1. Indian Law will accept a ‘foreign decree’ as valid, if only-
(a) it has been pronounced by a court of competent jurisdiction;
(b) it has been given on themerits of the case;
(c) it is founded oncorrect 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 abreach of any law in force in India.
2. A foreign decree is valid and a foreign court is competent if-
(i) the matrimonial
(a)action is filed in the forum where therespondent residesand
(b)the relief is granted on a ground available in the matrimonial lawunder 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 lawunder which the parties are married;
or
(iii)the respondent consentsto the grant of the relief.
3. A valid foreign decree need not be re-validated or revived in India.
4. If Consented Foreign Decree – Non-compliance of provisions of matrimonial law, immaterial.
Introduction
Validity of a Foreign Divorce Decree depends upon the following eventualities:
Whether the Divorce Decree is passed on a-
Consented (Mutual or otherwise) proceedings,
Contested proceedings or
Ex-parte proceedings.
The validity of a Foreign Divorce Decree may also depend upon the following status of the parties:
Indian Citizens
Foreign Citizens who were formerly Indian citizens.
Persons who have Dual Citizenship.
The validity may still further depend upon-
the matrimonial law under which the parties were married and
the place where the marriage took place; that is, whether in India (according to the law in force in India).
Section 13 of the Civil Procedure Code
Section 13 of the CPC enumerates the conditions – ‘when foreign judgment not conclusive’. Section 13 reads as under:
“13. When foreign judgmentnot 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 lawor 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.”
Section 14 of the Civil Procedure Code
Section 14 states that when the Indian Courts would consider the Foreign Judgment to be conclusive. Section 14 reads as under:
14. Presumption as to foreign judgments.– The Court shall presume, upon the production of any document purporting to be a certified copy of a foreign judgment, that such judgment was pronounced by a Court to competent jurisdiction, unless the contrary appears on the record; but such presumption may be displaced by proving want of jurisdiction.
Execution of a Foreign Decree
Section 44-A provides for execution of a foreign divorce decree. It reads as under:
44A. Execution of Decrees Passed by Courts in Reciprocating Territory–
(1) Where a certified copy of a decree of any of the superior Courts of any reciprocating territory has been filed in a District Court, the decree may be executed in India as if it had been passed by the District Court.
(2) Together with the certified copy of the decree shall be filed a certificate from such superior Court stating the extent, if any, to which the decree has been satisfied or adjusted and such certificate shall, for the purposes of proceedings under this section, be conclusive proof of the extent of such satisfaction or adjustment.
(3) The provisions of section 47 shall as from the filing of the certified copy of the decree apply to the proceedings of a District Court executing a decree under this section, and the District Court shall refuse execution of any such decree, if it is shown to the satisfaction of the Court that the decree falls within any of the exceptions specified in clauses (a) to (f) of section 13.
Explanation 1- “Reciprocating territory” means any country or territory outside India which the Central Government may, by notification in the Official Gazette, declare to be a reciprocating territory for the purposes of this section; and superior Courts, with reference to any such territory, means such Courts as may be specified in the said notification.
Explanation 2- “Decree” with reference to a superior Court means any decree or judgment of such Court under which a sum of money is payable, not being a sum payable in respect of taxes or other charges of a like nature or in respect of a fine or other penalty, but shall in no case include an arbitration award, even if such an award is enforceable as a decree or judgment.
Section 41 and 44 of the Indian Evidence Act
Section 41 of the Indian Evidence Act provides that a final judgment of a competent court in the exercise of matrimonial jurisdiction is conclusive proof. But the judgment has to be of a ‘competent Court’, that is, a court having jurisdiction over the parties and the subject matter. Section 44 of the Evidence Act allows to show that the judgment which is relevant under section 41 “was delivered by a court not competent to deliver it, or was obtained by fraud or collusion“.
In Satyav.Teja Singh, AIR1975 SC 105, (1975) 1 SCC 120, after referring the above provisions, it was observed that it was wrong to think that judgments in rem are inviolable; and that fraud, in any case bearing on jurisdictional facts, vitiates all judicial acts whether in rem or in personam. In Satyav.Teja Singh, the foreign decree was declared invalid by the Supreme Court of India, for the husband-respondent had instituted the proceeding on a false representation that he was a bona fide resident of that State.
‘Competent Jurisdiction’ in Sec. 13 CPC Contemplates that in ‘international sense‘
In R. Viswanathan v. Rukn-ul-Mulk Syed Abdul Majid (AIR 1963 SC 1) our Apex Court held as under:
“A judgment of a foreign court to be conclusive between the parties must be a judgment pronounced by a court of competent jurisdiction and competence contemplated by section 13 of the Code of Civil Procedure is in an international sense and not merely by the law of foreign State in which the Court delivering judgment functions”.
Basic Rule – Divorce Must be as per Law under which One Married – Three Exceptions
The basic rule as to acceptance of foreign matrimonial-judgment is that the relief must have been granted in accordance with the matrimonial law under which the parties are married. Sec. 13 CPC stipulates that acceptance of a foreign judgment is depended upon the eventuality – whether it is pronounced by a court of competent jurisdiction. What is ‘court of competent jurisdiction‘ 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 a ground available under the matrimonial law under which the parties married.
In Y. Narasimharao v. Y. Venkata Lakshmi, the husband filed a petition for dissolution of marriage in the Circuit of Missouri, USA. The wife sent her reply from India under protest. The Circuit Court passed a decree for dissolution of marriage in the absence of the wife. Our Apex Court found the foreign judgment unacceptable for the following reasons:
The foreign decree was without jurisdiction according to the (Hindu Marriage) Act as neither the marriage was celebrated nor the parties last resided together nor the respondent resided within the jurisdiction of that Court.
The decree was passed on a ground which was not available under the Act.
The falsely stated that he was the resident of the Missouri State, and was not domiciled in that State.
He had made a false averment that the wife had refused to continue to stay with him in the State of Missouri where she had never been.
It is further held in Y. Narasimharao v. Y. Venkata Lakshmi as under:
“Clause (a) of Section 13 states that a foreign judgment shall not be recognised if it has not been pronounced by a court of competent jurisdiction. We are of the view that this clause should be interpreted to mean that only that court will be a court of competent jurisdiction which the Act or the law under which the parties are married recognises as a court of competent jurisdiction to entertain the matrimonial dispute. Any other court should be held to be a court without jurisdiction unless both parties voluntarily and unconditionally subject themselves to the jurisdiction of that court.”
” … From the aforesaid discussion the following rule can be deduced for recognising foreign matrimonial judgment in this country. The jurisdiction assumed by the foreign court as well as the grounds on which the relief is granted must be in accordance with the matrimonial law under which the parties are married. The exceptions to this rule may be as follows:
(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 andcontests the claim which is based on a ground available under the matrimonial law under which the parties are married;
(iii) where the respondent consentsto 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 inaccordance 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)
Section 1 of the Hindu Marriage Act, 1955 reads as under:
“1. Short title and extent—(1) This Act may be called the Hindu Marriage Act, 1955.
(2) It extends to the whole of India except the State of Jammu and Kashmir, and applies also to Hindus domiciled in the territories to which this Act extendswho are outside the said territories.”
From the above, it is clear that for the Hindus residing or settled abroad are continued to be governed by the Hindu Marriage Act, 1955. Therefore, the divorce granted by a foreign Court will not be binding on them so far as their rights and liabilities in India are concerned. In that strict view, if only the divorce is granted to a Hindu by a foreign court applying the Hindu law as the matrimonial law (under which the parties are married), the divorce of that court will be accepted in India.
Bombay HC heldDubai Court not Competent, for wife was not resident of Dubai
In Shilpa Sachdev v. Shri. Anand Sachdev, 2017-5 AIR Bom R 607, RCR (Civil) 2017-4 258, Hindu LR 2017-3 178, All MR 2018-5 628, the Bombay High Court, applying the principles laid down in Y. Narasimha Rao v. Y. Venkata Lakshmi, 1991- 3 SCC 451, held that the Dubai Court was not a competent foreign Court-
pleadings do not indicate that the respondent-husband had invoked the jurisdiction of Dubai Court claiming that the petitioner wife is a resident of or domicile of Dubai.
pleadings do not state that the petitioner-wife had abandoned her domicile of birth by making Dubai her permanent abode.
no averments that the petitioner-wife being a permanent resident of Dubai, the Dubai Court was competent to entertain the petition for divorce.
the judgment of Dubai Court also does not state that the wife was domicile of Dubai or that she had an intention to continue her stay in Dubai.
on the contrary, the records reveal that the wife had returned to India on 21st June, 2008 and since then she is permanently domiciled in India.
there are no averments in the Law Suit filed before the Dubai Court that the respondent-husband had made Dubai as his permanent abode.
both the spouses are Indian citizens and in the absence of the averments as well as material to endorse the claim of being domicile of Dubai, the presumption under section14 of the Code of Civil Procedure stands dislodged.
It was further held that the Dubai court had not considered the real controversy between the parties and hence the said Dubai court judgment cannot be said to be a judgment on merits of the case. The court pointed out the following:
Hindu Marriage Act does not recognise a ground of irretrievable breakdown of marriage.
Dubai Court indicates that the divorce was granted on the ground of desertion.
Under Section 13(1)(ib) of the Hindu marriage Act, marriage can be dissolved by a decree of divorce on the ground that the spouse has deserted the petitioner for a continuous period of not less than two years immediately preceding the presentation of the petition.
Under the Hindu Marriage Act, factum of separation and animus to desert or intention to bring cohabitation to end are essential requisites of desertion. It is evident that the Dubai Court has not considered the aspect of animus deserendi and has granted divorce solely on the ground that the parties were living separately for a period of more than two years.
In International Woolen Mills v. Standard Wool, AIR 2001 SC 2134; (2001) 5 SCC 265, our Apex Court has held that the decision of a Court given ex-parte on the basis of the plaintiff’s plea and the documents, without going into the controversy between the parties, would not be a judgment on the merits of the case.
The Apex Court, in Surinder Kaur Sandhu v. Harbax Singh Sandhu, 1984-3 SCC 698, stressed the need to protect the wife against the burden of litigating in inconvenient forum. Hence, it was necessary to ensure that the petitioner was in a position to remain present before the court at Dubai and contest the proceedings effectively. The judgment of the Dubai Court did not indicate that the respondent herein had ensured effective contest by making all necessary provisions for the petitioner to defend the petition, including the cost of travel, residence, and litigation.
In Sondur Gopal v. Sondur Rajini, AIR 2013 SC 2678: 2013-7 SCC 426, referring Section 1(2) Hindu Marriage Act it has been laid down-
“14. Bearing in mind the principle aforesaid, when we consider Section 1(2) of the Act, it is evident that the Act extends to the Hindus of whole of India except the State of Jammu and Kashmir and also applies to Hindus domiciled in India who are outside the said territory. In short, the Act, in our opinion, will apply to Hindus domiciled in India even if they reside outside India. If the requirement of domicile in India is omitted altogether, the Act shall have no nexus with India which shall render the Act vulnerable on the ground that extra-territorial operation has no nexus with India. In our opinion, this extra-territorial operation of law is saved not because of nexus with Hindus but Hindus domiciled in India.
19. Section 2(1) provides for the application of the Act. The same reads as follows :-
2. Application of Act.- (1) This Act applies –
to any person who is a Hindu by religion in any of its forms or developments, including a Virashaiva, a Lingayat or a follower of the Brahmo, Prarthana or Arya Samaj,
to any person who is a Buddhist, Jaina or Sikh by religion, and
to any other person domiciled in the territories to which this Act extends who is not a Muslim, Christian, Parsi or Jew by religion, unless it is proved that any such person would not have been governed by the Hindu law or by any custom or usage as part of that law in respect of any of the matters dealt with herein if this Act had not been passed.”
20. This section contemplates application of the Act to Hindu by religion in any of its forms or Hindu within the extended meaning i.e. Buddhist, Jaina or Sikh and, in fact, applies to all such persons domiciled in the country who are not Muslims, Christians, Parsi or Jew, unless it is proved that such persons are not governed by the Act under any custom or usage. Therefore, we are of the opinion that Section 2 will apply to Hindus when the Act extends to that area in terms of Section 1 of the Act. Therefore, in our considered opinion, the Act will apply to Hindu outside the territory of India only if such a Hindu is domiciled in the territory of India.”
28. … For all these reasons, we are of the opinion that both the husband and wife are domicile of India and, hence, shall be covered by the provisions of the Hindu Marriage Act, 1955. As on fact, we have found that both the husband and wife are domicile of India, and the Act will apply to them, other contentions raised on behalf of the parties, are rendered academic and we refrain ourselves to answer those.
29. In the result, we do not find any merit in the appeal and it is dismissed accordingly but without any order as to costs.
30. In view of our decision in Civil Appeal No. 4629 of 2005 (Sondur Gopal v. Sondur Rajini) holding that the petition filed by the appellant for judicial separation and custody of the children is maintainable, we are of the opinion that the writ petition filed by the respondent for somewhat similar relief is rendered infructuous. On this ground alone, we allow this appeal and dismiss the writ petition filed by the respondent.”
It is the unique characteristic of Indian Constitution that the Government in India protects all religions and the religious practices. Unlike other secular countries like United States, which follow the principle of ‘non-interference in the matters of religion’, the secular Government in India is destined to deal with all religions equally and in a neutral manner. Yet, the Government in India will never be openly or virtually religious.
The framers of the Constitution of India positioned the heart and soul of the religious rights and freedom in Articles 25 and 26 of the Constitution of India.
Shirur Mutt and Durgah Committee – Two important Decisions on Art. 25 and 26
Several enactments passed in India, pertaining to the administration of property owned by predominant religious bodies, were challenged in courts alleging that they violated the fundamental rights guaranteed in Article 25 and 26 of the Constitution.
Following are the two important decisions of our Apex Court that articulated and verbalized the law on Article 25 and 26 of the Constitution of India:
(i) The Commr, Hindu Religious Endowments v. Sri Lakshmindra Thirtha Swamiar of Sri Shirur Mutt (AIR 1954 SC 282) – Seven Judge Bench – MC Mahajan, CJ, BK Mukherjea, , SR Das, Vivian Bose, Ghulam Hasan, NH Bhagwati, TL Venkatarama Aiyyar.
(ii) Durgah Committee, Ajmer v. Syed Hussain Ali (AIR 1961 SC 1402). Five Judge Bench – Gajendragadkar, CJ., Sarkar, Das Gupta, Rajagopala Ayyangar, KN Wanchoo.
Article 25 reads as under:
“25. Freedom of conscience and free profession, practice and propagation of religion
(1) Subject to public order, morality and health and to the other provisions of this Part, all persons are equally entitled to freedom of conscience and the right freely to profess, practise and propagate religion.
(2) Nothing in this article shall affect the operation of any existing law or prevent the State from making any law –
(a) regulating or restricting any economic, financial, political or other secular activity which may be associated with religious practice;
(b) providing for social welfare and reform or the throwing open of Hindu religious institutions of a public character to all classes and sections of Hindus.
Explanation I – The wearing and carrying of kirpans shall be deemed to be included in the profession of the Sikh religion.
Explanation II – In sub clause (b) of clause reference to Hindus shall be construed as including a reference to persons professing the Sikh, Jaina or Buddhist religion, and the reference to Hindu religious institutions shall be construed accordingly.”
Article 26 reads as under:
“26. Freedom to manage religious affairs – Subject to public order, morality and health, every religious denomination or any section thereof shall have the right
(a) to establish and maintain institutions for religious and charitable purposes;
(b) to manage its own affairs in matters of religion;
(c) to own and acquire movable and immovable property; and
(d) to administer such property in accordance with law.”
Art. 25 and 26 Allows Enactment of Laws Relating to ‘Secular’ Matters
Article 25 speaks about making law on ‘secular activity which may be associated with religious practice‘. Article 26 says as to ‘administer such property in accordance with law‘.
Article 26 proclaims, inter alia, about freedom to manage religious affairs. The principles underlying these provisions come for consideration when legislature makes law as regards the property that has been acquired, possessed or owned by religious bodies.
Doctrine of Essential Religious Practice
It is clear from the words in clause (d) of Article 26 (‘administer such property in accordance with law’) that the legislature is empowered to enact laws relating to ‘secular’ matters related to the administration of property owned by religious denominations. Laws made as above had been questioned in Shirur Mutt case and Durgah Committee case as detailed below. The doctrine of Essential Religious Practice is emerged from the analysis and synthesis of the Articles 26 and 26.
Shirur Mutt Case
In The Commr, Hindu Religious Endowments v. Sri Lakshmindra Thirtha Swamiar of Sri Shirur Mutt (1954) the Constitutional validity of the Madras Hindu Religious and Charitable Endowments Act, 1951 passed by the Madras Legislature was challenged. It was alleged that the Act interfered with the management of the Math and its affairs by the Mathadhipati, and it conflicted with the provisions fundamental rights guaranteed under the Constitution in matters of religion and religious institutions belonging to particular religious denominations. It was held by our Apex Court, inter alia, as under-
(1) Protection under Article 25(1) of the Constitution extends to (all) religious ‘acts’.
(2) ‘Organizations’, ‘Sects, Sub-sects‘, etc. have the “right to manage its own affairs ” under Article 25(2).
(3)(a) “What constitutes the essential part of a religion is primarily to be ascertained with reference to the doctrines of that religion itself.” (Therefore the provisions of the concerned legislation was held to be bad.)
(3)(b) It is also held: Under Article 26(b), “a religious DENOMINATION or organization enjoys complete autonomyin the matter of deciding as to what RITES and CEREMONIESare essential according to the tenets of the religionthey hold and no outside authority has any jurisdiction to interfere with their decision in such matters”. (Therefore the provisions of the concerned legislation was held to be bad.)
Edict of the Shirur Mutt Case
Thus, Shirur Mutt brings-to-bear that when it is necessary to make a pronouncement as to what constitutes the ESSENTIAL PART OF A RELIGION or what RITES and CEREMONIES are essential according to the tenets of the religion, the same has to be ascertained–
(i) with reference to the Doctrines of that religion itself
AND
(ii) what the DENOMINATION HELD as essential, as regards the RITES and CEREMONIES, according to the Tenets of their religion.
Shirur Mutt – Not a Case from Dispute Within the Community
It is noteworthy that in this case it was not required to record a finding – what would be the stand of the court when a dispute came within the community or denomination as to the rites and ceremonies.
Durgah Committee Case
The tomb Khwaja Moinuddin Chisti at Ajmeer, known as Durgah Khwaja Saheb, gained high reputation. In 1955 the Parliament of India enacted the Durgah Khwaja Saheb Act, 1955, with regard to the administration of the tomb. Alleging violation of the fundamental rights, a Writ Petition under Art. 226 of the Constitution was filed. In Durgah Committee, Ajmer v. Syed Hussain Ali (1961) it was held by the Apex Court, inter alia, as under
The ‘essential practices‘ of RELIGION alone is considered.
The religious practices ‘that may have sprung from merely superstitious beliefs’ and ‘unessential accretions to religion’ may have to be carefully scrutinised by the COURT.
Edict of the Durgah Committee Decision
Durgah Committee brought forward application of consciousness of the Court in ‘essential religious practice’ of the RELIGION (without regard to what had been HELD by the DENOMINATION).
Durgah Committee paved a broad way, that gave wide discretion to court, when it propounded-
the court has to ‘scrutinise‘ whether religious practices are ‘sprung from merely superstitious beliefs’ or it is an ‘unessential accretions to religion’.
As indicated in Sabarimala case, the result of Durgah Committee decision is that the courts determine what are the secular practices or superstitious beliefs.
SeervaiTells –Observation in Dargah Committee Case, only an Obiter
From Dargah Committee decision, it may appear that the matters discussed in the decision – such as, what were the secular practices or what were superstitious beliefs – dwell within the domain of Courts. (That is, the yardstick would be the consciousness of Court.)
The observation in Dargah Committee case as to “…practices though religious may have sprung from merely superstitious beliefs and may in that sense is extraneous and unessential accretions to religion itself” is criticised by Seervai in his treatise ‘Constitutional Law of India’ and observed that it was only an obiter as it was “wholly unnecessary to do so”. Seervai also pointed out that ‘the above obiter runs directly counter to the judgment of Mukherjea, J. in the Shirur Mutt Case and substitutes the view of the court for the view of the denomination on what is essentially a matter of religion’.
Seervai continued as under:
“The reference to superstitious practises is singularly unfortunate, for what is ‘superstition’ to one section of the public may be a matter of fundamental religious belief to another. Thus, for nearly 300 years bequests for masses for the soul of a testator were held void as being for superstitious uses, till that view was overruled by the House of Lords in Bourne v. Keane. It is submitted that in dealing with the practise of religion protected by provisions like those contained in s. 116, Commonwealth of Australia Act or in Article 26(b) of our Constitution, it is necessary to bear in mind the observations of Latham C.J. quoted earlier, namely, that those provisions must be regarded as operating in relation to all aspects of religion, irrespective of varying opinions in the community as to the truth of a particular religious doctrine or the goodness of conduct prescribed by a particular religion or as to the propriety of any particular religious observance. The obiter of Gajendragadkar J. in the Durgah Committee case is also inconsistent with the observations of Mukherjea J. in Ratilal Gandhi Case,** that the decision in Jamshedji v. Soonabai afforded an indication of the measure of protection given by Article 26(b).” (quoted in Indian Young Lawyers Association Vs. State of Kerala, 2019-1 SCC 1-Indu Malhotra, J.)
**Ratilal Panachand Gandhi v. The State of Bombay, AIR 1954 SC 388.
It is noteworthy that in this case also, as in Shirur Mutt case, disputes that arose for consideration were not that arose within the community or denomination as regards the ‘rites and ceremonies’. It was a case that challenged an enactment passed by the Parliament of India.
All five Judges in Durgah Committee Changed their Views
All the five Judges in Durgah Committee (1961) changed their views, by two subsequent decisions, as to the ‘role of the court‘ in determining the essential religious practice; and observed that what was REGARDED by the COMMUNITY on essential religious practice was important.
In Sardar Syedna Taher Saifuddin Saheb v. The State of Bombay, AIR 1962 SC 853, it was held by a Constitution Bench (Sinha, C. J. dissenting) of five Judges (consisted of three Judges in Dargah Committee Case – A.K. Sarkar, K.C. Das Gupta, N. Rajagopala Ayyangar, JJ.)
that the protection is extend to acts done in pursuance of religion and it contains a guarantee for rituals and observances, ceremonies and modes of worship which are integral parts of religion; and
that what constitutes an essential part of a religion or religious practice has to be decided by the courtswith reference to the doctrine of a particular religion and include practices which are REGARDED by the COMMUNITYas a part of its religion.
In the Constitution Bench decision in Tilkayat Shri Govindlalji Maharaj v. St. of Rajasthan, 1963 AIR SC 1638, Justice Gajendragadkar himself (who authored Dargah Committee Case) and two other Judges in Dargah Committee Case, K.N. Wanchoo and K.C. Das Gupta, JJ. explained, as to the enquiry on integral part of religion held as under:
In deciding the question as to whether a given religious practice is an integral part of the religion or not, the test always would be whether it is REGARDED as such by the COMMUNITY following the religion or not.
This question (as to essential religious practice) will always have to be decided by the Court and in doing so, the Court may have to enquire whether the practice in question is religious in character and if it is, whether it can be regarded as an integral or essential part of the religion, and the finding of the Court on such an issue will always depend upon the evidence adduced before it as to the CONSCIENCE of the COMMUNITY and the tenets of its religion.
Gajendragadkar J. Explained Essential Religious Practices in Tilkayat
Justice Gajendragadkar himself (who authored Dargah Committee Case) explained, in a subsequent decision, as to enquiry on integral part of religion in the Constitution Bench decision, in Tilkayat Shri Govindlalji Maharaj Vs. St. of Rajasthan (1963 AIR SC 1638) as under:
“In Shri Venkataramana Devara v. The State of Mysore, Venkatarama Aiyar, J., observed ‘that the matter of religion in Art. 26 (b) include even practices which are regarded by the community as parts of its religion’. It would thus be clear that religious practice to which Art. 25 (1) refers and affairs in matters of religion to which Art. 26 (b) refers, include practices which are an integral part of the religion itself and the protection guaranteed by Art. 25(1) and Art. 26(b) extends to such practices. In deciding the question as to whether a given religious practice is an integral part of the religion or not, the test always would be whether it isregarded as such by the community following the religion or not. This formula may in some cases present difficulties in its operation. Take the case of a practice in relation to food or dress. If in a given proceeding, one section of the community claims that while performing certain rites while dress is an integral part of the religion itself, whereas another section contends that yellow dress and not the white dress is the essential part of the religion, how is the Court going to decide the question? Similar disputes may arise in regard to food. In cases where conflicting evidence is produced in respect of rival contentions as to competing religious practices the Court may not be able to resolve the dispute by a blind application of the formula that the community decides which practice is an integral part of its religion, because the community may speak with more than one voice and the formula would, therefore, break down. This question will always have to be decided by the Court and in doing so, the Court may have to enquire whether the practice in question is religious in character and if it is, whether it can be regarded as an integral or essential part of the religion, and the finding of the Court on such an issue will always depend upon the evidence adduced before it as to the conscience of the community and the tenets of its religion. It is in the light of this possible complication which may arise in some cases that this Court struck a note of caution in the case of the Durgah Committee, Ajmer v. Syed Hussain Ali, and observed that in order that the practices in question should be treated as a part of religion they ‘must be -regarded by the said religion as its essential and integral part ; otherwise even purely secular practices which are not an essential or an integral part of religion are apt to be clothed with a religious form and may make a claim for being treated as religious practices within the meaning of Art. 25 (1).”
The Tilkayat contended in this case that the idol of Shri Shrinathji in the Nathdwara Temple and all the property pertaining to it were his private properties; and as such, the State Legislature was not competent to pass the Act.
Seervai criticised Tilkayat Shri Govindlalji Maharaj v. State of Rajasthan also as under:
“In Tilkayat Shri Govindlalji v. Rajasthan Gajendragadkar J. again adverted to the rights under Arts. 25(1) and 26(b) and stated that if a matter was obviously secular and not religious, a Court would be justified in rejecting its claim to be a religious practise, as based on irrational considerations. It is submitted that the real question is whether the religious denomination looks upon it as an essential part of its religion, and however irrational it may appear to persons who do not share that religious belief, the view of the denomination must prevail, for, it is not open to a court to describe as irrational that which is a part of a denomination’s religion. The actual decision in the case, that the right to manage the property was a secular matter, is correct, but that is because, as pointed out by Mukherjea J., Art. 26(b) when contrasted with Art. 26(c) and (d) shows that matters of religious belief and practises are distinct and separate from the management of property of a religious denomination. The distinction between religious belief and practises which cannot be controlled, and the management of the property of a religious denomination which can be controlled to a limited extent, is recognised by the Article itself and must be enforced. Butthis distinction is not relevant to the question whether a religious practise is itself irrational or secular.” (quoted in Indian Young Lawyers Association Vs. State of Kerala, 2019-1 SCC 1-Indu Malhotra, J.)
View of Setalvad, the Attorney General who Argued the Case
MC Setalvad the all time powerful and brave Attorney-General, who led the argument for the Government in Shirur Mutt case laid stress upon clause (2)(a) of the Article 25 and contented that all secular activities, which may be associated with religion but did not really constitute an essential part of it, were amenable to State regulation. This argument was not accepted by the Apex Court, as shown above. But, in his auto-biography, ‘My Life, Law and Other Things’, Setalvad said about the Judgments in Shirur Mut case and Ratilal Panchand Gandhi Vs. State of Bombay, AIR 1954 SC 388, as under:
“The Judgments delivered by Justice Mukherjea, in these two cases were the first enunciation of the true scope of the provisions safeguarding religious liberty in the Indian Constitution. The exposition of the fundamental rights was comprehensive and precise, and completely in harmony with Indian practice and sentiment.
A later decision (Durgah Committee, Ajmer Vs. Syed Hussain Ali) has however sought to modify these principles . It has been said that “In order that the practices in question should be treated as a part of religion they must be regarded by the said religion as its essential and integral part; …… practices though religions may have sprung from merely superstitious beliefs and may in that sense be extraneous and unessential accretions to religion itself. …… the protection under Art. 26 may have to be carefully scrutinised, in other words, the protection must be confined to such religious practices as are an essential and integral part of it and no other.“
Setalvad expressed his displeasure to the Durgah decision emphatically by raising the following question:
“Is the court study the religion and in its reforming zeal to weed out the superstitions from the essential practices, which are an integral part of Religion?
The distaste to Durgah decision is further demonstrated by Setalvad by giving the following answer to the above question, formulated by him, referring Mukherjea, as under:
“That would be contrary to what Justice Muhkerjea laid down: No outside authority had any right to say that those religious practices and performances were not an essential part of religion.”
Reflections of Justice Gajendragadkar in his Autobiography
It is interesting to note what was the reflection of Justice Gajendragadkar in his Autobiography, “To the Best of My Memory” as to the ‘role of the court‘ in determining the essential religious practice.
Justice Gajendragadkar pointed out that the finding was needed when disputes came as to religious practices and other matters, and said that ‘the finding of the court on such an issue will always depend upon the evidence adduced before it as to the conscience of the community and the tenets of its religion’.
Justice Gajendragadkar speaks as under:
“Similarly under Article 26, one of the questions which agitated public opinion was in respect of the meaning of the expression “matters of religion” under Article 26 (b) and “religious practices” under Article 25(2)(a). The earlier trend of the Supreme Court judgments was that religious practices and matters of religion have to be decided in the light of the opinion of the community and not by the court. This view meant that, in case a controversy arose between the parties in regard to the meaning of these two expressions, in deciding “whether a given religious practice is an integral part of the religion or not, the test always would be whether it is regarded as such by the community following the religion or not”. This view however was dissented from by the court in two decisions***in both of which I spoke for the unanimous court. We held that where a dispute arises as to what is the religious practice or what are matters of religion, the question will always have to be decided by the court. In doing so, the court may have to enquire whether the practice in question is religious in character and, if it is, can it be regarded as an integral and essential part of the religion? The finding of the court on such an issue will always depend upon the evidence adduced before it as to the conscience of the community and the tenets of its religion.”
(ii) Tilkayat Shri Govindlalji Maharaj v, The State of Rajasthan, (1964) SCR 561,620,623.
Sabarimala Case Pointed out – Apparent Conflict is on Role of the Court
In the Sabarimala review-reference (to higher Bench) Judgment, Kantaru Rajeevaru v. Indian Young Lawyers Association, 2020-2 SCC 1, it is pointed out that there is apparent conflict between the Shirur Mutt Case and Durgah Committee Case, on the ‘Role of the Court’.
It is observed –
Seven Judges bench of the Apex Court, in Commissioner, Hindu Religious Endowments, Madras v. Shri Lakshmindra Tirtha Swamiar of Shirur Mutt (Shirur Mutt), held that what were essential religious practices of a particular religious denomination should be left to be determined by the denomination itself.
The subsequent Five Judges bench in Durgah Committee, Ajmer v. Syed Hussain Ali carved out a role for the court in this regard to exclude what the courts determine to be secular practices or superstitious beliefs.
Both these decisions ‘seem to be in apparent conflict‘.
It requires consideration by a larger Bench.
End Notes
The law handed down by the Supreme Court in these two rulings are divergent, mainly, in three material parts. They are:
1. Whether protection is limited to practices that are ESSENTIAL and INTEGRAL part of religion (as held in Durgah)?
Do Article 25 and 26 that give right ‘to manage its own affairs in matters of religion’ and freedom to ‘practice of religion’ protect (all) ‘Acts Done in pursuance of a religion (as held in Shirur Mutt)?
2. When it is necessary to make a pronouncement as to what constitutes the essential part of a RELIGION, can it be scrutinised by the COURT so as to eschew what are sprung from merely superstitious beliefs’ or ‘unessential accretions to religion’ (as held in Durgah)?
Is it to be ascertained with reference to the doctrines of that religion itself. If it is necessary to to make a pronouncement as to what RITES and CEREMONIES are essential to a DENOMINATION, is it to be left to be determined with reference to the decisions (and practices) of that denomination itself (as held in Shirur Mutt)?
3. Whether the Protection is limited to ESSENTIAL and INTEGRAL part of ‘RELIGION’ in a strict sense (as held in Durgah)?
Whether it Extends to Religious practices of Denomination/Section, ‘Organization’, ‘Sect, Sub-sect‘, etc. (as held in Shirur Mutt)? Whether freedom of religion is guaranteed to all practices, except that which run counter to public order, health and morality? A Religion or any section thereof hold the fundamental right to‘manage its own affairs’ (which no legislature can take away) and enjoy complete autonomy (so that no outside authority has any jurisdiction).
The findings of the Apex Court, in Shirur Mutt and Durgah Committee cases, on Article 25 and 26, are as follows:
Durgah Committee (1961) Five Judge Bench. (Author: Gajendragadkar, J.)
Shirur Mutt (1954) Seven Judge Bench. (Author: BK Mukherjea, J.)
1. The rights protected are limited to practices of ‘RELIGION’ in a strict sense. “Unless such practices arefound to constitute an essential and integral part of a RELIGION their claim for the protection under Art. 26 may have to be carefully scrutinised. In other words, the protection must be confined to such religious practices as are an essential and an integral part of it (RELIGION) and no other.“ “If these practises were found to be purely secular practices or mere practices sprung from‘superstitious beliefs and may in that sense is extraneous and UNESSENTIAL accretions to RELIGION’ the State was free to enact laws on such matters.“
Extends to religious DENOMINATION or a SECTION THEREOF, and includes ‘Organization‘, ‘Sects,Sub-sects‘, etc. “After Sankara, … religious teachers … founded the different sects and sub-sects …. Each one of such sects or sub-sects can certainly be called a religious denomination …” “The word ‘’denomination’ … mean … a religious sect or body ….” “If the tenets of any religious sect of the Hindus prescribe that offerings of food … be regarded as parts of religion. “A religious denomination or organization enjoys complete autonomy …” “There could be other affairs of .. denomination or a section thereof .. not matters of religion … guarantee given ….” [In Sardar Syedna Taher Saiffuddin Saheb Vs. State of Bombay, AIR 1962 SC 853, “Community” is considered.]
2. COURTdetermines “Unless such practices are found to constitute an essential and integral part of a RELIGION their claim for the protection under Art. 26 may have to be carefully scrutinised; in other words, the protection must be confined to such religious practices as are an essential and an integral part of it and no other.” (That is, court determines and ‘carefully scrutinises’. That is, there is scope for the court to apply its own conscience.) Note: This proposition is not followed in (i) Tilkayat Shri Govindlalji Maharaj Vs. St. of Rajasthan, 1963AIR SC 1638, authored by Gajendragadkar, J himself; (ii) Sardar Syedna Taher Saifuddin Saheb Vs. The State of Bombay, AIR 1962 SC 853, Authored by BP Sinha.
It is found in this decision: “What are essential religious practices of a particular religious denomination should be left to be determined by the denomination itself” (So observed in Sabarimala Reference decision). What rites and ceremonies are essential –No outside authority has any jurisdiction. “What constitutes the essential part of a religion is primarily to be ascertained with reference to the doctrines of that religion itself.” “A religious denomination or organization enjoys COMPLETE AUTONOMYin the matter of deciding as to what rites and ceremonies are essential according to the tenets of the religion they hold and no outside authority has any jurisdiction to interfere with their decision in such matters.” “The ‘right to manage its own affairs in matters’ of religion “is a fundamental right which no legislature can take away“.
3. The rights protected are limited to such RELIGIOUS PRACTICES as are ESSENTIAL and INTEGRAL part of religion and no other. “Unless such practices are found to constitute an essential and integral part of a RELIGION their claim for the protection under Art. 26 may have to be carefully scrutinised; in other words, the protection must be confined to such religious practices as are an essential and an integral part of it and no other.”
Note: This proposition is not followed in (i) Tilkayat Shri Govindlalji Maharaj Vs. St. of Rajasthan, 1963 AIR SC 1638 [Held: The Court may have to enquire whether the practice in question is religious in character and if it is, whether it can be regarded as an integral or essential part of the religion];
(ii) Sardar Syedna Taher Saifuddin Saheb Vs. The State of Bombay, AIR 1962 SC 853 [Held: Include practices which are regarded by the COMMUNITY as a part of its religion].
The rights protected are extended to (ALL) ACTS DONE IN PURSUANCE OF A RELIGION. “Our Constitution not only protects the freedom of religious opinion but it protects also acts done in pursuance of a religion and this is made clear by the use of the expression ‘practice of religion‘. “The contention in broad terms that all secular activities (which may be associated with religion) which do not really constitute an essential part of it, are amenable to State regulation cannot be supported.” “If the tenets of any religious sect of the Hindus prescribe that offerings of food should be given to the idol at particular hours of the day, that periodical ceremonies should be performed in a certain way at certain periods of the year or that there should be daily recital of sacred texts or ablations to the sacred fire, all these would be regarded as parts of religion and the mere fact that they involve expenditure of money or employment of priests and servants or the use of marketable commodities would not make them secular activities partaking of a commercial or economic character; all of them are religious practices and should be regarded as matters of religion within the meaning of article 26(b).”
4. Not refer to public order, health and morality “Unless such practices are foundto constitute an ESSENTIAL and INTEGRAL part of a RELIGION their claim for the protection under Art. 26 may have to be carefully scrutinised.”
(That is, emphasis is given to (i) ESSENTIAL and integral part of a RELIGION and (ii) assigns serious ROLE FOR THE COURT.)
Extends to (ALL) PRACTICES except when they do not run counter to public order, health and morality “What article 25(2)(a) contemplates is not regulation by the State of religious practices as such, the freedom of which is guaranteed by the Constitution except when they run counter to public order, health and morality, but regulation of activities which are economic, commercial or political in their character though they are associated with religious practices.” “There could be other affairs ofa religious denomination or a section thereof which are not matters of religion and to which the guarantee given by this clause would not apply.”
••➧ Divergent opinion – Whether injunction can be issued against a true owner restraining him from evicting a ‘trespasser in settled possession’. ••➧ It is a sound principle – even the owner of the property can get back his possession only by resorting to due process of law. ••➧ In Kesar Bai v. Genda Lal, 2022-10 SCC 217, there was a (previous) Court Finding – the possession of the plaintiff (in the previous suit) was notlawful. Therefore, it was held – he is not entitled (in a subsequent suit) for injunction against the true owner. ••➧ It may likely to interpret this decision – the consequent natural outcome of this decision is that the defendant (rightful owner) need not go for a further suit, for recovery (under ‘due process’ doctrine). ••➧ There remains something unexplained.
Introduction.
Divergent views exist as to passing injunction in a case filed by a trespasser, against the ‘true owner’ of a property.
One view is that a trespasser in settled possession is entitled for injunction (even against the true owner), for, he cannot be evicted otherwise than on “due process of law” (by the true owner).
See: Rame Gowda v. M. Varadappa Naidu, 2004-1 SCC 769 (Three Judge Bench decision).
The other view is that no injunction can be passed (against the true owner) in a suit filed by the person in unlawful possession (even if it is a settled possession).
See: Kesar Bai v. Genda Lal, 2022-10 SCC 217; Chenaji v. Maniben Jagmalbhai, 2022-2 RCR (Civil) 395; 2022 SCC OnLine SC 258 (Two Judge Bench decisions).
Settled Possession Vs. Rights of True Owner
When the relief of injunction or possession sought for in a suit is negated, and the title of the defendant as the owner is upheld, can the defendant recover the property without instituting a (second) suit, i.e., otherwise than on “due process of law“?
Earlier consistent view (See: Aarti v. Aruna Gautham, 2015-1 RCR Civil – 160 (SC): Ranjan Gogoi and Rohinton Fali Nariman, JJ.) was that the true owner was not legally entitled to eject the trespasser by force (otherwise than on due process of law), especially when the trespasser is in settled possession.
Present view: In Prahladji Chenaji v. Maniben Jagmalbhai: 2022-2 RCR (Civil) 395; 2022 SCC OnLine SC 258 (Followed in:Kesar Bai v. Genda Lal, 2022-10 SCC 217) it is held that the ‘due process’ or ‘due course’ condition was satisfied the moment the rights of the parties were adjudicated upon (in the first round), and therefore the possession of the plaintiff is notlawful.
It is held in Prahladji Chenaji as under:
“Where once a suit is held not maintainable, no relief of injunction can be granted. Injunction may be granted even against the true owner of the property, only when the person seeking the relief is in lawful possession.“
Note: Kesar Bai v. Genda Lal, 2022-10 SCC 217 (M.R. Shah, Sudhanshu Dhulia, JJ.) calls for reading along with Prahladji Chenaji v. Maniben Jagmalbhai: 2022-2 RCR (Civil) 395; 2022 SCC OnLine SC 258 (M.R. Shah, B.V. Nagarathna, JJ.).
View Prevailed in India – 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.
Even Rightful Ownerto 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 aidof 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 possessioncould 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.”
Injunction is Absolutely a Discretionary and Equitable Relief.
The Supreme Court in Premji Ratansey Shah v. Union of India, 1994-5 SCC 547, has held as under:
“Issuance of an order of injunction is absolutely a discretionary and equitable relief. In a given set of facts, injunction may be given to protect the possession of the owner or person in lawful possession. It is not mandatory that for mere asking such relief should be given. Injunction is a personal right under Section 41(j) of the Specific Relief Act, 1963; the plaintiff must have personal interest in the matter. The interest of right not shown to be in existence, cannot be protected by injunction.
5. It is equally settled law that injunction would not be issued against the true owner. Therefore, the courts below have rightly rejected the relief of declaration and injunction in favour of the petitioners who have no interest in the property. Even assuming that they had any possession, their possession is wholly unlawful possession of a trespasser and an injunction cannot be issued in favour of a trespasser or a person who gained unlawful possession, as against the owner. Pretext of dispute of identity of the land should not be an excuse to claim injunction against true owner.”
Possession is Good Against All But the True Owner
The principle that ‘possession is good against all but the true owner’ is stated in Nair Service Society Ltd. v. K.C. Alexander, AIR 1968 SC 1165, referring Judicial Committee decision in Parry v. Clissold, (1907) AC 73, as under:
“17. In our judgment this involves an incorrect approach to our problem. To express our meaning we may begin by reading 1907 AC 73, to discover if the principle that possession is good against all but the true owner has in any way been departed from. 1907 AC 73 reaffirmed the principle by stating quite clearly:
“It cannot be disputed that a person in possession of land in the assumed character of owner and exercising peaceably the ordinary rights of ownership has a perfectly good title against all the world but the rightful owner. And if the rightful owner does not come forward and assert his title by the process of law within the period prescribed by the provisions of the statute of Limitation applicable to the case, his right is for ever extinguished and the possessory owner acquires an absolute title.”
Following decisions also say – no injunction can be passed, in favour of a trespasser, against the ‘true owner’ of a property:
Lallu Yeshwant Singh v. Rao Jagdish Singh, AIR 1968 SC 620 (possession after the termination of the tenancy);
M.C. Chockalingam v. Manickavasagam (1974) 1 SCC 48;
Sukhwant Singh vs Divisional Forest Officer; 2009(3) Law Herald (P&H) 2286, 2010-2 RCR(Civil) 394;
Mohini v. Thimmappa, 2015-4 Ker LT 759;
Lions Club of Thrikkakara v. Greater Cochin Development Authority, AIR 2017 Ker 77: 2017-2 Ker LT 158 (revocation of a licence).
If Title not Perfected by Adver. Posn, Can one eject a Trespasser After 6 Months
High Court 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.
RECENT VIEW OF THE APEX COURT
Plaintiff who Failed to get Declaration on Title is Not in “Lawful Possession”; he is not entitled for injunction against the true owner.
Once the defendant is found to be the Rightful Owner, the argument that he Can Resume Possession only by Adhering “Due Process of Law” is to be “Rejected Outright“.
In Prahladji Chenaji v. Maniben Jagmalbhai, 2022-2 RCR (Civil) 395; 2022 SCC OnLine SC 258, our Apex Court made clear the scope of the issues arose for consideration as under:
“7. Therefore, the short question, which is posed for the consideration of this Court is, whether, in a case where the plaintiff has lost so far as the title is concerned and the defendant against whom the permanent injunction is sought is the true owner of the land, whether the plaintiff is entitled to a relief of permanent injunction against the true owner, more particularly, when the plaintiff has lost so far as the title is concerned and can thereafter the plaintiff be permitted to contend that despite the fact that the plaintiff has lost so far as the title is concerned, her possession be protected by way of injunction and that the true owner has to file a substantive suit claiming the possession.”
In this case the Court observed to the following effect:(See ‘End Notes’ below):
The plaintiff is not entitled to any injunction and/or protect his possession against the rightful owner, more particularly, when he fails to get the declaratory relief with respect to the title.
In a suit for permanent injunction to restrain the defendant from interfering with the plaintiff’s possession, the only thing the plaintiff will have to establish is that as on the date of the suit, he was in lawful possession of the suit property and the defendant has tried to interfere or disturb his possession (Anathula Sudhakar v. Buchi Reddy, (2008) 4 SCC 594. AIR 2008 SC 2033, relied on).
The plaintiff, who has failed to get any declaratory relief on title cannot be said to be in “lawful possession”. Only when the person seeking the relief is in lawful possession and enjoyment of the property, he is legally entitled to be in possession, and not to disposes him, except in due process of law.
The contention of the plaintiff that even if the plaintiff failed to get the declaratory relief and the suit is dismissed, once the plaintiff is found to be in possession, her possession cannot be disturbed except in due process of law and the only remedy available to the defendant would be ‘to file a substantive suit to get back the possession is noticed only to be rejected outright‘.
In Maria Margarida Sequeira Fernandes Vs. Erasmo Jack de Sequeira, (2012) 5 SCC 370, it was held that the ‘due process’ or ‘due course’ condition was satisfied the moment the rights of the parties were adjudicated upon by a court of competent jurisdiction, and that it did not matter who brought the action to court.
In Maria Margarida Sequeira Fernandes Vs. Erasmo Jack de Sequeira, the Court has approved the following findings of the High Court of Delhi in Thomas Cook (India) Ltd. Vs. Hotel Imperial (2006) 88 DRJ 545:
‘In this context, when a party approaches a court seeking a protective remedy such as an injunction and it fails in setting up a good case, can it then say that the other party must now institute an action in a court of law for enforcing his rights i.e. for taking back something from the first party who holds it unlawfully, and, till such time, the court hearing the injunction action must grant an injunction anyway? I would think not.’
Once the rights of the parties are adjudicated and the defendant is held to be the true owner, it can be said that due process of law has been followed and thereafter the plaintiff is not entitled to any permanent injunction against the true owner.
Kesar Bai v. Genda Lal – HC and SC Approached in Different Perspectives
Kesar Bai v. Genda Lal, 2022-10 SCC 217, arose from a suit seeking declaration of ownership and permanent injunction. The findings of the High Court were the following:
the plea of ownership claimed by the plaintiff based on a sale deed and the plea of adverse possession were contrary to each other;
the plaintiffs could not have been permitted to take both the pleas at the same time;
but, in view of the fact that the plaintiff was in possession of the suit land since the execution of the said sale deed, the plaintiff was entitled for injunction on the basis of his possession.
Setting aside the High Court judgment the Apex Court held as under:
“The possession/alleged possession of the plaintiffs could not have been protected by passing a decree of permanent injunction in favour of the plaintiffs”.
Logical Consequence of Prahladji Chenaji and Kesar Bai is Displeasing
In both Prahladji Chenaji v. Maniben Jagmalbhai, 2022-2 RCR (Civil) 395; 2022 SCC OnLine SC 258, and Kesar Bai v. Genda Lal, 2022-10 SCC 217, it is not specifically stated that-
(i) the true owner can resume possession using force, and
(ii) the suit for recovery by the true owner is barred.
In both these decisions, it was not required to pronounce – how the true owner could repossess his land from a trespasser in (settled) possession, if the true owner could not peacefully re-take it. It appears that he has to seek legal remedies by filing a civil suit itself, for, there is no summary-remedy known to law for recovery of possession (such as ‘revival of decree’ by a summary procedure and executing such a decree by the defendant).
Still, it may likely to interpret these decisions in away that their consequent natural outcome is the following:
The defendant (rightful owner) need not go for a further suit, for recovery, under ‘due process’ doctrine.
Relevant Considerations as to Granting Injunction Against the True Owner
In Shiv Kumar Chadha v. Municipal Corporation of Delhi, (1993) 3 SCC 161, with regard to ordering temporary injunction, a Three Judge Bench of our Apex Court, held as under:
“A party is not entitled to an order of injunction as a matter of course. Grant of injunction is within the discretion of the court and such discretion is to be exercised in favour of the plaintiff only if it is proved to the satisfaction of the court that unless the defendant is restrained by an order of injunction, an irreparable loss or damage will be caused to the plaintiff during the pendency of the suit. The purpose of temporary injunction is, thus, to maintain the status quo.”
Observing that it is a settled law that injunction would not be issued against the true owner, it is held in Premji Ratansey Shah v. Union of India, 1994 (5) SCC 547, as under:
“The said sale is a void sale and the petitioners, therefore, cannot derive any interest under the agreement of sale to resist the possession of the lawful owner nor could the declaration sought for be given. The question, therefore, is whether an injunction can be issued against the true owner. Issuance of an order of injunction is absolutely a discretionary and equitable relief. In a given set of facts, injunction may be given to protect the possession of the owner or person in lawful possession. It is not mandatory that for mere asking such relief should be given. Injunction is a personal right under Section 41(j) of the Specific Relief Act, 1963; the plaintiff must have personal interest in the matter. The interest of right not shown to be in existence, cannot be protected by injunction.”
Relevant considerations as to granting an injunction in favour a trespasser, against the true owner, are the following (as adumbrated in Sopan Sukhdeo Sable v. Assistant Charity Commissioner, AIR 2004 SC 1801):
(i) General principles applicable to the lawof injunctions,
(ii) Discretion exercised by the court while granting injunction,
(iii) Principles analogous to Sec. 6 of the Sp. Relief Act which expressly lays-down that a trespasser, ousted otherwise than on due process of law, can seek (even) restoration of possession, even against true owner.
(iv) The doctrine that ‘possession is good against all but the true owner‘.
The difference between the recovery of possession of a rank trespasser and that of a lawful occupant that turns unlawful on effluxion of time, merits consideration. Similarly, the recovery of possession from an illegal occupant of a ‘public land’ vested with the Government also requires a special consideration.
Nature of Property and Claim of Occupant Whether Bona Fide were Determinative Factors
In Government of A.P. v. Thummala Krishna Rao, (1982) 2 SCC 134, the question considered was whether summary remedy for evicting a person provided for by section 6 of the Andhra Pradesh Land Encroachment Act, 1905, could be resorted to. It was pointed out
the duration of encroachment, short or long, was not the determinative matter
what was relevant for the decision was more the nature of the property and
whether the claim of the occupant was bona fide.
It was also found that if there was bona fide dispute, on title between the Government and the occupant, it must be adjudicated upon by the Ordinary courts of law. The Government cannot decide such questions unilaterally in its own favour and evict any person summarily. Duration of occupation would be relevant requiring an impartial adjudication according to the established procedure of law, if the person –
occupied openly for an appreciable length of time and
could be taken, prima facie, to have a bonafide claim to the property.
Conclusion
It is beyond doubt –
A person in settled possession (even if he is a trespasser) cannot be ejected by force, otherwise than on due process of law, by the rightful owner.
After a (previous) Court Finding that the possession of the plaintiff is notlawful, it is not proper to grant an injunction in his favour disregarding the ‘finding’.
There remains something unexplained in between the two propositions. That is, when no injunction can be granted in favour of a person in settled possession (on the finding that he is trespasser), the resultant situation would indirectly permit the true owner to take the law in his hands and to use force to eject the trespasser.
It goes without saying that the law cannot endorse the view that the rightful owner is legally entitled to eject the trespasser, otherwise than on due process of law, when the trespasser is in settled possession.
Therefore, cogent legal principles have to be evolved and an authoritative pronouncement has to be penned-down, taking note of conflicting views on this subject, and reconciling the apparent divergent views.
End Notes:
Our Apex Court held in Padhiyar Prahladji Chenaji v. Maniben Jagmalbhai: 2022-2 RCR (Civil) 395; 2022 SCC OnLine SC 258 (M.R. Shah, B.V. Nagarathna, JJ.) as under:
“9. ….. However, once the dispute with respect to title is settledand it is held against the plaintiff, in that case, the suit by the plaintiff for permanent injunction shall not be maintainable against the true owner. In such a situation, it will not be open for the plaintiff to contend that though he/she has lost the case so far as the title dispute is concerned, the defendant – the true owner still be restrained from disturbing his/her possession and his/her possession be protected. ….. An injunction cannot be issued against a true owner or title holder and in favour of a trespasser or a person in unlawful possession.
9.3 In the case of A. Subramanian Vs. R. Pannerselvam, (2021) 3 SCC 675 [AIR 2021 SC 821], it is observed by this Court that a person in possession of land in the assumed character of owner and exercising peaceably the ordinary rights of ownership has a perfectly good title against all the world but the rightful owner. Therefore, the plaintiff is not entitled to any injunction and/or protect his possession against the rightful owner, more particularly, when he fails to get the declaratory relief and the dispute with respect to the title comes to an end.
10. Now, so far as the reliance placed upon the decision of this Court in the case of Anathula Sudhakar (supra) by the learned Advocate appearing on behalf of the original plaintiff in support of his submission that in a suit for permanent injunction to restrain the defendant to interfere with the plaintiff’s possession, the only thing the plaintiff will have to establish is that as on the date of the suit, he was in lawful possession of the suit property and the defendant has tried to interfere or disturb his possession is concerned, what is observed by this Court in paragraph 15 is the “lawful possession” of the plaintiff. In the present case the plaintiff, who has failed to get any declaratory relief and the defendant No.1 is held to be a true and absolute owner on the basis of the registered sale deed on payment of full sale consideration thereafter the plaintiff’s possession cannot be said to be “lawful possession”. Therefore, the plaintiff is not entitled to any permanent injunction against the true owner in the instant case.
“11.1 … Where once a suit is held not maintainable, no relief of injunction can be granted. Injunction may be granted even against the true owner of the property, only when the person seeking the relief is in lawful possession and enjoyment of the property and also legally entitled to be in possession, not to disposes him, except in due process of law.
12. Now, so far as the submission on behalf of the plaintiff that even if the plaintiff failed to get the declaratory relief and relief for cancellation of registered sale deed and her suit for the said reliefs came to be dismissed and the plaintiff is found to be in possession and therefore, the only remedy available to the defendant No. 1 would be to file a substantive suit to get back the possession is noticed only to be rejected outright. It is the contention on behalf of the plaintiff that once the plaintiff is found to be in possession, her possession cannot be disturbed except in due process of law and the defendant No.1 though may be the true owner has to file a substantive suit for recovery of possession. While considering the aforesaid submission, the decision of this Court in the case of Maria Margarida Sequeira Fernandes Vs. Erasmo Jack de Sequeira, (2012) 5 SCC 370 is required to be referred to. What is meant by due process of law has been explained by this court in paragraph 79, which reads as under:-
“79. Due process of law means that nobody ought to be condemned unheard. The due process of law means a person in settled possession will not be dispossessed except by due process of law. Due process means an opportunity to the defendant to file pleadings including written statement and documents before the court of law.
It does not mean the whole trial. Due process of law is satisfied the moment rights of the parties are adjudicated upon by a competent court.”
In the said decision, this Court has approved the following findings of the High Court of Delhi in Thomas Cook (India) Ltd. Vs. Hotel Imperial (2006) 88 DRJ 545:-
“28. The expressions ‘due process of law’, ‘due course of law’ and ‘recourse to law’ have been interchangeably used in the decisions referred to above which say that the settled possession of even a person in unlawful possession cannot be disturbed ‘forcibly’ by the true owner taking law in his own hands. All these expressions, however, mean the same thing—ejectment from settled possession can only be had by recourse to a court of law.
Clearly, ‘due process of law’ or ‘due course of law’, here, simply mean that a person in settled possession cannot be ejected without a court of law having adjudicated upon his rights qua the true owner.
Now, this ‘due process’ or ‘due course’ condition is satisfied the moment the rights of the parties are adjudicated upon by a court of competent jurisdiction. It does not matter who brought the action to court. It could be the owner in an action for enforcement of his right to eject the person in unlawful possession. It could be the person who is sought to be ejected, in an action preventing the owner from ejecting him. Whether the action is for enforcement of a right (recovery of possession) or protection of a right (injunction against dispossession), is not of much consequence. What is important is that in either event it is an action before the court and the court adjudicates upon it. If that is done then, the ‘bare minimum’ requirement of ‘due process’ or ‘due course’ of law would stand satisfied as recourse to law would have been taken. In this context, when a party approaches a court seeking a protective remedy such as an injunction and it fails in setting up a good case, can it then say that the other party must now institute an action in a court of law for enforcing his rights i.e. for taking back something from the first party who holds it unlawfully, and, till such time, the court hearing the injunction action must grant an injunction anyway? I would think not. In any event, the ‘recourse to law’ stipulation stands satisfied when a judicial determination is made with regard to the first party’s protective action. Thus, in the present case, the plaintiff’s failure to make out a case for an injunction does not mean that its consequent cessation of user of the said two rooms would have been brought about without recourse to law.”
12.1 Applying the law laid down by this Court in the aforesaid decision to the facts of the case on hand and once the rights of the parties are adjudicated and the defendant No.1 is held to be the true owner on the basis of the registered sale deed and on payment of full sale consideration, it can be said that due process of law has been followed and thereafter the plaintiff is not entitled to any permanent injunction against the true owner.
13. In view of the above discussion and for the reasons stated above, all the Courts below have erred in granting permanent injunction in favour of the plaintiff and against the defendant No. 1, who is the true owner. After having held that the plaintiff had no title and after dismissing the suit qua the cancellation of the registered sale deed and the declaration, the plaintiff is not entitled to relief of permanent injunction against defendant No.1 – the true owner.”
Notes:
In the decision, Maria Margarida Sequeira Fernandes Vs. Erasmo Jack de Sequeira, (2012) 5 SCC 370, what was considered was the principles of law as regards the ‘possession of a caretaker, servant or any person who was allowed to live in the premises for some time either as a friend, relative, caretaker or as a servant’; and not ‘substantive possession’.
The principles that emerge in this case are “crystallized” in para 101 of the decision as under:
“1. No one acquires title to the property if he or she was allowed to stay in the premises gratuitously. Even by long possession of years or decades such person would not acquire any right or interest in the said property.
2. Caretaker, watchman or servant can never acquire interest in the property irrespective of his long possession. The caretaker or servant has to give possession forthwith on demand.
3. The Courts are not justified in protecting the possession of a caretaker, servant or any person who was allowed to live in the premises for some time either as a friend, relative, caretaker or as a servant.
4. The protection of the Court can only be granted or extended to the person who has valid, subsisting rent agreement, lease agreement or license agreement in his favour.
5. The caretaker or agent holds property of the principal only on behalf of the principal. He acquires no right or interest whatsoever for himself in such property irrespective of his long stay or possession.”
In A. Subramanian v. R. Pannerselvam, 2021-3 SCC 675, the Apex Court held as under:
“25. …. But coming to the facts in the present case the present suit giving rise to this appeal, was not a suit for declaration of title and possession rather the suit was filed for injunction. As noted above, the High Court has given cogent reasons for holding that the suit filed by the plaintiff for injunction was maintainable without entering into the title of the plaintiff in facts of the present case specially in view of the previous litigation which was initiated at the instance of defendant No. 1where he lost the suit for declaration and recovery of possession of the same property.
26. We do not find any error in the view of the High Court that it was not necessary to enter into the validity of Exhibits A-1 and A-2 and the suit for injunction filed by the plaintiff deserved to be decreed on the basis of admitted and established possession of the plaintiff. We, thus, do not find any error in the judgment of the High Court allowing the second appeal filed by the plaintiff by setting aside the judgment of the First Appellate Court and restoring that of trial court.”
objections thereto can be raised ‘at a later stage’;
Admitted documents –
need not be proved.
The objection to mode of proof, and proof as to truth of its contents,
can be waived.
The objection to mode of proof, and proof as to truth, have to be raised
at the ‘earliest opportunity’.
Where ‘truth’ of a document is in issue, marking without objection
does not absolve the duty on the concerned party to prove the truth.
Court can Reject Irrelevant or Inadmissible Document at any stage.
Probative value of a document
Mere marking a document as an exhibit
does not dispense with its proof.
Probative value of a document ‘marked without objection’ is
low or nil, for want of proper proof.
Even when a document is admitted, the probative value thereof will be
a matter for the court to determine.
Presumption as to truth of its contents can be invoked in proper cases.
Official record is taken as correct for the presumption that the entries thereof are made only after satisfying its truth.
PART I
Modes of Proof of Documents
Modes of Proof of Documents (as to, both, ‘formal proof’ and ‘truth of the contents’) include the following:
Admission of the person who wrote or signed the document (Sec. 17, 21, 58, 67, 70).
Evidence of a person in whose presence the document was signed or written – ocular evidence (Sec. 59).
An attesting witness (Sec. 59).
Opinion of a person who is acquainted with the writing of the person who signed or wrote (Sec. 47).
Admission made by the person who signed or wrote the document made in judicial proceedings (Sec. 32, 33).
Evidence of a handwriting expert-opinion evidence/scientific evidence (Sec.45).
Evidence of a person who in routine has been receiving the document; or a document signed by such a person in the ordinary course of his business or official duty, though he may have never seen the author signing the document (Sec. 32, 34, 35 or 114).
Invoking (specific) presumptions under Sec. 79 to 90A.
Presumptions (general) under Sec. 114.
Circumstantial evidence: on probability or inferences (Sec. 114).
Court-comparison (Sec. 73).
Facts judicially noticeable (Sec. 56 and 57).
A fact of common-knowledge. (It does not require proof. See: Union Of India v. Virendra Bharti: 2011-2 ACC 886, 2010 ACJ 2353; Rakhal Chakraborty v. Sanjib Kumar Roy: 1998-1 GauLR 253, 1997-2 GauLT 705)
Internal evidence afforded by the contents of the document; a link in a chain of correspondence; recipient of the document. (Mobarik Ali Ahmed v. State of Bombay, AIR 1957 SC 857)
Certain Facts Need Not Be Proved
CHAPTER III of the Indian Evidence Act (Section 56 to 58) lays down ‘Facts Which Need Not Be Proved’. They are the following:
“56. Fact judicially noticeable need not be proved. –– No fact of which the Court will take judicial notice need be proved.
57. Facts of which Court must take judicial notice. –– The Court shall take judicial notice of the following facts: ––
(1) All laws in force in the territory of India;
(2) All public Acts passed or hereafter to be passed by Parliament of the United Kingdom, and all local and personal Acts directed by Parliament of the United Kingdom to be judicially noticed;
(3) Articles of War for the Indian Army, Navy or Air Force;
(4) The course of proceeding of Parliament of the United Kingdom, of the Constituent Assembly of India, of Parliament and of the legislatures established under any laws for the time being in force in a Province or in the States;
(5) The accession and the sign manual of the Sovereign for the time being of the United Kingdom of Great Britain and Ireland;
(6) All seals of which English Courts take judicial notice: the seals of all the Courts in India and of all Courts out of India established by the authority of the Central Government or the Crown Representative]; the seals of Courts of Admiralty and Maritime Jurisdiction and of Notaries Public, and all seals which any person is authorized to use by the Constitution or an Act of Parliament of the United Kingdom or an Act or Regulation having the force of law in India;
(7) The accession to office, names, titles, functions, and signatures of the persons filling for the time being any public office in any State, if the fact of their appointment to such office is notified in any Official Gazette;
(8) The existence, title and national flag of every State or Sovereign recognized by the Government of India;
(9) The divisions of time, the geographical divisions of the world, and public festivals, fasts and holidays notified in the Official Gazette;
(10) The territories under the dominion of the Government of India;
(11) The commencement, continuance and termination of hostilities between the Government of India and any other State or body of persons;
(12) The names of the members and officers of the Court, and of their deputies and subordinate offices and assistants, and also of all officers acting in execution of its process, and of all advocates, attorneys, proctors, vakils, pleaders and other persons authorized by law to appear or act before it;
(13) The rule of the road on land or at sea.In all these cases, and also on all matters of public history, literature, science or art, the Court may resort for its aid to appropriate books or documents of reference.
If the Court is called upon by any person to take judicial notice of any fact, it may refuse to do so unless and until such person produces any such book or document as it may consider necessary to enable it to do so.
Truth of Contents of Document Invoking ADMISSION
Truth of the contents of a document, can be established
(i) by oral evidence of one who can vouchsafe the same,
(ii) by invoking circumstantial evidence or ‘presumption’ or
(iii) by express admission by the other side.
Admission – Sections 17 to 21 of the Evidence Act
Admission is discussed, in Sections 17 to 21 of the Evidence Act. The general and important propositions on admission are the following:
An unambiguous and straightforward admission is the best evidence in a case.
An admission is not conclusive.
It can be explained as provided under Sec. 31 of the Evidence Act.
In many cases it may be conclusive; in some cases, it may shift the burden of proof.
Sec. 31 of the Evidence Act – Admissions are not conclusive proof, but may estop
Sec. 31 of the Evidence Act lays down that admissions are not conclusive proof, but may estop. It reads as under:
“31. Admissions not conclusive proof, but may estop – Admissions are not conclusive proof of the matters admitted, but they may operate as estoppels under the provisions hereinafter contained.”
Facts Admitted need not be Proved
Order VIII Rule 5 of the CPC lays down that a fact not specifically denied in written statement shall be taken to be admitted.
Admission isSubstantive Evidence
In Thiru John v. Returning Officer, AIR 1977 SC 1724, the Supreme Court held that it is well settled that a party’s admission is substantive evidence – proprio vigore.
But at the same time the Court, in its discretion, may require such fact to be proved and established.
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.”
Judicial Admissions,Stand on a Higher Footing
Admissions in pleadings are judicial admissions. They stand on a higher footing than evidentiary admissions.
They may give rise to ‘Foundation of Rights’.
They are fully binding on the party that makes them and constitute a waiver of proofs.
Evidentiary admissions are not conclusive by themselves and they can be shown to be wrong.
In Nagindas Ramdas v. Dalpatram Icharam, AIR 1974 SC 471, held that admissions in pleadings are judicial admissions under Section 58 of the Evidence Act. They are made by parties or their agents at or before the hearing of a case and stand on a higher footing than evidentiary admissions. Former class of admissions are fully binding on the party that makes them and constitute a waiver of proofs. They by themselves can be made the foundation of the rights of parties. On the other hand evidentiary admissions which are receivable at the trial as evidence are by themselves not conclusive and they can be shown to be wrong.
Document Exhibited in the Writ Petition as a ‘True Copy’ – Whether Admission
Can a document exhibited in the writ petition as a ‘true copy’ be marked in a civil court as an ‘admission’ – producing the certified copy of the writ petition; for example:
(i) a letter written by the Petitioner in the Writ Petition
(ii) a letter or a private document obtained to him (apparently original of the same is with the Petitioner)
(iii) copy of a Public Document.
The Answer is:
Yes, it can be ‘marked’ on ‘admission’.
The existence of the contents of the first and third documents (letter written by the Petitioner and copy of a Public Document) can be ‘presumed’ by the court, in the civil suit between the same parties, under Sec. 114, Evidence Act (which lays down a rebuttable presumption).
Note:
1. Sec. 58, Evidence Act says – Admitted facts need not be proved.
2. Certified copy of a public document need not be proved by a witness – Madamanchi Ramappa v. Muthalur Bojjappa, AIR 1963 SC 1633.
Though the existence of the second class of documents (original of which are apparently with the Writ-Petitioner) can be presumed, if truth of contents of those documents is in question or denied the adverse party, it has to be proved independently .
Note: Proviso to Sec. 58 Evidence Act reads as under:
“Provided that the Court may, in its discretion, require the facts admitted to be proved otherwise than by such admissions.”
Also Note: Normally the documents relied of in the Writ petition will not be denied by the petitioner therein.
Admission is a Mode of Proof; ‘Facts Admitted Need Not be Proved’
Usually, a document is proved through its author, or through a witness or a person acquainted with handwriting. Concession or admission by the opposite side is an acceptable form of proving documents in evidence (under Sec. 17, 21, 58, 59 Evidence Act). ‘Truth of the contents’ of documents can also be established by concession or admission from the other side (“at the hearing”). Sec. 58, Evidence Act reads as under:
“58. Facts admitted need not be proved: No fact need be proved in any proceeding which the parties thereto or their agents agree to admit at the hearing, or which, before the hearing, they agree to admit by any writing under their hands, or which by any rule or pleading in force at the time they are deemed to have admitted by their pleadings:
Provided that the Court may, in its discretion, require the facts admitted to be proved otherwise than by such admissions.”
Sec. 58 says that no fact need be proved in any proceeding in three circumstances:
the parties or their agents agree to admit at the hearing
before the hearing, they agree to admit by any writing under their hands
by any rule of pleading they are deemed to have admitted by their pleadings.
Admissions are Substantive Evidence by themselves
In Bharat Singh v. Bhagirathi, AIR 1966 SC 405: [1966] 1 SCR 606, it was observed as under:
“Admissions are substantive evidence by themselves, in view of ss. 17 and 21 of the Indian Evidence Act, though they are not conclusive proof of the matters admitted. We are of opinion that the admissions duly proved are admissible evidence irrespective of whether the party making them appeared in the witness box or not and whether that party when appeared as witness was confronted with those statements in case it made a statement contrary to those admissions. The purpose of contradicting the witness under s. 145 of the Evidence Act is very much different from the purpose of proving the admission. Admission is substantive evidence of the fact admitted while a previous statement used to contradict a witness does not become substantive evidence and merely serves the purpose of throwing doubt on the veracity of the witness. What weight is to be attached to an admission made by a party is a matter different from its use as admissible evidence.”
Bharat Singh v. Bhagirathi is Quoted/referred to in:
Dipakbhai Jagdishchandra Patel v. State Of Gujarat, AIR 2019 SC 3363; 2019-16 SCC 547.
Union Of India v. Moksh Builders And Financiers Ltd., 1977 AIR SC 409; 1977-1 SCC 60.
Bishwanath Prasad v. Dwarka Prasad AIR 1974 SC 117, 1974-1 SCC 78
Priya Bala Ghosh v. Suresh Chandra Ghosh, AIR 1971 SC 1153; 1971-1 SCC 864.
Judgment on Admissions: Order XII Rule 6
Order XII Rule 6 of the Code of Civil Procedure 1908 reads as under:
“6. Judgment on admissions – (1) Where admissions of fact have been made either in the pleading or otherwise; whether orally or in writing, the Court may at any stage of the suit, either on the application of any party or of its own motion and without waiting for the determination of any other question-between the parties, make such order or give such judgment as it may think fit, having regard to such admissions.
(2) Whenever a judgment is pronounced under sub-rule (1) a decree shall be drawn up in accordance with the judgment and the decree shall bear the date on which the judgment was pronounced.”
In Karam Kapahi v. Lal Chand Public Charitable Trust, (2010) 4 SCC 753, after considering Uttam Singh Duggal & Co. Ltd. v. United Bank of India, (2000) 7 SCC 120, the Supreme Court pointed out that Order 12 Rule 6 of CPC is not limited to admissions contained in pleadings. The Supreme Court held in Karam Kapahi as follows:
“40. If the provision of Order 12 Rule 1 is compared with Order 12 Rule 6, it becomes clear that the provision of Order 12 Rule 6 is wider inasmuch as the provision of Order 12 Rule 1 is limited to admission by “pleading or otherwise in writing” but in Order 12 Rule 6 the expression “or otherwise” is much wider in view of the words used therein, namely: “admission of fact … either in the pleading or otherwise, whether orally or in writing”.
41. Keeping the width of this provision (i.e. Order 12 Rule 6) in mind this Court held that under this Rule admissions can be inferred from the facts and circumstances of the case (see Charanjit Lal Mehra v. Kamal Saroj Mahajan [(2005) 11 SCC 279] , SCC at p. 285, para 8). Admissions in answer to interrogatories are also covered under this Rule (see Mullas’s Commentary on the Code, 16th Edn., Vol. II, p. 2177).
xxx xxx xxx
47. Therefore, in the instant case even though statement made by the Club in its petition under Section 114 of the Transfer of Property Act does not come within the definition of the word “pleading” under Order 6 Rule 1 of the Code, but in Order 12 Rule 6 of the Code, the word “pleading” has been suffixed by the expression “or otherwise”. Therefore, a wider interpretation of the word “pleading” is warranted in understanding the implication of this Rule. Thus the stand of the Emphasis supplied.
Club in its petition under Section 114 of the Transfer of Property Act can be considered by the Court in pronouncing the judgment on admission under Order 12 Rule 6 in view of clear words “pleading or otherwise” used therein especially when that petition was in the suit filed by the Trust.” (Quoted in: Rattan India Power Ltd. vs Bharat Heavy Electricals Ltd. (Delhi) 6 March, 2025).
“Hearing” Partakes ‘recording evidence’
Legal implication of the term ‘hearing’ is clear from Rule 2 (1) of Order XVIII (Hearing of the suit and examination of witnesses) of the CPC – that is, hearing partakes ‘recording evidence’. Rule 2 (1) reads as under:
“2. Statement and production of evidence – (1) On the day fixed for the hearing of the suit or on any other day to which the hearing is adjourned, the party having the right to begin shall state his case and produce his evidence in support of the issues which he is bound to prove.”
Judicial Admissions and Admissions in Pleadings
In Nagindas Ramdas v. Dalpatram Iccharam, AIR 1974 SC 471, it was held by the Supreme Court as under:
“26. Admissions if true and clear are by far the best proof of the facts admitted. Admissions in pleadings or judicial admissions admissible under Section 58 of the Evidence Act, made by the parties or their agents at or before the hearing of the case, stand on a higher footing than evidentiary admission. The former class of admissions are fully binding on the party that makes them and constitute a waiver of proof. They by themselves can be made the foundation of the rights of the parties. On the other hand evidentiary admissions which are receivable at the rival as evidence are by themselves not conclusive. They can be shown to be wrong.” (Quoted in: Sangramsinh P. Gaekwad v. Shantadevi P. Gaekwad: AIR 2005 SC 809, 2005 (11) SCC 314.)
See also:
Biswanath Prasad v. Dwarka Prasad, AIR 1974 SC 117,
Steel Authority of India Ltd v. Union of India, AIR 2006 SC 3229, 2006 (12) SCC 233,
Union of India v. Pramod Gupta, (2005) 12 SCC 1.
Admission of Contents of Documents
Admission may dispense with proof; but probative value may be less or nil.
Admissibility & probative value – two matters.
In State of Bihar v. Radha Krishna Singh, AIR 1983 SC 684, it is observed by our Apex Court as under:
“Admissibility of a document is one thing and its probative value quite another—these two aspects cannot be combined. A document may be admissible and yet may not carry any conviction and weight or its probative value may be nil.”
Secondary Evidence – Marked without Objection – Court Examines Probative Value
It is well settled that if a party wishes to lead secondary evidence, the Court is obliged to examine the probative value of the document produced in the Court or their contents and decide the question of admissibility of a document in secondary evidence [Rakesh Mohindra v. Anita Beri: 2015 AIR(SCW) 6271; Kaliya v. State of MP: 2013-10 SCC 758; H. Siddiqui v. A. Ramalingam: AIR 2011 SC 1492; Rasiklal Manikchand v. MSS Food Products: 2012-2 SCC 196].
See Notes below under the heading –
“Court examines probative value of secondary evidence”
Court Has Obligation to Decide Admissibility of Secondary Evidence
As shown above, it is held in Kaliya v. State of MP: 2013-10 SCC 758 (relying on H. Siddiqui v. A. Ramalingam: AIR 2011 SC 1492, and Rasiklal Manikchand v. MSS Food Products: 2012-2 SCC 196) that the court is obliged to decide the question of admissibility of a document in secondary evidence.
In H. Siddiqui v. A. Ramalingam: AIR 2011 SC 1492 it is held as under:
“12. The provisions of Section 65 of the 1872 Act provide for permitting the parties to adduce secondary evidence. However, such a course is subject to a large number of limitations. In a case where the original documents are not produced at any time, nor has any factual foundation been laid for giving secondary evidence, it is not permissible for the court to allow a party to adduce secondary evidence. Thus, secondary evidence relating to the contents of a document is inadmissible, until the non-production of the original is accounted for, so as to bring it within one or other of the cases provided for in the section. The secondary evidence must be authenticated by foundational evidence that the alleged copy is in fact a true copy of the original. Mere admission of a document in evidence does not amount to its proof. Therefore, the documentary evidence is required to be proved in accordance with law. The court has an obligation to decide the question of admissibility of a document in secondary evidence before making endorsement thereon. (Vide Roman Catholic Mission v. State of Madras [AIR 1966 SC 1457] , State of Rajasthan v. Khemraj [(2000) 9 SCC 241 : AIR 2000 SC 1759] , LIC v. Ram Pal Singh Bisen [(2010) 4 SCC 491 : (2010) 1 SCC (L&S) 1072 : (2010) 2 SCC (Civ) 191] and M. Chandra v. M. Thangamuthu [(2010) 9 SCC 712 : (2010) 3 SCC (Civ) 907])”.
H. Siddiqui v. A. Ramalingam is followed in U. Sree v. U. Srinivas: AIR 2013 SC 415
Documents Marked by Consent – Does Oral Evidence Need to Prove Contents
There are three different views on this matter. They are-
1. There must be oral evidence. Even if consent is given for marking the documents, it will only absolve the parties from formally proving the documents and nothing beyond that. That is, though documents are marked by consent, they could not be relied on unless there is no oral evidence to prove their contents.
2. Document stands proved. When documents are marked by consent, there is no further need for a formal proof of the documents, it would amount to proof of whatever the documents contained.
3. If truth is in question it should be specifically proved by proper evidence. In most of the cases, the truth may not remain in question if the contents thereof are proved. But, in rare occasions, even if contents of documents are proved, truth thereof may remain (expressly or implicitly) in question or unrevealed.
If No Objection, Can a Photocopy of Document be Marked?
Yes.
It would not be legitimate for the court to refrain from exhibiting a relevant document which could be received in evidence on the (express or implied) concession or admission of the opposite side (as regards mode of proof, including production of a photocopy), in the scheme of our Procedure Codes and Evidence Act.
In Kalita Iqbal Basith v. N Subbalakshmi, (2021) 2 SCC 718, our Apex Court considered admission of a photocopy of an official document, in the following factual matrix:
The failure to produce the originals or certified copies of other documents was properly explained as being untraceable after the death of the brother of P.W.1 who looked after property matters.
The attempt to procure certified copies from the municipality was also unsuccessful as they were informed that the original files were not traceable.
The photocopies were marked as exhibits without objection.
The respondents never questioned the genuineness of the same.
Despite the aforesaid, and the fact that these documents were more than 30 years old, were produced from the proper custody of the appellants along with an explanation for nonproduction of the originals, they were rejected (by the High Court) without any valid reason holding that there could be no presumption that documents executed by a public authority had been issued in proper exercise of statutory powers.
In this premises the Supreme Court held as under:
“This finding in our opinion is clearly perverse in view of Section 114(e) of the Indian Evidence Act 1872, which provides that there shall be a presumption that all official acts have been regularly performed. The onus lies on the person who disputes the same to prove otherwise.”
Delhi High Court held in Sumita @ Lamta v. Devki, (Valmiki J.Mehta, J.), 25 Sep 2017 (Indiakanoon), as under:
“…. it is conceded by the counsel for the appellants/defendants that before commencement of cross-examination of PW-1 and PW-2 there was no objection raised that the Will cannot be proved inasmuch as the Will only is a photocopy.Once no objection is raised to the mode of proof on account of lack of original, then now the objection cannot be raised to the mode of proof as the objection to the mode of proof stands waived in view of the ratio as laid down in the judgment of the Supreme Court in the case of R.V.E. Venkatachala Gounder Vs. Arulmigu Viswesaraswami & V.P. Temple and Another, (2003) 8 SCC 752.”
Can the Court Refrain from Marking Documents for no Formal Proof?
No.
Relevant and Admissible Documents have be received in evidence ‘Subject to Proof’ or ‘Subject to Objection’?
In M. Siddiq v. Mahant Suresh Das, (Ayodhya Case), 2020-1 SCC 1, the practice of marking documents “subject to objection and proof” was referred to as under:
“539. On 7 February 2002, counsel for the plaintiffs in Suit 5 filed a report dated 3 February 2002 before the High Court of Dr K V Ramesh, pertaining to the “Ayodhya Vishnu Hari temple inscription”. The documents were taken on record “subject to objection and proof” as required by the provisions of the Evidence Act 1872. During the course of the trial, the plaintiffs of Suit 5 claimed that the above inscription was recovered on 6/7 December 1992 from the debris of the disputed structure which was demolished. The inscription is in stone with a dimension of 115cm X 55cm. Under the orders of the Court, an e-stampage (paper no. 203 C- 1/1) was prepared and was deciphered by Dr K V Ramesh (OPW-10) who is an epigraphist. The translation of the text was marked as Exhibit 2 in Suit 5. The case of the plaintiffs is that there was a Vishnu Hari temple at the site in dispute and it was on the demolition of the temple that a mosque was constructed in its place. In this segment, the inscription forms the fulcrum of the submission.”
In Uttaradi Mutt v. Raghavendra Swamy Mutt, 2018 0 AIR(SC) 4796; 2018-10 SCC 484,it is obserd as under:
“As regards this plea, we find that the High Court has made it amply clear that the fact that the applications are allowed per se is not to give any direction to straightaway exhibit the additional documents, but that it could be exhibited subject to proof. The High Court has unambiguously observed that the documents will have to be proved in accordance with law. We make it amply clear that by allowing the three applications filed by the respondent/defendant under Order XLI Rule 27 of CPC, it would not follow that the additional documents/additional evidence can be straightaway exhibited rather, the respondent would have to not only prove the existence, authenticity and genuineness of the said documents but also the contents thereof, as may be required by law.”
In Jarnail Singh v. State of Punjab, AIR 2022 SC 3350: 2022-10 SCC 451, acquitting the accused it is held as under:
“13. From the above statements of the Inspecting Team, they failed to firstly prove the recovery of the tickets to have been validly made. Secondly, they also failed to prove the enquiry report as only a photocopy was filed and objections to the same was recorded in the statement itself, that the same would be exhibited subject to proof of the existence of the documents in original and loss thereof. The prosecution did not make that effort to prove the existence of the original and loss thereof in order to take an order for leading secondary evidence.”
The practice of exhibiting documents ‘subject to proof and relevancy’ is referred to in Ameer Minhaj v. Dierdre Elizabeth (Wright) Issar, 2018-7 SCC 639, and State of Bihar v. P. P. Sharma, AIR 1991 SC 1260: 1992 Supp1 SCC 222.
In Rajathi v. Arukkani Ammal, 2001-3 CTC 34; 2001-2 MLJ 364 it is held by F.M. Ibrahim Kalifulla, J., as under:
“Therefore, there should not be any impediment for the court below to receive the document in question subject to the proof of the said document, so as to rely upon the same at later point of time, I am of the view that to reject the receipt of the very document at the threshold, under the facts and circumstances of the case is totally unjustified and not in accordance with law. In fact as contended by the learned counsel for the petitioner, the court below unfortunately concentrated it’s whole attention towards the validity of the said document, instead of finding out as to whether it could be received as secondary evidence under Section 65(a) of the Indian Evidence Act. The mere receipt of the said document subject to the proof as rightly contended by the learned counsel for the petitioner would not, in any way, cause prejudice to the respondent.
4. In the result, this revision petition is allowed. The order impugned in this petition is set aside. The court below is directed to receive of it the document, subject to proof by the petitioner in the manner known to law.”
Court’s Jurisdiction to Require to Prove an Admitted Document
The principles in the proviso to Sec. 58 Evidence Act (that the Court may, in its discretion, require the facts admitted to be proved otherwise than by such admissions) apply to category of documents that require specific evidence as to proof of its contents (other than the mere statements in the document).
See: Kaliya v. State of MP: 2013 10 SCC 758; Rakesh Mohindra v. Anita Beri: 2015 AIR SCW 6271.
In any case, besides the powers of the court under Sec. 165 of Evidence Act, the scheme of the Procedural Acts (Evidence Act, CPC and CrPC) shows that the court has jurisdiction to require the party concerned to prove that document. We can see it in Sec. 58 of Evidence Act, Order XII, Rule 2A Proviso of the CPC and Sec. 294 of the CrPC .
Section 294 of Code of Criminal Procedure reads as follows:
“294. No formal proof of certain documents. (1) Where any document is filed before any Court by the prosecution or the accused, the particulars of every such document shall be included in a list and the prosecution or the accused, as the case may be, or the pleader for the prosecution or the accused, if any, shall be called upon to admit or deny the genuineness of each such document.
(2) The list of documents shall be in such form as may be prescribed by the State Government.
(3) Where the genuineness of any document is not disputed, such document may be read in evidence in any inquiry, trial or other proceeding under this Code without proof of the signature of the person to whom it purports to be signed:
Provided that the Court may, in its discretion, require such signature to be proved.”
Document Marked for Mere Identification
In most cases when a document is admitted in evidence and marked as an Exhibit, proof of its contents stand admitted; so also its truth. But, if it is evident that it is admitted for mere identification (e.g. when there is already an issue or pleading as to genuineness of a document) it cannot be taken as proved, even if no objection is raised as to marking by the opposite side.
This principle applies to category of documents that require specific evidence as to proof of its contents, apart from the mere statements in the document itself.
Relevancy Stand on Another Footing
In Pandappa Mahalingappa v. Shivalingappa Murteppa, AIR 1946 Bombay 193, it is observed as under:
“As held in 10 L.A. 79 and 5 Bom. L.R. 708 the discretion exercised by the trial Court in admitting secondary evidence on the ground that the original is lost should not be interfered with in appeal. But it is urged that the certified copy should not have been exhibited without proof of the execution. From the application (Ex.66) and the roznama it appears that the trial Court exhibited it under S. 90, Evidence Act, on the ground that it was more than 30′ years old. In the lower appellate court the admissibility of the document does not appear to have been challenged. It is urged that as held in 44 Bom. 192 the erroneous omission before the lower Courts to object to the admission of evidence does not make that evidence relevant. The principle of that ruling, however, applies only where the document is per se irrelevant or inadmissible and no objection was taken to its admissibility: 8 Pat. 788. Where evidence is admitted in the trial Court without any objection to its reception, and the evidence is admissible and relevant, then no objection will be allowed to be taken to its reception at any stage of the litigation on the ground of improper proof. But if the evidence is irrelevant or inadmissible, as for instance, owing to want of registration, omission to take objection to its reception does not make it admissible, and the objection may be raised even in appeal for the first time; 28 L.A. 106. As observed by Das J. in A.L.R. 1922 Pat. 122 “the question of relevancy is a question of law and can be raised at any stage, but the question of proof is a question of procedure, and is capable of being waived.“
In this case the secondary evidence of the mortgage-deed was held to be admissible as the original was lost. What is now urged is that the execution should have been proved and this objection was not raised either in the trial Court or in the lower appellate Court. It is however true that no evidence was adduced to prove the execution of the original of Ex.68 as the trial Court was prepared to raise the presumption in favour of the genuineness of the document under S. 90, Evidence Act. Whether such a presumption can be raised or not is a question of law, and it can, therefore, be urged at any stage of the litigation. It is now well settled by the ruling of the Privy Council in 37 Bom. L.R. 805 that the statutory presumption under S. 90, Evidence Act, cannot be made in respect of a document merely on production of its copy under S. 65 of the Act. Their Lordships observed (p. 811) “Section 90 clearly requires the production to the Court of the particular document in regard to which the Court may make the statutory presumption. If the document produced is a copy, admitted under S.65 as secondary evidence, and it is produced from proper custody, and is over 30 years old, then the signatures authenticating the copy may be presumed to be genuine.”
Effect of marking a document without formal proof on admission (or without objection) is also a subject of controversy.
Effect of Marking Documents Without Objection
Effect of marking a document without formal proof, or on admission (or without objection), is also a subject of controversy.
First view (a) Proof (Contents and ‘Truth of its Contents’) stands established. It cannot be questioned afterwards.
(b) Truth also: See: Rafia Sultan v. Oil And Natural Gas Commission, 1986 ACJ 616; 1985-2 GujLR 1315.
(c) Admission of contents – but, does not dispense with proof of truth of its contents.
a)RVE Venkatachala Gounder v. Arulmigu Viswesaraswami: AIR 2003 SC 4548; (b) Rafia Sultan v. Oil And Natural Gas Commission (I.C. Bhatt, S.B. Majmudar, JJ.), 1985-2 GujLR 1315: No objection about the truth of contents … before the trial Court. … It is therefore too late in the day for Miss Shah for the Commission to canvass for the first time before us in appeal. Neeraj Dutta Vs. State (Govt. of N.C.T. of Delhi) reported in [2023] 4 SCC 731: If no objection as to its mode of proof , no such objection could be allowed to be raised at any later stage. (c) Sait Tarajee Khimchand v. Yelamarti Satyam, AIR 1971 SC 1865; Nandkishore Lalbhai Mehta v. New Era Fabrics, AIR 2015 SC 3796.
Second View Even if no objection, it does not dispense with proof (as to, both, existence of the document and its truth).
(Note: It may not be legitimate to apply this principle literatim)
M. Chandra v. M. Thangamuthu, 2010-9 SCC 712 (Foundational evidence as to secondary evidence essential); LIC v. Ram Pal Singh Bisen: 2010-4 SCC 491 (Filing of the Inquiry Report or the evidence adduced during the domestic enquiry); Birad Mal Singhvi v. Anand Purohitb: 1988 (Supp) SCC 604 (date of birth).
Third view If truth is in issue, mere proof of contents, or marking without objection, is not proof of truth.
See: Narbada Devi Gupta v. Birendra Kumar Jaiswal, 2003-8 SCC 745; Ramji Dayawala Vs. Invest Import: AIR 1981 SC 2085.
Fourth view Admission of contents, and dispenses with proof and truth; but its probative value will be a matter for appreciation by court.
See: State of Bihar v. Radha Krishna Singh, AIR 1983 SC 684 (Admission and probative value – different); Rakesh Mohindra v. Anita Beri: 2015 AIR(SCW) 6271; Kaliya v. State of MP: 2013-10 SCC 758; H. Siddiqui v. A. Ramalingam: AIR 2011 SC 1492; Rasiklal Manikchand v. MSS Food Products: 2012-2 SCC 196.
Fifth view Admission of contents, and dispenses with proof and truth; but Court should require (in proper cases) the party producing the document to adduce proper evidence, and to cure formal defects, invoking – • Sec. 165 of Evidence Act • Sec. 58 of Evidence Act • O. XII, r. 2A Proviso, CPC and • Sec. 294 of the CrPC.
See: Harkirat Singh v. Amrinder Singh, (2005) 13 SCC 511; Umesh Challiyil v. K.P. Rajendra, (2008) 11 SCC 740; KK Ramachandran Master v. MV Sreyamakumar, (2010) 7 SCC 428; AIR 2015 SC 3796.
Propositions Analysed
1. Marked Without Objection – Its ‘Contents’ Stand Proved, as Admission
(a) Admission, or exhibiting, of documents in evidence and proving the truth of its contents (veracity of the same) are two different processes. In certain cases, as comes out from Sec. 56, 57 and 58 of the Evidence Act, when a document is admitted, or marked without objection, separate proof need not be warranted. Similarly, separate proof may not be required when presumptions can be invoked (e.g. document in ordinary course of business, a letter obtained in reply).
When a document is marked without objection, its ‘contents’ stand proved. See: RVE Venkatachala Gounder v. Arulmigu Viswesaraswami: AIR 2003 SC 4548. See also:
Narbada Devi v. Birendra Kumar: (2003) 8 SCC 745
Dayamati Bai v. K.M. Shaffi : AIR 2004 SC 4082
Oriental Insurance Co v. Premlata: (2007) 8 SCC 575
Thimmappa Rai v. Ramanna Rai,(2007) 14 SCC 63.
Effect of marking document without objection is laid down in the following two recent decisions of the Supreme Court. In both these cases, it is seen, the Apex Court has taken the view that the ‘truth’ is also stood proved.
Neeraj Dutta v. State (Govt. of N. C. T. of Delhi)
The Constitution Bench of our Apex Court laid down in Neeraj Dutta v. State (Govt. of N. C. T. of Delhi), AIR 2023 SC 330; 2023 4 SCC 731, as under:
Section 61 deals with proof of contents of documents which is by either primary or by secondary evidence.
When a document is produced as primary evidence, it will have to be proved in the manner laid down in Sections 67 to 73 of the Evidence Act.
Mere production and marking of a document as an exhibit by the court cannot be held to be due proofof its contents. Its execution has to be proved by admissible evidence. On the other hand, when a document is produced and admitted by the opposite party and is marked as an exhibit by the court, … (sic – no objection can be raised at any later stage with regard to proofof its contents).
The contents of the document must be proved either by the production of the original document i.e., primary evidence or by copies of the same as per Section 65 as secondary evidence.
So long as an original document is in existence and is available, its contents must be proved by primary evidence.
It is only when the primary evidence is lost, in the interest of justice, the secondary evidence must be allowed.
Primary evidence is the best evidence and it affords the greatest certainty of the fact in question.
Thus, when a particular fact is to be established by production of documentary evidence, there is no scope for leading oral evidence.
What is to be produced is the primary evidence i.e., document itself. It is only when the absence of the primary source has been satisfactorily explained that secondary evidence is permissible to prove the contents of documents.
Secondary evidence, therefore, should not be accepted without a sufficient reason being given for non-production of the original.
Once a document is admitted, the contents of that document are also admitted in evidence, though those contents may not be conclusive evidence.
Moreover, once certain evidence is conclusive it shuts out any other evidence which would detract from the conclusiveness of that evidence.
There is a prohibition for any other evidence to be led which may detract from the conclusiveness of that evidence and the court has no option to hold the existence of the fact otherwise when such evidence is made conclusive.
It is held further as under:
“44. Section 64 of the Evidence Act states that documents must be proved by primary evidence except in certain cases mentioned above. ….. Thus, once a document has been properly admitted, the contents of the documents would stand admitted in evidence, and if no objection has been raised with regard to its mode of proof at the stage of tendering in evidence of such a document, no such objection could be allowed to be raised at any later stage of the case or in appeal vide Amarjit Singh v. State (Delhi Admn.) 1995 Cr LJ 1623 (Del) (“Amarjit Singh”). But the documents can be impeached in any other manner, though the admissibility cannot be challenged subsequently when the document is bound in evidence.”
In PC Thomas v. PM Ismail, AIR 2010 SC 905; 2009-10 SCC 239, it is observed as under:
“No objection on pleas of “inadmissibility” or “mode of proof” was raised at the time of their exhibition or any time later during trial, when most of the witnesses, produced by the parties were confronted with these, as duly exhibited, bearing stamp marking with particulars, prescribed under Order XIII Rule 4 of the Code of Civil Procedure, 1908 and duly signed as such.
In our opinion, it is too late in the day now to object to their exhibition on the ground of “prescribed procedure” i.e. mode of proof.
Moreover, we also find that it was nobody’s case that the said documents were got printed by John K or distributed amongst voters by him. Absence of proof of acknowledgment by him because of non production of John K as a witness, in the circumstances, in our view, is inconsequential.
Admittedly, John K was a well known leader of high stature, recognized as such by Christian/Catholic voters including those mentioned in Para 17 (supra) and, therefore, there is no question of drawing an adverse inference against the election petitioner for not examining him, as strenuously urged on behalf of the appellant, particularly when the printing and circulation of offending material (Exts.P1 and P2) has been proved by the election petitioner beyond reasonable doubt.”
Objection as to Truth of Contents, First Time In Appeal – Effect
In Rafia Sultan v. Oil And Natural Gas Commission (I.C. Bhatt, S.B. Majmudar, JJ.), 1986 ACJ 616; 1986 Guj LH 27; 1985-2 GujLR 1315 it is observed as under:
“It was never the case of the Commission that report which was submitted in a sealed cover was not the genuine and true report of the committee appointed by the Commission itself. Thus in short no objection about the truth of contents of Ex. 24/1 i. e. Ex. 32 was ever put forward before the trial Court and rightly so as that was the report of its own committee of experts appointed by the Commission for enlightening itself about the causes of the accident and about the future safety steps which were required to be taken to avoid such accidents. … Not only that but the witness of the defendant accepted the contents of the said document Ex. 32. Nothing was suggested by him or even whispered to the effect that the contents of the said report were in any way untrue. …. In fact both the sides have relied upon different parts of Ex. 32 in support of their rival contentions on the aspect of negligence and contributory negligence. It is therefore too late in the day for Miss Shah for the Commission to canvass for the first time before us in appeal that contents of Ex. 32 were not proved in accordance with law and hence the document was required to be taken off the record. It is now well settled that objection about mode of proof can be waived by a party and that such objection is raised by the party at the earliest opportunity in the trial Court such objection will be deemed to have been waived and cannot be permitted to be raised for the first time in appeal (vide P. C. Purushottamman v. S. Perumal AIR 1972 SC 608; Pandappa v. Shivlingappa 47 BLR. 962; and Gopaldas and another v. Shri Thakurli, AIR 1943 PC 83 at page 87 ). In view of this settled legal position the objection raised by Miss Shah against admissibility of Ex. 32 viz. that its contents were not proved in accordance with law has to be repelled.”
(b) Proof of Execution may not be Enough: Exhibiting of documents in evidence, without objection, and proving the same before the court are two different process.
In certain cases, as comes out from Sec. 56, 57 and 58 of the Evidence Act, when a document is admitted, separate proof need not be warranted. Separate proof may not be required when presumptions can be invoked (e.g. document in ordinary course of business, a letter obtained in reply).
(c) Factual foundation to give secondary evidence must be established:
Contents of documents are presented in two ways:
documents in original
(by way) of secondary evidence.
The party has to lay down the factual foundation to establish the right to give secondary evidence where the original document cannot be produced [Rakesh MohindraVs. Anita Beri: 2015AIR(SCW) 6271].
Secondary-evidence–Marked Without Objection – Objection stands waived. When the party gives in evidence a certified-copy/secondary-evidence without proving the circumstances entitling him to give secondary evidence, the opposite party must raise his objection (if so) at the time of admission of such documents. In case, an objection is not raised at that point of time, it is precluded from being raised at a belated stage. It stands waived. [Iqbal Basith v. N Subbalakshmi, (2021) 2 SCC 718;Kaliya v. State of MP: 2013-10 SCC 758]
2. Mere Marking – Not Dispense with Proof (of truth of contents)
Following are the often-cited cases on this subject.
The Proposition -Mere Marking Does Not Prove the Contents – was NOTapplied in the following decisions.
Decision
Did the Documents Mark without Proper Proof was accepted in evidence?
Reason for NOT Appling the Proposition Mere Marking Does Not Prove the Contents
Narbada Devi Gupta v. Birendra Kumar Jaiswal, 2003-8 SCC 745
Yes. The rent receipts were received in evidence. (without formal proof)
The rent receipts were ‘not disputed’ by the other side.
Kaliya v. State of Madhya Pradesh, 2013-10 SCC 758
Yes. The secondary evidence of dying declaration produced in this case was accepted by the Court.
Secondary evidence was adduced with foundational evidence (for producing copy; not original)
The Proposition -Mere Marking Does Not Prove the Contents – was applied in the following decisions; but, not unreservedly.
Decision
Did the proposition – Mere Marking Does Not Prove the Contents – unreservedlyapply?
Reason for NOT applying the Proposition Mere Marking Does Not Prove Contents, unreservedly
Ramji Dayawala v. Invest Import: AIR 1981 SC 2085
No. Truth of contents of a letter and two telegrams were not taken. (though marked)
Truth of the facts in the document was “in issue“
M. Chandra v. M. Thangamuthu, 2010-9 SCC 712
No. Validity and Genuineness of the Photocopy (of the Caste Certificate) was not accepted (though marked)
Validity and Genuineness of the Caste Certificate was very much in question
H. Siddiqui v. A. Ramalingam, (2011) 4 SCC 240
No. Contents of the Photocopy was not received as proof (though marked)
Photocopy was shown to the witness during cross-examination alone, and Signature alone was admitted by the witness.
Tarajee Khimchand v. Yelamarti Satyam, AIR 1971 SC 1865
No. Accounts of the Plaintiff was not received as proof (though marked)
The accounts of the Plaintiff would not be proved by itself
In Sait Tarajee Khimchand v. Yelamarti Satyam, AIR 1971 SC 1865, the Supreme Court observed that mere marking of documents (day book and ledger) as exhibits do not dispense with the proof of documents. In Nandkishore Lalbhai Mehta v. New Era Fabrics, AIR 2015 SC 3796, it is observed that mere marking as exhibit and identification of executor’s signature by one of witnesses do not prove contents of a document.
In Kaliya v. State of Madhya Pradesh (2013-10 SCC 758) it is held as under:
“Mere admission of a document in evidence does not amount to its proof. Nor, mere marking of exhibit on a document does not dispense with its proof, which is otherwise required to be done in accordance with law. (Vide: The Roman Catholic Mission v. The State, AIR 1966 SC 1457; Marwari Khumhar v. Bhagwanpuri Guru Ganeshpuri AIR 2000 SC 2629; RVE Venkatachala Gounder v. Arulmigu AIR 2003 SC 4548; Smt. Dayamathi Bai v. K.M. Shaffi, AIR 2004 SC 4082; and LIC of India v. Rampal Singh Bisen,2010-4 SCC 491).”
[Note: Further held: “In case, an objection is not raised at that point of time, it is precluded from being raised at a belated stage.”]
In Dibakar Behera v. Padmabati Behera, AIR 2008 Ori 92, it is observed [referring RVE Venkatachala Gounder v. Arulmigu Viswesaraswami, AIR 2003 SC 4548, Dayamati Bai v. K.M. Shaffi, 2004 SC 4082, Bhagyarathi Das v. Agadhu Charan Das, 62 (1986) CLT 298, Budhi Mahal v. Gangadhar Das, 46 (1978) CLT 287 etc.] that a close reading of the above judicial pronouncements would show that whenever a document is marked as exhibit without objection, it will be presumed that a party having right of objection has waived formal proof of the document and in such situation, the entire contents of the document would be admissible in evidence. How ever, by such admission of document, the truth and correctness of the contents by it self would not be established and there must be some evidence to support the contents of such document.
Secondary evidence relating to the contents of a document is inadmissible, until the non-production of the original is accounted for. The secondary evidence must be authenticated by foundational evidence that the alleged copy is in fact a true copy of the original. Mere admission of a document in evidence does not amount to its proof. Therefore, the documentary evidence is required to be proved in accordance with law.
The court has an obligation to decide the question of admissibility of a document in secondary evidence before making endorsement thereon. [H. Siddiqui v. A. Ramalingam: AIR 2011 SC 1492; Nandkishore Lalbhai Mehta v. New Era Fabrics: AIR 2015 SC 3796]
In Rakesh Mohindra v. Anita Beri [2015AIR(SCW) 6271] it is held:
“Mere admission of secondary evidence, does not amount to its proof. The genuineness, correctness and existence of the document shall have to be established during the trial and the trial court shall record the reasons before relying on those secondary evidences.”
Court can Reject Irrelevant or Inadmissible Documentat any stage
Order 13 Rule 3 CPC reads as under:
“Rejection of irrelevant or inadmissible documents. ― The Court may at any stage of the suit reject any document which it considers irrelevant or otherwise inadmissible, recording the grounds of such rejection.
Order 13 Rule 3 CPC speaks only as to irrelevant or inadmissible documents alone; and it is not applicable to a document which can be received in evidence on the concession or admission of the opposite side.
Objection to be Raised When document is admitted
It was observed by the Supreme Court in 2001 in Bipin Shantilal Panchal v. State of Gujarat, AIR 2001 SC 1158, that that ‘it is an archaic practice that during the evidence collecting stage, whenever any objection is raised regarding admissibility of any material in evidence the court does not proceed further without passing order on such objection’. And the Court directed as under:
“When so recast, the practice which can be a better substitute is this: Whenever an objection is raised during evidence taking stage regarding the admissibility of any material or item of oral evidence the trial court can make a note of such objection and mark the objected document tentatively as an exhibit in the case (or record the objected part of the oral evidence) subject to such objections to be decided at the last stage in the final judgment.”
But, the subsequent decisions in R.V.E. Venkatachala Gounder: AIR 2004 SC 4082; Dayamathi Bai (2004) 7 SCC 107 took a contra view. It was held that the objection as to ‘mode of proof’ should be taken at the time of marking of the document as an exhibit, so that the defect can be cured by the affected party.
In Re: To Issue Certain Guidelines Regarding Inadequacies And Deficiencies In Criminal Trials v. State of Andhra Pradesh, 2021-10 SCC 598, overruled (ruled – stood modified) Bipin Shantilal Panchal v. State of Gujarat, AIR 2001 SC 1158. It is directed as under:
“The presiding officer therefore, should decide objections to questions, during the course of the proceeding, or failing it at the end of the deposition of the concerned witness.”
It appears that the decision taken by a Magistrate to mark the document – “subject to objection” is improper; nevertheless, marking – “subject to proof” is a permissible action, for it is a “decision” ruled-down in In Re: To Issue Certain Guidelines Regarding Inadequacies And Deficiencies In Criminal Trials v. State of Andhra Pradesh, 2021-10 SCC 598.
Objection About Mode of Proof Can Be Waived
RVE Venkatachala v. Arulmiga Viswesaraswami & V.P. Temple: AIR 2004 SC 4082, is often relied on by the courts to establish the proposition – mode of proof can be waived..
In Sk. Farid Hussinsab v. State of Maharashtra, 1983 CrLJ 487, it was held as under:
“6. In civil cases mode of proof can be waived by the person against whom it is sought to be used. Admission thereof or failure to raise objection to their tendering in evidence amount to such waiver. No such waiver from the accused was permissible in criminal cases till the enactment of the present Code of Criminal Procedure in 1973…
Section 294(1) of the Code enables the accused also, to waive this mode of proof, by admitting it or raising no dispute as to its genuineness when called upon to do so under sub-section (1). Sub-section (3) enables the Court to read it in evidence without requiring the same to be proved in accordance with the Evidence Act. There is nothing in Section 294 to justify exclusion of it, from the purview of “documents” covered thereby. The mode of proof of it also is liable to be waived as of any other document.”
(Quoted in Sonu @ Amar v. State of Haryana, AIR 2017 SC 3441; 2017-8 SCC 570)
It is held in Rafia Sultan Widow of Mirza Sultan Ali Baig v. Oil And Natural Gas Commission (I.C.Bhatt, S.B. Majmudar, JJ.), 1986 GujLH 27; 1985-2 GujLR 1315, as under:
“It is now well settled that objection aboutmode of proof can be waived by a party and that such objection is raised by the party at the earliest opportunity in the trial Court such objection will be deemed to have been waived and cannot be permitted to be raised for the first time in appeal (vide P. C. Purushottamman v. S. Perumal AIR 1972 SC 608; Pandappa v. Shivlingappa 47 BLR. 962; and Gopaldas and another v. Shri Thakurli AIR 1943 PC 83 at page 87 ).”
3. IF ‘TRUTH’ IS IN ISSUE- Mere Marking Not Amounts to ‘Waiver’
The fundamental principles as to proof of a document is that the proof must be given by a person who can vouchsafe for the Truth of its contents (Narbada Devi Gupta v. Birendra Kumar Jaiswal, 2003-8 SCC 745).
It is legitimate to say that this requirement as to proof of ‘truth’ is independent from inviting ‘proof of signature and handwriting’ in Sec. 67 to 71 of the Evidence Act. This proposition is clear from Sec. 67, which lays down the fundamental principles as to the proof of documents. Sec. 67 reads as under:
“67. Proof of signature and handwriting of person alleged to have signed or written document produced—If a document is alleged to be signed or to have been written wholly or in part by any person, the signature or the handwriting of so much of the document as is alleged to be in that person’s handwriting must be proved to be in his handwriting.”
Though proof of execution (dealt with in Sec. 67 to 71) is independent from proof as to ‘truth’ of contents of a document, proof as to ‘truth’ can be presumed by the court, in most cases, on ‘proof of execution’. It is more so, when a document is admitted without objection. Proof as to ‘truth’ of contents is essential if ‘truth’ is in issue, or in dispute. It rarely occurs.
If ‘TRUTH’ is in issue, or in dispute,marking a document without objection, or mere proof of handwriting or execution,by itself, need not absolve the duty to prove the truth as to the contents of the documents. (Ramji Dayawala v. Invest Import, AIR 1981 SC 2085; Achuthan Pillai vs Marikar (Motors) Ltd., AIR 1983 Ker 81; Suresh v. Tobin, 2013-1 KerLT 293). Court has a duty to see that the statement of a witness gets independent corroboration, direct or circumstantial, in proper cases (Ahalya Bariha v. Chhelia Padhan, 1992 Cri.LJ 493).
In Ramji Dayawala Vs. Invest Import: AIR 1981 SC 2085, it us held as under:
“If the truth of the facts stated in a document is in issue mere proof of the handwriting and execution of the document would not furnish evidence of the truth of the facts or contents of the document. The truth or otherwise of the facts or contents so stated would have to be proved by admissible evidence, i.e. by the evidence of those persons who can vouchsafe for the truth of the facts in issue.”
Presumption on a registered document and undue influence under S. 16, Contract Act: In Lakshmi v. Muthusamy, 2012(1) CTC 53 it was contended that there was presumption on a registered document that the contents of the said document are true and genuine (Vimalchand Ghevarchand Jain v. Ramakant Eknath Jadoo, 2009-5 SCC 713, relied on). The Madras High Court (S. Nagamuthu, J.) rejected the argument for, there was another question – whether the plaintiff had discharged the burden of proving ‘absence of undue influence’ as contemplated in Section 16 of the Indian Contract Act which provided for the burden of proof of absence of undue influence. It was pointed out that once the initial burden of proving the position of the plaintiff to dominate the will of the defendant was discharged, the burden was shifted on the plaintiff to prove absence of undue influence. The Court found it not safe to rely on the evidence of the plaintiff alone to hold absence undue influence on the part of the plaintiff. The High Court relied on the Supreme Court decision in Krishnamohan Kul v. Pratima Maity, (2004) 9 SCC 468, where it was held as under:
“The onus to prove the validity of the deed of settlement was on Defendant 1. When fraud, mis-representation or undue influence is alleged by a party to the suit, normally, the burden is on him to prove such fraud, undue influence or mis-representation. But when a person is in a fiduciary relationship with another and the latter is in a position of active confidence the burden of proving the absence of fraud, mis-representation or undue influence is upon the person in the dominating position, and he has to prove that there was fair play in the transaction and that the apparent is the real, in other words, that the transaction is genuine and bona fide. In such a case, the burden of proving the good faith of the transaction is thrown upon the dominant party, that is to say, the party who is in a position of active confidence. A person standing in a fiduciary relation to another has a duty to protect the interest given to his care and the court watches with jealously all transactions between such persons so that the protector may not use his influence or the confidence to his advantage. When the party complaining shows such relation, the law presumes everything against the transaction and the onus is cast upon the person holding the position of confidence or trust to show that the transaction is perfectly fair and reasonable, that no advantage has been taken of his position. This principle has been ingrained in Section 111 of the Indian Evidence Act.”
If payment disputed, mere marking of a registered sale deed not sufficient. In Suresh CV v. Tobin, ILR 2013(1) Ker. 30: 2013-1 KLT 293, the Kerala High Court held that if payment of price for sale was disputed, such fact would not be proved by mere production and marking of a registered sale deed which stated or narrated the payment, and that it was necessary to adduce oral evidence to prove such fact. The Court relied on Ramji Dayawala Vs. Invest Import (AIR 1981 SC 2085) which held that if the truth of the facts stated in a document is in issue mere proof of the handwriting and execution of the document would not furnish evidence of the truth of the facts or contents of the document and that the truth or otherwise of the facts or contents so stated would have to be proved by admissible evidence i.e. by the evidence of those persons who can vouchsafe for the truth of the facts in issue.
4. Admission of Contents– May dispense with proof; but Probative Value may be less or nil
Admissibility & probative value – two matters. State of Bihar v. Radha Krishna Singh (AIR 1983 SC 684) it is observed:
“Admissibility of a document is one thing and its probative value quite another—these two aspects cannot be combined. A document may be admissible and yet may not carry any conviction and weight or its probative value may be nil.”
Court examines probative value of secondary evidence:
It is well settled that if a party wishes to lead secondary evidence, the Court is obliged to examine the probative value of the document produced in the Court or their contents and decide the question of admissibility of a document in secondary evidence, Rakesh Mohindra v. Anita Beri: 2015 AIR(SCW) 6271.
Contents of the document cannot be proved by mere filing the document in a court. Under the Law of Evidence, it is necessary that contents of documents are required to be proved either by primary or by secondary evidence. Mere marking a document as an ‘exhibit’ will not absolve the duty of to prove the documents in accordance with the provisions of the Evidence Act. At the most, marking ‘exhibit’may amount to proof of contents, but not its truth.
Documents which are not produced and marked as required under the Evidence Act cannot be relied upon by the Court.
See: LIC v. Ram Pal Singh Bisen: 2010-4 SCC 491 (Filing of the Inquiry Report or the evidence adduced during the domestic enquiry);
M. Chandra v. M. Thangamuthu, AIR 2015 SC 3796.
Nandkishore Lalbhai Mehta Vs.New Era Fabrics: AIR 2015 SC 3796;
Birad Mal SinghviVs. Anand Purohitb: 1988 (Supp) SCC 604 (date of birth)
Even when a document is technically admitted in court, the probative value thereof will always be a matter for the court to determine. That is, it is depended upon the nature of each case. The probative value of Scene-Mahazar, Postmortem Report, photocopy of a Registered Deed etc. without supporting legal evidence may be lesser. In such cases the court can refrain from acting upon such documents until regular evidence is tendered.
In Kaliya v. State of MP: 2013-10 SCC 758 (relying on H. Siddiqui v. A. Ramalingam: AIR 2011 SC 1492, and Rasiklal Manikchand v. MSS Food Products: 2012-2 SCC 196) held as under:
“The court is obliged to examine the probative value of documents produced in court or their contents and decide the question of admissibility of a document in secondary evidence.”
[Note: Further held: “In case, an objection is not raised at that point of time, it is precluded from being raised at a belated stage.”]
In Life Insurance Corporation of India v. Ram Pal Singh Bisen [2010-4 SCC 491], it is observed as under:
“26. We are of the firm opinion that mere admission of document in evidence does amount to its proof. In other words, mere marking of exhibit on a document does dispense with its proof, which is required to be done in accordance with law. …..27. It was the duty of the appellants to have proved documents Exh.-A-1 to Exh. A-10 in accordance with law. Filing of the Inquiry Report or the evidence adduced during the domestic enquiry would partake the character of admissible evidence in Court of law. That documentary evidence was also required to be proved by the appellants in accordance with the provisions of the Evidence Act, which they have failed to do.”
The Calcutta High Court quoting Life Insurance Corporation of India v. Ram Pal Singh Bisen, 2010-4 SCC 491, it is observed in Bajaj Allianz General Insurance Company v. Smt. Santa, 2019-2 ACC 36, that ‘even if the document had been marked as Exhibit-A without objection, without a formal proof thereof in accordance with the provisions of the Evidence Act, such document lost its credibility and is of no probative value’.
In Kalyan Singh, v. Chhoti, AIR 1990 SC 396, it is observed as under:
“A certified copy of a registered sale deed may be produced as secondary evidence in the absence of the original. But in the present case Ex. 3 is not certified copy. It is just an ordinary copy. There is also no evidence regarding content of the original sale deed. Ex.3 cannot therefore, be considered as secondary evidence. The appellate Court has a right and duty to exclude such evidence.”
5.Court should allow concerned party, to adduce proper evidence to prove documents
As stated in detail above, besides the powers of the court under Sec. 165 of Evidence Act, the scheme of the Procedural Acts shows that the court has jurisdiction to require the party concerned to prove that document. (Sec. 58 of Evidence Act and Order XII, Rule 2A Proviso of the CPC and Sec. 294 of the CrPC).
Defect for not producing a proper power of attorney being curable, in Haryana State Coop. Supply and Marketing Federation Ltd. v. Jayam Textiles, 2014 AIR SC 1926 (a case under Section 138 Negotiable instruments Act), the Apex Court gave opportunity to the petitioner to produce the authorization of Board of Directors. It is observed that the in Raj Narian v. Indira Nehru Gandhi, (1972) 3 SCC 850 it was held that the rules of pleadings are intended as aids for a fair trial and for reaching a just decision. This principle is reiterated in ever so many cases. They include:
F.A. Sapa v. Singora, (1991) 3 SCC 375;
H.D. Revanna v. G. Puttaswamy Gowda, (1999) 2 SCC 217;
V.S. Achuthanandan v. P.J. Francis, (1999) 3 SCC 737;
Mahendra Pal v. Ram Dass Malanger, (2000) 1 SCC 261;
Virender Nath Gautam v. Satpal Singh, (2007) 3 SCC 617 (observed that facta probanda (material facts) are to be set out in the pleadings and facta probantia (particulars or evidence) need not be set out in the pleadings);
Sardar Harcharan Singh Brar v. Sukh Darshan Singh, (2004) 11 SCC 196 (held that defective verification or affidavit is curable);
Harkirat Singh v. Amrinder Singh, (2005) 13 SCC 511;
Umesh Challiyil v. K.P. Rajendra, (2008) 11 SCC 740;
KK Ramachandran Master v. MV Sreyamakumar, (2010) 7 SCC 428; AIR 2015 SC 3796
In Shail Kumari v. Saraswati Devi, 96 (2002) DLT 131, it is observed as under:
“14. In case a document is marked exhibit without an objection from the party which is affected by that document ordinarily its admissibility cannot be questioned at a later stage of the proceedings in the suit. But in cases where such document is marked exhibit without due application of mind in violation of provisions of a statute requiring a particular mode of proof etc., the opposite party may still show during the hearing of final arguments that the document is inadmissible in evidence and should be excluded from consideration because of statutory bar or non-compliance of statutory requirement about mode of proof or otherwise. For instance a will is required to be proved by examining at least one of the attesting witnesses in accordance with Section 68 of the Evidence Act. A document which is inadmissible for want of registration or proper stamp is inadmissible in evidence, unless use of it is permissible for collateral purposes or extracts of accounts book without production of books of account and proof that they were kept in ordinary course of business. Mere putting of exhibits number on these documents in the absence of their proof in accordance with law does not make them part of the evidence to be read for deciding the suit.”
No Objection to Marking; If Court sees Deficiency, it should bring notice of it to counsel
In T.C. Lakshamanan v. Vanaja, ILR 2011-3 (Ker) 228; 2011-3 KHC 86; 2011-3 KLT 347, it is pointed out as under:
“There was no case for the respondent that before marking Ext.A1 any objection was raised as to the admissibility of Ext.A1. Since the affidavit was filed in lieu of chief-examination, through which documents were sought to be received in evidence, before starting cross examination the trial court has to record that an affidavit has been filed in lieu of chief examination and that such and such documents have been marked. It is not to be done mechanically. The Court has to apply its mind while marking the documents to ensure that those documents have been properly admitted in evidence. Simply because the counsel appearing for the other side did not raise any objection the Court is not absolved of its duty to see whether the marking of the documents was done correctly and whether any inadmissible documentwas sought to be admittedin evidence. If the Court finds that any inadmissible document, especially a document which cannot be admitted in evidence as it is unstamped or insufficiently stamped, is sought to be admitted, it should be brought to the notice of the counsel appearing for the parties and an order should be passed with regard to the same. It is not a case where the documents were tentatively marked, subject to objection regarding the admissibility and the ruling as to the admissibility of the same happened to be deferred, as it warranted a detailed argument. The Apex Court in the decision in 2000 (1) SC 1158 (Bipin Shantilal Panchal v. State of Gujarat) has held that such a procedure can be resorted to. Therefore, though document can be admitted tentatively reserving ruling on the admissibility to a later stage, in the case on hand no such objection was raised; on the other hand, it is argued by the learned counsel for the respondent that questions were put to PW1 with regard to the relevancy and other aspects of that document treating that document as having been properly admitted.”
When Execution of Will is Admitted, Should it be Proved?
Section 68 of the Evidence Act, 1872 mandates examination of one attesting witness at least to prove documents required by law to be attested (including Wills). When execution of a Will is ‘Admitted’ by the opposite side, should it be ‘Proved’?
There is difference of opinion.
Following latest decisions assuredly lay down that when execution of the will is ‘admitted’ by the opposite side, it need not be ‘proved’ as required in Sec. 68 (by examining at least one witness).
Boomathi v. Murugesan, 2023-2 Mad LJ 684 (DB)
P. Radha v. Irudayadoss, 2022 SCCOnline Mad 886
Rajeev Gupta v. Prashant Garg, 2022-1 All LJ 435.
Following decisions laid down that even when execution of a will was ‘admitted’ by the opposite side, it must have been ‘proved’ by examining at least one attesting witness.
S.R. Srinivas v. S. Padmavathamma, (2010) 5 SCC 274 – It is observed – the execution of a Will can be held to have been proved only when the statutory requirements for proving the Will are satisfied. Admission in the pleadings as to the Will can only be about the “making of the Will” and not the “genuineness of the Will”.
Vadakkayil Gopalan v. Vadakkayil Paru, (2013) 3 KerLT 69 –It is observed – proof of the Will by examining at least one witness was necessary (even if the Will has been admitted in the pleadings).
Poulose A. V. v. Indira M.R., 2010 (3) KerLT Suppl. 185 : ILR 2010 Ker.388 – It is observed – No distinction is drawn, by Sec. 68, between an admitted Will and a disputed Will in the mode of proof of execution; and therefore, in all cases in which the Will is set up the procedure prescribed in Sec. 68 will have to be followed.
Ramesh Verma v. Lajesh Saxena (2017) 1 SCC 257 – It is observed – the mandate of Section 68 of the Evidence Act has to be followed even in a case where the opposite party does not specifically deny the execution of the document in the written statement.
Sarada v. Radhamani, 2017 (2) KLT 327. In this decision, rendered in a ‘Refence’ to resolve the dispute in the question we discuss, the Kerala High Court (DB) referred all the above decisions. And, declared the following decisions, as Per Incuriam
Princelal G. v. Prasannakumari, 2009 (3) KerLT Suppl. 1342: ILR 2009 (3) Ker. 221 – It is observed – where the execution of the Will is expressly admitted, neither Section 68 nor its proviso is attracted obliging the propounder of the Will to prove due execution of the Will (for, admitted facts need not be proved: Sec. 58 of the Evidence Act).
Thayyullathil Kunhikannan v. Thayyullathil Kalliani, AIR 1990 Ker.226 – Relying on Order VIII Rule 5 C.P.C. and Sec. 58 of the Indian Evidence Act, it is held that when the execution of the Will is admitted, there will not be any requirement to prove the Will.
P. Malliga v. P. Kumaran, 2022 (2) LW 393, (Followed in Ranga Pillai v. Mannar Pillai, 2022, Mad) – It is held by the Madras High Court that a Will shall not be used as evidence until it is proved in the manner prescribed under Section 68 of the Evidence Act. The judge did not agree the view in P. Radha v. Irudayadoss, 2022 SCCOnline Mad 886. (Note: This decision, P. Malliga v. P. Kumaran, is overruled in Boomathi v. Murugesan, 2023-2 Mad LJ 684, DB)
S. 68 to be Followed, Even When the Opp. party does not Deny Execution
Sec. 68 of the Evidence Act reads as under:
“68. Proof of execution of document required by law to be attested—If a document is required by law to be attested, it shall not be used as evidence until one attesting witness at least has been called for the purpose of proving its execution, if there be an attesting witness alive, and subject to the process of the Court and capable of giving evidence:
Provided that it shall not be necessary to call an attesting witness in proof of the execution of any document, not being a will, which has been registered in accordance with the provisions of the Indian Registration Act, 1908 (16 of 1908), unless its execution by the person by whom it purports to have been executed is specifically denied.
In Ramesh Verma v. Rajesh Saxena, 2017-1 SCC 257, our Apex Court held as under:
“13. A will like any other document is to be proved in terms of the provisions of Sec. 68 of the Evidence Act and the Succession Act, 1925. The propounder of the will is called upon to show by satisfactory evidence that the will was signed by the testator, that the testator at the relevant time was in a sound and disposing state of mind, that he understood the nature and effect of the disposition and put his signature to the document on his own free will and the document shall not be used as evidence until one attesting witness at least has been called for the purpose of proving its execution. This is the mandate of Sec. 68 of the Evidence Act and the position remains the same even in a case where the opposite party does not specifically deny the execution of the document in the written statement.”
Effect of ‘Admission’ of Execution of Will (by the other side)
It may be pointed out that the Apex Court did not consider in this decision, Ramesh Verma v. Rajesh Saxena – what is the position when the opposite party expressly admit the execution of the document.
Boomathi v. Murugesan, 2023-2 Mad LJ 684 (DB)
It is held in a recent Division Bench decision in Boomathi v. Murugesan, 2023-2 Mad LJ 684, that the position will be different if the Will is ‘categorically’ and ‘clearly’ admitted. The Madras High Court referred Sec. 17 (Admission) and Sec. 58 (Facts admitted need not be proved) and came to the conclusion , Sec. 68 will not be attracted where the Will is “admitted” by the other side. The Division Bench held as under:
“23. First and foremost, it is to be borne in mind that before the Hon’ble Supreme Court in Jagdish Chand Sharma Vs. Narain Singh Saini [Dead] through Legal Representatives and Others, reported in 2015 [8] SCC 615, the validity of the Will was a core issue and the Hon’ble Supreme Court proceeded to discuss the law with regard to proof of a Will in accordance with the statute. In such context, the Hon’ble Supreme Court has held that the position with regard to proof of a Will remains the same even if the opposite party does not specifically deny execution of the same.
24. The above judgment has been followed by learned Single Judges of this Court in P. Malliga Vs. P. Kumaran reported in 2022 [2] LW 393 and Akkinirajan Vs. Maheswari and Others reported in 2023 [1] LW 72.
25. This Court draws the distinction between ‘specifically denied’, ‘not specifically denied’ and ‘admitted‘. The first two instances, namely, ‘specifically denied’ and ‘not specifically denied’, would fall within one category. Insofar as proof of a Will in both cases in this category, the Will would have to be necessarily proved by the propounder. However, where the opposite party categorically admits to the Will, the position would be certainly different. In India, we follow what is called the system ‘adversarial proceedings’, which is also followed in the British Courts. The foundation of this School is that parties before a Court would have to deal with facts in issue namely facts that are asserted and denied by the parties to the lis and the Court would proceed to adjudicate on such issues. When there is no dispute between the parties on certain matters, the Court would not venture to require proof of such admitted facts.”
“33. This Court has applied its mind to the various principles laid down by the Hon’ble Supreme Court as well as this Court and other High Courts, especially in the context of Sec. 68 of the Indian Evidence Act, proof of a Will where execution is not specifically denied and in cases where the execution is categorically admitted. The ratio laid down by the Hon’ble Supreme Court in Ramesh Verma’s case [cited supra] reported in 2017 [1] SCC 257, cannot be a precedent for the proposition where the opposite party clearly admits to the execution of the subject Will as in the instant case. Therefore, we are not in respectful agreement with the judgments in P. Malliga’s case(P. Malliga v. P. Kumaran, 2022 (2) LW 393) andAkkinirajan’s case (Akkinirajan Vs. Maheswari, 2023 [1] LW 72) following the ratio laid down by the Hon’ble Supreme Court in Jagdish Chand Sharma’s case. On the contrary, we approve the ratio laid down in P. Radha Vs. Irudayadoss and Others reported in 2022 SCC Online Mad 886 and Vanjiammal and Others Vs. Vidya and Others in the order dtd. 21/4/2017 made in CRP.[PD] No.3659/2013.”
The same view is taken in Rajeev Gupta v. Prashant Garg, 2022-1 All LJ 435. The court held as under:
“The admission were in the pleadings of the parties and therefore there was no requirement of proving the will in the present suit. Admittedly, the defendant Nos. 2 to 4/appellants have claimed their title through Ramesh Chand Garg who never disputed the validity of the will rather in the Original Suit No. 458 of 1992, he admitted its validity and therefore, the lower appellate court has rightly decreed the suit and held that the will was neither required to be proved in the present suit nor the filing of original will was necessary.”
Do General Provisions of S. 58 give way to Special Provisions of S. 68
Three views are possible:
First: Requirement of calling at lest one witness to prove those documents that requires attestation, remains the same even in a case where the opposite party expressly admit the execution of the document in the written statement.
Second: If the Will is (even impliedly) admitted, Sec. 68 need not be invoked.
Third: If only the Will is expressly admitted, then only there will be alleviation of burden laid down in Sec. 68.
In the light of the Apex Court decision in Ramesh Verma v. Rajesh Saxena, 2017-1 SCC 257, (that the position – as to proof of documents requires attestation – remains the same even in a case where the opposite party does not specifically deny the execution of the document in the written statement) it appears that the second view stated above (taken in Thayyullathil Kunhikannan v. Thayyullathil Kalliani, AIR 1990 Ker 226) is not sustainable.
But, the proposition of law in the third view above, applied in Boomathi v. Murugesan (supra), and other decisions (that the position – as to proof of documents requires attestation – will be different if the Will is “categorically admitted“), sounds good.
Authoritative Judicial Pronouncement is yet to be Arrived
It is also pertinent to note that the Kerala High Court, in Sarada v. Radhamani (supra), pointed out that the general provisions of Sect. 58 of the Evidence Act has ‘to give way to the special provisions’ of Sec. 68 of the Act; and it was remarked that there was no distinction between an ‘admitted Will’ and a ‘disputed Will’ as to the mode of proof.
It appears that the placing the doctrine of ‘specific provisions override general provisions‘ is rational; for, the following words in Sec. 68 places a ‘non-obstante clause’ –
“it shall not be used as evidence until one attesting witness at least has been called for the purpose of proving its execution”.
However, it will also be a forceful argument if one says that a section in the Evidence Act cannot be protected from certain fundamental principles of the Evidence Act which include ‘best evidence rule’, ‘admitted facts need not be proved’ etc., unless strong persuasive indications are laid down in the provision concerned. (It is also noteworthy that Sec. 68 does not proceed with a non-obstante clause.) In any event, the scheme of the Evidence Act shows that Chapter III (the beginning Chapter of Part II) which deals with “Facts Need Not be Proved”, is meant to govern the succeeding chapters including the Chapter V that deals with ‘Documentary Evidence’ wherein Sec. 68 is included.
It is also significant – Sec. 58 says that ‘Admitted facts need not be proved’; and Sec. 68 speaks as to “Proof of execution of document required by law to be attested” and that the attesting witness is called “for the purpose of proving its execution”. That is, the question of ‘proof’ under Sec. 68 does not arise if ‘execution of document’ has already been admitted by the other side.
Note: Proviso to Sec. 58 enables the court to require proof, despite the admission of the other side, if it finds proper. Proviso to Sec. 58 reads as under:
“Provided that the Court may, in its discretion, require the facts admitted to be proved otherwise than by such admissions.”
Therefore, an authoritative judicial pronouncement is yet to be arrived, taking note of various potential contentions in this regard.
INSUFFICIENTLY STAMPED DOCUMENTS
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
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.
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 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 AllLR 34; 2009-1 AWC 929).
The Supreme Court observed in Sri Venkoba Rao Pawar v. Sri S. Chandrashekar, AIR 2008 SCW 4829, that the collateral purpose/transaction must be independent of, or divisible from the transaction which requires registration.
UNREGISTERED DOCUMENTS – Effect of Marking Without Objection
Under section 49 of the Registration Act, if a document required to be registered is not registered, it is not admissible in evidence ; and such unregistered document can only be used as an evidence of collateral purpose.
With respect to Unregistered (Necessarily Registrable) Documents it is held by the Apex Court in K.B. Saha and Sons Private Limited v. Development Consultant Ltd, (2008) 8 SCC 564: AIR 2008 SC (Supp) 850, as under:
“34. From the principles laid down in the various decisions of this Court and the High Courts, as referred to here-in-above, it is evident that :
A document required to be registered is not admissible into evidence under section 49 of the Registration Act.
Such unregistered document can however be used as an evidence of collateral purpose as provided in the Proviso to section 49 of the Registration Act. ….”
In the light of the Supreme Court decision in K.B. Saha and Sons Private Limited , it appears that the observation of the Karnataka High Court in Nanda Behera v. Akhsaya Kumar Behera, 2017AIR (CC) 1893, that once the Court, rightly or wrongly, decides to admit the documents in evidence, so far as the parties are concerned, the matter is closed, is not applicable to unregistered (compulsorily registrable) documents.
However, the Calcutta High Court in Dipak Kumar Singh v. Park Street Properties (P) Limited, AIR 2014 Cal 167, distinguished K.B. Saha & Sons Private Limited, (2008) 8 SCC 564, and other decisions saying that ‘the question of admissibility of a document, which had been admitted in evidence, was not taken up for consideration’ in those decisions. The High Court relied on Javer Chand v. Pukhraj Surana, AIR 1961 SC 1655 (question as to admissibility on the ground that it has not been stamped), which held that once a document had been marked as an exhibit in a case and the trial had proceeded all along on the footing that the document was an exhibit in the case and had been used by the parties in examination and cross-examination of their witnesses, it was not open either to the trial court itself or to a court of appeal or revision to go behind that order.
The other decisions referred to and distinguished in Dipak Kumar Singh v. Park Street Properties (P) Limited are the following: Ram Kumar Das v. Jagdish Chandra Deo, Dhabal Deb: AIR 1952 SC 23, Satish Chand Makhan v. Govardhan Das Byas: (1984) 1 SCC 369, Anthony v. K.C. Ittoop: (2000) 6 SCC 394, Surya Kumar Manji v. Trilochan Nath: AIR 1955 Cal 495, Kunju Kesavan v. M.M. Philip: AIR 1964 SC 164, Prasanta Ghosh v. Pushkar Kumar Ash: 2006 (2) CHN 277.
Section 36 of the Stamp Act – Once admitted shall NOTbe called in question
Section 36 of the Stamp Act provides as under:
“36. Admission of instrument where not to be questioned – Where an instrument has been admitted in evidence such admission shall not except as provided in Section 61, be called in question at any stage of the same suit or proceeding on the ground that the instrument has not been duly stamped “.
Objection as tostamp, Not Judicial Order; be raised when Document Tendered
The Apex Court held in Javer Chand v. Pukhraj Surana, AIR 1961 SC 1655, as under:
“Where a question as to the admissibility of a document is raised on the ground that it has not been stamped, or has not been properly stamped, it has to be decided then and there when the document is tendered in evidence.
The Court has to judicially determine the matter as soon as the document is tendered in evidence and before it is marked as an exhibit in the case. …
Once a document has been marked as an exhibit in the case and the trial has proceeded all along on the footing that the document was an exhibit in the case and has been used by the parties in examination and cross-examination of their witnesses, S. 36 of the Stamp Act comes into operation. Once a document has been admitted in evidence, as aforesaid, it is not open either to the Trial Court itself or to a Court of Appeal or revision to go behind that order.
Such an order is not one of those judicial orders which are liable to be reviewed or revised by the same Court or a Court of superior jurisdiction.”
A document purporting to be an unregistered sale deed was marked as an Exhibit. The High Court directed that the aforesaid document should be de-marked and not be treated as an exhibit. The 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) as under:
“Once a document has been admitted in evidence, such admission cannot be called in question at any stage of the suit or proceedings on the ground that the instrument has not been duly stamped. Objection as to admissibility of a document on the ground of sufficiency of stamp, has to raised when the document is tendered in evidence. Thereafter, it is not open to the parties, or even the court, to reexamine the order or issue.”
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
Two forceful propositions stand paradoxical and incongruent
The following two forceful propositions stand paradoxical and incongruent.
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:
“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.””
Should 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.”
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).”
Is ‘Impounding’ totally Independent from ‘Admissibility’
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) 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.
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.”
Upshot
Inasmuch as (a) mere marking of a document on admission will not (invariably), amount to proof, or evidence of the contents of the document or its truth; (b) the probative value of a document ‘marked without objection’ may be low or nil, for want of proper proof; and (c) there is a formal defect to the document for it is a secondary evidence because it is produced without adducing ‘foundational evidence’, it is legitimate to say that before taking an adverse stance as to proof in this count, the court should give an opportunity to the party who relies on the document to cure the deficiency.
Right, Title and Interest Constitute a Legal Triplet
Right, Title and Interest constitute a legal triplet.* It signifies ownership. It is used in drafting deeds of transfer to denote ‘anything and everything’ in a property.
* Like – ‘signed, sealed and delivered’; ‘rest, residue and remainder’; ‘if, as and when’.
Right, Title and Interest
‘Right’ stands for ‘legal right’ in a property.
‘Title’ bespeaks legal recognition of ‘ownership’ in a property.
‘Interest’ manifests outcome of ownership with ‘right and title’, including enjoyment in all and whatsoever manner.
In short, each of the upshot of the triplet, ‘Right, Title and Interest’, enunciates same thing when used in property dealings, though they are not synonyms in language and in jurisprudence.
Right, Title and Interest Constitute a Legal Triplet
Right, Title and Interest constitute a legal triplet.* It signifies ownership. It is used in drafting deeds of transfer to denote ‘anything and everything’ in a property.
* Like – ‘signed, sealed and delivered’; ‘rest, residue and remainder’; ‘if, as and when’.
Title, Possession and Ownership Constitute a Signified Triangle
Title, Possession and Ownership upon a property constitute a legally signified triangle.
Because,
Title (recognition of ownership) with possession manifest absolute rights over a property.
One can prove his ownership and right to possess, by establishing his title.
‘Possession is Good against all but the True Owner’.
When title on a property is transferred, the ownership and the right to possess also stands transferred.
‘Title’ encompasses capacity of individual to exercise absolute right over property and to exclude others.
Even if a person has no physical possession over a property, he can continue title in various ways.
If the rightful owner did not come forward and assert his title within the period of limitation, his right may be extinguished and the person in (adverse) possession may acquire an absolute title.
Right, Title and Interest
‘Right’ stands for ‘legal right’ in a property.
‘Title’ bespeaks legal recognition of ‘ownership’ in a property.
‘Interest’ manifests outcome of ownership with ‘right and title’, including enjoyment in all and whatsoever manner.
What is Title?
The word ‘Title’ conveys the idea as to a distinctive name given to a book, artistic work, case-name etc., or status conferred upon a person.
‘Title’ is the legal expression of right to ownership in a property. Hence, in law, “Title is the legal way of saying you own a right to something.”
Therefore, owner of a land holds title to the property (Pilla Akkayyamma v. Channappa, ILR 2015 Kar 3841; 2016-1 Kar LR 432) and also title to the easements.
When title on a property is transferred, the ownership also stands transferred.
‘Title’ encompasses capacity of individual to exercise absolute right over property and to exclude others.
A person who has title over a property, even if, has no physical possession thereof, can continue title in various ways.
What is Title in Property Law?
In property law, “title” is the legal recognition of the right to own, use, and dispose of property. However, it is not foolproof evidence of ownership; it may be a ‘title to hold the property on lease‘ or ‘title to easement‘ also.
A title deed is evidence or a legal expression of ownership. Or, it represents ownership. But it does not represent unfailing ownership by itself.
The ownership is a bundle of rights (possession, control, exclusion, enjoyment, and disposition)
In short, each of the upshot of the triplet, ‘Right, Title and Interest’, enunciates same thing when used in property dealings, though they are not be synonyms in language and in jurisprudence.
It may be full (absolute) or limited (e.g., leasehold or subject to conditions).
Black’s Law Dictionary defines “title” in relation to property as under:
“Title is the means whereby the owner of lands has the just possession of the property.
The union of all the elements which constitute ownership.
Full independent and free ownership.
The right to or ownership in land: also, the evidence of such ownership. Such ownership may be held individually, jointly, in common, or in cooperate or partnership form.
One who holds vested rights in property is said to have title whether he holds them for his own benefits or for the benefit of another.” (Quoted in: Usha Tandon alias Usha Gopalan v. Lilavati H. Hiranandani, 1991 4 BomCR 422)
Why a Title Deed Is NOT Fool-proof
Because there may be-
Forgery or fraud.
Claims of adverse possession.
Lack of perfect title on the transferor.
Prior claims of encumbrances, liens, easements, etc.
Invalidity in law for not fulfilling formalities, such as want of registration, insufficiency of stamp, etc., or mistakes in land description, cloud on title, etc.
Torrens System
The Torrens system was introduced to safeguard property transactions. It was implemented through the Real Property Act, 1858, in South Australia, brought forward by Sir Robert Richard Torrens. This Act established the first formal land registry, marking the birth of the Torrens title as a legal framework.
Subsequently, it was used in –
New Zealand
Canada – In provinces like British Columbia and Ontario
United Kingdom – Land Registration Act 2002 reflects Torrens-like principles
United States – In some states (e.g., Minnesota, Massachusetts)
India – In some states like Maharashtra (digital property cards) Kerala (Directed to attach Survey Plans to registered deeds, for registration in some Sub Registries, on Torrens principles).
Property is the Sum of a Bundle or Aggregate of Rights
In Guru Datta Sharma v. State of Bihar, AIR 1961 SC 1684,
“Property, as a legal concept, is the sum of a bundle of rights and in the case of tangible property would include –
the right of possession,
the right to enjoy,
the right to destroy,
the right to retain,
the right to alienate and so on.”
Also in Pilla Akkayyamma v. Channappa, ILR 2015 Kar 3841; 2016-1 Kar LR 432)
In Jilubhai Nanbhai Khachar v. State of Gujarat, AIR 1995 SC 142, it is held as under:
“Property in the legal sense means an aggregate of rights which are guaranteed and protected by law.”
Title and Ownership – two sides of the same coin
‘Title’ is also said to be the expression or declaration of a legally recognised right to‘Ownership’ of real property. In simple terms, it is said to be the ‘evidence of ownership’ of property.
Conversely, lawful ‘Ownership’ of a real property entitles ‘Title’ to the owner.
Therefore, both Title and Ownership are said to be the two sides of the same coin.
“Title thereto” in Definition of ‘Prescriptive Easement’ in Easement Act
Sec. 15 Easement Act reads as under:
“15. Acquisition by prescription: Where …… a right of way or any other easement has been peaceably and openly enjoyed by any person claiming title thereto, as an easement and as of right, without interruption, and for twenty years, the right to such access and use of light or air, support, or other easement, shall be absolute.”
In Surendrasingh v. Phirosahah, AIR 1953 Nag. 205, a Division Bench (Sinha C.J. and Hidayatullah, J.) held that the pleadings in a case dealing with easement have to be very precise. Following passage was quoted from Peacock – “Law Relating to Easements in British India” Third Edn., at page 608:
“As an easement is not one of the ordinary rights of ownership, it is necessary that either Party claiming or relying on an easement should plead the nature of his title thereto so as clearly to show the origin of the right, whether it arises by statutory prescription, or express or implied grant, or the old common law method of a lost grant“. (quoted in: Ibrahimkutty Koyakutty v. Abdul Rahumankunju Ibrahimkutty, AIR1993 Ker 91, 1992 (1) Ker LT 775, (1993) ILR(Ker) 1 KER 331 (K.S. Paripoornan, J.)
No doubt, the words ‘title thereto‘ refers tile of ‘easement’ claimed; and the word ‘title’ was not used in the general sense now used (that is, absolute ownership) in the Indian Easements Act, 1882.
Following decisions refer this proposition –
Ramlal v. Tulsi Ram, 2014-3 CGLJ 369 (Chh),
Deo Kumar v. Kailash Chand, 2007-4 MPHT 151; 2008-1 MPLJ 123,
Patel Karshanbhai Bababhai v. Patel Bhaichandbhai Khushalbhai, 21 Jun 2001 (Guj),
Unnikrishnan v. Ponnu Ammal, AIR 1999 Ker 405,
Ibrahimkutty Koyakutty v. Abdul Rahumankunju Ibrahimkutty (K.S. Paripoornan, J.), AIR 1993 Ker 91, 1992 (1) Ker LT 775,
D. Ramanatha Gupta v. S. Razaack, AIR 1982 Kar 314,
Surendrasingh v. Phirosahah, (Sinha C.J. & Hidayatullah, J.), AIR 1953 Nag. 205,
Siti Kantapal v. Radha Gobinda Sen, AIR 1929 Cal. 542,
Sultan Ahamed v. Waliullah, (1912) 17 Indian Cases 22.
Rent Control Acts enacted by various States say – where the tenant denies the title of the landlord or claims right of permanent tenancy, the Rent Control Court shall decide whether the denial or claim is bona fide and if it records a finding to that effect, the landlord shall be entitled to sue for eviction of the tenant in a Civil Court.
It is definite that this provision does not speak about the “ownership”; but only ‘title as the landlord‘.
Original and Derivative Title
Jurisprudentially titles have been recognised in two categories. One, “the original” and another is “the derivative”. The “original title” is that which is created a de novo while the “derivative title” is that which transfer an already existing right to a new owner. Catching of fish is an original title of the right of ownership, whereas purchase of fish results in the purchase a derivative title. (Sukh Lal v. Ashok Kumar Raghuwansi, 2013-3 ALJ 82 ).
What is Ownership?
In Mysore Minerals Ltd. , M. G. Road, Bangalore v. Commissioners of Income-Tax, Karnataka, Bangalore, AIR 1999 SC 3185, our Apex Court went deep to explain what is ownership. It observed, referring various definitions, as under:
“What is ownership? The terms ‘own’, ‘ownership’, ‘owned’ are generic and relative terms. They have a wide and also a narrow connotation. The meaning would depend on the context in which the terms are used.
Black’s Law Dictionary (6th Edition) defines ‘owner’ as under :-
“Owner. The person in whom is vested the ownership, dominion, or title of property; proprietor. He who has dominion of a thing, real or personal, corporeal or incorporeal, which he has a right to enjoy and do with as he pleases, even to spoil or destroy it, as far as the law permits, unless he be prevented by some agreement or covenant which restrains his right.
The term is, however, a nomen generalissimum, and its meaning is to be gathered from the connection in which it is used, and from the subject-matter to which it is applied. The primary meaning of the word as applied to land is one who owns the fee and who has the right to dispose of the property, but the terms also included one having a possessory right to land or the person occupying or cultivating it.
The term “owner” is used to indicate a person in whom one or more interests are vested for his own benefit……..”
In the same Dictionary, the term ‘ownership’ has been defined to mean, inter alia, as –
“Collection of rights to use and enjoy property, including right to transmit it to others……… The right of one or more persons to possess or use a thing to the exclusion of others. The right by which a thing belongs to some one in particular, to the exclusion of all other persons. The exclusive right of possession, enjoyment or disposal; involving as an essential attribute the right to control, handle, and dispose.”
Dias on Jurisprudence (4th Edn., at p. 400) states :
“The position, therefore, seems to be that the idea of ownership of land is essentially one of the `better right’ to be in possession and to obtain it, whereas with chattels the concept is a more absolute one. Actual possession implies a right to retain it until the contrary is proved, and to that extent a possessor is presumed to be owner.”
Stroud’s Judicial Dictionary gives several definitions and illustrations of ownership. One such definition is that the ‘owner’ or ‘proprietor’ of a property is the person in whom (with his or her assent) it is for the time being beneficially vested, and who has the occupation, or control, or usufruct, of it; e.g., a lessee is, during the term, the owner of the property demised.
Yet another definition that has been given by Stroud is:
” “owner” applies to every person in possession or receipt either of the whole, or of any part, of the rents or profits of any land or tenement; or in the occupation of such land or tenement, other than as a tenant from year to year or for any less term or as a tenant at will.”
Salmond
Salmond explained “ownership” as that ‘denotes the relation between a person and an object forming the subject-matter of his ownership. It consists in a complex of rights, all of which are rights in rem, being good against all the world and not merely against specific persons. Though in certain situations some of these rights may be absent, the normal case of ownership can be expected to exhibit the following incidents’.
Salmond continued as under:
“Ownership, in its most comprehensive signification, denotes the relation between a person and any right that is vested in him. That which a man owns in this sense is in all cases a right.” (J. Deepak vs The Secretary To The Government (2021)
Salmond summed up the concept of ownership as under:
“Summing up the conclusion to which we have attained, we may define the rights of ownership in a material thing as the general, permanent and inheritable right to the uses of that thing.” (Quoted in: Mohd. Noor v. Mohd. Ibrahim, AIR 1995 SC 398)
Austin
Austin in his book Jurisprudence, 3rd Edn., page 817, defines the “right of ownership” as under:
“A right indefinite in point of user, unrestricted in point of disposition, and unlimited in point of duration over a determinate thing.” (Quoted in: Mohd. Noor v. Mohd. Ibrahim, AIR 1995 SC 398)
Incidence of Ownership
In Jilubhai Nanbhai Khachar v. State of Gujarat, 1995 AIR SC 142, it is held as under:
“42. Property in legal sense means an aggregate of rights which are guaranteed and protected by law. It extends to every species of valuable right and interest, more particularly, ownership and exclusive right to a thing, the right to dispose of the thing in every legal way, to possess it, to use it, and to exclude everyone else from interfering with it. The dominion or indefinite right of use or disposition which one may lawfully exercise over particular things or subjects is called property. The exclusive right of possessing, enjoying, and disposing of a thing is property in legal parameters. Therefore, the word ‘property’ connotes everything which is subject of ownership, corporeal or incorporeal, tangible or intangible, visible or invisible, real or personal; everything that has an exchangeable value or which goes to make up wealth or estate or status.” (Quoted in: Laljibhai Kadvabhai Savaliya v. State of Gujarat, AIR 2016 SC 4715)
It is observed, as to the theoretical concept of ‘ownership’, in Mohd. Noor v. Mohd. Ibrahim, AIR 1995 SC 398, as under:
“The theoretical concept of ‘ownership’, therefore, appears to be that a person can be considered to be owner if he has absolute dominion over it in all respects and is capable of transferring such ownership. Heritability and transferability are no doubt some of the many and may be most important ingredients of ownership. But they by themselves cannot be considered as sufficient for clothing a person with absolute ownership. Their absence may establish lack of ownership but their presence by itself is not sufficient to establish it.”
In Butterworth’s Words and Phrases Legally Defined, 2nd Edn., Vol. 4, page 61, ‘ownership’ has been defined as under:
“Ownership consists of innumerable rights over property, for example, the rights of exclusive enjoyment, of destruction, alteration, and alienation, and of maintaining and recovering possession of the property from all other persons. Such rights are conceived not as separately existing, but as merged in one general right of ownership. (Quoted in Mohd. Noor v. Mohd. Ibrahim, AIR 1995 SC 398.)
Pilla Akkayyamma v. Channappa, ILR 2015 Kar 3841; 2016-1 Kar LR 432, it is observed as under:
“Ownership imports three fundamental rights, namely, right to possession, right to enjoy and right to dispose. The owner of the property is not only entitled to possess but also has the right to exclude all others from the possession or enjoyment of it. If the owner is wrongly deprived possession, he has a right to recover possession from any person, who may possess it. But an absolute owner may deprive himself of such right by an assignment, e.g., grant of lease, and may thereby become a limited owner. The right to possession may be limited or restricted in various ways, either by a voluntary act or involuntarily. An owner who has, however, suffered a limitation in respect of his right to possession can hardly be regarded as an absolute owner.”
From the above, it is clear that the following rights are the incidence of ownership:
Possession,
absolute enjoyment,
exclude others, or exclusive enjoyment,
disposition or alienation,
abandon or destruction,
alteration,
maintain or retain possession,
recover possession.
Kinds of Ownership
Corporeal and Incorporeal Ownership
Corporeal ownership is the ownership in tangible material objects (land, building, machinery etc.). Ownership in the incorporeal or intellectual properties which cannot be perceived by senses is called Incorporeal Ownership (such as easement, copyright, trademark etc.).
Trust and Beneficial Ownership; Legal and Equitable Ownership
Under English law, there is ‘duel ownership’ on trust property. First is the ‘legal ownership’ – vested with trustee; and the second, the ‘equitable or beneficial ownership’ – vested with the beneficiary.
Vested and Contingent Ownership
Perfected and absolute title, unbounded by conditions, give rise to vested ownership. When it is subject to conditions and capable of becoming perfect on the fulfilment of conditions is contingent ownership.
Sole Ownership and Co-ownership
Sole ownership is the ownership of a single person. Co-ownership is the joint-ownership of more than one person.
Joint Ownership and Co-ownership
‘Tenants in common’ and ‘joint tenants’ differentiates Co-ownership and Joint Ownership
Absolute and Limited Ownership
Absolute title on property, unbounded by conditions creates absolute ownership. When it is circumscribed by imposition of rights of others or limited in its enjoyment (by restrictions in possession, disposal etc. or burdening by benefits as to trust) it is limited ownership.
Interpretation of Documents: On Issue on Ownership – Question of Law
In Bhikan Sk. Noor Mohd. vs Mehamoodabee Sk. Afzal, AIR 2017 SC 1243, our Apex Court observed that when the issues involved ‘ownership based on interpretation of documents (exhibits), the questions did constitute substantial questions of law’. It was further held as under:
“18. When the Court is called upon to interpret the documents and examine its effect, it involves questions of law, it is, therefore, obligatory upon the High Court to decide such questions on merits. In this case, the High Court could do so after framing substantial questions of law as required under Section 100 of the Code. It was, however, not done.
19. The High Court thus, in our view, committed jurisdictional error when it dismissed the second appeal in limine. We cannot countenance the approach of the High Court.”
How One Can Prove Title to an Immovable Property
1. Registered Title Deedor Government Document (Patta): The primary document to prove ownership is the title deed, such as a sale deed, gift deed, partition deed, or Will. It must have been duly stamped and registered under the Registration Act.
2. Established Chain of Title and Possession: Even if the original title deed is lost or unavailable, ownership can be proved by establishing a continuous chain of title through:
Prior registered deeds
Inheritance or partition records
Possession-related documents
Supporting documents include:
Mutation entries
Revenue records (Khasra, Khatauni, etc.)
Municipal and survey records
Tax receipts, utility bills
Encumbrance Certificate (EC)
Building approval documents, residence proof, etc.
These supporting documents do not by themselves create title but serve as relevant evidence of ownership.
3. Adverse Possession (by Court Declaration). If a person has been in open, continuous, and hostile possession of the property for a statutory period (12 years), title can be acquired through adverse possession. Perfection of title by ‘Adverse Possession’ against the true owner must have been declared or accepted by a competent court. Because it remains inchoate (started, but not full-blown) until such title is declared or upheld by a competent court.
Part II
Settled Possession, Established Possession & Possessory Title
In A. Subramanian v. R. Pannerselvam, AIR 2021 SC 821, the Supreme Court held that even a trespasser, who is in established possession of the property could obtain injunction. But, it was cautioned that the matter would be different, if the plaintiff himself elaborated in the plaint about title dispute and fails to make a prayer for declaration of title along with injunction relief.
In Poona Ram v. Moti Ram, AIR 2019 SC 813, it was pointed out in a case where there was no document to prove settled possession that ‘merely on doubtful material and cursory evidence, it cannot be held that the plaintiff was ever in possession of the property, and that too in settled possession’. It held further as under:
“13. The crux of the matter is that a person who asserts possessory title over a particular property will have to show that he is under settled or established possession of the said property. But merely stray or intermittent acts of trespass do not give such a right against the true owner. Settled possession means such possession over the property which has existed for a sufficiently long period of time, and has been acquiesced to by the true owner. A casual act of possession does not have the effect of interrupting the possession of the rightful owner. A stray act of trespass, or a possession which has not matured into settled possession, can be obstructed or removed by the true owner even by using necessary force. Settled possession must be (i) effective,(ii) undisturbed, and (iii) to the knowledge of the owner or without any attempt at concealment by the trespasser. There cannot be a straitjacket formula to determine settled possession. Occupation of a property by a person as an agent or a servant acting at the instance of the owner will not amount to actual legal possession. The possession should contain an element of animus possidendi. The nature of possession of the trespasser is to be decided based on the facts and circumstances of each case.”
Possessory Title
The term ‘Possessory Title’ (in contrast to legally recognised ‘title appertain to ownership’) arises in the following situations-
1.Acquisition of ‘Original Title’: It is acquisition of title contradistinct to ‘derivative’ acquisition of title.
2.Possessory Title: ‘Possessory Title’ against everybody other than the lawful owner (For, possession by itself is a substantive right and good title; and ‘Right to Possession’ is a “Property”, under law).
3.Statutory titleby Adverse Possession: Perfection of title by ‘Adverse Possession’ against the true owner; i.e., (legal) acquisition of title as recognised by Sec. 27 of the Limitation Act. (K V Swamynathan v. E V Padmanabhan, 1991-1 JT 83, 1990-2 Scale 1326)
‘Possessory Title’- On the Premise that ‘Possession’ is aSubstantive Right
One who captures a property belonging to none, or reduces such a property to his possession, gets good title against the whole world – as in the case of birds in the air and fishes in the water. And, if it belongs to another, possession of the holder of such property is good title against all but the true owner (Somnath Barman v. Dr. SP Raju AIR 1970 SC 846, 1969-3 SCC 129); because, possession is the most important objective expression of ownership. According to Salmond, possession is the most basic relationship between men and things, and the possessor should have the ‘animus’ to possess the ‘corpus’.
‘Rival Titles’ in Adverse Possession – Title by ownership & Title by possession
Possessory title by adverse possession is basically a philosophical concept of property law; and it is merely acknowledged in common law and in the Limitation Act. It is explained in the thought provoking article, “Possessory Title: Its True Nexus with the Law of Limitation and the ‘Theory of Relativity’ ” by Anoop Bhaskar, Advocate, Thiruvananthapuram (2022 KLT). It is also pointed out that there are two ‘rival titles’ in a case of adverse possession; i.e., title by ownership (pertain to true owner) & title by possession (pertain to trespasser).
When a plea on adverse possession is propped up, the judicial determination is warranted on rival claims on ‘title on ownership’ and ‘title by adverse possession’; and also, ‘presumptions on title’ and ‘presumptions on possession’. If the trespasser can prove adverse possession against the true owner, as provided under Article 65 of the Limitation Act, the law favours the trespasser endorsing his Possessory Title. The learned author lays down the doctrine of ‘preference’ upon the two ‘rival titles’ as under:
“It is true by the operation of limitation prescribed under Article 65, the prior owner loses his right or remedy to sue for possession based on title. At this point, the adverse possessor acquires title by the virtue of original acquisition. … In other words, the possessor will have an entitlement to the right to possess the land against others; i.e., he is having the title to possess. At the same time the prior owner will be denying the adverse possessor’s entitlement to possession and be claiming the entitlement to all the incidents of ownership, including possession. Basically, he will be claiming title to ownership on the land. This is how there will exist two rival titles in the case of a title dispute, i.e., title to ownership & title to possession. Now the Courts will be called upon to measure the strength of each title. If the adverse possessor proves that the prior owner has lost his right to recover possession by way of limitation, it will mean that the title of the prior owner will be weaker than adverse possessor.”
Legal Ownership and Possessory Title
The Bombay High Court, in a tort-action for negligence in respect of loss or damage to goods, it is held in Dreymoor Fertilizers Overseas Pte. Ltd. v. M. V. Theoforos-1, a vessel flying the flag of Panama (Decided on 18 Mar 2014) that – to maintain a claim in negligence, legal ownership of or a possessory title to the property must be proved; and that the ‘contractual rights’ upon the goods alone are not sufficient. It is observed as under:
21.1 The leading authority in regard to a claim in negligence for loss or damage to cargo is the case of Aliakmon (1986) Vol. 2 Lloyds Law Reports Pg.1) in which the House of Lords has on page 4 set out the legal position :
“My Lords, there is a long line of authority for the principle of law that in order to enable a person to claim in negligence for loss caused to him by reason of loss or damage to property, he must have had either the legal ownership or possessory title to the property concerned at the time when the loss or damage occurred and it is not enough for him to have only had contractual right in relation to such property which has been adversely affected by the loss of or damage to it.”
21.2 Thus, for the plaintiff to maintain a claim in negligence, he must show that he either had legal ownership of or a possessory title to the property or goods or cargo, whatsoever one may call, at the time when the loss or damage occurred. During the course of submissions, counsel for the plaintiff accepted that the test set out above in the Aliakmon (supra) is the correct test to be applied in order to determine whether the plaintiff can make a claim in tort. Counsel for the plaintiff further accepted that the plaintiff does not have possessory title to the property but has legal ownership and is entitled to maintain a claim in tort.”
In this decision (Dreymoor Fertilizers Overseas), while holding that the only person who had ownership rights alone is entitled for damages, it is held as under:
“The law was and always had been that an action for negligence in respect of loss or damage to goods could not succeed unless plaintiff was, at the time of tort complained of, owner of goods or person entitled to possession of them. The duty of care is owed only to the owner of the goods or the person entitled to possession [The Wear Breeze] (1967) Vol 2 Lloyds Law Reports Pg 315). As mentioned above, the plaintiff was neither the owner nor entitled to possession. Accordingly defendant owed no duty of care to the plaintiff at the time when goods were damaged.
In paragraph 5-111, Page 236 from the book “Carver on Bills of Lading 1st Ed.” relied upon by the plaintiff, it reads as under:
“….Having no proprietary or possessory rights in the goods, the buyers were simply in the position of persons whose contractual rights to the goods against the seller had been adversely affected by the negligence of the carrier in damaging the goods; and many authorities establish that prejudice of this kind is not sufficient to give rise to a cause of action in negligence.”
“Legal Ownership” to denote the Ultimate Ownership
The term “legal ownership” is also used in our jurisprudence to denote the ultimate ownership. It can be seen in Food Corporation of India v. Brihanmumbai Mahanagar Palika, 2020-3 JT 419: 2020-5 Scale 750: AIRONLINE 2020 SC 391: 2020 SCC Online 1105, our Apex Court, while considering the ownership of land :
“17. Before proceeding further, we may notice the factum of ownership of the property including the godowns thereon. As noticed above, the land was acquired by the State of Bombay for the Central Government and it was the Central Government, which constructed the godowns thereon. The earlier Division Bench judgment of Bombay High Court dated 03.12.1992 in Civil Appeal No. 259 of 1989 has been referred to and relied by the appellant, by which judgment, the Division Bench has set aside the levy of non-agricultural assessments as imposed on the appellant. The Division Bench in the above judgment has also accepted the case of the appellant that legal ownership of the land and the structures vests with the Government.”
Part III
Possession and Adverse Possession
‘Ownership’ bestows social recognition to possess and enjoy a property, absolutely. Therefore, it is the relation between a person and the property.
Possession is a good Title against any one who cannot show a better. If ‘no Title in either party, possession alone decides’.
The ‘adverse’ possession of a property by one person (trespasser), for 12 years, bars the right to ‘recovery’ by the person in (earlier) lawful possession (or, the true owner);
because, Article 65 of the Limitation Act lays down 12 years as the period for (recovery of) possession of immovable property (or any interest therein based on title), from a person in ‘adverse’ possession (trespasser).
Continuance of ‘Adverse Possession’ for 12 years confers ‘Title’ under Sec. 27, Limit. Act.
But, rights under ‘adverse’ possession will be inchoate (started; but, not full-blown) until such title is declared or upheld by a competent court.
Possessory Title & Adverse Possession
If ‘no title in either party, possession alone decides’.
Possession is a good title of right against any one who cannot show a better.
‘Possession is Good Against All But the True Owner’ & Sec. 6 of the Sp. Relief Act
The principle ‘Possession is Good against all but the True Owner’ is declared in Parry v. Clissold, (1907) AC 73.
The Supreme Court of India while accepting this principle in Nair Service Society Ltd. vs. K.C. Alexander, AIR 1968 SC 1165, pointed out that the law in India allows a plaintiff to maintain a possessory suit under Sec. 9 (preset Sec. 6) of the Specific Relief Act. Such a suit can be filed against a title holder, if he had dispossessed the plaintiff ‘otherwise than in due course of law’. It is held in this decision that if ‘no title in either party, possession alone decides‘.
In Nair Service Society Ltd. vs. K.C. Alexander, AIR 1968 SC 1165, it is observed as under:
“17. … To express our meaning we may begin by reading 1907 AC 73 (Perry V. Clissold), to discover if the principle that possession is good against all but the true owner has in any way been departed from.
1907 AC 73 reaffirmed the principle by stating quite clearly:
“It cannot be disputed that a person in possession of land in the assumed character of owner and exercising peaceably the ordinary rights of ownership has a perfectly good title against all the world but the rightful owner. And if the rightful owner does not come forward and assert his title by the process of law within the period prescribed by the provisions of the statute of Limitation applicable to the case, his right is for ever extinguished and the possessory owner acquires an absolute title.”
Therefore, the plaintiff who was peaceably in possession was entitled to remain in possession and only the State could evict him. The action of the Society was a violent invasion of his possession and in the law as it stands in India the plaintiff could maintain a possessory suit under the provisions of the Specific Relief Act in which title would be immaterial or a suit for possession within 12 years in which the question of title could be raised.”
In Poona Ram v. Moti Ram, AIR 2019 SC 813, our Apex Court explained the principle ‘possession is a good title of right against any one who cannot show a better’ as under:
“9. The law in India, as it has developed, accords with jurisprudential thought as propounded by luminaries like Salmond.
Salmond on Jurisprudence states:
“These two concepts of ownership and possession, therefore, may be used to distinguish between the de facto possessor of an object and its de jure owner, between the man who actually has it and the man who ought to have it. They serve also to contract the position of one whose rights are ultimate, permanent and residual with that of one whose rights are only of a temporary nature.x x x x xIn English law possession is a good title of right against any one who cannot show a better. A wrongful possessor has the rights of an owner with respect to all persons except earlier possessors and except the true owner himself. Many other legal systems, however, go much further than this, and treat possession as a provisional or temporary title even against the true owner himself. Even a wrongdoer, who is deprived of his possession, can recover it from any person whatever, simply on the ground of his possession. Even the true owner, who takes his own, may be forced in this way to restore it to the wrongdoer, and will not be permitted to set up his own superior title to it. He must first give up possession, and then proceed in due course of law for the recovery of the thing on the ground of his ownership. The intention of the law is that every possessor shall be entitled to retain and recover his possession, until deprived of it by a judgment according to law.
Legal remedies thus appointed for the protection of possession even against ownership are called possessory, while those available for the protection of ownership itself may be distinguished as proprietary. In the modern and medieval civil law the distinction is expressed by the contrasted terms petitorium (a proprietary suit) and possessorium (a possessory suit).”
10. As far back as 1924, in the case of Midnapur Zamindary Co. Ltd. v. Naresh Narayan Roy, AIR 1924 PC 144, the learned Judge observed that in India, persons are not permitted to take forcible possession; they must obtain such possession as they are entitled to through a court. Later, in the case of Nair Service Society Ltd. v. K.C. Alexander, AIR 1968 SC 1165, this Court ruled that when the facts disclose no title in either party, possession alone decides. It was further held that if Section 9 of the Specific Relief Act, 1877 (corresponding to the present Section6) is employed, the plaintiff need not prove title and the title of the defendant does not avail him. When, however, the period of six months has passed, questions of title can be raised by the defendant, and if he does so the plaintiff must establish a better title or fail. In other words, such a right is only restricted to possession in a suit under Section 9 of the Specific Relief Act (corresponding to the present Section 6) but does not bar a suit on prior possession within 12 years from the date of dispossession, and title need not be proved unless the defendant can provide one.
11. It was also observed by this Court in Nair Service Society Ltd. (supra) that a person in possession of land in assumed character of owner and exercising peaceably the ordinary rights of ownership has a perfectly good title against the entire world except the rightful owner. In such a case, the defendant must show in himself or his predecessor a valid legal title and probably a possession prior to the plaintiff’s, and thus be able to raise a presumption prior in time.”
Present Indian Law on Adverse Possession
In Parry v. Clissold, (1907) AC 73 it was pointed out that if the rightful owner did not come forward and assert his title within the period of limitation, his right would be extinguished and the possessory owner would acquire an absolute title.
After the Limitation Act, 1963, the legal position in India, on Adverse Possession, has been changed as under:
If the rightful owner did not come forward and assert his title within the period of limitation, his right may be extinguished and the (adverse) possessory owner may acquire an absolute title.
Because,
Articles 65 of the Limitation Act, 1963 casts onus on the trespasser to prove claims of title by ‘adverse’ possession.
The 3 important modern propositions brought-in as to adverse possession (in India) are:
Mere ‘animus possidendi’, not enough; there must have animus to dispossess.
Trespasser must know who the true owner is.
Burden to plead and prove adverse possession is upon the defendant.
Adverse possession arises from the provisions in Article 65 of Limitation Act, 1963. ‘Positive and hostile acts’ of the trespasser is the pre-requirement of Adverse Possession; because, mere possession is not sufficient under Article 65, but it requires ‘adverse’ possession.
65. For possession of immovable property or any interest therein based on title.
12 years
When the possession of Defendant becomes adverse to the plaintiff.
In T. Anjanappa v. Somalingappa, (2006) 7 SCC 570, it is observed that the possession must be open and hostile enough to be capable of being known by the parties interested in the property, though it is not necessary that there should be evidence of the adverse possessor actually informing the real owner of the former’s hostile action.
Following are the other important decisions on adverse possession:
Karnataka Board of Wakaf v. Govt of India – AIR 2004 SC 2096
PT Munichikkanna Reddy v. Revamma, AIR 2007 SC 1753
Ravinder Kaur Grewal v. Manjit KaurAIR 2019 SC 3827.
Prescriptive Rights – Inchoate until the title is upheld by a competent court
The ‘adverse’ possession of a property by one person (trespasser), for 12 years, bars the right to ‘recovery’ by the person in (earlier) lawful possession (or, the true owner). Because, Article 65 of the Limitation Act lays down 12 years as the period for (recovery of) possession of immovable property (or any interest therein based on title), from a person in ‘adverse’ possession (trespasser).
No doubt, it is true, one can acquire right of easement or adverse possession by prescription. But, prescriptive rights are said to be inchoate (started; but, not full-blown) until such title is declared or upheld by a competent court.
It was observed in Sultan Ahmad v. Valiullah (1912) 10 ALJ 227, that the result of the Easements Act and the similar provisions of the Limitation Act was that a right of easement could not be said to be perfected until the right was declared by a decree of court.
Sultan Ahmad v. Valiullah (1912) 10 ALJ 227 is referred to in:
Nachiparayan v. Narayana Goundan, (1920): 60 Ind Cas 171, (1920) 39 MLJ 574;
Arjuna Udayar v. Manuswamy Naicker, 1999-1 CurCC 97.
See also: Tradesh and Miners, Ltd v. Dhirendra Nath Banerjee, AIR 1944 Pat 261.
In Siti Kantapal v. Radha Gobindaen, AIR 1929 Cal 542, it was held as under:
“It has been authoritatively held that a tie to easement is not complete merely upon the effluxion of the period mentioned in the Statute viz., 20 years and that however long the period of actual enjoyment may be, no absolute or indefeasible right can be acquired until the right is brought in question in some suit, and until it is so brought in question, the right is inchoate only and in order to establish it when brought in question, the enjoyment relied on, must be an enjoyment for 20 years up to within 2 years of the institution of the suit.” (Quoted in – D. Ramanatha Gupta vs S. Razaack, AIR 1982 Kant 314.)
In Ramanunni Vaidyar v. Govindankutty Nair, 1998(2) Ker LT 47, it is found that a person who has not acquired or perfected a right cannot maintain an action against the owner of the land over which the right is claimed. It is held as under:
In my view, on the basis of an inchoate right or a right which has not ripened into an easement by prescription, but is merely one of user, no relief can be granted to the user of them as against the owner of that land. In other words, a right, properietory or otherwise, has to be shown for obtaining relief (Krishna Pillai v.Kunju Pillai 1990 (1) KLT 136, referred to).
S. 27, Lim. Act Gives Substantive Right so as to Seek Declaration and Recovery
Generally speaking, the Limitation Act only bars the remedy but doesn’t destroy the right to which the remedy relates to. The exception to the general rule is contained in Section 27 of the Limitation Act, 1963.
Sec. 27 of the Limitation Act speaks that at the determination of the period “hereby limited to any person for instituting a suit for possession of any property”, his right to such property shall be extinguished.
The Limitation Act is an Act of repose. “Adverse possession statutes, like other statutes of limitation, rest on a public policy that do not promote litigation and aim at the repose of conditions that the parties have suffered to remain unquestioned long enough to indicate their acquiescence.” (See: PT Munichikkanna Reddy and others v. Revamma, (2007) 6 SCC 59: AIR 2007 SC 1753)
Adverse possession confers title under Sec. 27 (by necessary implication, because extinguished title of real owner comes to vest in wrongdoer – because, rights thereon had already been lost to the true owner, and passed over to the ‘possessory/adverse’ owner).
Therefore it is clear that Sec. 27 is a provision in the Limitation Act that gives a substantial right to a party.
Person Acquiring Title by Adverse Possession can use it as a Sword
In view of Sec. 27 one can seek declaration of title by adverse possession and consequential injunction or recovery. That is why it is held in Ravinder Kaur Grewal v. Manjit Kaur, AIR 2019 SC 3827: (2019) 8 SCC 729, that the person acquiring title by adverse possession can use it as a sword.
No Decree for Injunction if Possession found to be Illegal
The findings of the High Court in the decision considered by the Supreme Court, in Kesar Bai v. Genda Lal, 2022-10 SCC 217, were the following:
the plea of ownership based on sale deed and plea of adverse possession were contrary to each other;
the plaintiffs could not have been permitted to take both the pleas at the same time;
however, the plaintiff being in possession of the suit land since the execution of the said sale deed, the plaintiff was entitled for injunction on the basis of his possession.
Setting aside the High Court judgment the Apex Court held as under:
“The possession/alleged possession of the plaintiffs could not have been protected by passing a decree of permanent injunction in favour of the plaintiffs”.
Document ex-facie reveals no title – specific declaration as to invalidity not necessary
The Supreme Court held in Kizhakke Vattakandiyil Madhavan v. Thiyyurkunnath Meethal Janaki (Aniruddha Bose & Sudhanshu DhuliaJJ.) 9.4.2024, held as under:
“18. …. If a document seeking to convey immovable property ex-facie reveals that the conveyer does not have the title over the same, specific declaration that the document is invalid would not be necessary. The Court can examine the title in the event any party to the proceeding sets up this defence. Chiruthey could not convey any property over which she did not have any right or title. Her right, if any, would stem from the second deed of lease (Exhibit A-1). We are conscious of the fact that no claim was made before any forum for invalidating the deed dated 14th July 1910 (Exhibit A-20).”
By proving a deed, title of the executing person is not automatically confirmed
The Supreme Court held in Kizhakke Vattakandiyil Madhavan v. Thiyyurkunnath Meethal Janaki (Aniruddha Bose & Sudhanshu DhuliaJJ.) 9.4.2024, also held as under:
“18. … It would be trite to repeat that even if subsistence of a deed is proved in evidence, the title of the executing person (in this case Chiruthey) does not automatically stand confirmed. ….. … But in absence of proper title over the subject property, that lease deed even if she was its sole lessor would not have had been legally valid or enforceable. If right, title or interest in certain property is sought conveyed by a person by an instrument who herself does not possess any such form of entitlement on the subject being conveyed, even with a subsisting deed of conveyance on such property, the grantee on her successors-in-interest will not have legal right to enforce the right the latter may have derived from such an instrument.”
Yes; Abandonment/Acquiescence by One may Confer Legal Rights on Another. Release, Relinquishment, Rescission, Waiver, Abandonment, Forfeiture, Ouster, Adverse Possession, Acquiescence, Latches are legally recognised rights in Contract, Easements and Property law.
Jojy George Koduvath.
Introduction
Property, as a legal concept, is the sum of a bundle of rights.
In the case of tangible property, it includes the following rights:
the right of possession,
the right to enjoy,
the right to destroy,
the right to retain,
the right to alienate
and so on (Guru Datta Sharma v. State of Bihar, AIR 1961 SC 1684).
Therefrom, it is clear that the owner of a ‘property’ has the liberty to ‘abandon’ it.
We need not probe deep to find out the genesis of this right
Under law, the ‘right to abandon’ is wielded in properties which are capable of transfer from one to another. Rights in contractual matters can also be abandoned. This privilege is one exercised unilaterally; and it is ancillary and incidental in the right of ownership. (This right being inherent and sui generis we need not probe deep to find out the genesis of this right.)
One cannot abandon the obligation arsing from a contract
Though a party to a contract may also relinquish his rights, he cannot abandon the obligation arsing from the same. Therefore:
Abandonment is
the voluntary act done by the owner of a property
whereby he permanently renunciates the right, title and interest
in a specific transferable property,
not amounting to a transfer (to a transferee); or
the willful relinquishment of the beneficial rights in a contract, by a party to the same.
No Obligation can be Abandoned
In Shripati Lakhu Mane v. Maharashtra Water Supply And Sewerage Board, 2022 SCC OnLine SC 383, it is held as under:
“Moreover, abandonment is normally understood, in the context of a right and not in the context of a liability or obligation. A party to a contract may abandon his rights under the contract leading to a plea of waiver by the other party, but there is no question of abandoning an obligation. In this case, the appellant refused to perform his obligations under the work-order, for reasons stated by him. This refusal to perform the obligations, can perhaps be termed as breach of contract and not abandonment.”
Abandonment is the voluntary giving up of one’s rights
In Sha Mulchand and Co., Ltd. v. Jawahar Mills Ltd., Salem, AIR 1953 SC 98 (SR Das, MC Mahajan, Vivian Bose, Ghulam Hasan), ‘Abandonment‘ was explained by Vivian Bose J., who delivered a separate Judgment, as under:
‘Abandonment is the voluntary giving up of one’s rights and privileges or interest in property with the intention of never claiming them again’.
‘The Free Dictionary: Dictionary, Encyclopedia and Thesaurus’ describes ‘abandonment’ as under:
“Voluntary relinquishment of all right, title, claim, and possession, with the intention of not reclaiming it; the giving up of a thing absolutely, without reference to any particular person or purpose.”
In Kanhiya Shanker v. Mohabata Sedhu, AIR 1960 P&H 494, it is held as under:
“Abandonment means the Act of intentionally relinquishing a known right absolutely and unconditionally and without reference to any particular person or persons.”
Once an Abonnement Always an Abonnement
Abandonment of a right in a transferable property or a contract will result in vesting a corresponding entitlement in another. An abandonment, as the word connotes, made once, stands permeant and irrevocable; or in other words, once an abonnement always an abonnement.
If Abandonment Proved, Subsequent Claims Futile
Once an abonnement being always an abonnement, if an abandonment is proved, subsequent claims by the same person or his successors will not be accepted in law.
Voluntary Abandonment of Known and Existing Right alone is Recognised in Law
If only the abandonment of a transferable property is the result of an intentional or voluntary act, then only it will be recognised in law as an act capable of losing right in one and creating in another. It must be a known and existing legal right. (See: Basheshar Nath v. Commissioner of Income-tax, Delhi and Rajasthan, AIR 1959 SC 149.)
In Municipal Corporation of Greater Bombay v. Dr. Hakimwadi Tenants’ Association, 1988 Supp. SCC 55, it was held as under:
“In order to constitute waiver, there must be voluntary and intentional relinquishment of a right. The essence of a waiver is an estoppel and where there is no estoppel, there is no waiver. Estoppel and waiver are questions of conduct and must necessarily be determined the facts of each case.” (Quoted in: Dr. Karan Singh v. State of Jammu and Kashmir, 2004 (5) SCC 698, AIR 2004 SC 2480)
In Manju Devi v. State of Bihar, 1999-2 BBCJ 91; 1999-2 BLJR 1226; 1999-2 PLJR 641, it is held as under:
“Abandonment would require something for more definite and positive, showing intentional and voluntary relinquishment of a known right absolutely and unconditionally.”
In Kanhiya Shanker v. Mohabata Sedhu, AIR 1960 P&H 494, it is held as under:
“7. The courts do not presume in favour in favour of abandonment and the onus rests on the party asserting abandonment. It is, therefore, incumbent upon the party pleading abandonment to establish his plea. In this case, defendants No. 1, the appellants before us, who set up abandonment, have to prove the same by unequivocal and decisive evidence.
Abandonmentmeans the Act of intentionally relinquishing a known right absolutely and unconditionally and without reference to any particular person or persons. In this case it has to be a voluntary relinquishing a known right absolutely and unconditionally and without reference to any particular person or persons. In this case it has to be a voluntary relinquishment of possession of the property by its owners with the intention of terminating their ownership but without vesting it in any other person.
A person abandoning his property gives up all hope, expectation or intention of recovering his property. The property, after it is abandoned, results in complete divestiture of the title of its owner and having ceased to be his property it becomes the subject of appropriation by the first taker or by its occupant who reduces it to his possession. Abandonment is not a surrender of property because the latter term connotes its relinquishment to another. It is an Act whereby a person gives up his ownership without creating proprietary rights in another person.
8. There are two primary elements of abandonment, namely the intention to abandon and the external Act by which effect is given to the intention and both these elements must concur. The intention must be clear and unmistakable indicating that it is the ownership which is being relinquished and not the possession or any other sub-ordinate right consistent with the retention of ownership. A person abandoning permanently divests himself of his title. The Act of abandonments from its very nature has to be voluntary, absolute and unconditional, excluding element of coercion, and pressure of any kind. In order to see that the plea of abandonment is proved in a particular case, the Courts have to ascertain the existence of affirmative and unmistakable evidence leading to the exclusive inference of intentional relinquishment of property and repudiation of ones ownership.
Mere non-user over a long period unaccompanied by any other evidence showing clear intention, will not be held sufficient to constitute and abandonment. By itself, therefore, an absence from land for a long time will not amount to an abandonment though this circumstance may have a considerable probative force. In such a case the party asserting abandonment has to show that the owner left the premises without any intention to repossess or reclaim them for himself. Abandonment of immovable property necessarily implies non-user, but non-user per se does not create abandonment, on matter how long it continues. A non-user must, therefore, be accompanies with an intention on the part of the owner to give up the property and for good. The Courts may, however, turn to surrounding circumstances in order to find out whether the renunciation was voluntary and intentional and the external Act evidencing abandonment was motivated by the intention to abandon.
Thus a mere failure to occupy land for an indefinite time does not necessarily constitute an abandonment of title or possession, unless there is evidence sufficient to sustain a finding that the property was left without any intention to repossess it and the person abandoning was indifferent as to what may become of it in the future and who may take possession of it or claim title to it. when the expression “abandonment” is used in relation to property, it signifies the complete relinquishment of title, possession or claim, virtually indicating that the property is being thrown away. Abandonment is not equivalent to inaction. A person abandons property when he forsakes it entirely, renounces it utterly and give it up permanent, with an intent never again to claim any right or interest therein.” (Quoted in: Manju Devi v. State of Bihar, 1999-2 BBCJ 91; 1999-2 BLJR 1226; 1999-2 PLJR 641)
In Daulat Singh v. Dilbagh Singh, 2004-136 Punj LR 871, it is observed as under:
“Mere inactivity or a passive attitude of a person cannot be interpreted as an act of abandonment. In the said case also one Dalip Singh was adopted son of Sajjan Singh. He filed suit for possession. It was held that the plaintiff and the defendant became joint co-sharers in the ancestral land. The court has relied upon a Division Bench judgment reported as Kanhiya Shanker and Ors. v. Mohabata Sedhu and Ors., (1960)62 P.L.R. 494 to hold that in order to establish abandonment there must be an intentional and voluntary relinquishment of right for good without and further the onus to prove abandonment rests heavily on the person who alleges the same.”
Right of Abandonment is an Unrestricted and Inherent Right
Right of abandonment of a transferable property being an unrestricted and inherent right vested with the (transferable) property owners, it is not expressly dealt with in the Transfer of Property Act. It is similar to doctrines of waiver, acquiescence, laches etc. in certain respects; and also akin to estoppel.
Abandonment Recognised in Law
Our Apex Court, in Jai Singh v. Gurmej Singh, 2009-15 SCC 747, laid down that a co-owner can abandon his rights in favour of other joint-owners. It is held as under:
“The principles relating to the inter-se rights and liabilities of co-sharers are as follows: ….. Passage of time does not extinguish the right of the co-ownerwho has been out of possession of the joint property except in the event of ouster or abandonment. …. ”
In Qadir Bux v. Ram Chandra, AIR 1970 All. 289, it was observed as under:
“30. The main point for consideration is whether in such circumstances it can be said that the plaintiff had been dispossessed or had discontinued his possession within the meaning of Article 142 of the First Schedule to the Indian Limitation Act. The term “dispossession” applies when a person comes in and drives out others from the possession. It imports ouster: a driving out of possession against the will of the person in actual possession. This driving out cannot be said to have occurred when according to the case of the plaintiff the transfer of possession was voluntary, that is to say, not against the will of the person in possession but in accordance with his wishes and active consent. The term “discontinuance” implies a voluntary act and abandonment of possession followed by the actual possession of another. It implies that the person discontinuing has given up the land and left it to be possessed by anyone choosing to come in. There must be an intention to abandon titlebefore there can be said to be a discontinuance in possession, but this cannot be assumed. It must be either admitted or proved. So strong in fact is the position of the rightful owner that even when he has been dispossessed by a trespasser and that trespasser abandons possession either voluntarily or by vis major for howsoever short a time before he has actually perfected his tittle by twelve years’ adverse possession the possession of the true owner is deemed to have revived and he gets a fresh starting point of limitation – vide Gurbinder Singh v. Lal Singh, AIR 1965 SC 1553. Wrongful possession cannot be assumed against the true owner when according to the facts disclosed by him he himself had voluntarily handed over possession and was not deprived of it by the other side.” (Quoted in Bhikhari v. D.D.C., 2018 (141) RD 130)
Abandonment in claims of Adverse Possession
PT Munichikkanna Reddy v. Revamma, AIR 2007 SC 1753, is the important Supreme Court verdict that discussed various views on doctrine of ‘adverse possession’ and gave a decisive finality on this subject. It is observed in this decision as under:
“Adverse possession in one sense is based on the theory or presumption that the owner has abandoned the property to the adverse possessor on the acquiescence of the owner to the hostile acts and claims of the person in possession. It follows that sound qualities of a typical adverse possession lie in it being open, continuous and hostile.”
Thereafter it was emphasised as under:
“Therefore, to assess a claim of adverse possession, two-pronged enquiry is required:
1. Application of limitation provision thereby jurisprudentially “willful neglect” element on part of the owner established. Successful application in this regard distances the title of the land from the paper-owner.
2. Specific Positive intention to dispossess on the part of the adverse possessor effectively shifts the title already distanced from the paper owner, to the adverse possessor. Right thereby accrues in favour of adverse possessor as intent to dispossess is an express statement of urgency and intention in the upkeep of the property.”
Estoppel in Law
Section 115 of The Indian Evidence Act, 1872, declares ‘estoppel’ as under:
“115. Estoppel — When one person has, by his declaration, act or omission, intentionally caused or permitted another person to believe a thing to be true and to act upon such belief, neither he nor his representative shall be allowed, in any suit or proceeding between himself and such person or his representative, to deny the truth of that thing.”
Abandonment is much more than mere Estoppel, Waiver, Acquiescence or Laches
‘Abandonment’ of a transferable property stands distinguished from waiver, acquiescence, laches and estoppel. In Sha Mulchand and Co., Ltd. v. Jawahar Mills Ltd., Salem, AIR 1953 SC 98, it was held by SR Das, J., after referring various English decisions, as under:
“Further, whatever be the effect of mere waiver, acquiescence or laches on the part of a person on his claim to equitable remedy to enforce his rights under an executory contract, it is quite clear, on the authorities, that mere waiver, acquiescence or laches which does not amount to an abandonment of his right or to an estoppel against him cannot disentitle that person from claiming relief in equity in respect of his executed and not merely executory interest.” (Quoted in Prabhakar Gones Prabhu Navelkar v. S.S. Prabhu Navelkar (2019-11 SCALE 381).
It was added in this decision as under:
“Two things are thus clear, namely, (1) that abandonment of right is much more than mere waiver, acquiescence or laches and is something akin to estoppel if not estoppel itself, and (2) that mere waiver, acquiescence or laches which is short of abandonment of right or estoppel does not disentitle the holder of shares who has a vested interest in the shares from challenging the validity of the purported forfeiture of those shares.”
Kalparaj Dharamshi v. Kotak Investment Advisors Ltd., 2021-10 SCC 401, it is observed as under:
“Waiver is an intentional relinquishment of a right. It involves conscious abandonment of an existing legal right, advantage, benefit, claim or privilege.”
Abandonment amounts to Estoppel (Certainly) Stops setting up a Claim
In Prabhakar Gones Prabhu Navelkar v. S.S. Prabhu Navelkar, 2019-11 SCALE 381 (K.M. Joseph, J.), analysing Dr. Karan Singh v. State of J & K, 2004-5 SCC 698, it is observed that ‘in regard to abandonment, the Court’ (that is, Dr. Karan Singh v. State of J & K, 2004-5 SCC 698) ‘referred to the judgment in Mulchand’s case and apparently approved the same‘. Thereafter it is held (inPrabhakar Gones Prabhu Navelkar) as under:
“79. Therefore, we would hold that a when vested right is established such as ownership it can be divested only by sale or gift. It will not be possible to hold that mere laches or standing by itself may be sufficient to extinguish title. The majority view in Mulchand (Mulchand v. Jawahar Mills, AIR 1953 SC 98) appears to suggest that there must either be abandonment or estoppel. Justice Vivian Bose takes the view that title can be lost only when estoppel is established. Merely saying that a person has abandoned his property does not lead to extinguishing of vested right such as right to ownership in property. Certainly, an abandonment which amounts to an estoppel would result in stopping a party or his representative from seeking legal redress or setting up the claim in a court of law.”
Acquiescence in Easements Act (Explanation II) to Section 15
Explanation II to Section 15 of the Easements Act reads as under:
“Explanation II: Nothing is an interruption within the meaning of this section unless where there is an actual cessation of the enjoyment by reason of an obstruction by the act of some person other than the claimant, and unless such obstruction is submitted to or acquiesced infor one year after the claimant has notice thereof and of the person making or authorising the same to be made.”
Under Explanation II, ‘interruption’ is suffered –
by actual cessation of the enjoyment, and
by an obstruction , and
by the act of some person other than the claimant, and
See:
Eaton v The Swansea Waterworks Co., [1851] EngR 559, 17 QB 267, 117 ER 1282.
Prasad v. Patna City Municipality, AIR 1938 Pat 423;
Anu Sundar v. Shiva Narain Jaiswal, AIR 1988 Pat 216.
Pankan Somanv. C.K. Manoharan, 2019-1 KHC 817,
See also: Neil J. Creado v. Shah Abbas Khan, 2020-1 Bom CR 160,
Kapilrai Brijbhukhandas v. Parsanben Dhirajlal, 1998-4 Guj CD 2941.
“Obstruction is submitted to or acquiesced in for one year” (in Explanation II)
Cause of action under Section 15, Easements Act
Cause of action under Section 15, Easements Act arises on the next day of completion of 20 years. But, the suit must have been filed within 2 years of such cause of action.
Because, Para 5 of Section 15 of the Indian Easements Act, 1882 reads as under:
“Each of the said periods of twenty years shall be taken to be a period ending within two years next before the institution of the suit wherein theclaim to which such periodrelates is contested..” (We see exactly similar wording in Sec. 25(2), Limitation Act also.)
But Explanation II to Section 15 reads as under:
“… unless such obstruction is submitted to or acquiesced in for one year after the claimant has notice thereof and of the person making or authorising the same to be made”.
On analysing the above (apparently inconsistent provisions) it is seen, from the first principles, as under:
1. Explanation II applies when the dominant owner (claimant of the easement) has ‘positively and expressly’ acquiesced the ‘positive and express’ acquiescence in “for one year after the claimant has notice thereof” and has notice “of the person making or authorising the same to be made”.
2. The burden of pleading and proving this ‘positive and express’ act is on the servient owner.
3. It is actually the principle of “estoppel”.
Acquiescence in Adverse Possession matters also
From the above, it appears that the principles as to ‘positive and express’ acquiescence in Explanation II can be brought to cases on willful ‘positive and express’ acquiescence to the hostile acts of a trespasser in property matters also, and in such cases the true owner of a property lose rights even if 12 year period (for adverse possession) is not perfected.
“A right not exercised for a long time is non-existent“
In Chairman, State Bank of India v. MJ James, (2022) 2 SCC 301, relating to disciplinary proceedings against an employee of the Bank, it is observed, as under:
“A right not exercised for a long time is non-existent. Doctrine of delay and laches as well as acquiescence are applied to non-suit the litigants who approach the court/appellate authorities belatedly without any justifiable explanation for bringing action after unreasonable delay.”
Note:
1. It is doubtful whether mere delay, laches and acquiescenceapply to ‘adverse possession’ matter – in view of the specific provisions in the Limitation Act with regard to adverse possession.
2. See doctrines of abandonment (or deliberate relinquishment) and acquiescenceamounting toestoppel may have more force on the matter of adverse possession, they being arise from the wilful conduct of the person concerned.
Doctrine of Estoppel, delay, laches, acquiescence – applied to non-suit litigants
It is held, in Chairman, State Bank of India v. MJ James, (2022) 2 SCC 301, further as under:
29. Before proceeding further, it is important to clarify distinction between ‘acquiescence’ and ‘delay and laches’.
Doctrine of acquiescence is an equitable doctrine which applies when a party having a right stands by and sees another dealing in a manner inconsistent with that right, while the act is in progress and after violation is completed, which conduct reflects his assent or accord. He cannot afterwards complain.# In literal sense, the term acquiescence means silent assent, tacit consent, concurrence, or acceptance*/*, which denotes conduct that is evidence of an intention of a party to abandon an equitable right and also to denote conduct from which another party will be justified in inferring such an intention*# . Acquiescence can be either direct with full knowledge and express approbation, or indirect where a person having the right to set aside the action stands by and sees another dealing in a manner inconsistent with that right and inspite of the infringement takes no action mirroring acceptance**. However, acquiescence will not apply if lapse of time is of no importance or consequence.
#(See Prabhakar v. Joint Director, Sericulture Department, (2015) 15 SCC 1. Also, see Gobinda Ramanuj Das Mohanta v. Ram Charan Das and Suyamal Das, AIR 1925 Cal 1107)
*/*(See M/S Vidyavathi Kapoor Trust v. Chief Commissioner Tax, (1992) 194 ITR 584).
*#(See Krishan Dev v. Smt. Ram Piari AIR 1964 HP 34)
**(See “Introduction”, UN Mitra, Tagore Law Lectures – Law of Limitation and Prescription, Volume I, 14th Edition, 2016)
30. Laches unlike limitation is flexible. However, both limitation and laches destroy the remedy but not the right. Laches like acquiescence is based upon equitable considerations, but laches unlike acquiescence imports even simple passivity. On the other hand, acquiescence implies active assent and is based upon the rule of estoppel in pais. As a form of estoppel, it bars a party afterwards from complaining of the violation of the right. Even indirect acquiescence implies almost active consent, which is not to be inferred by mere silence or inaction which is involved in laches. Acquiescence in this manner is quite distinct from delay. Acquiescence virtually destroys the right of the person*#. Given the aforesaid legal position, inactive acquiescence on the part of the respondent can be inferred till the filing of the appeal, and not for the period post filing of the appeal. Nevertheless, this acquiescence being in the nature of estoppel bars the respondent from claiming violation of the right of fair representation.“
*#(See M/S Vidyavathi Kapoor Trust v. Chief Commissioner Tax (1992) 194 ITR 584)
Abandonment and Section 9, TP Act – Deed Not Required
Section 9 Transfer of Property Act states that a transfer of property may be made by oral transfer and without writing in every case in which writing is not expressly required by law. TP Act does not require execution of a document when a property is abandoned. (See: Narsingdas Takhatmal v. Radhakisan Rambakas, 1952-54 BomLR 492; Peddu Reddiar v. Kothanda Reddi, AIR 1966 Mad 419).
In Ramdas Chimna v. Pralhad Deorao, AIR 1965 Bom 74, it is held as follows:
“The relinquishment by Bainabai of her interest in the joint family property was merely abandonment of here interest in the joint family property in favour of her two sons. Such a relinquishment or abandonment of interest in the joint family property, even though it consists of immoveable properties and is of the value of Rs. 100/- and upwards, can be effected without a written instrument, though if one is executed, it would undoubtedly require registration under Section 17 of the Registration Act, Gauri Bai v. Gaya Bai, AIR 1927 Nag. 44.”
In The Weavers Mills Ltd. v. Balkis Ammal, AIR 1969 Mad 462, it is observed, referring Sec. 9 as under:
“That section says that a transfer of property may be made without writing in every case in which a writing is not expressly required by law. The Transfer of Property Act is not exhaustive of the kind of transfers. We are inclined to agree with the proposition of Ramaswami J., in Sarandaya Pillai v. Sankarlinga Pillai, 1959-2 Mad LJ 502, at p. 503 namely, that
“the test, therefore, in this country to determine whether a transaction (be it a transfer or not) can be made without writing is to see if it is expressly required by law to be in writing. If the transaction is a ‘transfer of property’ and there is no express provision of law requiring it to be in writing. Section 9 will enable it to be made without writing. If on the other hand, the transaction is not a ‘transfer of property’ and there is no express provision of law requiring it to be in writing, the general principle referred to above will enable it to be validly made without writing.”
The learned Judge, if we may say so with respect, rightly pointed out that Section 9 underlines the general principle that everything is to be taken permissible unless there is a prohibition against it and has been inserted in the statute ex abundanti cautela.”
End Notes
Escheat and Bona Vecantia – Incidents of Sovereignty
Who is the ultimate owner of a property?
The answer is: ‘The State’.
Because, the reply to the following question, that determines the ‘ultimate ownership’ of a property, is – ‘the State’. The question is:
Who is the owner of the property:
that is abandoned by all, that has no rightful owner or over which all claims raised are invalid; and
over which none can raise a valid claim?
Our Apex Court, in Pierce Leslie and Co. Ltd. v. Violet Ouchterlong Waoshare, AIR 1969 SC 843, appraised the principles of escheat in the Constitutional context (particularly, Article 296 of the Constitution) and held as under:
“In this country escheat is not based on artificial Rules of Common Law and is not an incident of feudal tenure. It is an incident of sovereignty and rests on the principle of ultimate ownership by the State of all property within its jurisdiction.”
Bona vacantia: It is the legal principle that asserts that the Crown takes (as bona vacantia) goods in which no one else can claim property as a rightful owner.
Article 296 of the Constitution Asserts These Rights
Article 296 of the Constitution of India reads as under:
“Property accruing by escheat or lapse or as bona vacantia – Subject as hereinafter provided, any property in the territory of India which, if this Constitution had not come into operation, would have accrued to His Majesty or, as the case may be, to the Ruler of an Indian State by escheat or lapse, or as bona vacantia for want of a rightful owner, shall if it is property situate in a State, vest in such State, and shall, in any other case, vest in the Union.”
It depends upon the nature of the property; such as, movable or immovable property. Prior ownership, possession existed at the time of abandonment, duration of possession after abandonment, etc. are also important. In most cases, especially in immovable properties, it is reverted back to the prior owners or other co-owners.
Generally speaking, subject to the custom and the special or common law on this subject, the rights on abandoned properties are acquired ‘by the Occupant, who first took possession of them with the intention of keeping them as his own‘ as stated by Sir Henry Sumner Maine in “Ancient Law”, Chapter-VIII, ‘The Early History of Property’. It reads as under:
“Occupancy is the advisedly taking possession of that which at the moment is the property of no man, with the view (adds the technical definition) of acquiring property in it for yourself. The objects which the Roman lawyers called res nullius — things which have not or have never had an owner–can only be ascertained by enumerating them. Among things which never had an owner are wild animals, fishes, wild fowl, jewels disinterred for the first time, and lands newly discovered or never before cultivated. Among things which have not an owner are movableswhich have been abandoned,lands which have been deserted, and (an anomalous but most formidable item) the property of an enemy. In all these objects the full rights of dominion were acquired by the Occupant, who first took possession of them with the intention of keeping them as his own–an intention which, in certain cases, had to be manifested by specific acts.” (Quoted in Bhikhari v. DDC, 2018 (141) RD 130 (Sudhir Agarwal, J.)
Oral Evidence as to Contents of a Marked Document is Irrelevant and Inadmissible.
No Application Needed for leading Secondary Evidence, under Section 65.
Best Available Evidence must be Produced; If Not, Adverse Presumption will be Taken.
There is No Bar for Exhibiting Photocopy of a Sale Deed; Certified Copy cannot be Insisted citing Section 65 clause (f).
Who Should Object FIRST – Court or Opposite Side?Two Views:
First view: Court is under an obligation to exclude.
Second view: If no objection, Court has to mark,
Secondary-evidence, Marked Without Objection – Objection stands waived.
Admission of Contents of a Document may Dispense With Proof – But Probative Value thereof might be Less Or Nil.
PART I
Best Evidence Rule Insists Primary Evidence
Contents of documents are to be proved by the document itself; or, its copy. Best evidence rule insists production of original (i.e., primary evidence) when it exists.
‘Oral evidence as to the contents of a document is admissible only in rare occasions’. It is the purposive scheme of the Evidence Act – as emanated from Sections 59, 61, 62, 64, 65 and 144.
Sec. 59 of the Evidence Act reads as under:
“59. Proof of facts by oral evidence — All facts, except the contents of documents or electronic records, may be proved by oral evidence.”
Sec. 61 of the Evidence Act reads:
61. Proof of contents of documents—The contents of documents may be proved either by primary or by secondary evidence.
Sec. 62 defines primary evidence to mean ‘the document itself’ produced for the inspection of the Court.
Sec. 64 of the Act requires that that the documents to be proved primarily by ‘primary evidence’, except in cases where secondary evidence is provided under Sec. 65.
Sec. 65, clause (a) to (g) delineates the cases in which secondary evidence relating to documents may be given.
Sec. 144 of the Evidence Act reads as under:
144. Evidence as to matters in writing—Any witness may be asked, whilst under examination, whether any contract, grant or other disposition of property, as to which he is giving evidence, was not contained in a document, and if he says that it was, or if he is about to make any statement as to the contents of any document, which, in the opinion of the Court, ought to be produced, the adverse party may object to such evidence being given until such document is produced, or until facts have been proved which entitle the party who called the witness to give secondary evidence of it.
Explanation.—A witness may give oral evidence of statements made by other persons about the contents of documents if such statements are in themselves relevant facts.
Illustration. The question is, whether A assaulted B. C deposes that he heard A say to D — “B wrote a letter accusing me of theft, and I will be revenged on him”. This statement is relevant as showing A’s motive for the assault, and evidence may be given of it, though no other evidence is given about the letter.
When Document Available, Oral EVIDENCE as to its Contents Discarded
Oral evidence as to the contents of a document is admissible only in rare occasions. As observed in Shiba Sankar Nanda v. Padmini Naik, ILR 2011-1 Cut (Ori) 792, ‘it is settled principle of law that where documentary evidence is available, no amount of oral evidence against the admitted document is admissible nor can be considered by the Court’. Sections 22, 59, 61, 62, 64, 65 and 144 of the Evidence Act support this view.
Sec. 22 –If Document Available, Oral ADMISSIONS of its Author Ignored
Sec. 22 of the Evidence Act reads as under:
22. When oral admissions as to contents of documents are relevant.—Oral admissions as to the contents of a document are not relevant, unless and until the party proposing to prove them shows that he is entitled to give secondary evidence of the contents of such document under the rules hereinafter contained, or unless the genuineness of a document produced is in question.
Sec. 22 emphasises one thing positively – excepting the two circumstances exempted (when entitled to give secondary evidence and the genuineness of a document is in question) oral admissions on contents of a document (i.e. admission by its author or a person under him) are not relevant. In other words, even if such an evidence is tendered it will not be looked into by the court.
Sec. 22 primarily pertains to ‘admission’; and it does not deal with the ‘entitlement’ to produce a Secondary Evidence as ‘Proof’. Because, Sec. 22 is included in the sections that deal with ‘Admissions’; and it comes in Part I, Chapter II, which speaks on ‘Relevancy of Facts’; and not in Part that relates to ‘Proof’, that is Part II. It is further clear from the marginal note (or heading) of Sec. 22 (‘When oral admissions as to contents of documents are relevant’).
At the same time it must be seen that Section 22 marches in Chapter II, which speaks on ‘Relevancy of Facts’. Sec. 5 raises a total bar to irrelevant ‘evidence’. Sec. 5 of the Evidence Act reads as under:
“Section 5: Evidence may be given of facts in issue and relevant facts:
Evidence may be given in any suit or proceeding 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.”
Therefore, Sec. 22 bars the author and persons under him from giving oral evidence as to contents of the document, if the document is available.
Statements of Witnesses as Explanation of Admitted Document is also Excluded
As already shown, the oral statements of witnesses as regards the contents in an admitted document is irrelevant and therefore liable to be eschewed. Further, Sec. 93 and 94 speak as to exclusion of evidence (i) that intend to ‘explain or amend ambiguous document’ and (ii) that stands ‘against application of the document to existing facts’.
Will Erroneous or Misguided Oral Evidence on Contents of a Document Harm its Author?
No. Because, such evidence is ‘irrelevant’.
Words in the Instruments Matters; Not the Presumed Intention
Brett L.J. in Re Meredith, ex parte Chick, (1879) 11 Ch D 731, observed as under:
“I am disposed to follow the rule of construction which was laid down by Lord Denman and Baron Parke ……. They said that in construing instruments you must have regard not to the presumed intention of the parties, but to the meaning of the words which they have used.” (Quoted in: VS Talwar v. Prem Chandra Sharma, AIR 1984 SC 664; Damodaram Pillai v. Dhanalakshmi Ammal, (1981) 1 MLJ 171; Thomas v. AA Henry, 2008(2) KLT 63.)
Documentary Evidence and Proof of Oral Evidence of its ‘Contents‘
In Bhima Tima Dhotre v. The Pioneer Chemical Co. (1968) 70 BomLR 683, it is observed as under:
“Documentary evidence becomes meaningless if the writer has to be called in every case to give oral evidence of its contents. If that were the position, it would mean that, in the ultimate analysis, all evidence must be oral and that oral evidence would virtually be the only kind of evidence recognised by law. That, however, is not the position under the Evidence Act. … Section 59 of the said Act enacts that all facts, except the “contents” of documents, may be proved by oral evidence. This provision would clearly indicate that to prove the contents of a document by means of oral evidence would be a violation of that section.”
‘Rule of Best Evidence’ – As regards Documents in the Evidence Act
Sections 22, 59, 61, 62, 64 and 144 of the Evidence Act project the ‘rule of best evidence’ and it directs that the contents of the document are to be proved by the original document itself, unless secondary evidence is provided under Sec. 65. (See: Bimla Rohal v. Usha, 2002-2 HLJ 745; 2002-2 Shim LC 341)
Sec. 91 and 92 provides that when terms of a contract, or of a grant, or of any other disposition of property, have been reduced to the form of a document, and in all cases in which any matter is required by law to be reduced to the form of a document, their terms alone are taken to be the sources of what the parties wished to state; and oral evidence to the contrary, are excluded.
The word ‘disposition’ is not a ‘term of law’ as observed in Pushpalatha N V v. V Padma, AIR 2010 Kant 124. It is said as under:
“The term ‘disposition’ has been defined in Stroud’s Judicial Dictionary as a devise ‘intended to comprehend a mode by which property can pass, whether by act of parties or by an act of the law’ and ‘includes transfer and change of property. The word ‘disposition’ means giving away or giving up by a person of something which was his own. It is not a term of law. In has no precise meaning. Its meaning has to be gathered from the context in which it is used. The word ‘disposition’ in relation to property means disposition made by deed or will and also disposition made by or under a decree of a court. The word ‘disposition’ would ordinarily be used in reference to a written document and not to the effect of that document. The removal of a thing from one’s self is involved in a disposal. The disposition is the provision creating the interest, not the interest itself. Therefore, disposition means a plan or arrangement for the disposal, distribution of something; definite settlement with regard to some matter.”
Both Sec. 91 and 92 are also based on “best evidence rule”. (S. Saktivel v. M. Venugopal Pillai 2007-7 SCC 104; Mumbai International Airport v. Golden Chariot Airport, (2012) 10 SCC 422; Tulsi v. Chandrika Prasad, AIR 2006 SC 3359).
The Supreme Court held in Roop Kumar v. Mohan Thedani: AIR 2003 SC 2418, as under:
“The grounds of exclusion of extrinsic evidence are:
(i) to admit inferior evidence when law requires superior would amount to nullifying the law,
(ii) when parties have deliberately put their agreement into writing, it is conclusively presumed, between themselves and their privies, that they intended the writing to form a full and final statement of their intentions, and one which should be placed beyond the reach of future controversy, bad faith and treacherous memory.”
However, it is held in Jahuri Sah v. Dwarka Prasad Jhunjhunwala, AIR 1967 SC 109, that oral evidence can be given on a matter (adoption) which is not required by law to be in writing and it is not barred for the mere reason it was contained in a document. It is held as under:
“This admission, however, would not render oral evidence inadmissible because it is not by virtue of a deed of adoption that a change of status of a person can be effected. A deed of adoption merely records the fact that an adoption had taken place and nothing more. Such a deed cannot be likened to a document which by its sheer force brings a transaction into existence. It is no more than a piece of evidence and the failure of a party to produce such a document in a suit does not render oral evidence in proof of adoption inadmissible.”
EXCEPTIONS to Rule of Irrelevancy of Oral Evidence under Sec. 92, Evidence Act
Sec. 92 Evidence Act reads as under:
92. Exclusion of evidence of oral agreement—When the terms of any such contract, grant or other disposition of property, or any matter required by law to be reduced to the form of a document, have been proved according to the last section, 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
Following are the exceptions in (the provisos of) Sec. 92 Evidence Act to the general rule as to bar of oral evidence on contents of documents:
Provisos to Sec. 92:
Proviso (1). –– Any fact may be proved which would invalidate any document, or which would entitle any person to any decree or order relating thereto; such as fraud, intimidation, illegality, want of due execution, want of capacity in any contracting party, want or failure] of consideration, or mistake in fact or law.
Proviso (2). ––The existence of any separate oral agreement as to any matter on which a document is silent, and which is not inconsistent with its terms, may be proved. In considering whether or not this proviso applies, the Court shall have regard to the degree of formality of the document.
Proviso (3). ––The existence of any separate oral agreement, constituting a condition precedent to the attaching of any obligation under any such contract, grant or disposition of property, may be proved.
Proviso (4). ––The existence of any distinct subsequent oral agreement to rescind or modify any such contract, grant or disposition of property, may be proved, except in cases in which such contract, grant or disposition of property is by law required to be in writing, or has been registered according to the law in force for the time being as to the registration of documents.
Proviso (5). –– Any usage or custom by which incidents not expressly mentioned in any contract are usually annexed to contracts of that description, may be proved:
Provided that the annexing of such incident would not be repugnant to, or inconsistent with, the express terms of the contract.
Proviso (6). –– Any fact may be proved which shows in what manner the language of a document is related to existing facts.
PART II
Primary and Secondary Evidence
Sec. 61 of the Evidence Act directs that the contents of documents may be proved either by primary or by secondary evidence.
Sec. 62 says that Primary evidence means the document itself produced for the inspection of the Court.
Sec. 63 lays down the mode of secondary evidence permitted by the Act. It reads as under:
“63. Secondary evidence means and includes—
(1) Certified copies given under the provisions hereinafter contained;
(2) Copies made from the original by mechanical processes which in themselves insure the accuracy of the copy, and copies compared with such copies;
(3) Copies made from or compared with the original;
(4) Counterparts of documents as against the parties who did not execute them;
(5) Oral accounts of the contents of a document given by some person who has himself seen it.”
Secondary Evidence of Documents Permitted in Clauses (a) to (g) of Sec. 65
As pointed out earlier, Sec. 64 of the Evidence Act stipulates that documents must be proved by primary evidence except in the cases mentioned in Sec.65.
Clauses (a) to (g) of Sec. 65 delineate the cases in which secondary evidence relating to documents may be given.
Sec. 65 reads as under:
“65. Cases in which secondary evidence relating to documents may be given. Secondary evidence may be given of the existence, condition, or contents of a document in the following cases:
(a) When the original is shown or appears to be in the possession or power— of the person against whom the document is sought to be proved, or of any person out of reach of, or not subject to, the process of the Court, or of any person legally bound to produce it, and when, after the notice mentioned in section 66, such person does not produce it;
(b) when the existence, condition or contents of the original have been proved to be admitted in writing by the person against whom it is proved or by his representative in interest;
(c) 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;
(d) when the original is of such a nature as not to be easily movable;
(e) when the original is a public document within the meaning of section 74;
(f) when the original is a document of which a certified copy is permitted by this Act, or by any other law in force in India to be given in evidence.
(g) when the originals consists of numerous accounts or other documents which cannot conveniently be examined in Court, and the fact to be proved is the general result of the whole collection.
In cases (a), (c) and (d), any secondary evidence of the contents of the document is admissible.
In case (b), the written admission is admissible.
In case (e) or (f), a certified copy of the document, but no other kind of secondary evidence, is admissible.
In case (g), evidence may be given as to the general result of the documents by any person who has examined them, and who is skilled in the examination of such documents.
Sec. 65 clause (f) – Certified Copy is Permitted “to be Given in Evidence”
Sec. 65 clause (f) reads as under:
“When the original is a document of which a certified copy is permitted by this Act, or by any other law in force in India to be given in evidence”.
“Permitted … to be given in evidence” connotes – without “reference to” or without explaining “where the original is”.
It applies when the original is a document of which certified copy is “permitted to be given in evidence” either by Evidence Act or by any other law in force in India. See:
Lalpratapsing Shivsahaysing v. State, 1963 CrLJ 355; 1963 GLR 448
Hanumappa Bhimappa Koujageri v. Bhimappa Sangappa Asari, ILR 1996 Kar 1517; 1996-5 KarLJ 67
Saudul Azeez v. District Judge, Gorakhpur, 1999 (4) AWC 3213
Hindustan Petroleum Corporation Limited v. Badri Nath Khanna, 2015 All CJ 328; 2014-3 ARC 667; 2015-126 Rev Dec 762
Gonepalli Rajamallaiah v. Ragipalli Rajaram, 2017-3 ALD 511; 2017-3 ALT 245
Hari Om Gupta v. Jyoti Bhatia, 2020 8 ADJ 31; 2020 140 All LR 557; 2020 3 AWC 2930.
Note: There would have been no need or scope for a prob, in all these cases, if there was a comma (,) after the words “or by any other law in force in India”; or there was no comma (,) after the words “permitted by this Act”, in the original text of the Act.
Certified copy of a Regd. Sale Deed does not fall u/s. 65(f)
Section 76 of the Evidence Act provides for certified copies. Genuineness of certified copies can be presumed under Section 79 read with ‘regularity’ under Sec. 114, Evidence Act. Therefore, the certified copy of a registered sale deed shall be admissible as secondary evidence, as provided under Sec. 63. In this regard, following questions are often raised:
Is there Total Bar for Exhibiting Photocopy of a Sale Deed (Other Than a Certified Copy)under Section 65 clause (f)?Is Certified Copy of a Sale Deed Essential?
The answer is ‘No’.
The doubt arises from or ‘in terms of‘ clauses (e) and (f) of Sec. 65.
Sec. 65 clauses (e) and (f) read as under:
“(e) when the original is a public document within the meaning of section 74;
(f) when the original is a document of which a certified copy is permitted by this Act, or by any other law in force in India to be given in evidence.”
Sec. 65 further lays down –
“In case (e) or (f), a certified copy of the document, but no other kind of secondary evidence, is admissible.”
By virtue of the above provisions in Sec. 65, it is often debated that ‘a certified copy’ of the Sale Deed alone, and “no other kind of secondary evidence, is admissible”. It is not well-founded; because,
(1) the copy of the deeds in the Books in the Sub Registrar’s Office is not “a public document within the meaning of section 74” – referred to in clauses (e) of Sec. 65.
(2) the copy of the deeds in the Books in the Sub Registrar’s Office is not “a document of which a certified copy is permitted by this Act, or by any other law in force in India to be given in evidence” – referred to in clauses (f) of Sec. 65.
No (procedural) law permits production of ‘certified copy’ of a sale deed, in the court, without saying where the original is or it is lost (i.e., without laying the foundational evidence for the non production of the original) .
Therefore, it is beyond doubt that any (admissible) kind of secondary evidence of a sale deed can be given in evidence.
Note: In C. Assiamma v. State Bank of Mysore, 1992 -74 Com Cas 139, it is pointed out that, for the purposes of creating an equitable mortgage, the copy of a transfer-deed is not (ordinarily) a ‘document of title’, 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.
Rule of ‘Next Best Evidence’
But, as stated above, under the Rule of Best Evidence, the law mandates production of thenext best evidence, if it is not possible to produce the best evidence. Certified Copy of the sale deed obtained from the Sub Registrar’s office is the is the ‘next best evidence‘ so far as a Sale deed is concerned. Hence it may be insisted. The following decisions clearly explain the legal position:
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.)
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 is 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.)
M/s. MAVR Nataraja Nadar v. State Bank of India, 1993(1) LW 456
Best Evidence Rule is Insisted on ‘Evidence of High Probative Value‘
Though various kinds of secondary evidences are provided under Sec. 63, the ‘probative value’ of one kind (say, a photograph/photostat of an original document, as stated in Illustration (a) of Sec. 63) will definitely be higher when compared with another (say, oral account). The best evidence rule insists for evidence bearing high ‘probative value’. In State of Bihar v. Radha Krishna Singh (AIR 1983 SC 684) it is observed as under:
“Admissibility of a document is one thing and its probative value quite another—these two aspects cannot be combined. A document may be admissible and yet may not carry any conviction and weight or its probative value may be nil.”
Secondary Evidence would be Admissible only in Exceptional Cases
It is pointed out by our Apex Court in various decisions including M. Chandra v. M. Thangamuthu, (2010) 9 SCC 712, that the production of primary document is the rule; the secondary evidence would be admissible (without the ‘foundational evidence’) only in exceptional cases (Sec. 65, clauses ‘e’ and ‘f’). Primarily, to admit secondary evidence:
(i) there should be authenticated foundational evidence that the alleged copy is in fact a true copy of the original, and
(ii) the party concerned was genuinely unable to produce the original.
If Plea, Executant Has Not Signed And Document Forged, Need Not Adduce Evidence
In Mamndra Kumardey v. Mahendra Suklabaidya, 1999 GauLR 2219, it was observed as under:
“As pointed out by the Apex Court in AIR 1971 SC 2548 (Dattatriya-Vs-Raj Nath) what facts and circumstances have to be established to prove the execution of a document depend on the plea put forward. If the only plea taken is that the executant has not signed the document and the document is forgery, the party seeking to prove the execution of a document need not adduce evidence to show that the party who signed the document knew the contents of the same. If there is a plea regarding contents, it may be necessary to place materials regarding contents and knowledge of the executant of the contents.” (Quoted in Akbarbhai Kesarbhai Sipai v Mohanbhai Ambabhai Patel, 2019-3 GLH 523)
If Certified Copies, How Signatures/Thumb Impression To Be Proved
Mamndra Kumardey v. Mahendra Suklabaidya, 1999 GauLR 2219, continued as under:
“The next question is the presumption of execution under Registration Act and how far it dispenses with the proof as required under Section 67 of the Evidence Act. The Sections throwing light on this are the Sections 58, 39 and 60 of the Registration Act. Section 58 provides for particulars to be endorsed on documents admitted to registration, Section 59 provides that the endorsements are to be dated and signed by registering officer, Section 60 provides for certificate of registration. The law on this point is that presumption under Section 60(2) of the Registration Act cannot take the place of proof as required by Section 67 of the Evidence Act when witnesses are available to prove the document in the manner as laid down in Evidence Act. If that is not adhered to it may open a floodgate of fraud and a court has a duty/obligation to close it. A certified copy usually will be a weak piece of evidence and it can never take place of the original, the original has its own worth and value as a piece of evidence. Under the Registration Manual signatures/thumb impression of the executant are to be taken in a Register by the Registering Officer, in case of certified copies even that may be proved.” (Quoted in Akbarbhai Kesarbhai Sipai v Mohanbhai Ambabhai Patel, 2019-3 GLH 523)
PART III
MARKING OF DOCUMENTS LIABLE TO BE OBJECTED FOR ‘SECONDARY EVIDENCE‘
Following are improper modes (liable to objection):
Seeking exhibition through one who cannot vouchsafe veracity.
Objectionable (mode of) secondary evidence. Eg:
Certified copy produced without proving circumstances that entitles to give secondary evidence under Sec. 65 of the Evd. Act.
Secondary evidence other than that is recognised under Sec. 63 .
Unstamped or insufficiently/improperly stamped document.
Documents Marked Without Objection as to its MODE OF PROOF – Effect
The law prevails in India is the following –
If documents marked without objection as to its mode of proof, it is not open to the other side to object to their admissibility afterwards.
Following are the decisive decisions in this line.
Admissibility of police reports without examining the Head Constables who covered those meetings. Those reports were marked without any objection. Hence it was not open to the respondent to object to their admissibility.
Relied on: Bhagat Ram v. Khetu Ram, AIR 1929 PC 110.
R.V.E. Venkatchalla Gounder v. Arulmighu Viswesaraswamy and V.P.Temple, (2003) 8 SCC 752 (R.C. Lahoti, Ashok Bhan, JJ.)
Photo copies were admitted in evidence ‘without foundation‘ and without objection. They cannot be held inadmissible for originals were not produced.
Relied on: Padman v. Hanwanta, AIR 1915 PC 111 P.C. Purushothama Reddiar v. S.Perumal
PC Thomas v. PM Ismail, AIR 2010 SC 905; 2009-10 SCC 239.
Non-examination of Witness to Prove Truth- If no objection on ‘mode of proof’ in trial court, it will be too late (in appeal) to raise objection on the ground of mode of proof – that is, “non production of John K as a witness”.
…
Rafia Sultan v. Oil And Natural Gas Commission (I.C. Bhatt, S.B. Majmudar, JJ.), 1986 ACJ 616; 1986 Guj LH 27; 1985-2 GujLR 1315
No objection about the truth of contents of Ex. 32. The witness of the defendant accepted the contents. Therefore, too late in the day to canvass that contents of Ex. 32 were not proved.
…
Smt. Dayamathi Bai v. K.M. Shaffi, AIR 2004 SC 4082
Objection to be taken at trial before document is marked as an ‘exhibit’.
Relied on: Gopal Das v. Sri Thakurji R.V.E. Venkatachala Gounder
Sarkar on Evidence .
If copies of the documents are admitted without objection in the trial Court, no objection can be taken in appeal
Referred to in: Smt. Dayamathi Bai v. K.M. Shaffi, AIR 2004 SC 4082.
It was observed by the Supreme Court in Bipin Shantilal Panchal v. State of Gujarat, AIR 2001 SC 1158, that that ‘it is an archaic practice that during the evidence collecting stage, whenever any objection is raised regarding admissibility of any material in evidence the court does not proceed further without passing order on such objection’. And the Court directed as under:
“When so recast, the practice which can be a better substitute is this: Whenever an objection is raised during evidence taking stage regarding the admissibility of any material or item of oral evidence the trial court can make a note of such objection and mark the objected document tentatively as an exhibit in the case (or record the objected part of the oral evidence) subject to such objections to be decided at the last stage in the final judgment.”
But, the subsequent decisions in R.V.E. Venkatachala Gounderv. Arulmigu Viswesaraswami: AIR 2003 SC 4548; Dayamathi Baiv. K.M. Shaffi : AIR 2004 SC 4082: (2004) 7 SCC 107 took a contra view. It was held that the objection as to ‘mode of proof’ should be taken at the time of marking of the document as an exhibit, so that the defect can be cured by the affected party.
In Chikka Narasappa v. Venkatamma, 2015-1 AIR Kar. Reports 845, ILR 2015 Kar 907, the ‘ordinary rule’ as to the time of determining questions as to the admissibility of evidence is laid down as under:
“An objection should be taken when the evidence is tendered and not before. The proper time to object to the admissibility of evidence is when the evidence is tendered. The time for determining questions as to the admissibility of evidence is ordinarily the time when they arise i.e., when the evidence is offered, instead of admitting the evidence in the first instance and reserving the question of law as to its admissibility until the end of the trial.”
Admissibility, Reliability of Documents be Considered at Hearing
In K. Mallesh v. K. Narender, 2015-12 Scale 341; 2016-1 SCC 670 (Anil R. Dave, Adarsh Kumar Goel, JJ.) allowed an appeal setting aside the order passed in an interlocutory stage, during the pendency of a suit, holding as under:
“2. In our opinion the High Court should not have interfered at the stage when the trial was still in progress. Therefore, we set aside the impugned order passed by the High Court without going into the merits of the case. We say that the admissibility, reliabiity and registrability of the documents shall be considered independently only at the time of hearing of the trial and not prior thereto. All questions with regard to the aforesaid issues shall remain open.
Who Should Object FIRST – Court or Opposite Side?
There is divergence of judicial opinion as to saying ‘NO’ by court to marking a document with formal defect, beforehand it is objected by the other side. Eg. Tendering copy of a document without furnishing the ‘foundational evidence’ to admit secondary evidence.
First view Court is under an obligation to exclude inadmissible materials.
H. Siddiqui v. A. Ramalingam: AIR 2011 SC 1492 (Followed in: U. Sree v. U. Srinivas: AIR 2013 SC 415.) Yeshoda v. Shoba Ram: AIR 2007 SC 1721
Second view The court cannot object first. If no objection for other side, Court cannot refrain from marking a document on its own volition or choice (on the ground of formal defect).
R.V.E. Venkatchalla Gounder v. Arulmighu Viswesaraswamy and V.P. Temple, (2003) 8 SCC 752 Smt. Dayamathi Bai v. K.M. Shaffi, AIR 2004 SC 4082. (This view is generally followed in India.)
Failure to Raise Objection as to Irregularity of mode,Amounts to Waiver
In RVE Venkatachala Gounder v. Arulmigu Viswesaraswami, AIR 2003 SC 4548: 2003-8 SCC 752 it is held “failure to raise timely objection” as to the irregularity of mode adopted for proving a document “amounts to waiver“.
(Therefore it is clear that ‘objection’ is a matter that primarily remains in the realm of the opposite party; rather than the court).
In RVE Venkatachala Gounder, our Apex Court held as under:
“Ordinarily an objection to the admissibility of evidence should be taken when it is tendered and not subsequently. The objections as to admissibility of documents in evidence may be classified into two classes:
(i) an objection that the document which is sought to be proved is itself inadmissible in evidence; and
(ii) where the objection does not dispute the admissibility of the document in evidence but is directed towards the mode of proof alleging the same to be irregular or insufficient.
In the first case, merely because a document has been marked as ‘an exhibit’, an objection as to its admissibility is not excluded and is available to be raised even at a later stage or even in appeal or revision. In the latter case, the objection should be taken before the evidence is tendered and once the document has been admitted in evidence and marked as an exhibit, the objection that it should not have been admitted in evidence or that the mode adopted for proving the document is irregular cannot be allowed to be raised at any stage subsequent to the marking of the document as an exhibit. The later proposition is a rule of fair play. The crucial test is whether an objection, if taken at the appropriate point of time, would have enabled the party tendering the evidence to cure the defect and resort to such mode of proof as would be regular. The omission to object becomes fatal because by his failure the party entitled to object allows the party tendering the evidence to act on an assumption that the opposite party is not serious about the mode of proof. On the other hand, a prompt objection does not prejudice the party tendering the evidence, for two reasons: firstly, it enables the Court to apply its mind and pronounce its decision on the question of admissibility then and there; and secondly, in the event of finding of the Court on the mode of proof sought to be adopted going against the party tendering the evidence, the opportunity of seeking indulgence of the Court for permitting a regular mode or method of proof and thereby removing the objection raised by the opposite party, is available to the party leading the evidence. Such practice and procedure is fair to both the parties. Out of the two types of objections, referred to hereinabove, in the later case, failure to raise a prompt and timely objection amounts to waiver of the necessity for insisting on formal proof of a document, the document itself which is sought to be proved being admissible in evidence. In the first case, acquiescence would be no bar to raising the objection in superior Court.”
Controversy resolved
1. The court cannot object first. If no objection for other side, Court cannot refrain from marking a document on its own volition (on the ground of formal defect).
R.V.E. Venkatchalla Gounder v. Arulmighu Viswesaraswamy and V.P.Temple, (2003) 8 SCC 752;
Smt. Dayamathi Bai v. K.M. Shaffi, AIR 2004 SC 4082.
2. If the deficiency is pertaining to non-registration of a compulsory registrable document (as it falls under the head, inadmissible document) the court can desist the marking of the document.
3. By virtue of the decision, G. M. Shahul Hameed v. Jayanthi R. Hegde, AIR 2024 SC 3339, unless the court has not applied its mind to the insufficiency of stamp, and unless there is a ‘judicial determination‘, the objection thereof can be raised at any time.
First view: Court is under an obligation to exclude.
Can the court throw-away a Copy strait-away, for not laying down ‘foundational facts’ for its acceptance, is an interesting question.
Similarly, whether the copy must have been authenticated by cogent evidence, before exhibiting the same, that it is the true copy, is also an important question.
S. 65, Evidence Act enumerates the instances where a party is entitled to furnish secondary evidence. It is a condition precedent to establish the circumstances laid down in S. 65, for letting in secondary evidence of a document. Pointing out the right and duty of the court to prevent rushing of inadmissible and irrelevant evidence, it is held in a good number of decisions that the court is under an obligation to exclude such materials, at the threshold. [See: Yeshoda v. Shoba Ram: AIR 2007 SC 1721; U. Sree v. U. Srinivas: AIR 2013 SC 415]
Proof ofCertified Copies Permitted by S. 77; Correctness Presumed by S. 79
Sec. 77 of the Evidence Act permits to produce certified copies of public documents in proof of its contents. Sec. 77 reads as under:
“77. Proof of documents by production of certified copies- Such certified copies may be produced in proof of the contents of the public documents or parts of the public documents of which they purport to be copies.”
In Kalyan Singh v. Chhoti, AIR 1990 SC 396, our Apex Court did not act upon the ‘just an ordinary copy‘, for, there was “also no evidence regarding content of the original sale deed”. It reads as under:
“Section 63 of the Evidence Act mentions five kinds of secondary evidences. Clause (1), (2) and (3) refer to copies of documents; clause (4) refers to counterparts of documents and clause (5) refers to oral accounts of the contents of documents. Correctness of certified copies referred to in clause (1) is presumed under Section 79; but that of other copies must be proved by proper evidence. A certified copy of a registered sale deed may be produced as secondary evidence in the absence of the original. But in the present case Ex. 3 is not certified copy. It is just an ordinary copy. There is also no evidence regarding content of the original sale deed. Ex. 3 cannot, therefore, be considered as secondary evidence. The appellate Court has a right and duty to exclude such evidence.”
Note: It is clear that the word, “considered” is used to denote “accepted“.
In H. Siddiqui v. A. Ramalingam: AIR 2011 SC 1492 it is held as under:
“12. The provisions of Section 65 of the 1872 Act provide for permitting the parties to adduce secondary evidence. However, such a course is subject to a large number of limitations. In a case where the original documents are not produced at any time, nor has any factual foundation been laid for giving secondary evidence, it is not permissible for the court to allow a party to adduce secondary evidence. Thus, secondary evidence relating to the contents of a document is inadmissible, until the non-production of the original is accounted for, so as to bring it within one or other of the cases provided for in the section. The secondary evidence must be authenticated by foundational evidence that the alleged copy is in fact a true copy of the original. Mere admission of a document in evidence does not amount to its proof. Therefore, the documentary evidence is required to be proved in accordance with law. The court has an obligation to decide the question of admissibility of a document in secondary evidence before making endorsement thereon. (Vide Roman Catholic Mission v. State of Madras [AIR 1966 SC 1457] , State of Rajasthan v. Khemraj [(2000) 9 SCC 241 : AIR 2000 SC 1759] , LIC v. Ram Pal Singh Bisen [(2010) 4 SCC 491 : (2010) 1 SCC (L&S) 1072 : (2010) 2 SCC (Civ) 191] and M. Chandra v. M. Thangamuthu [(2010) 9 SCC 712 : (2010) 3 SCC (Civ) 907])”.
H. Siddiqui v. A. Ramalingam is followed in U. Sree v. U. Srinivas: AIR 2013 SC 415
Second view: If No objection, Court has to mark
It is beyond doubt that marking of documents lie in the realm of procedural law. Therefore, a catena of decisions emphasize that it is a matter that falls for the opposite party to waive strict formal proof. That is, the court should not delve to object marking of a secondary evidence, if the opposite party has no objection. [See: Iqbal Basith v. N Subbalakshmi, (2021) 2 SCC 718;RVE Venkatachala Gounderv. Arulmigu Viswesaraswami: AIR 2003 SC 4548; Narbada Devi v. Birendra Kumar: 2003-8 SCC 745; Dayamati Baiv. K.M. Shaffi: AIR 2004 SC 4082; Oriental Insurance Co v. Premlata: 2007-8 SCC 575] Karnataka High Court pointed out in Nanda Behera v. Akhsaya Kumar Behera, 2017AIR (CC) 1893, that once the Court, rightly or wrongly, decides to admit the documents in evidence, so far as the parties are concerned, the matter is closed. This principle is followed in the following cases, with respect to insufficiently stamped document:
Pankajakshan Nair v. Shylaja: ILR 2017-1 Ker 951;
Dundappa v. Subhash Bhimagouda Patil: 2017-3 AIR(Kar)(R) 570;
Savithramma R. C. v. Vijaya Bank; AIR 2015 Kar 175;
Jayalakshmamma v. Radhika: 2015 4 KarLJ 545;
K. Amarnath v. Smt. Puttamma: ILR 1999 Kar. 4634
Secondary Evidence – Should Non-production of Original (Invariably) be Accounted for
Two views exists.
First view: Secondary evidence relating to the contents of a document is inadmissible, until the non-production of the original is accounted for. The secondary evidence must be authenticated by foundational evidence that the alleged copy is in fact a true copy of the original. Mere admission of a document in evidence does not amount to its proof. Therefore, the documentary evidence is required to be proved in accordance with law.
The court has an obligation to decide the question of admissibility of a document in secondary evidence before making endorsement thereon. [H. Siddiqui v. A. Ramalingam: AIR 2011 SC 1492; Nandkishore Lalbhai Mehta v. New Era Fabrics: AIR 2015 SC 3796]
In Rakesh Mohindra v. Anita Beri [2015AIR(SCW) 6271] it is held:
“Mere admission of secondary evidence, does not amount to its proof. The genuineness, correctness and existence of the document shall have to be established during the trial and the trial court shall record the reasons before relying on those secondary evidences.”
Second View:Doctrine of Waiver – It being a matter ‘with reference to’ admissibility of a document doctrine, of waiver applies.
Apparent Confutation Solved – The apparent confutation in this regard can be resolved taking following propositions:
Assertive conditions in Sec. 65 as to production of secondary evidence is mandatory in nature; but not indispensable for it can be waived by the other side, it being a procedural in character.
The court has discretion in ‘insisting‘ original or an authenticated copy; for, it can resort to:
(i) best evidence rule,
(ii) doctrine on probative value of evidence and
(iii) theory of judicial-conscience, justice etc.
No Application Needed for Filing or AdmittingSecondary Evidence
Section 65of the Evidence Act permits secondary evidence in the circumstances or contingencies mentioned therein. The admissibility of the evidence, and the question whether the conditions for leading the secondary evidence are satisfied or not, comes for consideration only in the trial and at the time of exhibiting the document. It is no doubt clear that before adducing the secondary evidence, the party concerned has to establish that the situation stipulated in section 65 exists.
No Petition for Filing or Admitting Photocopy
Our Apex Court held in Dhanpat v. Sheo Ram, 2020 SCC Online SC 606, as under:
“20. There is no requirement that an application is required to be filed in terms of Section 65(c) of the Evidence Act before the secondary evidence is led. A party to the lis may choose to file an application which is required to be considered by the trial court but if any party to the suit has laid foundation of leading of secondary evidence, either in the plaint or in evidence, the secondary evidence cannot be ousted for consideration only because an application for permission to lead secondary evidence was not filed.”
In Satyam Kumar Sah v. Narcotic Control Bureau, 2019 SCC OnLine Del 8409, it is pointed out that Section 65 does not contemplate filing of any application or seeking prior permission of the court for leading secondary evidence; and that merely because an application under Section 65, Indian Evidence Act was filed and allowed, would not ipso facto make secondary evidence admissible, which is otherwise inadmissible.
Loss of Original: It is incumbent upon the party producing the secondary evidence to prove the loss of original under Sec. 65 Clause (c). Permission is also needed to lead secondary evidence.
In a suit for specific performance, in Hira v. Smt. Gurbachan Kaur, 1988 (2) PLR 173, photocopy of the suit agreement alone was produced. After beginning evidence it was submitted that original was lost and application was filed seeking permission to adduce copy. Besides the delay in submitting loss of original, the plaintiff did not state when and under what circumstance the original was lost. In these circumstances the High Court found that the denial of permission to lead secondary evidence, by the trial court, was justifiable. (See also: Gurditta v. Balkar Singh, 1989 (1) PLR 418; Sobha Rani v. Ravikumar– AIR 1999 P&H 21).
In Raj Kumari v. Lal Chand, 1994 (1) Civil Court Cases 477, an issue was raised as to whether the applicant was entitled to secondary evidence. Therefore, it was held that the loss of the document was not required to be proved before trial, on the application under Section 65 Evidence Act.
Note: It appears that in a proper case, in its very peculiar facts, it may be justified in non-suiting the plaintiff, taking a preliminary issue on non-production of original, or insufficiency of grounds for non-production of original; but, it appers, it cannot be taken as a general rule.
Photocopy is a Reliable Secondary Evidence
It falls under Sec. 63(2) it being the product of ‘mechanical processes which in themselves insure the accuracy of the copy‘.
As regards Photocopy, it is laid down in Surinder Kaur v. Mehal Singh, 2014(1) R.C.R. (civil) 467 (P&H) as under:
“a) Photostat copy of a document can be allowed to be produced only in absence of original document.
b) When a party seeks to produce Photostat copy it has to lay the foundational facts by proving that original document existed and is lost or is in possession of opposite party who failed to produce it.
Mere assertion of the party is not sufficient to prove these foundational facts.
c) The objections as to non existence of such circumstances or non existence of foundational facts must be taken at earliest by the opposite party after the photostat copy is tendered in evidence.
d) When the opposite party raises objection as to authenticity of the Photostat copy its authenticity has to be determined as every copy made from a mechanical process may not be accurate. Both the requirements of clause (2) of section 63 are to be satisfied.
e) Allowing production of Photostat copy in evidence does not amount to its proof. Its probative value has to be proved and assessed independently. It has to be shown that it was made from original at particular place and time.
f) In cases where the Photostat copy is itself suspicious it should not be relied upon. Unless the court is satisfied that the Photostat copy is genuine and accurate it should not be read in evidence.
g) The accuracy of Photostat copy shall be established on oath to the satisfaction of court by the person who prepared such copy or who can speak of its accuracy.”
Note: It appears that the proposition, ‘accuracy shall be established on oath’, is a surplusage (for, a photocopy, by itself, ‘insures the accuracy of the copy’ under Sec. 63, and the court is free to apply the presumptions under Sec. 114).
What are the instances where Notice is not required to render Secondary Evidence
As per Section 66, there is no need to render a notice for tendering a secondary evidence:
“(1) when the document to be proved is itself a notice;
(2) when, from the nature of the case, the adverse party must know that he will be required to produce it;
(3) when it appears or is proved that the adverse party has obtained possession of the original by fraud or force;
(4) when the adverse party or his agent has the original in Court;
(5) when the adverse party or his agent has admitted the loss of the document;
(6) when the person in possession of the document is out of reach of, or not subject to, the process of the Court.”
In Prataprai Trumbaklal Mehta v. Jayant Nemchand Shah, AIR 1992 Bom 149, the Bombay High Court has pointed out that Rule 10(1) of the Notaries Rules, 1956 prescribed fees for certifying copies of documents as true copies of the original at the rate set forth therein; and that the ‘copy attestation’ of a document made by a notary public was also an official act. Here also, the Bombay High Court, cautioned that the notary must have properly discharged his duty by making due entry in the notary register etc. It is observed in this decision as under:
“Notarised copies of power of attorney and other documents are filed with Banks, Courts and other public institutions. If documents are marked as true copy by the notary without taking due care and even making any entry in the notary register and without taking signature of an advocate identifying the executant or without taking other reasonable precaution, it cannot be said that the notary is discharging his duty in accordance with law as expected of him.”
Presumption as to Powers-of-Attorney
Sections 85 Sec. 114 of the Indian Evidence Act, 1872 are germane. Under Sec. 85 there is a presumption as to the authority of the Notary Public. That is, if a document contains the seal and signature of a notary public (including foreign countries like USA, UK, Canada) it is presumed to be genuine; and therefore no further evidence need be produced before the court to prove the seal and signature.
Section 85 of the Indian Evidence Act, 1872 reads as 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.
The Presumption is Presumption as to Genuineness
In Rajeshwarhwa v. Sushma Govil: AIR 1989 Delhi 144, it is held that the presumption is with respect to attestation by a ‘Competent Notary’ . It reads as under:
"When a seal of the Notary is put on the document, Sec. 57 of the Evidence Act (courts take judicial notice)comes into play and a presumption can be raised regarding the genuineness of the seal of the said Notary, meaning thereby that the said document is presumed to have been attested by a competent Notary of that country."
Further, Sec. 85 of the Indian Evidence Act provides that the Court shall presume that a power of attorney executed before a Notary Public was duly ‘executed’. The presumption drawn is the presumption as to genuineness of (i) its execution, including (ii) identification of its executant. But, it is a rebuttable presumption. In Prataprai Trumbaklal Mehta v. Jayant Nemchand Shah: AIR 1992 Bom 149, it was observed as under:
“Law takes judicial notice of seal of a notary. In ordinary course, an initial presumption may be made about genuineness of the notarised copy of the document. The underlying idea behind such presumption is that the notary is normally a responsible member of the legal profession and he is expected to take due care to satisfy himself about the identity of the party appearing before him.”
The presumption is presumption as to ‘Authentication’ also
S. 85 of the Indian Evidence Act provides that the Court shall presume that a power of attorney was duly ‘authenticated’ by the Notary Public, also. It is pointed out in Kamla Rani v. M/S. Texmaco: AIR 2007 Delhi 147, that the expression ‘shall presume’ in Section 85 shows that the section is mandatory and that it is well settled that ‘authentication’ would mean more than mere execution.
As stated above, presumption of regularity of official acts can also be invoked and the court can come to a conclusion that the notary public was satisfied himself that the person purported himself had been executed it.
But, the certificate or endorsement of the notary public must apparently show that the notary public had satisfied himself, expressly or impliedly, about the identity of the person executed the document, though there was no prescribed form of authentication.[2] In Prataprai Trumbaklal Mehta v. Jayant Nemchand Shah: AIR 1992 Bom 149, the Bombay High Court cautioned that the notary must have properly discharged his duty by making due entry in the notary register and observing other reasonable precautions.
Best Available Evidence must be Produced; If Not, Adverse Presumption will be Taken
It may not be safe to a party to a suit to fall-back technically on non-reception of notice under Sec. 66 Evidence Act, in the teeth of the ‘best evidence rule’.
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 v. Mohamed Haji Latif & Ors., AIR 1968 SC 1413).”
In Jitendra v. State of M.P, (2004) 10 SCC 562, 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’.
In Digamber 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.
Marking Photocopy of 30 Years Old Official Document, without Objection – Falls u/s. 114(e)
It is held in Kalita Iqbal Basith v. N Subbalakshmi, (2021) 2 SCC 718, as regards photocopies of official/public document, marked without objection, as under:
“The appellants produced photocopies of all other resolutions, government orders and sale deed in favour of their vendor OA Majid Khan by the Municipality. The failure to produce the originals or certified copies of other documents was properly explained as being untraceable after the death of the brother of P.W.1 who looked after property matters. The attempt to procure certified copies from the municipality was also unsuccessful as they were informed that the original files were not traceable. The photocopies were marked as exhibits without objection. The respondents never questioned the genuineness of the same. Despite the aforesaid, and the fact that these documents were more than 30 years old, were produced from the proper custody of the appellants along with an explanation for nonproduction of the originals, they were rejected without any valid reason holding that there could be no presumption that documents executed by a public authority had been issued in proper exercise of statutory powers. This finding in our opinion is clearly perverse in view of Section 114(e) of the Indian Evidence Act 1872, which provides that there shall be a presumption that all official acts have been regularly performed. The onus lies on the person who disputes the same to prove otherwise.”
What is the effect of marking documents without objection; do contents stand proved; does it bar raising objection afterwards?
Divergent views are taken by the Courts depending on the facts of each case.
First view (a) Proof (Contents and ‘Truth of its Contents’) stands established. It cannot be questioned afterwards.
(b) Truth also: See: Rafia Sultan v. Oil And Natural Gas Commission, 1986 ACJ 616; 1985-2 GujLR 1315; PC Thomas v. PM Ismail, AIR 2010 SC 905.
(c) Admission of contents – but, does not dispense with proof of truth of its contents.
(a)RVE Venkatachala Gounder v. Arulmigu Viswesaraswami: AIR 2003 SC 4548; (b) Rafia Sultan v. Oil And Natural Gas Commission (I.C. Bhatt, S.B. Majmudar, JJ.), 1985-2 GujLR 1315: No objection about the truth of contents … before the trial Court. … It is therefore too late in the day for Miss Shah for the Commission to canvass for the first time before us in appeal. Neeraj Dutta Vs. State (Govt. of Delhi) [2023] 4 SCC 731: If no objection as to mode of proof (secondary evidence) when marked, no such objection could be allowed to be raised at any later stage. (c) Sait Tarajee Khimchand v. Yelamarti Satyam, AIR 1971 SC 1865; Nandkishore Lalbhai Mehta v. New Era Fabrics, AIR 2015 SC 3796.
Second View Even if no objection, it does not dispense with proof (as to, both, existence of the document and its truth).
In such a case the document will not be taken as proved.
(Note: It may not be legitimate to apply this principle literatim)
LIC v. Ram Pal Singh Bisen: 2010-4 SCC 491 (Filing of the Inquiry Report or the evidence adduced during the domestic enquiry); H. Siddiqui v. A. Ramalingam, (2011) 4 SCC 240 (Copy of a power of attorney alone was shown to the respondent during cross-examination and he admitted his signature thereon only, and not its contents); Mal Singhvi v. Anand Purohith: 1988 (Supp) SCC 604 (date of birth).
Third view If truth is in issue, mere proof of contents, or marking without objection, is not proof of truth.
See: Narbada Devi Gupta v. Birendra Kumar Jaiswal, 2003-8 SCC 745; Ramji Dayawala Vs. Invest Import: AIR 1981 SC 2085.
Fourth view Admission of contents, and dispenses with proof and truth; but its probative value will be a matter for appreciation by court.
See: State of Bihar v. Radha Krishna Singh, AIR 1983 SC 684 (Admission and probative value – different); Rakesh Mohindra v. Anita Beri: 2015 AIR(SCW) 6271; Kaliya v. State of MP: 2013-10 SCC 758; H. Siddiqui v. A. Ramalingam: AIR 2011 SC 1492; Rasiklal Manikchand v. MSS Food Products: 2012-2 SCC 196.
Fifth view Admission of contents, and dispenses with proof and truth; but Court should require (in proper cases) the party producing the document to adduce proper evidence, and to cure formal defects, invoking – • Sec. 165 of Evidence Act • Sec. 58 of Evidence Act • O. XII, r. 2A Proviso, CPC and • Sec. 294 of the CrPC.
See: Harkirat Singh v. Amrinder Singh, (2005) 13 SCC 511; Umesh Challiyil v. K.P. Rajendra, (2008) 11 SCC 740; KK Ramachandran Master v. MV Sreyamakumar, (2010) 7 SCC 428; AIR 2015 SC 3796.
1. (a) Once no Objection to Mode of Proof, Right to Objection Stands Waived
It is trite law that once no-objection is raised to the mode of proof on account of lack of original, then the right of the opposite party to raise objection (on this score) stands waived. RVE Venkatachala Gounder v. Arulmigu, AIR 2003 SC 4548: (2003) 8 SCC 752, is often quoted to establish the proposition –
It was the position of law accepted by our legal system. See:
Sk. Farid Hussinsab v. State of Maharashtra, 1983 CrLJ 487 (Quoted in Sonu @ Amar v. State of Haryana, AIR 2017 SC 3441; 2017-8 SCC 570)
Rafia Sultan v. Oil And Natural Gas Commission (I.C. Bhatt, S.B. Majmudar, JJ.), 1986 GujLH 27; 1985-2 GujLR 1315 (relied on: P. C. Purushottamman v. S. Perumal AIR 1972 SC 608;
Pandappa v. Shivlingappa 47 BLR. 962; and
Gopaldas v. ShriThakurli AIR 1943 PC 83).
See also:
Lachhmi Narain Singh v. Sarjug Singh, AIR 2021 SC 3873;
Sumita @ Lamta v. Devki, (Valmiki J. Mehta, J.), 25 Sep 2017 (indiakanoon);
Oriental Insurance Co v. Premlata: (2007) 8 SCC 575,
Dayamathi Bai v. KM Shaffi, (2004) 7 SCC 107, AIR 2004 SC 4082;
When a document is marked without objection, our courts take two (divergent) views:
First, both Contents and ‘Truth of its Contents’ stand proved.
Second, contents alonestand proved; and, not ‘Truth’ of its Contents.
Effect of marking document without objection is laid down in the following two recent decisions of the Supreme Court. In both these cases, it is seen, the Apex Court has taken the view that the ‘truth’ is also stood proved.
Neeraj Dutta v. State (Govt. of N. C. T. of Delhi)
The Constitution Bench of our Apex Court laid down in Neeraj Dutta v. State (Govt. of N. C. T. of Delhi), AIR 2023 SC 330; 2023 4 SCC 731, as under:
Section 61 deals with proof of contents of documents which is by either primary or by secondary evidence.
When a document is produced as primary evidence, it will have to be proved in the manner laid down in Sections 67 to 73 of the Evidence Act.
Mere production and marking of a document as an exhibit by the court cannot be held to be due proofof its contents. Its execution has to be proved by admissible evidence. On the other hand, when a document is produced and admitted by the opposite party and is marked as an exhibit by the court, … (sic – no objection can be raised at any later stage with regard to proofof its contents).
The contents of the document must be proved either by the production of the original document i.e., primary evidence or by copies of the same as per Section 65 as secondary evidence.
So long as an original document is in existence and is available, its contents must be proved by primary evidence.
It is only when the primary evidence is lost, in the interest of justice, the secondary evidence must be allowed.
Primary evidence is the best evidence and it affords the greatest certainty of the fact in question.
Thus, when a particular fact is to be established by production of documentary evidence, there is no scope for leading oral evidence.
What is to be produced is the primary evidence i.e., document itself. It is only when the absence of the primary source has been satisfactorily explained that secondary evidence is permissible to prove the contents of documents.
Secondary evidence, therefore, should not be accepted without a sufficient reason being given for non-production of the original.
Once a document is admitted, the contents of that document are also admitted in evidence, though those contents may not be conclusive evidence.
Moreover, once certain evidence is conclusive it shuts out any other evidence which would detract from the conclusiveness of that evidence.
There is a prohibition for any other evidence to be led which may detract from the conclusiveness of that evidence and the court has no option to hold the existence of the fact otherwise when such evidence is made conclusive.
It is held further as under:
“44. Section 64 of the Evidence Act states that documents must be proved by primary evidence except in certain cases mentioned above. ….. Thus, once a document has been properly admitted, the contents of the documents would stand admitted in evidence, and if no objection has been raised with regard to its mode of proof at the stage of tendering in evidence of such a document, no such objection could be allowed to be raised at any later stage of the case or in appeal vide Amarjit Singh v. State (Delhi Admn.) 1995 Cr LJ 1623 (Del) (“Amarjit Singh”). But the documents can be impeached in any other manner, though the admissibility cannot be challenged subsequently when the document is bound in evidence.”
Objection as to non examination of the author is too late in the day
In PC Thomas v. PM Ismail, AIR 2010 SC 905; 2009-10 SCC 239, it is observed that the objection as to non examination of the author is too late in the day . It is held as under:
“No objection on pleas of “inadmissibility” or “mode of proof” was raised at the time of their exhibition or any time later during trial, when most of the witnesses, produced by the parties were confronted with these, as duly exhibited, bearing stamp marking with particulars, prescribed under Order XIII Rule 4 of the Code of Civil Procedure, 1908 and duly signed as such.
In our opinion, it is too late in the day now to object to their exhibition on the ground of “prescribed procedure” i.e. mode of proof.
Moreover, we also find that it was nobody’s case that the said documents were got printed by John K or distributed amongst voters by him. Absence of proof of acknowledgment by him because of non production of John K as a witness, in the circumstances, in our view, is inconsequential.
Admittedly, John K was a well known leader of high stature, recognized as such by Christian/Catholic voters including those mentioned in Para 17 (supra) and, therefore, there is no question of drawing an adverse inference against the election petitioner for not examining him, as strenuously urged on behalf of the appellant, particularly when the printing and circulation of offending material (Exts.P1 and P2) has been proved by the election petitioner beyond reasonable doubt.”
(b) Document marked without objection – Contents (‘TRUTH also) proved
Objection as to Truth of Contents, First Time In Appeal – Effect – Too late in the day
In Rafia Sultan v. Oil And Natural Gas Commission (I.C. Bhatt, S.B. Majmudar, JJ.), 1986 ACJ 616; 1986 Guj LH 27; 1985-2 GujLR 1315 it is observed as under:
“It was never the case of the Commission that report which was submitted in a sealed cover was not the genuine and true report of the committee appointed by the Commission itself. Thus in short no objection about the truth of contents of Ex. 24/1 i. e. Ex. 32 was ever put forward before the trial Court and rightly so as that was the report of its own committee of experts appointed by the Commission for enlightening itself about the causes of the accident and about the future safety steps which were required to be taken to avoid such accidents. … Not only that but the witness of the defendant accepted the contents of the said document Ex. 32. Nothing was suggested by him or even whispered to the effect that the contents of the said report were in any way untrue. …. In fact both the sides have relied upon different parts of Ex. 32 in support of their rival contentions on the aspect of negligence and contributory negligence. It is therefore too late in the day for Miss Shah for the Commission to canvass for the first time before us in appeal that contents of Ex. 32 were not proved in accordance with law and hence the document was required to be taken off the record. It is now well settled that objection about mode of proof can be waived by a party and that such objection is raised by the party at the earliest opportunity in the trial Court such objection will be deemed to have been waived and cannot be permitted to be raised for the first time in appeal (vide P. C. Purushottamman v. S. Perumal AIR 1972 SC 608; Pandappa v. Shivlingappa 47 BLR. 962; and Gopaldas and another v. Shri Thakurli, AIR 1943 PC 83 at page 87 ). In view of this settled legal position the objection raised by Miss Shah against admissibility of Ex. 32 viz. that its contents were not proved in accordance with law has to be repelled.”
When a document is marked without objection, no doubt, the presumption in Sec. 114 of the Evidence Act is wide enough to presume that (i) the “contents” of the document and (ii) its ‘truth’ stand ‘proved’. Therefore, it is the duty of the other side to express its disapproval – that it does not accept the ‘contents’ and/or ‘truth’ (if it is so).
The dissent thereof can be placed by the opposite side by-
Raising ‘objection’ at the time of its marking, or
Placing the protest by way of ‘suggestion’ to the witness or by proper questions.
(c)TRUTH is left to Discretion (Sec. 3) & Presumption (Sec. 114) of Court
Sec. 67, Evidence Act lays down the fundamental principles as to the proof of documents. Sec. 67 reads as under:
“67. Proof of signature and handwriting of person alleged to have signed or written document produced—If a document is alleged to be signed or to have been written wholly or in part by any person, the signature or the handwriting of so much of the document as is alleged to be in that person’s handwriting must be proved to be in his handwriting.”
Sec. 67 says as to ‘proof of signature and handwriting’ alone. Neither Sec. 67 nor any other section of the Evidence Act says about ‘proof as to truth‘ of contents of documents.
Inferences as to “TRUTH of contents
Evidence Act does not expressly proffer anything as to “TRUTH of contents” of documents.
It is left to the discretion (Sec. 3) of the court. In proper cases court can presume (Sec. 114) truth.
In most cases, ‘proof of execution’ leads the court to presume ‘proof of truth’.
It is more so, when a document is admitted (by the other side) without objection.
But, when proof as to ‘truth’ is in issue, or in dispute, the party in whom the burden thereof rests has to discharge it.
(d) Legal Position on ‘Waiver’ of Mode of Proof, Reprised
It appears that the legal position can be summed-up as under –
If a document is marked without objection, the right of objection (vested with the other side) stands waived. And the entire contents of the document will be admissible in evidence.
However, if (i) there is any intrinsic infirmity to the document, or (ii) specific proof as to truth is required in the nature of the case of the parties, or it is marked through a witness who is incompetent to prove it (and the opposite party does not expressly or impliedly accepted it), the court can say – it is not ready to act upon it, for truth or correctness of contents is not established.
In Dibakar Behera v. Padmabati Behera, AIR 2008 Ori 92, it is pointed out that (in such a situation) there must be some evidence to support the contents of such document.
The following decisions also lay down the proposition that ‘mere marking of a document’ as an ‘exhibit’ may amount to proof of contents, but not its ‘truth’.
Rakesh Mohindra v. Anita Beri, 2015 AIR(SCW) 6271.
Kaliya v. State of Madhya Pradesh, 2013-10 SCC 758;
Sait Khimchand v. Yelamarti Satyam, AIR 1971 SC 1865;
Nandkishore Lalbhai Mehta v. New Era Fabrics, AIR 2015 SC 3796 (“Mere identifying the signature of Mr. Pathak (by a witness) does not prove the contents of the said letter which is being relied upon by the appellant.”);
It is apposite to note – in RVE Venkatachala Gounder v. Arumlmigu Viswesaraswami, AIR 2003 SC 4548, the question as to ‘truth’ of contents did not specifically come for consideration. It is dealt with as under:
“Since documents A30 and A34 were admitted in evidence without any objection, the High Court erred in holding that these documents were inadmissible being photo copies, the originals of which were not produced.”
Standard of Proofin Civil Cases – Preponderance of Probability
It is noteworthy that the standard of proof required in civil cases is different from that of criminal cases; since, civil court proceeds on a preponderance of probability, whereas criminal court insists ‘proof beyond reasonable doubt’. In Miller v. Minister of Pensions, (1947)2 All ER 372, Lord Denning, described preponderance of probability as “more probable than not”. It is said in picturesque as ‘likelihood of 51%’.
Secondary Evidence–Marked Without Objection – Objection stands waived.
When the party gives in evidence a certified-copy/secondary-evidence without proving the circumstances entitling him to give secondary evidence, the opposite party must raise his objection (if so) at the time of admission of such documents. In case, an objection is not raised at that point of time, it is precluded from raising it at a belated stage. It stands waived. [Iqbal Basith v. N Subbalakshmi, (2021) 2 SCC 718; Kaliya v. State of MP: 2013-10 SCC 758]
Marked Without Objection – Do its ‘contents’ stand proved, as admission?
Divergent views exist.
(a) Proof of execution may be enough – Its‘Contents’ stand proved:Exhibiting of documents in evidence without objection amounts to ‘admission’ of its contents. Admission is taken in law as an important characteristic. In this premises, proof of execution may be enough; and no separate proof be needed.
When a document is marked without objection, its ‘contents’ stand proved. See: RVE Venkatachala Gounder v. Arulmigu Viswesaraswami: AIR 2003 SC 4548. See also:
Narbada Devi v. Birendra Kumar: (2003) 8 SCC 745
Dayamati Bai v. K.M. Shaffi : AIR 2004 SC 4082
Oriental Insurance Co. v. Premlata: (2007) 8 SCC 575
Thimmappa Rai v. Ramanna Rai,(2007) 14 SCC 63.
(b) Proof of execution may not be enough: Exhibiting of documents in evidence, without objection, and proving the same before the court are two different process. In certain cases, as comes out from Sec. 56, 57 and 58 of the Evidence Act, when a document is admitted, separate proof need not be warranted. Separate proof may not be required when presumptions can be invoked (e.g. document in ordinary course of business, a letter obtained in reply).
Factual Foundation to give Secondary Evidence must have been Established. The party has to lay down the factual foundation to establish the right to give secondary evidence where the original document cannot be produced. In Rakesh Mohindra v. Anita Beri: 2015AIR(SCW) 6271, it is held as under:
“It is well settled that if a party wishes to lead secondary evidence, the Court is obliged to examine the probative value of the document produced in the Court or their contents and decide the question of admissibility of a document in secondary evidence. At the same time, the party has to lay down the factual foundation to establish the right to give secondary evidence where the original document cannot be produced. It is equally well settled that neither mere admission of a document in evidence amounts to its proof nor mere making of an exhibit of a document dispense with its proof, which is otherwise required to be done in accordance with law.” (M. Chandra v. M. Thangamuthu, (2010) 9 SCC 712, relied on)
Mere marking– not dispense with proof (of truth of contents)
Following are the often-cited cases on this subject.
The Proposition -Mere Marking Does Not Prove the Contents – was NOTapplied in the following decisions.
Decision
Did the Documents Mark without Proper Proof was accepted in evidence?
Reason for NOT Appling the Proposition Mere Marking Does Not Prove the Contents
Narbada Devi Gupta v. Birendra Kumar Jaiswal, 2003-8 SCC 745
Yes. The rent receipts were received in evidence. (without formal proof)
The rent receipts were ‘not disputed’ by the other side.
Kaliya v. State of Madhya Pradesh, 2013-10 SCC 758
Yes. The secondary evidence of dying declaration produced in this case was accepted by the Court.
Secondary evidence was adduced with foundational evidence (for producing copy; not original)
The Proposition -Mere Marking Does Not Prove the Contents – was applied in the following decisions; but, not unreservedly.
Decision
Did the proposition – Mere Marking Does Not Prove the Contents – unreservedlyapply?
Reason for NOT applying the Proposition Mere Marking Does Not Prove Contents, unreservedly
Ramji Dayawala v. Invest Import: AIR 1981 SC 2085
No. Truth of contents of a letter and two telegrams were not taken. (though marked)
Truth of the facts in the document was “in issue“
M. Chandra v. M. Thangamuthu, 2010-9 SCC 712
No. Validity and Genuineness of the Photocopy (of the Caste Certificate) was not accepted (though marked)
Validity and Genuineness of the Caste Certificate was very much in question
H. Siddiqui v. A. Ramalingam, (2011) 4 SCC 240
No. Contents of the Photocopy was not received as proof (though marked)
Photocopy was shown to the witness during cross-examination alone, and Signature alone was admitted by the witness.
Tarajee Khimchand v. Yelamarti Satyam, AIR 1971 SC 1865
No. Accounts of the Plaintiff was not received as proof (though marked)
The accounts of the Plaintiff would not be proved by itself
Admission of Contents– May Dispense With Proof; But Probative Value may be Less Or Nil
Admissibility & probative value – two matters. In State of Bihar v. Radha Krishna Singh (AIR 1983 SC 684) it is observed:
“Admissibility of a document is one thing and its probative value quite another—these two aspects cannot be combined. A document may be admissible and yet may not carry any conviction and weight or its probative value may be nil.”
Court Examines Probative Value of Secondary Evidence: It is well settled that if a party wishes to lead secondary evidence, the Court is obliged to examine the probative value of the document produced in the Court or their contents and decide the question of admissibility of a document in secondary evidence [Rakesh Mohindra v. Anita Beri: 2015 AIR(SCW) 6271].
Contents of the document cannot be proved by mere filing the document in a court. Under the Law of Evidence, it is necessary that contents of documents are required to be proved either by primary or by secondary evidence. Mere marking a document as an ‘exhibit’ will not absolve the duty of to prove the documents in accordance with the provisions of the Evidence Act. At the most, marking ‘exhibit’may amount to proof of contents, but not its truth.
Documents which are not produced and marked as required under the Evidence Act cannot be relied upon by the Court. [See: LIC v. Ram Pal Singh Bisen: 2010-4 SCC 491 (Filing of the Inquiry Report or the evidence adduced during the domestic enquiry); M. Chandra v. M. Thangamuthu, (2010) 9 SCC 712, Nandkishore Lalbhai Mehta v.New Era Fabrics: AIR 2015 SC 3796; Birad Mal Singhvi v. Anand Purohitb: 1988 (Supp) SCC 604 (date of birth)]
Even when a document is technically admitted in court, the probative value thereof will always be a matter for the court to determine. That is, it is depended upon the nature of each case. The probative value of Scene-Mahazar, Postmortem Report, photocopy of a Registered Deed etc. without supporting legal evidence may be lesser. In such cases the court can refrain from acting upon such documents until regular evidence is tendered.
In Kaliya v. State of MP: 2013-10 SCC 758 (relying on H. Siddiqui v. A. Ramalingam: AIR 2011 SC 1492, and Rasiklal Manikchand v. MSS Food Products: 2012-2 SCC 196) held as under:
“The court is obliged to examine the probative value of documents produced in court or their contents and decide the question of admissibility of a document in secondary evidence.”
[Note: Further held: “In case, an objection is not raised at that point of time, it is precluded from being raised at a belated stage.”]
In Life Insurance Corporation of India v. Ram Pal Singh Bisen [2010-4 SCC 491], it is observed as under:
“26. We are of the firm opinion that mere admission of document in evidence does amount to its proof. In other words, mere marking of exhibit on a document does dispense with its proof, which is required to be done in accordance with law. …..27. It was the duty of the appellants to have proved documents Exh.-A-1 to Exh. A-10 in accordance with law. Filing of the Inquiry Report or the evidence adduced during the domestic enquiry would partake the character of admissible evidence in Court of law. That documentary evidence was also required to be proved by the appellants in accordance with the provisions of the Evidence Act, which they have failed to do.”
The Calcutta High Court quoting Life Insurance Corporation of India v. Ram Pal Singh Bisen [2010-4 SCC 491] it is observed in Bajaj Allianz General Insurance Company v. Smt. Santa (2019-2 ACC 36) that even though ‘the document had been marked as Exhibit-A without objection, without a formal proof thereof in accordance with the provisions of the Evidence Act, such document lost its credibility and is of no probative value’.
Court’s Jurisdiction to Require to Prove an Admitted Document
In any case, besides the powers of the court under Sec. 165 of Evidence Act, the scheme of the Procedural Acts (Evidence Act, CPC and CrPC) shows that the court has jurisdiction to require the party concerned to prove that document. We can rely on Sec. 58 of Evidence Act and Order XII, Rule 2A Proviso of the CPC and Sec. 294 of the CrPC to see the scheme of the procedural laws.
Court should allow (parties) to cure Defects Pertaining to Procedural Matters
Defect for not producing a proper power of attorney being curable, in Haryana State Coop. Supply and Marketing Federation Ltd. v. Jayam Textiles, 2014 AIR SC 1926 (a case under Section 138 Negotiable instruments Act), the Apex Court gave opportunity to the petitioner to produce the authorization of Board of Directors. It is observed that the in Raj Narian v. Indira Nehru Gandhi, (1972) 3 SCC 850 it was held that the rules of pleadings are intended as aids for a fair trial and for reaching a just decision. This principle is reiterated in ever so many cases. They include:
F.A. Sapa v. Singora, (1991) 3 SCC 375;
H.D. Revanna v. G. Puttaswamy Gowda, (1999) 2 SCC 217;
V.S. Achuthanandan v. P.J. Francis, (1999) 3 SCC 737;
Mahendra Pal v. Ram Dass Malanger, (2000) 1 SCC 261;
Virender Nath Gautam v. Satpal Singh, (2007) 3 SCC 617 (observed that facta probanda (material facts) are to be set out in the pleadings and facta probantia (particulars or evidence) need not be set out in the pleadings);
Sardar Harcharan Singh Brar v. Sukh Darshan Singh, (2004) 11 SCC 196 (held that defective verification or affidavit is curable);
Harkirat Singh v. Amrinder Singh, (2005) 13 SCC 511;
Umesh Challiyil v. K.P. Rajendra, (2008) 11 SCC 740;
KK Ramachandran Master v. MV Sreyamakumar, (2010) 7 SCC 428
Conclusion
Inasmuch as (a) mere marking of a document on admission will not (invariably), amount to proof, or evidence of the contents of the document or its truth; (b) the probative value of a document ‘marked without objection’ is low or nil, for want of proper proof; and (c) there is a formal defect to the document for it is a secondary evidence because it is produced without adducing ‘foundational evidence’, it is legitimate to say that before taking an adverse stance as to proof in this count, the court should give an opportunity to the party who relies on the document to cure the deficiency.
The legal position discernible can be summarised as under:
(i) Even when a document is technically ‘admitted’ in court, the probative value thereof will always be a matter for the court; and it is depended upon the nature of each case.
(ii) Whenever the court considers:
(a) mere marking of a document on admission will not amount to proof, or
(b) mere marking is not evidence of the contents of the document or its truth; or
(c) the probative value of a document ‘marked without objection’ is low or nil, for want of proper proof; or
(c) there is a formal defect to the document for it is a secondary evidence because it is produced without adducing ‘foundational evidence’;
then,
before taking an adverse stance as to proof (in this count) the court should give an opportunity to the party who relies on the document, to cure the deficiency.
Election Petition is not an Action at Common Law, Nor in Equity
Trial of Election Petition is Different from Trial of a Civil Suit
Election Law – Technical to Safeguard the Purity of the Election Process
Strict Pleading; and Evidence in Strict Adherence to Pleading
Pleading and Affidavit in Election Cases – to prevent fishing or roving enquiry
No wild goose chase allowed
Pleadings and Issues are to Narrow the Area of Conflict
No Adjudication, If No Issue
Objectionable part of the Speech ought to have Pleaded
No pleading in respect of the ‘remaining 4 tendered votes’
No Amendment of pleading After the Time Limit
Evidence led, without objections – Court could evaluate Worth of that evidence.
Code of Civil Procedure 1908
Order VI, rule 1 and 2 of Code of Civil Procedure 1908 lay down the basics of pleading. They read as under:
Rule 1: Pleading: “Pleading” shall mean plaint or written statement.
Rule 2: Pleading to state material facts and not evidence:
(1) Every pleading shall contain, and contain only a statement in a concise form of the material facts on which the party pleading relies for his claim or defence as the case may be, but not the evidence by which they are to be proved.
(2) Every pleading shall, when necessary, be divided into paragraphs, numbered consecutively, each allegation being, so far as is convenient, contained in a separate paragraph.
(3) Dates, sums and numbers shall be expressed in a pleading in figures as well as in words.
Order 6 rule 4 of the Civil Procedure Code stipulates guidelines for precise pleadings. Order 6 Rule 4 CPC reads as under:
“Rule 4. Particulars to be given where necessary: In all cases in which the party pleading relies on any misrepresentation, fraud, breach of trust, willful default, or undue influence and in all other cases in which particulars may be necessary beyond such as are exemplified in the forms aforesaid, particulars (with dates and items if necessary) shall be stated in the pleading.”
Order VIII Rule 3, 4 and 5CPC reads as under:
Rule 3: Denial to be specific: It shall not be sufficient for a defendant in his written statement to deny generally the grounds alleged by the plaintiff, but the defendant must deal specifically with each allegation of fact of which he does not admit the truth, except damages.
Rule 4: Evasive denial: Where a defendant denies an allegation of fact in the plaint, he must not do so evasively, but answer the point of substance. Thus, if it is alleged that he received a certain sum of money, it shall not be sufficient to deny that he received that particular amount, but he must deny that he received that sum or any part thereof, or else set out how much he received. And if an allegation is made with diverse circumstances, it shall not be sufficient to deny it along with those circumstances.
Rule 5: Specific denial: (1) Every allegation of fact in the plaint, if not denied specifically or by necessary implication, or stated to be not admitted in the pleading of the defendant, shall be taken to be admitted except as against a person under disability :
Provided that the Court may in it discretion require any fact so admitted to be proved otherwise than by such admission.
(2) Where the defendant has not filed a pleading, it shall be lawful for the Court to pronounce judgment on the basis of the facts contained in the plaint, except as against a person under a disability, but the Court may, in its discretion, require any such fact to be proved.
(3) In exercising its discretion under the proviso to sub-rule (1) or under sub-rule (2), the Court shall have due regard to the fact whether the defendant could have, or has, engaged a pleader.
(4) Whenever a judgment is pronounced under this rule, a decree shall be drawn up in accordance with such judgment and such decree shall bear the date on which the judgment was pronounced.
Under Order 6 rule 4, CPC, vague or general allegations are insufficient in pleading with respect to the matters laid down in this rule(f.n. 1) and it requires ‘full‘ particulars of such matters in pleadings(f.n. 2).
Why ‘Particulars’ insisted in Pleadings
1. To narrow down the controversyto precise issues: Ladli Prashad Jaiswal v. Karnal Distillery, Co., AIR 1963 SC 1279; Kalyan Singh Chouhan v. C.P.Joshi, AIR 2011 SC 1127; K. Anil Kumar v. Ajith, ILR 2012-4 Ker 632: 2012-4 KLT 545.
2.Notice to other side and ‘protect the party charged with improper conduct from being taken by surprise’: Ladli Prashad Jaiswal. v. Karnal Distillery, Co., AIR 1963 SC 1279; Ram Sarup Gupta v. Bishun Narain Inter College, AIR 1987 SC 1242.
3.Definiteness to the stance in court. Strictness in pleading ‘material facts’ is adopted in the procedural law also with a view to prevent a party from taking a changed position (from what he had taken at the time of making the pleading) to suit the situation that may be emerged subsequently, and thereby prejudice the other party.
4.It is court that draws inferenceas to ‘abstract’ propositions. Plaint should contain plain facts; not law. Presentation of pleadings in mere ‘abstract’ propositions (like: injury, damages, illegality, trust, bias) is improper. Law requires pleading of “material facts” (rule 2 of Order VI) and “particulars” (rule 4 of Order VI). Facts that lead to such inferences must be pleaded in clear terms; and it is for the court to draw a reasonable inferenceas to such ‘abstract’ propositions or inferences from the facts pleaded and established. (See pleadings as to mere ‘mala fide‘, without details – M. Sankara-narayanan, IAS v. State of Karnataka. AIR 1993 SC 763, Coal India Ltd. v. Ananta Saha, 2011-5 SCC 142; pleadings as to mere ‘consent‘ of a candidate with respect to a corrupt practice, without details – Balan v. Manoharan Master, 1988 (1) KLT 717.
5. Pleadings must be pregnant enough to produce an issue on fact or law,and conduct an investigation (if opposite side varies), inasmuch as a bald and general allegationcannot be sufficient to lead to an issue (K.S. Mariyappa v. K.R. Siddalinga Setty, AIR 1989 Kar 425). General allegations insufficient to take notice by the court, however strong the allegation is (AIR 1977 SC 615).
6. Pleadings constitute the skeleton that give shape to the case. For every motion, including drawing adverse inference for non-production of a document, lack of bonafides etc., the court has to apprise the pleadings (Union of India v. Ibrahim Uddin, (2012) 8 SCC 148).
If no specific pleadings, no evidence can be looked into
In the absence of specific pleadings, no evidence can be looked into in relation thereto.
Duggi Veera Venkata Gopala Satyanarayana Vs. Sakala Veera Raghavaiah (1987) 1 SCC 254;
Sri Venkataramana Devaru Vs. State of Mysore & Ors. AIR 1958 SC 255;
Ram Sarup Gupta (Dead) By LRs v/s. Bishim Narain Inter College & Ors : (1987) 2 SCC 555.
Abubakar Abdul Inamdar Vs. Harun Abdul Inamdar AIR 1996 SC 112,
Gulabrao Balawantrao Shinde Vs. Chhabubai Balawantrao (2003) 1 SCC 212
Bondar Singh Vs. Nihal Singh (2003) 4 SCC 161
M Chandra Vs. M Thangamuthu, AIR 2011 SC 146.
No party should be Permitted to Travel Beyond its Pleading
In Ram Sarup Gupta v. Bishun Narain Inter College, AIR 1987 SC 1242, it was held as under:
“6………It is well settled that in the absence of pleading, evidence, if any, produced by the parties cannot be considered. It is also equally settled that no party should be permitted to travel beyond its pleading and that all necessary and material facts should be pleaded by the party in support of the case set up by it. The object and purpose of pleading is to enable the adversary party to know the case it has to meet…. In such a case it is the duty of the court to ascertain the substance of the pleadings to determine the question.”
Trial of Election Petition is Different from Trial of a Civil Suit
In Kailash v. Nanhku, AIR 2005 SC 2441, our Apex Court held that the trial of an election petition is entirely different from the trial of a civil suit, as in a civil suit trial commences on framing the issues while trial of an election petition encompasses all proceedings commencing from the filing of the election petition up to the date of decision. Therefore, the procedure provided for the trial of civil suits under CPC is not applicable in its entirety to the trial of the election petition. For the purpose of the election petition, the word ‘trial’ includes the entire proceedings commencing from the time of filing the election petition till the pronouncement of the judgment. Relying on Kailash v. Nanhku it is observed in Kalyan Singh Chouhan v. C P Joshi, AIR 2011 SC 1127, that the applicability of the procedure in Election Tribunal is circumscribed by two riders :
first, the procedure prescribed in CPC is applicable only “as nearly as may be”, and
secondly, the CPC would give way to any provisions of the Act or any rules made thereunder.
Therefore, the procedure prescribed in CPC applies to election trial with flexibility and only as guidelines.
Election Law – Technical to Safeguard the Purity of the Election Process
In Harcharan Singh v. S. Mohinder Singh, AIR 1968 SC 1500, our Apex Court pointed out that the election dispute was a statutory proceeding that required strict compliance, observing as under:
“The statutory requirements of election law must be strictly observed. An election dispute is a statutory proceeding unknown to the common law; it is not an action at law or in equity. …… The primary purpose of the diverse provisions of the election law which may appear to be technical is to safeguard the purity of the election process, and the Courts will not ordinarily minimise their operation.” (Quoted in Kalyan Singh Chouhan VS C. P. Joshi, AIR 2011 SC 1127).
Election Petition is not an Action at Common Law, Nor in Equity
In Jyoti Basu v. Debi Ghosal, AIR 1982 SC 983, also it was pointed out that an election petition was not an action at Common Law, nor in equity. The Supreme Court observed as under:
“A right to elect, fundamental though it is to democracy, is, anomalously enough, neither a fundamental right nor a Common Law Right. It is pure and simple, a statutory right. So is the right to be elected. So is the right to dispute an election. Outside of statute, there is no right to elect, no right to be elected and no right to dispute an election. Statutory creations they are, and therefore, subject to statutory limitation. An election petition is not an action at Common Law, nor in equity. It is a statutory proceeding to which neither the common law nor the principles of equity apply but only those rules which the statute makes and applies. It is a special jurisdiction and a special jurisdiction has always to be exercised in accordance with the statute creating it. Concepts familiar to Common Law and Equity must remain strangers to Election Law unless statutorily embodied. A Court has no right to resort to them on considerations of alleged policy because policy in such matters, as those, relating to the trial of election disputes, is what the statute lays down. In the trial of election disputes, Court is put in a straight jacket. …… We have noticed the necessity to rid ourselves of notions based on Common Law or Equity. We see that we must seek an answer to the question within the four corners of the statute.” (Quoted in Kalyan Singh Chouhan v. CP Joshi, AIR 2011 SC 1127).
Strict Pleading; and Evidence in Strict Adherence to Pleading
In Gajanan Krishnaji Bapat v. Dattaji Raghobaji Meghe, AIR 1995 SC 2284, our Apex Court held that the court cannot consider any fact which was beyond the pleadings of the parties; and that the parties have to take proper pleadings and establish by adducing evidence that by a particular irregularity/illegality the result of the election has been materially affected. Our Apex Court, further, held as under:
“To say the least, it was not a desirable or a proper course to be adopted in an election petition where, as pointed out by this Court in Jagannath Vs. Jaswant Singh (1954 SCR 892), the statutory requirements of the law of election must be strictly observed.”
Pleadings play an important role – Section 83 of the RP Act mandatory and requires
Section 83 of The Representation of the People Act, 1951 reads as under:
“83. Contents of petition.—
(1) An election petition—
(a) shall contain a concise statement of the material facts on which the petitioner relies;
(b) shall set forth full particulars of any corrupt practice that the petitioner alleges including as full a statement as possible of the names of the parties alleged to have committed such corrupt practice and the date and place of the commission of each such practice; and
(c) shall be signed by the petitioner and verified in the manner laid down in the Code of Civil Procedure, 1908 (5 of 1908) for the verification of pleadings:
Provided that where the petitioner alleges any corrupt practice, the petition shall also be accompanied by an affidavit in the prescribed form in support of the allegation of such corrupt practice and the particulars thereof.
(2) Any schedule or annexure to the petition shall also be signed by the petitioner and verified in the same manner as the petition”
It was held in Gajanan Krishnaji Bapat v. Dattaji Raghobaji Meghe, AIR 1995 SC 2284, as under:
“Since, pleadings play an important role in an election petition, the legislature has provided that the allegations of corrupt practice must be properly alleged and both the material facts and particulars provided in the petition itself so as to disclose a complete cause of action. Section 83 of the Act provides that the election petition must contain a concise statement of the material facts on which the petitioner relies and further that he must set forth full particulars of the corrupt practice that he alleges including as full a statement as possible of the name of the parties alleged to have committed such corrupt practices and the date and place of the commission of each of such corrupt practice. This Section has been held to be mandatory and requires first a concise statement of material facts and then the full particulars of the alleged corrupt practice. So as to present a full picture of the cause of action.”
From S.N. Balakrishna v. George Fernandez, (1969) 3 SCC 238: AIR 1969 SC 1201, it comes out as to “concise statement of the material facts“, “set forth full particulars of any corrupt practice” and “as full a statement as possible“.
The election petition must contain a concise statement of material facts.
The word ‘material’ shows that the facts necessary to formulate a complete cause of action must be stated.
Full particulars of any corrupt practice should be set forth.
It must be including as full a statement as possible of the names of the parties.
The date and place of the commission of such practice is mandatory.
Omission of a single material fact may lead to an incomplete cause of action.
The function of particulars is to present as full a picture of the cause of action.
It must be with such further information in detail.
It is to make the opposite party understand the case he will have to meet.
There may be some overlapping between ‘material facts’ and ‘particulars’ but the two are quite distinct.
In the ‘particulars’, the name of the person making the statement, with the date, time and place will be mentioned.
The material facts thus will show the ground of corrupt practice.
It must also show the complete cause of action.
The ‘particulars’ will give the necessary information to present a full picture of the cause of action.
The fact which constitutes the corrupt practice must be correlated to one of the heads of corrupt practice.
Election petition without the material facts relating to a corrupt practice is no election petition at all.
Pleading and Affidavit in Election Cases – to prevent fishing or roving enquiry
In Gajanan Krishnaji Bapat v. Dattaji Raghobaji Meghe, AIR 1995 SC 2284, 1995 SCC (5) 347, it was held that a petition leveling a charge of corrupt practice was required, by law, to be supported by an affidavit and the election petitioner was also obliged to disclose his source of information in respect of the commission of the corrupt practice. This became necessary to bind the election petitioner to the charge leveled by him and to prevent any fishing or roving enquiry and to prevent the returned candidate from being taken by a surprise. (Samant N. BalakrishnaVs. George Fernandez and others (AIR 1969 SC 1201 was referred to.)
The Supreme Court observed in Kalyan Singh Chouhan v. CP Joshi, AIR 2011 SC 1127, that during the trial of an election petition, it was not permissible for the court to permit a party to seek a roving enquiry.
In CR Mahesh v. R Ramachandan, (2017 – Kerala) it is held that specific pleading is necessary with regard to the corrupt practice in an election petition and in the affidavit under Section 123(4) of the R P Act, 1951. When there is no specific pleading to that fact, no specific denial is necessary and the above decision is not binding in this case.
Wide latitude cannot be left in the pleadings – No wild goose chase allowed
In Gajanan Krishnaji Bapat v. Dattaji Raghobaji Meghe, AIR 1995 SC 2284, 1995 SCC (5) 347, the impropriety is described as under:
“In the pleadings a wide latitude was left by the election petitioners to lead evidence on any of the various ‘possibilities’ detailed in the election petition. The ‘vagueness’ of the pleadings even after amendment shows that the election petitioners were out on a wild goose chase and trying to fish for evidence so as to be able to fasten some liability on the returned candidate or his election agent at least in some case.”
Pleadings and Issues are to Narrow the Area of Conflict
It is held in Kalyan Singh Chouhan v. CP Joshi, AIR 2011 SC 1127, that the pleadings are to help the court in narrowing the controversy involved and to inform the parties concerned to the question in issue, so that the parties may adduce appropriate evidence on the said issue. It is pointed out that it is a settled legal proposition that ‘as a rule relief not founded on the pleadings should not be granted’ and emphasised that a decision of a case cannot be based on grounds outside the pleadings of the parties. The pleadings and issues are to ascertain the real dispute between the parties to narrow the area of conflict and to see just where the two sides differ. The Apex Court expressly referred the following decisions:
Sri Mahant Govind Rao v. Sita Ram Kesho, (1898) 25 Ind. App. 195;
M/s. Trojan & Co. v. RM. N.N. Nagappa Chettiar, AIR 1953 SC 235;
J.K. Iron & Steel Co. v. The Iron and Steel Mazdoor Union, AIR 1956 SC 231;
Raruha Singh v. Achal Singh & Ors.; AIR 1961 SC 1097;
Ram Sarup Gupta v. Bishun Narain Inter College, AIR 1987 SC 1242;
Gajanan Krishnaji Bapat v. Dattaji Raghobaji Meghe, AIR 1995 SC 2284;
Om Prakash Gupta v. Ranbir B. Goyal, AIR 2002 SC 665;
Kashi Nath v. Jaganath, (2003) 8 SCC 740;
Ishwar Dutt v. Land Acquisition Collector, AIR 2005 SC 3165;
Bachhaj Nahar v. Nilima Mandal, AIR 2009 SC 1103, and
State of Maharashtra v. Hindustan Construction Company Ltd., (2010) 4 SCC 518.
In Kalyan Singh Chouhan v. CP Joshi, AIR 2011 SC 1127, the Apex Court held that no courts decide a suit on a matter/point on which no issue has been framed. It is to ascertain/shorten the area of dispute and pinpoint the points required to be determined by the court, so that no party at the trial is taken by surprise. The court referred following decisions:
Raja Bommadevara Venkata v. Raja Bommadevara Bhashya, (1902) 29 Ind. App. 76 (PC);
Siddik Mohd. Shah v. Saran, AIR 1930 PC 57;
Sita Ram v. Radha Bai, AIR 1968 SC 535;
Gappulal v. Thakurji Shriji Dwarkadheeshji, AIR 1969 SC 1291; and
Biswanath Agarwalla v. Sabitri Bera, (2009) 15 SCC 693.
With reference to the following decisions, in Kalyan Singh Chouhan v. CP Joshi, AIR 2011 SC 1127, it was also pointed out that there may be exceptional cases wherein the parties proceeded to trial fully knowing the rival case and led all the evidence not only in support of their contentions but in refutation thereof by the other side; and in such an eventuality, it would not be permissible for a party to submit that the proceedings stood vitiated. The decisions were the following:
Nagubai Ammal v. B. Shama Rao, AIR 1956 SC 593;
Nedunuri Kameswaramma v. Sampati Subba Rao, AIR 1963 SC 884;
Kunju Kesavan v. M.M. Philip, AIR 1964 SC 164;
Kali Prasad Agarwalla v. M/s. Bharat Coking Coal Ltd., AIR 1989 SC 1530;
Sayed Akhtar v. Abdul Ahad, (2003) (7) SCC 52; and
Bhuwan Singh v. Oriental Insurance Co., AIR 2009 SC 2177.
Objectionable part of the Speech ought to have Pleaded
In Balan v. Manoharan Master, 1988 (1) KLT 717, where a candidate said to have ‘consented’ a ‘corrupt practice’ in his speech, it was held that the objectionable part of the speech ought to have pleaded.
No pleading in respect of the ‘remaining 4 tendered votes’
The Supreme Court observed in Kalyan Singh Chouhan v. CP Joshi, AIR 2011 SC 1127, that during the trial of an election petition, it was not permissible for the court to permit a party to seek a roving enquiry; and that the party must plead the material fact and adduce evidence to substantiate the same. In this case the issue raised was pertaining to 6 improperly received votes mentioned in the election petition. Though there was no pleading either in the election petition or in the written statement a new matter in respect of the ‘remaining 4 tendered votes’ came up. The Supreme Court held that before the court permitted the recounting, the following conditions were to be satisfied:
“(i) The Court must be satisfied that a prima facie case is established;
(ii) The material facts and full particulars have been pleaded stating the irregularities in counting of votes;
(iii) A roving and fishing inquiry should not be directed by way of an order to recount the votes;
(iv) An opportunity should be given to file objection; and
(v) Secrecy of the ballot requires to be guarded.
The Court referred following decisions:
Dr. Jagjit Singh v. Giani Kartar Singh, AIR 1966 SC 773;
Suresh Prasad Yadav v. Jai Prakash Mishra, AIR 1975 SC 376;
M. Chinnasamy v. K.C. Palanisamy, AIR 2004 SC 541;
Chandrika Prasad Yadav v. State of Bihar, AIR 2004 SC 2036;
Tanaji Ramchandra Nimhan v. Swati Vinayak Nimhan, AIR 2006 SC 1218;
Gursewak Singh v. Avtar Singh, AIR 2006 SC 1791; and
Baldev Singh v. Shinder Pal Singh, (2007) 1 SCC 341).”
Instances of Lack of Pleadings onAllegation of Hiring Vehicles
(i) Balwan Singh v. Lakshmi Narain, 1960 (3) SCR 91 : AIR 1960 SC 770 – Allegation of corrupt practice raised, inter alia, was of hiring or procuring vehicles. The date and place of hiring of vehicle and the names of the persons between whom the contract of hiring was settled were set out. Particulars that the hired vehicle was used for conveying voters to or from the polling station were also set out. Full particulars as to contract of hiring vehicles, as distinguished from the fact of hiring, had not been set out. Majority observed that the Section 83 was duly complied with.
(ii) RM Seshadri v. G. Vasantha Pai, 1969 (1) SCC 27– Allegation was as to employing cars, hired and procured for the conveyance of the voters to the polling booths. It was contended by the returned candidate that the allegation was vague. Rejecting the contention, the Court held that it had been sufficiently pleaded and proved that cars were in fact used. In the opinion of the Court, “the rest were matters of evidence which did not require to be pleaded and that plea could always be supported by evidence to show the source from where the cars were obtained, who hired or procured them and who used them for the conveyance of voters.”
No Amendment of pleading After the Time Limit
In VS Achuthanandan v. PJ Francis, AIR 1999 SC 2044, it was held that material facts are preliminary facts which must be proved at the trial by a party to establish existence of a cause of action; and that no amendment of the pleading is permissible to introduce such material facts after the time limit prescribed for filing the election petition, the absence of ‘material particulars’ can be cured at a later stage by an appropriate amendment.
The Grounds for Directing a Recount of Votes
In Suresh Prasad Yadav v. Jai Prakash Mishra, (1975) 4 SCC 822, it is held as under:
“ The Court would be justified in ordering a recount of the ballot papers only where:
(1) the election-petition contains an adequate statement of all the material facts on which the allegations of irregularity or illegality in counting are founded;
(2) on the basis of evidence adduced such allegations are prima facie established, affording a good ground for believing that there has been a mistake in counting; and
(3) the court trying the petition is prima facie satisfied that the making of such an order is imperatively necessary to decide the dispute and to do complete and effectual justice between the parties.”
In Chandrika Prasad Yadav v. State of Bihar, (2004) 6 SCC 331, it is pointed out that it was well-settled that an order of recounting of votes could be passed when the following conditions are fulfilled:
“(i) A prima facie case;
(ii) Pleading of material facts stating irregularities in counting of votes;
(iii) A roving and fishing inquiry shall not be made while directing recounting of votes; and
(iv) An objection to the said effect has been taken recourse to.
The requirement of maintaining the secrecy of ballot papers must also be kept in view before a recounting can be directed. Narrow margin of votes between the returned candidate and the election petitioner by itself would not be sufficient for issuing a direction for recounting.”
Pleadings on the Petition for Recount of Votes
In M. Chinnasamy Vs. K.C. Palanisamy, 2003 (10) SCALE 103, our Apex Court held that it was obligatory on the part of the Election Tribunal to arrive at a positive finding that a prima facie case had been made out for issuing a direction for recounting holding. It is held as under:
“Apart from the clear legal position as laid down in several decisions, as noticed hereinbefore, there cannot be any doubt or dispute that only because a recounting has been directed, it would be held to be sacrosanct to the effect that although in a given case the court may find such evidence to be at variance with the pleadings, the same must be taken into consideration. It is now well-settled principle of law that evidence adduced beyond the pleadings would not be admissible nor any evidence can be permitted to be adduced which is at variance with the pleadings. The court at a later stage of the trial as also the appellate court having regard to the rule of pleadings would be entitled to reject the evidence wherefor there does not exist any pleading.” (Quoted to in: Chandrika Prasad Yadav v. State of Bihar, (2004) 6 SCC 331)
Degree of proof for recounting of votes – very high standard
The degree of standard of proof required for recounting of votes is very high. It is held in M. Chinnasamy v. K.C. Palanisamy, (2003) 10 SCALE 103, as under:
“The requirement of laying foundation in the pleadings must also be considered having regard to the fact that the onus to prove the allegations was on the election petitioner. The degree of proof for issuing a direction of recounting of votes must be of a very high standard and is required to be discharged. [See: Mahender Pratap vs. Krishan Pal and Others – (2003) 1 SCC 390]” (Quoted to in: Chandrika Prasad Yadav v. State of Bihar, 2004 (6) SCC 331).
Evidence led,without objections – Court could evaluate Worth of that evidence,
In Gajanan Krishnaji Bapat v. Dattaji Raghobaji Meghe, AIR 1995 SC 2284, 1995 SCC (5) 347, it is held as under:
“Of course, since evidence was allowed to be led, though beyond the pleadings without any objections from the opposite side, the court could have evaluated and analysed the same to determine the worth of that evidence.”
Foot Notes:
Bishundeo Narain v. Seogeni Rai, AIR 1951 SC 280; Ladli Prashad Jaiswal v. Karnal Distillery, Co., AIR 1963 SC 1279; Subhash Chandra Das v. Ganga Parsad Das, AIR 1967 SC 878; Varanasaya Sanskrit Vishwavidalaya v. Dr. Raj Kishore Tripathi, AIR 1977 SC 615; Jai Parkash Power Ventures v. State of HP, ILR 2017-6 HP 210.
Bishundeo Narain v. Seogeni Rai, AIR 1951 SC 280; Raja Ram v. Jai Prakash Singh, AIR 2019 SC 4374; Ladli Prasad Jaiswal v. Karnal Distillery, Co., AIR 1963 SC 1279.
Under Sec. 90, Not Truth of Contents, but, only presumption of Genuineness of a document (i.e., existence or handwriting), is drawn. Therefore, besides TRUTH, the contents of the documents also have to be proved by cogent evidence.
Indian Evidence Act and other procedural laws do not expressly say anything as to “TRUTH of contents” of documents. In proper cases court can presume truth.
No doubt, under Sec. 114, TRUTH can be presumed, directly, in proper cases, in their peculiar ensuring facts (regard being had to the common course of natural events, human conduct and public and private business, in their relation to the facts of the particular case).
That is, if the document is a public document an “added presumption” (as to correctness) under Section 114(e) is available -Iqbal Basith and others v. N Subbalakshmi, (2021) 2 SCC 718.
Sec. 90 CPC, basically, speaks about two things – as regards 30-year-documents:
1. A document purports to be in the handwriting of any particular person is presumed to be in his handwriting.
2. A document purports to be executed or attested is presumed to beduly executed and attested.
The presumption, under Section 90, Evidence Act, as to regularity for documents having more than 30 years of age does not apply to Wills (Unless Sec. 71 Evid. Act can be Invoked).
PRESUMPTION – ONE OF THE ‘MODESOF PROOF‘ OF DOCUMENTS
A fact, otherwise doubtful, may be substantiated from certain other facts. It is presumption.
Besides the direct evidence, modes of proof of (contents of) documents include the following:
Invoking (specific) presumptions under Sec. 79 to 90A.
Invoking Presumptions (general) on probability or inferences under Sec. 114.
Relying on Circumstantial evidence – on probability and inferences (Sec. 114).
Proof Invoking Presumption
Presumption being an inference as to the existence of one fact from the proof of some other proved facts, the Court exercises a process of reasoning and reach a logical conclusion as the most probable consequence (See: St. of West Bengal v. Mir Mohammad Omar, AIR 2000 SC 2988).
Section 67, Evid. Act requires – facts to be proved; It includes invocation of ‘Presumption‘
In Sumathi Amma v. Kunjuleskhmi Amma (1964 Ker LT 945) it was observed that Section 67, Evidence Act only says that facts have to be proved, and, unlike Section 68, does not prescribe any particular mode of proof. The facts required to be proved under Section 67 can be proved by any kind of evidence, and there is nothing in the section to indicate that the evidence furnished by the registration certificate by virtue of Sub-section (2) of Section 60 of the Registration Act and by the presumption in Illustration (e) of Section 114 of the Evidence Act, is to be excluded.’
General and Specific instances of Presumptions in the Evidence Act
Sec. 114 of the Evidence Act allows the Court to presume the existence of any fact which it thinks likely to have happened, regard being had to the common course of natural events, human conduct and public and private business, in their relation to the facts of the particular case.
Sec. 79 to 90A of the Evidence Act speaks as to specific instances of invoking presumptions.
Presumption of Truth is taken ‘on something Proved‘, or Presumed
In Izhar Ahmad Khan v. Union of India, AIR 1962 SC 1052, the Supreme Court definitely found that presumption of truth is taken ‘on something proved or taken for granted ‘. It is observed in Izhar Ahmad Khan v. Union of India, AIR 1962 SC 1052, that the term ‘presumption’ in its largest and most comprehensive signification, may be defined to bear inference, affirmative or disaffirmative, of the truth or falsehood of a doubtful fact or proposition drawn by a process of probable reasoning from something proved or taken for granted.
Is “To Presume” Means “ To Take As Proved Until Disproved”?
Meaning of the word “presume” is explored in State of Maharashtra v. Som Nath Thapa, AIR 1996 SC 1744, and stated as under:
“In Black’s Law Dictionary it has been defined to mean “to believe or accept upon probable evidence”.
In Shorter Oxford English Dictionary it has been mentioned that in law “presume” means “to take as proved until evidence to the contrary is forthcoming”.
Stroud’s Legal Dictionary has quoted in this context a certain judgement according to which “A presumption is a probable consequence drawn from facts (either certain or proved by direct testimony) as to the truth of a fact alleged”.
In Law Lexicon by P. Ramanath Aiyer the same quotation finds place at page 1007 of 1987 edition.”
(See also: Ramachandran v. State of Kerala, 2009 Cr.LJ 168.)
Is presumption under the Indian Evidence Act, clinches to “Truth”?
Not always.
But, mark – When presumption can be invoked without blemishes (on the face of it), the onus would be on a person who challenges such presumption – See: Prem Singh v. Birbal , (2006) 5 SCC 353)
Two views forthcome:
First, Presumption is an inference of a fact. This, by itself (invariably) embraces ‘truth’.
Second (and more cogent), under Sec. 114 of the Evidence Act, court may presume the existence of any fact. The inference, in most cases, will be the subsistence of a fact, like existence of a document or its authorship (rather than its truth). In proper cases, a further presumption could be added – so that the ‘truth’ may also be deduced (Eg. regularity of official acts, sale under a registered sale deed).
The Indian Evidence Act does not expressly correlate “truth” or “correctness” with ‘presumption’. In law, presumption is a probable consequence drawn from facts proved. By invoking presumption, existence (or non existence) of a fact, otherwise doubtful, is inferred from certain other proved facts. The Court exercises a process of reasoning and reach a logical conclusion as the most probable position. ‘Any fact’ may (or may not) include ‘truth’.
In 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.”
Presumptions on documents arise in the following cases:
Presumption on documents made in the course of business.
Presumption on Regularity of official and judicial acts.
Presumption on Registered Documents.
Presumption on statements of dead person or who is not found etc.
Presumption on certified copies of foreign judicial records.
Presumption on certain books, maps and charts.
Presumption on telegraphic messages.
Presumption as to electronic messages.
Presumption on 90 years old documents.
Presumption on electronic records five years old
Presumption on undue influence
Presumption on Specific documents:
a. Wound Certificates, Post-Mortem Report etc.
b. Certificate, prepared on the basis of other documents.
c. Commission Report in an earlier case
d. Deposition in an earlier case
PART II
SEC. 90 EVIDENCE ACT – 30 YEARS’ OLD DOCUMENTS
Sec. 90 Evidence Act reads as under:
“90. Presumption as to documents thirty years old:
Where any document, purporting or proved to be thirty years old, is produced from any custody which the Court in the particular case considers proper, the Court may presume that the signature and every other part of such document, which purports to be in the handwriting of any particular person, is in that person’s handwriting, and, in the case of a document executed or attested, that it was duly executed and attested by the persons by whom it purports to be executed and attested.
Explanation.—Documents are said to be in proper custody if they are in the place in which, and under the care of the person with whom, they would naturally be; but no custody is improper if it is proved to have had a legitimate origin, or if the circumstances of the particular case are such as to render such an origin probable.”
This Explanation applies also to section 81.
Sec. 90 speaks about two things:
1. a document purports to be in the handwriting of any particular person
2. a document purports to be executed or attested
The presumption spoken of in Sec. 90 is the following:
handwriting – in that person’s handwriting
executed or attested – duly executed and attested.
It was a matter of controversy whether truth or genuineness can be attached to the 30-year-old documents (though not specifically stated in Sec. 90).
Sec. 90 –Contents Not Stand Proved; TRUTH Not Presumed
Under Sec. 90, Not Truth of Contents, but, only presumption of Genuineness of a document (ie. existence or handwriting), is drawn. Therefore, besides TRUTH, the Contents of the documents also have to be proved by convincing evidence.
Genuineness (Not Truth of Contents) attached to 30-year-old Documents
In Lakhi Baruah v. Padma Kanta Kalita, (1996) 8 SCC 357, AIR 1996 SC 1253, with regard to admissibility in evidence of thirty years old documents produced from proper custody, it was observed as under:
“15. Section 90 of the Evidence Act, 1872 is founded on necessity and convenience because it is extremely difficult and sometimes not possible to lead evidence to prove handwriting, signature or execution of old documents after lapse of thirty years. In order to obviate such difficulties or improbabilities to prove execution of an old document, Section 90 has been incorporated in the Evidence Act, 1872 which does away with the strict rule of proof of private documents. Presumption of genuineness may be raised if the documents in question is produced from proper custody. It is, however, the discretion of the court to accept the presumption flowing from Section 90. There is, however, no manner of doubt that judicial discretion under Section 90 should not be exercised arbitrarily and not being informed by reasons.”
30-year-old Copy –No presumption of Due Execution
In Lakhi Baruah v. Padma Kanta Kalita, (1996) 8 SCC 357, AIR 1996 SC 1253, with regard to admissibility in evidence of thirty years old documents produced from proper custody, it was observed as under:
16. So far as applicability of presumption arising from Section 90 of the Evidence Act in respect of copy of the old document is concerned, the earliest decision of the Indian Court was made in 1880 in Khetter vs. Khetter Paul (ILR 5 Calcutta 886). Later on, in the decisions of various High Court the presumption under Section 90 was also made applicable to the certified copy. The Privy Council, upon review of the authorities, however, did not accept the decision rendered in Khetter and other decisions of the High Court, where the presumption was attached also to copies, as correct. It was indicated that in view of the clear language of section 90 the production of the particular document would be necessary for applying the statutory presumption under Section 90. If the document produced was a copy admitted under Section 65 as secondary evidence and it was produced from proper custody and was over thirty years old, then the signature authenticating the copy might be presumed to be genuine: but production of the copy was not sufficient to justify the presumption of due execution of the original under Section 90. In this connection, reference may be made to the decisions in Seetnayva Vs. Subramanya (56 IA 146 : AIR 1929 PO 115) and Basant VS. Brijri (AIR 1935 PO 115). In view of these Privy Council decision, disproving the applicability of presumption under Section 90 to the copy or the certified copy of an old document, in the subsequent decisions of the High Courts, it has been consistently held by different High Courts that production of a copy or a certified copy does not raise the presumption under Section 90. The position since the aforesaid Privy Council decisions being followed by later decisions of different High Courts is that presumption under Section 90 does not apply to a copy or a certified copy even though thirty years old: but if a foundation is laid for the admission of secondary evidence under Section 65 of the Evidence Act by proof of loss or destruction of the original and the copy which is thirty years old is produced from proper custody, then only the signature authenticating the copy may under Section 90 be presumed to be genuine.”
See also:
Tilak Chand Kureel v. Bhim Raj (1969) 3 SCC 367
Harihar Prasad Singh v. Mst of Munshi Nath Prasada, 1956 SCR I
Photocopyof 30 Years Old Official Documents – Marked without Objection– Regularity can be Presumed
Quoting Lakhi Baruah v. Padma Kanta,it is elucidated in Iqbal Basith v. N Subbalakshmi, (2021) 2 SCC 718, as regards official/public document, marked without objection, presumption under Section 114(e) of the Indian Evidence Act (there shall be a that all official acts have been regularly performed) can be invoked, over and above the presumption under Ser. 90. It is held as under:
“The appellants produced photocopies of all other resolutions, government orders and sale deed in favour of their vendor OA Majid Khan by the Municipality. The failure to produce the originals or certified copies of other documents was properly explained as being untraceable after the death of the brother of P.W.1 who looked after property matters. The attempt to procure certified copies from the municipality was also unsuccessful as they were informed that the original files were not traceable. The photocopies were marked as exhibits without objection. The respondents never questioned the genuineness of the same. Despite the aforesaid, and the fact that these documents were more than 30 years old, were produced from the proper custody of the appellants along with an explanation for nonproduction of the originals, they were rejected without any valid reason holding that there could be no presumption that documents executed by a public authority had been issued in proper exercise of statutory powers. This finding in our opinion is clearly perverse in view of Section 114(e) of the Indian Evidence Act 1872, which provides that there shall be a presumption that all official acts have been regularly performed. The onus lies on the person who disputes the same to prove otherwise.”
Title is to be decided on the basis of other evidence, Not on Recital of 1945 Deed
The presumption as to ‘regularity‘ is confined to ‘official acts‘, as held in Iqbal Basith v. N Subbalakshmi (supra).
In Kuldeep Sharma v. Satyendra Kumar Sharma, AIR 2001 All. 366, it is held as under:
“The recital of the gift deed of the year 1945 in favour of Sheo Prasad, even if taken to be admissible, does not have much evidentiary value. The executant of the document is required to disclose the title of the property, but if there is dispute, the title is to be decided on the basis of other evidence and not on the basis of the recitals in the deed itself. Therefore, the Courts below rightly rejected the contents of the gift deed. Learned counsel for the appellants cannot take shelter of the recitals of the gift deed of the year, 1945 to argue that Smt. Yashoda Devi was the owner of the property as mentioned in the same.
Section 90: Authenticity of Recitals – Not Presumed Correct
The Supreme Court, in Gangamma v. Shivalingaiah, (2005) 9 SCC 359, observed as under:
“Section 90 of the Evidence Act no where provides that in terms thereof the authenticity of the recitals contained in any document is presumed to be correct. …… We may furthermore notice that even if a formal execution of a document is proved, the same by itself cannot lead to a presumption that the recitals contained therein are also correct. The mere execution of a document, in other words, does not lead to the conclusion that the recitals made therein are correct, and subject to the statutory provisions contained in Sections 91 and 92 of the Evidence Act, it is open to the parties to raise a plea contra thereto.”
In Union of India v. Ibrahim Uddin, (2012) 8 SCC 148, it was held as under:
“Presumption under Section 90 of the Evidence Act in respect of 30 years’ old document coming from proper custody relates to the signature, execution and attestation of a document i.e. to its genuinenessbut it does not give rise to presumption of correctness of every statement contained in it.The contents of the document are trueor it had been acted upon have to be proved like any other fact.”
In Jhasketan Bhoi V. Krushna Bhoi, ILR 2018-2 Cuttack (Orissa) 440. It was held as under:
“It is no-doubt clear that Section 90 of the Indian Evidence Act if any document is produced from proper custody which is executed 30 years back then the document can be proved by production from proper custody. But that does not mean that the contents of the documents are proved. The contents of the document have to be proved by cogent evidence.”
After reading Sec. 90, the High Court proceeded as under:
“When a document is purportedly to be more than 30 years old, if it be produced from what the Court considers to be proper custody, it may be presumed
that the signature and every other part of such document, which purports to be in the handwriting of any particular person, is in that person’s handwriting, and
that it was duly executed and attested by the person by whom it purports to be executed and attested.
Thirty year old document, produced from proper custody, not looking ex facie suspicious, presumption could be drawn in favour of proper execution of the document. It is not necessary that the signatures of the attesting witnesses or of the scribe be proved; if everything was proved there would be no need to presume anything. There can, however, be no presumption as to
who is the person, who executed the document was and
what authority he had to execute the document, and
whether he had the requisite authority, or
whether the contents of the document are true.
In other words, the execution and attestation of the document is presumed, but the contents have to be proved by some way or other.”
It appears that the correct view on Sec. 90 had been expressed in Kunhamina Umma v. Special Tahsildar, AIR 1977 Ker 41, wherein it was observed that this was a matter with the discretion of the court. It also referred to Sec. 114 of the Evidence act. It is held as under:
“10. The true scope of Sec. 90 of the Evidence Act is that the section does away with the strict rules of proof which are enforced in the case of private documents, by giving rise to a presumption of genuineness with regard to documents reaching a certain age. If private documents not less than thirty years old are produced from proper custody, and are on their face free from suspicion, the court may presume that they have been signed or written by the person whose signatures they bear or in whose handwriting they purport to be, and that they have been duly attested and executed, if they purport so to be. In other words, documents thirty years old prove themselves–see Sirkar on Evidence 12th Edn. page 727.
The section deals with the admissibility of such old documents without proof in the usual manner, butthe credit to be given to them dependson the discretion of the court exercised in a judicial manner and the particular circumstances of each case. No doubt, the presumption is permissive and according to the circumstances of each case the court may or may not raise it. It has also been held in certain cases that a sound disposing mind can be presumed under Sec. 90, This is so ‘because of the expression ‘duly executed’in the section. The word duly has to be taken to mean execution by a person legally competent to execute the document–see (1) Kottayya v. Karancheti– AIR 1930 Mad 744 (2) Munnalal v. Kshibai — AIR 1947 PC 15; (3) Venkatarama v Bhaskar Rao — AIR 1962 Andh Pra 29.
This presumption is fortified by Sec. 114 Evidence Act. Again it may be made clear that it is in the discretion of the court to draw the presumption or not.”
Under Sec. 114, REGULARITYCan be Presumed, DIRECTLY
No doubt, under Sec. 114, REGULARITY can be presumed, directly, in proper cases, in their peculiar facts (regard being had to the common course of natural events, human conduct and public and private business, in their relation to the facts of the particular case).
As regards the ‘proper custody’ in Sec. 90 Evidence Act it is observed in Cheedella Padmavathi v. Cheedella Lakshminarasimha Rao, 2015(5) ALT 634, as under:
“The proper custody is in the custody of a person, who might be reasonably and naturally be expected to have possession of them.”
In Rangaswami v. T.V. Krishnan, 2011-1 CC 832, it is observed that ‘proper custody means custody of an individual connected with deed and its possession does not excite any fraud or suspicion’.
No Presumption to 30 Years Old Will
The presumption, under Section 90, Evidence Act, as to regularity for documents having more than 30 years of age does not apply to Wills.
Wills have to be proved in terms of Sections 63(c) of the Succession Act, 1925 (the will shall be attested by two or more witnesses), and Section 68 of the Evidence Act, 1872 (one attesting witness at least has been called for the purpose of proving its execution, if there be an attesting witness alive). Section 69 of the Evidence Act directs – if no such attesting witness can be found – to prove (i) the attestation of one attesting witness at least is in his handwriting and also (ii) the signature of the testator. Section 71 permits – if the attesting witness denies or does not recollect the execution of the document – to prove the execution of the will by other evidence.
In M.B. Ramesh v. K.M. Veeraje Urs, (2013) 7 SCC 490, it is held as under:
“.. . As held by this Court in Bharpur Singh v. Shamsher Singh reported in 2009 (3) SCC 687, a presumption regarding documents 30 years old does not apply to a will. A will has to be proved in terms of Section 63(c) of the Succession Act read with Section 68 of the Evidence Act. That takes us to the crucial issue involved in the present case, viz. with respect to the validity and proving of the concerned will. A Will, has to be executed in the manner required by Section 63 of the Succession Act. Section 68 of the Evidence Act requires the will to be proved by examining at least one attesting witness. Section 71 of the Evidence Act is another connected section “which is permissive and an enabling section permitting a party to lead other evidence in certain circumstances”, as observed by this Court in paragraph 11 of Janki Narayan Bhoir v. Narayan Namdeo Kadam reported in 2003 (2) SCC 91 and in a way reduces the rigour of the mandatory provision of Section 68. As held in that judgment Section 71 is meant to lend assistance and come to the rescue of a party who had done his best, but would otherwise be let down if other means of proving due execution by other evidence are not permitted.” Quoted in: Ashutosh Samanta v. S M. Ranjan Bala Dasi, 2023 SCC OnLine SC 255.
Evidence in Old Transaction – Vigor in RECENT TRANSACTIONS could Not be EXPECTED
In Muthialpet Benefit Fund Ltd. v. V. Devarajulu Chetty, AIR 1955 Mad 455, it is held as under:
“7. To my mind, neither of the first two points is convincing because the first is based on the rather over-optimistic and facile profession of faith made in every minors suit that he the minor is going to win and to which the statistics of our Courts do not unfortunately lend any support and especially so in this case and in the circumstances set out above, which make out prima facie that the mortgagee public institution made proper and bona fide enquiry as to the existence of necessity and did all that was reasonable to satisfy itself as to the existence of such necessity. In such a case even if there was no necessity in fact or even if the money borrowed was not applied to meet the necessity, the alienation will be upheld. The recitals of necessity in the deed are admissible in evidence as admissions of the Manager or father and also amount to representation ofnecessity though in the case of RECENT TRANSACTIONS evidence aliunde** would be NORMALLY EXPECTED. These elementary propositions require no buttressing by citations (See Mulla, Hindu Law, Edn.10, p.285; Raghavachari: Hindu Law, Edn.3, p.335 and following; Mayne: Hindu Law, Edn.11, Re-print pp.474-475). Secondly, it is in the best interest of the mortgagors themselves to prevent the deterioration of the value of the corpus and market it into cash and keep the sale proceeds in Court pending and abiding the result of the suit.”
(**from other sources)
In Jagna Sanyasiah v. Mycherla Peda Atchanna Naidu, AIR 1921 Mad 624, it is held as under:
“5. The respondents’ contention in their memorandum of objections would, in my opinion, have to be allowed as the passing of consideration for a document which is more than 30 years old and which was ever questioned till this suits was brought should be taken as proved even if the direct evidence is not as strongas might be naturally expected in respect of recent transactions.”
Court to invoke Presumptions Judiciously
Discretionary presumptions—those which the court may invoke under provisions like Section 114 of the Evidence Act—should be exercised only after considering the relevant circumstances and providing a reasoned justification. A court cannot—and should not—ignore available presumptions without offering proper judicial rationale.
“Reason is the heartbeat of every conclusion, and without the same it becomes lifeless”: (Arijit Pasayat J.) AIR 2008 SC 1589, 2008 (15) SCC 711, and Raj Kishore Jha v. State of Bihar, 2003 (7) Supreme 152.
See also: State of U.P. v. Battan,2001 (10) SCC 607; State of Maharashtra v. Vithal Rao Pritirao Chawan, AIR 1982 SC 1215; Jawahar Lal Singh v. Naresh Singh, 1987 (2) SCC 222.
In Rathish Babu Unnikrishnan v. State (Govt. of NCT of Delhi), 2023 CrLJ 311; 2022-4 JT 477; 2022-6 Scale 794; 2022-4 SCR 989, it is held as under:
“In any case, when there is legal presumption, it would not be judicious for the quashing Court to carry out a detailed enquiry on the facts alleged, without first permitting the trial Court to evaluate the evidence of the parties. The quashing Court should not take upon itself, the burden of separating the wheat from the chaff where facts are contested. To say it differently, the quashing proceedings must not become an expedition into the merits of factual dispute, so as to conclusively vindicate either the complainant or the defence.”
In Nepurjan Bibi Choudhury v. Musabbir Ali Choudhury, AIR 2018 Gau 151, it is emphasised as under:
“Court needs to exercise the discretion judiciouslywhile taking presumptionunder Section 90 of the Evidence Act, keeping in mind the underlying objectof the provision, being the necessity and convenience and also the precondition required for taking a presumption. Section 90 of the Evidence Act provides that before taking a presumption, two basic ingredients should be there, namely the document sought to be proved must be of 30 years old and it must be produced from proper custody.”
‘Loose and Unfettered Discretion is a Dangerous Weapon‘
In Naresh Chandra Mital v. Bishamber Nath Chopra, 1966-2 DLT 352, it is observed as under:
“The Court has in exercising its discretion to keep in view the desirability of facilitating speedy decisions of suits upon bills of exchange, promissory notes and hundis and also to keep in view the drastic nature of the provisions contained in Rules 2 and 3 of Order 37. The presumption of consideration in the case of negotiable instruments on the one hand and the plea of the defendant and the attending circumstances tending to discount such presumption have to be considered and weighed judiciously by the Court. In otherwords, the Court has to exercise judicial discretion, keeping in view the basic dictates of justice when determining the question whether or not to permit the defendant to contest the suit and if so, whether unconditionally or on terms and what terms. The idea of discretion, which is always to be exercised in a disciplined and responsible manner, really represents a compromise between the idea that those who possess power should be trusted with free hand and not tied down to narrow and rigid groves and the competing notion that loose and unfettered discretion is a dangerous weapon to entrust to any one including Courts.”
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