspondence; recipient of the document. (Mobarik Ali Ahmed Vs. State of Bombay, AIR 1957 SC 857)

Modes of Proof of Documents Required By Law To Be Attested.

Section 68 of the Evd. Act provides that the documents required by law to be attested shall not be used in evidence until at least one attesting witness has been examined, if there be (i) an attesting witness alive, (ii) he is subject to the process of court and (iii) he is capable of giving evidence. But, the proviso lays down that if its execution is not specifically denied by the person by whom it purports to have been executed, it shall not be necessary to call an attesting witness in proof of the execution of any document not being a Will if such document is registered in accordance with the provisions of Indian Registration Act, 1908. That is, for the purpose of proving the Will, the examination of the attesting witness is necessary.

Following documents are required by law to be attested by two or more attesting witnesses.

Will: section 63 of the Succession Act.
Mortgage deed: section 59 of the T P Act.
Gift deed: section 123 of the T P Act.
Bond: 2(5) of the Indian Stamp Act, 1899.

Admission cannot be proved by the person who makes them

According to Sec. 21 of the Evidence Act, an admission cannot be proved by, or on the behalf of, the person who makes them because a person will always naturally make statements that are favorable to him. Sec. 32, 33, 34 etc. of the Evidence Act lays down exceptions to this rule. However, for comparison of hand writings and signatures, ante litem motam documents would have probative force (G. Govindaraj v. Smt. Saroja Ramakrishnan, 2013 (4) MLJ 164).

Ante litem motam documents

The Supreme Court had said in Harihar Prasad Singh v. Must. of Munshi Nath Prasadand, AIR 1956 SC 305, that ante litem motam documents that extend over a considerable period of time, form cogent and strong evidence that the lands were private lands.

Proof must be by persons who can vouchsafe for the truth

Narbada Devi Gupta v. Birendra Kumar Jaiswal (2003-8 SCC 745) held:

“Reliance is heavily placed on behalf of the appellant on Ramji Dayawala Vs. 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”.

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. (Ramji Dayawala Vs. Invest Import, AIR 1981 SC 2085; Achuthan Pillai vs Marikar (Motors) Ltd., AIR 1983 Ker 81, 1976 Cr.LJ 1507; 2016 (1) Gau. LJ 88, 2012(1) CTC 53; 2013-1 Ker LT 293.)

Inherently-inadmissible documents

‘Inherent-inadmissibility of documents’ arises from the following:

Irrelevancy
Non-registration.

Section 5 of the Indian Evidence Act, 1872 deals with relevancy. It reads as under:

“5. Evidence may be given of facts in issue and relevant facts.—Evidence may be given in any suit or proceedings of the existence or non-existence of every fact in issue and of such other facts as are hereinafter declared to be relevant, and of no others.
Explanation.—This section shall not enable any person to give evidence of a fact which he is disentitled to prove by any provision of the law for the time being in force relating to Civil Procedure
Illustration s (a) A is tried for the murder of B by beating him with a club with the intention of causing his death. At A’s trial the following facts are in issue:— A’s beating B with the club; A’s causing B’s death by such beating; A’s intention to cause B’s death.
(b) A suitor does not bring with him, and have in readiness for production at the first hearing of the case, a bond on which he relies. This section does not enable him to produce the bond or prove its contents at a subsequent stage of the proceedings, otherwise than in accordance with the conditions prescribed by the Code of Civil Procedure.”

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

Following are proper modes:

Exhibition through one who can vouchsafe veracity.
Admissible mode of secondary evidence. Eg: Certified copy be produced proving circumstances that entitles to give secondary evidence under Sec. 65 of the Evd. Act.
Secondary evidence that is recognised under Sec. 63 alone be tendered as secondary evidence.
Production of properly stamped document.

PART IV

PRESUMPTION

PRESUMPTION under Sec. 114, Evid. Act read with Sec. 35.

Sec. 35 Evd. Act speaks on ‘an entry in any public or other official book, register or record or an electronic record’. Sec. 35 Evd. Act speaks as to presumption.

Besides direct evidence, or admission, the contents of a document can also be proved by circumstantial evidence or by invoking presumption. ‘Common course of natural events’, ‘human conduct’ etc. under S. 114, 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.

Illustration (e) of Sec. 114, Evd. Act, demonstrates that presumption as to ‘regularity’ can be invoked on Judicial and official acts, in proper cases, over and above ‘common course of natural events’, ‘human conduct’ etc. that are brought-forth under the body of S. 114. ‘Regularity’ in Illustration (e) is not exactly the presumption as to ‘correctness or truth’. For such presumption, we have to resort the main section, Sec. 114 – that is, ‘common course of natural events’, ‘human conduct’, etc..

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

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.”

In Shiv Ram v. Shiv Charan Singh, AIR 1964 Raj 126, it is observed as under

“Where Sec. 35 properly comes into play, an entry made by a public servant in any public or official book in the discharge of his official duty becomes relevant by itself, and no other proof of such entry is required as a matter of law by our Evidence Act, but this, does not exclude the possibility that such an entry may become admissible otherwise if it is properly proved to have been made by a person ordinarily competent to make it.” (Quoted in Mayadhar Nayak vs Sub-Divisional Officer, Jajpur, AIR 1982 Ori 221).

In Durairaju v. Neela, 1976 CriLJ 1507, Ratnavel Pandian, J., it was held that it was the duty of the court, before making the order for maintenance, to find though in a summary manner, the paternity of the child. It was held that Ex. P. 1, the intimation received by the Municipality from the Government Hospital, and Ex. P. 2 a copy of the birth extract made on the basis of Ex, P. 1, were not sufficient to raise presumption of paternity for, the medical officer who made the entries in Ex. P. 1 had not been examined. The author of the information is not mentioned in Ex. P. 1. PW 2 herself had not stated that she mentioned to the doctor that the child was born to her through the petitioner. In the absence of such evidence, the document could not by itself prove the relevant entries made thereon. It was also observed that to prove a document under Section 35 it must be shown that the document was prepared by a public servant in discharge of his official duty or by any person in performance of a duty specially enjoined by the law.

Read Blog: Modes of Proof – Admission, Expert Evidence, Presumption etc.

Presumption & Circumstantial Evidence

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

“Presumption of fact is an inference as to the existence of one fact from the existence of some other facts, unless the truth of such inference is disproved. Presumption of fact is a rule in law of evidence that a fact otherwise doubtful may be inferred from certain other proved facts. When inferring the existence of a fact from other set of proved facts, the Court exercises a process of reasoning and reach a logical conclusion as the most probable position. The above principle has gained legislative recognition in India when Section 114 is incorporated in the Evidence Act. It empowers the Court to presume the existence of any fact which it thinks likely to have happened. In that process Court shall have regard to the common course of natural events, human conduct etc. in relation to the facts of the case.”

It is held as under in Mobarik Ali Ahmed Vs. State of Bombay (AIR 1957 SC 857) as under:

“The proof of the genuineness of a document is proof of the authorship of the document and is proof of a fact like that of any other fact. The evidence relating thereto may be direct or circumstantial. It may consist of direct evidence of a person who saw the document being written or the signature being affixed. It may be proof of the handwriting of the contents, or of the signature, by one of the modes provided in Ss. 45 and 47 of the Indian Evidence Act. It may also be proved by internal evidence afforded by the contents of the document. This last mode of proof by the contents may be of considerable value where the disputed document purports to be a link in a chain of correspondence, some links in which are proved to the satisfaction of the Court. In such a situation the person who is the recipient of the document, be it either a letter or a telegram, would be in a reasonably good position both with reference to his prior knowledge of the writing or the signature of the alleged sender limited though it may be, as also his knowledge of the subject-matter of the chain of correspondence, to speak to its authorship.”

Presumption of Correctness Attached to a Registered Deed

In the split-verdict in Majumder v. Dipak Kumar Saha, 2023 SCC OnLine SC 37, BV Nagaratna, J., held as under:

“18. … The presumption of correctness attached to endorsement made by the Sub-Registrar is in view of the provisions of Sections 58, 59 and 60 of the Registration Act. This presumption can be rebutted only by strong evidence to the contrary.”

BV Nagaratna, J. referred the following decisions-

Ishwar Dass Jain v. Sohan Lal, (2000) 1 SCC 434 (a registered document is presumed to be valid).
Chottey Lal v. The Collector of Moradabad, AIR 1922 PC 279 (presumption of validity of a power of attorney which formed the basis of a registered deed; the sub-registrar being accepted the document for registration, it is prima-facie evidence that the conditions have been satisfied).
Jugraj Singh v. Jaswant Singh, 1970 (2) SCC 386 (presumption of regularity of official acts of sub-registrar).
Rattan Singh v. Nirmal Gill, AIR 2021 SC 899 (presumption of validity of a general power of attorney and consequently of the sale deed executed – especially of a 30-year old document).
Prem Singh v. Birbal , (2006) 5 SCC 353 (when such a presumption arises, the onus would be on a person who challenges such presumption, to successfully rebut it).

PART V

BEST EVIDENCE RULE

Best available evidence must be produced; If Not, Adverse Presumption will be Taken

Generally, it is the duty of the party to lead the best evidence in his possession even though onus of proof do not lie on him, and he is not called upon to produce the said evidence; and the Court will draw adverse inference under Section 114(g) of the Evidence Act if such evidence is withheld.

But this rule cannot be applied blindly. Mere non-production of documents would not result in adverse inference, invariably (as shown below). Courts take into consideration the pleadings and decide whether the document/evidence withheld has any relevance. The court also cannot lose sight of the fact that burden of proof is on the party which makes a factual averment. The conduct and diligence of the other party is also important. Existence of some other circumstances may justify non-production (Union of India v. Ibrahim Uddin, (2012) 8 SCC 148).

The rule that best available evidence must be produced is taken in the following cases:
Murugesam Pillai v. Gnana Sambandha Pandara Sannadhi, AIR 1917 PC 6;
Hiralal v. Badkulal, AIR 1953 SC 225;
A. Raghavamma v. A. Chenchamma, AIR 1964 SC 136;
The Union of India v. Mahadeolal Prabhu Dayal, AIR 1965 SC 1755;
Gopal Krishnaji Ketkar v. Mohamed Haji Latif, AIR 1968 SC 1413;
M/s. Bharat Heavy Electrical Ltd. v. State of U.P., AIR 2003 SC 3024;
Khatri Hotels Pvt. Ltd. v. Union of India, (2011) 9 SCC 126.

In Mohan Lal Shamlal Soni v. Union of India, AIR 1991 SC 1346, the Supreme Court held as under:

“It is a cardinal rule in the law of evidence that the best available evidence should be brought before the Court to prove a fact or the points in issue. But it is left either for the prosecution or for the defence to establish its respective case by adducing the best available evidence and the Court is not empowered under the provisions of the Code to compel either the prosecution or the defence to examine any particular witness or witnesses on their sides. Nonetheless if either of the parties withholds any evidence which could be produced and which, if produced, be unfavorable to the party withholding such evidence, the court can draw a presumption under illustration (g) to Section 114 of the Evidence Act.”

Invoking best evidence rule it is observed by the Supreme Court in Musauddin Ahmed v. State of Assam, (2009) 14 SCC 541, as under:

“13. It is the duty of the party to lead the best evidence in its possession which could throw light on the issue in controversy and in case such a material evidence is withheld, the Court may draw adverse inference under Section 114 illustration (g) of the Evidence Act notwithstanding that the onus of proof did not lie on such party and it was not called upon to produce the said evidence (vide Gopal Krishnaji Ketkar vs. Mohamed Haji Latif & Ors., AIR 1968 SC 1413).”

In Jitendra v. State of M.P (2003) our Apex Court observed that charas and ganja seized from the accused was the best evidence in that case and the non-production of the same in court was seriously taken note of by the court and observed that that mere oral evidence as to the same was insufficient.(See also: Mohd. Aman, Babu Khan v. State of Rajasthan, AIR 1997 SC 2960.)

In Tomaso Bruno v. State of U.P, (2015) 7 SCC 178, it is observed as under:

“22. To invoke Section 106 of the Evidence Act, the main point to be established by the prosecution is that the accused persons were present in the hotel room at the relevant time. PW-1 Ram Singh-Hotel Manager stated that CCTV cameras are installed in the boundaries, near the reception, in the kitchen, in the restaurant and all three floors. Since CCTV cameras were installed in the prominent places, CCTV footage would have been best evidence to prove whether the accused remained inside the room and whether or not they have gone out. CCTV footage is a strong piece of evidence which would have indicated whether the accused remained inside the hotel and whether they were responsible for the commission of a crime. It would have also shown whether or not the accused had gone out of the hotel. CCTV footage being a crucial piece of evidence, it is for the prosecution to have produced the best evidence which is missing. Omission to produce CCTV footage, in our view, which is the best evidence, raises serious doubts about the prosecution case.”

With regard to adverse presumption the Apex Court held in Tomaso Bruno as under:

“28. As per Section 114 (g) of the Evidence Act, if a party in possession of best evidence which will throw light in controversy withholds it, the court can draw an adverse inference against him notwithstanding that the onus of proving does not lie on him. The presumption under Section 114 (g) of the Evidence Act is only a permissible inference and not a necessary inference. Unlike presumption under Section 139 of Negotiable Instruments Act, where the court has no option but to draw statutory presumption under Section 114 of the Evidence Act.”

Non examination of the best person as a witness was also taken seriously by our Apex Court in Jagga Singh v. State of Punjab, AIR 1995 SC 135, observing that ‘the best evidence having not been brought on record’ the it would not be justified, ‘to hold that it was the appellant who had done the mischief’.

InDigamber Vaishnav v. State of Chhattisgarh, (2019) 4 SCC 522 also the Apex Court found fault for making no attempt to examine material witnesses and observed that the best evidence which would have been thrown light on the controversy in question was withheld.

Need for placing best evidence in cases of circumstantial evidence is emphasised in Rajendra Pralhadrao Wasnik v. The State of Maharashtra, AIR 2019 SC 1 also.

Read Blogs:

1	Relevancy, Admissibility and Proof
2	Production, Admissibility & Proof
3	Best Evidence Rule in Indian Law
5	Admission of Documents on ‘Admission’
6	Secondary Evidence & Objections
7	Corroboration, and Contradiction
8	Oral Evidence on Contents
9	30 Years Old Documents & Presumption

Rule of ‘Next Best Evidence’

Under the Rule of Best Evidence the law requires, production of the next best evidence if it is not possible to produce the best evidence. See the following:

Balkar Singh v. State of Punjab, 2005 (1) RCR (Criminal) 576 : 2005 Cri LJ (NOC) 180 (the school record is the next best evidence in the absence of any entry in the office of Registrar of Births and Deaths.)
Jagdamba Tea Factory Vs. Parshotam Kishan, 2008-3 PunLR 388, 2008-3 RCR(CIVIL) 17,
2008-1 RCR(RENT) 507 (Where there is no lease deed nor any receipt, the rate of rent could well be determined on the basis of house-tax register, which was the next best evidence available. Gurinder Singh v. Kundan Lal, 2005(1) RCR(Rent) 332 : 2005(2) CCC 128 was relied on where entries in the municipal house tax register was considered.)
Chiman Lal v. Datar Singh, 1998 CriLJ 267, 1997 (1) WLN 396.
M/s. MAVR Nataraja Nadar v. State Bank of India, 1993(1) LW 456

In C. Assiamma v. State Bank of Mysore, 1992 -74 Com Cas 139, it is pointed out that the copy of a deed of transfer is not ordinarily a document of title for the purposes of an equitable mortgage, and that there may be cases where the original document is lost and there are no chances of that document being made use of for any purpose; and in such a circumstance the next best evidence of the owner’s title to the property would be a certified copy of that document.

Determination of Possession by Court By Photographs, CD or Commission

Can a commission be appointed to find out the physical possession of a property?

In Bandi Samuel v. Medida Nageswara Rao, 2017 (1) ALT 493 it is pointed out that the factum of possession of the property in dispute, which is nothing, but fishing of information and not elucidating any matter in dispute.

See also: Malaya Gounder v. Palanisamy (1995) 1 MLJ 626,
Puttappa v. Ramappa, AIR 1996 Kant 257,
Rajendran v. Lilly Ammal alias Nelli Ammal, 1998 (II) CTC 163,
Benz Automobiles Private Limited v. Mohanasundaram, 2003 (3) MLJ 391,
D. Kuttiyappan v. Meenakshiammal Polytechnic Unit, 2005 (4) CTC 676,
Devadoss v. A. Duraisingh, 2002 (3) CTC 748,
Parepally Satyanarayana v, Vutukuri Meeneder Goad, 2008 (1) ALT 461;
KMA Wahab v. Eswaran, 2008 (3) CTC 597,
Ramdas Trimbak v. Bajirao Sanap, 2018-1 MHLJ 866, 2018-5 AIR BomR 57,
S. Kalam v. V. Valliammai, 2021-7 Mad LJ 137,
K. Sellammal v. M. Valarmathy, 2022, Madras High Court.

In Indore Development Authority v. Manoharlal, 2020-8 SCC 129, AIR 2020 SC 1496, it is observed:

“270. The decision in Velaxan Kumar (supra) cannot be said to be laying down the law correctly. The Court considered the photographs also to hold that the possession was not taken. Photographs cannot evidence as to whether possession was taken or not. Drawing of a Panchnama is an accepted mode of taking possession. Even after re-entry, a photograph can be taken; equally, it taken be taken after committing trespass. Such documents cannot prevail over the established mode of proving whether possession is taken, of lands. Photographs can be of little use, much less can they be a proof of possession. A person may re-enter for a short period or only to have photograph. That would not impinge adversely on the proceedings of taking possession by drawing Panchnama, which has been a rarely recognised and settled mode of taking possession.
271. In the decision in Raghbir Singh Sehrawat v. State of Haryana, (2012) 1 SCC 792 the observation made was that it is not possible to take the possession of entire land in a day on which the award was declared, cannot be accepted as laying down the law correctly and same is contrary to a large number of precedents. The decision in Narmada Bachao Andolan v. State of M.P. (2011) 7 SCC 639, is confined to particular facts of the case. The Commissioner was appointed to find out possession on the spot. DVDs and CDs were seen to hold that the landowners were in possession. The District Judge, Indore, recorded the statements of the tenure-holder. We do not approve the method of determining the possession by appointment of Commissioner or by DVDs and CDs as an acceptable mode of proving taking of possession. The drawing of Panchnama contemporaneously is sufficient and it is not open to a court Commissioner to determine the factum of possession within the purview of Order XXVII, Rule 9 CPC. Whether possession has been taken, or not, is not a matter that a court appointed Commissioner cannot opine. However, drawing of Panchnama by itself is enough and is a proof of the fact that possession has been taken.”

Kerala High Court held in Thomas VY@ Sajimon v. Joseph VY, ILR 2020-3 Ker446, 2020-3 Ker LJ 574, 2020-3 KHC 613, as under:

“15. In a suit for permanent prohibitory injunction, the burden is entirely on the plaintiff to bring convincing evidence to show his possession over the plaint schedule property and for so doing, it is not permissible for the plaintiff to invoke Order 26 Rule 9 CPC, which is intended for a different purpose. In a matter relating to the investigation into the disputed question of fact of possession, the power of appointment of Commissioner for local investigation cannot be exercised by the Court to assist the party to collect evidence, where the party can collect evidence by itself. If a party claims that, that party is in possession of the disputed property and if the other party denies the same by filing the written statement, the disputed fact can be adjudicated by the Court after framing of issues and recording the evidence of the parties. So many articles may be found in the building at the time of local inspection by the Commissioner. Even clothes and other articles may be found in the building. The Commissioner has to just make an inventory of the items found in the building. The Commissioner cannot report about the ownership of the articles found in the premises, as the said aspect is a matter for evidence. If at all the Commissioner makes any such report, the Court shall not accept the report, even for primary satisfaction without any other convincing material. If the Advocate Commission is deputed for the purpose of ascertaining the possession of the party over the property, the said aspect can be done only after gathering information from the people in the locality, which amounts to fishing out the evidence or gathering of evidence and hence the same is only hearsay information. The party can even otherwise examine the persons, with whom the Commissioner makes enquiry, before the Court to prove the possession of the person over the property in question. The fishing out of information is to make a local enquiry collecting hearsay materials from the persons gathered there or the like, which is different from collection of materials which he finds at the scene. That apart, if that task is left to be decided by the Advocate Commissioner, any fraudulent litigant can create evidence and with the assistance of the Commissioner, he will be able to prove that he is in possession of the property, which is not the purpose for which Order 26 was enacted. Therefore, it is always advisable not to appoint an Advocate Commissioner, as in the present case, to find out the possession of the property, which has to be decided only from oral and documentary evidence to be adduced by the parties. The High Court of Madras in Mr. D. Kuttiyappan v. Meenakshiammal Polytechnic Unit, (2005) 4 MLJ 592, held that the Advocate Commissioner cannot be appointed to note down the factum of possession or the enjoyment . I respectfully agree with the view of the High Court of Madras in D. Kuttiyappan (Supra). Thus, it is settled law that the power of appointment of Commissioner for local investigation cannot be exercised by the Court to enable any party to collect evidence through the Commissioner to prove the factum of possession or enjoyment. This being the situation, the argument of the learned Counsel for the defendant that the report of the Commissioner would show the possession of the defendant in the plaint schedule property cannot be accepted even for the prima facie satisfaction of the Court.”

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Read in this Cluster (Click on the topic):

Book No, 1 – Civil Procedure Code

Power of attorney

Title, ownership and Possession

Principles and Procedure

Land Laws/ Transfer of Property Act

Evidence Act – General

Contract Act

Easement

Stamp Act

Will

Divorce

Book No. 2: A Handbook on Constitutional Issues

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

Book No. 4: Common Law of TRUSTS in India

General Principles
Dedication and Vesting
Trustees and Management
Breach of Trust
- Breach of Trust and Removal of Trustees
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General

How to Prove E-Mails, WhatsApp Chats, Facebook Posts and Website Information in Courts?

Jojy George Koduvath, Kottayam.

Is it Necessary to Produce Mobile Phone or Computer to Prove Electronic Evidence?

The answer is, “Not Necessary”.
Print-outs; Copies in CDs, Pen drives etc. are admissible.

S. 65B is an Enabling Provision. It Directs to ‘Deem‘ Copy to be “Original“

Sec. 65B, Indian Evidence Act is an express enabling provision to use a copy or print out (termed as ‘computer output’) in evidence as if it is original, inasmuch as Sec. 65B says that computer output (copy) shall be –

“deemed to be also a document“, and
admissible “without further proof or production of the original” as evidence of
- any contents of the original or
- any fact stated therein.

Relevant portion of Sec. 65B reads as under:

Sec. 65B. Admissibility of electronic records-
- (1) Notwithstanding anything contained in this Act, any information contained in an electronic record which is PRINTED ….. or COPIED ….. (hereinafter referred to as the computer output) shall be deemed to be also a document …. and shall be admissible ….. without further proof or production of the original, as evidence of any contents of the original or of any fact stated therein….”

S. 65B, Evi. Act Applies to Copy alone; and Not to Original Electronic Record

From Sec. 65B(1), as stated above, it is clear –

Sec. 65B is invoked only when a ‘computer output’ (copy) is used in evidence; and it will not be applicable to (original) ‘electronic record‘.

The Supreme Court, in Anver PV v. PK Basheer, 2014-10 SCC 473, held as under:

“24. …… If an electronic record as such is used as primary evidence under Section 62 of the Evidence Act, the same is admissible in evidence, without compliance with the conditions in Section 65B of the Evidence Act.”
This observation is followed in Arjun Panditrao v. Kailash Kushanrao, (2020) 3 SCC 216).

Copy of E-mail, WhatsApp Chats, Facebook Posts etc. considered by Courts in India

Case	Contention	Observation of Court
Ambalal Sarabhai Enterprise v. KS Infraspace LLP Limited (AIR 2020 SC 307)	There was no concluded contract. Specific performance cannot be ordered.	The WhatsApp messages which are virtual verbal communications are matters of evidence with regard to their meaning and its contents to be proved during trial by evidence-in-chief and cross examination. The emails and WhatsApp messages will have to be read and understood cumulatively to decipher whether there was a concluded contract or not.
Sailendra Kumar Goswami v. State of Assam, 2022 CrLJ 4694, 2022-237 AIC 506	Though the defamation matter on e-mail (placed in court by a copy), under Sec. 500 IPC, is proved with Sec. 65B-certificate as per Sec. 58, admitted facts need not be proved.	Certificate under sec. 65B is made mandatory, in view of Arjun Panditrao Khotkar, (2020) 3 SCC 216.
Rangaswamy v. State of Karnataka (2022)	The Nodal Officer of Vodafone Company provided, through e-mail, the call details of mobile phones and customer application forms, with certificate under Sec. 65(B).	However, in his cross-examination, he has admitted that he has not mentioned the location of the towers in the said mobile CDRs.
Zutti Engineering Solutions Pvt. Ltd. v. M. Vignesh (2019) High Court of Telangana	Copy of e-mail conversations between plaintiff and defendant was sought to be marked. Trial Court dismissed the prayer to mark the same without giving reasons.	In revision, the High Court allowed to receive the copy in evidence if the petitioner complied with Section 65B of the Evidence Act, subject to proof and relevance.
S @ S v. C P (2018) High Court of Delhi	The respondent filed print-outs from the ‘Facebook‘ page of the petitioner. She has also filed certain recorded telephone conversations in two CDs with transcripts. counsel for the petitioner raised objections as to non compliance of provisions of section.	Printouts from the Facebook – only show that one Deepa is acquainted with the petitioner but there is no indication of any objectionable relationship. Telephonic conversations in the CDs do not refer to any demand of dowry.
Shyam Investments v. Masti Health And Beauty Pvt Ltd. (2020 – High Court of Madras)	The printout of the websites of the plaintiffs and defendant produced along with the certificate under Section 65B. Also print out of registration certificates of the marks also filed supported by the affidavit under Section 65B.	Printout of the websites accepted (in the Trade Mark/passing off matter). Held – the plaintiffs were entitled for damages as sought for. Injunction was also granted.
Sanjib Sarkar v. Rajasree Roy, AIR 2022 Cal- 12	Secondary evidence of Facebook messages is admissible if only there is a certificate under Sec. 65B (4). Oral evidence in support of it by the wife (in the matter of annulment of marriage on the ground of fraud) was not enough.	The wife argued that the secondary evidence was supported by evidence in primary form by her. The finding of the trial court was confirmed, as it was admitted by the appellant that the evidence was sourced from the “the original electronic device owned by” the wife.
Kadar Nazir Inamdar v. State of Maharashtra (2022)	Alleged Facebook conversation (Secondary evidence) is wholly untenable as there is no material to show the retrieval of the data by the Investigating Officer. Nor a certificate under Sec. 65B is produced.	The submissions about the authenticity and genuineness of Facebook chat do not deserve countenance at this stage. The question of admissibility would be a matter of trial.
Rakesh Kumar Singla v. Union Of India, 2021-1 RCR(CRI) 704, 2021-3 Cri CC 452	Screen shots of Whatsapp messages available with the NCB, which would connect the petitioner with the said contraband.	Narcotics Bureau would always be at liberty to rely upon the Whatsapp messages after due compliance of provisions of Section 65-B of the Indian Evidence.
Priyanka Singh v. State of Maharashtra, 2021 All MR(Cri) 1276, 2021-3 Cri CC 110, 2021-4 BCR(Cri) 393	Petitioners prayed for quashing of the FIR, in the matter related to alleged suicide by a late actor. Printouts of Whatsapp chats were produced along with the complaint.	The printouts of Whatsapp chats showed that there was no whatsapp chats at the relevant time within the proximate date and time. FIR qua second petitioner was quashed and set aside.
Abhishek Tripathi v. Smt. Aparna Tripathi (2022), Chhattisgarh High Court	Print-out of Whatsapp chat, between husband and wife, is not admissible in evidence under the provisions of Sec. 65B unless and until it bears certificate.	Court granted bail, acting upon the Whatsapp.
Kumari Chaithra v. State of Karnataka (2022)	Whatsapp chat (Secondary evidence) is not proved by a certificate under Sec. 65B is produced. It is necessarily to file the certificate (while filing the charge-sheet).	While considering the bail petition, Court exercising the discretion, can consider the Whatsapp messages, to find the relation between the parties, in a sexual offence matter. Certificate is required while marking the documents.
Ambika Roy v. Honble Speaker, West Bengal Legislative Assembly (2022)	The Speaker (in the steps for disqualifying a BJP-MLA for joined the TMC) illegally rejected of the following evidence produced with the certificate u/s 65B – Printouts of Tweets, Facebook page of AITC, Video recording of the press conference and screenshots of Twitter handle of AITC.	If the Speaker found a certificate under Sec. 65-B to be defective, then it had to summon the person referred to Sec. 65-B. It was necessary for the Speaker to duly take into account the certificate given by the petitioner before rejecting the electronic evidence as inadmissible.

Presumption as to Electronic Messages – Presumption as to Originator

Sec. 88A of the Evidence Act reads as under:

“88A. Presumption as to electronic messages – The Court may presume that an electronic message, forwarded by the originator through an electronic mail server to the addressee to whom the message purports to be addressed corresponds with the message as fed into his computer for transmission; but the Court shall not make any presumption as to the person by whom such message was sent.
Explanation – For the purposes of this section, the expressions “addressee” and “originator” shall have the same meanings respectively assigned to them in clauses (b) and (za) of sub-section (1) of section 2 of the Information Technology Act, 2000 (21 of 2000).”

On analysis following matters emerge from Sec. 88A-

Presumption under Sec. 88A is optional.
It relates to an electronic message, forwarded by the originator.
It must have been forwarded through an electronic mail server to the addressee.
The presumption is (only) that the purported message forwarded by the originator to the addressee corresponds with the message that is fed into his computer.

Sec. 88A, by itself, does not give a presumption-

(i) that the purported message fed into his computer had reached the addressee (such a presumption can be drawn from Sec. 114 Evid. Act)
or,
(ii) that the purported message has been seen or read by the addressee.
- Note, Sec. 88A itself says “the Court shall not make any presumption as to the person by whom such message was sent“.
- Therefore, it is possible to expostulate – without some additional evidence (or some additional presumption) it is not proper to take a presumption that the message sent to the ‘office of the addressee’ is seen by the addressee.
- In other words, the degree of presumption as to (reading) a message sent to a personal device (computer or mobile phone) of one person will be higher when compared to a message sent to his ‘office’.

Email sent by the Accused found Proved in 2016 Cri. LJ 1159 (Cal)

Analysing Section 88A of the Evidence Act and the relevant provisions of the Information and Technology Act, it is observed in Abdul Rahaman Kunji vs The State Of West Bengal, 2016 CriLJ 1159 (Cal), that the e-mails were admissible in evidence. The court acted upon the presumption under Sec. 88A. It was found that the e-mails were proved and that the accused/appellant was the originator of the e-mails and that he had participated in the crime of abduction in equal measure as the others. It was observed as under:

“It is apparent that the Court may presume the veracity of the message fed into the computer for transmission by the originator through his mail server to an addressee, that is, the person who is intended by the originator to receive the electronic record and does not include any intermediary. However, this is a rebuttable presumption. Besides, no presumption can be drawn about the person who has sent such a message. Therefore, even if we accept the fact that these e-mails have been downloaded as stated by the Webel expert or sent by using the e-mail address of Akib Ali, it was necessary for the prosecution to prove that Akib Ali was in fact the originator of these e-mails. The disclosure, if any, made by Akib Ali of the e-mail address and password would have to be made under Sec. 27 of the Evidence Act. PWs 118 and 132 (expert and IO) have both stated that Akib Ali has disclosed his e-mail identities and passwords in their presence. They have signed the seizure list under which the e- mails accessed from these accounts and printed have been seized. Therefore, in our opinion, these e-mails are admissible in evidence.”

It was also pointed out by the High Court that besides denying everything in the statement recorded under section 313 CrPC, the accused has not given any specific explanation about his e-mail accounts and passwords or about the contents of the e-mails.

What Type of Copies Can be Used as ‘Computer Outputs’ under Sec. 65B?

As shown above, by virtue of Sec. 65B of the Evidence Act, a computer output (i.e. copy or print-out of an electronic record) is deemed to be also an (original) document. For proving the ‘computer output’ (copy or print-out), Sec. 65B directs that the Certificate, as provided under subsection (4), is essential. The ‘computer output’ (copy) can be-

Print-outs,
CDs, Pen drives etc. and
Screenshots.

The Information Technology Act, 2000 (No. 21 of 2000) defines ‘Electronic Record’ as under:

“ ‘Electronic Record’ means data, record or data generated, image or sound stored, received or sent in an electronic form or micro film or computer generated micro fiche.”

What should be the Contents of the Sec. 65B Certificate

Sub Sections 2 and 4 of Sec. 65B are the crucial provisions. They read as under:

“(2) The conditions referred to in sub-section (1) in respect of a computer output shall be the following, namely:—
- (a) the computer output containing the information was produced by the computer during the period over which the computer was used regularly to store or process information for the purposes of any activities regularly carried on over that period by the person having lawful control over the use of the computer;
- (b) during the said period, information of the kind contained in the electronic record or of the kind from which the information so contained is derived was regularly fed into the computer in the ordinary course of the said activities;
- (c) throughout the material part of the said period, the computer was operating properly or, if not, then in respect of any period in which it was not operating properly or was out of operation during that part of the period, was not such as to affect the electronic record or the accuracy of its contents; and
- (d) the information contained in the electronic record reproduces or is derived from such information fed into the computer in the ordinary course of the said activities.”
“(4) In any proceedings where it is desired to give a statement in evidence by virtue of this section, a certificate doing any of the following things, that is to say,—
- (a) identifying the electronic record containing the statement and describing the manner in which it was produced;
- (b) giving such particulars of any device involved in the production of that electronic record as may be appropriate for the purpose of showing that the electronic record was produced by a computer;
- (c) dealing with any of the matters to which the conditions mentioned in sub-section (2) relate,
and purporting to be signed by a person occupying a responsible official position in relation to the operation of the relevant device or the management of the relevant activities (whichever is appropriate) shall be evidence of any matter stated in the certificate; and for the purposes of this sub-section it shall be sufficient for a matter to be stated to the best of the knowledge and belief of the person stating it.”

From Sub Sections (2) and (4) of Sec. 65B, it is clear that the certificate must refer to the following aspects –

the computer was used regularly to store or process information;
the activities were regularly carried on over that period;
they were done by a person having lawful control over the computer;
the information was regularly fed into the computer;
it was in the ordinary course of the said activities;
the computer was operating properly (if not, give details);
the information was fed in the ordinary course of the activities.
the electronic record must be identified
the manner in which it was produced;
particulars of device involved in the production of that electronic record.

Who can Give Certificate under Sec. 65B?

Sec. 65B(4) reads as under:

“(4) In any proceedings where it is desired to give a statement in evidence … … a certificate doing any of the following things, that is to say,—
- (a)… (b)…. (c) ….
and purporting to be signed by a person occupying a responsible official position in relation to
- the operation of the relevant device or
- the management of the relevant activities (whichever is appropriate)
shall be evidence of any matter stated in the certificate; and
for the purposes of this sub-section it shall be sufficient for a matter to be stated to the best of the knowledge and belief of the person stating it.”

Basing on Sub-section (4) of Section 65B, it is made clear in Arjun Panditrao Khotkar v. Kailash Kushanrao Gorantyal, (2020) 3 SCC 216 –

The 65B(4) certificate can be given by-
- (1) anyone out of several persons who occupy a ‘responsible official position’ in relation to the operation of the relevant device,
- (2) a person who may otherwise be in the ‘management of relevant activities’, and who can give the certificate to the “best of his knowledge and belief”.
See also – Smriti Madan Kansagra Vs. Perry Kansagra 2020-12 SCALE 450.

Time for Producing Sec. 65B(4) Certificate

The Sec. 65B(4) Certificate can be given ‘long after the electronic record has actually been produced by the computer’. In Arjun Panditrao it is also pointed out as under:

“An application can always be made to a Judge for production of such a certificate from the requisite person under Section 65B(4) in cases in which such person refuses to give it.”
See also – Smriti Madan Kansagra Vs. Perry Kansagra 2020-12 SCALE 450.

Court-Jurisdiction to Order Production of a Certificate

Our Apex Court referred to in Arjun Panditrao Khotkar v. Kailash Kushanrao Gorantyal, (2020) 3 SCC 216, the following provisions of law that enables a court to order (on the request of the parties to the proceedings or on its own) production of Sec. 65B(4) Certificate –

1. The Indian Evidence Act, Section 165. It empowers a Judge to order production of any document or thing in order to discover or obtain proof of relevant facts;
2. The Civil Procedure Code, Order XVI – Rule 6, 7, and 10. (R. 6 pertains to Summons to produce document; R. 7 – Power to require persons present in Court to give evidence or produce document; and R. 10 – Procedure where witness fails to comply with summons).
3. The Code of Criminal Procedure, Sec. 91 and 349. (s. 91 discusses as to Summons to produce document or other thing; s. 349 – Imprisonment or committal of person refusing to answer or produce document).

Should the ‘Correctness’ of Copy or Print-out Must be Proved?

No.

S. 65B(5)(c) lays down a presumption as to correctness (not truth) of the computer out-put; because, S. 65B(5)(c) lays down-

‘a computer out-put shall be taken to have been produced by a computer’.

Sec. 65B(5)(c) reads:

‘a computer output shall be taken to have been produced by a computer whether it was produced by it directly or (with or without human intervention) by means of any appropriate equipment’.
- (Note: Sec. 65B(5)(c) stands incongruent to to Sec. 65B(2) which reads as under: “(2). The conditions … in respect of a computer output shall be the following, namely:—(a) the computer output containing the information was produced by the computer … (which) was used regularly to store or process information …. over that period by the person having lawful control over the use of the computer …..“

Post Circulated/Forwarded on WhatsApp Platform/Group – Not a ‘Document’

In National Lawyers Campaign for Judicial Transparency and Reforms v. Union of India, 2019 (Delhi High Court) the petition made very serious allegations has been filed merely based on a post allegedly circulated on WhatsApp group. Counsel for the petitioner submitted that in terms of Section 154 of the Code Criminal Procedure, 1973 any information, which was provided to the police, was sufficient to set the criminal process into motion. The High Court responded as under:

“I am unable to accept this contention, in as much as, in the present case, the petitioners, very candidly admit that they are not privy to any information. What they believe to be information is a post circulated on WhatsApp platform or an alleged translation in a website. The alleged information is not claimed to be true to their knowledge. It is not even stated in the petition as to how the petitioners have formed a reasonable belief that the alleged post or the translation could be true or have any basis.”
“Annexure – A (forwarded message) does not even qualify as a document in terms of the Evidence Act, 1872, in as much as, neither the original nor the copy of the original has been produced. It is an admitted position that the petitioners have not seen original and have had no occasion to even compare Annexure – A with the original.”

“What is Evidential Value of WhatsApp Messages these days?“

The chats, that were done prior to a written agreement in a commercial transaction, are extrinsic evidence and hence, ordinarily, they are not relevant. Oral statements as regards the contents in a document are also liable to be eschewed, in law. Further, Sec. 93 and 94 of the Evidence Act speak as to exclusion of evidence (i) intend to ‘explain or amend ambiguous document’ and (ii) ‘against application of the document to existing facts’. It is profitable to refer the Supreme Court decision in Roop Kumar v. Mohan Thedani: AIR 2003 SC 2418, which reads as under:

“The grounds of exclusion of extrinsic evidence are:
(i) to admit inferior evidence when law requires superior would amount to nullifying the law,
(ii) when parties have deliberately put their agreement into writing, it is conclusively presumed, between themselves and their privies, that they intended the writing to form a full and final statement of their intentions, and one which should be placed beyond the reach of future controversy, bad faith and treacherous memory.”

It is seen that, in the hearing of A2Z Infraservices Ltd. v. Quippo Infrastructure Ltd., on 14 July 2021, the Apex Court (Chief Justice NV Ramana and Justices AS Bopanna and Hrishikesh Roy) pointed out this legal position as under:

“What is evidential value of WhatsApp messages these days? Anything can be created and deleted on social media these days. We don’t attach any value to the WhatsApp messages,”

Following are the Landmark Cases of the Supreme Court on Sec. 65B

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

End Notes:

See Blog: Proof on ‘Truth of Contents’ of Documents, in Indian Evidence Act

Where truth is in issue mere marking does not absolve duty to Prove Truth

Where truth of a document is in issue, marking without objection does not absolve the duty on the concerned party to prove the truth.

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	Admission of contents; and, it dispenses with proof as to truth. (It is on the proposition that proof includes ‘truth of contents’.)
Second View	Admission of contents; but, it does not dispense with proof (as to both ‘existence’ and ‘truth’).
Third view	If truth is in issue, mere proof of contents, or marking without objection, is not proof of truth.
Fourth view	Admission of contents of a document may dispense with proof (as to both ‘existence’ and ‘truth’); but its *PROBATIVE VALUE* will be a matter for the court, and the proof as to truth is left to the discretion of the court. In proper cases court can presume truth.
Fifth view	Court should require the party producing the document to adduce proper evidence, and to cure formal defects.

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.”

PROBATIVE VALUE of a Document is 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.

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.

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.”

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Section 165 of the Evidence Act states as follows:

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

Order XVI rule 6 of the Civil Procedure Code, 1908

“6. Summons to produce document.—Any person may be summoned to produce a document, without being summoned to give evidence; and any person summoned merely to produce a document shall be deemed to have complied with the summons if he causes such document to be produced instead of attending personally to produce the same.

Order XVI rule 7 of the Civil Procedure Code, 1908

7. Power to require persons present in Court to give evidence or produce document.—Any person present in Court may be required by the Court to give evidence or to produce any document then and there in his possession or power.

Order XVI rule 10 of the Civil Procedure Code, 1908

10. Procedure where witness fails to comply with summons.—(1) Where a person has been issued summons either to attend to give evidence or to produce a document, fails to attend or to produce the document in compliance with such summons, the Court— (a) shall, if the certificate of the serving officer has not been verified by the affidavit, or if service of the summons has affected by a party or his agent, or (b) may, if the certificate of the serving officer has been so verified, examine on oath the serving officer or the party or his agent, as the case may be, who has effected service, or cause him to be so examined by any Court, touching the service or non- service of the summons.
(2) Where the Court sees reason to believe that such evidence or production is material, and that such person has, without lawful excuse, failed to attend or to produce the document in compliance with such summons or has intentionally avoided service, it may issue a proclamation requiring him to attend to give evidence or to produce the document at a time and place to be named therein; and a copy of such proclamation shall be affixed on the outer door or other conspicuous part of the house in which he ordinarily resides.
(3) In lieu of or at the time of issuing such proclamation, or at any time afterwards, the Court may, in its discretion, issue a warrant, either with or without bail, for the arrest of such person, and may make an order for the attachment of his property to such amount as it thinks fit, not exceeding the amount of the costs of attachment and of any fine which may be imposed under rule 12:
Provided that no Court of Small Causes shall make an order for the attachment of immovable property.”

Sec. 91 of the Code of Criminal Procedure, 1973

“91. Summons to produce document or other thing.— (1) Whenever any Court or any officer in charge of a police station considers that the production of any document or other thing is necessary or desirable for the purposes of any investigation, inquiry, trial or other proceeding under this Code by or before such Court or officer, such Court may issue a summons, or such officer a written order, to the person in whose possession or power such document or thing is believed to be, requiring him to attend and produce it, or to produce it, at the time and place stated in the summons or order.
(2) Any person required under this section merely to produce a document or other thing shall be deemed to have complied with the requisition if he causes such document or thing to be produced instead of attending personally to produce the same.
(3) Nothing in this section shall be deemed— (a) to affect sections 123 and 124 of the Indian Evidence Act, 1872 (1 of 1872), or the Bankers’ Books Evidence Act, 1891 (13 of 1891), or (b) to apply to a letter, postcard, telegram or other document or any parcel or thing in the custody of the postal or telegraph authority.”

Sec. 349 of the Code of Criminal Procedure, 1973

“349. Imprisonment or committal of person refusing to answer or produce document.—If any witness or person called to produce a document or thing before a Criminal Court refuses to answer such questions as are put to him or to produce any document or thing in his possession or power which the Court requires him to produce, and does not, after a reasonable opportunity has been given to him so to do, offer any reasonable excuse for such refusal, such Court may, for reasons to be recorded in writing, sentence him to simple imprisonment, or by warrant under the hand of the Presiding Magistrate or Judge commit him to the custody of an officer of the Court for any term not exceeding seven days, unless in the meantime, such person consents to be examined and to answer, or to produce the document or thing and in the event of his persisting in his refusal, he may be dealt with according to the provisions of section 345 or section 346.”

The High Court of Rajasthan in Paras Jain v. State of Rajasthan, 2015 SCC OnLine Raj 8331, 2016 (2) RLW 945 (Raj), referring to Anvar PV, it is held as under:

“Relevant portion of sub-sec. (1) of Sec. 91 Cr.P.C. provides that whenever any Court considers that the production of any document is necessary or desirable for the purposes of any trial under the Code by or before such Court, such Court may issue a summons to the person in whose possession or power such document is believed to be, requiring him to attend and produce it or to produce it, at the time and place stated in the summons. Thus, a wide discretion has been conferred on the Court enabling it during the course of trial to issue summons to a person in whose possession or power a document is believed to be requiring him to produce before it, if the Court considers that the production of such document is necessary or desirable for the purposes of such trial. Such power can be exercised by the Court at any stage of the proceedings before judgment is delivered and the Court must exercise the power if the production of such document is necessary or desirable for the proper decision in the case. It cannot be disputed that such summons can also be issued to the complainant/ informer/ victim of the case on whose instance the FIR was registered. In my considered view when under this provision Court has been empowered to issue summons for the producment of document, there can be no bar for the Court to permit a document to be taken on record if it is already before it and the Court finds that it is necessary for the proper disposal of the case irrespective of the fact that it was not filed along with the charge-sheet. I am of the further view that it is the duty of the Court to take all steps necessary for the production of such a document before it.”(quoted in Arjun Panditrao.)

Read in this Cluster (Click on the topic):

Book No, 1 – Civil Procedure Code

Power of attorney

Title, ownership and Possession

Principles and Procedure

Land Laws/ Transfer of Property Act

Evidence Act – General

Contract Act

Easement

Stamp Act

Will

Divorce

Book No. 2: A Handbook on Constitutional Issues

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

Book No. 4: Common Law of TRUSTS in India

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

Is Registered Power of Attorney Necessary for Registration of a Deed?

Answer: No.

Is Notary Attested POA Sufficient for Registration? Yes.

Saji Koduvath, Advocate, Kottayam.

Introspection.

Sec. 33 of the Registration Act states that the ‘power-of-attorney executed before and authenticated by the Registrar or Sub-Registrar’ is necessary for presenting the document for registration ‘if the principal at the time of executing the power-of-attorney resides in any part of India’.

Sec. 33 of the Registration Act will NOT be attracted if the the power of attorney himself executes the document; and Sec. 33 will be attracted only when the document is “executed” by one (including a power of attorney) and “presented” through another holding “power of attorney”.

Document can be “Presented” by Purchaser or Donee also

It is noteworthy that the document can be presented by the purchaser/vendee or donee also, as Sec. 32 directs that the document can be presented by “some person executing or claiming under the same“.

S. 33 Rgn. Act will NOT attract if PoA himself Executes the Document

It is so laid down by our Apex Court in Amar Nath v. Gian Chand, 2022-2 Mad LJ 69, 2022-2 SCALE 521, 2022-2 RCR(Civil) 96, in the following words-

“24. The words “executed and authenticated in manner hereinafter mentioned” in Section 32(c) would mean the procedure specified in Section 33. This is clear from the opening words of Section 33 which reads “for the purposes of Section 32, the following power of attorney shall alone be recognised”. Section 32 refers to documents presented for registration by a holder of “power of attorney” in clause (c) and it therefore follows that the procedure specified under Section 33 would be attracted where a document is presented by a person holding “powers of attorney” of the persons mentioned in clause (a) of Section 32.
25. The aforesaid position makes it explicitly clear that Section 32 of the Act requires the documents sought to be registered, to be presented, inter alia by the person executing it. In other words, the said expression requires presence of the actual person executing the document. The basic principle underlying this provision of the Act is to get before the Sub-Registrar the actual executant who, in fact, executes the document in question. In fact, the ratio of the decision in Ram Gopal [AIR 1960 Punj 226] has laid down a similar proposition on the conjoint reading of Section 32 and Section 33 of the Act and after referring to all the judgments noted hereinbefore. Same view has been expressed earlier by the Bombay High Court in Ratilal Nathubhai v. Rasiklal Maganlal [AIR 1950 Bom 326].
26. It is important to bear in mind that one of the categories of persons who are eligible to present documents before the registration office in terms of Section 32 of the Act is the “person executing” the document. The expression “person executing” used in Section 32 of the Act, can only refer to the person who actually signs or marks the document in token of execution, whether for himself or on behalf of some other person. Thus, “person executing” as used in Section 32(a) of the Act signifies the person actually executing the document and includes a principal who executes by means of an agent. Where a person holds a power of attorney which authorises him to execute a document as agent for someone else, and he executes a document under the terms of the power of attorney, he is, so far as the registration office is concerned, the actual executant of the document and is entitled under Section 32(a) to present it for registration and get it registered.”
Note: In the split verdict in Manik Majumder v. Dipak Kumar Saha, AIR 2023 SC 506, BV Nagaratna, J., referred the earlier decision Amar Nath v. Gian Chand, Mad LJ 2022-2 69, 2022-2 SCALE 521, 2022-2 RCR(Civil) 96, analysing the same as under:
- “This Court … held that a power of attorney holder, while executing a sale deed, need not produce the original document conferring power of attorney. That a sale would not be liable to be disturbed solely on the ground that the power of attorney forming the basis of such sale was not produced before the Sub-Registrar at the time of registration.”

Production of PoA Not Essential for Proving Sale Deed Executed through PoA

In Manik Majumder v. Dipak Kumar Saha, AIR 2023 SC 506, the sale of property under consideration was made on behalf of the seller to the buyer through the power of attorney. The power of attorney was not produced before the Court. The High Court observed that the sale was not proved as the PoA was not produced. Refuting the observation of the High Court, BV Nagaratna, J., in the split-verdict, held as under:

“18. … However, a registered deed has to be proved in accordance with Section 67 of the Evidence Act, 1872. Section 67 states that 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. Section 67 states that proof of signature and the genuineness of document proved by the proof of handwriting is proof of execution. Execution of a document means signing a document by consenting on it by a party. Section 67 does not prescribe any particular mode of proof. Mere registration of a document is not self-sufficient proof of its execution. It is only a prima facie proof of its execution particularly when no other evidence is available. Registration of a document is evidence of its execution by its executor. Certificate by registering officer under Section 60 of the Registration Act, 1908 is relevant for proving its execution. Proof by evidence afforded by the contents of the documents is of considerable value. In the instant case, what is sought to be proved is title by the sale deed and not the power of attorney as it is the sale deed which conveys title and the sale deed has been executed in accordance with the provisions of Registration Act, 1908, and proved in accordance with Section 67 of Evidence Act. It cannot be held that the sale made on behalf of the seller (original owner of the suit land) to the buyer through the power of attorney is vitiated as the power of attorney was not produced before the Court. This is because even in the absence of the production of the power of attorney, the contents of the sale deed and the execution of the power of attorney as well as the sale deed have been established by proving the sale deed in accordance with the law.”

Presumption on Power of Attorney Authenticated by a Notary Public, or any Court, etc.

Section 85 of the Indian Evidence Act, 1872 gives ‘presumption’ on a power of attorney as given under:

“85. Presumption as to powers-of-attorney.—The Court shall presume that every document purporting to be a power-of-attorney, and to have been executed before, and authenticated by, a Notary Public, or any Court, Judge, Magistrate, Indian Consul or Vice-Consul, or representative of the Central Government, was so executed and authenticated.”

Power of Attorney is to be construed strictly by Court

In Umadevi Nambiar v. Thamarasseri Roman Catholic Diocese, AIR 2022 SC 1640; 2022-7 SCC 90, it is held that ordinarily, a Power of Attorney is to be construed strictly by Court.

Presumption of Correctness Attached to a Registered Deed

In the split-verdict in Majumder v. Dipak Kumar Saha, 2023 SCC OnLine SC 37, BV Nagaratna, J., held as under:

“18. … The presumption of correctness attached to endorsement made by the Sub-Registrar is in view of the provisions of Sections 58, 59 and 60 of the Registration Act. This presumption can be rebutted only by strong evidence to the contrary.”

BV Nagaratna, J. referred the following decisions-

Ishwar Dass Jain v. Sohan Lal, (2000) 1 SCC 434 (a registered document is presumed to be valid).
Chottey Lal v. The Collector of Moradabad, AIR 1922 PC 279 (presumption of validity of a power of attorney which formed the basis of a registered deed; the sub-registrar being accepted the document for registration, it is prima-facie evidence that the conditions have been satisfied).
Jugraj Singh v. Jaswant Singh, 1970 (2) SCC 386 (presumption of regularity of official acts of sub-registrar).
Rattan Singh v. Nirmal Gill, AIR 2021 SC 899 (presumption of validity of a general power of attorney and consequently of the sale deed executed – especially of a 30-year old document).
Prem Singh v. Birbal , (2006) 5 SCC 353 (when such a presumption arises, the onus would be on a person who challenges such presumption, to successfully rebut it).

Read Blog: No Adjudication If Power of Attorney is Sufficiently Stamped

Revocation of an irrevocable Power of Attorney

An irrevocable power of attorney can be revoked in the following circumstances –

When violates the express or implied directions.
Does detrimental acts that injure principal
Goes beyond the power that amounts violation of the express or implied directions

If the power of attorney is a registered one, it is necessary to register the cancellation document (apart from informing the cancellation to the agent).

Rajni Tandon v. Dulal Ranjan Ghosh Dastidar

The Supreme Court has already elucidated the matter in Rajni Tandon v. Dulal Ranjan Ghosh Dastidar, (2009) 14 SCC 782, as under:

“26. It is important to bear in mind that one of the categories of persons who are eligible to present documents before the registration office in terms of Section 32 of the Act is the “person executing” the document. The expression “person executing” used in Section 32 of the Act, can only refer to the person who actually signs or marks the document in token of execution, whether for himself or on behalf of some other person. Thus, “person executing” as used in Section 32 (a) of the Act signifies the person actually executing the document and includes a principal who executes by means of an agent. Where a person hold a power of attorney which authorises him to execute a document as agent for someone else, and he executes a document under the terms of the power of attorney, he is, so far as the registration office is concerned, the actual executant of the document and is entitled under Section 32 (a) to present it for registration and get it registered.
33. Where a deed is executed by an agent for a principal and the same agent signs, appears and presents the deed or admits execution before the Registering Officer, that is not a case of presentation under Section 32 (c) of the Act. As mentioned earlier the provisions of Section 33 will come into play only in cases where presentation is in terms of Section 32 (c) of the Act. In other words, only in cases where the person(s) signing the document cannot present the document before the registering officer and gives a power of attorney to another to present the document that the provisions of Section 33 get attracted. It is only in such a case, that the said power of attorney has to be necessarily executed and authenticated in the manner provided under Section 33 (1) (a) of the Act.”

The Apex Court upheld the view in the following decisions, placed by the appellants:

Motilal v. Ganga Bai [AIR 1915 Nag 18],
Gopeswar Pyne v. Hem Chandra Bose [AIR 1920 Cal 316],
Mt. Aisha Bibi v. Chhajju Mal & Ors. [AIR 1924 All 148],
Sultan Ahmad Khan v. Sirajul Haque [AIR 1938 All 170],
Ram Gopal v. L. Mohan Lal [AIR 1960 Punj 226]
Sami (Goswami) Malti Vahuji Maharaj v. Purushottam Lal Poddar [AIR 1984 Cal 297].

The Apex Court observed that the interpretation of Section 32 and 33 in the following decisions was not the correct legal position.

D. Sardar Singh v. Seth Pissumal Harbhagwandas Bankers [AIR 1958 AP 107]
Abdus Samad vs. Majitan Bibi [AIR 1961 Cal 540].

The Supreme Court decision in Rajni Tandon v. Dulal Ranjan Ghosh Dastidar, (2009) 14 SCC 782, is followed in the cases below:

Beladevi Vs. Ramjanak, 2019-4 CGLJ 105;
C. P. Ashok Kumar Vs. Sub Registrar Thrithala, 2018-4 KerLT 1186;
Matadin Surajmal Rajoria Vs. Ramdwar Mahavir Pande, 2018-5 AIRBomR 739;
Dr. Ashok Mishra Vs. Ram Niwas, 2018-10 ADJ 297, 2019-142 RD 394;
Asset. Reconstruction Company (India) Limited Vs. The Inspector General Of Registration, AIR 2016 Mad 123;
Budhi Singh Vs. Ashok Kumar, 2016-2 CIVCC 80, 2015-3 HLR 1899;
International Asset Reconstruction Company Pvt Ltd Vs. State of Punjab, AIR 2013 P&H 216;
Raji Maheshkumar Vs. State of Gujarat, AIR 2013 Guj 9.
Sardar Paramjeet Singh v. Prabhat Kumar Shrivastav, (1996) MPLJ 339, (Madhya Pradesh).

End Notes:

Power of Attorney Concepts in Law

In State of Rajasthan v. Basant Nehata, 2005-12 SCC 77, our Apex Court made clear the Concepts on a Power of Attorney. They are the following –

It is governed by Chapter X of the Contract Act. It is also governed by the the Powers-of-Attorney Act.
A power of attorney is, as is well known, a document of convenience.
By a power of attorney, an agent is formally appointed to act for the principal.
It is an authority upon another person; but, subject to the limitations contained in the said deed.
The agent derives a right to use the principal’s name. The donee (agent) only acts in place of the donor .
All acts, deeds and things done by done by the agent shall be read as if done by the donor.
Except in cases where power of attorney is coupled with interest, it is revocable.
The agent cannot use the power of attorney for his own benefit.
He acts in a fiduciary capacity.
Any act of infidelity or breach of trust is a matter between the donor and the donee.

State of Rajasthan v. Basant Nehata, 2005-12 SCC 77, laid down as under”

“A grant of power of attorney is essentially governed by Chapter X of the Contract Act. By reason of a deed of power of attorney, an agent is formally appointed to act for the principal in one transaction or a series of transactions or to manage the affairs of the principal generally conferring necessary authority upon another person. A deed of power of attorney is executed by the principal in favour of the agent. The agent derives a right to use his name and all acts, deeds and things done by him and subject to the limitations contained in the said deed, the same shall be read as if done by the donor. A power of attorney is, as is well known, a document of convenience. Execution of a power of attorney in terms of the provisions of the Contract Act as also the Powers-of-Attorney Act is valid. A power of attorney, we have noticed hereinbefore, is executed by the donor so as to enable the donee to act on his behalf. Except in cases where power of attorney is coupled with interest, it is revocable. The donee in exercise of his power under such power of attorney only acts in place of the donor subject of course to the powers granted to him by reason thereof. He cannot use the power of attorney for his own benefit. He acts in a fiduciary capacity. Any act of infidelity or breach of trust is a matter between the donor and the donee.”

Should a Power of Attorney be Compulsorily Registered

Those Power of Attorneys that fall under clause (b) of Sec. 17(1) Registration Act alone requires registration. Sec. 17(1)(b) reads as under:

“(b) other non-testamentary instruments which purport or operate to create, declare, assign, limit or extinguish, whether in present or in future, any right, title or interest, whether vested or contingent, of the value of one hundred rupees and upwards, to or in immovable property”

Power of Attorney “coupled with interest”

A Power of Attorney that is “coupled with interest” requires registration.

E.g., if the power of attorney is issued by the owner after obtaining entire sale consideration from the holder of power of attorney, and if (in fact) it set-forth a “sale of property”, it falls under the category ‘power of attorney coupled with interest’. (See as to ‘General-Power-of-Attorney-sale’: Suraj Lamp and Industries P. Limited v. State of Haryana, (2012) 1 SCC 656).

Kerala Amendment to Sec. 17(1)(g)

Registration Act, Kerala Amendment, Sec. 17(1)(g), requires registration for development, transfer etc. relating to immovable property, except for exempted categories. (It is introduced because it is not a general rule that all power of attorneys for ‘transfer‘ must have been registered.) Sec. 17(1)(g) reads as under:

(g) Power of attorney creating any power or right of management, administration, development, transfer or any other transaction relating to immovable property of the value of one hundred rupees and upwards other than those executed in favour of father, mother, wife, husband, son, adopted son, daughter, adopted daughter, brother, sister, son-in-law or daughter-in-law of the executant.
See: Cherryl Ann Joy v. Sub Registrar, Udumbanchola, Idukki District, ILR 2018-3 Ker 540.

But, in Lachchhiram v. Imrati, 2017-2 RN 117, it is held that for registration of a deed, registered power of attorney is needed (relying on – obiter – Manjunath Anandappa Urf Shivappa Hanasi v. Tammanasa, (2003)10 SCC 390).

Foot Notes

Sec. 32 and 33 of the Registration Act

“32. Persons to present documents for registration—
Except in the cases mentioned in [Sections 31, 88 and 89], every document to be registered under this Act, whether such registration be compulsory or optional, shall be presented at the proper registration office,—
- (a) by some person executing or claiming under the same, or in the case of a copy of a decree or order, claiming under the decree or order, or
- (b) by the representative or assign of such person, or
- (c) by the agent of such person, representative or assign, duly authorized by power-of-attorney executed and authenticated in manner hereinafter mentioned.
33. Power-of-attorney recognizable for purposes of Section 32 —
(1) For the purposes of Section 32, the following powers-of- attorney shall alone be recognized, namely—
- (a) if the principal at the time of executing the power-of-attorney resides in any part of India in which this Act is for the time being in force, a power-of-attorney executed before and authenticated by the Registrar or Sub-Registrar within whose district or sub-district the principal resides;
- (b) if the principal at the time aforesaid resides in any part of India in which this Act is not in force, a power-of-attorney executed before and authenticated by any Magistrate;
- (c) if the principal at the time aforesaid does not reside in [India], a power-of attorney executed before and authenticated by a Notary Public, or any Court, Judge, Magistrate, Indian Consul or Vice-Consul, or representative of the Central Government:
Provided that the following persons shall not be required to attend at any registration-office or Court for the purpose of executing any such power-of-attorney as is mentioned in clauses (a) and (b) of this Section, namely—
- (i) persons who by reason of bodily infirmity are unable without risk or serious inconvenience so to attend:
- (ii) persons who are in jail under civil or criminal process; and
- (iii) persons exempt by law from personal appearance in the Court.
[Explanation.—In this sub-section, “India” means India, as defined in clause (28) of Section 3 of the General Clauses Act, 1897 (10 of 1897)].
(2) In the case of every such person the Registrar or Sub-Registrar or Magistrate, as the case may be, if satisfied that the power-of- attorney has been voluntarily executed by the person purporting to be the principal, may attest the same without requiring his personal attendance at the office or Court aforesaid.
(3) To obtain evidence as to the voluntary nature of the execution, the Registrar or Sub-Registrar or Magistrate may either himself go to the house of the person purporting to be the principal, or to the jail in which he is confined, and examine him, or issue a commission for his examination.
(4) Any power-of-attorney mentioned in this section may be proved by the production of it without further proof when it purports on the face of it to have been executed before and authenticated by the person or Court hereinbefore mentioned in that behalf.”

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Read in this Cluster (Click on the topic):

Book No, 1 – Civil Procedure Code

Power of attorney

Title, ownership and Possession

Principles and Procedure

Land Laws/ Transfer of Property Act

Evidence Act – General

Contract Act

Easement

Stamp Act

Will

Divorce

Book No. 2: A Handbook on Constitutional Issues

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

Book No. 4: Common Law of TRUSTS in India

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

Foreign Divorce Judgment against Christians having Indian Domicile

Jojy George Koduvath.

PART – I

Foreign Divorce Judgment:

Sec. 13 of the Civil Procedure Code lays down the provision as to the applicability of the foreign judgment. From Sec. 13 of the CPC it is clear –

For the foreign judgment to be ‘conclusive’, it must have been
- passed by a court having competent jurisdiction,
- given the verdict on merits and
- observing natural justice.

Sec. 13 reads as under:

“13. When foreign judgment not conclusive—A foreign judgment shall be conclusive as to any matter thereby directly adjudicated upon between the same parties or between parties under whom they or any of them claim litigating under the same title except—
- (a) where it has not been pronounced by a court of competent jurisdiction;
- (b) where it has not been given on the merits of the case;
- (c) where it appears on the fact of the proceedings to be founded on an incorrect view of international law or a refusal to recognise the law of India in cases in which such law is applicable;
- (d) where the proceedings in which the judgment was obtained are opposed to natural justice;
- (e) where it has been obtained by fraud;
- (f) where it sustains a claim founded on a breach of any law in force in India.”

Competent Court – Decree ‘in accordance with the matrimonial law’

For accepting a foreign judgment as valid, it should have been passed by a ‘competent court’ according to S. 13(a). What is court of competent jurisdiction is not explained in the CPC. Our Apex Court held in Y. Narasimharao v. Y. Venkatalexmi, 1991-3 SCC 451, that the general rule is that the decree passed must have been ‘in accordance with the matrimonial law under which the parties are married’.

Court of Competent Jurisdiction – Three Exceptions

In Y. Narasimharao v. Y. Venkatalexmi, 1991-3 SCC 451, the Supreme Court laid down following three exceptions to the general rule that ‘decree passed must have been in accordance with the matrimonial law under which the parties are married’. They are –

(i) where the matrimonial action is filed in the forum where the respondent is domiciled or habitually and permanently resides and the relief is granted on a ground available in the matrimonial law under which the parties are married;
(ii) where the respondent voluntarily and effectively submits to the jurisdiction of the forum as discussed above and contests the claim which is based on a ground available under the matrimonial law under which the parties are married;
(iii) where the respondent consents to the grant of the relief although the jurisdiction of the forum is not in accordance with the provisions of the matrimonial law of the parties.

In the light of S. 13 of the CPC, read with the observations of Y. Narasimharao v. Y. Venkatalexmi, 1991-3 SCC 451, even when a foreign divorce decree is granted by a forum, jurisdiction of which is not in accordance with the provisions of the matrimonial law, it is accepted as valid in India, if the decree is passed on any one of the circumstances that invite the exemption (ii) or (iii).

Consented Decree – Non-compliance of Provisions of Matrimonial Law, Immaterial

In Augustine Kalathil Mathew v. The Marriage Officer, 2016-4 Ker LT 415, it is held by the Kerala High Court that when the parties to a marriage have voluntarily and effectively submitted to the jurisdiction of the UAE Personal Status Court and consented to grant divorce to each other, although the jurisdiction of the said forum is not in accordance with the provisions of the matrimonial law applicable to them, the divorce certification granted by the UAE Personal Status Court has to be recognised by the courts in India. (It is followed by the Kerala High Court in Rince Marin Ninan v. Registrar, Kerala Registration Of Marriage, 2022)

Read Blogs: Validity of Foreign Divorce Decrees in India

Is ‘Irretrievable Brake-down of Marriage’, a Valid Ground for Divorce in India?

Consented Decree – Non-compliance of provisions of Matrimonial Law immaterial

In Augustine Kalathil Mathew v. The Marriage Officer, 2016-4 Ker LT 415, it is held by the Kerala High Court that when the parties to a marriage have voluntarily and effectively submitted to the jurisdiction of the UAE Personal Status Court and consented to grant divorce to each other, although the jurisdiction of the said forum is not in accordance with the provisions of the matrimonial law applicable to them, the divorce certification granted by the UAE Personal Status Court has to be recognised by the courts in India. (It is followed by the Kerala High Court in Rince Marin Ninan v. Registrar, Kerala Registration Of Marriage, 2022)

PART – II

JURISDICTION OF FORUM IN ACCORDANCE WITH PROVISIONS OF MATRIMONIAL LAW

To determine whether the Foreign Court was a forum having jurisdiction ‘in accordance with the matrimonial law’ we have to look into the the ‘Marriage Laws’ applicable in India and the ‘Grounds’ stated therein for judicial actions.

Marriage Acts Applies to Christians

Following are the Marriage Acts that applies to Christians in India-

Indian Christian Marriage Act, 1872
Cochin Christian Civil Marriage Act, 1920
Special Marriage Act, 1954
The Foreign Marriage Act, 1969

Indian Christian Marriage Act, 1872

The Indian Christian Marriage Act, 1872 applies to ‘Indian Christians’. According to the definition of the Act ‘Indian Christians’ ‘includes the Christian descendants of natives of India converted to Christianity, as well as such converts’.

Law Applicable to Christians in Manipur and Erstwhile Travancore- Area of Kerala

The Indian Christian Marriage Act, 1872 is not applicable to Christians in erstwhile Travancore- area of Kerala, and Manipur, even now. The marriage law applicable to Cochin area of Kerala State was the Cochin Christian Civil Marriage Act, 1920.

In these parts customary rules and personal laws (e.g. Canon for Catholics) hold the field. The area of erstwhile Travancore, now stands included in Tamil Nadu is governed by the Indian Christian Marriage Act because of the enactment of the Indian Christian Marriage (Extension to Transferred Territory) Act, 1995.

Special Marriage Act, 1954

The Special Marriage Act, 1954 enables the citizens of India, irrespective of religion, to have their marriage registered for civil recognition. Marriages solemnized under this Act are not governed by their personal laws. The act lays down the qualifications for the parties to the marriage and it also deals with restitution of conjugal rights, Judicial separation, divorce, custody of children, etc.

It specifies that Indian Succession Act governs succession of the parties to the Special Marriage. But, Hindu Succession Act applies to Hindu, Buddhist, Sikh or Jain as regards the succession.

Sec. 15 of the Act allows to register marriages conducted in other forms. It reads as under:

“15. Registration of marriages celebrated in other forms―Any marriage celebrated, whether before or after the commencement of this Act, other than a marriage solemnized under the Special Marriage Act, 1872 (3 of 1872), or under this Act, may be registered under this Chapter by a Marriage Officer in the territories to which this Act extends if the following conditions are fulfilled, namely―
- (a) a ceremony of marriage has been performed between the parties and they have .been living together as husband and wife ever since;
- (b) neither party has at the time of registration more than one spouse living;
- (c) neither party is an idiot or a lunatic at the time of registration;
- (d) the parties have completed the age of twenty-one years at the time of registration;
- (e) the parties are not within the degrees of prohibited relationship: Provided that in the case of a marriage celebrated before the commencement of this Act, this condition shall be subject to any law, custom or usage having the force of law governing each of them which permits of a marriage between the two; and
- (f) the parties have been residing within the district of the Marriage Officer for a period of not less than thirty days immediately preceding the date on which the application is made to him for registration of the marriage.

Indian Divorce Act, 1869

It is noticeable that the matters relating to divorce, nullity of marriage, judicial separation, restitution of conjugal rights, etc. of the Christians, except those who had married under the Special Marriage Act, are governed under the Indian Divorce Act, 1869.

The Foreign Marriage Act, 1969

The Central Government appoints Marriage Officers in foreign countries under the Foreign Marriage Act, 1969. The Act provides for conditions and procedures relating to solemnization and registration of foreign marriages.

By virtue of Sec. 18 of the Foreign Marriage Act, succession to property, restitution of conjugal rights, judicial separation, determination of void and voidable marriages, legitimacy of children, divorce, various judicial proceedings, etc. of the parties married under the Foreign Marriage Act is governed under the respective provisions of the Special Marriage Act, 1954

Grounds for Dissolution under the Spl. Marriage Act (so also Foreign Marriage Act, 1969)

27. Divorce—(1) Subject to the provisions of this Act and to the rules made thereunder, a petition for divorce may be presented to the district court either by the husband or the wife on the ground that the respondent—
(a) has, after the solemnization of the marriage, had voluntary sexual intercourse with any person other than his or her spouse; or
(b) has deserted the petitioner for a continuous period of not less than two years immediately preceding the presentation of the petition; or
(c) is undergoing a sentence of imprisonment for seven years or more for an offence as defined in the Indian Penal Code (45 of 1860); [***]
(d) has since the solemnization of the marriage treated the petitioner with cruelty; or
(e) has been incurably of unsound mind, or has been suffering continuously or intermittently from mental disorder of such a kind and to such an extent that the petitioner cannot reasonably be expected to live with the respondent.
Explanation.—In this clause,—
- (a) the expression “mental disorder” means mental illness, arrested or incomplete development of mind, psychopathic disorder or any other disorder or disability of mind and includes schizophrenia;
- (b) the expression “psychopathic disorder” means a persistent disorder or disability of mind (whether or not including sub-normality of intelligence) which results in abnormally aggressive or seriously irresponsible conduct on the part of the respondent, and whether or not it requires or is susceptible to medical treatment; or
(f) has been suffering from venereal disease in a communicable form]; or
(g) has [***] been suffering from leprosy, the disease not having been contacted from the petitioner; or
(h) has not been heard of as being alive for a period of seven years or more by those persons who would naturally have heard of the respondent if the respondent had been alive; [***]
Explanation.—In this sub-section,
- the expression “desertion” means desertion of the petitioner by the other party to the marriage without reasonable cause and without the consent or against the wish of such party, and includes the wilful neglect of the petitioner by the other party to the marriage, and its grammatical variations and cognate expressions shall be construed accordingly;] [***] [***]
(1A) A wife may also present a petition for divorce to the district court on the ground,—
- (i) that her husband has, since the solemnization of the marriage, been guilty of rape, sodomy or bestiality;
- (ii) that in a suit under section 18 of the Hindu Adoptions and Maintenance Act, 1956 (78 of 1956), or in a proceeding under section 125 of the Code of Criminal Procedure, 1973 (2 of 1974) (or under the corresponding section 488 of the Code of Criminal Procedure, 1898) (5 of 1898), a decree or order, as the case may be, has been passed against the husband awarding maintenance to the wife notwithstanding that she was living apart and that since the passing of such decree or order, cohabitation between the parties has not been resumed for one year or upwards.]
(2) Subject to the provisions of this Act and to the rules made thereunder, either party to a marriage, whether solemnized before or after the commencement of the Special Marriage (Amendment) Act, 1970 (29 of 1970), may present a petition for divorce to the district court on the ground—
- (i) that there has been no resumption of cohabitation as between the parties to the marriage for a period of one year or upwards after the passing of a decree for judicial separation in a proceeding to which they were parties; or
- (ii) that there has been no restitution of conjugal rights as between the parties to the marriage for a period of one year or upwards after the passing of a decree for restitution of conjugal rights in a proceeding to which they were parties.

Grounds for Dissolution under the Indian Divorce Act

The grounds for dissolution of marriage are given in Section 10 of the Indian Divorce Act, 1869. It reads as under:

“10 Grounds for dissolution of marriage.
(1) Any marriage solemnized, whether before or after the commencement* of the Indian Divorce (Amendment) Act, 2001, may, on a petition presented to the District Court either by the husband or the wife, be dissolved on the ground that since the solemnization of the marriage, the respondent
- (i) has committed adultery; or
- (ii) has ceased to be Christian by conversion to another religion; or
- (iii) has been incurably of unsound mind for a continuous period of not less than two years immediately preceding the presentation of the petition; or
- (iv) has, for a period of not less than two years immediately preceding the presentation of the petition, been suffering from a virulent and incurable form of leprosy; or
- (v) has, for a period of not less than two years immediately preceding the presentation of the petition, been suffering from venereal disease in a communicable form; or
- (vi) has not been heard of as being alive for a period of seven years or more by those persons who would naturally have heard of the respondent if the respondent had been alive; or
- (vii) has wilfully refused to consummate the marriage and the marriage has not therefore been consummated; or
- (viii) has failed to comply with a decree for restitution of conjugal rights for a period of two years or upwards after the passing of the decree against the respondent; or
- (ix) has deserted the petitioner for at least two years immediately preceding the presentation of the petition; or
- (x) has treated the petitioner with such cruelty as to cause a reasonable apprehension in the mind of the petitioner that it would be harmful or injurious for the petitioner to live with the respondent.
(2) A wife may also present a petition for the dissolution of her marriage on the ground that the husband has, since the solemnization of the marriage, been guilty of rape, sodomy or bestiality.”

S.10A of the Divorce Act speaks as to dissolution of marriage by mutual consent. It reads as under:

“10A. Dissolution of marriage by mutual consent.
(1) Subject to the provisions of this Act and the rules made thereunder, a petition for dissolution of marriage may be presented to the District Court by both the parties to a marriage together, whether such marriage was solemnized before or after the commencement of the Indian Divorce (Amendment) Act, 2001, on the ground that they have been living separately for a period of two years or more, that they have not been able to live together and they have mutually agreed that the marriage should be dissolved.
(2) On the motion of both the parties made not earlier than six months after the date of presentation of the petition referred to in sub-section (1) and not later than eighteen months after the said date, if the petition is not withdrawn by both the parties in the meantime, the Court shall, on being satisfied, after hearing the parties and making such inquiry, as it thinks fit, that a marriage has been solemnized and that the averments in the petition are true, pass a decree declaring the marriage to be dissolved with effect from the date of decree.”

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Is ‘Irretrievable Brake-down of Marriage’, a Valid Ground for Divorce in India?

*^*^{Part II of Blog – Validity of Foreign Divorce Decrees in India}

Saji Koduvath, Advocate, Kottayam.

Introduction

Though ‘irretrievable brake-down of marriage’ is a ground for divorce in various other jurisdictions, it is not a ground in Hindu/Indian law. When a foreign court granted a decree of divorce on the ground of ‘irretrievable brake-down of marriage’, will it be accepted in India as a valid verdict?

The answer is No.

But, it is noteworthy that our Apex Court, in ABC v. XYZ (Neutral Citation: 2024 INSC 1033) Justice Vikram Nath and Justice Prasanna B. Varale, Dec. 19, 2024, held as under:

“Although irretrievable breakdown of marriage is not a statutory ground for divorce under the Hindu Marriage Act, this Court has, in appropriate cases, invoked its powers under Article 142 of the Constitution of India to grant relief where the marriage is beyond repair. In Naveen Kohli (Supra), this Court observed that when a marriage has irretrievably broken down, forcing the parties to remain together serves no purpose and only prolongs their misery.”

Section 13 of the CPC as interpreted by the Supreme Court

Section 13 of the CPC, an enabling provision that allows to accept a foreign decree passed by a ‘court of competent jurisdiction’, as interpreted by the Supreme Court in Y. Narasimharao v. Y. Venkata Lakshmi, 1991- 3 SCC 451, is to be looked into to see the law on this matter.

The general law is that the matrimonial reliefs are granted on a ground available under the matrimonial law under which the marriage of the parties was conducted. Section 13 of the CPC permits to accept a ‘foreign decree’ as valid, if –

(a) it has been pronounced by a court of competent jurisdiction;
(b) it has been given on the merits of the case;
(c) it is founded on correct view of law;
(d) the proceedings are not opposed to natural justice;
(e) it is not obtained by fraud; and
(f) it sustains a claim founded not on a breach of any law in force in India.

What is ‘court of competent jurisdiction’ stated in Sec. 13 is not made clear in the CPC. The Supreme Court, in Y. Narasimharao v. Y. Venkata Lakshmi, 1991- 3 SCC 451, “interpreted” ‘court of competent jurisdiction’, and carved out, for the first time, three exceptions to the strict general law that the matrimonial reliefs are granted only on grounds available under the matrimonial law under which the marriage of the parties was taken place. The three exceptions given in Y. Narasimharao v. Y. Venkata Lakshmi can be stated as under-

A foreign decree is valid, and a foreign court will be taken as a ‘court of competent jurisdiction’, if-
- (i) the matrimonial (a) action is filed in the forum where the respondent resides and (b) relief is granted on a ground available in the matrimonial law under which the parties are married; or
- (ii) both parties (a) voluntarily and unconditionally subjected themselves to the jurisdiction of that court and (b) contests the claim which is based on a ground available under the matrimonial law; or
- (iii) the respondent consents to the grant of the relief.

Therefore, unless the respondent consents to divorce by a foreign court, (for a valid decree) it should necessarily be based on a ground available under the matrimonial law under which the marriage of the parties was taken place.

In other words, if the foreign decree on a matrimonial relief has been passed on consent of the respondent, it will be taken as valid (even if it is not based on a ground available under the matrimonial law under which the marriage of the parties was taken place).

Read Blog: Validity of Foreign Divorce Decrees in India

Irretrievable Brake-Down of Marriage NOT a Ground in Hindu/Indian law

As shown above, irretrievable brake-down of marriage is not a ground in Hindu/Indian law. In several cases (in which foreign matrimonial decrees were considered) it was enquired-

(i) whether the relief was granted by the foreign court on a ‘ground available in the matrimonial law under which the parties are married’ as held in Y. Narasimharao v. Y. Venkata Lakshmi, 1991-3 SCC 451 and
(ii) whether irretrievable brake-down of marriage (a ground in various other jurisdictions), by itself, was a ground in our law.

The following are some of those cases-

Arunima Naveen Takiar v. Naveen Takiar, RCR(Civil) 2019-1 907, 2019-2 AIR BomR 271, 2019-1 DMC 660,
Dinesh Singh Thakur v. Sonal Thakur, AIR 2018 SC 2094;
Shilpa Sachdev v. Anand Sachdev, 2017-5 AIR BomR 607,
Rupak Rathi v. Anita Chaudhary, 2014 AIR(CC) 2231, 2014-2 RCR(Civil) 697,
Harpreet Singh Sekhon v. Rajwant Kaur, ILR (2014) 1 P&H 876,
Pritam Ashok Sadaphule v. …., AIR 2013 Del 139,
Dorothy Thomas v. Rex Arul, 2011-6 Mad LJ 475, 2012-1 RCR(Civil) 451.

In G. N. Subramanya Upadhyaya v. Soumya M. Hegde, 2017-4 SCALE 519, it is pointed out that merely because of the irretrievable brake-down of marriage, divorce cannot be granted. In K. Srinivas Rao v. D. A. Deepa, AIR 2013 SC 2176, it is observed as under:

Irretrievable brake-down of marriage is not a ground for divorce under the Hindu Marriage Act, 1955. But, where marriage is beyond repair on account of bitterness created by the acts of the husband or the wife or of both, the courts have always taken irretrievable brake-down of marriage as a very weighty circumstance amongst others necessitating severance of marital tie. A marriage which is dead for all purposes cannot be revived by the court’s verdict, if the parties are not willing. This is because marriage involves human sentiments and emotions and if they are dried-up there is hardly any chance of their springing back to life on account of artificial reunion created by the court’s decree.

In Poonam v. Surender Kumar, 2021-4 RCR (Civil) 528: 2021-4 Civ CC 427, a decree of divorce dissolving the marriage between the parties was passed by the Apex Court, on the ground of irretrievable brake-down of marriage, in exercise of powers under Sec. 142 of the Constitution of India, in the following set of facts:

“On the plea of the learned counsel for the appellant, on instructions, the limited question is whether this is a fit case for grant of divorce on account of irretrievable brake-down of marriage, since even the mutual consent divorce is not acceptable to the respondent. If we look to the facts of the case as set out aforesaid, there is little doubt, and even for that matter the respondent who appeared before us could not dispute, that the marriage did not take off from the very beginning. The marriage took place on 9/6/2002 and on 29/6/2002, the case was registered under Sec. 498-A read with Sec. 406, IPC alleging that the appellant was not being permitted to enter the house on account of her inability to satisfy the dowry demands. The divorce petition was filed on 9/9/2003. If The parties have not been able to subserve the very objective of marriage of companionship for each other from the very inception and have been living apart for more than 19 years, we are of the view that if this is not an irretrievable brake-down of marriage then what would be the situation of that kind!”

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Book No. 2: A Handbook on Constitutional Issues

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

Book No. 4: Common Law of TRUSTS in India

General Principles
Dedication and Vesting
Trustees and Management
Breach of Trust
- Breach of Trust and Removal of Trustees
Suits by or against Trusts
- Suits By or Against Trusts and Trustees
- Remedies Under Sec. 92 CPC
Law on Hindu Religious Endowments
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