Polygraph (Lie Detector Test), Narco Analysis and Brain Mapping are tests used in Criminal Investigation. The investigation teams are not free to use it, as they think proper. It is so made clear in the Guidelines promulgated by the National Human Rights Commission, and in the Supreme Court decision in Selvi v. State of Karnataka, (2010) 7 SCC 263.
Guidelines of National Human Rights Commission, in 2000
The National Human Rights Commission laid down the Guidelines in 2000, for using Polygraph Test (Lie Detector Test) on the accused. It is made under Article 21 of the Constitution. Article 21 safeguards the rights of every person against cruel, inhuman or degrading treatment by any State-agency. These mandatory guiding principles read as under:
“(i) No Lie Detector Tests should be administered except on the basis of consent of the accused. An option should be given to the accused whether he wishes to avail such test.
(ii) If the accused volunteers for a Lie Detector Test, he should be given access to a lawyer and the physical, emotional and legal implication of such a test should be explained to him by the police and his lawyer.
(iii) The consent should be recorded before a Judicial Magistrate.
(iv) During the hearing before the Magistrate, the person alleged to have agreed should be duly represented by a lawyer.
(v) At the hearing, the person in question should also be told in clear terms that the statement that is made shall not be a ‘confessional’ statement to the Magistrate but will have the status of a statement made to the police.
(vi) The Magistrate shall consider all factors relating to the detention including the length of detention and the nature of the interrogation.
(vii) The actual recording of the Lie Detector Test shall be done by an independent agency (such as a hospital) and conducted in the presence of a lawyer.
(viii) A full medical and factual narration of the manner of the information received must be taken on record.”
Smt. Selvi v. State of Karnataka, (2010) 7 SCC 263
The Supreme Court has made it clear in Selvi v. State of Karnataka, (2010) 7 SCC 263 that these guidelines issued by the National Human Rights Commission, in 2000, pertained to Polygraph Test (Lie Detector Test), should be strictly adhered to. That is, if the accused objects such Tests, they cannot be forcibly administered. By virtue of the Supreme Court decision, similar safeguards should be adopted for conducting ‘Narco-Analysis Technique’ and the ‘Brain Electrical Activation Profile test’, also.
The Apex Court held that the forcible methods of carrying out Narco Analysis Test or Polygraph Test by the police are destructive of accused’s non-derogable rights against self-incrimination and personal liberty. It was held that this right against the self-incrimination was available even at the stage of investigation. In Smt. Selvi v. State of Karnataka, (2010) 7 SCC 263, the Apex Court observed as under:
“263. We are also of the view that forcing an individual to undergo any of the impugned techniques violates the standard of “substantive due process” which is required for restraining personal liberty. Such a violation will occur irrespective of whether these techniques are forcibly administered during the course of an investigation or for any other purpose since the test results could also expose a person to adverse consequences of a non-penal nature. The impugned techniques cannot be read into the statutory provisions which enable medical examination during investigation in criminal cases i.e. the Explanation to Sections 53, 53-A and 54 of the Code of Criminal Procedure, 1973. Such an expansive interpretation is not feasible in light of the rule of “ejusdem generis” and the considerations which govern the interpretation of statutes in relation to scientific advancements. We have also elaborated how the compulsory administration of any of these techniques is an unjustified intrusion into the mental privacy of an individual. It would also amount to “cruel, inhuman or degrading treatment” with regard to the language of evolving international human rights norms. Furthermore, placing reliance on the results gathered from these techniques comes into conflict with the “right to fair trial”. Invocations of a compelling public interest cannot justify the dilution of constitutional rights such as the “right against self-incrimination”.
264. In light of these conclusions, we hold that no individual should be forcibly subjected to any of the techniques in question, whether in the context of investigation in criminal cases or otherwise. Doing so would amount to an unwarranted intrusion into personal liberty. However, we do leave room for the voluntary administration of the impugned techniques in the context of criminal justice provided that certain safeguards are in place. Even when the subject has given consent to undergo any of these tests, the test results by themselves cannot be admitted as evidence because the subject does not exercise conscious control over the responses during the administration of the test. However, any information or material that is subsequently discovered with the help of voluntary administered test results can be admitted in accordance with Section 27 of the Evidence Act, 1872.”
The Supreme Court summarised its decision as under:
“VERY IMPORTANT POINTS
1. No individual should be forcibly subjectedto any of the scientific techniques, Narcoanalysis, Polygraph Examination and Brain Electrical Activation Profile (BEAP) test whether in the context of investigation in criminal cases or otherwise. Doing so would amount to an unwarranted intrusion into personal liberty.
2. Scientific techniques such as narcoanalysis, polygraph examination and Brain Electrical Activation Profile (BEAP) test cannot be read into the statutory provisions which enable medical examination during investigation in criminal cases, i.e. the Explanation to Sections 53, 53-A and 54 of the Code of Criminal Procedure, 1973.
3. Placing reliance on the results gathered from scientific techniques such as narcoanalysis, polygraph examination and Brain Electrical Activation Profile (BEAP) test comes into conflict with the ‘right to fair trial’.
4. It is a settled principle that a statement obtained through coercion, threat or inducement is involuntary and hence inadmissible as evidence during trial , in circumstances where it is shown that a person was indeed compelled to make statements while in custody, relying on such testimony as well as its derivative use will offend Article 20(3).
5. Results obtained through involuntary administration of any of the scientific tests namely narcoanalysis technique, polygraph examination and the BEAP test come within the scope of ‘testimonial compulsion’, thereby attracting the protective shield of Article 20(3).
6. Compulsory administration of any of the scientific tests namely narcoanalysis technique, polygraph examination and BEAP test constitutes ‘cruel, inhuman or degrading treatment’ in the context of Article 21.”
(This judgment, Smt. Selvi v. State of Karnataka, is referred to in:
Ajit Mohan Vs. Legislative Assembly, NCT of Delhi, 2021-8 SCALE 8;
Tofan Singh Vs. State of Tamil Nadu, AIR 2020 SC 5592;
Ashish Jain Vs. Makrand Singh, 2019-1 JT 342;
Rajendra Pralhadrao Wasnik Vs. State of Maharashtra, 2018-12 JT 189
K.S. Puttaswamy v. Union of India, (2017) 10 SCC 1.)
The Supreme Court in Amlesh Kumar v. The State of Bihar on 9 June, 2025, 2025 INSC 810 (Sanjay Karol, Prasanna B. Varale), 9th June, 2025, held as under:
“21. In view of the above exposition in Selvi (Supra), the third question is answered in the following terms :
The accused has a right to voluntarily undergo a narco- analysis test at an appropriate stage. We deem it appropriate to add, that the appropriate stage for such a test to be conducted is when the accused is exercising his right to lead evidence in a trial. However, there is no indefeasible right with the accused to undergo a narco- analysis test, for upon receipt of such an application the concerned Court, must consider the totality of circumstances surrounding the matter, such as free consent, appropriate safeguards etc., authorizing a person to undergo a voluntary narco-analysis test. We deem it appropriate to reproduce and reiterate the guidelines issued in Selvi (Supra) in this regard as follows :
“265. The National Human Rights Commission had published Guidelines for the Administration of Polygraph Test (Lie Detector Test) on an Accused in 2000. These Guidelines should be strictly adhered to and similar safeguards should be adopted for conducting the “narcoanalysis technique” and the “Brain Electrical Activation Profile” test. The text of these Guidelines has been reproduced below:
(i). No lie detector tests should be administered except on the basis of consent of the accused. An option should be given to the accused whether he wishes to avail such test.
(ii). If the accused volunteers for a lie detector test, he should be given access to a lawyer and the physical, emotional and legal implication of such a test should be explained to him by the police and his lawyer.
(iii). The consent should be recorded before a Judicial Magistrate.
(iv). During the hearing before the Magistrate, the person alleged to have agreed should be duly represented by a lawyer.
(v). At the hearing, the person in question should also be told in clear terms that the statement that is made shall not be a “confessional” statement to the Magistrate but will have the status of a statement made to the police.
(vi). The Magistrate shall consider all factors relating to the detention including the length of detention and the nature of the interrogation.
(vii). The actual recording of the lie detector test shall be done by an independent agency (such as a hospital) and conducted in the presence of a lawyer.
(viii). A full medical and factual narration of the manner of the information received must be taken on record.”
Damages arise from ‘tortious liability’ and ‘breach of contract’. It is observed in Rajkot Municipal Corpn. v. Manjulben Jayantilal Nakum,(1997) 9 SCC 552, as under:
“In tort, liability is primarily fixed by law while in contract they are fixed by the parties themselves. In tort, the duty is towards the persons generally while in contract it is towards specific persons or persons. If the claim depends upon proof of proof of the contract, action does not lie in tort. If the claim arises, from the relationship between the parties, independent of the contract, an action would lie in tort at the election of the plaintiff, although the might alternatively have pleaded in contract.”
Tortious Liability
Blacks Law Dictionary defines ‘tort’ as violation of duty imposed by general law or otherwise upon all persons occupying the relation to each other involved in a given transaction. There must always be a violation of some duty owed to plaintiff and generally such a duty must arise by operation of law and not by mere agreement of the parties.
Essential Elements of Tortious Liability
The essential elements of tortious liability are –
(a) some wrong doing and (b) negligence or strict liability.
Actual Damage for Tortmust be Established before a Court
For asserting tortious liability, as observed by our Apex Court, in Rajkot Municipal Corpn. v. Manjulben Jayantilal Nakum, it must be established before a court of law that:
(i) The defendant was under duty of care, primarily fixed by law, not to create physical danger to the person or property of third party;
(ii) The defendant ought to have reasonably foreseen the physical danger likely to be affected;
(iii) Violation of such duty fastened liability upon the defendant to pay damages; and
(iv) Actual physical damage must have been caused to the plaintiff or his property out of such breach of duty.
Foreseeability of Damages
In United India Insurance Co. v. Thomas, 1999-1 KLT 165; 1999 1 RCR(Civ) 610. the Kerala High Court held as under:
“In a suit for damages in a tort case, the court has power to award pecuniary compensation to the plaintiff for the injury or damage caused to him out of the wrongful act of the defendant. The test employed for determining whether the defendant is liable for damages is the test of directness, that is to say the defendant is liable for all direct consequences of the tortuous acts suffered by the plaintiff whether or not a reasonable man would have foreseen them. The Court of Appeal in Re Polemis and Furness, Withy & Co. Ltd. (1921) 3 K.B. 560) held that once the tortuous act is established the defendant is to be held liable for all the damages which ‘is in fact directly traceable to the negligent act, and not due to independent causes having no connection with the negligent act’.
Foreseeability of some damage is relevant to decide whether the act complained of was negligent or not. But the liability for damages is not restricted to foreseeable damage but extends to all the damage directly traceable to the negligent act. This view was adopted by the Privy Council in Overseas Tankship (U.K.) Ltd. v. Morts Dock & Engineering Co. Ltd. (1961) 1 All. E.R.404 (PC). In holding foresee ability to be the correct test, the judicial committee observed that Polemis” case (supra) should not be regarded as a good law. Lord Viscound Simonds observed:
“For it does not seem consonant with current ideas of justice or morality that, for an act of negligence .however slight or venial, which results in some trivial foreseeable damage, the actor should be liable for all consequences, however, unforeseeable and however grave, so long as they can be said to be “direct”. It is a principle of civil liability subject only to qualifications which have no present relevance, that a man must be considered to be responsible for the probable consequences of his act.”
His Lordship further said:
“But, with great respect to the full court, this is surely irrelevant, or, if it is relevant, only serves to show that the Polemis rule works in a very strange way. After the event even a fool is wise. Yet it is not the hindsight of a fool, but it is the foresight of the reasonable man which alone can determine responsibility. The Polemis rule, by substituting “direct” for “reasonably foreseeable” consequence, leads to a conclusion equally illogical and unjust.”
The above test of foresee ability was affirmed in The Wagon Mound (No. 2) (1966) 2 All. E.R.709) and Hughes v. Lord Advocate (1963) 1 All. E.R.705). While adjudicating the claim for compensation by the Tribunal under S.165 of the Act the foresee ability test has no application. It is for the Civil Court to apply this test while assessing the damages in accordance with the facts and circumstances of each case.”
Law of Tort Offers Compensation for Injuries; But, Not to All Losses
In Rajkot Municipal Corpn. v. ManjulbenJayantilalNakum,(1997) 9 SCC 552, a celebrated decision on this subject, it is pointed out as under:
“The law of tort prevents hurting one another. All torts consist of violation of a right in the plaintiff. Tort law, therefore, is primarily evolved to compensate the injured by compelling the wrong-doer to pay for the damage done. Since distributive losses are an inevitable by-product of modern living in allocating the risk, the law of tort makes less and less allowance to punishment, admonition and deterrence found in criminal law. The purpose of the law of tort is to adjust these losses and offer compensation for injuries by one person as a result of the conduct of another. The law could not attempt to compensate all losses.”
Damages Awarded After Adjudication
It is pointed out in State of UP v. Miss Nikhat Parveen, 2005-3 All WC 2733, that in case any person claims damage and compensation, he shall have to resort to the remedies provided to him in law and that the claim of damages requires adjudication and determination of facts. The Court observed further as under:
“11. A liability in tort arises from a breach of duty primarily fixed by law and this duty is towards person (s) generally and its breach is redressable by an action for unliquidated damages. In general, torts consist of some act done without just cause or excuse. Injury and damage are two basic ingredients of torts. These may be found either in contract or otherwise, the violation of which may result in tortuous liability as breach of duty primarily fixed by law or by parties in a contract. An action in tort is usually a claim for pecuniary compensation in respect of damages suffered as a result of invasion, of a legally protected interest. The action is founded and structured on morality, as no one has right to injure or harm others intentionally or even innocently. The liability in tort, in course of time has become known as strict liability, absolute liability or fault liability. The difference between strict liability and fault liability, arises from presence and absence of mental element. A breach of legal duty wilfully, or deliberately or even menacingly, is negligence emanating from fault liability, to injure and damage resulting without any intention, yet due to lack of foresight etc. is strict liability. The duty is the primary yardstick to determine the tortuous liability, and its ambit keeps on widening on the touchstone on fairness and practicability of the situation etc. These rules laid down in Rylands v. Fletcher, (1932) AC 562 were recognised by Indian Courts in Jai Laxmi Salt Works (P.) Ltd. v. State of Gujarat, (1994) 4 SCC 1.
12. Actionable negligence as a tort is to breach of a legal duty to take care which results in the State or an individual liable when the State is found reluctant in discharge of its duties or public responsibilities. It also amounts to negligence and is accountable in law of torts. According to Dias, liability in negligence, is technically prescribed ‘as arising out of damage caused by the breach of a duty to take care. The concept of duty, its reasonableness, the standard of care required however cannot be put into straitjacket formula or a rigid fixed formulae. The more advanced the society becomes, the more sensitive it grows to the violation of the duties by private or even public functionary. The negligence, in law of torts, is influenced by social, economic and political development. The distinction arising out of damages due to negligence and even when it, rather unintentionally and innocently is a firmly established branch of the law of torts. The negligence is only descriptive of those sum of activities which may result in injury and damage to the other side for voluntary discharging of duty both legal and due to lack of foresight and may comprise of more than one concept known and recognised in law intended or unintended.”
No Pecuniary Obligation or Debt for Breach of Contract (By Itself)
The Apex Court held in Union of India v. Raman Iron Foundry, (1974)2 SCC 231, that when there is a breach of contract, the party who commits the breach does not incur any pecuniary obligation nor does the party complaining of the breach become entitled to a debt due from the other party. In KaikkaraKaikkara Construction Company v. State Of Kerala, (2022) 1 Ker HC 541, the Kerala High Court observed as under:
“Two principles are laid down by the Apex Court in Raman Iron Foundry’s case:
1) The law is well settled that a claim for unliquidated damages does not give rise to debt until the liability is adjudicated and damages assessed by a decree or order of a court or other adjudicatory authority. When a party who commits the breach does not eo instanti incur any pecuniary obligation nor does the party complaining of the breach become entitled to a debt due from the other party. The only right that the party aggrieved by the breach of the contract will get is the right to sue for damages.
2) A claim for damages for breach of contract is therefore not a claim for a sum presently due and payable and the purchaser is not entitled, in exercise of the right conferred upon it under Clause 18, to recover the amount for such claim by appropriating other sum due to the contractor.”
It is held in Raman Iron Foundry‘s case as under.
“11. Having discussed the proper interpretation of clause 18, we may now turn to consider what is the real nature of the claim for recovery of which the appellant is seeking to appropriate the sums due to the respondent under other contracts. The claim is admittedly one for damages for breach of the contract between the parties. Now, it is true that the damages which are claimed are liquidated damages under clause 14, but so far as the law in India is concerned, there is no qualitative difference in the nature of the claim whether it be for liquidated damages or for unliquidated damages. S.74 of the Indian Contract Act eliminates the somewhat elaborate refinements made under the English common law in distinguishing between stipulations providing for payment of liquidated damages and stipulations in the nature of penalty. Under the common law a genuine pre-estimate of damages by mutual agreement is regarded as a stipulation naming liquidated damages and binding between the parties; a stipulation in a contract in terrorem is a penalty and the Court refuses to enforce it, awarding to the aggrieved party only reasonable compensation. The Indian Legislature has sought to cut across the web of rules and presumptions under the English common law, by enacting a uniform principle applicable to all stipulations naming amounts to be paid in case of breach, and stipulations by way of penalty, and according to this principle, even if there is a stipulation by way of liquidated damages, a party complaining of breach of contract can recover only reasonable compensation for the injury sustained by him, the stipulated amount being merely the outside limit. It, therefore makes no difference in the present case that the claim of the appellant is for liquidated damages. It stands on the same footing as a claim for unliquidated damages. Now the law is well settled that a claim for unliquidated damages does not give rise to a debt until the liability is adjudicated and damages assessed by a decree or order of a Court or other adjudicatory authority. When there is a breach of contract, the party who commits the breach does not eo instanti incur any pecuniary obligation, nor does the party complaining of the breach become party. The only right which the party aggrieved by the breach of the contract has is the right to sue for damages. That is not an actionable claim and this position is made amply clear by the amendment in S.6(e) of the Transfer of Property Act, which provides that a mere right to sue for damages cannot be transferred. This has always been the law in England and as far back as 1858 we find it stated by Wightman, J., in Jones v. Thompson, (1858) 27 LJQB 234. “Ex parte Charles and several other cases decide that the amount of a verdict in an action for unliquidated damages is not a debt till judgment has been signed.” It was held in this case that a claim for damages does not become a debt even after the jury has returned a verdict in favour of the plaintiff till the judgment is actually delivered. So also in O’Driscoll v. Manchester Insurance Committee, 1915 (3) KB 499. Swinfen Eady, L., J., said in reference to cases where the claim was for unliquidated damages “……. in such cases there is no debt at all until the verdict of the jury is pronounced assessing the damages and judgment is given”. The same view has also been taken consistently by different High Court in India. We may mention only a few of the decisions, namely, Jabed Sheikh v. Taher Mallik, 45 Cal WN 519 : AIR 1941 Cal. 639; S. Milkha Singh v. M/s. N. K. Gopala Krishna Mudaliar, AIR 1956 Punj 174 Iron and Hardware (India) Co. v. Firm Shamlal and Bros, AIR 1954 Bom 423. Chagla, C. J., in the last mentioned case, stated the law in these terms:(at pp.425-26) “In my opinion it would not be true to say that a person who commits a breach of the contract incurs any pecuniary liability, nor would it be true to say that the other party to the contract who complains of the breach has any amount due to him from the other party.
As already stated, the only right which he has is the right to go to a Court of law and recover damages. Now, damages are the compensation which a Court of law gives to a party for the injury which he has sustained. But, and this is most important to note, he does not get damages or compensation by reason of any existing obligation on the part of the person who has committed the breach. He gets compensation as a result of the fiat of the Court. Therefore, no pecuniary liability arises till the Court has determined that the party complaining of the breach is entitled to damages. Therefore, when damages are assessed, it would not be true to say that what the Court is doing is ascertaining a pecuniary liability which already existed. The Court in the first place must decide that the defendant is liable and then it proceeds to assess what that liability is. But till that determination there is no liability at all upon the defendant.”
This statement in our view represents the correct legal position and has our full concurrence. A claim for damages for breach of contract is, therefore, not a claim for a sum presently due and payable and the purchaser is not entitled, in exercise of the right conferred upon it under clause 18, to recover the amount of such claim by appropriating other sums due to the contractor. On this view, it is not necessary for us to consider the other contention raised on behalf of the respondent, namely, that on a proper construction of clause 18, the purchaser is entitled to exercise the right conferred under that clause only where the claim for payment of a sum of money is either admitted by the contractor, or in case of dispute, adjudicated upon by a Court or other adjudicatory authority. We must, therefore, hold that the appellant had no right or authority under Clause 18 to appropriate the amounts of other pending bill of the respondent in or towards satisfaction of its claim for damages against the respondent and the learned Judge was justified in issuing an interim injunction restraining the appellant from doing so.”
The Supreme Court, in State of Karnataka v. Rameswara Rice Mill, (1987) 2 SCC 160, it is held as under:
“7 …. The terms of clause 12 do not afford scope for a liberal construction being made regarding the powers of the Deputy Commissioner to adjudicate upon a disputed question of breach as well as to assess the damages arising from the breach. The crucial words in Cl.12 are “and for any breach of conditions set forth herein before, the first party shall be liable to pay damages to the second party as may be assessed by the second party.”
On a plain reading of the words, it is clear that the right of the second party to assess damages would arise only if the breach of conditions is admitted or if no issue is made of it. It it was the intention of the parties that the officer acting on behalf of the State was also entitled to adjudicate upon a dispute regarding the breach of conditions the wording in clause 12 would have been entirely different. It cannot also be argued that a right to adjudicate upon an issue relating to a breach of conditions of the contract would flow from or is inhered in the right conferred to assess the damages arising from a breach of conditions. The power to assess damages, as pointed out by the Full Bench, is a subsidiary and consequential power and not the primary power. Even assuming for argument’s sake that the terms of clause 12 afford scope for being construed as empowering the officer of the Sate to decide upon the question of breach as well as assess the quantum of damages, we do not think that adjudication by the Officer regarding the breach of the contract can be sustained under law because a party to the agreement cannot be an arbiter in his own cause. Interests of justice and equity require that where a party to a contract disputes the committing of any breach of conditions, the adjudication should be independent person or body, and not by the other party to the contract.
The position will, however, be different where there is no disputeor there is consensus between the contracting parties regarding the breach of conditions. In such a case, the Officer of the State, even though a party to the contract, will be sell within his rights in assessing the damages occasioned by the breach in view of the specific terms of clause 12.
8. We are, therefore, in agreement with the view of the Full Bench that the powers of the State under an agreement entered into by it with a private person providing for assessment of damages for breach of conditions and recovery of the damages will stand confined only to those cases where the breach of conditions is admitted or it is not disputed.”
In Abdul Rahiman v. Divisional Forest Officer, 1988 (2) KLT 290, the Kerala High Court observed as follows”
“When a contract is broken, the party who suffers by such breach is entitled to receive from the party who has broken the contract, compensation for any loss or damage caused to him thereby. This principle of S.73 of the Contract Act equally applies where one of the contesting parties is the Government. It is the breach of the contract that gives rise to the cause for damages. The primary duty therefore is to fix the liability for the breach. Assessment of damages is only an incidental or subsidiary function. The liability to pay damages is thus fastened where there is breach of contract.
However, when a dispute arises as to whether the contract has been broken or not, that dispute cannot be settled by one of the parties to the contract, for, he cannot be an arbiter in his own cause. The dispute may have to be referred to an arbitrator or the matter has to be settled in a court of law. This principle applies to the Government also as a party to the contract.
Where the breach of the contract is admitted ie. where there is no dispute that the contract has been broken by one of the parties, the Government as the party entitled to claim compensation for the breach need not wait for a determination by any outside agency as to whether there was any breach of contract. In that event, the question of damages alone remains to be considered. A sum can be named in the contract as the amount to be paid in case of breach, an amount in liquidation of the claim for compensation. The contract can thus provide for liquidated damages in the event of breach and the Government claiming that amount as compensation for the admitted breach committed by the other party to the contract, need not seek the aid of court or any outside agency for the fixation of the quantum of damages.
Similarly, if the contract itself provides that “that one party shall be liable to pay damages to the second party as may be assessed by the second party”, the assessment by the second party, in case the breach is admitted, is binding on the first party and there is no more any necessity for a further quantification of the damages by any outside agency. The party assessing the damage can straight away seek to recover the amount and if that party is the Government, it can have recourse to the remedy available under the Kerala Revenue Recovery Act.”
After quoting this decision it is held in Build Tech India Ltd. v. State of Kerala, 2000 (2) Ker LJ 142 as under:
“The cumulative effect of the aforesaid decisions is that when breach is not admitted, one of the contracting parties cannot arrogate to itself the power to claim compensation for the breach from the other party without there being any adjudication by an outside agency as to whether there was any breach of contract. In the case on hand, going by the pleadings as already noticed, it cannot be held that the petitioner has admitted the breach. Therefore the respondents have no jurisdiction to quantify the damage or loss alleged to have sustained by it on account of the alleged breach.”
(All the aforesaid cases are referred to in Kaikkara Kaikkara Construction Company v. State Of Kerala, (2022) 1 Ker HC 541.)
Sec. 73 and 74 deals with Compensation for Breach of Contract
73. Compensation for loss or damage caused by breach of contract.—When a contract has been broken, the party who suffers by such breach is entitled to receive, from the party who has broken the contract, compensation for any loss or damage caused to him thereby, which naturally arose in the usual course of things from such breach, or which the parties knew, when they made the contract, to be likely to result from the breach of it.
—When a contract has been broken, the party who suffers by such breach is entitled to receive, from the party who has broken the contract, compensation for any loss or damage caused to him thereby, which naturally arose in the usual course of things from such breach, or which the parties knew, when they made the contract, to be likely to result from the breach of it.
Such compensation is not to be given for any remote and indirect loss or damage sustained by reason of the breach. Compensation for failure to discharge obligation resembling those created by contract.
—When an obligation resembling those created by contract has been incurred and has not been discharged, any person injured by the failure to discharge it is entitled to receive the same compensation from the party in default, as if such person had contracted to discharge it and had broken his contract.
—When an obligation resembling those created by contract has been incurred and has not been discharged, any person injured by the failure to discharge it is entitled to receive the same compensation from the party in default, as if such person had contracted to discharge it and had broken his contract.”
Explanation.—In estimating the loss or damage arising from a breach of contract, the means which existed of remedying the inconvenience caused by the non-performance of the contract must be taken into account.
74 Compensation for breach of contract where penalty stipulated for:- [When a contract has been broken, if a sum is named in the contract as the amount to be paid in case of such breach, or if the contract contains any other stipulation by way of penalty, the party complaining of the breach is entitled, whether or not actual damage or loss is proved to have been caused thereby, to receive from the party who has broken the contract reasonable compensation not exceeding the amount so named or, as the case may be, the penalty stipulated for.
Explanation.— A stipulation for increased interest from the date of default may be a stipulation by way of penalty.]
(Exception) — When any person enters into any bail-bond, recognizance or other instrument of the same nature or, under the provisions of any law, or under the orders of the [Central Government] or of any [State Government], gives any bond for the performance of any public duty or act in which the public are interested, he shall be liable, upon breach of the condition of any such instrument, to pay the whole sum mentioned therein.
Explanation.— A person who enters into a contract with Government does not necessarily thereby undertake any public duty, or promise to do an act in which the public are interested.
Can a Party to Contract Adjudicate Upon Breach and Quantum?
The Supreme Court, in State of Karnataka v. Rameshwara Rice Mills, Thirthahalli, AIR 1987 SC 1359, observed that even when the State is one of the contracting parties and seek to recover damages for breach of contract, the State cannot be a Judge in its own cause and cannot be its own arbitrator to determine the liability and quantum of damages. The Apex Court held as under:
“The terms of Clause 12 do not afford scope for a liberal construction being made regarding the powers of the Deputy Commissioner to adjudicate upon a disputed question of breach as well as to assess the damages arising from the breach. The crucial words in Clause 12 are “and for any breach of conditions set forth hereinbefore, the first party shall be liable to pay damages to the second party as may be assessed by the second party. On a plain reading of the word, it is clear that the right of the second party to assess damages would arise only if the breach of conditions is admitted or if no issue is made of it. If it was the intention of the parties that the officer acting on behalf of the State was also entitled to adjudicate upon a dispute regarding the breach of conditions the wording in Clause 12 would have been entirely different. It cannot also be argued that right to adjudicate upon an issue relating to a breach of conditions of the contract would flow from or is inhered in the right conferred to assess the damages arising from a breach of conditions. The power to assess damages, as pointed out by the Full Bench, is subsidiary and consequential power and not the primary power. Even assuming for argument’s sake that the terms of Clause 12 afford scope for being construed as empowering the office of the State of decide upon the question of breach as well as assess the quantum of damages, we do not think that adjudication by the officer regarding the breach of the contract can be sustained under law because a party to the agreement cannot be an arbiter in his own cause. Interests of justice and equity require that where a party to a contract disputes the committing of any breach of conditions the adjudication should be by an independent person or body and not by the other party to the contract. The position will, however, be different where there is no dispute or there is consensus between the contracting parties regarding the breach of conditions. In such a case, the Officer of the State, even though a party to the contract will be well within his rights in assessing the damages occasioned by the breach in view of the specific terms of Clause 12. .. We are, therefore, in agreement with the view of the Full Bench that the powers of the State under an agreement entered into by it with a private person providing for assessment of damages for breach of conditions and recovery of the damages will stand confined only to those cases where the breach of conditions is admitted or it is not disputed.”
This principles, dispute about the liability for damages is a matter for the civil court, and a party to an agreement cannot be an arbiter in its own cause, are followed in the following cases:
Abdul Rahiman v. Divisional Forest Officer, AIR 1989 Ker 1;
Latheef v. Superintending Engineer, ILR 1993(2) Ker 426;
Rambal Co. v. Kerala State Science & Technology Museum, 2000 (3) Arb. LR 212;
Bharat Sanchar Nigam Ltd. v. Motorola India Pvt. Ltd., AIR 2009 SC 357: 2009 2 SCC 337;
Mohammed Kunhi v. Executive Engineer, 2001(3) KLT 733;
Union of India v. Tejinder Kumar Dua, 2013-200 DLT 60;
Tulsi Narayan Garg v. Madhya Pradesh Road Development Authority, Bhopal, 2019 SCC OnLine SC 1158.
It is held in the following cases that if breach alleged by a party to the contract is denied by the other a unilateral decision as to damages is not proper.
Union of India v. Raman Iron Foundry, AIR 1974 SC 1265: (1974) 2 SCC 231. (The principles in this decision is followed in the following cases.)
State of Karnataka v. Rameshwara Rice Mills, Thirthahalli, AIR 1987 SC 1359
JG Engineers Private Limited v. Union of India, AIR 2011 SC 2477: (2011) 5 SCC 758
State of Kerala and others v M.K.Jose, (2015) 9 SCC 433
M/s. Gangotri Enterprises Limited v Union of India, (2016) 11 SCC 720, AIR 2016 SC 2199.
It is pointed out in Perkins Eastman Architects DPC v. HSCC (India) Limited, AIR 2020 SC 59, 2019 SCC Online SC 1517, by our Apex Court that a Chief Managing Director of a Company by himself cannot appoint a sole arbitrator, as he himself cannot act as an arbitrator, emphasising the principle that ‘what cannot be done directly cannot be done indirectly’. (See also: TRF Limited vs. Energo Projects Ltd., (2017) 8 SCC 377.)
Tender issuer cannot forfeit pre-bid payment as damages; He has to Prove it
In Sushil Kumar Thard v. National Jute Manufactures Corpn. Ltd., (2023) 2 HCC (Cal) 217, the successful bidder refused to sign the contract. It is held that the tender issuer cannot forfeit the earnest money or the pre-bid payment as damages. He has to prove the loss or damage by reason of such alleged breach; for, Sec. 73 of the Contract Act requires damages to be the reasonable compensation of breach suffered by the claimant and not remote. The High Court relied on the judgment of the Madras High Court in Rubina v. The Authorised Officer, M/s. Axis Bank Limited which held that the existence of a forfeiture clause does not imply that the entire amount deposited can be forfeited and that the right to forfeit must be balanced against the rule of unjust enrichment.
If Special Forum Provided, it must be Approached
Supreme Court in the case of Western India Plywood Limited v. P Ashokan, AIR 1997 SC 3883, and BS Bharti v. IBP Co. Ltd, AIR 2004 SC 4355, it is laid down that where a special statute (Motor Vehicles Act, Workman’s Compensation Act, ESI Act, Industrial Disputes Act, etc.) bars jurisdiction of the civil court, and a special forum is provided, then the injured must seek his remedy before the special forum, and he cannot resort to remedy in a civil suit.
Pleadings and Future Damages
In Bhagwati Prasad v. Chandramaul, AIR 1966 SC 735; 1966-2 SCR 286, It was held as under:
“Once it is held that the plaintiff is entitled to eject the defendant, it follows that from the date of the decree granting the relief of ejectment to the plaintiff, the defendant who remains in possession of the property despite the decree, must pay mesne profits or damages for use and occupation of the said property until it is delivered to the plaintiff. A decree for ejectment in such a case must be accompanied by a direction for payment of the future mesne profits or damages. Then as to the rate at which future mesne profits can be awarded to the plaintiff, we see no reason to differ from the view taken by the trial Court that the reasonable amount in the present case would be Rs. 300/- per month.”
The Supreme Court, inthe significant decision, Dushyant N. Dalal v. Securities and Exchange Board of India, AIR 2018 SC 447; 2017-9 SCC 660, it is held that the Interest Act of 1978 enables the courts and tribunals to award interest ‘in equity’. The Apex Court upheld the view that the words ‘other rule of law or usage having the force of law‘, in Sec. 4 (1) of the Interest Act, 1978, would justify payment of interest, in proper cases, ‘in equity’.
When courts award interest.
In Life Insurance Corporation of India v. S. Sindhu, AIR 2006 SC 2366 : (2006) 5 SCC 258 it is held that interest prior to the date of suit (as contrasted to pendente-lite interest and future interest) is awarded where:
(a) the contract provides;
(b) the statute applicable to the transaction, provides for; or
(c) as per the provisions of the Interest Act, 1978.
Interest Act, 1839 and interest ‘payable by law’ under ‘equity’
Proviso to Section 1 of the Interest Act, 1839 reads as under:
“Provided that interest shall be payable in all cases in which it is now payable by law.”
It was uniformy held that interest was ‘payable by law’ under that Act in ‘equity’. (Bengal Nagpur Railway Co. Ltd. vs. Rultanji Ramji, AIR 1938 PC 67; Satinder Singh v. Umrao Singh, AIR 1961 SC 908; Hirachand Kothari v. State of Rajasthan, 1985 Supp SCC 17.) In Trojan and Co. v. Nagappa Chettiar, 1953 SCR 789, the Supreme Court observed that it was well settled that interest could be allowed by a Court of equity where money was obtained or retained by fraud.
Earlier view: Interest Act, 1978 did not Canvas Interest on Equitable Grounds
In Life Insurance Corporation of India v. S. Sindhu, AIR 2006 SC 2366 : (2006) 5 SCC 258 it is pointed out that the Interest Act, 1978 made a significant departure from the old Interest Act of 1839. It is pointed out that the present Act does not contain the following provision contained in the proviso to section (1) of the old Act:
“Interest shall be payable in all cases in which it is now payable by law”.
Sections 3, 4 and 5 of the Interest Act, 1978 read as follows
3. Power of court to allow Interest.-
(1) In any proceeding for the recovery of any debt or damage or in any proceedings in which a claim for interest in respect of any debt or damages already paid is made, the court may, if it thinks fit, allow interest to the person entitled to the debt or damages or to the person making such claim, as the case may be, at a rate not exceeding the current rate of interest, for the whole or part of the following period, that is to say ;-
(a) If the proceedings relate to a debt payable by virtue of a written instrument at a certain time, then, from the date when the debt is payable to the date of institution of the proceedings;
(b) if the proceedings do not relate to any such debt, then, from the date mentioned in this regard in a written notice given by the person entitled or the person making the claim to the person liable that interest will be claimed to the date of institution of the proceedings:
Provided that where the amount of the debt or damages has been repaid before the institution of the proceedings, interest shall not be allowed under this section for the period after such repayment.
(2) Where in any such proceedings as are mentioned in sub-section (1),:—
(a) judgment, order or award is given for a sum which, apart from interest on damages, exceeds four thousand rupees, and
(b) the sum represents or includes damages in respect of personal injuries to the plaintiff or any other person or in respect of a person’s death, then, the power conferred by that sub-section shall be exercised so as to include in that sum interest on those damages or on such part of them as the court considers appropriate for the whole or part of the period from the date mentioned in the notice to the date of institution of the proceedings, unless the court is satisfied that there are special reasons why no interest should be given in respect of those damages.
(3) Nothing in this Section,—
(a) shall apply in relation to—
(i) any debt or damages upon which interest is payable as of right, by virtue of any agreement; or
(ii) any debt or damages upon which payment of interest is barred, by virtue of an express agreement;
(b) shall affect—
(i) the compensation recoverable for the dishonour of a bill of exchange, promissory note or cheque, as defined in the Negotiable instrument Act, 1881 (26 of 1881); or
(ii) the provisions of rule 2 of Order II of the First Schedule to the Code of Civil Procedure, 1908 (5 of 1908);
(c) shall empower to court to award interest upon interest.
4. Interest payable under certain enactments.—
(1) Notwithstanding anything contained in section 3, interest shall be payable in all cases in which it is payable by virtue of any enactment or other rule of law or usage having the force of law.
(2) Notwithstanding as aforesaid, and without prejudice to the generality of the provisions of sub-section (1), the court shall, in each of the following cases, allow interest from the date specified below to the date of institution of the proceedings at such rate as the court may consider reasonable, unless the Court is satisfied that there are special reasons why interest should not be allowed, namely:-
(a) where money or other property has been deposited as security for the performance of any obligation imposed by law or contract, from the date of the deposit;
(b) where the obligation to pay money or restore any property arises by virtue of a fiduciary relationship, from the date of the cause of action;
(c) where money or other property is obtained or retained by fraud, from the date of the cause of action;
(d) where the claim is for dower or maintenance, from the date of the cause of action.
5. Section 34 of the Code of Civil Procedure, 1908 to apply.—Nothing in this Act shall affect the provisions of section 34 of the Code of Civil Procedure, 1908 (5 of 1908).”
Claim of Interest under Interest Act, 1978 – equity and common law principles
In Ferro Alloys Corporation Limited v. AP State Electricity Board, AIR 1993 SC 2005, the Supreme Court examined whether interest could be claimed on the basis of the Interest Act, 1978, equity or common law on deposits made with the Electricity Board. The Apex Court observed as under:
“128. If this be the position, could interest be claimed either on equity or common law? The argument on behalf of the consumers is, if money belonging to any person is used by someone else he is obliged to pay interest for the period of its user. Halsbury, Volume 32 (page 53, para 106) defines “interest” as
“the return or compensation for the use or retention by one person of a sum of money belonging or owed to another….
129. Strictly speaking, the word “interest” would apply only to cases where there is a relationship of debtor and creditor. A lender of money who allows the borrower to use certain funds deprives himself of the use of those funds. He does so because he charges interest which may be described as a kind of rent for the use of the funds. For example, a bank or a lender lending out money on payment of interest. In this case, as already noted, there is no relationship of debtor and creditor.
130. We may now refer to Halsbury, 4th Edn., Vol. 32, para 108:
“108. When interest is payable at common law.”
At common law interest is payable
(1) where there is an express agreement to pay interest;
(2) where an agreement to pay interest can be implied from the course of dealing between the parties or from the nature of the transaction or a custom or usage of the trade or profession concerned;
(3) in certain cases by way of damages for breach of a contract (other than a contract merely to pay money) where the contract, if performed, would to the knowledge of the parties have entitled the plaintiff to receive interest. Except in the cases mentioned, debts do not carry interest at common law.”
Consumption security deposit does not fall under any of the categories mentioned above. Para 109 says:
“Equitable right to interest.” In equity interest may be recovered in certain cases where a particular relationship exists between the creditor and the debtor, such as mortgagor and mortgagee, obligor and obligee on a bond, personal representative and beneficiary, principal and surety, vendor and purchaser, principal and agent, solicitor and client, trustee and beneficiary, or where the debtor is in a fiduciary position to the creditor. Interest is also allowed on pecuniary legacies not paid within a certain time, on the dissolution of a partnership, on the arrears of an annuity where there has been misconduct or improper delay in payment, or in the case of money obtained or retained by fraud. It may also be allowed where the defendant ought to have done something which would have entitled the plaintiff to interest at common law, or has wrongfully prevented the plaintiff from doing something which would have so entitled him.”
131. Even a case of wrongful detention of money cannot arise. In Bengal Nagpur Railway v. Ruttanji Ramji the question arose whether interest was payable on damages on account of wrongful detention of money. It was held: (IA pp. 71- 72)
“The Interest Act, however, contains a proviso that “interest shall be payable in all cases in which it is now payable by law”. This proviso applies to cases in which the Court of equity exercises jurisdiction to allow interest. As observed by Lord Tomlin in Maine and New Brunswick Electrical Power Co. Ltd. v. Alice M. Hart: “In order to invoke a rule of equity, it is necessary in the first instance to establish the existence of a state of circumstances which attracts the equitable jurisdiction, as for example, non-performance of a contract of which equity can give specific performance.” The present case does not however attract the equitable jurisdiction of the Court and cannot come within the purview of the proviso.”
In H.P. State Financial Corporation, Shimla v. Prem Nath Nanda, (2000) 8 SCC 528, the Supreme Court rejected claim for interest on the ground that there was no statutory provision or agreement to pay interest. However, the Court noticed that in appropriate cases interest may be awarded in lieu of compensation or damages for wrongly retaining a amount payable to a party. For this, the Supreme Court relied upon Satinder Singh v. Umraon Singh, AIR 1961 SC 908 and Laxmichand v. Indore Improvement Trust, (1975) 1 SCC 565.
In Soviltorg (India) Ltd. v. State Bank of India, (1999) 6 SCC 406, the Delhi High Court observed as under:
“6. Relying upon the province of Section 34 of the Civil Procedure Code, the learned counsel for the appellant submitted that the appellant was entitled to the payment of interest at the rate at which moneys are lent or advanced by Nationalised Banks in relation to commercial transactions. Referring to IA No. 2 filed in this Court and Banking Law and Practice in India issued in 1991, she had contended that the appellant was entitled to the payment of interest minimum at the rate of 19.4 per cent per annum. The general submission made in this behalf cannot be accepted in view of the provision of Section 14 of the Act. There was no contract between the parties regarding payment of interest on delayed deposit or on account of delay on the part of the opposite party to render the services. Interest cannot be claimed under Section 34 of the Civil Procedure Code as its provisions have not been specifically made applicable to the proceedings under the Act. We, however, find that the general provision of Section 34 being based upon justice, equity and good conscience would authorise the Redressal Forums and Commissions to also grant interest appropriately under the circumstance of each case. Interest may also be awarded in lieu of compensation or damages in appropriate cases. The interest can also be awarded on equitable grounds…”
All these decisions are referred to in Ritu Sengupta v. Municipal Corporation of Delhi, 2008-152 DLT 68; 2008-106 DRJ 54; ILR 2009-1 Del 586.
SIGNIFICANT CHANGE IN LAW By AIR 2018 SC 447; 2017-9 SCC 660
“Other rule of law .. having the force of law” canvases ‘equity’
Section 4(1) of the Interest Act, 1978 provides that notwithstanding anything contained in section 3, interest shall be payable in all cases in which it is payable by virtue of any enactment or other rule of law or usage having the force of law.
In Dushyant N. Dalal v. Securities and Exchange Board of India, AIR 2018 SC 447; 2017-9 SCC 660, the Apex Court upheld the decision of the Bombay High Court in Prabhavati Ramgarib B. v. Divisional Railway Manager, (2010) 4 Mah LJ 691. The Bombay High Court held as under:
“35. The petitioner’s claim for interest would fall within the ambit of the words “or other rule of law“ in section 4(1). The other rule of law being on grounds of equity. Even under the Interest Act, 1839, interest was payable under the proviso to section 1 which reads: “Provided that interest shall be payable in all cases in which it is now payable by law.” Interest was payable by law under that Act in equity. This was recognized in a series of judgments. For instance in Trojan and Co. v. Nagappa Chettiar, 1953 SCR 789, the Supreme Court, in paragraph 23, observed that it was well settled that interest is allowed by a Court of equity in the case of money obtained or retained by fraud. Interest was, therefore, awarded in equity. …. ..
36. The position is not different under the Interest Act, 1978. The words, in section 4(1) “or other rule of law” would include interest payable in equity. In fact, interest has been awarded by our Courts in equity as well as on principles analogous to section 34 of the Code of Civil Procedure on the basis that section 34 is based upon principles of justice, equity and good conscience.”
After quoting the aforesaid passage from the Bombay decision it is held in Dushyant N. Dalal v. Securities and Exchange Board of India, AIR 2018 SC 447; 2017-9 SCC 660 as under:
“We agree with the aforesaid statement of the law. It is clear, therefore, that the Interest Act of 1978 would enable Tribunals such as the SAT to award interest from the date on which the cause of action arose till the date of commencement of proceedings for recovery of such interest in equity.”
Each civilisation has its own peculiar concepts as to religious and charitable endowments and ‘trust’ attached to it. India is rich of its ancient past with regard to the charitable and religious dedications and trusts. They have their own unique history of development and formulation of legal principles.
Private Trust – Indian Law and English Law
Charitable trusts of public nature alone, and not of private nature, are accepted as valid under English Law. The distinction between English Law and Hindu Law has been stated by Dr. Mukherjea in his Tagore Law Lectures ‘On the Hindu Law of Religious and Charitable Trusts’ as under:
“In English Law charitable trusts are synonymous with public trusts and what is called religious trust is only a form of charitable trust. The beneficiaries in a charitable trust being the general public or a Section of the same and not a determinate body of individuals, the remedies for enforcement of charitable trust are somewhat different from those which can be availed of by beneficiaries in a private trust. In English Law the Crown as ‘parens-patriae’ is the constitutional protector of all property subject to charitable trusts, such trusts being essentially matters of public concern. … One fundamental distinction between English and Indian Law lies in the fact that there can be religious trust of a private character under Hindu Law which is not possible in English Law.” [1]
Dedication to Family Idol – Recognised by Indian Law
In case of a public temple, dedication of property thereto is complete or absolute, as in the case of a public way. Though assignment of property in favour of a private temple is also recognised as ‘dedication’, it not ‘absolute’ as in the case of a public temple.
In Deoki Nandan Vs. Murlidhar[2] the Apex Court observed:
“(W)hen property is dedicated for the worship of a family Idol, it is a private and not a public endowment, as the persons who are entitled to worship at the shrine of the Deity can only be the members of the family, and that is an ascertained group of individuals. “[3]
Distinction: Beneficiaries, Individuals or General Public
Dr. BK Mukherjea, J., ‘On the Hindu Law of Religious and Charitable Trusts’, has set out the difficulty to make a distinction between public and private charitable trust as under:
“The line of distinction between a public purpose and a purpose which is not public is very thin and technical and is difficult of an easy definition.”[4]
Where the beneficiaries of a trust or charity are limited to a finite group of identifiable individuals, the trust or charity is of a private character.[5]
As to determination of the nature of a temple, whether public or private, it is held in Deoki Nandan Vs. Murlidhar,[6] as under:
“The distinction between a private and a public trust is that whereas in the former, the beneficiaries are specific individuals, in the latter, they are the general public or a class thereof. While in the former the beneficiaries are persons who are ascertained or capable of being ascertained, in the latter they constitute a body which is incapable of ascertainment.”
Public Trust – Cardinal Point, Intention of Founder
In Deoki Nandan Vs. Murlidhar,[7] it is held further:
“When once it is understood that the true beneficiaries of religious endowments are not the Idols but the worshippers, and that the purpose of the endowment is the maintenance of that worship for the benefit of the worshippers, the question whether an endowment is private or public presents no difficulty. The cardinal point to be decided is whether it was the intention of the founder that specified individuals are to have the right of worship at the shrine, or the general public or specified portion thereof. In accordance with this theory, it has been held that when property is dedicated for the worship of a family Idol, it is a private and not a public endowment, as the persons who are entitled to worship at the shrine of the Deity can only be the members of the family, and that is an ascertained group of individuals. But where the beneficiaries are not members of a family or a specified individual, then the endowment can only be regarded as public, intended to benefit the general body of worshippers.” [8]
No Document is Essential for Dedication in Public Trust
The act of delivering property, by its owner, for the use of the public is called ‘dedication’.
With regard to private trusts, under Sec. 5 of the Indian Trusts Act, for creation of trust on immovable property, ‘declaration by a non-testamentary instrument’ is essential; and for creation of trust on movable property, ‘transfer of ownership’ will be sufficient.
Section 5 of The Indian Trusts Act, 1882 (pertains to private trust lone) reads as under”
5. Trust of immovable property – No trust in relation to immoveable property is valid unless declared by a non-testamentary instrument in writing signed by the author of the trust or the trustee and registered, or by the will of the author of the trust or of the trustee.
Trust of moveable property – No trust relating to movable property is valid unless declared as aforesaid, or unless the ownership of the property is transferred to the trustee. These rules do not apply where they would operate so as to effectuate a fraud.
Public Trust – Nature of Dedication – Terms of the Document, Important
Declaration by a registered deed or vesting/transferring property to a trustee is the usual mode of dedication of immovable property; though no document is necessary for creating a religious endowment.
If the founders’ intention is clear from the document of foundation or other direct evidence, oral or documentary, no difficulty arises. In cases where express dedication cannot be proved, it will be a matter for legal inference from the proved facts and circumstances of each case. In Radhakanta Deb Vs. Commr. of Hindu Reli. Endts, it is held:
“Where, however, a document is available to prove the nature and origin of the endowment and the recitals of the document show that the control and management of the temple is retained with the founder or his descendants, and that extensive properties are dedicated for the purpose of the maintenance of the temple belonging to the founder himself, this will be a conclusive proof to show that the endowment was of a private nature.”[9]
In S. Shanmugam Pillai . Vs. K. Shanmugam Pillai .[10] it is held:
“Whether or not a dedication is complete would naturally be a question of fact to be determined in each case on the terms of the relevant document if the dedication in question was made under a document. … “[11]
In Hemanta Kumari Debi Vs. Gauri Shankar Tewari[12] it is held, while dealing with a bathing ghat on the banks of the River Ganges, that complete relinquishment of title was not the only form of dedication under Hindu Law.
It further observed as under:
“In the absence of a formal and express endowment evidenced by deed or declaration, the character of the dedication can only be determined on the basis of the history of the institution and the conduct of the founder and his heirs.”
Our Apex Court observed the following, interpreting a deed, in Idol of Sri Renganatha-swamy Vs. PK Thoppulan Chettiar[13]as under:
“The Deed of Settlement must be examined as a whole to determine the true intention of the settlor. Where the settlor seeks to divest himself of the property entirely for a religious purpose, a public religious charity is created. In the present case, the Deed of Settlement creates an absolute prohibition on the subsequent sale or mortgage of the suit property. The Deed of Settlement provides that, the settler purchased the punja land mentioned in the schedule of property… for the performance of charity work in reference to Sri Renganathan-swamy sanctum. The property outlined in the schedule of the Deedof Settlement is described as, property allotted for charity work. With respect to the legal heirs, the Deed of Settlement creates an obligation on the settlors legal heirs to continue the charitable activities at the suit property out of their business incomes. The settlor had a clear intent to divest himself and his legal heirs of the property and endow it for the continuation of the charitable activities at the suit property. The purpose of the endowment was to carry on charitable work. The Deed of Settlement obligates the legal heirs to continue the charitable activities at the suit property.”
Family Deity is also a Juristic Person
In case of dedication of property for creation of a public temple, the donor (i) completely relinquishes his title over the property, (ii) vests its ‘legal ownership’ with the Deity and (iii) transfers the possession thereof to the Shebaits (trustees) for administrating the same for the benefit of the public or a class thereof. It is beyond doubt that if the temple is a public temple, under Hindu Law, the idol is a juridical person; and so, the ownership of the temple and all its endowments including offerings made before the idol constitute the property of the idol.[14]
Principles as to legal personality, rights emanating therefrom, etc. with respect to a family temple are presented in the same manner as that of a public temple by Dr. BK Mukherjea, J. in his treatise ‘On Hindu Law of Religious & Charitable Trusts’.But it is observed (obiter) in Shriomani Gurudwara Prabandhak Committee, Amritsar Vs. Shri Som Nath Dass[15] as under:
“The idol may be revered in homes but its juristic personality is only when it is installed in a public temple.”
The following passages in the Tagore Law Lectures by Dr. B.K. Mukherjea are relevant in this context.
i. “In the first place even if property is dedicated to a family Deity, the endowment is a religious and charitable trust in the proper sense of the term, and as the law of perpetuity or remoteness cannot affect such dedication, there is no reason why the other incidents of private trust should be applied to it. In the second place, the Deity itself is a juridical person in Hindu Law and the dedicated property vests in it absolutely.” (Page 197)[16]
ii. “When the Shebait himself is the misconducting party, whose removal is sought for or where property has been improperly alienated by the Shebait and he is unwilling or incapable of bringing a suit himself, any other person interested in the family debutter can sue, or the Deity itself as a juristic person can institute a suit through somebody as next friend.” (Page 462).[17]
Dedication of Property for Establishment of Dharmasala
While dealing with dedication of property for creation of a Dharmasala it is held in Kuldip Chand Vs. AG to Government of HP[18] as under:
“When the complete control is retained by the owner – be it be appointment of a Chowkidar, appropriation of rents, maintenance thereof from his personal funds – dedication cannot be said to be complete.”
‘Valid and Complete’ Dedication in Family Temple
Though control and management of the property are retained by the founder, if the temple is bestowed for the benefit of the family members, it could also be qualified as ‘dedication’. When the founder of a family temple releases his individual rights over the endowed property and vest the legal ownership of the same with the family Deity, such a dedication is also ‘valid and complete’ in law.
Can a Private (Secular) Trust be Put to an End?
It is settled (Profulla Chorone Requitte Vs. Satya Chorone Requitte[19]) that in the matter of (secular) private trusts, English principles are followed in India which lay down that if the beneficiaries are sui juris and of one mind, the trust can be put to an end or use the trust fund for any purpose.
Chapter VIIII of the Indian Trusts Act is relevant here. It reads:
Chapter VIIII – The Extinction of Trusts
77. Trust how extinguished.—A trust is extinguished—(a) when its purpose is completely fulfilled; or (b) when its purpose becomes unlawful; or (c) when the fulfillment of its purpose becomes impossible by destruction of the trust property or otherwise; or (d) when the trust, being revocable, is expressly revoked.
78. Revocation of trust.—A trust created by will may be revoked at the pleasure of the testator. A trust otherwise created can be revoked only— (a) where all the beneficiaries are competent to contract—by their consent; (b) where the trust has been declared by a non-testamentary instrument or by word of mouth—in exercise of a power of revocation expressly reserved to the author, of the trust; or (c) where the trust is for the payment of the debts of the author of the trust, and has not been communicated to the creditors—at the pleasure of the author of the trust. Illustration A conveys property to B in trust to sell the same and pay out of the proceeds the claims of A’s creditors. A reserves no power of revocation. If no communication has been made to the creditors, A may revoke the trust. But if the creditors, are parties to the arrangement, the trust cannot be revoked without their consent.
79. Revocation not to defeat what trustees have duly done.—No trust can be revoked by the author of the trust so as to defeat or prejudice what the trustees may have duly done in execution of the trust.
Can Entire Family Members Put an End to Family Temple?
In case of public trusts, no doubt, the principle is: once a trust is made, it is final and irrevocable.[20] As observed by the Apex Court in Agasthyar Trust, Madras Vs. Commr. of Income Tax Madras, even the founder cannot revoke or put an end to it. Subsequent conduct of the founder or his descendants contrary to such dedication would amount to a breach of trust.[21]
But there is difference of opinion in the matter of private religious trusts. It is held by Calcutta High Court in Sukumar Bose Vs. Abani Kumar (1956)[22] that the property once dedicated and a private trust created, the same cannot be put to an end even with the consent of all parties interested in the endowment. It was followed by the Calcutta High Court in Panna Banerjee Vs. Kali Kinkor Ganguli (1974).[23] Kerala (1961)[24] and Madras (1998)[25] High Court also took the same view.
The contrary view in Narayan Vs. Narasing Charan (1876),[26] had been criticized by Sir George Rankin, in Surendra Krishna Roy Vs. Shree ShreeIswar Bhubaneshwari Thakurani (1933).[27]
It is observed by the Apex Court in Profulla Chorone Requitte Vs. Satya Chorone Requitte (1979)[28] as under:
“23. Then, there is a distinction between a public and private debutter. In a public debutter or endowment, the dedication is for the use or benefit of the public. But in a private endowment, when property is set apart for the worship of a family idol, the public are not interested. The present case is one of a private debutter. The distinction is important, because the results logically following therefrom have been given effect to by courts, differently.
24. According to English law, the beneficiaries in a private trust, if sui juris and of one mind, have the power or authority to put an end to the trust or use the trust fund for any purpose and divert it from its original object. Whether this principle applies to a private endowment or debutter created under Hindu Law, is a question on which authorities are not agreed. In Doorganath Roy Vs. Ram Chunder Sen, LR4 IA 52 : ILR 2 Cal 233 it was observed that while the dedication is to a public temple, the family of the founder could not put an end to it, but “in the case of a family idol, the consensus of the whole family might give the (debutter) estate another direction” and turn it into a secular estate.
25. Subsequently, in Pramatha Nath Mullick Vs. Pradhyumna Kumar Mullick, 52 IA 245 : AIR 1925 PC 139 the Judicial Committee clarified that the property cannot be taken away from the idol and diverted to other purposes without the consent of the idol through its earthly agents who, as guardians of the deity, cannot in law consent to anything which may amount to an extinction of the deity itself.”[29]
B.K. Mukherjea on ‘The Hindu Law of Religious and Charitable Trust’ speaks as under:
“In Narayan Vs. Narasing Charan, (1951)[30] there is an observation that the members of the family could by their consensus withdraw the endowment from the trust. But in Sukumar Bose Vs. Abani Kumar (1956)[31] it was held by the Calcutta High Court on a review of the authorities that it was not open to the members of the family even when there is a consensus of all of them to put an end to an endowment in favour of a family idol, and that the observations of Sir Montague Smith in Doorganath Roy v. Ram Chunder (1876)[32] to the contrary were not good law. It is submitted that the law has been correctly laid down in this decision.
Even if it be held that a consensus of the family can convert Debutter into secular estate, it must be noted that Shebaits qua Shebaits by their dealings with the property cannot give it a different turn. The Shebaits occupy the position of managers merely, and the acts of the manager which amount to breaches of trust cannot put an end to the trust. The consent must be expressed by all the beneficiaries which in the case of a family idol includes all the members of the family, both male and female, who are interested in the worship of the deity. If consent of the entire family is not proved, certain dealings with the property by some members of the family who happen to be Shebaits, as secular property, would not effect any conversion. Of course, if the transactions are such that the entire family took part in them they may be treated as evidence of consent. If the original Debutter character of the property is established, the fact that the property had been partitioned between the members of the family for the better enjoyment thereof, and that there had been sales and mortgages would not show that there was a consensus to give the property a secular turn”.
Private Temple Becoming Public Temple
In Goswami Shri Mahalaxmi Vahuji Vs. Rannchhoddas Kalidas,[33]it is held that most of the present day Hindu public temples have been founded as public temples, and there are instances of private temples becoming public temples in course of time.It is held further:
“Some of the private temples have acquired great deal of religious reputation either because of the eminence of its founder or because of other circumstances. They have attracted large number of devotees. Gradually in course of time they have become public temples. … If a temple is proved to have originated as a private temple or its origin is unknown or lost in antiquity then there must be proof to show that it is being used as a public temple.” [34]
Once the private character of the temple is established, more strong proof is necessary to show that the temple was subsequently dedicated to the public.[35]
Public Temple Cannotbe Converted to a Private One
A private temple can be converted to a public one. But vice versa is not legally accepted. It is based on the principles – ‘once a dedication, always stands dedicated’ and ‘once a trust always a trust’.[36]
Private Trust: Settlement of Scheme
Section 92 CPC will not apply to a private trust. It does not necessarily mean that the civil court has no jurisdiction to settle a scheme for the management of a private trust. It is a civil right under Section 9 of the Civil Procedure Code and governed entirely by the general law of the land which prescribes the remedies for enforcement of civil rights.If the trustee or Shebait is guilty of mismanagement, waste, wrongful alienation of debutter property or other neglect of duties, a suit can be instituted for remedying these abuses of trust. A suit can also be filed for settlement of a scheme for the purpose of effectively carrying out of the trust. [37]
In Thenappa Chettiar Vs. Karuppan Chettiar[38]and Ramchand Vs. Thakur Janki Ballabhji Maharaj[39] the Supreme Court held that a Civil Court may frame a scheme for the purpose of effectively carrying out the object of the trust, even in the case of a private endowment.[40] In Thenappa Chettiar Vs. Karuppan Chettiar it was observed that a suit could be brought in a civil court by any person interested, like contributors to the trust, for the removal of the trustee and for the proper administration of the endowment, if there was a breach of trust or mismanagement on the part of the trustee.
Admission of Public: Not Readily Inferred, Public Temple
In Babu Bhagvan Din Vs. Gir Har Saroop[41] it is held:
“Dedication to the public is not to be readily inferred when it is known that the temple property was acquired by grant to an individual or family. Such an inference, if made from the fact of user by the public, is hazardous, since it would not in general be consonant with Hindu sentiments or practice that worshippers should be turned away and, as worship generally implies offerings of some kind, it is not to be expected that the manager of a private temple should in all circumstances desire to discourage popularity.”
“Thus the mere fact of the public having been freely admitted to the temple cannot mean that courts should readily infer therefrom dedication to the public.[42] The value of such public user as evidence of dedication depends on the circumstances which give strength to the inference that the user was as of right.” [43]
Revenue Records and Private Ownership
Even if the ownership of property is set-down in revenue records in the name of Deity, it is not treated as inconsistent with its private ownership.[44]
Description of Property as Debutter in a Deed, Not Conclusive
Execution of a deed by itself will not prove dedication. Though it is a piece of evidence, it is not conclusive for determining the dedication. In Paras Nath Thakur Vs. Mohani Dasi Deceased Ana[45] it is held that when a document is solemnly executed and registered, burden is heavy on the person who plead it to be fictitious. [46]
Dedication and Long User and Inference
Long user of income from a land for support of an Idol renders strong corroborative evidence of debutter and that by itself would not lead to an inference that dedication of the property in favour of the public was complete and absolute. Instances of appropriation of property by a person to his own use for a long period will be a good evidence of his right; but, if instances are only recent or few and far between, it leads to inference as to abuse of trust.
In The Commissioner for Hindu Religious and Charitable Endowments, Mysore v. Sri Ratnavarma Heggade, (1977) 1 SCC 525, our Apex Court observed as under:
“Neither a document nor express words are essential for a dedication for a religious or public purpose in our country. Such dedications may be implied from user permitted for public and religious purposes for sufficient length of time. The conduct of those whose property is presumed to be dedicated for a religious or public purpose and other circumstances are taken into account in arriving at the inference of such a dedication.Although religious ceremonies of Sankalpa and Samarpanam are relevant for proving a dedication, yet, they are not indispensable.”
In R.M. Sundaram v. Sri Kayarohanasamy, AIROnLine 2022 SC 1022, it was held that the extinction of private character of a property can be inferred from the circumstances and facts on record, including sufficient length of time, which shows user permitted for religious or public purposes.
Registration of Public Trusts
Various State Public Trusts Acts require registration of all public trusts with the authorities appointed under the said Acts. In New Noble Educational Society v. Chief Commissioner of Income Tax-1, 2023-6 SCC 649, it is held with reference to Andhra Pradesh Charitable andHindu Religious Institutions and Endowments Act, 1987, as under:
“67. In the event of failure to comply with Section 43(1), or failure to intimate changes in the trust, or for supplying false information, the trustee or other person in charge, can be penalized by Section 43 (11). Section 44 empowers the Commissioner to direct charitable organizations and trusts to comply and register under the Act.
68.The assessees had argued that since they were registered under the Andhra Pradesh Societies Registration Act, 2001 or were trusts duly registered, they could not be compelled to comply with state laws as a condition for consideration of their application as charitable institutions, under Section 10 (23C).
69. This court is of the opinion that the findings in the impugned judgment on this aspect are sound. The requirement of registration of every charitable institution is not optional. Aside from the fact that the consequences of non-registration are penal, which indicates the mandatory nature of the provisions of the A.P. Charities Act, such local laws provide the regulatory framework by which annual accounts, manner of choosing the governing body (in terms of the founding instrument: trust, society, etc.), acquisition and disposal of properties, etc. are constantly monitored. Entry 32 of List II of the Seventh Schedule to the Constitution reads as follows:
“32. Incorporation, regulation and winding up of corporations, other than those specified in List I, and universities; unincorporated trading, literary, scientific, religious and other societies and associations; cooperative societies.”
By Entry 28, List III of the Seventh Schedule, the states have undoubted power to enact on the subject of charities:
“28. Charities and charitable institutions, charitable and religious endowments and religious institutions.”
Private Religious Trusts
So far as private religious trusts are concerned, there are no specific statutory enactments to regulate their affairs. Such trusts are governed by the foundational principles upon which they are established, as evidenced by documents, if any; customs and usages;general law of contract and transfer of property, etc; apart from the Common Law of the Land applicable to such trusts.
How to Distinguish a Private Temple from a Public Temple
If the dedication with respect to a temple is proved to be for the benefit of members of a family, that temple will be identified as Family Temple. The facts and circumstances considered by our courts in this regard can be placed under two heads:
1. Decisive characteristics.
2. Indicative or relevant features.
Cardinal Point: Intention of Founder
As stated above, Cardinal Point[47] to solve the question, whether an endowment is private or public, is Intention of Founder – whether specified individuals are to have the right of worship at the shrine, or the general public or specified portion thereof. Similarly, if the founders’ intention is clear from a document[48] of foundation, full importance will be given to it.
Decisive Characteristics:
i. Is public the beneficiaries
If the beneficiaries are the unascertainable general public or a class thereof, the temple will be identified as the public temple; if the beneficiaries are ascertainable, it will be characterised as private temple.
ii. Is there as-of-right user by public
As of right entry, worship and offerings by public are held to be conclusive peculiarities of public temple. It may be noted that our courts have repeatedly cautioned that mere provision for unobstructed worship in a temple does not amount to ‘as of right user’; and that the facilities provided for public worship, by itself, will not make a temple with otherwise private character, a public temple.[49]
Indicative or Relevant Features
To determine the aforesaid ‘decisive characteristics’ (with regard to: who the beneficiaries are and as of right user) courts analyse various ‘indicative or relevant features’; and from among the heap of evidence the courts uphold certain features as significant and relevant, in the nature and circumstances of each case, in preference to other features.The supreme Court has alerted inKacha Kanti Seva Samity Vs. Kacha Kanti Devi[50]that the question as to whether a religious endowment is of a private nature or of a public nature has to be decided with reference to the facts proved in each case. It is difficult to lay down any test or tests, which may be of universal application.[51]
Following peculiarities are noticeable in support of public nature of the temple:
1
Worship by large number of devotees.
AIR 2007 SC 1917, AIR 1995 SC 167; 2006 AIR SCW 4622; AIR 1995 SC 167, AIR 1970 SC 2025,
2
Construction of temple by subscription of public.
AIR 1987 SC 2064, AIR 1999 SC 329, AIR 2009 (1) SC 1495, AIR 2007 SC 1917
3
Meeting of temple expenditure from the contribution of public
AIR 2009 (1) SC 1495, AIR 1995 SC 167, AIR 1970 SC 2025, AIR 1999 SC 329
4
Consciousness of management and devotees in treating the temple.
AIR 1924 PC 44, AIR 1987 SC 2064, AIR 1995 SC 167, AIR 1970 SC 2025, AIR 1999 SC 329, AIR 2009 (1) SC 1495
5
Sevas/Poojas, conducted – usually seen in public temples.
AIR 1995 SC 167, AIR 1970 SC 2025, AIR 2009 (1) SC 1495, AIR 2007 SC 1917, AIR 1999 SC 329]
6
Providing food and shelter for Sadhus and public.
AIR 1999 SC 329, AIR 1972 SC 1621, AIR 1980 SC 514
7
Collection boxes for cash and grains from public.
AIR 2009 (1) SC 1495, AIR 2003 SC 1685
8
Participation of public in festivals and ceremonies
AIR 2007 SC 1917, AIR 1999 SC 329
9
Various poojas on payment and issuance of pamphlets showing details as to poojas.
AIR 2007 SC 1917
10
Management – Appointment of Shebaits and managers from strangers to the family of founders.
AIR 1981 SC 798, AIR 1987 SC 2064, AIR 1999 SC 329, AIR 2007 SC 1917, AIR 1995 SC 167, AIR 2003 SC 1685, (2006) 7 SCC 490: 2006 AIR SCW 4622
11
Entries in revenue records as to nature of the temple.
AIR 1999 SC 329, AIR 2009 (1) SC 1495, (2006) 7 SCC 490=2006 AIR SCW 4622, AIR 2007 SC 1917, AIR 1995 SC 167
12
Exemption from taxes and revenues.
AIR 1987 SC 2064
13
Vastness/appearance of temple.
AIR 1960 SC 100, AIR 1987 SC 2064, AIR 1999 SC 329, AIR 2009 (1) SC 1495, AIR 1995 SC 167, AIR 1970 SC 2025, 2007 SC 1917
14
Construction of circular roads for processions.
AIR 1924 PC 44, AIR 1999 SC 329
15
Installation of Idols outside precincts of residential quarters.
AIR 1987 SC 2064, AIR 1995 SC 167, AIR 1999 SC 329, AIR 2009 (1) SC 1495, 1957 SC 133, AIR 2007 SC 1917, (2006) 7 SCC 490:2006 AIR SCW 4622
16
Permanent installation of Deity on pedestal.
AIR 2009 (1) SC 1495; 1957 SC 133
17
Procession taking out Idol.
AIR 2009 (1) SC 1495
18
Right of public to scrutinize the accounts.
AIR 2007 SC 1917, (2006) 7 SCC 490: 2006 AIR SCW 4622
19
Prathishta instead of Utsarga.
AIR 2007 SC 1917
20
Recitals of Geetha, Bhagavath, etc. before large number of devotees.
AIR 1999 SC 329
21
Placing along with permanent deities, minor deities.
AIR 1999 SC 329
22
Existence of a shop in the temple premises for sale of bhog articles.
AIR 1999 SC 329
23
Existence of a tank – it is usually a characteristic of public temple.
AIR 1999 SC 329
24
Existence of Dharmasala for visitors.
AIR 1999 SC 329
25
Cash allowance from treasury in the name of Deity.
AIR 1995 SC 167
Finite group of identifiable individuals
2020 0 Supreme(SC) 177
Rock inscription specifically states that the charity of feeding the Brahmins
AIR 2019 SC 4050 (2020) 5 Mad LJ 331(SC)
Following peculiarities support private nature of the temple
1
Family treated temple as a private property
AIR 1940 PC 7, AIR 1999 SC 329, AIR 2003 SC 1685, AIR 1971 SC 2057, AIR 1987 SC 2064, AIR 1981 SC 798
2
Consciousness of managers and devotees
AIR 1972 SC 1716, AIR 1970 SC 2025, AIR 1976 SC 871, AIR 1987 SC 2064, AIR 1999 SC 329; (2011) 13 SCC 431
2
Dedication of extensive family property and no provision made for offering or contribution from public.
AIR 2009 SC 1495; AIR 1987 SC 2064; AIR 2003 SC 1685, AIR 1981 SC 798
3
Provision for family members to reimburse the manager/ Shebait from the family.
AIR 1981 SC 798.
4
Vesting of management in family.
AIR 2003 SC 1685, AIR 1981 SC 798
5
Grant of property not in the name of Idol/temple, but in favour of founder.
AIR 1940 PC 7; AIR 1987 SC 2064, (2006) 7 SCC 490: 2006 AIR SCW 4622
[3]Deoki Nandan Vs.Murlidhar: AIR 1957 SC 133 is Quoted and followed in: Radhakanta Deb Vs. Commr. of Hindu Reli. Endts: AIR 1981 SC 798; State of Bihar Vs. Charusila Dasi: AIR 1959 SC 1002; Dhaneshwarbuwa Vs. Charity Commr., AIR 1976 SC 871; Pratapsinhji N Desai Vs. Dy. Chrty. Commr. Gujarat: AIR 1987 SC 2064; Jammi Raja Rao Vs. Anjaneya Swami Temple Valuair 1992 SC 1110; Gedela Satchidananda Vs. Dy. Commr. Endts, A P AIR 2007 SC 1917.
[4] Quoted in State of West Bengal Vs. Sri.Sri Lakshmi Janardan Thakur, (2006) 7SCC 490: 2006 AIR (SCW) 4622; Yelandau Arasikere Deshikendra Sammthana Vs.Gangadharaiah: 2007-5 AIR Kar R 565: 2008-4 Kat LJ 323.
[5]Idol of Sri Renganathaswamy Vs. PK Thoppulan Chettiar:(2020) 5 Mad LJ 331(SC); MJ Thulasiraman Vs. Comr, HR & CE: AIR 2019 SC 4050.
[6] AIR 1957 SC 133. See also: Commr. of Endowments Vs. VittalRao: AIR 2005 SC 454; Bala Shankar MahaShanker Bhattjee Vs. Charity Commr. Gujarat State: AIR 1995 SC 167, Jammi Raja Rao Vs. Anjaneya Swami Temple Valu: AIR 1992 SC 1110, Radhakanta Deb Vs. Commr. of Hindu Religious Endowments Orissa: AIR 1981 SC 798, Commr. For Hindu Religious And Charitable Endowments Mysore Vs. Ratnavarma Hegade: AIR 1977 SC 1848, Dhaneshwarbuwa Guru Purshottambuwa Owner of Shri Vithal Rukhamai Sansthan Vs. Charity Commr. State of Bombay Citations: AIR 1976 SC 871; Mahant Shri Srinivas Ramanuj Das Vs. Surajnarayan Das: AIR 1967 SC 256,
[8]Deoki Nandan Vs. Murlidhar (AIR 1957 SC 133): Cardinal Point, intention of founder –Followed in State of Bihar Vs. CharusilaDasi AIR 1959 SC 1002; Dhaneshwarbuwa Guru Vs. Char. Commr. Bom., AIR 1976 SC 871 Radhakanta Deb Vs. Commr. of Hindu Reli. Endts, AIR 1981 SC 798 Pratapsinhji N Desai Vs. Dy Char. Commr. Gujt, AIR 1987 SC 2064 Jammi Raja Rao Vs. Anjaneya Swami Temple Valuair, 1992 SC 1110 Gedela Satchid. Murthy Vs. Dy Commr. Endts, A P, AIR 2007 SC 1917.
[9] AIR 1981 SC 798; (quoted in Kuldip Chand Vs. Advocate General to Government of H P: AIR 2003 SC 1685).
[11]Quoted in Sitaram Agarwal Vs. Subarata Chandra: AIR 2008 SC 952; Controller of Estate Duty West Bengal Vs. Usha Kumar: AIR 1980 SC 312
[12] AIR 1941 PC 38; Quoted in Kuldip Chand Vs. AG to Government of H P: AIR 2003 SC 1685. Terms of the document, important:1951 SCR 1122; Sri. Govindlalji Vs. State of Rajasthan: AIR 1963 SC 1638; R Venugopala Reddiar Vs. Krishnaswamy: AIR 1971 Mad 262; Kuldip Chand Vs. A G to Govt of H P: AIR 2003 SC 1685. Importance of document: Radhakanta Deb Vs. Commr. of Hindu Endts.: AIR 1981 SC 798; Dr. BK Mukherjea, J. on the Hindu Law of Religious and Charitable Trusts: Page 188.
[20] See: Narayanan Vs. Nil: AIR 2005 Mad. 17; M Ashok Kumar Vs. N Janarthana: 2013(7) Mad. LJ 273; T C Chacko Vs. Annamma: AIR 1994 Ker. 107. Varghese Vs. St. Peters and Pauls Syrian Orthodox Church: (2017) 15 SCC 333
[21] 1998 AIR (SCW) 3945: (1998) 5 SCC 588. See also: Pramatha Nath Vs. Pradyumna Kumar, (1925) 52 IA 245; Profulla Chorone Requitte Vs. Satya Chorone, AIR 1979 SC 1682
[23] AIR 1974 Cal 126. Appeal Judgment: Kali Kinkor Ganguly Vs. Panna Banerjee AIR 1974 SC 1932
[24] Karumankavu Devaswon Kshethram Trust Board Members Vs. Damodaran Nair: ILR 2008 (1) Ker 742; Rajasekharan Naicker Vs. Govindankutty 1983 Ker LJ 506. Kunhanandan Nambiar Vs. Kunhappa Nambiar: 1961 Ker LJ 1141
[34] See also: Mahadeva Vs. Commr, H. R. and C. E 1956 (1) MLJ 309; Marua Dei Alias Maku Dei Vs. Muralidhar Nanda AIR 1999 SC 329; Teki Venkata Ratnam Vs. Commr. of Endowment AIR 2001 SC 2436.
[35] See: Commr. of HR&CE Admn Dept. Vs. N Sundaraswami Gounder, (2001) 2 Mad LJ 737; Chennammal Vs. Commr. of HR&CE, (1973) 2 Mad LJ 442; TD Gopalan Vs. Commr of Hindu R & C Endts, AIR 1972 SC 1716
[36] Radhakanta Deb Vs. Commr of Hindu Religious Endts: AIR 1981 SC 798; Bhagwan Din Vs. Gir Har Saroop: AIR 1940 PC 7; Varghese Vs. St. Peters and Pauls Syrian Orthodox Church: (2017) 15 SCC 333.
[37] Cheriyathu Vs. Parameswaran Namboodiripad: 1953 Ker LT 125; Also 1953 Ker LT 117; AIR 1922 P. C. 253: Pramatha Nath Mullick v. Pradyumna Kumar Mullick: AIR 1925 PC 139. Also see: ManoharMukherji Vs. Raja Peary Mohan Mukherji:24 CWN 478; Bimal Krishna Vs. Iswar Radha Balla: 1937 Cal 338; Rajasekharan Naicker Vs. Govindankutty 1983 KerLJ 506.
[38]AIR 1968 SC 915. Followed in: Sujan Mohinder Charitable Trust VS MohinderKaur: 2019 0 Supreme(Del) 281; Radhamohan Dev Vs.Nabakishore Naik: AIR 1979 Ori 181. Brindaban Vs. Ram Lakhan Lalji: AIR 1975 All 255.
[42] See also: Jadunath Roy Vs. Parameswar Mullick: (AIR 1940 P C 11), Sri. GovindlaljiVs. State of Rajasthan: (AIR 1963 SC 1638); Pratapsinhji N. Desai Vs. Deputy Charity Commr. Gujarat: Mundacheri Koman Vs. Thachangat Puthan Vittil Achuthan Nair: (AIR 1934 PC 230), Babu Bhagwan Din Vs. Gir Har Saroop: (AIR 1940 PC 7) The Bihar State Board of Religious Trust Vs. Mahanth Sri. Biseshwar Das: (AIR 1971 SC 2057), Shri Vallabharaya Swami Varu Vs. Deevi Hanumancharyulu: (AIR 1979 SC 1147).
[43]See also: Bihar State Board Religious Trust Patna Vs. Mahant Sri Biseshwar Das (AIR 1971 SC 2057); Radhakanta Deb Vs. Commr. of Hindu Religious Endts: AIR 1981 SC 798; Marua Dei Alias Maku Dei Vs. Muralidhar Nanda: AIR 1999 SC 329; Kuldip Chand Vs. A G to Government of H P: AIR 2003 SC 1685; Gurpur Guni V N Prabhu Vs. B. C. Achia: AIR 1977 SC 1192.
[44] 1964 KLT 1034; relied on in 2014 (3) KLT 497, 2013 (3) KLT 1017.
[48]Radhakanta Deb Vs. Commr. of Hindu Reli. Endts Orissa: AIR 1981 SC 798.
[49] Radhakanta Deb Vs. Commr. of Hindu Reli. Endts Orissa: AIR 1981 SC 798; GoswamiShri Mahalaxmi Vahuji Vs. Ranchhoddas: AIR 1970 SC 2025; Pratapsinhji N Desai Vs. Dy Charity Commr. Guj, AIR 1987 SC 2064; AIR 1995 SC 167; Marua Dei Alias Maku Dei Vs. Muralidhar Nanda: AIR 1999 SC 329; Kuldip Chand Vs. A G to Government of H P: AIR 2003 SC 1685; Gedela SatchidanandaVs. Dy Commr. Endwts AP: AIR 2007 SC 1917. As of right user: Gedela Satchidananda Vs. D Commr. EndwtsDeptt AP: AIR 2007 SC 1917; Radhakanta Deb Vs. Commr. of Hindu Rel. Endowts. Orissa: AIR 1981 SC 798; Bihar St. Brd. Religious Trust Vs. Mahant Biseshwar Das: AIR 1971 SC 2057; Marua Dei Alias Maku Dei Vs. Muralidhar Nanda: AIR 1999 SC 329; Kuldip Chand Vs. A G to Government of H P: AIR 2003 SC 1685; Gurpur Guni Venkataraya NarashimaVs. B. C. Achia: AIR 1977 SC 1192.
[51]See also: Radhakanta Deb Vs. Commr. of Hindu Religious Endts: AIR 1981 SC 798; Kuldip Chand Vs. A G to Government of H P: AIR 2003 SC 1685; T D Gopalan Vs. Commr. of Hindu R & C Endts AIR 1972 SC 1716.
2. There is Presumption on a Registered Document – “It is VALIDLYEXECUTED“
Section 35 in the Registration Act, 1908 says that the Registrar allows registration of a document (i) if only he is satisfied as to the identity of the person who executes the document, and (ii) if the executant admits the execution of the document.
Presumptions can be invoked in view of the Sec. 58 and 59 Sec. 60 (certificate) of the Registration Act. The presumption of regularity of official acts in Illustration (e) of Section 114 of the Evidence is also attached to a registered deed.
The certificate endorsed on a registered deed by the registering officer is a relevant piece of evidence for proving its execution – Piara v. Fatnu, AIR 1929 Lah 711.
There is a presumption – registered document is validly executed –
Prem Singh v. Birbal, AIR 2006 SC 3608;
Abdul Rahim v. Abdul Zabar, AIR 2010 SC 211
Jamila Begum v. Shami Mohd., AIR 2019 SC 72;
Manik Majumder v. Dipak Kumar Saha, AIR 2023 SC 506.
A registered document carries with it a presumption that it was executed in accordance with law – Bellachi v. Pakeeran, AIR 2009 SC 3293.
3. GENUINENESS can also be drawn onRegistered Deeds, Invoking Presumption
Besides the presumption on a registered document that it is validly executed, there is also a presumption that the “transaction is a genuine one” (Vimal Chand Ghevarchand Jain v. Ramakant Eknath Jajoo, 2009- 5 SCC 713.)
The onus of proof, thus, would be on a person who questions the same.
PART I
Whether Presumptions as to VALID EXECUTION &CORRECTNESS Import TRUTH
Two views exist (on truth of contents).
1. Burden Shifts. The party in whom the ‘burden of proof’ rests can rely on ‘registration certificate’ as proof and truth of the contents of the deed.
The certificate endorsed on a registered deed by the registering officer is a relevant piece of evidence for proving its execution – Piara v. Fatnu, AIR 1929 Lah 711.
It being presumed to be VALID & CORRECT, it further gives a presumption as to truth of the contents also, under Sec. 114 Evid. Act (regard being had to the common course of natural events, human conduct etc.).
There being presumption as to ‘VALID EXECUTION & CORRECTNESS’ and thereby presumption as to truth of the contents also, the onus of proof is shifted upon the party who challenges the presumption as to truth of the contents.
2. No Question of Shifting Burden. But, the above proposition is not an invariable rule. If it comes out from the pleadings, documents or issues that there is burden upon a person to prove ‘truth‘ of the contents of the registered document, the presumed presumption as to ‘VALID EXECUTION & CORRECTNESS’ will not help him, much.
For example – The executant of the registered deed would not have executed such a deed, in all probabilities (regard being had to the common course of natural events, human conduct etc.) as revealed from the pleadings or documents produced; or, its untrue nature can be (prima facie) ‘noticed’ by the court.
“114. Court may presume existence of certain facts —The Court may presume the existence of any fact which it thinks likely to have happened, regard being had to the common course of natural events, human conduct and public and private business, in their relation to the facts of the particular case. Illustrations ……”
Presumption under Sec. 79 to 90A and 114 of the Indian 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.
Presumption under Sec. 114 of the Evidence Act is rebuttable. It can be shown that what is presumed is incorrect. The burden to show the same is upon the party against whom the presumption is invoked.
Besides the general provision as to presumption under Sec. 114 of the Evidence Act, presumptions can be invoked by the courts also under the (specific) instances given in Sec. 79 to 90A.
‘Presumption’, in Law & Truth of a Fact Alleged
Presumption is an inference as to the existence of one fact from the existence of some other facts. Meaning of the word ‘presumption’ is explored, with reference to various dictionaries, 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.)
In State 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.”
‘Regularity’ in Illus. (e) is not exactly presumption as to ‘truth‘ of Contents
Illustration (e) of Sec. 114, Evd. Act, demonstrates that presumption as to ‘regularity’ can be invoked on Judicial and official acts, in proper cases. ‘Regularity’ in Illustration (e) is not exactly the presumption as to ‘correctness or truth‘.
For presumption on truth, we have to resort main section, Sec. 114
For such presumption, we have to resort the main section, Sec. 114 – that is, ‘common course of natural events’, ‘human conduct’, etc..
Presumption in Evid. Act can also be ‘Presumptionas to Truth of Contents‘?
Under Sec. 114 of the Evidence Act, court can presume the existence of any fact.
The Indian Evidence Act does not specifically correlate “Truth of Contents“ or “correctness” with ‘presumption’. But, ‘any fact’ stated in Sec. 114 of the Evidence Act (Court may presume the existence of any fact) includes ‘Truth of Contents‘. As shown above, it is clear from the Stroud’s Legal Dictionary that presumption is a probable consequence drawn from facts as to the truth of a fact alleged. It is clear that, in presumption, the existence or truth of a fact, otherwise doubtful, is inferred from certain other proved facts. Here, the Court exercises a process of reasoning and reach a logical conclusion as the most probable position (See: St. of West Bengal Vs. Mir Mohammad Omar, AIR 2000 SC 2988).
In proper cases, the court can infer ‘truth’ (over and above) presumption as to VALID EXECUTION. Presumption as to VALID EXECUTION & CORRECTNESS to registration, need not always lead to further presumption as to ‘truth’ of contents.
In Vimal Chand Ghevarchand Jain v. Ramakant Eknath Jajoo, (2009) 5 SCC 713 (SB Sinha,J.), it is held that the registered deed carries a presumption that the transaction was agenuine one.
Presumption of Truth is taken ‘on something Proved‘, or Presumed
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. Our courts usually draw presumptions as to truth or correctness in documents covered by Sec. 35 Evd. Act and Registered deeds, as detailed below.
“Reliance is heavily placed on behalf of the appellant on Ramji Dayawala Vs. Invest Import: AIR 1981 SC 2085.The legal position is not in dispute that mere production and marking of a document as exhibit by the court cannot be held to be a due proof of its contents. Its execution has to be proved by admissible evidence, that is, by the “evidence of those persons who can vouchsafe for the truth of the facts in issue”.
Effect of Marking Documents Without Objection
If ‘truth’ is in issue, or in dispute, marking without objection by itself does not absolve the duty to prove the truth as to the contents of the documents. (Ramji Dayawala Vs. Invest Import, AIR 1981 SC 2085; Achuthan Pillai vs Marikar (Motors) Ltd., AIR 1983 Ker 81, 1976 Cr.LJ 1507; 2016 (1) Gau. LJ 88, 2012(1) CTC 53; 2013-1 KLT 293.)
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) stands established. It cannot be questioned afterwards.
(b) Truth also: See: Rafia Sultan v. Oil And Natural Gas Commission, 1986 ACJ 616; 1985-2 GujLR 1315.
(c) Admission of contents – but, does not dispense with proof of truth of its contents.
(a)RVE Venkatachala Gounder v. Arulmigu Viswesaraswami: AIR 2003 SC 4548; (b) Rafia Sultan v. Oil And Natural Gas Commission (I.C. Bhatt, S.B. Majmudar, JJ.), 1985-2 GujLR 1315: No objection about the truth of contents … before the trial Court. … It is therefore too late in the day for Miss Shah for the Commission to canvass for the first time before us in appeal. Neeraj Dutta Vs. State (Govt. of Delhi) [2023] 4 SCC 731: If no objection as to mode of proof (secondary evidence) when marked, no such objection could be allowed to be raised at any later stage. (c) Sait Tarajee Khimchand v. Yelamarti Satyam, AIR 1971 SC 1865; Nandkishore Lalbhai Mehta v. New Era Fabrics, AIR 2015 SC 3796.
Second View Even if no objection, it does not dispense with proof (as to, both, existence of the document and its truth).
In such a case the document will not be taken as proved.
(Note: It may not be legitimate to apply this principle literatim)
LIC v. Ram Pal Singh Bisen: 2010-4 SCC 491 (Filing of the Inquiry Report or the evidence adduced during the domestic enquiry); H. Siddiqui v. A. Ramalingam, (2011) 4 SCC 240 (Copy of a power of attorney alone was shown to the respondent during cross-examination and he admitted his signature thereon only, and not its contents); Mal Singhvi v. Anand Purohith: 1988 (Supp) SCC 604 (date of birth).
Third view If truth is in issue, mere proof of contents, or marking without objection, is not proof of truth.
See: Narbada Devi Gupta v. Birendra Kumar Jaiswal, 2003-8 SCC 745; Ramji Dayawala Vs. Invest Import: AIR 1981 SC 2085.
Fourth view Admission of contents, and dispenses with proof and truth; but its probative value will be a matter for appreciation by court.
See: State of Bihar v. Radha Krishna Singh, AIR 1983 SC 684 (Admission and probative value – different); Rakesh Mohindra v. Anita Beri: 2015 AIR(SCW) 6271; Kaliya v. State of MP: 2013-10 SCC 758; H. Siddiqui v. A. Ramalingam: AIR 2011 SC 1492; Rasiklal Manikchand v. MSS Food Products: 2012-2 SCC 196.
Fifth view Admission of contents, and dispenses with proof and truth; but Court should require (in proper cases) the party producing the document to adduce proper evidence, and to cure formal defects, invoking – • Sec. 165 of Evidence Act • Sec. 58 of Evidence Act • O. XII, r. 2A Proviso, CPC and • Sec. 294 of the CrPC.
See: Harkirat Singh v. Amrinder Singh, (2005) 13 SCC 511; Umesh Challiyil v. K.P. Rajendra, (2008) 11 SCC 740; KK Ramachandran Master v. MV Sreyamakumar, (2010) 7 SCC 428; AIR 2015 SC 3796.
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.”
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.”
Presumptions on Documents:
The law expressly allows to take presumption on certain kind of documents, such as:
Presumption on documents made in the course of business.
Presumption on Regularity of official and judicial acts.
Presumption on statements of dead person or who is not found etc.
Presumption on 90 years old documents.
Presumption on undue influence
PART II
PROOF OF DOCUMENTS INVOKING PRESUMPTION
Besides direct evidence and admission, the contents of a document can also be proved by circumstantial evidence or by invoking presumption. ‘Common course of natural events’, ‘human conduct’ etc. under S. 114, Evd. Act can be used to prove the existence and genuineness/truth of a document.
S. 35 Evid. Act and Presumption of Truth of Contentsu/s. 114, Evid. Act
Sec. 35 of the Evidence Act reads as under:
“35. Relevancy of entry in public record or an electronic record made in performance of duty: An entry in any public or other official book, register or record or an electronic record, stating a fact in issue or relevant fact, and made by a public servant in the discharge of his official duty, or by any other person in performance of a duty specially enjoined by the law of the country in which such book, register, or record or an electronic record is kept, is itself a relevant fact.
Illustration (e) of Sec. 114, Evd. Act, demonstrates that presumption as to ‘regularity’ can be invoked on Judicial and official acts, in proper cases. ‘Regularity’ in Illustration (e) is not exactly the presumption as to ‘correctness or truth‘. For such presumption, we have to resort the main section, Sec. 114 – that is, ‘common course of natural events’, ‘human conduct’, etc..
Referring relevant provisions of Himachal Land Revenue Act, 1954 and Sec. 35 of the Indian Evidence Act, 1872, it is held by our Apex Court in Partap Singh v. Shiv Ram: AIR 2020 SC 1382, that Record-of-rights (Revenue document) carries the ‘presumption of correctness‘.
In Inder Singh v. S. Raghbir Singh, AIR 1978 P&H 98, it is observed as under:
“The principle is that an official record, kept by a person, upon whom there is a public duty to make entries in it only after satisfying himself of the truth of those entries, is presumed to be correct. Such a document itself is evidence of the Truth of Contents unless and until its falsity can be demonstrated by any of the various methods by which the evidentiary value of any public book, register or document may be attacked.”
In Shiv Ram v. Shiv Charan Singh, AIR 1964 Raj 126, it is observed as under
“Where Sec. 35 properly comes into play, an entry made by a public servant in any public or official book in the discharge of his official duty becomes relevant by itself, and no other proof of such entry is required as a matter of law by our Evidence Act, but this, does not exclude the possibility that such an entry may become admissible otherwise if it is properly proved to have been made by a person ordinarily competent to make it.” (Quoted in Mayadhar Nayak vs Sub-Divisional Officer, Jajpur, AIR 1982 Ori 221).
In Grasim Industries Ltd. v. Agarwal Steel, 2010-1 SCC 83, it is held as under:
“In our opinion, when a person signs a document, there is a presumption, unless there is proof of force or fraud, that he has read the document properly and understood it and only then he has affixed his signatures thereon, otherwise no signature on a document can ever be accepted. In particular, businessmen, being careful people (since their money is involved) would have ordinarily read and understood a document before signing it. Hence the presumption would be even stronger in their case.”
Proof INVOKING PRESUMPTION– Registered Deed
Section 35 in the Registration Act, 1908
Sec. 35 reads as under:
“35. Procedure on admission and denial of execution respectively—(1) (a) If all the persons executing the document appear personally before the registering officer and are personally known to him, or if he be otherwise satisfied that they are the person they represent themselves to be, and if they all admit the execution of the document, or ….”
In Kunhamina Umma v. Special Tahsildar, AIR 1977 Ker 41, the Kerala High Court observed that the facts required to be proved under Section 67 Evid. Act could be proved by any kind of evidence, and there was 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, was to be excluded. It is held as under:
“The Privy Council said in Gangamoy Debi v. Troilukhya Nath (1906) 33 Ind App 60 = ILR 33 Cal 537 (PC)–‘The registration is a solemn act, to be performed in the presence of a competent official appointed to act as registrar, whose duty it is to attend the parties during the registration and see that the proper persons are present and are competent to act, and are identified to his satisfaction; and all things done before him in his official capacity and verified by his signature will be presumed to be duly and in order‘.
15. On the strength of this observation of the Privy Council and on a consideration of Section 60 of the Registration Act, the Lahore High Court held in Piara v. Fatnu (AIR 1929 Lah 711) that the certificate endorsed on a registered deed by the registering officer is a relevant piece of evidence for proving its execution. … …..
19. The question has been considered in depth by Justice Raman Nair (as he then was) in Sumathi Amma v. Kunjuleskhmi Amma (1964 Ker LT 945). The learned Judge observed (at pages 946 and 947) :
“… It (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.’
We have no hesitation in endorsing the view of the learned Judge as laying down the correct law on the question if we may say so with respect.”
Registered deed: Presumption – Validly Executed & also genuineness of transaction
It is held in Prem Singh v. Birbal, AIR 2006 SC 3608 (SB Sinha,J.), as under:
“52. It is well-settled law that there is a presumption of a registered document being validly executed. A registered document would, therefore, prima facie, be valid in law. The onus of proof, thus, would be on a person who questions the same.”
Prem Singh v. Birbal is followed in
Manik Majumder v. Dipak Kumar Saha, AIR 2023 SC 506;
In Vimal Chand Ghevarchand Jain v. Ramakant Eknath Jajoo, (2009) 5 SCC 713 (SB Sinha,J.), it is held as under:
“13. The deed of sale dated 29.6.1978 was a registered one. It, therefore, carries a presumption that the transaction was agenuine one…..
15…. The deed of sale being a registered one and apparently containing stipulations of transfer of right, title and interest by the vendor in favour of the vendee, the onus of proof was upon the defendant to show that the said deed was, in fact, not executed or otherwise does not reflect the true nature of transaction..”
In Abdul Rahim v. Abdul Zabar, AIR 2010 SC 211 (SB Sinha,J.), it is held as under:
“14. … A registered document carries with it a presumption that it was validly executed. It is for the party questioning the genuineness of the transaction to show that in law the transaction was not valid.”
In Bellachi v. Pakeeran, AIR 2009 SC 3293 (SB Sinha,J.), it is a observed that a registered document carries with it a presumption that it was executed in accordance with law.
The Apex Court observed in Jamila Begum v. Shami Mohd., AIR 2019 SC 72, as under:
“A registered document carries with it a presumption that it was validly executed. It is for the party challenging the genuineness of the transaction to show that the transaction is not valid in law. In Prem Singh and others v. Birbel and others (2006) 5 SCC 353, it was held as under:
“27. There is a presumption that a registered document is validly executed. A registered document, therefore, prima facie would be valid in law. The onus of proof, thus, would be on a person who leads evidence to rebut the presumption. In the instant case, Respondent 1 has not been able to rebut the said presumption.” “
In Ishwar Dass Jain v. Sohan Lal, (2000) 1 SCC 434, it is held that a registered document is presumed to be valid unless the presumption thereof is rebutted by strong evidence to the contrary.
Presumption of regularity of official acts would be extended to registration of a document by a sub-registrar as held in Jugraj Singh v. Jaswant Singh, 1970 (2) SCC 386. The sub-registrar would proceed with the registration only on satisfying himself as to the fact that the person who was executing the document was the proper person.
In Vishwanath Bapurao Sabale v. Shalinibai Nagappa Sabale . (2009) 12 SCC 101, it was held as under:
“27. There is a presumption that a registered document is validly executed. A registered document, therefore, prima facie would be valid in law. The onus of proof, thus, would be on a person who leads evidence to rebut the presumption. In the instant case, Respondent 1 has not been able to rebut the said presumption.”
Presumption of Correctness Attached to a Registered Deed
In the split-verdict in Majumder v. Dipak Kumar Saha, AIR 2023 SC 506, BV Nagaratna, J., held as under:
“18. … The presumption of correctness attached to endorsement made by the Sub-Registrar is in view of the provisions of Sections 58, 59 and 60 of the Registration Act. This presumption can be rebutted only by strong evidence to the contrary.”
BV Nagaratna, J. referred the following decisions-
Ishwar Dass Jain v. Sohan Lal, (2000) 1 SCC 434 (a registered document is presumed to be valid).
Chottey Lal v. The Collector of Moradabad, AIR 1922 PC 279 (presumption of validity of a power of attorney which formed the basis of a registered deed; the sub-registrar being accepted the document for registration, it is prima-facie evidence that the conditions have been satisfied).
Jugraj Singh v. Jaswant Singh, 1970 (2) SCC 386 (presumption of regularity of official acts of sub-registrar).
Rattan Singh v. Nirmal Gill, AIR 2021 SC 899 (presumption of validity of a general power of attorney and consequently of the sale deed executed – especially of a 30-year old document).
Prem Singh v. Birbal , (2006) 5 SCC 353 (when such a presumption arises, the onus would be on a person who challenges such presumption, to successfully rebut it).
Endorsements Under Sec. 58 of the Registration Act
Under Sec. 58 of the Registration Act the Registrar shall endorse the following particulars on every document admitted to registration:
the date, hour and place of presentation of the document for registration :
the signature and addition of every person admitting the execution of the document, and, if such execution has been admitted by the representative, assign or agent of any person, the signature and addition of such representative, assign or agent;
the signature and addition of every person examined in reference to such document under any or the provisions of this Act, and
any payment of money or delivery of goods made in the presence of the registering officer in reference to the execution of the document, and any admission of receipt of consideration, in whole or in part, made in his presence in reference to such execution.
Such particulars as are referred to in Sections 52 and 58 of the Registration Act are required to be endorsed by Registrar along with his signature and date on document under Sec. 59 and then certified under Section 60. A presumption by reference to Section 114 [Illustration (e)] of the Evidence Act shall arise to the effect that the events contained in the endorsement of registration, were regularly and duly performed and are correctly recorded. … [See: Kunwar Surendra Bahadur Singh v. Thakur Behari Singh, AIR 1989 PC 117].
Presumption of correctnessto the certificate of Registration
In Sulender Singh v. Pritam, 2013-3 HLR 1443, it is held by the Himachal Pradesh High Court that there was a presumption of correctnessto the endorsement/ certificate issued by the Sub-Registrar at the time or registration of gift deed (Rewat Ram Sharma versus Munshi Ram, Latest HLJ 2002 (HP) 165) and that the onus to rebut the presumption on a registered deed was heavily on the plaintiff.
Registered Deed – Who Wants to Contradict Contents has to Lead Contra Evidence
In Leelavathi v. Chellaswami, 2023-1 LW 804 (Mad) , it is held as under:
“The original registered release deed viz., primary evidence is produced and the same is sufficient to prove the contents of the document. If at all it is for the person who wants to contradict the contents of the registered document, has to lead contra evidence.”
Document required to be proved under Sec. 68 of the Evid. Act
In case of a document which is required by law to be proved in the manner as provided in Sec. 68 of the Evidence Act, registration of a document does not dispense with the need of proving the execution and attestation.
PART III
Error of the Registering Officer will not invalidate Registration
In Satya Pal Anand v. State of Madhya Pradesh, (2016) 10 SCC 761, it is observed – if the document is required to be compulsorily registered, but while doing so some irregularity creeps in, that, by itself, cannot result in a fraudulent action of the State Authority. Non- presence of the other party to the Extinguishment Deed presented by the Society before the Registering Officer by no standard can be said to be a fraudulent action per se. The Apex Court held as under:
“36. If the document is required to be compulsorily registered, but while doing so some irregularity creeps in, that, by itself, cannot result in a fraudulent action of the State Authority. Non-presence of the other party to the extinguishment deed presented by the Society before the Registering Officer by no standard can be said to be a fraudulent action per se. The fact whether that was done deceitfully to cause loss and harm to the other party to the Deed, is a question of fact which must be pleaded and proved by the party making such allegation. That fact cannot be presumed. Suffice it to observe that since the provisions in the Act of 1908 enables the Registering Officer to register the documents presented for registration by one party and execution thereof to be admitted or denied by the other party thereafter, it is unfathomable as to how the registration of the document by following procedure specified in the Act of 1908 can be said to be fraudulent. As aforementioned, some irregularity in the procedure committed during the registration process would not lead to a fraudulent execution and registration of the document, but a case of mere irregularity. In either case, the party aggrieved by such registration of document is free to challenge its validity before the Civil Court.”
It is further pointed out as under:
“The error of the Registering Officer, if any, must be regarded as error of procedure. Section 87 of the Act of 1908 postulates that nothing done in good faith by the Registering Officer pursuant to the Act, shall be deemed invalid merely by reason of any defect in the procedure.”
Production of PoA Not Essential for Proving Regd. Sale Deed Executed through PoA
In Manik Majumder v. Dipak Kumar Saha, AIR 2023 SC 506, the sale of property under consideration was made on behalf of the seller to the buyer through the power of attorney. The power of attorney was not produced before the Court. The High Court observed that the sale was not proved as the PoA was not produced. Refuting the observation of the High Court, BV Nagaratna, J., in the split-verdict, held as under:
“18. … However, a registered deed has to be proved in accordance with Section 67 of the Evidence Act, 1872. Section 67 states that if a document is alleged to be signed or to have been written wholly or in part by any person, the signature or the handwriting of so much of the document as is alleged to be in that person’s handwriting must be proved to be in his handwriting. Section 67 states that proof of signature and the genuineness of document proved by the proof of handwriting is proof of execution. Execution of a document means signing a document by consenting on it by a party. Section 67 does not prescribe any particular mode of proof. Mere registration of a document is not self-sufficient proof of its execution. It is only a prima facie proof of its execution particularly when no other evidence is available. Registration of a document is evidence of its execution by its executor. Certificate by registering officer under Section 60 of the Registration Act, 1908 is relevant for proving its execution. Proof by evidence afforded by the contents of the documents is of considerable value. In the instant case, what is sought to be proved is title by the sale deed and not the power of attorney as it is the sale deed which conveys title and the sale deed has been executed in accordance with the provisions of Registration Act, 1908, and proved in accordance with Section 67 of Evidence Act. It cannot be held that the sale made on behalf of the seller (original owner of the suit land) to the buyer through the power of attorney is vitiated as the power of attorney was not produced before the Court. This is because even in the absence of the production of the power of attorney, the contents of the sale deed and the execution of the power of attorney as well as the sale deed have been established by proving the sale deed in accordance with the law.”
When execution is challenged, registration by itself is no proof of execution
In Damodhar v. Tejrao Bajirao Mhaske (C.T. Ravikumar & M.R. Shah., JJ.), AIR 2023 SC 3319, it is held as under:
“Section 54 of the Transfer of Property Act, 1882, read with Section 17 of the Indian Registration Act, is primarily to give certainty to title. When execution is challenged, registration by itself is no proof of execution and proof of complying with Section 67 of the Evidence Act is necessary.”
Vendor asserting non-passing of Consideration has to to Prove it
It is further held in Damodhar v. Tejrao Bajirao Mhaske (C.T. Ravikumar & M.R. Shah., JJ.), AIR 2023 SC 3319, as under:
“There can be no reason to disbelieve a recital contained in a registered sale deed regarding payment of consideration, executed by the vendor. Hence, if it is said to have already been paid, going by the registered sale deed, certainly it is for the vendor asserting non-passing of consideration to prove the said asserted fact.”
Presumption on Registered Will -Not drawn, under S. 68 & 69, Evi. Act
On account of registration of a document, including a will or codicil, a presumption as to correctness or regularity of attestation cannot be drawn, under Sec. 68 and 69 of the Evidence Act (But, it is possible under Sec. 71).
Where, in the facts and circumstances of a given case, the Registrar of Deeds satisfies the requirement of an attesting witness, he must be called in the witness box to depose the fact as to the attestation. His evidence would be liable to be appreciated and evaluated like the testimony of any other attesting witness.
The Apex Court observed in Bhagat Ram v. Suresh, AIR 2004 SC 43 (R.C. Lahoti, J.) as under:
“The certificate of registration under Section 60 of the Registration Act, 1908 raises a presumption under Section 114 illustration (e) of the Evidence Act that he had regularly performed his duty and therefore the facts spelled out by the endorsements made under Sections 58 and 59 of the Registration Act may be presumed to be correctwithout formal proof thereof. The duties discharged by the registering officer do not include attestation or verification of attestation of will as required by the rules enacted by Section 63 of the Succession Act. An endorsement by registering officer is not by itself a proof of the will having been duly executed and attested. ……. …
The Kerala High Court held in Mariyadas v. Benjamin, ILR 2014-4 Ker 471, as under:
“If a Will has been registered, that is a circumstance which may, having regard to the circumstances, prove its genuineness. But the mere fact that a Will is registered Will it will not by itself be sufficient to dispel all suspicion regarding it where suspicion exists, without submitting the evidence of registration to a close examination. The bald fact of registration is insufficient, when there are other circumstances creating suspicion on the execution of the document.”
Non-Examination of Registrar
No doubt, there is a presumption on registration. Therefore, the best evidence rule requires examination of Registrar when one seeks to rebut or displace the presumption. In Muruga Udayar v. Thirumalai Enterpreses, 2011 3 LW 513, the Madras High Court took it seriously that despite the the party who raised dispute as to the execution of the agreement did not chose to examine the Sub-Registrar for proving his case that he did not appear before the Sub-Registrar and put his signature towards registration.
Court can order to prove a document otherwise than ‘on admission’
The principle that ‘when a document is marked without objection its contents stand proved’ is derived from Section 58 of Evidence Act, 1872.
Section 58 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 of pleading in force at the time they are deemed to have admitted by their pleadings:
Provided that the Court may, in its discretion, require the facts admitted to be proved otherwise than by such admissions”.
The principles in the proviso 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 Vs. State of MP: 2013 10 SCC 758; Rakesh Mohindra Vs. Anita Beri: 2015 AIR-SCW- 6271]
Order XII, Rule 2A Proviso of the CPC authorises the court to order to prove a document otherwise than ‘on admission’. Sec. 294 of the CrPC also confers such authority to court.
In most cases when a document is admitted in evidence and marked as an Exhibit, proof of its contents stand admitted; so also Truth of Contents. But, if it is evident that it is admitted for mere identification 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.
Unregd. Partition Deed Admissible to see Severance & No Suit for Partition lie
In Chinnapareddigari Pedda Muthyalareddy v. Chinnappareddigari Venkatareddy,AIR 1969 AP 242, unregistered partition lists were drawn up showing the properties allotted to the respective sharers. The lists were construed as partition deeds and were held by the trial Court to be inadmissible in evidence for proving division by metes and bounds. No oral evidence was held to be admissible under section 91 of the Evidence Act to prove the factum of partition or the nature of possession. In appeal the Andhra Pradesh High Court (FB-Jaganmohan Reddy, C.J.) held that the unregistered partition deed was admissible not for proving terms of the partition or as the source of title, but for the purpose of showing that there was a disruption (division/severance) in status and that no suit for partition would lie on the basis that the properties were still joint family properties. This decision is relied on in Booraswami v. Rajakannu, 1978-1 MLJ 248; and held further, relying on K. Kanna Reddy v. K. Venkata Reddy, AIR 1965 AP 274, that for determining status and the nature of the possession oral evidence was also admissible (for proving the factum of partition).
Presumption as to 30 Years Old Documents under Sec. 90 Evidence Act
Sec. 90 Evidence Act can be analysed as under:
Sec. 90 CPC speaks about two things, as regards 30-year-documents:
1. A document purports to be in the handwriting of any particular person is presumed to be in his handwriting.
2. A document purports to be executed or attested is presumed to be duly executed and attested.
Under Sec. 90, Not Truth of Contents, but, only presumption of Genuineness of a document (i.e., existence or handwriting), is drawn. Therefore, besides Genuineness, the Truth of Contents of the documents also have to be proved by cogent evidence.
But, if the document is a public document an “added presumption” (as to correctness) under Section 114(e) is available -KalitaIqbal Basith and others v. N Subbalakshmi, (2021) 2 SCC 718.
No doubt, under Sec. 114, Truth of Contents 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) – without invoking “added presumption” stated above.
In Lakhi Baruah v. Padma Kanta Kalita, (1996) 8 SCC 357, 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.”
Quoting Lakhi Baruah v. Padma Kanta, it is held in KalitaIqbal Basith and others v. N Subbalakshmi, (2021) 2 SCC 718, 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.”
The correct view in on Sec. 30 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 depends on 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.”
No Presumption to 30 Years Old Will -Not drawn, under S. 68 & 69, Evi. Act
The presumption, under Sec. 90, Evidence Act, as to regularity for documents having more than 30 years of age does not apply to Wills, under S. 68 & 69, Evidence Act (But, it is possible under Sec. 71).
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.
PART IV
Collateral Purpose
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. In Yellapu Uma Maheswari v. Buddha Jagadheeswararao, (2015) 16 SCC 787, the Apex Court held that in the suit for declaration of title, 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.
In a claim of adverse possession, it was held in Lachhmi Narain v. Kalyan, AIR 1960 Raj 1, as under:
“By virtue of Clause (c), it cannot be received as evidence of the mortgage, or for any other purpose affecting the immovable property; It has been held by their Lordships of the Privy Council in AIR 1919 PC 44, that the unregistered document can be availed of for the purpose of showing the character and nature of the possession if the possession is transferred under the document. This Privy Council case has been invariably followed by all the High Courts in India. A person in possession under an unregistered mortgage deed may be in a position to show apart from the deed the nature of his adverse possession and the quantum of interest which he claims in the property. Section 49 does not in any way militate against the admissibility of such evidence. Section 91 of the Evidence Act also does not exclude such evidence.”
The Apex Court, in K.B. Saha and Sons Private Limited v. M/S Development Consultant Ltd, 2008-8 SCC 564; 2008 AIR SCW 4829, has laid down the principle in respect of the collateral purpose 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.
A collateral transaction must be independent of, or divisible from, the transaction to effect which the law required registration.
A collateral transaction must be a transaction not itself required to be effected by a registered document, that is, a transaction creating, etc. any right, title or interest in immovable property of the value of one hundred rupees and upwards.
If a document is inadmissible in evidence for want of registration, none of its terms can be admitted in evidence and that to use a document for the purpose of proving an important clause would not be using it as a collateral purpose.
PART V
Does Registration of a Document giveNotice to the Whole World?
It is so held by our Apex Court in Suraj Lamp & Industries Pvt. Ltd. v. State of Haryana (2009) 7 SCC 363. See: Sec. 3 (Explanation 1), TP Act. It lays down – Registration of document is only a constructive notice; and, it applies only to those who subsequently acquired that property or fraction of interest thereof. (R. Ravichandran v. The State of Tamil Nadu, 2002-2-LW 590)
Does it apply with full vigor in suits on ‘Adverse Possession’ or in a Criminal Case?
No.
It is observed in Suraj Lamp & Industries Pvt. Ltd. v. State of Haryana (2009) 7 SCC 363 as under:
“Registration of a document givesnotice to the world that such a document has been executed. Registration provides safety and security to transactions relating to immovable property, even if the document is lost or destroyed. It gives publicity and public exposure to documents thereby preventing forgeries and frauds in regard to transactions and execution of documents. Registration provides information to people who may deal with a property, as to the nature and extent of the rights which persons may have, affecting that property. In other words, it enables people to find out whether any particular property with which they are concerned, has been subjected to any legal obligation or liability and who is or are the person(s) presently having right, title, and interest in the property. It gives solemnity of form and perpetuate documents which are of legal importance or relevance by recording them, where people may see the record and enquire and ascertain what the particulars are and as far as land is concerned what obligations exist with regard to them. It ensures that every person dealing with immovable property can rely with confidence upon the statements contained in the registers (maintained under the said Act) as a full and complete account of all transactions by which the title to the property may be affected and secure extracts/copies duly certified.”
Only Constructive Notice; That too to one Subsequently Acquired the Property
In Manna Singh Allah Singh v. Wasti Ram Saraf, AIR 1960 P&H 296, it was held as under:
It is conceded that the plaintiff has not been able to establish actual notice of the charge to the transferee. The learned counsel restricted his argument to constructive notice. According to him, the transferee would be deemed to have notice of the charge from the fact that (a) plaintiff was in possession of the shops and not the judgment-debtor; and (b) that in the sale deed in favour of the judgment-debtor it is stated that part of the sale price (Rs. 9000/-) was unpaid, for under the law registration of a document is notice to the entire world of the contents of the same.
It is explained vividly by the Madras High Court in Arabia Bibi vs Sarbunnisa (2011) R. Subbiah, J., as under:
29. On going through the dictum laid down in the above judgments relied on either side, I am of the opinion that the registration of document is only a constructive notice to a person, who subsequently acquired that property or interest or any part thereof or interest or fraction of interest thereof. In this regard, it would be proper to refer Explanation I of Sec. 3 of the Transfer of Property Act, which reads as follows:
“Where any transaction relating to immovable property is required by law to be and has been effected by a registered instrument, any person acquiring such property or any part of, or share or interest in, such property shall be deemed to have noticeof such instrument as from the date of registration or, …..”
Thus, it is clear that the registration is only a constructive notice to the person who has subsequently acquired such property. If the submission of the learned counsel for defendants 1, 3, 5 and 7 that the registration is a notice to the entire world is accepted, it would defeat the legitimate right of the co-sharers when the property was sold without their knowledge. Further, I find that the subject property was sold only within the family members and therefore, as contended by the learned counsel for the plaintiff, she might have been in a position to know about the same only at a later point of time. Moreover, the judgments relied upon by the appellants deal with the alienation of the property to the strangers. Further, I do not find any evidence in this case with regard to open assertion of hostile title, coupled with exclusive possession and enjoyment by one of them to the knowledge of other co-owner, namely, the plaintiff in this case so as to constitute ouster. Therefore, in my considered opinion, the principle of ouster cannot be applied in this case. The courts below have correctly appreciated the evidence and the documents adduced by the parties. The concurrent findings of the courts below reflect the evidence on record.
In KS Natraj v. NIL, 2020 2 KarLJ 356 (B.V.Nagarathna, Suraj Govindaraj, JJ.) it is observed as under:
“20. The most important purpose of registration is to secure thatpersons dealing with the property, where such dealings require registration, may rely upon the statements contained in the register of the Registrar of Assurances with confidence that the full and complete account of all transactions relating to or affecting the property is covered in such register.”
Explanation to Section 3 TP Act in Criminal Matters
In a criminal matter, in Kuldip Singh v. State, AIR 1954 P&H 31, it was observed as under:
“(I)t was contended that the registration of a document which must under law be registered is constructive notice to the whole world and, therefore, Moti Parshad must be deemed to have had notice of the previous mortgages, and, therefore, it could not be said that Moti Parshad had been cheated since, in law, he already knew the factum of the previous charges.
My brother Soni thought that this point was of some importance and should be considered by a larger Bench and we have, therefore, heard arguments of counsel on this point and also the other points arising in the case.
3. The argument of Mr. Sibal who appeared on behalf of the petitioner is based on the wording of Sections 3 and 55, T. P. Act.
Explanation I to Section 3 reads as follows :
“Where any transaction relating to immoveable property is required by law to be and has been effected by a registered instrument, any person acquiring such property or any part of, or share or interest in, such property shall be deemed to have notice of such instrument as from the date of registration.”
Section 55(1)(a) is in the following terms :
“The seller is bound to disclose to the buyer any material defect in the property or in the sellers title thereto of which the seller is, and the buyer is not, aware, and which the buyer could not with ordinary care discover.”
Mr. Sibal contends that the previous, mortgages were effected by means of registered deeds and, therefore, by virtue of the explanation to Section 3, Moti Parshad must be deemed to have had notice of these mortgages. Further Moti Parshad could by exercising ordinary care have discovered that the property which he was purchasing formed part of a much larger estate which was already under mortgage. Therefore, Kuldip Singh was not bound to disclose to him the previous charges and Moti Parshad must be deemed in law to be aware of them, and, that being so, Moti Parshad was not cheated, for no representation was made to him.
4. The Transfer of Property Act deals with the rights of individuals in the property which is the subject-matter of any transaction. It is not concerned with whether a person has been cheated or not. The object of the explanation to Section 3 is to safeguard the interests of a third party who has acquired a good title under a previous registered instrument but it does not in any way alter or modify the criminal liability of a person who deliberately suppresses certain facts or misstates certain facts. If A has sold some property to B by a registered deed and he then sells it again to C, C cannot acquire a good title in the property because he must be deemed to have had notice of the previous registered sale deed in favour of B but nevertheless he was made to part with money on a misrepresentation made by A and therefore A is guilty of the offence of cheating. This is the case which is mentioned in illst. (i) to Section 415, Penal Code. The doctrine of constructive notice cannot be imported into criminal law for the purpose of determining whether a person is guilty of the offence of cheating or not.”
•➧ Sections 56, 57 and 58 of the Evidence Act lay down that facts admitted need not be proved. •➧ Effect of marking documents, without formal proof, on admission, or without objection, is a matter of controversy. •➧ Whenever a relevant and admissible document is tendered in evidence, otherwise than through its executant but through a person who can vouchsafe its authenticity, the Courts in India exhibit it ‘subject to proof’ or ‘subject to objection’. •➧ Order XIII Rule 3 CPC speaks as to rejection of irrelevant or inadmissible documents alone; and it does not apply to a document which can be received in evidence ‘subject to objection/proof’ on the concession or admission of the opposite side. •➧ Where there is no objection (to the opposite side) to marking a document and the court sees deficiency, it should bring notice of it to counsel.
Introduction
What is the effect of marking documents without objection – Do contents stand proved?
Several views exist in this matter.
First view (a) Proof (Contents and ‘Truth of its Contents’) stands established. It cannot be questioned afterwards.
(b) Truth also: See: Rafia Sultan v. Oil And Natural Gas Commission, 1986 ACJ 616; 1985-2 GujLR 1315.
(c) Admission of contents – but, does not dispense with proof of truth of its contents.
a)RVE Venkatachala Gounder v. Arulmigu Viswesaraswami: AIR 2003 SC 4548; (b) Rafia Sultan v. Oil And Natural Gas Commission (I.C. Bhatt, S.B. Majmudar, JJ.), 1985-2 GujLR 1315: No objection about the truth of contents … before the trial Court. … It is therefore too late in the day for Miss Shah for the Commission to canvass for the first time before us in appeal. Neeraj Dutta Vs. State (Govt. of N.C.T. of Delhi) reported in [2023] 4 SCC 731: If no objection as to its mode of proof , no such objection could be allowed to be raised at any later stage. (c) Sait Tarajee Khimchand v. Yelamarti Satyam, AIR 1971 SC 1865; Nandkishore Lalbhai Mehta v. New Era Fabrics, AIR 2015 SC 3796.
Second View Even if no objection, it does not dispense with proof (as to, both, existence of the document and its truth).
(Note: It may not be legitimate to apply this principle literatim)
M. Chandra v. M. Thangamuthu, 2010-9 SCC 712 (Foundational evidence as to secondary evidence essential); LIC v. Ram Pal Singh Bisen: 2010-4 SCC 491 (Filing of the Inquiry Report or the evidence adduced during the domestic enquiry); Birad Mal Singhvi v. Anand Purohitb: 1988 (Supp) SCC 604 (date of birth).
Third view If truth is in issue, mere proof of contents, or marking without objection, is not proof of truth.
See: Narbada Devi Gupta v. Birendra Kumar Jaiswal, 2003-8 SCC 745; Ramji Dayawala Vs. Invest Import: AIR 1981 SC 2085.
Fourth view Admission of contents, and dispenses with proof and truth; but its probative value will be a matter for appreciation by court.
See: State of Bihar v. Radha Krishna Singh, AIR 1983 SC 684 (Admission and probative value – different); Rakesh Mohindra v. Anita Beri: 2015 AIR(SCW) 6271; Kaliya v. State of MP: 2013-10 SCC 758; H. Siddiqui v. A. Ramalingam: AIR 2011 SC 1492; Rasiklal Manikchand v. MSS Food Products: 2012-2 SCC 196.
Fifth view Admission of contents, and dispenses with proof and truth; but Court should require (in proper cases) the party producing the document to adduce proper evidence, and to cure formal defects, invoking – • Sec. 165 of Evidence Act • Sec. 58 of Evidence Act • O. XII, r. 2A Proviso, CPC and • Sec. 294 of the CrPC.
See: Harkirat Singh v. Amrinder Singh, (2005) 13 SCC 511; Umesh Challiyil v. K.P. Rajendra, (2008) 11 SCC 740; KK Ramachandran Master v. MV Sreyamakumar, (2010) 7 SCC 428; AIR 2015 SC 3796.
Marked Without Objection – its ‘Contents’ stand Proved
When a document is marked without Objection Proof of execution is enough; and no separate proof is needed: Admission or exhibiting of documents in evidence and proving the same before the court are two different processes. In certain cases, as comes out from Sec. 56, 57 and 58 of the Evidence Act, when a document is admitted, separate proof need not be warranted. Similarly, separate proof may not be required when presumptions can be invoked, also (e.g. document in ordinary course of business, a letter obtained in reply).
Secondary-evidence: Admission of contents of documents arises in two ways:
documents in original
(by way) of secondary evidence.
Factual foundation to give secondary evidence must be established: The party has to lay down the factual foundation to establish the right to give secondary evidence where the original document cannot be produced [Rakesh MohindraVs. Anita Beri: 2015AIR(SCW) 6271].
Secondary-evidence–Marked Without Objection: When the party gives in evidence a certified-copy/secondary-evidence without proving the circumstances entitling him to give secondary evidence, the opposite party must raise his objection ((if he has)) at the time of admission of such documents. In case, objection is not raised at that point of time, he is precluded from raising it at a belated stage. It stands waived. [Kaliya Vs. State of MP: 2013-10 SCC 758]
‘Contents’ stand proved: When a document is marked without objection, its ‘contents’ stand proved. See: RVE Venkatachala Gounder Vs. Arulmigu Viswesaraswami: AIR 2003 SC 4548. See also:
Narbada Devi Vs. Birendra Kumar: (2003) 8 SCC 745
Dayamati Bai Vs. K.M. Shaffi :2004 SC 4082
Oriental Insurance Co Vs. Premlata: (2007) 8 SCC 575
Thimmappa Rai v. Ramanna Rai,(2007) 14 SCC 63
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.”
2. MERE MARKING, DOES NOT PROVE THE CONTENTS –NOT AN UNQUALIFIED PROPOSITION
It is disgraceful that several courts in India apply this proposition (Mere Marking Does Not Prove the Contents) ineptly.
This proposition is not attracted–
when a document is marked on ‘admission’ by the opposite side.
This proposition is attracted–
when it is evident that the document is marked only for ‘identification‘, or
when the objection raised by the other side is sustained and the document is marked ‘subject to proof/objection’.
when the document is marked through an incompetent witness and not proved through a competent witness (in spite of the objection in this regard), afterwards;
when it has come out in cross examination of the witness through whom it is marked (by other evidence) that it is not proved ‘in accordance with law‘.
Each Case under this Head Requires Distinct Consideration
As this proposition (Mere Marking Does Not Prove the Contents) is not to be applied “literatim”, each case (which referred to this proposition) requires distinct consideration. (Some of these decisions mentioned this proposition, merely to show that such an argument was placed before it; but those decisions were quoted (subsequently) by some Courts as if those earlier decisions laid down a ‘ratio decidendi’.)
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 were not received as proof (though marked)
Photocopy was shown to the witness during cross-examination alone, and Signature alone was admitted by the witness.
Tarajee Khimchand v. Yelamarti Satyam, AIR 1971 SC 1865
No. Accounts of the Plaintiff was not received as proof (though marked)
The accounts of the Plaintiff would not be proved by itself.
(a)Narbada Devi Gupta v. Birendra Kumar Jaiswal, 2003-8 SCC 745
[The proposition (Mere Marking Does Not Prove the Contents) was neither attracted nor applied in this case, for – the rent receipts were taken as proved, for, it was ‘not disputed’ by the other side.]
It is held in Narbada Devi Gupta v. Birendra Kumar Jaiswal, 2003-8 SCC 745 as under:
“Reliance is heavily placed on behalf of the appellant on Ramji Dayawala v. Invest Import: AIR 1981 SC 2085.The legal position is not in dispute that mere production and marking of a document as exhibit by the court cannot be held to be a due proof of its contents. Its execution has to be proved by admissible evidence, that is, by the evidence of those persons who can vouchsafe for the truth of the facts in issue”.
Narbada Devi Gupta v. Birendra Kumar Jaiswal (supra) continued as under:
“The plaintiff did not dispute his signatures on the back of them. There was, therefore, no further burden of proof on the defendant to lead additional evidence in proof of the writing on the rent receipts and its due execution by the deceased landlady.”
Note
“The plaintiff did not dispute his signatures on the back of them. There was, therefore, no further burden of proof on the defendant to lead additional evidence in proof of the writing on the rent receipts and its due execution by the deceased landlady.”
(b) Kaliya v. State of Madhya Pradesh, 2013-10 SCC 758
[The proposition (Mere Marking Does Not Prove the Contents)was neither attracted nor applied in this case, for – the secondary evidence of dying declaration produced in this case (with foundational evidence) was accepted by the Court]
In this case the Courts upheld the acceptance of the secondary evidence (of the dying declaration). Our Apex Court held as under-
“In the instant case, the Trial Court had granted permission to lead secondary evidenceand the same had been adduced strictly in accordance with law and accepted by the courts below.”
It is only pointed out in this decision as under:
“However, the secondary evidence of an ordinary document is admissible only and only when the party desirous of admitting it has proved before the court that it was not in his possession or control of it and further, that he has done what could be done to procure the production of it. Thus, the party has to account for the non-production in one of the ways indicated in the section. The party further has to lay down the factual foundation to establish the right to give secondary evidence where the original document cannot be produced. When the party gives in evidence a certified copy/secondary evidence without proving the circumstances entitling him to give secondary evidence, the opposite party mustraise an objection at the time of admission. In case, an objection is not raised at that point of time, it is precluded from being raised at a belated stage.Further,mere admission of a document in evidence does not amount to its proof. Nor, mere marking of exhibit on a document does not dispense with the proof, which is otherwise required to be done in accordance with law.
(Vide: The Roman Catholic Mission v. The State, AIR 1966 SC 1457;
Marwari Khumhar v. Bhagwanpuri Guru Ganeshpuri, AIR 2000 SC 2629;
RVE Venkatachala Gounder v. Arulmigu, AIR 2003 SC 4548;
Smt. Dayamathi Bai v. K.M. Shaffi, AIR 2004 SC 4082; and
LIC of India v. Rampal Singh Bisen,2010-4 SCC 491).”
(c)Ramji Dayawala v. Invest Import: AIR 1981 SC 2085
[The proposition (Mere Marking Does Not Prove the Contents) was neither attracted nor applied in this case, for – Truth of the facts in the document was “in issue“]
It is held as under:
“Obviously, in these circumstances the Privy Council observed that the fact that a letter and two telegrams were sent by itself would not prove the truth of the contents of the letter and, therefore, the contents of the letter bearing on the question of lack of testamentary capacity would not be substantive evidence. Undoubtedly, mere proof of the handwriting of a document would not tantamount to proof of all the contents or the facts stated in the document. If the truth of the facts stated in a document is in issuemere proof of the handwriting and execution of the document would not furnish evidenceof the truth of the facts or contents of the document. The truth or otherwise of the facts or contents so stated would have to be proved by admissible evidence, i.e. by the evidence of those persons who can vouch safe for the truth of the facts in issue.”
Note: The aforequoted portion itself will show that the proposition – mere proof of the handwriting would not tantamount to proof of contents – is not absolute. It is attractedto this case, because the truth of the facts was “in issue“.
(d)M. Chandra v. M. Thangamuthu, 2010-9 SCC 712
[The proposition (Mere Marking Does Not Prove the Contents) was attracted in this case, for – the Validity and Genuineness of the Photocopy (of the Caste Certificate) was very much in question]
In this decision it was held:
“The High Court while considering this issue has noticed that the appellant failed to produce the original certificate issued by Arya Samaj, Madurai and further has not examined Santnakumar, who was supposed to have received and retained the original certificate issued by the Arya Samaj and the original records have not been summoned from Arya Samaj and no steps have been taken to summon the responsible person from Arya Samaj to prove that the appellant underwent conversion. Therefore, the claim made by her about her reconversion cannot be accepted. We do not agree with the reasoning of the High Court. It is true that a party who wishes to rely upon the contents of a document must adduce primary evidence of the contents, and only in the exceptional cases will secondary evidence be admissible. However, if secondary evidence is admissible, it may be adduced in any form in which it may be available, whether by production of a copy, duplicate copy of a copy, by oral evidence of the contents or in another form. The secondary evidence must be authenticated by foundational evidence that the alleged copy is in fact a true copy of the original.”
Note: It was an appeal from an Election petition and the Supreme Court allowed the appeal. Thevalidity and genuineness of the Certificate was very much in question.Therefore, the principles in RVE Venkatachala Gounder v. Arulmigu, AIR 2003 SC 4548 (where the secondary evidence was marked without objection), was not attracted to this case (and it was not referred to also).
Principle of law laid down in M. Chandra v. M. Thangamuthu is followed in Rakesh Mohindra v. Anita Beri, 2016 -16 SCC 483.
(e)H. Siddiqui v. A. Ramalingam, (2011) 4 SCC 240
[The proposition (Mere Marking Does Not Prove the Contents) was applied in this case, for –the Photocopy was shown to the witness during cross-examination alone, and Signature alone was admitted by the witness.]
It was held that the power of attorney was not proved in accordance with the terms of Sec. 65 of the Evidence Act, for the following –
The power of attorney had not been proved.
Original had never been filed before the Trial Court.
Only a photocopy of the same was shown to the respondent during cross-examination.
The respondent has only admitted his signature thereon.
He had never admitted its contents or genuineness.
It is held in H. Siddiqui v. A. Ramalingam, 2011-4 SCC 240, as under:
“In our humble opinion, the Trial Court could not proceed in such an unwarranted manner for the reason that the respondent had merely admitted his signature on the photocopy of the power of attorney and did not admit the contents thereof.”
It is added:
“More so, the court should have borne in mind that admissibility of a document or contents thereof may not necessary lead to drawing any inference unless the contents thereof have some probative value.”
Note: Probative value is proof-value. A registered deed with a doubtful derivation—such as one claiming title based on long use—has little probative value..
(f) Tarajee Khimchand v. Yelamarti Satyam, AIR 1971 SC 1865.
[The proposition (Mere Marking Does Not Prove the Contents) was applied in this case, for –the accounts of the Plaintiff would not be proved by itself]
It is held that the documents do not prove themselves. It is also observed in this decision as under:
“15. The plaintiffs wanted to rely on Exs. A-12 and A-13, the day book and the ledger respectively. The plaintiffs did not prove these books. There is no reference to these books in the judgments. The mere marking of an exhibit does not dispense with the proof of documents. It is common place to say that the negative cannot be proved. The proof of the plaintiffs’ books of account became important because the plaintiffs’ accounts were impeached and falsified by the defendants’ case of larger payments than those admitted by the plaintiffs. The irresistible inference arises that the plaintiffs’ books would not have supported the plaintiffs.” (Quoted in: Vinod Jaswantray Vyas v. State of Gujarat, 2024-7 SCR 365.)
Other Important Decisions –
1. LIC v. Ram Pal Singh Bisen: 2010-4 SCC 491 (Filing of the Inquiry Report or the evidence adduced during the domestic enquiry);
2. Birad Mal Singhvi v. Anand Purohith: 1988 (Supp) SCC 604 (document on date of birth).
3. Nandkishore Lalbhai Mehta v. New Era Fabrics, AIR 2015 SC 3796 (It is observed that mere marking as exhibit and identification of executant’s signature by one of witnessesdoes not prove contents of a document).
4. Vinod Jaswantray Vyas v. State of Gujarat, 2024-7 SCR 365 (mere marking of exhibit – letter – without the expert deposing about the opinion given therein would not dispense with the proof of contents).
Marking Without Objection Sufficient Proof or Not Depends on Facts of the Case
In Cheni Ram Bora v. Arun Chandra Bora, 2021-1 GauLT 496, it is pointed out as regards marking a document on admission, as under:
“There may be a case where mere marking of the document or admission of the document in evidence may be sufficient and independent proof of the contents or execution may not be necessary. Because when a document is properly admitted, it’s contents are also admitted in evidence, though contents may not be conclusive evidence [Sheo Prasad Chouhan Vs. Jayradha Das 2015 (5) GLT 347]. For example – when execution of the document or it’s contents are not disputed, independent proof of execution or contents may not be necessary. Similarly, in a different situation, when the execution of the document is disputed, admission of the document or mere marking the document as exhibit would not suffice, it’s execution and contents also has to be proved independently.”
In Tahsildar, Land Acquisition, Visakhapatnam v. P. Narasing Rao, 1985-2 ALT 492; 1985-1 ALT(NRC) 42; 1985-1 APLJ 99 , it is observed as under:
“Of course in a given case where it was conceded or admitted that the price paid under those transactions under the sale deeds marked or the actual price paid, to that extent it can be taken as an admission under Sec. 17 of the Evidence Act and the need to examine either the vendor or the vendee would be redundant and the document cannot be rejected in such circumstances. But when there is no such admission mere marking the document does not amount to prove that the consideration recited under that document is the actual consideration paid thereunder.”
Objection to be Raised When document is admitted
It was observed by the Supreme Court in 2001 in Bipin Shantilal Panchal v. State of Gujarat, AIR 2001 SC 1158, that that ‘it is an archaic practice that during the evidence collecting stage, whenever any objection is raised regarding admissibility of any material in evidence the court does not proceed further without passing order on such objection’. And the Court directed as under:
“When so recast, the practice which can be a better substitute is this: Whenever an objection is raised during evidence taking stage regarding the admissibility of any material or item of oral evidence the trial court can make a note of such objection and mark the objected document tentatively as an exhibit in the case (or record the objected part of the oral evidence) subject to such objections to be decided at the last stage in the final judgment.”
But, the subsequent decisions in R.V.E. Venkatachala Gounder: AIR 2004 SC 4082; Dayamathi Bai (2004) 7 SCC 107 took a contra view. It was held that the objection as to ‘mode of proof’ should be taken at the time of marking of the document as an exhibit, so that the defect can be cured by the affected party.
In Re: To Issue Certain Guidelines Regarding Inadequacies And Deficiencies In Criminal Trials v. State of Andhra Pradesh, 2021-10 SCC 598, overruled (ruled – stood modified) Bipin Shantilal Panchal v. State of Gujarat, AIR 2001 SC 1158. It is directed as under:
“The presiding officer therefore, should decide objections to questions, during the course of the proceeding, or failing it at the end of the deposition of the concerned witness.”
It appears that the decision taken by a Magistrate to mark the document – “subject to objection” is improper; nevertheless, marking – “subject to proof” is a permissible action, for it is a “decision” ruled-down in In Re: To Issue Certain Guidelines Regarding Inadequacies And Deficiencies In Criminal Trials v. State of Andhra Pradesh, 2021-10 SCC 598.
3. IF ‘TRUTH’ IS IN ISSUE- Mere Marking Not Amounts to ‘Waiver’
The fundamental principles as to proof of execution a document is that the execution has to be proved by admissible evidence, that is by the ‘evidence of those persons who can vouchsafe for the truth of the facts in issue’ (Narbada Devi Gupta v. Birendra Kumar Jaiswal, 2003-8 SCC 745). But, in the facts and circumstances of each case, the court is at liberty to invoke its wisdom and fill certain gaps in evidence by applying ‘presumption’.
It is legitimate to say that this requirement as to proof of ‘truth’ is independent from inviting ‘proof of signature and handwriting’ in Sec. 67 to 71 of the Evidence Act. This proposition is clear from Sec. 67, which lays down the fundamental principles as to the proof of documents. Sec. 67 reads as under:
“67. Proof of signature and handwriting of person alleged to have signed or written document produced—If a document is alleged to be signed or to have been written wholly or in part by any person, the signature or the handwriting of so much of the document as is alleged to be in that person’s handwriting must be proved to be in his handwriting.”
Though proof of execution (dealt with in Sec. 67 to 71) is independent from proof as to ‘truth’ of contents of a document, proof as to ‘truth’ can be presumed by the court, in most cases, on ‘proof of execution’. It is more so, when a document is admitted without objection. Proof as to ‘truth’ is essential if ‘truth’ is in issue, or in dispute. It rarely occurs.
If ‘TRUTH’ is in issue, or in dispute,marking a document without objection, or mere proof of handwriting or execution,by itself, need not absolve the duty to prove the truth as to the contents of the documents. (Ramji Dayawala Vs. Invest Import, AIR 1981 SC 2085; Achuthan Pillai vs Marikar (Motors) Ltd., AIR 1983 Ker 81; Suresh v. Tobin, 2013-1 KerLT 293). Court has a duty to see that the statement of a witness gets independent corroboration, direct or circumstantial, in proper cases (Ahalya Bariha v. Chhelia Padhan, 1992 Cri.LJ 493).
In Ramji Dayawala Vs. Invest Import: AIR 1981 SC 2085, it us held as under:
“If the truth of the facts stated in a document is in issue mere proof of the handwriting and execution of the document would not furnish evidence of the truth of the facts or contents of the document. The truth or otherwise of the facts or contents so stated would have to be proved by admissible evidence, i.e. by the evidence of those persons who can vouchsafe for the truth of the facts in issue.”
Admitted Expert-report u/s. 294 CrPC; Right to cross-examine not extinguished
In Babulal v. State of Madhya Pradesh, 2006-3 MPHT 286, it is pointed out that the right of the accused to cross-examine the expert on his report is not got extinguished merely because he has admitted the report under Section 294 of the CrPC.
If No Objection, Can a Photocopy of Document be Marked?
Yes.
It will not be legitimate if the court does not even exhibit a relevant document which can be received in evidence on the concession or admission of the opposite side.
In Iqbal Basith v. N Subbalakshmi, (2021) 2 SCC 718, our Apex Court considered admission of a photocopy of an official document, in the following factual matrix:
The failure to produce the originals or certified copies of other documents was properly explained as being untraceable after the death of the brother of P.W.1 who looked after property matters.
The attempt to procure certified copies from the municipality was also unsuccessful as they were informed that the original files were not traceable.
The photocopies were marked as exhibits without objection.
The respondents never questioned the genuineness of the same.
Despite the aforesaid, and the fact that these documents were more than 30 years old, were produced from the proper custody of the appellants along with an explanation for nonproduction of the originals, they were rejected (by the High Court) without any valid reason holding that there could be no presumption that documents executed by a public authority had been issued in proper exercise of statutory powers.
In this premises the Supreme Court held as under:
“This finding in our opinion is clearly perverse in view of Section 114(e) of the Indian Evidence Act 1872, which provides that there shall be a presumption that all official acts have been regularly performed. The onus lies on the person who disputes the same to prove otherwise.”
4. Admission of Contents – May Dispense with Proof; But Probative Value may be Less or Nil
Court Examines Probative Value of Secondary Evidence: It is well settled that if a party wishes to lead secondary evidence, the Court is obliged to examine the probative value of the document produced in the Court or their contents and decide the question of admissibility of a document in secondary evidence [Rakesh Mohindra Vs. Anita Beri: 2015 AIR(SCW) 6271].
Contents of the document cannot be proved by mere filing the document in a court. Under the Law of Evidence, it is necessary that contents of documents are required to be proved either by primary or by secondary evidence. Mere marking a document as an ‘exhibit’ will not absolve the duty of to prove the documents in accordance with the provisions of the Evidence Act. At the most, marking ‘exhibit’may amount to proof of contents, but not its truth.
Documents which are not produced and marked as required under the Evidence Act cannot be relied upon by the Court. [See: LIC Vs. Ram Pal Singh Bisen: 2010-4 SCC 491 (Filing of the Inquiry Report or the evidence adduced during the domestic enquiry); M. Chandra Vs. M. Thangamuthu. Nandkishore Lalbhai Mehta Vs. New Era Fabrics: AIR 2015 SC 3796; Birad Mal SinghviVs. Anand Purohitb: 1988 (Supp) SCC 604 (date of birth)]
Even when a document is technically admitted in court, the probative value thereof will always be a matter for the court to determine. That is, it is depended upon the nature of each case. The probative value of Scene-Mahazar, Postmortem Report, photocopy of a Registered Deed etc. without supporting legal evidence may be lesser. In such cases the court can refrain from acting upon such documents until regular evidence is tendered.
As shown earlier, in Kaliya Vs. State of MP: 2013-10 SCC 758 (relying on H. Siddiqui Vs. A. Ramalingam: AIR 2011 SC 1492, and Rasiklal Manikchand Vs. MSS Food Products: 2012-2 SCC 196) held as under:
“The court is obliged to examine the probative value of documents produced in court or their contents and decide the question of admissibility of a document in secondary evidence.”
[Note: Further held: “In case, an objection is not raised at that point of time, it is precluded from being raised at a belated stage.”]
In Life Insurance Corporation of India Vs. Ram Pal Singh Bisen [2010-4 SCC 491], it is observed as under:
“26. We are of the firm opinion that mere admission of document in evidence does amount to its proof. In other words, mere marking of exhibit on a document does dispense with its proof, which is required to be done in accordance with law. …..27. It was the duty of the appellants to have proved documents Exh.-A-1 to Exh. A-10 in accordance with law. Filing of the Inquiry Report or the evidence adduced during the domestic enquiry would partake the character of admissible evidence in Court of law. That documentary evidence was also required to be proved by the appellants in accordance with the provisions of the Evidence Act, which they have failed to do.”
The Calcutta High Court quoting Life Insurance Corporation of India Vs. Ram Pal Singh Bisen [2010-4 SCC 491] it is observed in Bajaj Allianz General Insurance Company Vs.Smt. Santa (2019-2 ACC 36) that ‘even if the document had been marked as Exhibit-A without objection, without a formal proof thereof in accordance with the provisions of the Evidence Act, such document lost its credibility and is of no probative value’.
In Kalyan Singh, Vs. Chhoti (AIR 1990 SC 396) it is observed as under:
“A certified copy of a registered sale deed may be produced as secondary evidence in the absence of the original. But in the present case Ex. 3 is not certified copy. It is just an ordinary copy. There is also no evidence regarding content of the original sale deed. Ex.3 cannot therefore, be considered as secondary evidence. The appellate Court has a right and duty to exclude such evidence.”
Document More Than 30 Years Old
Sec. 90 CPC, as regards 30-year-documents, in the main, speaks about two things:
A document purports to be in the handwriting of any particular person is presumed to be in his handwriting.
2. A document purports to be executed or attested is presumed to beduly executed and attested.
But, if the document is a public document presumption (as to correctness) under Section 114(e) can be invoked. See: Iqbal Basith v. N Subbalakshmi, (2021) 2 SCC 718.
Under Sec. 90,Presumption of Genuineness alone Established
Under Sec. 90, not truth of contents, but, only presumption of genuineness of a document (ie. existence or handwriting), is drawn. Therefore, besides TRUTH, the contents of the documents also have to be proved by cogent evidence.
In Lakhi Baruah v. Padma Kanta Kalita, (1996) 8 SCC 357, AIR 1996 SC 1253, with regard to admissibility in evidence of thirty years old documents produced from proper custody, it was observed as under:
“15. Section 90 of the Evidence Act, 1872 is founded on necessity and convenience because it is extremely difficult and sometimes not possible to lead evidence to prove handwriting, signature or execution of old documents after lapse of thirty years. In order to obviate such difficulties or improbabilities to prove execution of an old document, Section 90 has been incorporated in the Evidence Act, 1872 which does away with the strict rule of proof of private documents. Presumption of genuineness may be raised if the documents in question is produced from proper custody. It is, however, the discretion of the court to accept the presumption flowing from Section 90. There is, however, no manner of doubt that judicial discretion under Section 90 should not be exercised arbitrarily and not being informed by reasons.”
5.Court should allow to adduce proper evidence to prove documents
As stated in detail above, besides the powers of the court under Sec. 165 of Evidence Act, the scheme of the Procedural Acts shows that the court has jurisdiction to require the party concerned to prove that document. (Sec. 58 of Evidence Act and Order XII, Rule 2A Proviso of the CPC and Sec. 294 of the CrPC).
Inasmuch as (a) mere marking of a document on admission will not amount to proof, or evidence of the contents of the document or its truth; (b) the probative value of a document ‘marked without objection’ may be low or nil, for want of proper proof; and (c) there is a formal defect to the document for it is a secondary evidence because it is produced without adducing ‘foundational evidence’, it is legitimate to say that before taking an adverse stance as to proof in this count, the court should give an opportunity to the party who relies on the document to cure the deficiency.
Defect for not producing a proper power of attorney being curable, in Haryana State Coop. Supply and Marketing Federation Ltd. v. Jayam Textiles, 2014 AIR SC 1926 (a case under Section 138 Negotiable instruments Act), the Apex Court gave opportunity to the petitioner to produce the authorization of Board of Directors. It is observed that the in Raj Narian v. Indira Nehru Gandhi, (1972) 3 SCC 850 it was held that the rules of pleadings are intended as aids for a fair trial and for reaching a just decision. It is further pointed out that this principle is reiterated in following cases also:
F.A. Sapa v. Singora, (1991) 3 SCC 375;
H.D. Revanna v. G. Puttaswamy Gowda, (1999) 2 SCC 217;
V.S. Achuthanandan v. P.J. Francis, (1999) 3 SCC 737;
Mahendra Pal v. Ram Dass Malanger, (2000) 1 SCC 261;
Virender Nath Gautam v. Satpal Singh, (2007) 3 SCC 617; (observed that facta probanda (material facts) are to be set out in the pleadings and facta probantia (particulars or evidence) need not be set out in the pleadings);
(held that defective verification or affidavit is curable);
Harkirat Singh v. Amrinder Singh, (2005) 13 SCC 511;
Umesh Challiyil v. K.P. Rajendra, (2008) 11 SCC 740;
KK Ramachandran Master v. MV Sreyamakumar, (2010) 7 SCC 428
Courts to admit documents Without Proof
Section 163 of the Evidence Act, reads as under:
163. Giving, as evidence, of document called for and produced on notice: When a party calls for a document which he has given the other party notice to produce, and such document is produced and inspected by the party calling for its production, he is bound to give it as evidence if the party producing it requires him to do so.
It is observed in Government of Bengal v. Santiram Mondal, AIR 1930 Cal 370, with respect to a document used under Sec. 163, as under:
“The further contention is that if they are to be admitted, they cannot be put in or at any rate used without proof. But the section itself says that the party calling for it is bound to give it as evidence if required to do so, and that certainly means that it goes in as a record of the particular proceeding and that it can be looked at to see what it includes or omits.”
It is noteworthy that Order XI rule 15 and Order XII rule 8 are the provisions in the CPC to give notice to the other party to produce documents (for ‘inspection’ and ‘show court’, respectively). In Government of Bengal v. Santiram Mondal, AIR 1930 Cal 370, and R v. Makhan, AIR 1940 Cal 167 it was observed that Section 163 of the Evidence Act applies to Criminal Proceedings also.
Impounding of Documents – When Produced or When Exhibited
In Yogesh Kumar Sikka v. Monika (2019) the P & H High Court held as under:
“12. Court cannot say that it would impound the document only when the document is tendered in evidence for marking. There may be instances where duty and penalty payable may be very high and the party may not choose to rely upon such insufficiently stamped document in order to avoid stamp duty and penalty. In such circumstances, it would result in loss of revenue to the exchequer. The power of impounding a document is to collect stamp duty and penalty whenever there is an escape of duty. Therefore, when it is brought to the notice of the Court that a document is insufficiently stamped, the Court exercising its power under S. 33 of the Act has to pass an order at the first instance for impounding the document. Though there is a discretion vested in the Court to exercise powers under S. 33 and 34 of the Act, no Court can hold that it would wait till the document is tendered in evidence. In such circumstances, there may be chances of loss of revenue to the exchequer.”
UNREGISTERED DOCUMENTS – Effect of Marking Without Objection
Under section 49 of the Registration Act, if a document required to be registered is not registered, it is not admissible in evidence ; and such unregistered document can only be used as an evidence of collateral purpose.
With respect to Unregistered (Necessarily Registrable) Documents it is held by the Apex Court in K.B. Saha and Sons Private Limited v. Development Consultant Ltd, (2008) 8 SCC 564: AIR 2008 SC (Supp) 850, as under:
“34. From the principles laid down in the various decisions of this Court and the High Courts, as referred to here-in-above, it is evident that :
A document required to be registered is not admissible into evidence under section 49 of the Registration Act.
Such unregistered document can however be used as an evidence of collateral purpose as provided in the Proviso to section 49 of the Registration Act. ….”
In the light of the Supreme Court decision in K.B. Saha and Sons Private Limited , it appears that the observation of the Karnataka High Court in Nanda Behera v. Akhsaya Kumar Behera, 2017AIR (CC) 1893, that once the Court, rightly or wrongly, decides to admit the documents in evidence, so far as the parties are concerned, the matter is closed, is not applicable to unregistered (compulsorily registrable) documents.
However, the Calcutta High Court in Dipak Kumar Singh v. Park Street Properties (P) Limited, AIR 2014 Cal 167, distinguished K.B. Saha & Sons Private Limited, (2008) 8 SCC 564, and other decisions saying that ‘the question of admissibility of a document, which had been admitted in evidence, was not taken up for consideration’ in those decisions. The High Court relied on Javer Chand v. Pukhraj Surana, AIR 1961 SC 1655 (question as to admissibility on the ground that it has not been stamped), which held that once a document had been marked as an exhibit in a case and the trial had proceeded all along on the footing that the document was an exhibit in the case and had been used by the parties in examination and cross-examination of their witnesses, it was not open either to the trial court itself or to a court of appeal or revision to go behind that order.
The other decisions referred to and distinguished in Dipak Kumar Singh v. Park Street Properties (P) Limited are the following: Ram Kumar Das v. Jagdish Chandra Deo, Dhabal Deb: AIR 1952 SC 23, Satish Chand Makhan v. Govardhan Das Byas: (1984) 1 SCC 369, Anthony v. K.C. Ittoop: (2000) 6 SCC 394, Surya Kumar Manji v. Trilochan Nath: AIR 1955 Cal 495, Kunju Kesavan v. M.M. Philip: AIR 1964 SC 164, Prasanta Ghosh v. Pushkar Kumar Ash: 2006 (2) CHN 277.
INSUFFICIENTLY STAMPED DOCUMENTS
Instruments not duly stamped, inadmissible
Sec. 35, Indian Stamp Act reads as under:
“35. Instruments not duly stamped inadmissible in evidence, etc.–No instrument chargeable with duty shall be admitted in evidence for any purpose by any person having by law or consent of parties authority to receive evidence, or shall be acted upon, registered or authenticated by any such person or by any public officer, unless such instrument is duly stamped:
Provided that—(a) any such instrumentshall, be admitted in evidence on payment of the duty with which the same is chargeable, or, in the case of an instrument insufficiently stamped, of the amount required to make up such duty, together with a penalty of five rupees, or, when ten times the amount of the proper duty or deficient portion thereof exceeds five rupees, of a sum equal to ten times such duty or portion;
(b) where any person from whom a stamped receipt could have been demanded, has given an unstamped receipt and such receipt, if stamped, would be admissible in evidence against him, then such receipt shall be admitted in evidence against him, then such receipt shall be admitted in evidence against him on payment of a penalty of one rupee by the person tendering it;
(c) where a contract or agreement of any kind is effected by correspondence consisting of two or more letters and any one of the letters bears the proper stamp, the contract or agreement shall be deemed to be duly stamped;
(d) nothing herein contained shall prevent the admission of any instrument in evidence in any proceeding in a Criminal Court, other than a proceeding under Chapter XII or Chapter XXXVI of the Code of Criminal Procedure, 1898 (5 of 1898);
(e) nothing herein contained shall prevent the admission of any instrument in any Court when such instrument has been executed by or on behalf of theGovernment or where it bears the certificate of the Collector as provided by section 32 or any other provision of this Act.
Unstamped document cannot be looked at even for any collateral purpose
Privy Council in Ram Rattan v. Parma Nath,AIR 1946 PC 51, held that section 35 of the Stamp Act prohibited the unstamped (or inadequately stamped) document from being looked at even for any collateral purpose, as it enacts that no instrument chargeable with duty shall be admitted in evidence ‘for any purpose’. The unstamped (or inadequately stamped) document becomes admissible on payment of penalty under Stamp Act or on payment of the stamp duty after impounding.
In Omprakash v. Laxminarayan, (2014) 1 SCC 618, the Apex Court observed as under:
“From a plain reading of the aforesaid provision (S. 35 of the Stamp Act), it is evident that an authority to receive evidence shall not admit any instrument unless it is duly stamped. An instrument not duly stamped shall be admitted in evidence on payment of the duty with which the same is chargeable or in the case of an instrument insufficiently stamped, of the amount required to make up such duty together with penalty. As we have observed earlier, the deed of agreement having been insufficiently stamped, the same was inadmissible in evidence. The court being an authority to receive a document in evidence to give effect thereto, the agreement to sell with possession is an instrument which requires payment of the stamp duty applicable to a deed of conveyance. Duty as required, has not been paid and, hence, the trial court rightly held the same to be inadmissible in evidence.”
The Apex Court upheld the observation of the MP High Court in Writ Petition No. 6464 of 2008, overruling the impugned judgment (Laxminarayan v. Omprakash 2008 (2) MPLJ 416). The MP High Court had observed as under:
“To put the record straight, the correctness of the impugned judgment (Laxminarayan & Ors. v. Omprakash & Ors., 2008 (2) MPLJ 416) came up for consideration before a Division Bench of the High Court itself in Writ Petition No. 6464 of 2008 (Man Singh (deceased) through Legal Representatives Smt. Sumranbai & Ors. v. Rameshwar) and same has been overruled by judgment dated January 22, 2010. The High Court observed as follows:
“8. A document would be admissible on basis of the recitals made in the document and not on basis of the pleadings raised by the parties. In the matter of Laxminarayan (supra), the learned Single Judge with due respect to his authority we don’t think that he did look into the legal position but it appears that he was simply swayed away by the argument that as the defendant was denying the delivery of possession, the endorsement/recital in the document lost all its effect and efficacy.
9. It would be trite to say that if in a document certain recitals are made then the Court would decide the admissibility of the document on the strength of such recitals and not otherwise. In a given case, if there is an absolute unregistered sale deed and the parties say that the same is not required to be registered then we don’t think that the Court would be entitled to admit the document because simply the parties say so. The jurisdiction of the Court flows from Sections 33, 35 and 38 of the Indian Stamp Act and the Court has to decide the question of admissibility. With all humility at our command we over-rule the judgment in the matter of Laxminarayan (supra).”
We respectfully agree with the conclusion of the High Court (Writ Petition No. 6464 of 2008) in this regard.
In view of what we have observed above, the order of the High Court (Laxminarayan v. Omprakash 2008 (2) MPLJ 416) is unsustainable and cannot be allowed to stand.”
Unstamped or Insufficiently Stamped Pro-note
Unstamped or insufficiently stamped promissory note cannot be marked in evidence. The weight of authority is on the side that says it is incurable. Hence no secondary evidence can also be lead on the same. It cannot be used for collateral purpose also. But the creditor can prosecute a suit upon ‘original consideration’.
Section 36 of the Stamp Act – Once admitted shall 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 tosufficiency of stamp, be raised when document is tendered
The Apex Court held in Javer Chand v. Pukhraj Surana, AIR 1961 SC 1655, as under:
“Where a question as to the admissibility of a document is raised on the ground that it has not been stamped, or has not been properly stamped, it has to be decided then and there when the document is tendered in evidence. The Court has to judicially determine the matter as soon as the document is tendered in evidence and before it is marked as an exhibit in the case. … Once a document has been marked as an exhibit in the case and the trial has proceeded all along on the footing that the document was an exhibit in the case and has been used by the parties in examination and cross-examination of their witnesses, S. 36 of the Stamp Act comes into operation. Once a document has been admitted in evidence, as aforesaid, it is not open either to the Trial Court itself or to a Court of Appeal or revision to go behind that order. Such an order is not one of those judicial orders which are liable to be reviewed or revised by the same Court or a Court of superior jurisdiction.”
A document purporting to be an unregistered sale deed was marked as an Exhibit. The High Court directed that the aforesaid document should be de-marked and not be treated as an exhibit.
In Lothamasu Sambasiva Rao v. Thadwarthi Balakotiah, AIR 1973 AP 342, and several other decisions it had been held that Section 35 was only a bar to the admissibility of an unstamped or insufficiently stamped document; and that when it was admitted in evidence it cannot afterwards be withdrawn. See also:
Pankajakshan Nair v. Shylaja: ILR 2017-1 Ker 951;
Dundappa v. Subhash Bhimagouda Patil: 2017-3 AIR(Kar)(R) 570;
Savithramma R. C. v. Vijaya Bank; AIR 2015 Kar 175;
Jayalakshmamma v. Radhika: 2015 4 KarLJ 545;
K. Amarnath v. Smt. Puttamma: ILR 1999 Kar. 4634
Nanda Behera v. Akhsaya Kumar Behera, 2017AIR (CC) 1893
Latest view of the Supreme Court
It appears that the latest view of the Supreme Court is that given in Sirikonda Madhava Rao v. N. Hemalatha (SC), 12 April, 2022. Referring Javer Chand v. Pukhraj Surana, 1962-2 SCR 333; Shyamal Kumar Roy v. Sushil Kumar Agarwal, 2006-11 SCC 331, it is held as under:
“Once a document has been admitted in evidence, such admission cannot be called in question at any stage of the suit or proceedings on the ground that the instrument has not been duly stamped. Objection as to admissibility of a document on the ground of sufficiency of stamp, has to raised when the document is tendered in evidence. Thereafter, it is not open to the parties, or even the court, to reexamine the order or issue.”
Shall not Admit Unless Duly Stamped Vs. Once Admitted Immune from Challenge
Paradoxical and Incongruent Propositions – Remain yet to be solved
The following two forceful propositions stand paradoxical and incongruent.
There is a duty upon every Judge not to admit a document that is not duly stamped even if no objection to mark it.
The court should not exclude an insufficiently stamped (or unstamped) deed once marked without objection.
The Karnataka High Court held in Smt. Savithramma R.C v. M/s. Vijaya Bank, AIR 2015 Kar 175, as under:
“6. From the aforesaid statutory provisions and the decisions, it is clear that a duty is cast upon every judge to examine every document, which is produced or comes before him in the performance of his functions. On such examination, if it appears to the Judge that such instrument is not duly stamped, an obligation is cast upon him to impound the same. This duty is to be performed by the Judge irrespective of the fact whether any objection to its marking is raised or not. Hence, there is a need for diligence on the part of the Court having regard to the statutory obligation under Section 33 of the Karnataka Stamp Act. Section 34 of the Karnataka Stamp Act* mandates that an instrument, which is not duly stamped shall not be admitted in evidence. If any objection is taken to the admissibility of the evidence, it shall be decided then and there. If this document is found to be insufficiently stamped, then in terms of the proviso(a) to Section 34, the Court shall call upon the person, who is tendering the said document to pay duty and ten times penalty and thereafter admit the document in evidence. If duty and penalty is not paid, the document shall not be admitted in evidence.
*Corresponding to Sec. 35, Indian Stamp Act
If such an objection is not taken at the time of admitting the said instrument in evidence, and the insufficiently stamped document is admitted in evidence then Section 35** of the Act provides that such admission shall not be called in question at any stage of the same suit or proceedings on the ground that the instrument has not been duly stamped.
**Corresponding to Sec. 36, Indian Stamp Act
It has nothing to do with impounding the document. A duty is cast upon every judge to examine every document that is sought to be marked in evidence. The nomenclature of the document is not decisive. The question of admissibility will have to be decided by reading the document and deciding its nature and classification. Even while recording ex parte evidence or while recording evidence in the absence of the Counsel for the other side, the Court should be vigilant and examine and ascertain the nature of the document proposed to be marked and ensure that it is a document which is admissible. The Court should not depend on objections of the other Counsel before considering whether the document is admissible in evidence or not. Section 33 of the Stamp Act casts a duty on the Court to examine the document to find out whether it is duly stamped or not, irrespective of the fact whether an objection to its marking is raised or not.”
Should the court sit silent and question after marking unstamped document unopposed
Though Smt. Savithramma R.C v. M/s. Vijaya Bank, AIR 2015 Kar 175, clarified the position with great clarity, still, it is not definite whether the court should sit silent and mark the document if it is not opposed; and to raise its eye-brows after marking it unopposed. It is yet to be solved after considering all relevant aspects.
Referring Sec. 36 of the (Indian) Stamp Act, Karnataka High Court pointed out in Nanda Behera v. Akhsaya Kumar Behera, 2017AIR (CC) 1893, that once the Court, rightly or wrongly, decides to admit the documents in evidence, so far as the parties are concerned, the matter is closed. As stated earlier, this principle is followed in the following cases, with respect to insufficiently stamped document:
Court can Reject Irrelevant or Inadmissible 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, (besides the documents proved by its author, witness or a person acquainted with hand writing – Sec. 67 Evidence Act). Court can also receive documents proved through an expert and under presumption or circumstantial evidence.
No Objection to Marking; If Court sees Deficiency, it should bring notice of it to counsel
In T.C. Lakshamanan v. Vanaja, ILR 2011-3 (Ker) 228; 2011-3 KHC 86; 2011-3 KLT 347, it is pointed out as under:
“There was no case for the respondent that before marking Ext.A1 any objection was raised as to the admissibility of Ext.A1. Since the affidavit was filed in lieu of chief-examination, through which documents were sought to be received in evidence, before starting cross examination the trial court has to record that an affidavit has been filed in lieu of chief examination and that such and such documents have been marked. It is not to be done mechanically. The Court has to apply its mind while marking the documents to ensure that those documents have been properly admitted in evidence. Simply because the counsel appearing for the other side did not raise any objection the Court is not absolved of its duty to see whether the marking of the documents was done correctly and whether any inadmissible 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.”
Witness Admits Document – Can Court Refrain Marking, for no Formal Proof?
No.
Relevant and admissible documents have to be received in evidence ‘Subject to Proof’ or ‘Subject to Objection’.
Whenever a relevant and admissible document is tendered in evidence (seeking its marking, as an exhibit) the prudent Courts in India exhibit it ‘subject to proof’ or ‘subject to objection’, as it is the practice followed by Indian Courts.
The law also supports it. Sec. 136, Evidence Act is the relevant provision. It reads as under:
“S. 136. Judge to decide as to admissibility of evidence. When either party proposes to give evidence of any fact, the Judge may ask the party proposing to give the evidence in what manner the alleged fact, if proved, would be relevant; and the Judge shall admit the evidence if he thinks that the fact, if proved, would be relevant, and not otherwise.
If the fact proposed to be proved is one of which evidence is admissible only upon proof of some other fact, such last-mentioned fact must be proved before evidence is given of the fact first mentioned, unless the party undertakes to give proof of such fact, and the Court is satisfied with such undertaking.
If the relevancy of one alleged fact depends upon another alleged fact being first proved, the Judge may, in his discretion, either permit evidence of the first fact to be given before the second fact is proved, or require evidence to be given of the second fact before evidence is given of the first fact.”
In M. Siddiq v. Mahant Suresh Das, (Ayodhya Case), 2020-1 SCC 1, the practice of marking documents “subject to objection and proof” was referred to as under:
“539. On 7 February 2002, counsel for the plaintiffs in Suit 5 filed a report dated 3 February 2002 before the High Court of Dr. K V Ramesh, pertaining to the “Ayodhya Vishnu Hari temple inscription”. The documents were taken on record “subject to objection and proof” as required by the provisions of the Evidence Act 1872. During the course of the trial, the plaintiffs of Suit 5 claimed that the above inscription was recovered on 6/7 December 1992 from the debris of the disputed structure which was demolished. The inscription is in stone with a dimension of 115cm X 55cm. Under the orders of the Court, an e-stampage (paper no. 203 C- 1/1) was prepared and was deciphered by Dr. K V Ramesh (OPW-10) who is an epigraphist. The translation of the text was marked as Exhibit 2 in Suit 5. The case of the plaintiffs is that there was a Vishnu Hari temple at the site in dispute and it was on the demolition of the temple that a mosque was constructed in its place. In this segment, the inscription forms the fulcrum of the submission.”
In Uttaradi Mutt v. Raghavendra Swamy Mutt, 2018 0 AIR(SC) 4796; 2018-10 SCC 484,it is obserd as under:
“As regards this plea, we find that the High Court has made it amply clear that the fact that the applications are allowed per se is not to give any direction to straightaway exhibit the additional documents, but that it could be exhibited subject to proof. The High Court has unambiguously observed that the documents will have to be proved in accordance with law. We make it amply clear that by allowing the three applications filed by the respondent/defendant under Order XLI Rule 27 of CPC, it would not follow that the additional documents/additional evidence can be straightaway exhibited rather, the respondent would have to not only prove the existence, authenticity and genuineness of the said documents but also the contents thereof, as may be required by law.”
In Jarnail Singh v. State of Punjab, AIR 2022 SC 3350: 2022-10 SCC 451, acquitting the accused it is held as under:
“13. From the above statements of the Inspecting Team, they failed to firstly prove the recovery of the tickets to have been validly made. Secondly, they also failed to prove the enquiry report as only a photocopy was filed and objections to the same was recorded in the statement itself, that the same would be exhibited subject to proof of the existence of the documents in original and loss thereof. The prosecution did not make that effort to prove the existence of the original and loss thereof in order to take an order for leading secondary evidence.”
The practice of exhibiting documents ‘subject to proof and relevancy’ is also referred to in –
Ameer Minhaj v. Dierdre Elizabeth (Wright) Issar, 2018-7 SCC 639, and
State of Bihar v. P. P. Sharma, AIR 1991 SC 1260: 1992 Supp1 SCC 222.
Conclusion
It is not at all fair to say that if the court inadvertently marked a document or it failed to object marking, the document will stand good in favour of the party who tendered the document.
Documents to be utilised in court has to pass through three steps. They are:
Production of documents in court
Admittance and exhibition.
Proof.
Production and Admission in evidence
Codeof Civil Procedure, Order VII rule 14, Order VIII rule 8A and Order XIII rule 1 say as to ‘Production‘ of documents in court at various stages. At these stages the opposite party may not have a right to object. But the Court or even the office of the court (registry) can raise and note objection on the ground of insufficiency of stamp by virtue of the provisions of the Stamp Act concerned.
Order V rule 7 requires that the summons to the defendant to appear and answer shall order to produce all documents or copies thereof specified in rule 1A of Order VIII in his possession or power upon which he intends to rely in support of his case.
Order XIII rule 4 directs following endorsements on every document which has been admitted in evidence in the Suit:
(a) the number and title of the suit,
(b) the name of the person producing the document,
(c) the date on which it was produced, and
(d) a statement of its having been so admitted.
Code of Criminal Procedure, Section 173, deals with production of Police Report before the court, on completion of investigation. Sub section (5) of this section requires the police officer to forward to the Magistrate along with the report-
“(a) all documents or relevant extracts thereof on which the prosecution proposes to rely other than those already sent to the Magistrate during investigation;
(b) the statements- recorded under section 161 of all the persons whom the prosecution proposes to examine as its witnesses.”
Sec. 294 Cr PC deals with production of documents before court, and as to its proof.
“294. No formal proof of certain documents. (1) Where any document is filed before any Court by the prosecution or the accused, the particulars of every such document shall be included in a list and the prosecution or the accused, as the case may be, or the pleader for the prosecution or the accused, if any, shall be called upon to admit or deny the genuineness of each such document.
(2) The list of documents shall be in such form as may be prescribed by the State Government.
(3) Where the genuineness of any document is not disputed, such document may be read in evidence in any inquiry, trial or other proceeding under this Code without proof of the signature of the person to whom it purports to be signed:
Provided that the Court may, in its discretion, require such signature to be proved.”
Objection Regarding Admissibility of Documents – 2 counts
Disputes on admissibility of documents arise on 2 domains (See: Manakishore Lalbhai Vs. New Era Fabrics: AIR 2015 SC 3796). They are:
Document which is ab initio (or inherently) ‘inadmissible’;
Document liable to be objected on ‘mode or manner of proof’.
Even if an inherently-inadmissible document is marked, objections thereto can be raised ‘at a later stage’. Mode of proof (not inherent admissibility) falls within the realm of procedural law. Therefore, objection thereto can be waived.
Inherently-inadmissible documents
‘Inherent-inadmissibility of documents’ arises from the following:
Irrelevancy
Non-registration.
Section 5 of the Indian Evidence Act, 1872 deals with relevancy. It reads as under:
“5. Evidence may be given of facts in issue and relevant facts.—Evidence may be given in any suit or proceedings of the existence or non-existence of every fact in issue and of such other facts as are hereinafter declared to be relevant, and of no others.
Explanation.—This section shall not enable any person to give evidence of a fact which he is disentitled to prove by any provision of the law for the time being in force relating to Civil Procedure
Illustration s (a) A is tried for the murder of B by beating him with a club with the intention of causing his death. At A’s trial the following facts are in issue:— A’s beating B with the club; A’s causing B’s death by such beating; A’s intention to cause B’s death.
(b) A suitor does not bring with him, and have in readiness for production at the first hearing of the case, a bond on which he relies. This section does not enable him to produce the bond or prove its contents at a subsequent stage of the proceedings, otherwise than in accordance with the conditions prescribed by the Code of Civil Procedure.”
In Jainab Bibi Saheb v. Hyderally Saheb, (1920) 38 MLJ 532, it was pointed out that neither an omission by an advocate to object to giving of irrelevant and inadmissible evidence nor the failure of the tribunal to exclude it of its own motion would validate a decree based on material which the Evidence Act declares to be inherently and in substance irrelevant to the issue. It was also held in this decision that the primary rule to prove relevant facts by the evidence of witnesses is to call them before the trial Judge and examine them viva voce in the manner stated in Chapter 10 of the Evidence Act.
Admissibility of Documents Determined First; Then only, Genuineness, veracity, etc.
The question of proof comes for consideration only if the first two steps (Production and Admittance) are successfully covered. In Anvar P.V. v. P.K. Basheer, AIR 2015 SC 180: (2014)10 SCC 473, it is held by our Apex Court as under:
“Genuineness, veracity or reliability of the evidence is seen by the court only after the stage of relevancy and admissibility.”
Document liable to be Objected on ‘Mode or Manner of Proof’
Following are improper modes:
Seeking exhibition through one who cannot vouchsafe veracity.
Inadmissible mode of secondary evidence. Eg:
Certified copy produced without proving circumstances that entitles to give secondary evidence under Sec. 65 of the Evd. Act.
No secondary evidence other than that is recognised under Sec. 63 or 65 (e)/(f) can be validly tendered as secondary evidence.
Unstamped or insufficiently/improperly stamped document.
Objection to be Raised When document is admitted
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.
Admissibility, Reliability of Documents be Considered at Hearing
In K. Mallesh v. K. Narender, 2015-12 Scale 341; 2016-1 SCC 670 (Anil R. Dave, Adarsh Kumar Goel, JJ.) allowed an appeal setting aside the order passed in an interlocutory stage, during the pendency of a suit, holding as under:
“2. In our opinion the High Court should not have interfered at the stage when the trial was still in progress. Therefore, we set aside the impugned order passed by the High Court without going into the merits of the case. We say that the admissibility, reliabiity and registrability of the documents shall be considered independently only at the time of hearing of the trial and not prior thereto. All questions with regard to the aforesaid issues shall remain open.
Discovery of Documents under O. XI r. 12 CPC and Question of Inadmissibility
The decision, M. L. Sethi v. R. P. Kapur, AIR 1972 SC 2379, emphasises that it is not necessary for an applicant under Order XI rule 12 to specify in detail the documents sought to be discovered when they are in the hands of the other side; and that the claim of privilege can be considered only after discovery, when the stage of production is reached. It is also made clear that if the document is relevant for the purpose of throwing light on the matter in dispute, though it might not be admissible in evidence, it can be put to discovery under rule 12.
Document Marked in Proof Affidavit, Court Records it – Objection in Cross Exam. – Effect
Our Procedural Codes do not specifically speak about it. Several propositions are seen raised.
Court evaluates documents only in Final Hearing. Hence, court cannot ignore the objection of the opposite party raised in cross examination.
For no objection at the time of ‘recording it by court’, objection raised in cross examination stand belated.
If a document ‘liable to be objected on mode or manner of proof,’ is allowed to be marked, or no objection is raised at that ‘proper’ time, subsequent cross examination is of no use.
It goes without saying that the pedantic approach in the latter propositions will adorn only over-scrupulous judges.
Rules as to Notice to Produce Documents
Order XI rule 15 and Order XII rule 8 are the provisions in the CPC to give notice to the other party to produce documents (for ‘inspection’ and ‘show court’, respectively).
66. Rules as to notice to produce.—Secondary evidence of the contents of the documents referred to in section 65, clause (a) , shall not be given unless the party proposing to give such secondary evidence has previously given to the party in whose possession or power the document is, [or to his attorney or pleader,] such notice to produce it as is prescribed by law; and if no notice is prescribed by law, then such notice as the Court considers reasonable under the circumstances of the case.
Provided that such notice shall not be required in order to render secondary evidence admissible in any of the following cases, or in any other case in which the Court thinks fit to dispense with it:—
(1) when the document to be proved is itself a notice;
(2) when, from the nature of the case, the adverse party must know that he will be required to produce it;
(3) when it appears or is proved that the adverse party has obtained possession of the original by fraud or force;
(4) when the adverse party or his agent has the original in Court;
(5) when the adverse party or his agent has admitted the loss of the document;
(6) when the person in possession of the document is out of reach of, or not subject to, the process of the Court.
163. Giving, as evidence, of document called for and produced on notice: When a party calls for a document which he has given the other party notice to produce, and such document is produced and inspected by the party calling for its production, he is bound to give it as evidence if the party producing it requires him to do so.
It is observed in Government of Bengal v. Santiram Mondal, AIR 1930 Cal 370, with respect to a document used under Sec. 163, as under:
“The further contention is that if they are to be admitted, they cannot be put in or at any rate used without proof. But the section itself says that the party calling for it is bound to give it as evidence if required to do so, and that certainly means that it goes in as a record of the particular proceeding and that it can be looked at to see what it includes or omits.”
In Government of Bengal v. Santiram Mondal, AIR 1930 Cal 370, and R v. Makhan, AIR 1940 Cal 167 it was observed that Section 163 of the Evidence Act applies to Criminal Proceedings also.
Documents Marked by Consent – Does Oral Evidence Need to Prove Contents
There are three different views on this matter. They are-
1. There must be oral evidence. Even if consent is given for marking the documents, it will only absolve the parties from formally proving the documents and nothing beyond that. That is, though documents are marked by consent, they could not be relied on unless there is no oral evidence to prove their contents.
2. Document stands proved. When documents are marked by consent, there is no further need for a formal proof of the documents, it would amount to proof of whatever the documents contained.
3. If truth is in question it should be specifically proved by proper evidence. In most of the cases, the truth may not remain in question if the contents thereof are proved. But, in rare occasions, even if contents of documents are proved, truth thereof may remain (expressly or implicitly) in question or unrevealed.
Court’s Jurisdiction to Require to Prove an Admitted Document
Sec. 165 of Evidence Act gives wide powers to court to produce any document. Sec. 165 reads as under:
165. Judge’s power to put questions or order production.—The Judge may, in order to discover or to obtain proper proof of relevant facts, ask any question he pleases, in any form, at any time, of any witness, or of the parties, about any fact relevant or irrelevant; and may order the production of any document or thing; and neither the parties nor their agents shall be entitled to make any objection to any such question or order, nor, without the leave of the Court, to cross-examine any witness upon any answer given in reply to any such question:
Provided that the Judgment must be based upon facts declared by this Act to be relevant, and duly proved:
Provided also that this section shall not authorize any Judge to compel any witness to answer any question, or to produce any document which such witness would be entitled to refuse to answer or produce under sections 121 to 131, both inclusive, if the questions were asked or the documents were called for by the adverse party; nor shall the Judge ask any question which it would be improper for any other person to ask under section 148 or 149; nor shall he dispense with primary evidence of any document, except in the cases hereinbefore excepted.
Besides the powers of the court under Sec. 165 Evidence Act, the scheme of the Procedural Acts (Evidence Act, CPC and CrPC) shows that the courts have jurisdiction to require the party concerned to prove any document despite the admission of the opposite party and the provisions in the Evidence Act as to presumptions. (See: Proviso to Sec. 58 of Evidence Act, Order XII, Rule 2A Proviso of the CPC and Sec. 294 of the CrPC.)
Sec. 58 of Evidence Act reads as under:
58 Facts admitted need not be proved. —No fact need to be proved in any proceeding which the parties thereto or their agents agree to admit at the hearing, or which, before the hearing, they agree to admit by any writing under their hands, or which by any rule of pleading in force at the time they are deemed to have admitted by their pleadings:
Provided that the Court may, in its discretion, require the facts admitted to be proved otherwise than by such admissions.
Order XII, Rule 2A reads as under:
2A. Document to be deemed to be admitted if not divided after service of notice to admit documents. (1) Every document which a party is called upon to admit, if not denied specifically or by necessary implication, or stated to be not admitted in the pleading of that party or in his reply to the notice to admit documents, shall be deemed to be admitted except as against a person under a disability :
Provided that the Court may, in its discretion and for reasons to be recorded, require any document so admitted to be proved otherwise than by such admission.
(2) Where a party unreasonably neglects or refuses to admit a document after the service on him of the notice to admit documents, the Court may direct him to pay costs to the other party by way of compensation.
Proof of Certified Copies Permitted by S. 77;Correctness Presumed by S. 79
Sec. 77 of the Evidence Act permits to produce certified copies of public documents in proof of its contents. Sec. 77 reads as under:
“77. Proof of documents by production of certified copies- Such certified copies may be produced in proof of the contents of the public documents or parts of the public documents of which they purport to be copies.”
In Kalyan Singh v. Chhoti, AIR 1990 SC 396, our Apex Court did not act upon the ‘just an ordinary copy‘, for, there was “also no evidence regarding content of the original sale deed”. It reads as under:
“Section 63 of the Evidence Act mentions five kinds of secondary evidences. Clause (1), (2) and (3) refer to copies of documents; clause (4) refers to counterparts of documents and clause (5) refers to oral accounts of the contents of documents. Correctness of certified copies referred to in clause (1) is presumed under Section 79; but that of other copies must be proved by proper evidence. A certified copy of a registered sale deed may be produced as secondary evidence in the absence of the original. But in the present case Ex. 3 is not certified copy. It is just an ordinary copy. There is also no evidence regarding content of the original sale deed. Ex. 3 cannot, therefore, be considered as secondary evidence. The appellate Court has a right and duty to exclude such evidence.”
Referring relevant provisions of Himachal Land Revenue Act, 1954 and Sec. 35 of the Indian Evidence Act, 1872, it is held in Partap Singh v. Shiv Ram: AIR 2020 SC 1382, that Record-of-rights (Revenue document) carries the ‘presumption of correctness‘.
There is divergence of judicial opinion as to saying ‘NO’ by court to marking a document with formal defect, beforehand it is objected by the other side. Eg. Tendering copy of a document without furnishing the ‘foundational evidence’ to admit secondary evidence.
First view Court is under an obligation to exclude inadmissible materials.
H. Siddiqui v. A. Ramalingam: AIR 2011 SC 1492 (Followed in: U. Sree v. U. Srinivas: AIR 2013 SC 415.) Yeshoda v. Shoba Ram: AIR 2007 SC 1721
Second view The court cannot object first. If no objection for other side, Court cannot refrain from marking a document on its own volition or choice (on the ground of formal defect).
R.V.E. Venkatchalla Gounder v. Arulmighu Viswesaraswamy and V.P. Temple, (2003) 8 SCC 752 Smt. Dayamathi Bai v. K.M. Shaffi, AIR 2004 SC 4082. (This view is generally followed in India.)
First View: Court is under an Obligation to Exclude
S. 65, Evidence Act enumerates the instances where a party is entitled to furnish secondary evidence. It is a condition precedent to establish the circumstances laid down in S. 65, for letting in secondary evidence of a document. Pointing out the right and duty of the court to prevent rushing of inadmissible and irrelevant evidence, it is held in a good number of decisions that the court is under an obligation to exclude such materials, at the threshold. [See: Yeshoda Vs. Shoba Ram: AIR 2007 SC 1721; U. Sree Vs. U. Srinivas: AIR 2013 SC 415]
H. Siddiqui Vs. A. Ramalingam: AIR 2011 SC 1492 it is held as under:
“The court has an obligation to decide the question of admissibility of a document in secondary evidence before making endorsement thereon.”
Second view: If no objection (on Mode of Proof), Court has to mark
It is beyond doubt that marking of documents lie in the realm of procedural law. Therefore, a catena of decisions emphasize that it is a matter that falls for the opposite party to waive strict formal proof. That is, the court should not delve to object marking of a secondary evidence, if the opposite party has no objection. [See: RVE Venkatachala Gounder Vs. Arulmigu Viswesaraswami: AIR 2003 SC 4548; Narbada Devi Vs. Birendra Kumar: 2003-8 SCC 745; Dayamati Bai Vs. K.M. Shaffi :2004 SC 4082; Oriental Insurance Co Vs. Premlata: 2007-8 SCC 575] Karnataka High Court pointed out in Nanda Behera v. Akhsaya Kumar Behera, 2017AIR (CC) 1893, that once the Court, rightly or wrongly, decides to admit the documents in evidence, so far as the parties are concerned, the matter is closed. This principle is followed in the following cases, with respect to insufficiently stamped document:
Pankajakshan Nair v. Shylaja: ILR 2017-1 Ker 951;
Dundappa v. Subhash Bhimagouda Patil: 2017-3 AIR(Kar)(R) 570;
Savithramma R. C. v. Vijaya Bank; AIR 2015 Kar 175;
Jayalakshmamma v. Radhika: 2015 4 KarLJ 545;
K. Amarnath v. Smt. Puttamma: ILR 1999 Kar. 4634
In the light of the Supreme Court decision in K.B. Saha and Sons Private Limited (that a document required to be registered is not admissible in evidence under section 49 of the Registration Act; and such unregistered document can only be used as an evidence of collateral purpose), it appears that the observation of the Karnataka High Court in Nanda Behera v. Akhsaya Kumar Behera, 2017AIR (CC) 1893, that once the Court, rightly or wrongly, decides to admit the documents in evidence, so far as the parties are concerned, the matter is closed, is not applicable to unregistered (compulsorily registrable) documents.
Oral Evidence on contents of Documents – No Use, Unless Secondary Evidence Entitled
Sec. 22 and 144 of the Evidence Act postulate that the oral admissions or assertions as to contents of documents are not relevant, unless and until the party proposing to prove them shows that he is entitled to give secondary evidence of the contents of such document under Sec. 65, or unless the genuineness of a document produced is in question.
Sec. 22 emphasises that oral evidence as to contents of documents , even if adduced, will be of no use, as it will be ‘irrelevant’. By virtue of Sec. 144 of the Evidence Act, the adverse party may object to giving oral evidence as to contents of the same until such document itself is produced, or until facts have been proved which entitle the party who called the witness to give secondary evidence of it.
Sec. 22 of the Evidence Act reads as under:
22. When oral admissions as to contents of documents are relevant.—Oral admissions as to the contents of a document are not relevant, unless and until the party proposing to prove them shows that he is entitled to give secondary evidence of the contents of such document under the rules hereinafter contained, or unless the genuineness of a document produced is in question.
Sec. 144 of the Evidence Act reads as under:
144. Evidence as to matters in writing.—Any witness may be asked, whilst under examination, whether any contract, grant or other disposition of property, as to which he is giving evidence, was not contained in a document, and if he says that it was, or if he is about to make any statement as to the contents of any document, which, in the opinion of the Court, ought to be produced, the adverse party may object to such evidence being given until such document is produced, or until facts have been proved which entitle the party who called the witness to give secondary evidence of it.
Explanation.—A witness may give oral evidence of statements made by other persons about the contents of documents if such statements are in themselves relevant facts.
Illustration. The question is, whether A assaulted B. C deposes that he heard A say to D—”B wrote a letter accusing me of theft, and I will be revenged on him”. This statement is relevant as showing A’s motive for the assault, and evidence may be given of it, though no other evidence is given about the letter.
Sec. 59 of the Evidence Act lays down that contents of documents (or electronic records) are to be proved by oral evidence. Sec. 62 defines primary evidence to mean ‘the document itself’ produced for the inspection of the Court. Sec. 64 of the Act requires that that the documents to be proved primarily by ‘primary evidence’, except in cases where secondary evidence is provided under Sec. 65.
Sections 22, 59, 61, 62 and 64 of the Evidence Act project the ‘rule of best evidence’ and it directs that the contents of the document are to be proved by the original document itself, unless secondary evidence is provided under Sec. 65. (See: Bimla Rohal v. Usha, 2002-2 HLJ 745; 2002-2 Shim LC 341)
Sec. 91 and 92 provides that when terms of a contract, or of a grant, or of any other disposition of property, have been reduced to the form of a document, and in all cases in which any matter is required by law to be reduced to the form of a document, their terms alone are taken to be the sources of what the parties wished to state; and oral evidence to the contrary, are excluded. Both these provisions are based on “best evidence rule”. (Roop Kumar v. Mohan Thadani AIR 2003 SC. 2418: 2003-6 SCC 595; S. Saktivel v. M. Venugopal Pillai 2007-7 SCC 104; Mumbai International Airport v. Golden Chariot Airport, (2012) 10 SCC 422; Tulsi v. Chandrika Prasad, AIR 2006 SC 3359).
The Supreme Court held in Roop Kumar v. Mohan Thedani: AIR 2003 SC 2418, as under:
“The grounds of exclusion of extrinsic evidence are (i) to admit inferior evidence when law requires superior would amount to nullifying the law, (ii) when parties have deliberately put their agreement into writing, it is conclusively presumed, between themselves and their privies, that they intended the writing to form a full and final statement of their intentions, and one which should be placed beyond the reach of future controversy, bad faith and treacherous memory.”
However, oral evidence can be given on a matter (adoption) which is not required by law to be in writing and it is not barred for the mere reason it was contained in a document (Jahuri Sah v. Dwarka Prasad Jhunjhunwala, AIR 1967 SC 109).
In Perumal Chettiar VS Kamakshi Ammal, AIR 1938 Mad 785; ILR 1938 Mad 933, it is held as under:
“Section 22 of the Indian Evidence Act adopted the stricter view and relegated oral admissions as to the contents of a document to the category of ‘secondary evidence’. The result, in India, is that if by reason of the document being unstamped, no evidence of its contents whether primary or secondary is admissible, evidence of admissions by the defendant is equally inadmissible. The position may be different where admissions are made in the pleadings themselves (cf. Huddleston v, Briscoe (1805) 11 Ves. 583 : 32 E.R. 1215 and Thynne v. Protheroe (1814) 2 M. & S. 553 : 105 E.R. 488 because by reason of Section 58 of the Evidence Act, it may not be necessary to prove admitted facts and the objection under Section 91 will not arise unless the plaintiff is called upon to go into evidence. (Mallappa v. Mat an Naga Chetty (1918)35MLJ555 This was the position in Pramatha Nath Sandal v. Dwarka Nath Dey (1896) I.L.R. 23 Cal. 851; cf. however Chenbasappa v. Lakshman Ramchandra I.L.R.(1893) 18 Bom. 369 where it was suggested that in a suit on an unstamped promissory note, even an admission in the written statement may not avail the plaintiff, as the Court when giving a decree on such admission may be “acting on” the document within the meaning of Section 35 of the Stamp Act; see also Ankur Chunder Roy Chowdhry v. Madhub Chunder Gkose (1873) 21 W.R. 1.”
Words in the Instruments Matters; Not to the Presumed Intention
Brett L.J. in Re Meredith, ex parte Chick, (1879) 11 Ch D 731, observed as under:
“I am disposed to follow the rule of construction which was laid down by Lord Denman and Baron Parke ……. They said that in construing instruments you must have regard not to the presumed intention of the parties, but to the meaning of the words which they have used.” (Quoted in: Thomas v. AA Henry, 2008(2) KLT 63.)
Documents produced in court have to pass through two steps. They are:
Admission and exhibition (if relevant)
Proof (or truth of contents, veracity, reliability, etc.).
The question of proof comes for consideration only if the first step (admission and exhibition, as relevant) is successfully covered. In Anvar P.V. v. P.K. Basheer, AIR 2015 SC 180, our Apex Court held as under:
“Genuineness, veracity or reliability of the evidence is seen by the court only after the stage of relevancy and admissibility.”
Proof is of Two Types:
First, Formal Proof, or Proof as to existence of the document. The modes of proof of documents are governed under Sec. 64 to 73A of the Evd. Act.
Second, Substantive Proof or Proof as to truth. Besides the formal proof, in most cases (excepting a few cases where signature, hand-writing etc. alone are considered), the court acts upon a document, only when ‘truth’ of the contents of the document is established.
Proof as to truth is to be established-
(i) by oral evidence of one who can vouchsafe the same or
(ii) by circumstantial evidence or
(iii) by invoking ‘presumption’ or
(iv) by express admission by the other side.
Modes of Proof of Documents
Documents can be proved (both, ‘formal proof’ and ‘truth of the contents’) in the following ways:
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).
Public documents – Sec. 74 – 77.
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. Lands/ houses are known by ‘names’ and not by Sy. Number. See: Union Of India Vs. Virendra Bharti: 2011-2 ACC 886, 2010 ACJ 2353; Rakhal Chakraborty Vs. Sanjib Kumar Roy: 1998-1 GauLR 253, 1997-2 GauLT 705)
Internal evidence afforded by the contents of the document; a link in a chain of correspondence; recipient of the document. (Mobarik Ali Ahmed Vs. State of Bombay, AIR 1957 SC 857)
Proof documents required by law to be attested, when one attesting witness at least is available.
Will: section 63 of the Succession Act.
Mortgage deed: section 59 of the T P Act.
Gift deed: section 123 of the T P Act.
Bond: 2(5) of the Indian Stamp Act, 1899.
Admission Cannot be Proved by the Person who Makes them
According to Sec. 21 of the Evidence Act, an admission cannot be proved by, or on the behalf of, the person who makes them because a person will always naturally make statements that are favourable to him. Sec. 32, 33, 34 etc. of the Evidence Act lays down exceptions to this rule. However, for comparison of hand writings and signatures, ante litem motam documents would have probative force (G. Govindaraj v. Smt. Saroja Ramakrishnan, 2013 (4) MLJ 164).
Ante litem motam documents
The Supreme Court had said in Harihar Prasad Singh v. Must. of Munshi Nath Prasadand, AIR 1956 SC 305, that ante litem motam documents that extend over a considerable period of time, form cogent and strong evidence that the lands were private lands.
Presumption&Circumstantial Evidence
St. of West Bengal Vs. Mir Mohammad Omar (AIR 2000 SC 2988) it is held by our Apex Court as under:
“Presumption of fact is an inference as to the existence of one fact from the existence of some other facts, unless the truth of such inference is disproved. Presumption of fact is a rule in law of evidence that a fact otherwise doubtful may be inferred from certain other proved facts. When inferring the existence of a fact from other set of proved facts, the Court exercises a process of reasoning and reach a logical conclusion as the most probable position. The above principle has gained legislative recognition in India when Section 114 is incorporated in the Evidence Act. It empowers the Court to presume the existence of any fact which it thinks likely to have happened. In that process Court shall have regard to the common course of natural events, human conduct etc. in relation to the facts of the case.”
It is held as under in Mobarik Ali Ahmed Vs. State of Bombay (AIR 1957 SC 857) as under:
“The proof of the genuineness of a document is proof of the authorship of the document and is proof of a fact like that of any other fact. The evidence relating thereto may be direct or circumstantial. It may consist of direct evidence of a person who saw the document being written or the signature being affixed. It may be proof of the handwriting of the contents, or of the signature, by one of the modes provided in Ss. 45 and 47 of the Indian Evidence Act. It may also be proved by internal evidence afforded by the contents of the document. This last mode of proof by the contents may be of considerable value where the disputed document purports to be a link in a chain of correspondence, some links in which are proved to the satisfaction of the Court. In such a situation the person who is the recipient of the document, be it either a letter or a telegram, would be in a reasonably good position both with reference to his prior knowledge of the writing or the signature of the alleged sender limited though it may be, as also his knowledge of the subject-matter of the chain of correspondence, to speak to its authorship.”
If payment of price is disputed, Some Oral Evidence is needed for ‘proof’.
In Suresh CV v. Tobin, ILR 2013(1) Ker. 30, 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.
Proof must be by persons who can vouchsafe for the truth
“Reliance is heavily placed on behalf of the appellant on Ramji Dayawala Vs. Invest Import: AIR 1981 SC 2085.The legal position is not in dispute that mere production and marking of a document as exhibit by the court cannot be held to be a due proof of its contents. Its execution has to be proved by admissible evidence, that is, by the “evidence of those persons who can vouchsafe for the truth of the facts in issue”.
Is it necessary to file an application for ‘permission’ to lead secondary evidence
It is observed by the Bombay High Court (2017) in Shri. Karthik Gangadhar Bhat v. Smt. Nirmala Namdeo Wagh (indiankanoon) that the insistence on filing an application for ‘permission’ to lead secondary evidence is ‘simply wrong‘. The court referred to an earlier decision, Indian Overseas Bank v. Triokal Textile Industries, AIR 2007 Bom 24 where it was held that it was always open to the party to lead secondary evidence before the Trial Court recording evidence or hearing the matter ‘without having to file such an application’.
PRESUMPTIONunder Sec. 114, Evid. Act read with Sec. 35.
Sec. 35 Evd. Act speaks on ‘an entry in any public or other official book, register or record or an electronic record’. Sec. 35 Evd. Act speaks as to presumption.
Besides direct evidence, or admission, the contents of a document can also be proved by circumstantial evidence or by invoking presumption. ‘Common course of natural events’, ‘human conduct’ etc. under S. 114, can be used to prove the existence and genuineness/truth of a document.
Sec. 35 of the Evidence Act reads as under:
“35. Relevancy of entry in public record or an electronic record made in performance of duty: An entry in any public or other official book, register or record or an electronic record, stating a fact in issue or relevant fact, and made by a public servant in the discharge of his official duty, or by any other person in performance of a duty specially enjoined by the law of the country in which such book, register, or record or an electronic record is kept, is itself a relevant fact.
Illustration (e) of Sec. 114, Evd. Act, demonstrates that presumption as to ‘regularity’ can be invoked on Judicial and official acts, in proper cases, over and above ‘common course of natural events’, ‘human conduct’ etc. that are brought-forth under the body of S. 114. ‘Regularity’ in Illustration (e) is not exactly the presumption as to ‘correctness or truth’. For such presumption, we have to resort the main section, Sec. 114 – that is, ‘common course of natural events’, ‘human conduct’, etc..
Referring relevant provisions of Himachal Land Revenue Act, 1954 and Sec. 35 of the Indian Evidence Act, 1872, it is held by our Apex Court in Partap Singh v. Shiv Ram: AIR 2020 SC 1382, that Record-of-rights (Revenue document) carries the ‘presumption of correctness‘.
In Inder Singh v. S. Raghbir Singh, AIR 1978 P&H 98, it is observed as under:
“The principle is that an official record, kept by a person, upon whom there is a public duty to make entries in it only after satisfying himself of the truth of those entries, is presumed to be correct. Such a document itself is evidence of the truth of its contents unless and until its falsity can be demonstrated by any of the various methods by which the evidentiary value of any public book, register or document may be attacked.”
In Shiv Ram v. Shiv Charan Singh, AIR 1964 Raj 126, it is observed as under
“Where Sec. 35 properly comes into play, an entry made by a public servant in any public or official book in the discharge of his official duty becomes relevant by itself, and no other proof of such entry is required as a matter of law by our Evidence Act, but this, does not exclude the possibility that such an entry may become admissible otherwise if it is properly proved to have been made by a person ordinarily competent to make it.” (Quoted in Mayadhar Nayak vs Sub-Divisional Officer, Jajpur, AIR 1982 Ori 221).
In Durairaju v. Neela, 1976 CriLJ 1507, Ratnavel Pandian, J., it was held that it was the duty of the court, before making the order for maintenance, to find though in a summary manner, the paternity of the child. It was held that Ex. P. 1, the intimation received by the Municipality from the Government Hospital, and Ex. P. 2 a copy of the birth extract made on the basis of Ex, P. 1, were not sufficient to raise presumption of paternity for, the medical officer who made the entries in Ex. P. 1 had not been examined. The author of the information is not mentioned in Ex. P. 1. PW 2 herself had not stated that she mentioned to the doctor that the child was born to her through the petitioner. In the absence of such evidence, the document could not by itself prove the relevant entries made thereon. It was also observed that to prove a document under Section 35 it must be shown that the document was prepared by a public servant in discharge of his official duty or by any person in performance of a duty specially enjoined by the law.
Record of rights and the record of Permanent Settlement
Our Apex Court in Sukhdev Singh v. Maharaja Bahadur of Gidhaur, AIR 1951 SC 288, as under:
“This brief review of evidence is sufficient to show that appellant has not been able by clear and conclusive evidence to rebut the presumption arising from the Record of rights and the record of Permanent Settlement and he has failed to establish his claim”.
In Vallikunnil Janaki Amma v. Sree Amruthamangalam Kshethram Moorthi, Kozhikode, 2014 (1) KHC 57, Kerala High Court Court referring to the decision of the Apex Court in Sukhdev Singh v. Maharaja Bahadur of Gidhaur, AIR 1951 SC 288, held as under:
“Even though Ext. A2 is only an extract of the Settlement Register/ Adangal extract which may not by itself prove or confer title to a party in whose name the property stood registered, it can be accepted as evidence of title when there is no contra evidence. Admittedly it is adjacent to Amruthamangalam temple. The temple compound and this suit property which is adjacent to the temple are shown to be of Amruthamangalam Devaswom as per revenue record. In these circumstances, the contention that this property did not and does not belong to the temple/Devaswom cannot be sustained at all.” (Referred to in: Kunhimangalam Devaswam v. State of Kerala, 6 April, 2022, Anil K. Narendran, J.)
Revenue Settlement Registers of Travancore in 1910, Basic Record of Land matters
The Kerala High Court held in Mohandas v. Santhakumari Amma, 2018-3 KLT 606 as under:
“We notice that, a new survey and settlement was undertaken in the erstwhile Travancore State for the purpose of putting in place a sound Revenue administration. Accordingly, it appears that a complete survey and reassessment of the entire State ’embracing an accurate measurement, demarcation, mapping and valuation of properties of every description and a registration of titles, as the basis of a sound Revenue Administration’ was carried out. On the basis of such a statement a proclamation was issued by the Maharaja of Travancore on 14 th Kumbhom 1061 corresponding to 24th February 1886.”
If Settlement Register says Government Land, Petitioner to Establish Title
In Sahana Industries v. State of Kerala (2021 KHC OnLine 7110), Kerala High Court (Devan Ramachandran, J.) held (October 11, 2021) as under:
“… If the Settlement Register shows this land to be Government land, then certainly, the petitioner is obliged to establish their title over the property through competent documents”.
Presumption of Correctness Attached to a Registered Deed
In the split-verdict in Majumder v. Dipak Kumar Saha, 2023 SCC OnLine SC 37, BV Nagaratna, J., held as under:
“18. … The presumption of correctness attached to endorsement made by the Sub-Registrar is in view of the provisions of Sections 58, 59 and 60 of the Registration Act. This presumption can be rebutted only by strong evidence to the contrary.”
BV Nagaratna, J. referred the following decisions-
Ishwar Dass Jain v. Sohan Lal, (2000) 1 SCC 434 (a registered document is presumed to be valid).
Chottey Lal v. The Collector of Moradabad, AIR 1922 PC 279 (presumption of validity of a power of attorney which formed the basis of a registered deed; the sub-registrar being accepted the document for registration, it is prima-facie evidence that the conditions have been satisfied).
Jugraj Singh v. Jaswant Singh, 1970 (2) SCC 386 (presumption of regularity of official acts of sub-registrar).
Rattan Singh v. Nirmal Gill, AIR 2021 SC 899 (presumption of validity of a general power of attorney and consequently of the sale deed executed – especially of a 30-year old document).
Prem Singh v. Birbal , (2006) 5 SCC 353 (when such a presumption arises, the onus would be on a person who challenges such presumption, to successfully rebut it).
Production of PoA Not Essential for Proving Regd. Sale Deed Executed through PoA
In Manik Majumder v. Dipak Kumar Saha, AIR 2023 SC 506, the sale of property under consideration was made on behalf of the seller to the buyer through the power of attorney. The power of attorney was not produced before the Court. The High Court observed that the sale was not proved as the PoA was not produced. Refuting the observation of the High Court, BV Nagaratna, J., in the split-verdict, held as under:
“18. … However, a registered deed has to be proved in accordance with Section 67 of the Evidence Act, 1872. Section 67 states that if a document is alleged to be signed or to have been written wholly or in part by any person, the signature or the handwriting of so much of the document as is alleged to be in that person’s handwriting must be proved to be in his handwriting. Section 67 states that proof of signature and the genuineness of document proved by the proof of handwriting is proof of execution. Execution of a document means signing a document by consenting on it by a party. Section 67 does not prescribe any particular mode of proof. Mere registration of a document is not self-sufficient proof of its execution. It is only a prima facie proof of its execution particularly when no other evidence is available. Registration of a document is evidence of its execution by its executor. Certificate by registering officer under Section 60 of the Registration Act, 1908 is relevant for proving its execution. Proof by evidence afforded by the contents of the documents is of considerable value. In the instant case, what is sought to be proved is title by the sale deed and not the power of attorney as it is the sale deed which conveys title and the sale deed has been executed in accordance with the provisions of Registration Act, 1908, and proved in accordance with Section 67 of Evidence Act. It cannot be held that the sale made on behalf of the seller (original owner of the suit land) to the buyer through the power of attorney is vitiated as the power of attorney was not produced before the Court. This is because even in the absence of the production of the power of attorney, the contents of the sale deed and the execution of the power of attorney as well as the sale deed have been established by proving the sale deed in accordance with the law.”
163. Giving, as evidence, of document called for and produced on notice: When a party calls for a document which he has given the other party notice to produce, and such document is produced and inspected by the party calling for its production, he is bound to give it as evidence if the party producing it requires him to do so.
It is observed in Government of Bengal v. Santiram Mondal, AIR 1930 Cal 370, with respect to a document used under Sec. 163, as under:
“The further contention is that if they are to be admitted, they cannot be put in or at any rate used without proof. But the section itself says that the party calling for it is bound to give it as evidence if required to do so, and that certainly means that it goes in as a record of the particular proceeding and that it can be looked at to see what it includes or omits.”
It is noteworthy that Order XI rule 15 and Order XII rule 8 are the provisions in the CPC to give notice to the other party to produce documents (for ‘inspection’ and ‘show court’, respectively). In Government of Bengal v. Santiram Mondal, AIR 1930 Cal 370, and R v. Makhan, AIR 1940 Cal 167 it was observed that Section 163 of the Evidence Act applies to Criminal Proceedings also.
Oral Evidence on contents of Documents – No Use, Unless Secondary Evidence Entitled
Sec. 22, 22A and 144 of the Evidence Act postulate that the oral admissions or assertions as to contents of documents are not relevant, unless and until the party proposing to prove them shows that he is entitled to give secondary evidence of the contents of such document under Sec. 65, or unless the genuineness of a document produced is in question.
Sec. 22 emphasises that oral evidence as to contents of documents , even if adduced, will be of no use, as it will be ‘irrelevant’. By virtue of Sec. 144 of the Evidence Act, the adverse party may object to giving oral evidence as to contents of the same until such document itself is produced, or until facts have been proved which entitle the party who called the witness to give secondary evidence of it.
Sec. 22 and 22A 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.
22A.When oral admissions as to contents of electronic records are relevant: Oral admissions as to the contents of electronic records are not relevant, unless the genuineness of the electronic record produced is in question.
Sec. 144 of the Evidence Act reads as under:
144. Evidence as to matters in writing.—Any witness may be asked, whilst under examination, whether any contract, grant or other disposition of property, as to which he is giving evidence, was not contained in a document, and if he says that it was, or if he is about to make any statement as to the contents of any document, which, in the opinion of the Court, ought to be produced, the adverse party may object to such evidence being given until such document is produced, or until facts have been proved which entitle the party who called the witness to give secondary evidence of it.
Explanation.—A witness may give oral evidence of statements made by other persons about the contents of documents if such statements are in themselves relevant facts.
Illustration. The question is, whether A assaulted B. C deposes that he heard A say to D—”B wrote a letter accusing me of theft, and I will be revenged on him”. This statement is relevant as showing A’s motive for the assault, and evidence may be given of it, though no other evidence is given about the letter.
Sec. 59 of the Evidence Act lays down that contents of documents (or electronic records) are to be proved by oral evidence. Sec. 62 defines primary evidence to mean ‘the document itself’ produced for the inspection of the Court. Sec. 64 of the Act requires that that the documents to be proved primarily by ‘primary evidence’, except in cases where secondary evidence is provided under Sec. 65.
Sections 22, 59, 61, 62 and 64 of the Evidence Act project the ‘rule of best evidence’ and it directs that the contents of the document are to be proved by the original document itself, unless secondary evidence is provided under Sec. 65. (See: Bimla Rohal v. Usha, 2002-2 HLJ 745; 2002-2 Shim LC 341)
Sec. 91 and 92 provides that when terms of a contract, or of a grant, or of any other disposition of property, have been reduced to the form of a document, and in all cases in which any matter is required by law to be reduced to the form of a document, their terms alone are taken to be the sources of what the parties wished to state; and oral evidence to the contrary, are excluded. Both these provisions are based on “best evidence rule”. (Roop Kumar v. Mohan Thadani AIR 2003 SC. 2418: 2003-6 SCC 595; S. Saktivel v. M. Venugopal Pillai 2007-7 SCC 104; Mumbai International Airport v. Golden Chariot Airport, (2012) 10 SCC 422; Tulsi v. Chandrika Prasad, AIR 2006 SC 3359).
The Supreme Court held in Roop Kumar v. Mohan Thedani: AIR 2003 SC 2418, as under:
“The grounds of exclusion of extrinsic evidence are (i) to admit inferior evidence when law requires superior would amount to nullifying the law, (ii) when parties have deliberately put their agreement into writing, it is conclusively presumed, between themselves and their privies, that they intended the writing to form a full and final statement of their intentions, and one which should be placed beyond the reach of future controversy, bad faith and treacherous memory.”
However, oral evidence can be given on a matter (adoption) which is not required by law to be in writing and it is not barred for the mere reason it was contained in a document (Taburi Sahai v. Jhunjhunwala, AIR 1967 SC 106).
Admission of Contents of Document in Pleadings
In Perumal Chettiar VS Kamakshi Ammal, AIR 1938 Mad 785; ILR 1938 Mad 933, it is held as under:
“Section 22 of the Indian Evidence Act adopted the stricter view and relegated oral admissions as to the contents of a document to the category of ‘secondary evidence’. The result, in India, is that if by reason of the document being unstamped, no evidence of its contents whether primary or secondary is admissible, evidence of admissions by the defendant is equally inadmissible. The position may be different where admissions are made in the pleadings themselves (cf. Huddleston v, Briscoe (1805) 11 Ves. 583 : 32 E.R. 1215 and Thynne v. Protheroe (1814) 2 M. & S. 553 : 105 E.R. 488 because by reason of Section 58 of the Evidence Act, it may not be necessary to prove admitted facts and the objection under Section 91 will not arise unless the plaintiff is called upon to go into evidence. (Mallappa v. Mat an Naga Chetty (1918)35MLJ555 This was the position in Pramatha Nath Sandal v. Dwarka Nath Dey (1896) I.L.R. 23 Cal. 851; cf. however Chenbasappa v. Lakshman Ramchandra I.L.R.(1893) 18 Bom. 369 where it was suggested that in a suit on an unstamped promissory note, even an admission in the written statement may not avail the plaintiff, as the Court when giving a decree on such admission may be “acting on” the document within the meaning of Section 35 of the Stamp Act; see also Ankur Chunder Roy Chowdhry v. Madhub Chunder Gkose (1873) 21 W.R. 1.”
Specific Presumptions in Evidence Act, as to Electronic Records
Sec. 81A. Presumption as to Gazettes in electronic forms
Sec. 85A. Presumption as to electronic agreements
Sec. 85B. Presumption as to electronic records and electronic signatures
Sec. 85C.Presumption as to Electronic Signature Certificates
Sec. 88A. Presumption as to electronic messages
81A. Presumption as to Gazettes in electronic forms
The Court shall presume the genuineness of every electronic record purporting to be the Official Gazette or purporting to be electronic record directed by any law to be kept by any person, if such electronic record is kept substantially in the form required by law and is produced from proper custody
85A Presumption as to electronic agreements
The Court shall presume that every electronic record purporting to be an agreement containing the electronic signature of the parties was so concluded by affixing the electronic signature of the parties.
85B Presumption as to electronic records and electronic signatures
(1) In any proceedings involving a secure electronic record, the Court shall presume unless contrary is proved, that the secure electronic record has not been altered since the specific point of time to which the secure status relates.
(2) In any proceedings, involving secure electronic signature, the Court shall presume unless the contrary is proved that—
(a) the secure electronic signature is affixed by subscriber with the intention of signing or approving the electronic record;
(b) except in the case of a secure electronic record or a secure electronic signature, nothing in this section shall create any presumption, relating to authenticity and integrity of the electronic record or any electronic signature.
85C Presumption as to Electronic Signature Certificates
The Court shall presume, unless contrary is proved, that the information listed in a Electronic Signature Certificate is correct, except for information specified as subscriber information which has not been verified, if the certificate was accepted by the subscriber.
88A. Presumption as to electronic messages
The Court may presume that an electronic message, forwarded by the originator through an electronic mail server to the addressee to whom the message purports to be addressed corresponds with the message as fed into his computer for transmission; but the Court shall not make any presumption as to the person by whom such message was sent.
“Explanation: For the purposes of this section, the expressions “addressee” and “originator” shall have the same meanings respectively assigned to them in clauses (b) and (za) of sub-section (1) of section 2 of the Information Technology Act, 2000.
Admission by itself cannot confer title
In Ram Chandra Sakharam Mahajan Vs. Damodar Trimbak, AIR 2007 SC 2577, our Apex Court made the following forceful propositions:
In a recovery on title suit, the burden is on the plaintiff to establish title.
Court is also entitled to consider the rival title set up by the defendants.
Weakness of defence to establish title, would not enable plaintiff to a decree.
The Supreme Court held in Ram Chandra Sakharam Mahajan Vs. Damodar Trimbak, AIR 2007 SC 2577 as under:
“The suit is for recovery of possession on the strength of title. Obviously, the burden is on the plaintiff to establish that title. No doubt in appreciating the case of title set up by the plaintiff, the Court is also entitled to consider the rival title set up by the defendants. But the weakness of the defence or the failure of the defendants to establish the title set up by them, would not enable the plaintiff to a decree. There cannot be any demur to these propositions.”
“14. We find that the trial Court and the appellate Court were not justified in refusing the amendment of the plaint sought for by the plaintiff. No doubt there had been delay in seeking amendment but that delay could have been compensated by awarding costs to the contesting defendants 1 to 9. Therefore, we are satisfied that the amendment sought for by the plaintiff ought to have been allowed. We are inclined to allow the amendment sought for, since it would enable the Court to pin-pointedly consider the real dispute between the parties and would enable it to render a decision more satisfactorily to its conscience. We, therefore, allow the amendment as sought for by the plaintiff at a belated stage. The amendment will be carried out by the plaintiff in the trial Court within three months from this date as per the practice followed in the trial Court. Obviously defendants 1 to 9 would have an opportunity to file an additional written statement to the amended plaint. They will be entitled to file an additional written statement within a period of four months from the date of this judgment.”
End Notes
1. Proof is of Two Types:
First, Formal Proof, or Proof as to existence of the document. The modes of proof of documents are governed under Sec. 64 to 73A of the Evd. Act.
Second, Substantive Proof or Proof as to truth. Besides the formal proof, in most cases (excepting a few cases where signature, hand-writing etc. alone are considered), the court acts upon a document, only when ‘truth’ of the contents of the document is established.
2.Modes of Proof of Documents
Documents can be proved (both, ‘formal proof’ and ‘truth of the contents’) in the following ways:
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).
Public documents – Sec. 74 – 77.
Invoking (specific) presumptions under Sec. 79 to 90A.
Presumptions (general) under Sec. 114.
Circumstantial evidence: on probability or inferences (Sec. 114).
Court-comparison (Sec. 73).
Facts judicially noticeable (Sec. 56 and 57).
A fact of common-knowledge. (It does not require proof. See: Union Of India Vs. Virendra Bharti: 2011-2 ACC 886, 2010 ACJ 2353; Rakhal Chakraborty Vs. Sanjib Kumar Roy: 1998-1 GauLR 253, 1997-2 GauLT 705)
Internal evidence afforded by the contents of the document; a link in a chain of correspondence; recipient of the document. (Mobarik Ali Ahmed Vs. State of Bombay, AIR 1957 SC 857)
3. Proof as to truth is to be established-
(i) by oral evidence of one who can vouchsafe the same or
On a broad classification, ‘evidence’ can be classified into following categories, according to Sec. 3 (definitions) and 45 of the Evidence Act.
1. oral evidence
2. documentary evidence including electronic records
3. Opinions of experts including views of persons specially skilled in foreign law, science or art, or in questions as to identify of handwriting or finger-impressions. It may also be termed as scientific evidence.
Expert Evidence is only Corroborative
In case of a conflict between oral evidence or scientific evidence, which will prevail? The answer is that it depends upon the nature of the subject matter. In everyday practice we see that trustworthy and credible oral evidence get primacy status over the scientific evidence. It is on the principle that the scientific evidence is always an ‘opinion’ or ‘possibility’ only. By the advent of scientific techniques in the field of judicial investigation and enquiry, our judicial process began to assign due importance to scientific evidence. Still, the oral evidence has primacy over the scientific evidence.
It is important that Section 45 of the Evidence Act does not say anything as to the weight to be attached to the expert evidence. This Section only says that expert’s evidence is admissible. The expert-evidence is not substantive evidence; and it is generally used as a piece of evidence for corroboration or conflict with oral evidence. The evidence of an expert only aids and helps the Court as advisory material. The expert being not a witness of fact, his opinion is to be analysed objectively by the court. The decision making process is never delegated to the expert; the expert only helps and assists the Court to decide. Courts always give due importance to the opinion of the experts. But, it will not substitute proof. Court is said to be the expert of experts.
In Solanki Chimanbhai Ukabhai v. State of Gujarat, (1983) 2 SCC 174, it was held that the evidence of eyewitnesses should be preferred unless the medical evidence completely rules it out. It was held as under:
“13. Ordinarily, the value of medical evidence is only corroborative. It proves that the injuries could have been caused in the manner alleged and nothing more. The use which the defence can make of the medical evidence is to prove that the injuries could not possibly have been caused in the manner alleged and thereby discredit the eyewitnesses. Unless, however the medical evidence in its turn goes so far that it completely rules out all possibilities whatsoever of injuries taking place in the manner alleged by eyewitnesses, the testimony of the eyewitnesses cannot be thrown out on the ground of alleged inconsistency between it and the medical evidence.”
In State of Haryana v. Bhagirath, (1999) 5 SCC 96, the Supreme Court held as under:
“15. The opinion given by a medical witness need not be the last word on the subject. Such opinion shall be tested by the court. If the opinion is bereft of logic or objectivity, the court is not obliged to go by that opinion. After all opinion is what is formed in the mind of a person regarding a fact situation. If one doctor forms one opinion and another doctor forms a different opinion on the same facts it is open to the Judge to adopt the view which is more objective or probable. Similarly if the opinion given by one doctor is not consistent with probability the court has no liability to go by that opinion merely because it is said by the doctor. Of course, due weight must be given to opinions given by persons who are experts in the particular subject.”
The blood group on the dress of the accused and the dress of the deceased matched. It corroborates the prosecution story. However that by itself is not conclusive proof of the culpability of the accused (Binder Munda v. State, 1992 Cr.L.J. 3508 Ori. (DB).
In Surinder Singh v. State of Punjab, 1989 SCC (Cri) 649, it is observed that it would not be helpful to the prosecution if it was not shown that the blood-stains on the weapon recovered from the possession of the accused were of the same group as the blood of the deceased. (See also: Kansa Behera. v. State of Orissa. AIR 1987 SC 1507).
In State of U.P. v. Krishna Gopal, AIR 1988 SC 2154, the eye-witnesses were found credible and trustworthy. Therefore, the medical opinion pointing to alternative possibilities was not accepted as conclusive. The Apex Court pointed out that witnesses, as Bantham said, were the eyes and ears of justice. Hence the importance and primacy of the orality of the trial process. Eyewitnesses’ account would require a careful independent assessment and evaluation for their credibility, which should not be adversely prejudged making any other evidence, including medical evidence as the sole touchstone for the test of such credibility. The evidence must be tested for its inherent consistency and the inherent improbabilities.
Decision which changed the concept of law on ‘conclusive presumption’
Nandlal Wasudeo Badwaik Vs. Lata Nandlal Badwaik, AIR 2014 SC 932, is a very important decision which changed the concept of law on ‘conclusive presumption’ on Sec. 112 which reads as under:
“112. Birth during marriage, conclusive proof of legitimacy. The fact that any person was born during the continuance of a valid marriage between his mother and any man, or within two hundred and eighty days after its dissolution, the mother remaining unmarried, shall be conclusive proof that he is the legitimate son of that man, unless it can be shown that the parties to the marriage had no access to each other at any time when he could have been begotten.”
It is held in Nandlal Wasudeo Badwaik case as under:
“17. We may remember that Section 112 of the Evidence Act was enacted at a time when the modern scientific advancement and DNA test were not even in contemplation of the Legislature. The result of DNA test is said to be scientifically accurate. Although Section 112 raises a presumption of conclusive proof on satisfaction of the conditions enumerated therein but the same is rebuttable. The presumption may afford legitimate means of arriving at an affirmative legal conclusion. While the truth or fact is known, in our opinion, there is no need or room for any presumption. Where there is evidence to the contrary, the presumption is rebuttable and must yield to proof. Interest of justice is best served by ascertaining the truth and the court should be furnished with the best available science and may not be left to bank upon presumptions, unless science has no answer to the facts in issue. In our opinion, when there is a conflict between a conclusive proof envisaged under law and a proof based on scientific advancement accepted by the world community to be correct, the latter must prevail over the former.”
Appreciation of Evidence of Experts In practice, the investigating agencies and courts give very high importance to wound-certificates and post-mortem certificates. They are considered as an indispensable part in most criminal cases. Same is the case of evidence of Ballistic expert. Here also primacy is given to ocular evidence if it is found credible by the court, especially when the ocular evidence is supported by the wound certificate or post-motem report.
Post-Mortem Report is not a Substantive Evidence
Post-mortem Report or Wound Certificate is not a substantive evidence [Mohan Singh v. Emperor, AIR 1925 All. 413 (DB); State v. Rakshpal Singh, AIR 1953 All. 520; Ram Pratap v. State, 1967 All.W.R. (H.C.) 395; Ram Balak Singh v. State, AIR 1964 Pat. 62(DB); Mellor v. Walnesley, 1905, 2Ch. 164 (CA);Hadi Kisani v. State, AIR 1966 Orissa 21; Gofur Sheikh v. State, 1984 Cr.L.J. 559 (Cal); Bhanda Gorh v. State of Assam, 1984 Cr.L.J.217 (Gau); Jagdeo Singh v. State, 1979 Cr.L.J.236 (All); K. Pratap Reddy v. State of A.P., 1985 Cr.L.J.1446].
In Vadugu Chanti Babu v. State of A.P. (2002) 6 SCC 547 it is observed that a stray statement of the doctor in cross-examination will not be a conclusive opinion; but it is only a possibility. In a maintenance dispute under Sec. 125 Cr PC our Apex Court, in Saygo Bai Vs. Chueeru Bajrangi, AIR 2011 SC 1557, observed that the Court must read whole evidence and that one stray admission cannot be read in isolation with the other evidence.
Appreciation of Evidenceis Both an Art and a Science
R. Basant, J., in Basheer Vs. Mahasakthi Enterprises – 2005-3 Ker LT 163: 2005-1 Mad LJ 965, held as under:
“The appreciation of evidence is both an art and a science. All relevant inputs have to be taken into consideration for the Court to answer a disputed question of fact. Each circumstance including the opinion tendered by an expert must be taken into consideration. All the relevant inputs must be placed in the crucible. But the result of such appreciation must stem from prudence, reasonableness and intelligence of the Court. The knowledge of men and matters of the Court would be crucial. The knowledge of the court of common course of events and natural and probable behaviour of human beings will be vital. The yardsticks of a reasonably prudent mind have to be accepted. All relevant circumstances must go into the decision making. When the evidence is sifted, weighed, tested, analysed and evaluated, no one piece of evidence can be said to overrule the others unless such evidence be clinching, convincing and beyond doubt.”
Document must be Relevant and Admissible – A document, exhibited in court for placing its ‘contents’ for judicial consideration, must be relevant and admissible.
Relevancy of Documents – Sec. 5 and 136 of the Evidence Act stipulate that evidence can be given only on ‘facts in issue’ or ‘relevant facts’. Relevant facts are enumerated in Sec. 6 onwards.
Admissibility of Documents – Generally speaking, all relevant documents are admissible. But, various provisions of the Evidence Act, Civil and Criminal Procedure Codes, Stamp Act, Registration Act etc. stipulate various formalities or regulations for tendering documents in evidence. ‘Relevancy’ is a matter of judicial application of the mind by the court. But, ‘admissibility’ is governed solely by the legal principles.
Substantive Evidence and Corroborative Evidence or evidence for refreshing memory) – Substantive evidence is the evidence that can be independently looked into and relied upon by the Court, contra distinct to corroborative evidence (Sec. 157, Evid. Act) and the evidence for refreshing memory of witness (Sec. 159, Evid. Act) .
Probative Value of Documents – Even when a relevant and admissible evidence (document) is admitted in court, the probative value thereof (when the evidence is evaluated for judicial resolution) will be a matter for the court to determine (E.g. School Admission Register has more probative value than the horoscope).
Admissibility, one thing; and Probative Value, quite another
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.”
If there is a dispute regarding age, the Supreme Court, in State of Punjab Vs. Mohinder Singh, AIR 2005 SC 1868, held that the date of birth available in the School Admission Register has more probative value than the horoscope. The probative value of FIR, Scene-Mahazar, Post-Mortem Report, photocopy of a Registered Deed etc., by itself, will be lesser. In such cases the court can refrain from acting upon such documents until substantive or regular evidence is offered, by examining the proper witness.
In Om Prakash Vs. State of Punjab, 1993(2) CLR 395, and Jora Singh Vs. State of Punjab, 1984(2) Crimes 837, it has been held that an entry in the school leaving certificate regarding date of birth of a student is not a conclusive proof or high ‘probityevidence’ because it is a matter of common knowledge that the date of birth given at the time of the admission of a boy or girl in a school is seldom correct and more often than not the age given is less than the actual age of the child. (See also: C. Doddanarayana Reddy Vs. C. Jayarama Reddy: AIR 2020 SC 1912; Commissioner of Central Excise And Service Tax v. M/S. Sanjivani Non-Ferrous Trading: AIR 2019 SC 203.)
Test Identification Parade Provides Corroboration
It is well settled that substantive evidence of the witness is his evidence in the court, but when the accused person is not previously known to the witness identification of the accused by the witness soon after his arrest is of great importance because it furnishes an assurance that the investigation is proceeding on right lines in addition to furnishing corroboration of the evidence to be given by the witness later in court at the trial. (See: Suresh Chandra Bahri v. State of Bihar : 1995 Supp (1) SCC 80; Referred to in: Malkhansingh v. State of MP, 2003-5 SCC 746)
In Ramanbhai Naranbhai Patel v. State of Gujarat, (2000) 1 SCC 358, it is observed that it cannot be held that in the absence of a test identification parade, the evidence of an eyewitness identifying the accused would become inadmissible or totally useless ; whether the evidence deserves any credence or not would always depend on the facts and circumstances of each case. It is also pointed out in Malkhansingh v. State of MP that in appropriate cases the court can accept the evidence of identification even without insisting on corroboration. See:
Kanta Prashad vs. Delhi Administration: AIR 1958 SC 350;
Vaikuntam Chandrappa v. State of AP: AIR 1960 SC 1340 ;
Budhsen v. State of UP: AIR 1970 SC 1321
Rameshwar Singh v. State of J and K: (1971) 2 SCC 715;
Harbajan Singh v. State of J and K: (1975) 4 SCC 480).
It is held in State of Uttar Pradesh v. Boota Singh (1979) 1 SCC 31 that the evidence of identification (before court) becomes stronger if the witness has an opportunity of seeing the accused not for a few minutes but for some length of time. This principle is followed in Malkhansingh v. State of MP, 2003-5 SCC 746, where the accused committed gang rape and criminally intimidated a tribal woman, who was posted as Assistant Teacher in the Primary Government School.
It is interesting to note that our Apex Court upheld the conviction, in Ram Nath Mahto v. State of Bihar, (1996) 8 SCC 630, even when the witness while deposing in Court did not identify the accused out of fear, though he had identified him in the test identification parade. In this case the Court relied upon the evidence of the Magistrate, who had conducted the test identification parade (Referred to in: Malkhansingh v. State of MP, 2003-5 SCC 746).
Substantive Evidence and Evidence for Corroboration & for Refreshing Memory.
A Post-Mortem Report (Ganpat Raoji Suryavanshi v. State of Maharashtra, 1980 Cr. L.J. 853), Wound Certificate or Commission Report in a former case is not a substantive evidence . Doctor or Commissioner can refresh memory (Sec. 159, Evid. Act) with reference to the document. Similarly, mere marking of a Scene Mahazar, without examining the Investigating Officer who prepared it, will not render substantive aid to the prosecution case.
In Rameshwar Dayal v. State of U.P., AIR 1978 SC 1558, referring to Inquest Report, Site Plans etc., it is held by the Supreme Court, as follows:
“That part of such documents which is based on the actual observation of the witness at the spot being direct evidence in the case is clearly admissible under Section 60 of the Evidence Act whereas the other part which is based on information given to the Investigating Officer or on the statement recorded by him in the course of investigation is inadmissible under Section 162 CrPC except for the limited purpose mentioned in that section.”
[See also: Munshi Prasad Vs. State of Bihar,(2002) 1SCC 351; State of Haryana v. Ram Singh, (2002) 2SCC 426; Vijay Paul v. State of Delhi: 2015 SC 1495; Mohanan v. State of Kerala: 2011(4) KLT 59.]
A ‘Certificate’ or ‘Expert Opinion’ is NOT Per Se Admissible
A certificate, in most cases, is an opinion, and prepared on the basis of other documents or evidences. In such cases, when it is an assumption or inference, it by itself, is not admissible, as it will only be, at the most, a secondary evidence. A Wound Certificate is not a substantive evidence. It has to be proved by a competent witness. Unless presumption can be invoked under Clause (e) of Sec. 114 Evidence Act (that judicial and official acts have been regularly performed), no certificate can be taken as proved unless its contents are proved in a formal manner.
This is why Order XXVI rule 10 CPC specifically says – Commission Report shall ‘form part of the record’.
Unless the expert is examined in the court, his opinion cannot be relied on. (State of Maharashtra vs. Damu, AIR 2000 SC 1691). Opinion or report of a finger print expert is not a substantive evidence. Such evidence can only be used to corroborate some items of substantive evidence which are otherwise on record (Musheer Khan Vs. State of M.P, 2019-7 SCC 781; AIR. 2010 SC 3762).
Our Apex Court held in Dharmarajan v. Valliammal, 2008 (2) SCC 741, that ‘a certificate issued by the Tahsildar cannot be relied on without examining the Tahsildar who issued the same’. It is referred to in Pankajakshan Nair v. Shylaja, ILR 2017-1 Ker 951.
What is ‘Certificate’, in Law
A certificate, in most cases, is an opinion, and prepared on the basis of other documents or evidences. In such cases, when it is an assumption or inference, it by itself, is not admissible, as it will only be, at the most, a secondary evidence. A Wound Certificate is not a substantive evidence. It has to be proved by a competent witness. If presumption cannot be invoked under Clause (e) of Sec. 114 Evidence Act (that judicial and official acts have been regularly performed), no certificate or report can be taken as proved unless its contents are proved in a formal manner. (This is why Order XXVI rule 10 CPC specifically says – Commission Report shall ‘form part of the record’.)
Our Apex Court held in Dharmarajan v. Valliammal, 2008 (2) SCC 741, that ‘a certificate issued by the Tahsildar cannot be relied on without examining the Tahsildar who issued the same’. It is referred to in Pankajakshan Nair v. Shylaja, ILR 2017-1 Ker 951.
Documents used for Contradicting
Credit of a witness can be impeached under Sec. 155 (3) of the Evidence Act with reference to his previous statements. Sec. 145 is the provision to cross examine a witness with regard to his previous writing. Sec. 145 reads as under:
“145. Cross-examination as to previous statements in writing.—A witness may be cross-examined as to previous statements made by him in writing or reduced into writing, and relevant to matters in question, without such writing being shown to him, or being proved; but, if it is intended to contradict him by the writing, his attention must, before the writing can be proved, be called to those parts of it which are to be used for the purpose of contradicting him.”
Sec. 145 Enables to Contradict Witnesses with his previous statements:
Without the (previous) writing being shown to him.
Without such writing being proved.
When the writing is used to contradict the witness and his attention is called to those parts of it (that are to be used for contradicting), the writing need not be shown to the counsel of the witness (or other side) for his perusal.
The writing need not be one that is admissible in evidence (it can be unstamped, even if it requires stamp; or unregistered, even if it requires registration).
Material ‘omissions’ (in the previous writings) may amount to contradiction.
Conditions for invoking Sec. 145:
The writing must be a ‘previous’ one.
The (previous) writing must be of that witness himself.
It must be relevant to matters in question
If it is intended to contradict the witness by the writing, “his attention must be called” to those parts of it which are to be used for the purpose of contradicting him.
If the witness denies (or says that he does not remember) such previous statement it can be proved, subsequently (for impeaching the credit of the witness).
If the writing is not ‘ready with’ the cross examiner while the attention of the witness is called to those parts used for the purpose of contradicting him, the cross examiner must have ‘undertaken’ to prove the document, and the Court must have given the permission as envisaged in Sec. 136 of the Evidence Act.
Section 136 Evidence Act reads as under:Judge to decide as to admissibility of evidence:
When either party proposes to give evidence of any fact, the Judge may ask the party proposing to give the evidence in what manner the alleged fact, if proved, would be relevant; and the Judge shall admit the evidence if he thinks that the fact, if proved, would be relevant, and not otherwise.
If the fact proposed to be proved is one of which evidence is admissible only upon proof of some other fact, such last-mentioned fact must be proved before evidence is given of the fact first-mentioned, unless the party undertakes to give proof of such fact, and the Court is satisfied with such undertaking.
If the relevancy of one alleged fact depends upon another alleged fact being first proved, the Judge may, in his discretion, either permit evidence of the first fact to be given before the second fact is proved, or require evidence to be given of the second fact before evidence is given of the first fact.
When it is to be proved, original or other admissible copy must be produced.
Though statement in an inadmissible document can be used for contradiction (without showing him), if the witness is to be cross examined showing him his previous ‘unstamped’ statement (especially when it is with respect to his signature – used by showing the document) it must be an ‘admissible’ one as regards stamp, inasmuch as Sec. 35 of the Indian Stamp Act, 1899 directs that 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 (V. Madhusudhan Rao v. S. Nirmala Bai, AIR 2019 AP 93; SMS Tea Estates Pvt. Ltd. v. M/s. Chandmari Tea Co. (2011) 14 SCC 66 – followed in Naina Thakkar v. Annapurna Builders, (2013) 14 SCC 354).
Note: Now, this matter (qua – arbitration clause in an agreement) is pending consideration before a Constitutional Bench as referred to by N. N. Global Mercantile Private Limited v. Indo Unique Flame Limited, 2021 SCC Online 13). As of now, unstamped or improperly stamped documents can be used only after paying stamp duty (with or without penalty, as the case may be).
But, an unregistered compulsory-registrable-document can be ‘used’ and ‘admitted’ under Sec. 145, as it is a ‘collateral purpose’ [Section 49 of the Registration Act itself allows it – to use such documents for ‘collateral purpose’. See: K.B. Saha and Sons Private Limited v. Development Consultant Limited, (2008) 8 SCC 564; S. Kaladevi vs V.R. Somasundaram (2010) 5 SCC 401].
Even if the ‘right to give evidence’ of a party ‘is over’, the courts will allow that party to ‘prove’ the document (under the second limb of Sec. 145), subsequently. For example – If the contradiction arises when the defendants’ witness is cross examined, the plaintiff can adduce evidence without ‘reopening’ his evidence (for, this provision is a statutory one).
Important points to be noted while invoking Sec. 145
If the witness admits the previous statement, no question as to ‘producing’ or ‘proving’ or ‘marking’ the same arises for consideration.
The purposes of invoking sec. 145 are only to test the veracity of the statement made by a witness in his examination-in-chief, and also to impeach his credit (Tahsildar Singh v. The State of UP, AIR 1959 SC 1012) under Sec. 155 (3).
Even if the document or the contradicting part is marked, and it is proved (for the purpose of contradicting him), it cannot be read in evidence; because, such writing will not be a substantive evidence (and the purpose of this provision is only impeaching the credit of the witness)
The court has to allow the cross examiner to produce and prove the previous statement, if the witness denies such previous statement, even if technically his ‘evidence is over’ (it being statutory right).
When an ‘omission’ is to be proved, the ‘specific part’ of the previous statement, where the omission ought to have been naturally stated, should be ‘put’ to the witness, for his explanation, if any. (See: Tahsildar Singh v. The State of UP, AIR 1959 SC 1012 – “if made, would have been recorded”). It is for 2 reasons:
The section itself requires “his attention must be called to those parts of it which are to be used for the purpose of contradicting him”. It is to satisfy the principles of ‘natural justice’.
The witness has a right to explain admissions under Sec. 31.
Evidence Act Sec. 31 reads: “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.”
If the cross examiner does not seek ‘explanation’ while putting the “those parts of (the previous statement) which are to be used for the purpose of contradicting him” the counsel who conducted the chief examination can seek the ‘explanation, if any’, in re-examination, on that contradictory-part (in the light of Sec. 31).
‘Cross Examination’ in Sec. 145 includes ‘cross examination’ showing the signature of the witness in the ‘previous statement’. (That is, a witness can be compelled to ‘refresh’ the document under Sec. 159.)
Courts adjudicate the issues before it based on substantive evidence. In several cases it may be unusual that no direct evidence comes forth; for example, sexual offences, conspiracy, etc. In some cases certain corroborative evidence, to the already placed substantive evidence, may assure confidence to the minds of judges. Section 156 of the Evidence Act lays down that such testimonies can be brought into evidence. It is beyond doubt that such an evidence should also be an admissible one.
Section 156 of the Evidence Act reads as under:
“156. Questions tending to corroborate evidence of relevant fact, admissible.
When a witness whom it is intended to corroborate gives evidence of any relevant fact, he may be questioned as to any other circumstances which he observed at or near to the time or place at which such relevant fact occurred, if the Court is of opinion that such circumstances, if proved, would corroborate the testimony of the witness as to the relevant fact which he testifies.
Illustration A, an accomplice, gives an account of a robbery in which he took part. He describes various incidents unconnected with the robbery which occurred on his way to and from the place where it was committed. Independent evidence of these facts may be given in order to corroborate his evidence as to the robbery itself.”
The requirement of corroboration in certain cases is described by our Apex Court as under in Khema @ Khem Chandra v. The State of Uttar Pradesh (10 August, 2022) as under:
“21. This Court, in the celebrated case of Vadivelu Thevar v. State of Madras, (1957) SCR 981, has observed thus:
“…….Hence, in our opinion, it is a sound and wellestablished rule of law that the court is concerned with the quality and not with the quantity of the evidence necessary for proving or disproving a fact. Generally speaking, oral testimony in this context may be classified into three categories, namely:
Wholly reliable.
Wholly unreliable.
Neither wholly reliable nor wholly unreliable.
In the first category of proof, the court should have no difficulty in coming to its conclusion either way — it may convict or may acquit on the testimony of a single witness, if it is found to be above reproach or suspicion of interestedness, incompetence or subornation. In the second category, the court equally has no difficulty in coming to its conclusion. It is in the third category of cases, that the court has to be circumspect and has to look for corroboration in material particulars by reliable testimony, direct or circumstantial..……”
22. We find that the testimony of Inder (PW2) would fall under the 3rd category i.e. his evidence can be said to be “neither wholly reliable nor wholly unreliable”. As such, it will be necessary that there is some corroboration to his ocular testimony.”
Effect of Marking Documents Without Objection & ‘Probative Value’ of Evidence
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) 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. (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%’.
2.Mere marking – Not dispense with proof(of truth of contents)
In Sait Tarajee Khimchand v. Yelamarti Satyam, AIR 1971 SC 1865, the Supreme Court observed that mere marking of documents (day book and ledger) as exhibits do not dispense with the proof of documents. In Nandkishore Lalbhai Mehta Vs. New Era Fabrics, AIR 2015 SC 3796, it is observed that mere marking as exhibit and identification of executor’s signature by one of witnesses do not prove contents of a document.
In Kaliya Vs. State of Madhya Pradesh (2013-10 SCC 758) it is held as under:
“Mere admission of a document in evidence does not amount to its proof. Nor, mere marking of exhibit on a document does not dispense with its proof, which is otherwise required to be done in accordance with law. (Vide: The Roman Catholic Mission Vs. The State, AIR 1966 SC 1457; Marwari Khumhar Vs. Bhagwanpuri Guru Ganeshpuri AIR 2000 SC 2629; RVE Venkatachala Gounder Vs. Arulmigu AIR 2003 SC 4548; Smt. Dayamathi Bai Vs. K.M. Shaffi, AIR 2004 SC 4082; and LIC of India Vs. Rampal Singh Bisen,2010-4 SCC 491).”
[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.”]
Dibakar Behera v. Padmabati Behera, AIR 2008 Ori 92, it is observed [referring RVE Venkatachala Gounder Vs. Arulmigu Viswesaraswami, AIR 2003 SC 4548, Dayamati Bai Vs. 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 Vs. A. Ramalingam: AIR 2011 SC 1492; Nandkishore Lalbhai Mehta Vs. New Era Fabrics: AIR 2015 SC 3796]
In Rakesh Mohindra Vs. 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.”
If ‘TRUTH’ IS IN ISSUE- Mere Marking Not Amounts to ‘Waiver’
IF the TRUTH is IN ISSUE mere proof of handwritingor execution not evidence of truth: IF the TRUTH of the facts stated in a document is IN ISSUE mere proof of the hand-writing and execution of the document would not furnish evidence of the truth of the facts or contents of the document.
In Ramji Dayawala Vs. Invest Import: AIR 1981 SC 2085, it us held as under:
“If the truth of the facts stated in a document is in issue mere proof of the handwriting and execution of the document would not furnish evidence of the truth of the facts or contents of the document. The truth or otherwise of the facts or contents so stated would have to be proved by admissible evidence, i.e. by the evidence of those persons who can vouchsafe for the truth of the facts in issue.”
If ‘truth’ is in issue, or in dispute, marking without objection by itself does not absolve the duty to prove the truth as to the contents of the documents. (See: Achuthan Pillai vs Marikar (Motors) Ltd., AIR 1983 Ker 81, 1976 Cr.LJ 1507; 2016 (1) Gau. LJ 88, 2012(1) CTC 53; 2013-1 KLT 293.)
Admission – May dispense with proof; but probative value may be less or nil
Court examines probative value of secondary evidence: It is well settled that if a party wishes to lead secondary evidence, the Court is obliged to examine the probative value of the document produced in the Court or their contents and decide the question of admissibility of a document in secondary evidence [Rakesh Mohindra Vs. Anita Beri: 2015 AIR(SCW) 6271].
Contents of the document cannot be proved by mere filing the document in a court. Under the Law of Evidence, it is necessary that contents of documents are required to be proved either by primary or by secondary evidence. Mere marking a document as an ‘exhibit’ will not absolve the duty of to prove the documents in accordance with the provisions of the Evidence Act. At the most, marking ‘exhibit’may amount to proof of contents, but not its truth.
Documents which are not produced and marked as required under the Evidence Act cannot be relied upon by the Court.
See: LIC Vs. Ram Pal Singh Bisen, 2010-4 SCC 491 (Filing of the Inquiry Report or the evidence adduced during the domestic enquiry);
M. Chandra Vs. M. Thangamuthu. Nandkishore Lalbhai Mehta Vs.New Era Fabrics, AIR 2015 SC 3796;
Birad Mal SinghviVs. Anand Purohitb, 1988 (Supp) SCC 604 (date of birth).
Even when a document is technically admitted in court, the probative value thereof will always be a matter for the court to determine. That is, it is depended upon the nature of each case. The probative value of Scene-Mahazar, Postmortem Report, photocopy of a Registered Deed etc. without supporting legal evidence may be lesser. In such cases the court can refrain from acting upon such documents until regular evidence is tendered.
In Kaliya Vs. State of MP: 2013-10 SCC 758 (relying on H. Siddiqui Vs. A. Ramalingam: AIR 2011 SC 1492, and Rasiklal Manikchand Vs. MSS Food Products: 2012-2 SCC 196) held as under:
“The court is obliged to examine the probative value of documents produced in court or their contents and decide the question of admissibility of a document in secondary evidence.”
In Life Insurance Corporation of India Vs. Ram Pal Singh Bisen, 2010-4 SCC 491, it is observed as under:
“26. We are of the firm opinion that mere admission of document in evidence does amount to its proof. In other words, mere marking of exhibit on a document does dispense with its proof, which is required to be done in accordance with law. …..
27. It was the duty of the appellants to have proved documents Exh.-A-1 to Exh. A-10 in accordance with law. Filing of the Inquiry Report or the evidence adduced during the domestic enquiry would partake the character of admissible evidence in Court of law. That documentary evidence was also required to be proved by the appellants in accordance with the provisions of the Evidence Act, which they have failed to do.”
The Calcutta High Court (DB) quoting Life Insurance Corporation of India Vs. Ram Pal Singh Bisen [2010-4 SCC 491] it is observed in Bajaj Allianz General Insurance Company Vs. Smt. Santa Dey (2019-2 ACC 36: 2018-3 TAC 473) as under:
“On the authority of the aforesaid decision, we hold that even if the document had been marked as Exhibit-A without objection, without a formal proof thereof in accordance with the provisions of the Evidence Act, such document lost its credibility and is of no probative value.”
In Kalyan Singh, Vs. Chhoti, AIR 1990 SC 396, it is observed as under:
“A certified copy of a registered sale deed may be produced as secondary evidence in the absence of the original. But in the present case Ex. 3 is not certified copy. It is just an ordinary copy. There is also no evidence regarding content of the original sale deed. Ex.3 cannot therefore, be considered as secondary evidence. The appellate Court has a right and duty to exclude such evidence.”
Court should allow to adduce proper evidence to prove documents
As stated in detail above, besides the powers of the court under Sec. 165 of Evidence Act, the scheme of the Procedural Acts shows that the court has jurisdiction to require the party concerned to prove that document. (Sec. 58 of Evidence Act and Order XII, Rule 2A Proviso of the CPC and Sec. 294 of the CrPC).
Inasmuch as (a) mere marking of a document on admission will not amount to proof, or evidence of the contents of the document or its truth; (b) the probative value of a document ‘marked without objection’ 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.
Defect for not producing a proper power of attorney being curable, in Haryana State Coop. Supply and Marketing Federation Ltd. v. Jayam Textiles, 2014 AIR SC 1926 (a case under Section 138 Negotiable instruments Act), the Apex Court gave opportunity to the petitioner to produce the authorization of Board of Directors. It is observed that the in Raj Narian v. Indira Nehru Gandhi, (1972) 3 SCC 850 it was held that the rules of pleadings are intended as aids for a fair trial and for reaching a just decision. It is further pointed out that this principle is reiterated in following cases also:
F.A. Sapa v. Singora, (1991) 3 SCC 375;
H.D. Revanna v. G. Puttaswamy Gowda, (1999) 2 SCC 217;
V.S. Achuthanandan v. P.J. Francis, (1999) 3 SCC 737;
Mahendra Pal v. Ram Dass Malanger, (2000) 1 SCC 261;
Virender Nath Gautam v. Satpal Singh, (2007) 3 SCC 617 (observed that facta probanda (material facts) are to be set out in the pleadings and facta probantia (particulars or evidence) need not be set out in the pleadings);
(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.
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.”
Saji Koduvath Associates 