Saji Koduvath Associates

Modes of Proof of Documents – Admission, Direct Evidence, Expert Evidence, Presumption etc.

Saji Koduvath, Advocate, Kottayam.

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)

Also Read Blog: Are RTI Documents Admissible in Evidence as a ‘Public Documents’?

Sec. 68 Evidence Act

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

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

“Reliance is heavily placed on behalf of the appellant on Ramji Dayawala Vs. Invest Import: AIR 1981 SC 2085. The legal position is not in dispute that mere production and marking of a document as exhibit by the court cannot be held to be a due proof of its contents. Its execution has to be proved by admissible evidence, that is, by the “evidence of those persons who can vouchsafe for the truth of the facts in issue”.

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’.

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

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

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

Sec. 35 of the Evidence Act reads as under:

“35. Relevancy of entry in public record or an electronic record made in performance of duty: An entry in any public or other official book, register or record or an electronic record, stating a fact in issue or relevant fact, and made by a public servant in the discharge of his official duty, or by any other person in performance of a duty specially enjoined by the law of the country in which such book, register, or record or an electronic record is kept, is itself a relevant fact.

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

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

In Inder Singh v. S. Raghbir Singh, AIR 1978 P&H 98, it is observed as under:

“The principle is that an official record, kept by a person, upon whom there is a public duty to make entries in it only after satisfying himself of the truth of those entries, is presumed to be correct. Such a document itself is evidence of the truth of its contents unless and until its falsity can be demonstrated by any of the various methods by which the evidentiary value of any public book, register or document may be attacked.”

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

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

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

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.”

Is Registered Power of Attorney Necessary for Registration of a Deed? No.

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.

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
(ii) by circumstantial evidence or
(iii) by invoking ‘presumption’ or
(iv) by express admission by the other side.

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- Ayodhya Disputes: M. Siddiq case – Pragmatic Verdict
- Sabarimala Review Petitions & Reference to 9-Judge Bench
- SABARIMALA REVIEW and Conflict in Findings between Shirur Mutt Case & Durgah Committee Case
General

Expert Evidence and Appreciation of Evidence

Saji Koduvath, Advocate.

Sec. 3 and 45 of the Evidence Act

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.

Also read: Handwriting Expert Evidence: Relevant, But Merely an Opinion

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 Evidence is 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.”

Read in this cluster (Click on the topic):

Book No. 1. Handbook of a Civil Lawyer

Book No. 2: A Handbook on Constitutional Issues

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

Book No. 4: Common Law of TRUSTS in India

Substantive Documents, and Documents used for Corroboration, Refreshing Memory and Contradicting Witnesses

Saji Koduvath, Advocate, Kottayam.

Key Takeaways

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 ‘probity evidence’ because it is a matter of common knowledge that the date of birth given at the time of the admission of a boy or girl in a school is seldom correct and more often than not the age given is less than the actual age of the child. (See also: C. Doddanarayana Reddy Vs. C. Jayarama Reddy: AIR 2020 SC 1912; Commissioner of Central Excise And Service Tax v. M/S. Sanjivani Non-Ferrous Trading: AIR 2019 SC 203.)

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’.)

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).
- Read Blog: Unstamped & Unregistered Documents and Collateral Purpose
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:
1. 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’.
2. 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.)

See Blog: How to Contradict a Witness under Sec. 145, Evidence Act

Documents used for Corroboration

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

Section 156 of the Evidence Act reads as under:

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

The requirement of corroboration in certain cases is described by our Apex Court as under in Khema @ Khem Chandra v. The State of Uttar Pradesh (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).

Civil Rights & Jurisdiction of Civil Courts under Sec. 9 CPC

Jojy George Koduvath.

Introduction.

‘Ubi jus ibi remedium’ is a fundamental principle of law. This principle lays down that where there is a right, there is a remedy; that is, there is no wrong without a remedy. Section 9 CPC is casted in enforcement of this principle. The jurisdiction of the Civil Court under Section 9 is a plenary one. It directs civil courts to try all suits of civil nature, unless barred by statute, either expressly or by necessary implication.

Section 9 of CPC reads as under:

9. Courts to try all civil suits unless barred—The Courts shall (subject to the provisions herein contained) have jurisdiction to try all suits of a civil nature excepting suits of which their cognizance is either expressly or impliedly barred.

Suits of a Civil Nature or Civil Suits – Examples

Suits relating to Property rights (for recovery, injunction, declaration, etc.)
Right to Easement
Right to get Damages, suffered – for illegal acts
Not be evicted otherwise than by due process of law
Contract – specific performance, damages for breach
Right to Worship
Right to Salary
Right to elect, or be elected
Right to act as director/office-bearer, after election
Rights against wrong expulsion from a club
Get remedied, nuisance

All Rights of Civil Nature: Not Recognized as Enforceable ‘Civil Rights’

Examples

Privacy –(not nuisance)
Caste questions
Purely religious rites, ceremonies
- What Mantra, be said – in a temple.
- Which passage from Bible, be read – in a church.
- What type of prayer in a religious institution

There are two types of Rights Enforced by Courts

Common-law rights
Rights arise from Enacted Acts or Bylaws.

Almost all Civil Rights are Common Law Rights – Examples

Property rights – recovery, injunction
Use public way
Damages,
Salary
Worship
Right against, wrong expulsion from club
Right to act as director, after election
Not be evicted otherwise than due process

Rights arises from Acts or Bylaws – Examples

Election rights- vote, candidate (under Acts or Bylaws);
Right to Ration under Ration Supply Laws.
Education laws,
Licensing Liquor Shop
Free Medicine laws,
Co- operative society,
Compensation on land acquisition in the manner stated in the Act,
Survey of Lands.

When Civil Court will Not have Jurisdiction at the First Instance

One cannot approach the civil court directly, without complying with the statutory (or bylaw) remedy, if –

(1) Statute gives finality (impliedly bars civil court remedy),
(2) the statute provides an adequate remedy, and
(3) the tribunal acts within its jurisdiction.

Important Legal Propositions on Jurisdiction of Civil Courts Under Sec. 9

1. When Right or Liability exists at common law, and is re-enacted by the statute with a special forum for an efficacious remedy, and civil court remedy is expressly barred, there will be an implied bar for civil courts.
- Eg. Bylaws of a society provides for efficacious redressal of remedies on wrongful expulsion from a club and the bye laws states that the decisions of that authority is final.
2. When Right or Liability exists at common law, and is re-enacted by the statute with a special forum for an efficacious remedy, and civil court remedy is not expressly barred, there will be an election of forum (that special forum or civil courts).
Municipal law provides for leaving a particular distance from the boundary so that no nuisance of obstructing light be caused to a neighbor by the building construction (a right exists in common law).
3. New rights conferred by enacted laws (not pre-existing in common law) also provides the machinery for enforcement of such right or liability or for adjudication of disputes, then, even in the absence of an exclusionary provision, the jurisdiction of the civil court will be stood barred by necessary implication.
- (Raja Ram Kumar Bhargava (Dead) By LRs v. Union of India, (1988) 1 SCC 681; Quoted in South Delhi Municipal Corporation v. Today Homes and Infrastructure Pvt. Ltd. 2019-4 CivCC 150 (SC); 2019-3 CurCC 370(SC); 2019-11 Scale 33).
4. Noncompliance of fundamental principles of law – civil courts will have jurisdiction. Despite express bar, if the decision of the authority under challenge is in:
- (i) non-compliance of fundamental principles of law (like, natural justice),
- (ii) non-compliance of fundamental principles of any statute or
- (iii) without jurisdiction (like, Village Officer takes decision where the Collector has to).
- (iv) where the plea of illegality raised before the Civil Court goes to the root of the matter and would, if upheld, lead to the conclusion that the impugned order is a nullity (Ram Swamp v. Shikar Chand, AIR 1966 SC 893).
  - See notes below – Alternative remedy not to operate as a bar in certain contingencies and Civil Court can Examine ‘Non-compliance of Law’ (not ‘Erroneous’ Orders).

The fundamentals of these principles are laid down in the following two decisions:

1. Wolverhampton New Waterworks Co. v. Hawkesford, [1859] 6 C. B. (NS) 336: 28 LJ CP 242: 141 ER 486. It is observed as under:
- “One is where there was a liability existing at common law, and that liability is affirmed by a Statute which gives a special and peculiar form of remedy different from the remedy which existed at common law: there, unless the Statute contains words which expressly or by necessary implication exclude the common law remedy the party suing has his election to pursue either that or the statutory remedy. The second class of cases is, where the Statute gives the right to sue merely, but provides, no particular form of remedy: there, the party can only proceed by action at common law. But there is a third class, viz., where a liability not existing at common law is created by a Statute which at the same time gives a special and particular remedy for enforcing it…….. The remedy provided by the Statute must be followed and it is not competent to the party to pursue the course applicable to cases of the second class.”
2. It is observed by Lord Thankerton in The Secretary of State vs Mask and Co., AIR 1940 PC 105, as under:
- “It is settled law that the exclusion of the jurisdiction of the civil courts is not to be readily inferred, but that such exclusion must either be explicitly expressed or clearly implied. It is also well settled that even if jurisdiction is so excluded, the civil courts have jurisdiction to examine into cases where the provisions of the Act have not been complied with, or the statutory tribunal has not acted in conformity with the fundamental principle of judicial procedure.”
(See: Titaghur Paper Mills Co. Ltd. v. State of Orissa, (1983) 2 SCC 433;
South Delhi Municipal Corporation Vs. Today Homes and Infrastructure Pvt. Ltd., 2019-11 SCALE 33;
Zenith Steel Tubes and Industries Ltd Vs. Sicom Litd. AIR 2008 SC 451;
Devinder Singh Vs. State of Haryana, AIR 2006 SC 2850;
Mafatlal Industries Limited Vs. Union Of India, 1997-5 SCC 536;
Pandurang Ramchandra Mandlik Vs. Shantibai Ramchandra Ghatge, AIR 1989 SC 2240)

Dhulabhai v. State of MP, AIR 1969 SC 78

Hidayatullah, J., in Dhulabhai v. State of MP, observed, as to ouster of jurisdiction of the civil courts, as follows:

(1) Where the Statute gives a finality to the orders of the special tribunals the Civil Courts’ jurisdiction must be held to be excluded if there is adequate remedy to do what the Civil Courts would normally do in a suit. Such provision, however, does not exclude those cases where the provisions of the particular Act have not been complied with or the statutory tribunal has not acted in conformity with the fundamental principles of judicial procedure.
(2) Where there is an express bar of the jurisdiction of the Court, an examination of the scheme of the particular Act to find the adequacy or the sufficiency of the remedies provided may be relevant but is not decisive to sustain the jurisdiction of the Civil Court.
Where there is no express exclusion the examination of the remedies and the scheme of the particular Act to find out the intendment becomes necessary and the result of the inquiry may be decisive. In the latter case it is necessary to see if the Statute creates a special right or a liability and provides for the determination of the right or liability and further lays down that all questions about the said right and liability shall be determined by the tribunals so constituted, and whether remedies normally associated with actions in Civil Courts are prescribed by the said Statute or not.
(3) Challenge to the provisions of the particular Act as ultra vires cannot be brought before Tribunals constituted under that Act. Even the High Court cannot go into that question on a revision or reference from the decision of the Tribunals.
(4) When a provision is already declared unconstitutional. or the constitutionality of any provision is to be challenged, a suit is open. A writ of certiorari may include a direction for refund if the claim is clearly within the time prescribed by the Limitation Act but it is not a compulsory remedy to replace a suit.
(5) Where the particular Act contains no machinery for refund of tax collected in excess of constitutional limits or illegally collected a suit lies.
(6) Questions of the correctness of the assessment apart from its constitutionality are for the decision of the authorities and a civil suit does not lie if the orders of the authorities are declared to be final or there is an express prohibition in the particular Act. In either case the scheme of the particular Act must be examined because it is a relevant enquiry.
(7) An exclusion of the jurisdiction of the Civil Court is not readily to be inferred unless the conditions above set down apply.

These propositions are emphasised further in several Supreme Court decisions including the following:

Premier Automobiles Limited v. Kamalakar Shantharam Wadke, (1995) 5 SCC 75,
Rajasthan State Road Transport Corpn. v. Krishna Kant, AIR 1995 SC 1715,
Mafatlal Industries Ltd. v. Union of India, (1997) 5 SCC 536.

In Premier Automobiles Ltd. v. Kamlakur Shantaram Wadke, (1995) 5 SCC 75; (1976) 1 SCR 427, it was held that if a dispute was not industrial dispute, not does it relate to enforcement of any right under the Industrial Dispute Act, the remedy lies only in the civil court. If the dispute arises out of the right or liability under the general common law and not under the Act, the jurisdiction of the civil court is always alternative, leaving it to the election of the suitor to choose his remedy for the relief which is competent to be granted in a particular remedy. If the dispute relates to the enforcement of a right or obligation of the Act, the only remedy available to the suitor is to get an application adjudicated under the Act. In that view, it was held that the civil suit was not maintainable. (See: Vatticherukuru Village Panchayat v. Nori Vekatrama Deekshithulu, 1991 SCR (2) 531; 1991 SCC Supl. (2) 228)

Effective alternate remedy, Court refuses relief

It is observed in Commissioner of Income Tax v. Chhabil Dass Agarwal, 2014-1 SCC 603, that if the High Court is satisfied that the aggrieved party can have an adequate or suitable relief elsewhere, it can refuse to exercise its jurisdiction. In Assistant Commissioner (CT) LTU, Kakinada v. Glaxo Smith Kline Consumer Health Care Limited, AIR 2020 SC 2819, it is pointed out by our Apex Court that when the aggrieved person has an effective alternate remedy available in law, normally, the courts will not entertain a Writ petition.

PROOF OF DOCUMENTS & OBJECTIONS TO ADMISSIBILITY – How & When?

Saji Koduvath. Advocate , Kottayam.

Contents – in nutshell

I. A document that is used in court has to pass through three steps. They are:

Production of documents in court
Admission and exhibition
Proof (or truth of contents).

II. Truth of the contents of a document, can be established

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

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

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

IV. Accepted law on Proof – In a nutshell:

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.

V. Admissibility & probative value – two matters.

State of Bihar Vs. 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.”

Documents Marked Without Objection as to its MODE OF PROOF – Effect

The law prevails in India is the following –

If documents marked without objection as to its mode of proof, it is not open to the other side to object to their admissibility afterwards.
Following are the decisive decisions in this line.

P.C. Purushothama Reddiar v. S.Perumal,(1972) 1 SCC 9 (Three Judge Bench – A.N. Grover, K.S. Hegde, A.N. Ray, JJ.)	Admissibility of police reports without examining the Head Constables who covered those meetings. Those reports were marked without any objection. Hence it was not open to the respondent to object to their admissibility.	Relied on Bhagat Ram v. Khetu Ram, AIR 1929 PC 110.
R.V.E. Venkatchalla Gounder v. Arulmighu Viswesaraswamy and V.P. Temple, (2003) 8 SCC 752 (R.C. Lahoti, Ashok Bhan, JJ.)	Photo copies were admitted in evidence without leading foundation – without objection. They cannot be held inadmissible for originals were not produced.	Relied on Padman v. Hanwanta, AIR 1915 PC 111 P.C. Purushothama Reddiar vs. S.Perumal
PC Thomas v. PM Ismail, AIR 2010 SC 905; 2009-10 SCC 239.	Non-examination and absence of “proof of acknowledgment” by the author – If no objection on ‘mode of proof’ in trial court, it will be too late (in appeal) to raise objection on the ground of mode of proof – that is, “non production of John K as a witness”.	…
Rafia Sultan v. Oil And Natural Gas Commission (I.C. Bhatt, S.B. Majmudar, JJ.), 1986 ACJ 616; 1986 Guj LH 27; 1985-2 GujLR 1315	No objection about the truth* of contents* of Ex. 32. The witness of the defendant accepted the contents. Therefore, *too late in the day* to canvass that contents of Ex. 32 were not proved.	…
Smt. Dayamathi Bai v. K.M. Shaffi, AIR 2004 SC 4082	Objection to be taken (secondary evidence) at trial before document is marked as an ‘exhibit’ and admitted to the record.	Relied on Gopal Das v. Sri Thakurji, AIR 1943 PC 83; R.V.E. Venkatchalla Gounder v. Arulmighu , (2003) 8 SCC 752
Sarkar on Evidence .	If copies of the documents are admitted without objection in the trial Court, no objection can be taken in appeal	Referred to in: Smt. Dayamathi Bai v. K.M. Shaffi, AIR 2004 SC 4082.

PART I

Production, Admission in Evidence and Proof of Documents

Documents to be utilised in court has to pass through three steps. They are:

Production of documents in court,
Admission and exhibition (if relevant),
Proof (or truth of contents, veracity, reliability, etc.).

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

Order VII rule 14, Order VIII rule 8A and Order XIII rule 1 say as to ‘Production‘ of documents in court. At this stage the opposite party may not have a role 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 XIII rule 4 requires 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.

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).

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.

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

Following are improper modes (liable to objection):

Seeking exhibition through one who cannot vouchsafe veracity.
Objectionable (mode of) secondary evidence. Eg:
- Certified copy produced without proving circumstances that entitles to give secondary evidence under Sec. 65 of the Evd. Act.
- Secondary evidence other than that is recognised under Sec. 63 .
Unstamped or insufficiently/improperly stamped document.

Objection to be raised – When Document is Admitted

The Privy Council, in Padman v. Hanwanta, AIR 1915 PC 111, held that the objection to marking of documents and its admissibility should have been taken in the trial court. It was observed as under:

“The defendants have now appeal to the Majesty in Council, and the case has been argued on their behalf in great detail. It was urged in the course of the argument that a registered copy of the will of 1898 was admitted in evidence without sufficient foundation being led for its admission. No objection, however, appears to have been taken in the first court against the copy obtained from the Registrar’s office being put in evidence. Had such objection being made at the time, the District Judge, who tried the case in the first instance, would probably have seen that the deficiency was supplied. Their lordships think that there is no substance in the present contention.” (quoted in: R.V.E. Venkatachala Gounder v. Arulmigu Viswesaraswami: AIR 2003 SC 4548)

It was observed by the Supreme Court in Bipin Shantilal Panchal v. State of Gujarat, AIR 2001 SC 1158, that that ‘it is an archaic practice that during the evidence collecting stage, whenever any objection is raised regarding admissibility of any material in evidence the court does not proceed further without passing order on such objection’. And the Court directed as under:

“When so recast, the practice which can be a better substitute is this: Whenever an objection is raised during evidence taking stage regarding the admissibility of any material or item of oral evidence the trial court can make a note of such objection and mark the objected document tentatively as an exhibit in the case (or record the objected part of the oral evidence) subject to such objections to be decided at the last stage in the final judgment.”

But, the subsequent decisions in R.V.E. Venkatachala Gounder v. Arulmigu Viswesaraswami: AIR 2003 SC 4548; Dayamathi Bai v. K.M. Shaffi : AIR 2004 SC 4082: (2004) 7 SCC 107 took a contra view. It was held that the objection as to ‘mode of proof’ should be taken at the time of marking of the document as an exhibit, so that the defect can be cured by the affected party.

In 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.

In P.C. Purushothama Reddiar vs S. Perumal, 1972 (2) SCR 646, it was observed as under:

“Counsel contended that the police reports referred to earlier are inadmissible in evidence as the Head-constables who covered those meetings have not been examined in the case. Those reports were marked without any objection. Hence it is not open to the respondent now to object to their admissibility.”

Document Marked in Proof Affidavit; Objection in Cross Exam. – Effect

Our Apex Court held in Lachhmi Narain Singh v. Sarjug Singh, AIR 2021 SC 3873, as under:

“24. In view of the foregoing discussion, it is clear that plea regarding mode of proof cannot be permitted to be taken at the appellate stage for the first time, if not raised before the trial Court at the appropriate stage. This is to avoid prejudice to the party who produced the certified copy of an original document without protest by the other side. If such objection was raised before trial court, then the concerned party could have cured the mode of proof by summoning the original copy of document. But such opportunity may not be available or possible at a later stage. Therefore, allowing such objection to be raised during the appellate stage would put the party (who placed certified copy on record instead of original copy) in a jeopardy & would seriously prejudice interests of that party. It will also be inconsistent with the rule of fair play as propounded by Justice Ashok Bhan in the case of RVE Venkatachala Gounder v. Arulmigu, AIR 2003 SC 4548.”

The law on the point – whether a challenge in cross-examination, sufficient – can be deduced from the following observation in Regional Director, Employees State Insurance Corporation v. Agro-Chem Industries Services, 2013-6 All MR 702; 2014 1 MhLJ 664 –

“The Appellants did not raise any objection when the said documents were taken on record and marked as exhibit nor the authenticity of the documents were challenged in the cross examination.”

In New India Assurance Co. Ltd. v. Nripendra Sarkar, 25 Sep 2024 (Gau), it is held as under:

“After proper consideration of the entire documents and on examination of his present condition, the District Social Welfare Board has issued the Disability certificate Ext-9. In absence of any contrary document or proper objection during cross examination by the respondent appellant, the court has no reason to disbelieve the same.”

Read blog: Marking Documents: Should Objection be Raised Strictly When they are Marked; Is it Sufficient to Challenge them during Cross-Examination?

The law on the point – whether a challenge in cross-examination, sufficient – can be deduced from the following decisions

(i) Regional Director, Employees State Insurance Corporation v. Agro-Chem Industries Services, 2013-6 All MR 702; 2014 1 MhLJ 664, where it is observed –

“The Appellants did not raise any objection when the said documents were taken on record and marked as exhibit nor the authenticity of the documents were challenged in the cross examination.”

(ii) Zulfikhar Khan v. Habib Khan @ Abdul Mujeeb Khan, 11 Mar 2020 (Del) , where it is observed –

“5. Learned counsel appearing for the respondents submits that the original documents were duly produced before the Trial Court at the time of the recording of the evidence of the respondent and the copies of the said documents, after comparison, were exhibited and marked as Exhibit PW1/6 to PW1/8 and no objection was taken by the petitioner with regard to the proof of the said documents and exhibit marking of the copies and there is even no cross-examination or suggestion during cross examination that the originals have not been produced.”

(iii) In New India Assurance Co. Ltd. v. Nripendra Sarkar, 25 Sep 2024 (Gau), it is held as under:

“After proper consideration of the entire documents and on examination of his present condition, the District Social Welfare Board has issued the Disability certificate Ext-9. In absence of any contrary document or proper objection during cross examination by the respondent appellant, the court has no reason to disbelieve the same.”

(iv) In Thakor Rajuji Takhaji VS Owner of Tractor No. RJ-21-3R-8180 Kawarilal, 2024 Guj HC 14451), it is held as under:

“The list was produced at Exhibit 20 and all the documents produced at list Exhibit 20 had been referred to in the examination-in-chief. The learned Tribunal has failed to pass any order of admitting or rejecting the documents referred to. The cross examination of the respondent/s does not suggest that they had any objection to the documents produced.”

(v) In Kuntal Kundu v. National Insurance Company Limited, 2008-3 WBLR 717), it is held as under:

“In the case before us, the appellant in his evidence-in-chief specifically tendered the said certificate and the same along with others was marked as Exhibit without objection. We have already pointed out that even no suggestion was given in cross-examination disputing either the contents or the genuineness of those documents.

Contra View on insufficiency of Stamp Duty

(i) In Jatti Veera Venkata Satyam v. Bosukonda Chinnadevi, 2023-3 ALT 345, it is held as under:

“20. In the present case, the agreement of sale which requires stamp duty under Article 47-A is executed on a deficit stamped paper, i.e., of Rs.100/- only, yet, the same was marked without raising any such objection. It is only during the cross-examination of PW1, such an objection was raised by the defendants. In view of the express prohibition made under Section 36 of the Stamp Act, no such objection can be raised on the ground of insufficiency of stamp duty.”

(ii) Srinivasa Builders v. A. Janga Reddy, 2016-3 ALD 343; 2016-2 ALT 321, it is seen that the court accepted the following argument-

“With respect to the agreement of sale executed on Rs.50/- stamp paper, the Court imposed stamp duty and penalty, the amount was already remitted and in view of the same, the said document was marked as exhibit without any objection from the defendants. Therefore, the defendants cannot raise objection at the stage of cross-examination.”

Our Procedural Codes do not specifically speak about time of raising objection. The general accepted proposition is that when a document is marked as an exhibit without objection from the opposite party which is affected by that document, its admissibility cannot be questioned at a later stage of the proceedings in the suit.

Document – Challenge In Cross Examination: Propositions

Will it be sufficient if the admissibility is challenged in cross examination of the witness through whom it is exhibited?

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.
Plea regarding mode of proof cannotis not permitted to be taken at the appellate stage for the first time. This is to avoid surprise or prejudice to the other side. If such objection was raisedin trial court, the concerned party could have cured the deficiency. (Lachhmi Narain Singh v. Sarjug Singh, AIR 2021 SC 3873). Therefore, raising objection in cross examination would be enough.

Following are the opposite views:

For no objection at the time of ‘recording/exhibiting 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.

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.

Admission of 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.

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).

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.

Foundational Evidence Necessary for Admitting Copy

In Roman Catholic Mission v. State of Madras, AIR 1966 SC 1457, it was held (Four Judge Bench – M. Hidayatullah, P.B. Gajendragadkar, K.N. Wanchoo, V. Ramaswami, JJ.) as under:

“These documents undoubtedly would have thrown light upon the matter but they were not admissible because they were only copies. The originals were not produced at any time nor was any foundation laid for the establishment of the right to give secondary evidence. The High Court rejected them and it was plainly right in so deciding.”

Xerox Copies Should Not have Marked; Original should have

In Shalimar Chemical Works Ltd. v. Surendra Oil & Dal Mills (Refineries), 2010-8 SCC 423, our Apex Court viewed the following mistakes as “serious” –

“The trial court should not have “marked” as exhibits the Xerox copies of the certificates of registration of trade mark in face of the objection raised by the defendants…. rather than leaving the issue of admissibility of those copies open and hanging, by marking them as exhibits subject to objection of proof and admissibility. …
The learned single judge rightly allowed the appellant’s plea for production of the original certificates of registration of trade mark as additional evidence because that was simply in the interest of justice and there was sufficient statutory basis for that under clause (b) of Order 41, Rule 27. But then the single judge seriously erred in proceeding simultaneously to allow the appeal and not giving the defendants/respondents an opportunity to lead evidence in rebuttal of the documents taken in as additional evidence.
The division bench was again wrong in taking the view that in the facts of the case, the production of additional evidence was not permissible under Order 41, Rule 27.”

Mere Execution, Not Prove – Recitals Are Correct

In Gangamma v. Shivalingaiah, 2005-9 SCC 359, it is held as under:

“We may furthermore notice that even if a formal execution of a document is proved, the same by itself cannot lead to a presumption that the recitals contained therein are also correct. The mere execution of a document, h in other words, does not lead to the conclusion that the recitals made therein are correct, and subject to the statutory provisions contained in Sections 91 and 92 of the Evidence Act, it is open to the parties to raise a plea contra thereto.”

A Writing, By Itself, Is Evidence Of Nothing

The Bombay High Court, in Bank of India v. M/s. Allibhoy Mohammed, AIR 2008 Bom 81, it is held as under:

“33. The mode of proving the contents of the documents has been dealt with in Sections 61-66. As already stated hereinabove the production of the document purporting to have been signed or written by a certain person is no evidence of its authorship. It is necessary to prove their genuineness and execution. Proof, therefore, has to be given of the handwriting, signature and execution of a document. No writing can be received in evidence as a genuine writing until it has been proved to be a genuine one, and none as a forgery until it has been proved to be a forgery. A writing, by itself, is not evidence of the one thing or the other. A writing, by itself, is evidence of nothing, and therefore is not, unless accompanied by proof of some sort, admissible as evidence.” (Quoted in: Akbarbhai Kesarbhai Sipai VS Mohanbhai Ambabhai Patel, 2019-3 GLH 523)

PART II

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 its truth. But, if it is evident that it is admitted for mere identification (e.g. when there is already an issue or pleading as to genuineness of a document) it cannot be taken as proved, even if no objection is raised as to marking by the opposite side.

This principle applies to category of documents that require specific evidence as to proof of its contents, apart from the mere statements in the document itself.

Court’s Jurisdiction to Require to Prove an Admitted Document

In any case, besides the powers of the court under Sec. 165 of Evidence Act, the scheme of the Procedural Acts (Evidence Act, CPC and CrPC) shows that the court has jurisdiction to require the party concerned to prove that document. We can rely on Sec. 58 of Evidence Act and Order XII, Rule 2A Proviso of the CPC and Sec. 294 of the CrPC to see the scheme of the procedural laws.

Section 294 of Code of Criminal Procedure reads as follows:

“294. No formal proof of certain documents. (1) Where any document is filed before any Court by the prosecution or the accused, the particulars of every such document shall be included in a list and the prosecution or the accused, as the case may be, or the pleader for the prosecution or the accused, if any, shall be called upon to admit or deny the genuineness of each such document.
(2) The list of documents shall be in such form as may be prescribed by the State Government.
(3) Where the genuineness of any document is not disputed, such document may be read in evidence in any inquiry, trial or other proceeding under this Code without proof of the signature of the person to whom it purports to be signed:
Provided that the Court may, in its discretion, require such signature to be proved.”

PART III

Who Should Object FIRST–Court or Opposite Side?

There is divergence of judicial opinion as to saying ‘NO’ by court to marking a document with formal defect, beforehand it is objected by the other side. Eg. Tendering copy of a document without furnishing the ‘foundational evidence’ to admit secondary evidence.

First view

Court is under an obligation to exclude inadmissible materials.
In H. Siddiqui v. A. Ramalingam: AIR 2011 SC 1492, it is held: “Mere admission of a document in evidence does not amount to its proof. … The court has an obligation to decide the question of admissibility of a document in secondary evidence before making endorsement thereon.” (Followed in: U. Sree v. U. Srinivas: AIR 2013 SC 415.)
In Yeshoda v. Shoba Ram: AIR 2007 SC 1721, it is held – “In order to enable a party to produce secondary evidence it is necessary for the party to prove existence and execution of the original document. .. The conditions laid down in the said Section (Section 65) must be fulfilled before secondary evidence can be admitted. Secondary evidence of the contents of a document cannot be admitted without non-production of the original being first accounted for in such a manner as to bring it within one or other of the cases provided for in the Section.

Second view

If no objection for other side, Court cannot refrain from marking a document on its own volition (on the ground of formal defect).
R.V.E. Venkatchalla Gounder v. Arulmighu Viswesaraswamy and V.P.Temple, (2003) 8 SCC 752;
Smt. Dayamathi Bai v. K.M. Shaffi, AIR 2004 SC 4082.
(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]

In H. Siddiqui Vs. A. Ramalingam: AIR 2011 SC 1492 it is held as under:

“12. The provisions of Section 65 of the 1872 Act provide for permitting the parties to adduce secondary evidence. However, such a course is subject to a large number of limitations. In a case where the original documents are not produced at any time, nor has any factual foundation been laid for giving secondary evidence, it is not permissible for the court to allow a party to adduce secondary evidence. Thus, secondary evidence relating to the contents of a document is inadmissible, until the non-production of the original is accounted for, so as to bring it within one or other of the cases provided for in the section. The secondary evidence must be authenticated by foundational evidence that the alleged copy is in fact a true copy of the original. Mere admission of a document in evidence does not amount to its proof. Therefore, the documentary evidence is required to be proved in accordance with law. The court has an obligation to decide the question of admissibility of a document in secondary evidence before making endorsement thereon. (Vide Roman Catholic Mission v. State of Madras [AIR 1966 SC 1457] , State of Rajasthan v. Khemraj [(2000) 9 SCC 241 : AIR 2000 SC 1759] , LIC v. Ram Pal Singh Bisen [(2010) 4 SCC 491 : (2010) 1 SCC (L&S) 1072 : (2010) 2 SCC (Civ) 191] and M. Chandra v. M. Thangamuthu [(2010) 9 SCC 712 : (2010) 3 SCC (Civ) 907])”.
H. Siddiqui Vs. A. Ramalingam is followed in U. Sree Vs. U. Srinivas: AIR 2013 SC 415

In Pandappa Mahalingappa vs. Shivalingappa Murteppa, AIR 1946 Bombay 193, it is observed as under:

“As held in 10 L.A. 79 and 5 Bom. L.R. 708 the discretion exercised by the trial Court in admitting secondary evidence on the ground that the original is lost should not be interfered with in appeal. But it is urged that the certified copy should not have been exhibited without proof of the execution. From the application (Ex.66) and the roznama it appears that the trial Court exhibited it under S. 90, Evidence Act, on the ground that it was more than 30′ years old. In the lower appellate court the admissibility of the document does not appear to have been challenged. It is urged that as held in 44 Bom. 192 the erroneous omission before the lower Courts to object to the admission of evidence does not make that evidence relevant. The principle of that ruling, however, applies only where the document is per se irrelevant or inadmissible and no objection was taken to its admissibility: 8 Pat. 788. Where evidence is admitted in the trial Court without any objection to its reception, and the evidence is admissible and relevant, then no objection will be allowed to be taken to its reception at any stage of the litigation on the ground of improper proof. But if the evidence is irrelevant or inadmissible, as for instance, owing to want of registration, omission to take objection to its reception does not make it admissible, and the objection may be raised even in appeal for the first time; 28 L.A. 106. As observed by Das J. in A.L.R. 1922 Pat. 122 “the question of relevancy is a question of law and can be raised at any stage, but the question of proof is a question of procedure, and is capable of being waived.“
In this case the secondary evidence of the mortgage-deed was held to be admissible as the original was lost. What is now urged is that the execution should have been proved and this objection was not raised either in the trial Court or in the lower appellate Court. It is however true that no evidence was adduced to prove the execution of the original of Ex.68 as the trial Court was prepared to raise the presumption in favour of the genuineness of the document under S. 90, Evidence Act. Whether such a presumption can be raised or not is a question of law, and it can, therefore, be urged at any stage of the litigation. It is now well settled by the ruling of the Privy Council in 37 Bom. L.R. 805 that the statutory presumption under S. 90, Evidence Act, cannot be made in respect of a document merely on production of its copy under S. 65 of the Act. Their Lordships observed (p. 811) “Section 90 clearly requires the production to the Court of the particular document in regard to which the Court may make the statutory presumption. If the document produced is a copy, admitted under S.65 as secondary evidence, and it is produced from proper custody, and is over 30 years old, then the signatures authenticating the copy may be presumed to be genuine.”

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: Iqbal Basith v. N Subbalakshmi, (2021) 2 SCC 718; 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 :AIR 2004 SC 4082; Oriental Insurance Co Vs. Premlata: 2007-8 SCC 575] .

In the light of the Supreme Court decision in K.B. Saha and Sons Private Limited v. Development Consultant Ltd, (2008) 8 SCC 564: AIR 2008 SC (Supp) 850 (that a document required by law to be registered, if not registered, it is not admissible in evidence under Section 49 of the Registration Act; and such unregistered document can be used in evidence only for 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.

It is pointed out in Hemendra Rasiklal Ghia v. Subodh Mody, 2009 (2) AIR Bom R 296, 2008-6 MhLJ 886 (FB) that the weight of the aforesaid authorities suggests that the objection to the admissibility of evidence should be raised by the objector and decided by view the Court at the earliest opportunity. (That is it supports the second view – The court cannot object first)

Controversy resolved

1. The court cannot object first. If no objection for other side, Court cannot refrain from marking a document on its own volition (on the ground of formal defect).
- R.V.E. Venkatchalla Gounder v. Arulmighu Viswesaraswamy and V.P.Temple, (2003) 8 SCC 752;
- Smt. Dayamathi Bai v. K.M. Shaffi, AIR 2004 SC 4082.
2. If the deficiency is pertaining to non-registration of a compulsory registrable document (as it falls under the head, inadmissible document) the court can desist the marking of the document.
3. By virtue of the decision, G. M. Shahul Hameed v. Jayanthi R. Hegde, AIR 2024 SC 3339, unless the court has not applied its mind to the insufficiency of stamp, and unless there is a ‘judicial determination‘, the objection thereof can be raised at any time.

Marking without Objection – 30 Years Old Official Document, Falls under Sec. 114(e)

It is held in Iqbal Basith v. N Subbalakshmi, (2021) 2 SCC 718, as regards official/public document, marked without objection, as under:

“The appellants produced photocopies of all other resolutions, government orders and sale deed in favour of their vendor OA Majid Khan by the Municipality. The failure to produce the originals or certified copies of other documents was properly explained as being untraceable after the death of the brother of P.W.1 who looked after property matters. The attempt to procure certified copies from the municipality was also unsuccessful as they were informed that the original files were not traceable. The photocopies were marked as exhibits without objection. The respondents never questioned the genuineness of the same. Despite the aforesaid, and the fact that these documents were more than 30 years old, were produced from the proper custody of the appellants along with an explanation for nonproduction of the originals, they were rejected without any valid reason holding that there could be no presumption that documents executed by a public authority had been issued in proper exercise of statutory powers. This finding in our opinion is clearly perverse in view of Section 114(e) of the Indian Evidence Act 1872, which provides that there shall be a presumption that all official acts have been regularly performed. The onus lies on the person who disputes the same to prove otherwise.”

In Madamaiichi Raniappa VS Muthaluru Bojjappa (Gajendragadkar , J.), AIR1963 SC1633; 1964-2 SCR 673It is held as under:

9. … The document in question being a Certified copy of a public document need not have been proved by calling a witness.”

PART IV

EFFECT OF MARKING DOCUMENTS WITHOUT OBJECTION

Effect of marking a document without formal proof on admission (or without objection) is also a subject of controversy.

Propositions Analysed

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). In such a case the document will not be taken as proved. (Note: It may not be legitimate to apply this principle literatim. A close analysis of each case is essential.)	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. Marked Without Objection – its ‘contents’ stand proved, as admission

(a) Proof of execution may be enough: Its ‘Contents’ stand proved: Exhibiting of documents in evidence without objection amounts to ‘admission’ of its contents. Admission is taken in law as an important method of proof. In this premises, proof of execution may be enough; and no separate proof be needed.

Though it is the usual practice followed by all courts, whether the presumption attached to the same bestows ‘truth‘ of the contents of the document is, practically and theoretically, a matter to be deduced after ‘appreciating’ evidence (in each case).

When a document is marked without objection, its ‘contents’ stand proved. See: RVE Venkatachala Gounder v. Arulmigu Viswesaraswami: AIR 2003 SC 4548. See also:

Narbada Devi v. Birendra Kumar: (2003) 8 SCC 745
Dayamati Bai v. K.M. Shaffi: AIR 2004 SC 4082
Oriental Insurance Co. v. Premlata: (2007) 8 SCC 575
Thimmappa Rai v. Ramanna Rai: (2007) 14 SCC 63.

Presumption of Truth is taken ‘on something Proved’, or Presumed

In Izhar Ahmad Khan v. Union of India, AIR 1962 SC 1052, the Supreme Court definitely observed that presumption of truth is taken ‘on something proved or taken for granted’. It reads as under:

“The term ‘presumption’ in its largest and most comprehensive signification, may be defined to mean inference, affirmative or dis-affirmative of the truth or falsehood of a doubtful fact or proposition drawn by a process of probable reasoning from something proved or taken for granted.”

In Izhar Ahmad Khan v. Union of India (supra), the Supreme Court further quoted James Bradley Tayer (American jurist and author of Treatise on Evidence) which reads as under:

“Presumptions are aids to reasoning argumentation, which assume the truth of certain matters for the purpose of some given inquiry. …”.

Under Sec. 114 of the Evidence Act, court can presume the existence of any fact. The Indian Evidence Act does not specifically correlate “truth” 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’.

In St. of West Bengal v. 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 v. 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.”

Our courts usually draw presumptions as to truth or correctness in documents covered by Sec. 35 Evd. Act and Registered deeds. It is held in Krishnamurthy S. Setlur v. O.V. Narasimha Setty, 2019-9 SCC 488, that revenue record proves possession. it is said as under:

“14. In our considered view, the High Court has not given any cogent reasons for coming to the conclusion that KS was not in possession of the property. His name figured in the revenue record from 1963 to 1981 as the owner in possession. Presumption of truth is attached to revenue record which has not been rebutted.”

It is held in Vimal Chand Ghevarchand Jain v. Ramakant Eknath Jajoo, 2009- 5 SCC 713, that there is also a presumption on registered deed that the “transaction is a genuine one

Neeraj Dutta v. State (Govt. of N. C. T. of Delhi)

The Constitution Bench of our Apex Court laid down in Neeraj Dutta v. State (Govt. of N. C. T. of Delhi), AIR 2023 SC 330; 2023 4 SCC 731, as under:

Section 61 deals with proof of contents of documents which is by either primary or by secondary evidence.
When a document is produced as primary evidence, it will have to be proved in the manner laid down in Sections 67 to 73 of the Evidence Act.
Mere production and marking of a document as an exhibit by the court cannot be held to be due proof of its contents. Its execution has to be proved by admissible evidence. On the other hand, when a document is produced and admitted by the opposite party and is marked as an exhibit by the court, … (sic – no objection can be raised at any later stage with regard to proof of its contents).
The contents of the document must be proved either by the production of the original document i.e., primary evidence or by copies of the same as per Section 65 as secondary evidence.
So long as an original document is in existence and is available, its contents must be proved by primary evidence.
It is only when the primary evidence is lost, in the interest of justice, the secondary evidence must be allowed.
Primary evidence is the best evidence and it affords the greatest certainty of the fact in question.
Thus, when a particular fact is to be established by production of documentary evidence, there is no scope for leading oral evidence.
What is to be produced is the primary evidence i.e., document itself. It is only when the absence of the primary source has been satisfactorily explained that secondary evidence is permissible to prove the contents of documents.
Secondary evidence, therefore, should not be accepted without a sufficient reason being given for non-production of the original.
Once a document is admitted, the contents of that document are also admitted in evidence, though those contents may not be conclusive evidence.
Moreover, once certain evidence is conclusive it shuts out any other evidence which would detract from the conclusiveness of that evidence.
There is a prohibition for any other evidence to be led which may detract from the conclusiveness of that evidence and the court has no option to hold the existence of the fact otherwise when such evidence is made conclusive.

It is held further as under:

“44. Section 64 of the Evidence Act states that documents must be proved by primary evidence except in certain cases mentioned above. ….. Thus, once a document has been properly admitted, the contents of the documents would stand admitted in evidence, and if no objection has been raised with regard to its mode of proof at the stage of tendering in evidence of such a document, no such objection could be allowed to be raised at any later stage of the case or in appeal vide Amarjit Singh v. State (Delhi Admn.) 1995 Cr LJ 1623 (Del) (“Amarjit Singh”). But the documents can be impeached in any other manner, though the admissibility cannot be challenged subsequently when the document is bound in evidence.”

In PC Thomas v. PM Ismail, AIR 2010 SC 905; 2009-10 SCC 239, it is observed as under:

“No objection on pleas of “inadmissibility” or “mode of proof” was raised at the time of their exhibition or any time later during trial, when most of the witnesses, produced by the parties were confronted with these, as duly exhibited, bearing stamp marking with particulars, prescribed under Order XIII Rule 4 of the Code of Civil Procedure, 1908 and duly signed as such.
In our opinion, it is too late in the day now to object to their exhibition on the ground of “prescribed procedure” i.e. mode of proof.
Moreover, we also find that it was nobody’s case that the said documents were got printed by John K or distributed amongst voters by him. Absence of proof of acknowledgment by him because of non production of John K as a witness, in the circumstances, in our view, is inconsequential.
Admittedly, John K was a well known leader of high stature, recognized as such by Christian/Catholic voters including those mentioned in Para 17 (supra) and, therefore, there is no question of drawing an adverse inference against the election petitioner for not examining him, as strenuously urged on behalf of the appellant, particularly when the printing and circulation of offending material (Exts.P1 and P2) has been proved by the election petitioner beyond reasonable doubt.”

Objection as to Truth of Contents, First Time In Appeal – Effect

In Rafia Sultan v. Oil And Natural Gas Commission (I.C. Bhatt, S.B. Majmudar, JJ.), 1986 ACJ 616; 1986 Guj LH 27; 1985-2 GujLR 1315 it is observed as under:

“It was never the case of the Commission that report which was submitted in a sealed cover was not the genuine and true report of the committee appointed by the Commission itself. Thus in short no objection about the truth of contents of Ex. 24/1 i. e. Ex. 32 was ever put forward before the trial Court and rightly so as that was the report of its own committee of experts appointed by the Commission for enlightening itself about the causes of the accident and about the future safety steps which were required to be taken to avoid such accidents. … Not only that but the witness of the defendant accepted the contents of the said document Ex. 32. Nothing was suggested by him or even whispered to the effect that the contents of the said report were in any way untrue. …. In fact both the sides have relied upon different parts of Ex. 32 in support of their rival contentions on the aspect of negligence and contributory negligence. It is therefore too late in the day for Miss Shah for the Commission to canvass for the first time before us in appeal that contents of Ex. 32 were not proved in accordance with law and hence the document was required to be taken off the record. It is now well settled that objection about mode of proof can be waived by a party and that such objection is raised by the party at the earliest opportunity in the trial Court such objection will be deemed to have been waived and cannot be permitted to be raised for the first time in appeal (vide P. C. Purushottamman v. S. Perumal AIR 1972 SC 608; Pandappa v. Shivlingappa 47 BLR. 962; and Gopaldas and another v. Shri Thakurli, AIR 1943 PC 83 at page 87 ). In view of this settled legal position the objection raised by Miss Shah against admissibility of Ex. 32 viz. that its contents were not proved in accordance with law has to be repelled.”

(b) Proof of execution may not be enough: Exhibiting of documents in evidence, without objection, and proving the same before the court are two different process. In certain cases, as comes out from Sec. 56, 57 and 58 of the Evidence Act, when a document is admitted, separate proof need not be warranted. Separate proof may not be required when presumptions can be invoked (e.g. document in ordinary course of business, a letter obtained in reply).

Contents of documents are presented in two ways:

documents in original
(by way) of secondary evidence.

The party has to lay down the factual foundation to establish the right to give secondary evidence where the original document cannot be produced [Rakesh MohindraVs. Anita Beri: 2015AIR(SCW) 6271].

Secondary-evidence – Marked Without Objection – Objection stands waived. When the party gives in evidence a certified-copy/secondary-evidence without proving the circumstances entitling him to give secondary evidence, the opposite party must raise his objection (if so) at the time of admission of such documents. In case, an objection is not raised at that point of time, it is precluded from being raised at a belated stage. It stands waived. [Iqbal Basith v. N Subbalakshmi, (2021) 2 SCC 718; Kaliya Vs. State of MP: 2013-10 SCC 758]

2. Mere marking– not dispense with proof (of truth of contents)

As this proposition (Mere Marking Does Not Prove the Contents) is not to be applied “literatim”, each case (which referred to this proposition) requires distinct consideration. (Some of these decisions mentioned this proposition, merely to show that such an argument was placed before it; but those decisions were quoted (subsequently) by some Courts as if those earlier decisions laid down a ‘ratio decidendi’.)

Accepted law on this point –

1. MERE MARKING PROVE THE CONTENTS if no objection. E.g. Rent receipt executed by the opposite side; Photocopy of a document.
2. MERE MARKING WILL NOT PROVE THE CONTENTS if Truth of the facts in the document was “in issue“ or validity was very much in question.

Following are the often-cited cases on this subject.

Cited to support the Proposition – MERE MARKING PROVE THE CONTENTS

Decision	Were the documents ‘marked without proper proof‘ accepted in evidence?	Reason for MARKING
Narbada Devi Gupta v. Birendra Kumar Jaiswal, 2003-8 SCC 745	Yes. The rent receipts* were received in evidence. (without formal proof)*	The rent receipts were ‘not disputed’* by the other side.*
Kaliya v. State of Madhya Pradesh, 2013-10 SCC 758	Yes. The secondary evidence* of dying declaration produced in this case was accepted by the Court.*	Secondary evidence was adduced with foundational evidence (for producing copy; not original)

Cited to support the Proposition – MERE MARKING DOES NOT PROVE THE CONTENTS

Decision	Did the proposition – Mere Marking Does Not Prove the Contents – unreservedly apply?	Reason for NOT MARKING
Ramji Dayawala v. Invest Import: AIR 1981 SC 2085	No. Truth of contents of a letter and two telegrams were not taken. (though marked)	Truth of the facts in the document was “in issue“
M. Chandra v. M. Thangamuthu, 2010-9 SCC 712	No. Validity and Genuineness of the Photocopy (of the Caste Certificate) was not* accepted (though marked)*	Validity and Genuineness of the Caste Certificate was very much in question
H. Siddiqui v. A. Ramalingam, (2011) 4 SCC 240	No. *Contents* of the *Photocopy* was not received* as proof (though marked)*	*Photocopy* was shown to the witness during cross-examination alone, and Signature alone was admitted by the witness.
Tarajee Khimchand v. Yelamarti Satyam, AIR 1971 SC 1865	No. Accounts of the Plaintiff was not received as proof (though marked)	The accounts of the Plaintiff would not be proved by itself

In 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.”]

The Orissa High Court, in 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.] as under:

“7. A close reading of the above noted judicial pronouncements would show that whenever a document is marked as exhibit without objection, it will be presumed that a party having right of objection has waived formal proof of the document and in such situation, the entire contents of the document would be admissible in evidence. However, by such admission of document, the truth and correctness of the contents by itself would not be established and there must be some evidence to support the contents of such document.”

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.

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.”

3. IF ‘TRUTH’ IS IN ISSUE- Mere Marking Not Amounts to ‘Waiver’

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.”

The ‘dispute’ as to ‘truth’ of contents of a document can be brought-in in the examination of the witness through whom it is exhibited.

4. Admission of contents – may dispense with proof; but probative value may be less or nil

Admissibility & probative value – two matters. State of Bihar Vs. 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.”

Probative Value: The word meaning of ‘probative’ is – substantiating, serving to prove, affording evidence, having the quality of proving something etc.; and, the meaning of ‘probative value’ is –

Evidence which is sufficiently useful to prove something in a trial.
Value or weight of evidence, considered by the court, to prove something.
Extent of evidentiary value that can be taken to prove a proffered proposition.

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

Whenever a document is admitted in court, the probative value thereof will be a matter for the court to determine.

State of Bihar v. Radha Krishna Singh, AIR 1983 SC 684, it is observed:

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

Mere Filing and Mere Marking documents

In Subhash Maruti Avasare v. State Of Maharashtra, 2006-10 SCC 631, SB Sinha, J., held as under:

“By mere filing of a document, its contents are not proved. A certificate issued by an expert should be brought on record by examining him.”

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 (2010) 9 SCC 712 : Nandkishore Lalbhai Mehta Vs.New Era Fabrics: AIR 2015 SC 3796; Birad Mal SinghviVs. Anand Purohitb: 1988 (Supp) SCC 604: date of birth)]

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.”

5. Court should allow concerned party, to adduce proper evidence to prove documents

Defect for not producing a proper power of attorney being curable, in Haryana State Coop. Supply and Marketing Federation Ltd. v. Jayam Textiles, 2014 AIR SC 1926 (a case under Section 138 Negotiable instruments Act), the Apex Court gave opportunity to the petitioner to produce the authorization of Board of Directors. It is observed that the in Raj Narian v. Indira Nehru Gandhi, (1972) 3 SCC 850 it was held that the rules of pleadings are intended as aids for a fair trial and for reaching a just decision. This principle is reiterated in ever so many cases. They include:

F.A. Sapa v. Singora, (1991) 3 SCC 375;
H.D. Revanna v. G. Puttaswamy Gowda, (1999) 2 SCC 217;
V.S. Achuthanandan v. P.J. Francis, (1999) 3 SCC 737;
Mahendra Pal v. Ram Dass Malanger, (2000) 1 SCC 261;
Virender Nath Gautam v. Satpal Singh, (2007) 3 SCC 617 (observed that facta probanda (material facts) are to be set out in the pleadings and facta probantia (particulars or evidence) need not be set out in the pleadings);
Sardar Harcharan Singh Brar v. Sukh Darshan Singh, (2004) 11 SCC 196 (held that defective verification or affidavit is curable);
Harkirat Singh v. Amrinder Singh, (2005) 13 SCC 511;
Umesh Challiyil v. K.P. Rajendra, (2008) 11 SCC 740;
KK Ramachandran Master v. MV Sreyamakumar, (2010) 7 SCC 428

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 document was sought to be admitted in 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.”

UPSHOT: Inasmuch as (a) mere marking of a document on admission will not (invariably), amount to proof, or evidence of the contents of the document or its truth; (b) the probative value of a document ‘marked without objection’ 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.

In Shail Kumari v. Saraswati Devi, 96 (2002) DLT 131, it is observed as under:

“14. In case a document is marked exhibit without an objection from the party which is affected by that document ordinarily its admissibility cannot be questioned at a later stage of the proceedings in the suit. But in cases where such document is marked exhibit without due application of mind in violation of provisions of a statute requiring a particular mode of proof etc., the opposite party may still show during the hearing of final arguments that the document is inadmissible in evidence and should be excluded from consideration because of statutory bar or non-compliance of statutory requirement about mode of proof or otherwise. For instance a will is required to be proved by examining at least one of the attesting witnesses in accordance with Section 68 of the Evidence Act. A document which is inadmissible for want of registration or proper stamp is inadmissible in evidence, unless use of it is permissible for collateral purposes or extracts of accounts book without production of books of account and proof that they were kept in ordinary course of business. Mere putting of exhibits number on these documents in the absence of their proof in accordance with law does not make them part of the evidence to be read for deciding the suit.”

PART V

INSUFFICIENTLY STAMPED DOCUMENTS

Instruments not duly stamped, inadmissible

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

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

Unstamped document cannot be looked at even for any collateral purpose

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

33. Examination and impounding of instruments—(1) Every person having by law or consent of parties, authority to receive evidence, and every person in charge of a public office, except an officer of police, before whom any instrument, chargeable, in his opinion, with duty, is produced or comes in the performance of his functions, shall, if it appears to him that such instrument is not duly stamped, impound the same.
(2) For that purpose every such person shall examine every instrument so chargeable and so produced or coming before him, in order to ascertain whether it is stamped with a stamp of the value and description required by the law in force in⁶² [India] when such instrument was executed or first executed: Provided that—
(a) nothing herein contained shall be deemed to require any Magistrate or Judge of a Criminal Court to examine or impound, if he does not think fit so to do, any instrument coming before him in the course of any proceeding other than a proceeding under Chapter XII or Chapter XXXVI of the Code of Criminal Procedure, 1898 (5 of 1898);
(b) in the case of a Judge of a High Court, the duty of examining and impounding any instrument under this section may be delegated to such officer as the Court appoints in this behalf.
(3) For the purposes of this section, in cases of doubt,—
(a) theState Government may determine what offices shall be deemed to be public offices; and
(b) theState Government may determine who shall be deemed to be persons in charge of public offices.

Insufficiently Stamped Document

Courts in India has been taken the view that the the unstamped or insufficiently stamped document do not fall under the head – ‘Inherently inadmissible document’ in view of Section 36 of the Indian Stamp Act.

Section 36 of the Indian Stamp Act provides as under:

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

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

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

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

In Jainab Bibi Saheb v. Hyderally Saheb, (1920) 38 MLJ 532, it was pointed out that neither an omission by an advocate to object to giving of irrelevant and inadmissible evidence nor the failure of the tribunal to exclude it of its own motion would validate a decree based on material which the Evidence Act declares to be inherently and in substance irrelevant to the issue. It was also held in this decision that the primary rule to prove relevant facts by the evidence of witnesses is to call them before the trial Judge and examine them viva voce in the manner stated in Chapter 10 of the Evidence Act.

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

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

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

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

Section 36 of the Stamp Act provides as under:

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

Earlier View:

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

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

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

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

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

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

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

Should Court Sit Silent and Question Unstamped Document Afterwards

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

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

Therefore, it is not definite-

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

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

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

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

Forceful propositions that Existed Earlier – Paradoxical and Incongruent

The following forceful propositions stand paradoxical and incongruent.

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

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

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

It appears that the latest view of the Supreme Court is that given in Omprakash v. Laxminarayan, (2014) 1 SCC 618.

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

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

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

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

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.”

Is ‘Impounding’ totally Independent from ‘Admissibility’

Karnataka High Court (N. Kumar, J.), in Rekha S. Chandru v. Chikka Venkatappa (2015), authoritatively held relying on Javer Chand v. Pukhraj Surana, AIR 1961 SC 1655, that when a document was already marked by the trial Court in evidence, the objection regarding stamp duty cannot be raised at a later stage.

It further observed (obiter) by the Karnataka High Court that the impounding the document was totally different from admissibility; and therefore, an insufficiently stamped document, if admitted by mistake, was liable to be impounded by the Court and the procedure prescribed in the Stamp Act was to be followed in so far as collection of stamp duty and penalty were concerned.

It appears that the above proposition of the Karnataka High Court has to be evaluated on the touchstone of the Apex Court verdict, Javer Chand v. Pukhraj Surana, AIR 1961 SC 1655, which reads as under:

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

Should an opportunity be given to cure defect, by paying deficit Stamp Duty?

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

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

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.

PART VII

PRESUMPTIONS ON DOCUMENTS arise in the following cases:

Presumption on documents made in the course of business.
Presumption on Regularity of official and judicial acts.
Presumption on Registered Documents.
Presumption on statements of dead person or who is not found etc.
Presumption on 90 years old documents.
Presumption on undue influence
Presumption on Specific documents:
- a. Wound Certificates, Post-Mortem Report etc.
- b. Certificate, prepared on the basis of other documents.
- c. Commission Report in an earlier case
- d. Deposition in an earlier case

PROOF INVOKING PRESUMPTION – Sec. 114, Evid. Act read with Sec. 35.

The evidence/proof of contents of document may be given by proving circumstances for the same or by invoking presumption also. ‘Common course of natural events’, ‘human conduct’ etc. under S. 114, Evd. Act can be used to prove the existence and genuineness/truth of a document.

Sec. 35 of the Evidence Act reads as under:

“35. Relevancy of entry in public record or an electronic record made in performance of duty: An entry in any public or other official book, register or record or an electronic record, stating a fact in issue or relevant fact, and made by a public servant in the discharge of his official duty, or by any other person in performance of a duty specially enjoined by the law of the country in which such book, register, or record or an electronic record is kept, is itself a relevant fact.

Under S. 114, Illustration (e) for Judicial and official acts there is presumption as to ‘regularity’. It is not presumption as to correctness or truth. For such presumption, one can resort to main section, Sec. 114 – that is, ‘common course of natural events’, ‘human conduct’ etc. (and not ‘regularity’ in Illus.–e).

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‘.

Read Blog: Public Documents: Proof and Presumption on Truth

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 The State of Haryana v. Amin Lal (SC), Nov. 19, 2024, it is held as under:

“Revenue records are public documents maintained by government officials in the regular course of duties and carry a presumption of correctness under Section 35 of the Indian Evidence Act, 1872. While it is true that revenue entries do not by themselves confer title, they are admissible as evidence of possession and can support a claim of ownership when corroborated by other evidence.”

As shown above, in Madamaiichi Raniappa VS Muthaluru Bojjappa (Gajendragadkar , J.), AIR1963 SC1633; 1964-2 SCR 673It is held as under:

9. … The document in question being a Certified copy of a public document need not have been proved by calling a witness.”

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.

Public Register is Public Document; A Certificate, Not

In Oriental Insurance Company Ltd. v. Poonam Kesarwani , (2010) ACJ 1992, the Division Bench of Allahabad High Court considered whether the letter/certificate issued by Regional Transport Officer coluld be considered to be a public document as defined in Section 74 of the Indian Evidence Act which required no proof. It is pointed out –

‘A public document is a document that is made for the purpose of public making use of it. When a public officer is under a duty to make some entries in the official book or register, the entries made therein are admissible in evidence to prove the truth of the facts entered in the official book or register. The entries are evidence of the particular facts which was the duty of the officer to record. The law reposes confidence in the public officer entrusted with public duties and the law presumes that public officers will discharge their duties with responsibility. A driving licence is issued under Chapter II of the Act. Section 26 of the Act makes it mandatory for the State Government to maintain a register known as State Register of Driving Licences. The entries with regard to issuance or renewal of driving licence by the licensing authorities which contains particulars of the licence and the licence holder are entered by the Regional Transport Officer/the licensing authority in discharge of their official duty enjoined by law. The State Register of Driving Licences is record of the acts of public officers. The State Register of Driving Licences is a public record. It can be inspected by any person. We are of the considered opinion that the State Register of Driving Licences is a public document as defined by Section 74 of the Evidence Act.
10. Section 76 of the Evidence Act gives the right to obtain a certified copy of a public document which any person has a right to inspect on payment of fee. A certified copy of the entries made in the public record is required to be issued on payment of fee in Form 54 as laid down by rule 150 (2). Form 54 being a certified copy of a public document, namely, the State Register of Driving Licences need not be proved by examining a witness. Once a certified copy of the entries made in the register maintained under Section 26 (1) read with rule 23 is issued in Form 54 it is admissible in evidence under Section 77 of the Evidence Act, and no further proof of Form 54 by oral evidence by examining witnesses is required.
12. The aforesaid information is in the form of a letter written to the investigator appointed by the insurance company. It cannot be deemed to be a certificate or certified copy in Form 54 of the Rules. Deposit of fee would not convert the letter into a certificate under rule 150. Therefore, the aforesaid letter issued by the Regional Transport Officer, Raipur (Chhattisgarh) was required to be proved by the insurance company before the Tribunal by oral evidence by examining witnesses. Insurance company had failed to lead any evidence to prove the aforesaid letter by examining witnesses before the Tribunal. The Tribunal rightly refused to place reliance on the letter dated 20.4.2005.”

Oriental Insurance Company Ltd. v. Poonam Kesarwani , (2010) ACJ 1992 is quoted and followed in New India Assurance Company Ltd. v. Indu Bala, ILR 2016-3 HP 1829 (Tarlok Singh Chauhan, J.).

PROOF INVOKING PRESUMPTION – Registered deed

Truth of the contents of a document, can be established

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

Presumptions can be the (specific) presumptions under Sec. 79 to 90A or presumptions (general) under Sec. 114. In presumption, 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 (See: St. of West Bengal Vs. Mir Mohammad Omar, AIR 2000 SC 2988).

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 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.”

In Vimal Chand Ghevarchand Jain v. Ramakant Eknath Jajoo, (2009) 5 SCC 713, it is held as under:

“The deed of sale dated 29.6.1978 was a registered one. It, therefore, carries a presumption that the transaction was a genuine one.”

The Apex Court observed in Bhagat Ram v. Suresh, AIR 2004 SC 43 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 correct without 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. ……. …

Registration of a document does not dispense with the need of proving the execution and attestation of a document which is required by law to be proved in the manner as provided in Sec. 68 of the Evidence 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].

On account of registration of a document, including a will or codicil, a presumption as to correctness or regularity of attestation cannot be drawn. 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 to the attestation. His evidence would be liable to be appreciated and evaluated like the testimony of any other attesting witness.

In Sulender Singh v. Pritam, 2013-3 HLR 1443, it is held by the Himachal Pradesh High Court that there was a presumption of correctness to 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: Presumption – Validly Executed

It is held in Prem Singh v. Birbal, AIR 2006 SC 3608, 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.”

In Bellachi v. Pakeeran, AIR 2009 SC 3293, also 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: 2018 KHC 7002 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.” “

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.

Certain Facts Which Need Not Be Proved

CHAPTER III of the Indian Evidence Act (Section 56 to 58) lays down ‘Facts Which Need Not Be Proved’. They are the following:

56. Fact judicially noticeable need not be proved. –– No fact of which the Court will take judicial notice need be proved.

57. Facts of which Court must take judicial notice. –– The Court shall take judicial notice of the following facts: ––

(1) All laws in force in the territory of India;
(2) All public Acts passed or hereafter to be passed by Parliament of the United Kingdom, and all local and personal Acts directed by Parliament of the United Kingdom to be judicially noticed;
(3) Articles of War for the Indian Army, Navy or Air Force;
(4) The course of proceeding of Parliament of the United Kingdom, of the Constituent Assembly of India, of Parliament and of the legislatures established under any laws for the time being in force in a Province or in the States;
(5) The accession and the sign manual of the Sovereign for the time being of the United Kingdom of Great Britain and Ireland;
(6) All seals of which English Courts take judicial notice: the seals of all the Courts in India and of all Courts out of India established by the authority of the Central Government or the Crown Representative]; the seals of Courts of Admiralty and Maritime Jurisdiction and of Notaries Public, and all seals which any person is authorized to use by the Constitution or an Act of Parliament of the United Kingdom or an Act or Regulation having the force of law in India;
(7) The accession to office, names, titles, functions, and signatures of the persons filling for the time being any public office in any State, if the fact of their appointment to such office is notified in any Official Gazette;
(8) The existence, title and national flag of every State or Sovereign recognized by the Government of India;
(9) The divisions of time, the geographical divisions of the world, and public festivals, fasts and holidays notified in the Official Gazette;
(10) The territories under the dominion of the Government of India;
(11) The commencement, continuance and termination of hostilities between the Government of India and any other State or body of persons;
(12) The names of the members and officers of the Court, and of their deputies and subordinate offices and assistants, and also of all officers acting in execution of its process, and of all advocates, attorneys, proctors, vakils, pleaders and other persons authorized by law to appear or act before it;
(13) The rule of the road on land or at sea.In all these cases, and also on all matters of public history, literature, science or art, the Court may resort for its aid to appropriate books or documents of reference.
If the Court is called upon by any person to take judicial notice of any fact, it may refuse to do so unless and until such person produces any such book or document as it may consider necessary to enable it to do so.

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.

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).

Pay Duty With Penalty to Admit Unstamped Deed for Collateral Purpose

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

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

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

The Supreme Court observed in Sri Venkoba Rao Pawar v. Sri S. Chandrashekar, AIR 2008 SCW 4829, that the collateral purpose/transaction must be independent of, or divisible from the transaction which requires registration.

The Apex Court in K.B. Saha and Sons Private Limited, 2008 AIR SCW 4829, has laid down the principle in respect of the collateral purpose.

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

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

PART VIII

Modes of Proof of Documents

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

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

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

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

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

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

PART IX

Conclusion

From the above, the legal position discernible can be summarised as under:

(i) Even when a document is technically ‘admitted’ in court, the probative value thereof will always be a matter for the court; and it is depended upon the nature of each case.

(ii) Whenever the court considers:

(a) mere marking of a document on admission will not amount to proof, or
(b) mere marking is not evidence of the contents of the document or its truth; or
(c) the probative value of a document ‘marked without objection’ is low or nil, for want of proper proof; or
(c) there is a formal defect to the document for it is a secondary evidence because it is produced without adducing ‘foundational evidence’;

then,

before taking an adverse stance as to proof (in this count), the court should give an opportunity to the party who relies on the document to cure the deficiency.

Similar Articles:

Read in this cluster (Click on the topic):

Civil Suits: Procedure & Principles

Power of attorney

Title, ownership and Possession

Principles and Procedure

Land Laws/ Transfer of Property Act

Evidence Act – General

Contract Act

Easement

Stamp Act

Will

Book No. 2: A Handbook on Constitutional Issues

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

Book No. 4: Common Law of TRUSTS in India

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

Order II, Rule 2 CPC – Not to Vex Defendants Twice for the Same Cause of Action

Saji Koduvath, Advocate, Kottayam.

Introduction.

Order II rule 2 of the Code of Civil Procedure bars splitting of reliefs, claimed in suits, on the same cause of action. The object is two-fold. First, defendants should not be vexed twice for the same cause of action (Inacio Martins v. Narayan Hari Naik, AIR 1993 SC 1756; 1993-3 SCC 123; and the second, prevent multiplicity of suits (Cuddalore Powergen Corporation Ltd. v. Chemplast Cuddalore Vinyls Ltd. J.B. Pardiwala and Justice R. Mahadevan, JJ., Neutral Citation: 2025 INSC 73; State Bank of India v. Gracure Pharmaceuticals Ltd. , AIR 2014 SC 731; R. Salvi v. Satish Shankar Gupte, AIR 2004 Bom 455).

“Cause of action” is “the matter requires adjudication for getting the reliefs”

“Cause of action” is –

“every fact which would be necessary for the plaintiff to prove, if traversed, in order to support his right to the judgment of the Court”

A matter “necessary to prove, if traversed” is the matter that requires “adjudication”.

Because, adjudication means –

“a judicial determination of a matter in controversy”.

Therefore “cause of action” can be practically explained as “the matter requires adjudication for getting the reliefs”.

“Cause of action” chosen, or that ‘formed the foundation’ of suit, is the criterion

Pointing out that that the term “cause of action” is not defined in the CPC, it has been explained by the Apex Court, in Kandimalla Raghavaiah v. National Insurance Co., AIR 2010 SC Supp 880, that “cause of action” has different meanings in different contexts, though generally, it is described as “bundle of facts”; and that the plaintiff is entitled to the relief prayed for, if they are proved. In this decision the Apex Court also observed that “Cause of action” means the cause of action for which the suit is brought; and that “Cause of action” is cause of action which gives occasion for and forms the foundation of the suit.

On a scrutiny of the Supreme Court decision it is clear that, in a given set of facts, a plaintiff can choose the cause of action for an order of injunction, leaving apart causes of action for specific performance.

In Mohammad Khalil Khan v. Mahbub Ali Mian, AIR 1949 PC 78, it was pointed out that what would constitute the cause of action in a suit must always depend on the particular facts of each case and the true difficulty in each instance arises only upon the application of this rule. It is held as under:

“As pointed out in Moonshee Bazloor Ruheem v. Shumsoonnissa Begum (11 M.I.A. 551 at p. 605) “The correct test in all cases of this kind is, whether the claim in the new suit is, in fact, founded on a cause of action distinct from that which was the foundation of the former suit.” (Quoted in: Cuddalore Powergen Corporation Ltd. v. Chemplast Cuddalore Vinyls Ltd. J.B. Pardiwala and Justice R. Mahadevan, JJ., Neutral Citation: 2025 INSC 73)

Referring various English decisions it is observed in Cuddalore Powergen Corporation Ltd. v. Chemplast Cuddalore Vinyls Ltd. J.B. Pardiwala and Justice R. Mahadevan, JJ., Neutral Citation: 2025 INSC 73, as under:

“These observations show that in considering whether the cause of action in the subsequent suit is the same or not as the cause of action in the previous suit, the test to be applied is, are the causes of action in the two suits in substance-not technically-identical?
Applying this test the learned Judges came to the conclusion that the causes of action in the two suits in Brunsden v. Humphrey[(14 Q.B.D. 141). were distinct. Observations to the same effect appear in certain decisions of this Board. In Soorjomonee Dayee v. Suddanund [12 Beng. [(1873) 12 Beng L.R. 304, 315], their Lordships stated as follows:-
“Their Lordships are of opinion that the term “cause of action” is to be construed with reference rather to the substance than to the form of action.”
In Krishna Behari Roy v. Brojeswari Chowdranne [(1875) LR 2.I.A. 283, 285.], Sir Montague Smith in delivering the judgment of the Board observed:- “their Lordships are of opinion that the expression “cause of action” cannot be taken in its literal and most restricted sense. But however that may be.”

“Order II rule 2 : Suits to include the whole claim:

(1) Every suit shall include the whole of the claim which the plaintiff is entitled to make in respect of the cause of action; but a plaintiff may relinquish any portion of his claim in order to bring the suit within the jurisdiction of any Court.
(2) Relinquishment of part of claim.- Where a plaintiff omits to sue in respect of, or intentionally relinquishes, any portion of his claim, he shall not afterwards sue in respect of the portion so omitted or relinquished.
(3) Omission to sue for one of several reliefs.- A person entitled to more than one relief in respect of the same cause of action may sue for all or any of such reliefs; but if he omits, except with the leave of the Court, to sue for all such reliefs, he shall not afterwards sue for any relief so omitted.
Explanation.- For the purposes of this rule an obligation and a collateral security for its performance and successive claims arising under the same obligation shall be deemed respectively to constitute but one cause of action.”

Also Read: Order IX Rule 9 CPC: Earlier Suit for Injunction; Subsequent Suit for Recovery & Injunction – No Bar

O.II r.2 is Attracted when a Plaintiff Omitted to Raise All Reliefs in a Previous Suit

It is held in Gurbux Singh v. Bhooralal, AIR 1964 SC 1810, as follows:

“6. In order that a plea of a bar under O. 2, r. 2(3), Civil Procedure Code should succeed the defendant who raises the plea must make out
(1) that the second suit was in respect of the same cause of action as that on which the previous suit was based,
(2) that in respect of that cause of action the plaintiff was entitled to more than one relief,
(3) that being thus entitled to more than one relief, the plaintiff, without leave obtained from the Court, omitted to sue for the relief for which the second suit had been filed.”

Several reliefs Arises from the Same Cause of Action should be United

In Mohammed Khalil Khan v. Mahbub Ali Khan, AIR 1949 PC 78 it is held as under:

“The principles laid down in the cases thus far discussed may be thus summarized :
the correct test in cases falling under Or. 2, r. 2, is “whether the claim in the new suit is, in fact, founded on a cause of action distinct from that which was the foundation for the former suit.” (Moonshee Buzloor Ruheem v. Shumsoonnissa Begum.)
(2.) The cause of action means every fact which will be necessary for the plaintiff to prove, if traversed, in order to support his right to the judgment. (Read v. Brown.)
(3.) If the evidence to support the two claims is different, then the causes of action are also different. (Brunsden v. Humphrey.)
(4.) The causes of action in the two suits may be considered to be the same if in substance they are identical. (Brunsden v. Humphrey.)
(5.) The cause of action has no relation whatever to the defence that may be set up by the defendant, nor does it depend on the character of the relief prayed for by the plaintiff.
It refers “to the media upon which the plaintiff asks the Court to arrive at a conclusion in his favour.” (Muss. Chand Kour v. Partab Singh.) This observation was made by Lord Watson in a case under s. 43 of the Act of 1882 (corresponding to Or. 2, r. 2), where plaintiff made various claims in the same suit.” (Quoted in Life Insurance Corporation v. Sanjeev Builders Pvt. Limited, AIR 2022 SC 4256)

Referring Mohammed Khalil Khan v. Mahbub Ali Khan, AIR 1949 PC 78 it is observed in Raman Ittiyathi VS Pappy Bhaskaran, AIR 1990 Ker 112, that there may be cases in which the same cause of action might give rise to several reliefs. In such cases also, all these reliefs should be united in the same suit. If not, the bar would apply. But in such cases, he could obtain leave of Court and reserve one or more reliefs for a separate suit. The bar would apply only if the leave of Court is not obtained. Even then the whole claim will have to be included, otherwise the bar would apply.

O.II, R.2 Does Not Require All Causes of Action Must be Combined in One Suit

It is further pointed out in Raman Ittiyathi v. Pappy Bhaskaran, AIR 1990 Ker 112, that Order II, r.2 does not require that when a transaction or right gives rise to several causes of action they should all be combined in one suit, or that the plaintiff must lay his claim alternatively in the same suit for these different causes of action. What is required is that the cause of action cannot be split up to sue for one part in one suit and another part in another suit.

It is Not Every Claim or Every Cause of Action of Plaintiff Against Defendant

In Cuddalore Powergen Corporation Ltd. v. Chemplast Cuddalore Vinyls Ltd. J.B. Pardiwala and Justice R. Mahadevan, JJ., Neutral Citation: 2025 INSC 73, the Supreme Court found that earlier injunction suit was not a bar for second suit for specific performance since the plaintiff could not have filed (because of a bar under and Govt. Order) the suit for specific performance when the first suit was filed. The Court emphasised the law on this matter as under:

“36. The object of both the Rules 1 and 2 of Order II is to prevent the multiplicity of suits. Order II Rule 2 is founded on the principle that a person should not be vexed twice for one and the same cause. It is a rule which is directed against two evils i.e., the splitting up of claims and the splitting up of remedies. What Order II Rule 2 requires is the inclusion of the whole claim arising in respect of one and the same cause of action, in one suit. However, this must not be misunderstood to mean that every suit shall include every claim or every cause of action which the plaintiff may have against the defendant. Therefore, where the causes of action are different in the two suits, Order II Rule 2 would have no application.
37. On a more careful perusal of the provision, it can be seen that Order II Rule 2(1) reads as – “every suit shall include the whole of the claim which the plaintiff is entitled to make in respect of the cause of action”, whereas the words used in Order II Rule 2(3) are “the same cause of action”. Despite being so, the words “the cause of action” used in Order II Rule 2(1) must be read to mean “the particular cause of action“. Only on such a reading one can arrive at the inference that where there are different causes of action, Order II Rule 2 will not apply; and where the causes of action are the same, the bar imposed by Order II Rule 2 may apply.
38. Order II Rule 2(1) requires every suit to include the whole of the claim to which the plaintiff is entitled to in respect of a particular cause of action. However, the plaintiff has an option to relinquish any part of his claim for the purpose of bringing the suit within the jurisdiction of any court. Order II Rule 2(2) contemplates a situation where a plaintiff omits to sue or intentionally relinquishes any portion of the claim which he is entitled to make. If the plaintiff so acts, then he shall not, afterwards, sue for the part or portion of the claim that has been omitted or relinquished.
xxxxx
It is, therefore, clear from a conjoint reading of the provisions of Order II Rules 2(2) and (3) CPC that the aforesaid two sub-rules of Order II Rule 2 contemplate two different situations, namely,
- where a plaintiff omits or relinquishes a part of a claim which he is entitled to make and,
- secondly, where the plaintiff omits or relinquishes one out of the several reliefs that he could have claimed in the suit.
It is only in the latter situation where the plaintiff can file a subsequent suit seeking the relief omitted in the earlier suit, provided that at the time of omission to claim the particular relief, he had obtained the leave of the court in the first suit.”

If Claim is Omitted or Limited, Bar to Seek Recover the Balance

If a cause of action enables a person to ask for a larger and wider relief than that to which he limits his claim, he cannot afterwards seek to recover the balance. (Sidramappa VS Rajashetty, AIR 1970 SC 1059; Raman Ittiyathi v. Pappy Bhaskaran, 1990 AIR Ker 112).

Should Omission Be “Intentional”

Order II rule 2 says:

Relinquishment of claim in Order II rule 2 is attracted where
plaintiff omits to sue in respect of any portion of his claim, and
intentionally relinquishes any portion of his claim.

It is clear that the relinquishment must be “intentional”. However, “omission” stated in Order II rule 2 need not be “intentional”, as worded in this rule. Apparently, it is immaterial whether the omission was by neglect, oversight, mistake, fraudulent, dishonest or intentional. But, it is pointed out in Raman Ittiyathi v. Pappy Bhaskaran, 1990 AIR Ker 112 that in the following decisions it is held that in order that the bar should apply the plaintiff must have been aware of or conscious about the omitted relief, and that if the omission was due to lack of knowledge or awareness of the cause of action or the relief, the bar cannot apply.

Nihal Singh v. Mt. Najuban, AIR 1923 All 230;
Yarlagadda Pakeerayya v. Puligadda Suryanarayana, AIR 1927 Mad 791;
Thotappalle Sarvabhotla Venkata Chandikamba v. Kunala Indrakanti Veswanadhamayya, AIR 1936 Mad 699;
Binya Bai v. Ganpat, AIR 1918 Nag 158

O.II r.2 Bar is Attracted Only When Inclusion of Relief is ‘Obligatory’, and ‘Not Optional’.

In other words, subsequent reliefs ‘Could not have been Claimed’ in the Former Suit.

In Gurbux Singh v. Bhooralal, AIR 1964 SC 1810, it is held by the Apex Court, analyzing O.II r.2, as follows:

“6. From this analysis it would be seen that the defendant would have to establish primarily and to start with, the precise cause of action upon which the previous suit was filed, for unless there is identity between the cause of action on which the earlier suit was filed and that on which the claim in the later suit is based there would be no scope for the application of the bar.”

Relying on Gurbux Singh v. Bhooralal it is observed in Raman Ittiyathi v. Pappy Bhaskaran, 1990 AIR Ker 112, that O.II r.2 bar is attracted when the inclusion of the relief in the previous suit was not only possible, but also its inclusion was obligatory and not optional.

For example, the second suit for recovery of possession is not barred when title was found in the earlier suit; and the relief of injunction was denied on the ground that defendants are in possession. The relief of recovery could not have been claimed on the cause of action alleged in the previous suit (though optionally alternative relief of recovery could have been claimed). (See also: K. Palaniappa Gounder v. Valliammal, AIR 1988 Mad 156, Bominic Animal v. Muthusamy, 1986 TNLJ 117.)

Relief Claimed must have been ‘Available’ in the Earlier Suit

To attract bar under Order II rule 2 the plaintiffs must have relinquished or intentionally omitted to sue the reliefs, in the earlier suit, claimed subsequently. The phrase “omits to sue” denotes that the impugned reliefs in the subsequent suit must have been ‘available’ at the time of filing the first suit. It is observed in Raman Ittiyathi v. Pappy Bhaskaran, 1990 AIR Ker 112, that if the relief claimed in the subsequent suit was not available on the facts alleged to support the fight to relief, namely the cause of action, in the previous suit, there was no bar under O.II, R.2; and that the question was whether the relief in respect of which the bar was pleaded was available on the cause of action pleaded in the earlier suit. (See also: Swaran Singh v. Jaspal Singh, 2019 0 Supreme (P&H) 1934; State Bank of India v. Gracure Pharmaceuticals Ltd. AIR 2014 SC 731)

In Union of India v. H.K. Dhruv (2005) 10 SCC 218, the Apex Court held as follows:

“4. .. In order to attract applicability of the bar enacted by Order 2 Rule 2 CPC, it is necessary that the cause of action on which the subsequent claim is founded should have arisen to the claimant when he sought for enforcement of the first claim before any court.”

If relief of specific performance was available, when Injunction suit was filed, there is bar.

Or. II rule 2 attracts when no suit for sp. performance, but only Suit for Inj.

In Virgo Industries (Eng.) Private Limited v. Venturetech Solutions Private Limited, (2013) 1 SCC 625, the cause of action to file suit for specific performance had arisen on the date the suit for injunction was filed, but it was not claimed. Therefore, our Apex Court held that the subsequent suit would be barred under Order II Rule 2 CPC. (Referred to by the Supreme Court in Bharat Petroleum Corporation Ltd. v. Atm Constructions Pvt. Ltd., 2023)

In Vipan Kumar v. Asha Lata Ahuja, 2009-3 CivCC 737 (P&H); 2009-3 Law Herald 1697; 2010-7 RCR (Civ) 1317, observing that if on the date of filing suit for injunction, the relief of specific performance was available, then the vendee was not entitled to file a suit for specific performance of agreement, as it would be barred under Order 2 Rule 2 of the CPC.

Similar view is expressed in Suresh Chaudhary v. Rakesh Singhal, 2011-1 PLR 331 (P&H) also. It was observed that once it was held that the plaintiff should have filed suit seeking relief of specific performance as the main relief at the time he filed first suit for injunction, then the suit for rec recovery of earnest money and damages, also could not have been subsequently obtained. It will be barred by Order 2 Rule 2(3) CPC.

Criterion – Whether cause of action was available at the time of first suit

In Vurimi Pullarao v. Vemari Venkata Radharani, (2020) 14 SCC 110, it was held that (in the light of earlier injunction suit, where the plaintiff was entitled to sue for specific performance when the earlier suit for injunction was instituted) the second suit for specific performance was barred under Order II Rule 2. The Supreme Court held as under:

“The plaintiff was entitled to sue for specific performance when the earlier suit for injunction was instituted but omitted to do so. There was an identity of the cause of action in the earlier suit and the subsequent suit. …. Yet, without seeking the leave of the Court, the plaintiff omitted to sue for specific performance and rested content with the prayer for permanent injunction. In these circumstances, we agree with the finding which has been arrived at by all the three courts that the subsequent suit filed is barred under Order 2 Rule 2 does not warrant any interference in this appeal.”

The Madras High Court, in Kumarayee Ammal v. M. Ramanathan 2007-4 LW 319; 2007-4 MLJ 1145 held that the real test should be whether the causes of action now urged for the latter suit, were available at the time of the filing of the first suit or not. In the instant case, the causes of action for filing a suit for specific performance were very well available at the time of the first suit. The High Court relied on the following observation in Sidramappa v. Rajashetty, AIR 1970 SC 1059, where the Supreme Court has held as under:

“The requirement of Order 2, Rule 2, Code of Civil Procedure is that every suit should include the whole of the claim which the plaintiff is entitled to make in respect of a cause of action. Cause of action means the cause of action for which the suit was brought. It cannot be said that the cause of action on which the present suit was brought is the same as that in the previous suit. Cause of action is a cause of action which gives occasion for and forms the foundation of the suit. If that cause of action enables a person to ask for a larger and wider relief than that to which he limits his claim, he cannot afterwards seek to recover the balance by independent proceedings.”

The Madras High Court also relied on Bombay High Court in Gajanan R. Salvi v. Satish Shankar Gupte, AIR 2004 Bom 455. The Bombay High Court has held as under:

“6. The learned counsel for the appellant vehemently urged that the present suit of the plaintiff is to claim specific performance of the agreement coupled with the relief of possession, but the earlier suit was for injunction simpliciter. In this way, it was sought by to be urged that plaintiff cannot be prevented by the bar of Order 2, Rule 2 of the C.P.C. as the reliefs were also different. However, this submission cannot be accepted even for a moment because in the eye of law, while considering the bar of Order 2, Rule 2, which provision is aimed for avoiding multiplicity of the suit and mere comparison of the reliefs of variance in few allegation here or there would have no relevance. On the other hand, in substance, what is to be seen is, whether the foundation in the previous suit as well as the present suit is one and the same and further what type of rulings would have been there available for seeking relief in this previous suit that was prayed.
In this regard, time and again, this Court as well as the Apex Court have decided this issue on many occasions. The material principles laid down in various rulings can be summarised thus-
“(1) The correct test in cases falling under Order 2, Rule 2 is whether the claim in new suit is in fact founded on a cause of action distinct from that which was the foundation for the former suit.
(2) The cause of action means every fact which will be necessary for the plaintiff to prove, if traversed, in order to support his right to judgment.
(3) If the evidence to support the two claims is different then the cause of action are also different.
(4) The cause of action in the two suits may be considered to be the same if in substance they are identical.
(5) The cause of action has no relation whatsoever to the defence that may be set up by the defendant nor does it depend on the character of the relief prayed for by the plaintiff. It refers to the media upon which the plaintiff makes the Court to arrive at a conclusion in his favour.”

No bar in filing separate Damages Suit, in spite of earlier Possessory Suit

In Bharat Petroleum Corporation Ltd. v. ATM Constructions Pvt. Ltd., 2023, Supreme Court considered whether the second suit for damages, filed during the pendency of the first suit for possession, was maintainable. It is found that there is no bar in filing a separate suit for claiming damages for use and occupation, though a first suit was filed for possession. The court, inter alia, referred the following decisions:

Gurbux Singh v. Bhooralal, AIR 1964 SC 1810,
Ponnammal v. Ramamirda Aiyar (FB), ILR (1915) XXXVIII Mad 829.

Cause of action for recovery of Possession & Mesne Profits

In Ram Karan Singh v. Nakchhad Ahir, AIR 1931 All 429, and in Sadhu Singh v. Pritam Singh, (FB), ILR (1976) 1 P&H 120, it was pointed out that he cause of action for recovery of possession was not necessarily identical with the cause of action for recovery of mesne profits. (Referred to by the Supreme Court in Bharat Petroleum Corporation Ltd. v. Atm Constructions Pvt. Ltd., 2023)

In Indian Oil Corporation Ltd. v. Sudera Realty Pvt. Ltd., 2022 SCC OnLine SC 1161, it was observed (following Ram Karan Singh v. Nakchhad Ahir, AIR 1931 All 429, and Raptakos Brett and Company Limited v. Ganesh, Property, (2017) 10 SC 643) that the cause of action claiming mesne profits accrue from day to day and the cause of action is a continuing one. (Referred to by the Supreme Court in Bharat Petroleum Corporation Ltd. v. Atm Constructions Pvt. Ltd., 2023)

Pleading and Issue Necessary

In Gurbux Singh Vs. Bhooralal, AIR 1964 SC 1810, it is held as under:

“… From this analysis it would be seen that the defendant would have to establish primarily and to start with, the precise cause of action upon which the previous suit was filed, for unless there is identity between the cause of action on which the earlier suit was filed and that on which the claim in the later suit is based there would be no scope for the application of the bar. No doubt, a relief which is sought in a plaint could ordinarily be traceable to a particular cause of action but this might, by no means, be the universal rule. As the plea is a technical bar it has to be established satisfactorily and cannot be presumed merely on basis of inferential reasoning. It is for this reason that we consider that a plea of a bar under Order 2 Rule 2 of the Civil Procedure Code can be established only if the defendant files in evidence the pleadings in the previous suit and thereby proves to the Court the identity of the cause of action in the two suits……”

The Supreme Court in Alka Gupta Vs. Narender Kumar Gupta, (2010) 10 SCC 141 held as under:

“A suit cannot be dismissed as barred by Order 2 Rule 2 of the Code in the absence of a plea by the defendant to that effect and in the absence of an issue thereon.”

Does Order II Rule 2 ‘Bar’ Apply to ‘Amendments’?

In Life Insurance Corporation v. Sanjeev Builders Pvt. Limited, AIR 2022 SC 4256, it is held that the bar under Order II Rule 2 of the CPC would not apply to an application for amendment of a suit. The argument that the principle of constructive res judicata would apply was also rejected, for there would be no formal adjudication between the parties after full hearing. The apex Court approved the decision of the High Court of Delhi in Vaish Cooperative Adarsh Bank Ltd. v. Geetanjali Despande, (2003) 102 DLT 570.

It is observed in Vaish Cooperative Adarsh Bank Ltd. v. Geetanjali Despande, (2003) 102 Del LT 570, that Order II Rule 2 (2) precludes a subsequent suit on any part of claim, which had been omitted or intentionally relinquished by the plaintiff in an earlier suit based on the same cause of action. It is pointed out that Order II Rule 2 CPC enacts a rule barring a second suit and it sets to operate if there was (i) identity of cause of action in the former and subsequent suits, and (ii) formal adjudication between the parties after full hearing in the former suit. Similarly, Order II Rule 2(3) CPC also directs – where the plaintiff is entitled to more than one relief in respect of the same cause of action but omits, except with the leave of the court, one can sue for such reliefs. In this decision it is also clarified that where the claim or reliefs in the second suit were based on a distinct cause of action, Order II Rule 2 CPC would have no application; and that the field of amendment of pleadings falls far beyond its purview.

From the words that ‘bar’ under Order II Rule 2 (‘shall not afterwards sue in respect of the portion so omitted or relinquished’) it is clear that the ‘bar’ applies to subsequent “suit” alone and not to an amendment in the same suit. (Twilight Properties Pvt. Ltd. VS Supratik Bhattacharjee, 13 Nov 2019, 2019 0 Supreme(Cal) 776.)

Order II Rule 2 ‘Bars’ Reliefs; Res Judicata deals with ‘grounds of attack‘

As regards the plea of res judicata, it is held in Gurbux Singh v. Bhooralal, AIR 1964 SC 1810, as under:

“Plea of res judicata is a restraint on the right of a plaintiff to have an adjudication of his claim. The plea must be clearly established, more particularly where the bar sought is on the basis of constructive res judicata. The plaintiff who is sought to be prevented by the bar of constructive res judicata should have notice about the plea and have an opportunity to put forth his contentions against the same. In the present case, there was no plea of constructive res judicata, nor had the appellant-plaintiff an opportunity to meet the case based on such plea. Res judicata means “a thing adjudicated”, that is, an issue that is finally settled by judicial decision. The principle of constructive res judicata emerges from Explanation IV to Section 11 CPC when read with Explanation III thereof both of which explain the concept of “matter directly and substantially in issue”. In view thereof, even though a particular ground of defence or attack was not actually taken in the earlier suit, if it was capable of being taken in the second suit in view of the principle of constructive res judicata. Constructive res judicata deals with grounds of attack and defence which ought to have been raised, but not raised, whereas Order 2 Rule 2 CPC relates to reliefs which ought to have been claimed on the same cause of action but not claimed.”

NO Res Judicata on a Finding on Title in an Earlier Injunction Suit

In Sulochana Amma v. Narayanan Nair [(1994) 2 SCC 14] it is observed as under:

“The decision in earlier case on the issue between the same parties or persons under whom they claim title or litigating under the same title, it operates as a res-judicata. A plea decided even in a suit for injunction touching title between the same parties, would operate as res-judicata. It is a settled law that in a Suit for injunction when title is in issue, for the purpose of granting injunction, the issue directly and substantially arises in that suit between the parties when the same is put in issue in a later suit based on title between the same parties or their privies in a subsequent suit, the decree in injunction suit equally operates as a res-judicata.”

Anathula Sudhakar v. P. Buchi Reddy, AIR 2008 SC 2033, the Supreme Court held that where the issue of title involves complicated or complex questions of fact and law, or where court feels that parties had not proceeded on the basis that title was at issue, the court should not decide the issue of title in a suit for injunction. It is clear that findings of title in such suits are redundant so far as res judicata is concerned, The Court proceeded to hold as under:

“Where there are necessary pleadings regarding title, and appropriate issue relating to title on which parties lead evidence, if the matter involved is simple and straight-forward, the court may decide upon the issue regarding title, even in a suit for injunction. But such cases, are the exception to the normal rule that question of title will not be decided in suits for injunction. But persons having clear title and possession suing for injunction, should not be driven to the costlier and more cumbersome remedy of a suit for declaration, merely because some meddler veraciously or wrongfully makes a claim or tries to encroach upon his property. The court should use its discretion carefully to identify cases where it will enquire into title and cases where it will refer to plaintiff to a more comprehensive declaratory suit, depending upon the facts of the case.”

(Both, Sulochana Amma and Anathula are referred to in T. Ravi v. B. Chinna Narasimha, 2017-7 SCC 342)

When “Cause of Action” in a Subsequent Suit for Possession Stand Distinct

The Supreme Court held in Inacio Martins v. Narayan Hari Naik, AIR 1993 SC 1756; 1993-3 SCC 123, as under:

“The first suit was for an injunction and not for possession of the demised property. The first suit was dismissed on the technical ground that since the plaintiff was not in de facto possession no injunction could be granted and a suit for a mere declaration of status without seeking the consequential relief for possession could not lie. Once it was found that the plaintiff was not in actual physical possession of the demised property, the suit had become infructuous. The cause of action for the former suit was not based on the allegation that the possession of the plaintiff was forcibly taken sometime in the second week of June, 1968. The allegation in the former suit was that the plaintiff was a lessee and his possession was threatened and, therefore, he sought the court’s assistance to protect his possession by a prohibitory injunction. When in the course of that suit it was found that the plaintiff had in fact been dispossessed, there was no question of granting an injunction and the only relief which the court could have granted was in regard to the declaration sought which the court held could not be granted in view of the provisions of Specific Relief Act. Therefore, the cause of action for the former suit was based on an apprehension that the defendants were likely to forcibly dispossess the plaintiff. The cause of action for that suit was not on the premise that he had in fact been illegally and forcibly dispossessed and needed the court’s assistance to be restored to possession. Therefore, the subsequent suit was based on a distinct cause of action not found in the former suit and hence we do not think that the High Court was right in concluding that the suit was barred by Order 2 Rule 2(3) of the Code of Civil Procedure. It may be that the subject matter of the suit was the very same property but the cause of action was distinct and so also the relief claimed in the subsequent. suit was not identical to the relief claimed in the previous suit.”

Res Judicata, Order II Rule 2 Bar and Sec. 10 CPC

Sec. 11 CPC and Order II rule 2 CPC bar suit/relief. But, Sec. 10 CPC bars trial only. Because:

Sec. 11 CPC (Res Judicata) begins as – “No Court shall try any suit or issue”.
Order II Rule 2 bars to – “sue for any relief omitted“.
Sec. 10 CPC (Res subjudice) begins as – “No Court shall proceed with the trial of any suit“.

Res Judicata and Estoppel

Though Res Judicata is called ‘estoppel by judgment‘, res judicata differs from estoppel. Res Judicata arises from the decision of an earlier court. It ousts the jurisdiction of the court to conduct trial of the already adjudicated matters. Estoppel arises from the acts of parties and it shuts the mouth of a party. Res Judicata bars multiplicity of suits. Estoppel bars multiplicity of representations.

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Notary Attested Power-of-Attorney is Sufficient for Registration of a Deed

Should it necessarily be a Registered One? No

Saji Koduvath, Advocate, Kottayam.

Introduction

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

Power of Attorney Concepts in Law

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

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

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

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

Document can be “Presented” by Purchaser or Donee also

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

Section 33 of the Registration Act lays down that the Power-of-Attorney recognisable for purposes of Section 32 is ‘a power-of-attorney executed before and authenticated by the Registrar or Sub-Registrar within whose district or sub-district the principal resides’ (if the principal at the time of executing the power-of-attorney resides in any part of India).

Nevertheless, the expression ‘person executing’ in Section 32 is the person who actually signs or marks the document.
If the document itself is signed by the agent (a power of attorney holder), he is entitled to present the deed for registration (without a Power of Attorney executed before and authenticated by the Registrar or Sub-Registrar).
In other words, ‘a power-of-attorney executed before and authenticated by the Registrar or Sub-Registrar’ is required in the following circumstance-
- that is, the owner of the property (or his power of attorney) himself signs the deed and a power of attorney is given to another, for registering the deed.

Presumption on PoA authenticated by a Notary, or any Court, etc.

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

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

Rajni Tandon v. Dulal Ranjan Ghosh Dastidar

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

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

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

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

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

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

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

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

Amar Nath v. Gian Chand

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

“24. The words “executed and authenticated in manner hereinafter mentioned” in Section 32(c) would mean the procedure specified in Section 33. This is clear from the opening words of Section 33 which reads “for the purposes of Section 32, the following power of attorney shall alone be recognised”. Section 32 refers to documents presented for registration by a holder of “power of attorney” in clause (c) and it therefore follows that the procedure specified under Section 33 would be attracted where a document is presented by a person holding “powers of attorney” of the persons mentioned in clause (a) of Section 32.
25. The aforesaid position makes it explicitly clear that Section 32 of the Act requires the documents sought to be registered, to be presented, inter alia by the person executing it. In other words, the said expression requires presence of the actual person executing the document. The basic principle underlying this provision of the Act is to get before the Sub-Registrar the actual executant who, in fact, executes the document in question. In fact, the ratio of the decision in Ram Gopal [AIR 1960 Punj 226] has laid down a similar proposition on the conjoint reading of Section 32 and Section 33 of the Act and after referring to all the judgments noted hereinbefore. Same view has been expressed earlier by the Bombay High Court in Ratilal Nathubhai v. Rasiklal Maganlal [AIR 1950 Bom 326].
26. It is important to bear in mind that one of the categories of persons who are eligible to present documents before the registration office in terms of Section 32 of the Act is the “person executing” the document. The expression “person executing” used in Section 32 of the Act, can only refer to the person who actually signs or marks the document in token of execution, whether for himself or on behalf of some other person. Thus, “person executing” as used in Section 32(a) of the Act signifies the person actually executing the document and includes a principal who executes by means of an agent. Where a person holds a power of attorney which authorises him to execute a document as agent for someone else, and he executes a document under the terms of the power of attorney, he is, so far as the registration office is concerned, the actual executant of the document and is entitled under Section 32(a) to present it for registration and get it registered.”
Note: Amar Nath v. Gian Chand, Mad LJ 2022-2 69, 2022-2 SCALE 521, 2022-2 RCR(Civil) 96 is referred to in the split verdivt in Manik Majumder v. Dipak Kumar Saha, 2023 SCC OnLine SC 37.

Provisions of the Registration Act.

Sections 17, 32 and 33 of the Registration Act are the relevant provisions. They read as under:

“Section 17. Documents of which registration is compulsory.—(l) The following documents shall be registered, if the property to which they relate is situate in a district in which, and if they have been executed on or after the date on which, Act No. XVI of 1864, or the Indian Registration Act, 1866, or the Indian Registration Act, 1871, or the Indian Registration Act, 1877, or this Act came or comes into force, namely:—

(a) instruments of gift of immovable property;
(b) other non-testamentary instruments which purport or operate to create, declare, assign, limit or extinguish, whether in present or in future, any right, title or interest, whether vested or contingent, of the value of one hundred rupees and upwards, to or in immovable property;
(c) non-testamentary instruments which acknowledge the receipt or payment of any consideration on account of the creation, declaration, assignment, limitation or extinction of any such right, title or interest; and
(d) leases of immovable property from year to year, or for any term exceeding one year, or reserving a yearly rent;
(e) non-testamentary instruments transferring or assigning any decree or order of a Court or any award when such decree or order or award purports or operates to create, declare, assign, limit or extinguish, whether in present or in future, any right, title or interest, whether vested or contingent, of the value of one hundred rupees and upwards, to or in immovable property:]
Provided that the [State Government] may, by order published in the [Official Gazette], exempt from the operation of this sub-section any lease executed in any district, or part of a district, the terms granted by which do not exceed five years and the annual rents reserved by which do not exceed fifty rupees.
(1A) The documents containing contracts to transfer for consideration, any immovable property for the purpose of section 53A of the Transfer of Property Act, 1882 shall be registered if they have been executed on or after the commencement of the Registration and Other Related laws (Amendment) Act, 2001 and if such documents are not registered on or after such commencement, then, they shall have no effect for the purposes of the said section 53A.]
(2) Nothing in clauses (b) and (c) of sub-section (l) applies to—
(i) any composition deed; or
(ii) any instrument relating to shares in a joint stock Company, notwithstanding that the assets of such Company consist in whole or in part of immovable property; or
(iii) any debenture issued by any such Company and not creating, declaring, assigning, limiting or extinguishing any right, title or interest, to or in immovable property except in so far as it entitles the holder to the security afforded by a registered instrument whereby the Company has mortgaged, conveyed or otherwise transferred the whole or part of its immovable property or any interest therein to trustees upon trust for the benefit of the holders of such debentures; or
(iv) any endorsement upon or transfer of any debenture issued by any such Company; or
(v) [any document other than the documents specified in sub-section (1A)] not itself creating, declaring, assigning, limiting or extinguishing any right, title or interest of the value of one hundred rupees and upwards to or in immovable property, but merely creating a right to obtain another document which will, when executed, create, declare, assign, limit or extinguish any such right, title or interest; or
(vi) any decree or order of a Court [except a decree or order expressed to be made on a compromise and comprising immovable property other than that which is the subject-matter of the suit or proceeding]; or
(vii) any grant of immovable property by [Government]; or
(viii) any instrument of partition made by a Revenue-Officer; or
(ix) any order granting a loan or instrument of collateral security granted under the Land Improvement Act, 1871, or the Land Improvement Loans Act, 1883; or
(x) any order granting a loan under the Agriculturists, Loans Act, 1884, or instrument for securing the repayment of a loan made under that Act; or
[(xa) any order made under the Charitable Endowments Act, 1890, (6 of 1890) vesting any property in a Treasurer of Charitable Endowments or divesting any such Treasurer of any property; or]
(xi) any endorsement on a mortgage-deed acknowledging the payment of the whole or any part of the mortgage-money, and any other receipt for payment of money due under a mortgage when the receipt does not purport to extinguish the mortgage; or
(xii) any certificate of sale granted to the purchaser of any property sold by public auction by a Civil or Revenue-Officer.
(3) Authorities to adopt a son, executed after the 1st day of January, 1872 and not conferred by a will, shall also be registered.

Section 18. Documents of which registration is optional.—Any of the following documents may be registered under this Act, namely:—

(a) instruments (other than instruments of gift and wills) which purport or operate to create, declare, assign, limit or extinguish, whether in present or in future, any right, title or interest, whether vested or contingent, of a value less then one hundred rupees, to or in immovable property;
(b) instruments acknowledging the receipt or payment of any consideration on account of the creation, declaration, assignment, limitation or extinction of any such right, title or interest;
(c) leases of immovable property for any term not exceeding one year, and leases exempted under section 17;
[(cc) instruments transferring or assigning any decree or order of a Court or any award when such decree or order or award purports or operates to create, declare, assign, limit or extinguish, whether in present or in future, any right, title or interest, whether vested or contingent, of a value less than one hundred rupees, to or in immovable property;]
(d) instruments (other than wills) which purport or operate to create, declare, assign, limit or extinguish any right, title or interest to or in movable property;
(e) wills; and
(f) all other documents not required by section 17 to be registered.”

“Section 32. Persons to present documents for registration.—Except in the cases mentioned in 1[sections 31, 88 and 89], every document to be registered under this Act, whether such registration be compulsory or optional, shall be presented at the proper registration-office,—

(a) by some person executing or claiming under the same, or, in the case of a copy of a decree or order, claiming under the decree or order, or
(b) by the representative or assign of such a person, or
(c) by the agent of such a person, representative or assign, duly authorised by power-of-attorney executed and authenticated in manner hereinafter mentioned.

Section 32-A. Compulsory affixing of photograph, etc.—Every person presenting any document at the proper registration office under section 32 shall affix his passport size photograph and fingerprints to the document:

Provided that where such document relates to the transfer of ownership of immovable property, the passport size photograph and fingerprints of each buyer and seller of such property mentioned in the document shall also be affixed to the document.]

Section 33. Power-of-attorney recognisable for purposes of section 32.— (1) For the purposes of section 32, the following powers-of-attorney shall alone be recognised, namely:—

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

Adjudication as to Proper Stamp by Revenue Authorities

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

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

If proper stamp duty Paid no Requirement of Adjudication

The Madras High Court, in Manoharan v. Velu, (1998) III M.L.J 272, held that a power of attorney executed on proper stamp need not be produced before the Collector for the purpose of certification or adjudication that the full duty with which it is chargeable has been paid.

Kerala High Court, relying on Manoharan v. Velu, it was held in Anitha Rajan v. Revenue Divisional Officer, AIR 2010 Ker 153, that it was not necessary to produce the power of attorney, even if executed outside India, for adjudication if it was sufficiently stamped. The High Court definitely held further that the Village Officer, Nattika Village erred in directing the petitioner to produce the (sufficiently stamped) original power of attorney before the Revenue Divisional Officer for adjudication under sections 31 and 32 of the Kerala Stamp Act, 1959.

See Blog: (CLICK): No Adjudication Needed If Power of Attorney is Sufficiently Stamped

Document Executed out of India – can be registered

A document executed outside India can be registered in India. Sec. 23 of the Registration Act allows it.

Note – Power of attorney is not a compulsorily registrable document.

Time Limit for Registration of Documents (executed within India)– Four Months

Time limit for registration of documents before a Sub-Registrar is four months under section 23 of the Registration Act, 1908. Time is calculated from the date of execution (signature) of the deed.

23. Time for presenting documents. Subject to the provisions contained in sections 24, 25 and 26, no document other than a will shall be accepted for registration unless presented for that purpose to the proper officer within four months from the date of its execution:
Provided that a copy a of a decree or order may be presented within four months from the day on which the decree or order was made, or, where it is appealable, within four months from the day on which it becomes final.

Registration of Documents executed out of India – Four Months from Receipt in India

The period of four months for registration (stated above) will be counted from the date of receipt of that document in India, as per Sec. 26 of the Registration Act.

Sec. 23A, 24, 25 and 26 of the Registration Act are relevant. They read as under:
23A. Re-registration of certain documents. Notwithstanding anything to the contrary contained in this Act, if in any case a document requiring registration has been accepted for registration by a Registrar or Sub-Registrar from a person not duly empowered to present the same, and has been registered, any person claiming under such document may, within four months form his first becoming aware that the registration of such document is invalid, present such document or cause the same to be presented, in accordance with the provisions of Part VI for re-registration in the office of the Registrar of the district in which the document was originally registered; and upon the Registrar being satisfied that the document was so accepted for registration from a person not duly empowered to present the same, he shall proceed to the re-registration of the document as if it has not been previously registered, and as if such presentation for re-registration was a presentation for registration made within the time allowed therefore under Part IV, and all the provisions of this Act, as to registration of documents, shall apply to such re-registration; and such document, if duly re-registered in accordance with the provisions of this section, shall be deemed to have been duly registered for all purposes from the date of its original registration
24. Documents executed by several persons at different times. Where there are several persons executing a document at different times, such document may be presented for registration and re-registration within four months from the date of each execution.
25. Provision where delay in presentation is unavoidable. (1) If, owing to urgent necessity or unavoidable accident, any document executed, or copy of a decree or order made, in India is not presented for registration till after the expiration of the time hereinbefore prescribed in that behalf, the Registrar, in cases where the delay in presentation does not exceed four months, may direct that, on payment of a fine not exceeding ten times the amount of the proper registration-fee, such document shall be accepted for registration.
(2) Any application for such direction may be lodged with a Sub-Registrar, who shall forthwith forward it to the Registrar to whom he is subordinate.
“26. Documents executed out of India. When a document purporting to have been executed by all or any of the parties out of India is not presented for registration till after the expiration of the time hereinbefore prescribed in that behalf, the registering officer, if satisfied—
(a) that the instrument was so executed, and
(b) that it has been presented for registration within four months after its arrival in India,
may, on payment of the proper registration-fee accept such document for registration.”

Registration with Penalty – within Eight Months

After four months, document can be presented within another four months to the District Registrar.

The District Registrar may impose a penalty up to a maximum of ten times the registration fees and grant permission to Sub-Registrar to register the document (as per Sec. 25 – quoted above).

Registration After Eight Months

After eight months a document can be registered if impediments like court- injunction (Raj Kumar Dey v. Tarapada Dey, AIR 1987 SC 2195), bona fide delay in collecting stamps (Nestor Builders And Developers v. State Of Maharashtra,24 June, 2015, (S.C. Dharmadhikari, J.) etc.

In Unitech Ltd. v. Telangana State Industrial Infrastructure Corpn., 2021 SCC OnLine SC 99, it is held by our Apex Court as under:

“TSIIC and the State of Telangana have brought to our notice that the Development Agreement, on the basis of which Unitech has sought to avail its contractual remedy has not been registered or assessed to stamp duty. Under Article 3.1 of the Development Agreement, the obligation of paying registration fees and stamp duty is on Unitech. It is well-settled law that the Stamp Act is a fiscal measure enacted to secure the revenue for the State, and not to arm the opponent with a weapon of technicality. Unitech’s claim to compensatory payment cannot be defeated on the sole ground of the payment of stamp duty. The Development Agreement shall have to be impounded and be presented to the Chief Controlling Revenue Authority in the State of Telangana for assessment of stamp duty and to the competent authority for registration. The assessment shall be completed within thirty days. The appropriate stamp duty and registration charges liable to be paid in terms of the determination shall be paid by TSIIC and be deducted from the refund due and payable to Unitech under the terms of this order.”

End-words – There is no no meaning in ‘complaining’, as-per-law

From experience we see – when one points out the ‘law’ to the officers of the Registration Department in India, most of them get irritated. The reasons are evident; and the root-cause is known to everybody who approached a registration office for registration of a deed. The top executive machinery wink at their illegal deeds. If the registration proceedings are simplified, the illegalities will be stopped within a day. The stamp-duty for various documents are to be made reasonable also; and one should not be ‘compelled’ to make false statement as to ‘consideration’ in the documents. It is definite – the power-bodies will not do it. As in other fields, the rap has to begin from the ‘top’. (When the matters are clear to everybody – police, vigilance and even courts – mark, there is no no meaning in ‘complaining’, as-per-law!)

Should a Power of Attorney be Compulsorily Registered

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

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

Power of Attorney “coupled with interest”

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

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

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

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

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

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

Read in this cluster (Click on the topic):

Civil Suits: Procedure & Principles

Evidence Act

Constitution

Contract Act

Easement

Club/Society

Trusts/Religion

Sec. 91 CPC and Suits Against Wrongful Acts

Saji Koduvath.

Suits against Wrongful Acts: Relevant statutory provisions

Following are the elemental provisions of law concerning the jurisdiction of the civil court in the matters under consideration.

Section 9 of the Civil Procedure Code
Section 91 of the Civil Procedure Code
Secs.38 and 39 of the Specific Relief Act

Sec. 9 of Code of Civil Procedure says as under:

“9. Courts to try all civil suits unless barred.The court shall (subject to the provisions herein contained) have jurisdiction to try all suits of a civil nature excepting suits of which their cognisance is either expressly or impliedly barred.”

Section 91 of the Civil Procedure Code reads as under:

Public nuisances and other wrongful acts affecting the public: (1) in the case of a public nuisance or other wrongful act affecting, or likely to affect, the public, a suit for a declaration and injunction or for such other relief as may be appropriate in the circumstances of the case, may be instituted,-
(a) by the Advocate General, or
(b) with the leave of the Court, by two or more persons, even though no special damage has been caused to such persons by reason of such public nuisance or other wrongful act.
(2) Nothing in this section shall be deemed to limit or otherwise affect any right of suit which may exist independently of its provisions.

Sec. 38 and 39 of Code of Civil Procedure reads as under:

38. Perpetual injunction when granted: (1) Subject to the other provisions contained in or referred to by this Chapter, a perpetual injunction may be granted to the plaintiff to prevent the breach of an obligation existing in his favour, whether expressly or by implication. (2) When any such obligation arises from contract, the court shall be guided by the rules and provisions contained in Chapter II. (3) When the defendant invades or threatens to invade the plaintiff’s right to, or enjoyment of, property, the court may grant a perpetual injunction in the following cases, namely:- (a) where the defendant is trustee of the property for the plaintiff; (b) where there exists no standard for ascertaining the actual damage caused, or likely to be caused, by the invasion; (c) where the invasion is such that compensation in money would not afford adequate relief; (d) where the injunction is necessary to prevent a multiplicity of judicial proceedings.
39. Mandatory injunctions: When, to prevent the breach of an obligation, it is necessary to compel the performance of certain acts which the court is capable of enforcing, the court may in its discretion grant an injunction to prevent the breach complained of, and also to compel performance of the requisite acts.

Bar of Jurisdiction and Common Law Right

Under section 9 of the CPC, the civil courts will have plenary jurisdiction to try all suits of civil nature, unless the same is expressly or impliedly barred. It is trite law that where the statute neither creates a particular right or liability nor provides any remedy or forum for adjudication of any dispute arising out or such right or liability, there will be no ouster of the civil courts jurisdiction. See: Saraswathi v. Lachanna, (1994)1 S.C.C. 611.

Willes, J, in Volverhomton New Water Works Co. v. Hawkes Ford, expressed his view on jurisdiction of courts as under:

“…..where there is liability existing at common law and that liability is affirmed by a statute which gives a special and peculiar form of remedy different from the remedy which existed at common law…..unless the statute contains words which expressly or by necessary implication exclude the common law remedy the party suing has election to pursue either that or the statutory remedy”.(Quoted in: Musstt Anjira Khatoon Hazarika VS Tapan Kumar Das, 2015-1 GauLR 133).

Relying on the Privy Council decision in Secretary of State v. Mask & Co., AIR 1940 PC 43 and the Apex Court decisions in Firm Seth Radhakishan v. Administrator, Municipal Committee, Ludhiana, AIR 1963 SC 1547 and Premier Automobiles Ltd. v. Kamlakar Shantnram, AIR 1975 SC 2238, The Gauhati High Court, in Musstt Anjira Khatoon Hazarika VS Tapan Kumar Das, 2015-1 GauLR 133, summarised the legal position as under:

“Applying the ratio of the aforesaid judicial pronouncements the law that emerges is that if a special right is created by a statute and there is procedure for enforcement of such right and that such right did not exist prior to enactment of the special statute, in that event irrespective of whether there is express ouster of civil court’s jurisdiction or not, the jurisdiction of the civil court would stand automatically barred. Of course, in that case also, if there is violation of the principles of natural justice or there is violation of the procedure prescribed under the statute which bars jurisdiction of civil court, in that event instead of express ouster, civil court shall have jurisdiction to entertain a suit. However, if such right was in existence in common law prior to the enactment of the special law, the plaintiff shall have right to elect the forum.”

‘An illegality cannot be cured only because it was undertaken by the Government‘

In Bangalore Medical Trust v. B. S. Muddappa, AIR 1991 SC 1902, the Apex Court (RM Sahai, J.) considered the legality of leasing out a Public Park into private nursing home for a long period. It was observed that an illegality cannot be cured only because it was undertaken by the Government; and that an illegality or any action contrary to law does not become in accordance with law because it is done at the behest of the Chief Executive of the State. It was also pointed out that no one is above law; and that in a democracy what prevails are law and rule and not the height of the person exercising the power.

Construction in Violation of Municipal Building Regulation

A person who is affected by neighbour’s illegal construction which is in infraction of a Municipal regulation will have the locus to maintain a suit for perpetual injunction. The Kerala High Court, in Saina v. Konderi, AIR 1984 Ker 170, turned down the argument that the matters concerning violation of the Municipal Rules are entirely rest in the look-out of the local authority. It was observed that unless, by express words or by necessary implication, he is debarred (Sec. 9 CPC) from doing so, the civil court would have jurisdiction if there was violation of Building Rules. Finally, it is held that the law recognises a citizen’s right to institute a suit with a view to ensure effective implementation of the Municipal regulations, such as the Buildings Rules, even in the absence of a specific personal injury to the person suing. The High Court quoted Lord Wright in (1868) 4 Ex. 43 where it was said:

“If you have an infringement of a legal right there is a right of action without actual damage being proved…. Where you have an interference with a legal right, the law presumes damage.”

Referring the Kerala decision, it is observed in Sindhu Education Society v. Municipal Corporation of City of Ulhasnagar, AIR 2001 Bom 145 and in Fatima w/o Caetano Joao v. Village Panchayat of Merces, AIR 2000 Bom 444, it was observed that the citizens will have the right to enforce Rules through Court if the Municipal Corporation fails to perform its duty and that courts in India has the duty to see that the law is obeyed and not violated.

(See also: Babulal Shivlal Upadhye v. Yadav Atmaram Joshi, 1994-2 Bom CR 583; 1994-2 MahLR 869; 1994-1 MhLJ 256;
D. Thomas v. N. Thomas1999-2 MLJ 260;
Musstt Anjira Khatoon Hazarika v. Tapan Kumar Das: 2015-1 GauLR 133.)

In K. Ramdas Shenoy v. Chief Officer, Town Municipal Council, Udipi, AIR 1974 SC 2177, the Apex Court held as follows:

“An illegal construction of a cinema building materially affects the right to of enjoyment of the property by persons residing in the residential area. The Municipal Authorities owe a duty and obligation under the statute to see that the residential areas is not spoilt by unauthorized construction. The scheme is for the benefit of the residents of the locality. The Municipality acts in aid of the scheme. The rights of the residents in the area are invaded by an illegal construction of a cinema building. It has to be remembered that a scheme in residential area means planned orderliness in accordance with the requirements of the residents. If the scheme is nullified by arbitrary acts in excess and derogation of the powers of the Municipality the courts will quash orders passed by Municipalities in such cases.”

Andhra Pradesh High Court in Bhagwan Das v. Harish ChetwalIt held as under, as appears from the reported judgment, Sarada Bai v. Shakuntala Bai, AIR 1993 AP 20 it was held as under:

“The pronouncement of the Supreme Court in K.R. Shenoy v. Udipi Municipality emboldens us to take a view at variance with the one expressed by a Division Bench of this Court in Kamalamma v. Subba Rao and so hold that an individual, be he a neighbour or one of a class of persons where the infraction of a right is involved and complained of, is certainly clothed with a right to invoke the jurisdiction of a Civil Court not only to enforce the obligations and duties was on the concerned authorities, but also subject the individual or class of individuals to conform to the obligations of the statute.
If that be so, it presents no difficulty in answering one of the questions raised in this case, viz., whether it would be competent for the neighbour, namely, the petitioners herein to enforce the obligation cast on the Municipal Corporation to remove the structures constructed in contravention of the statutory provisions; and to seek a direction against an individual, plaintiff herein to conform to the obligation laid down in Chapter XII of the Act and to demolish any construction made in contravention thereof, either by way of a civil proceeding or seeking mandamus under Article 226 of the Constitution. The answer is quite apparent and it is in the affirmative.”

Liquor Shop causing Public Nuisance

The question that required consideration in D. Thomas v. N. Thomas, 1999-2 MLJ 260 was whether the civil court had jurisdiction to entertain suit for permanent prohibitory injunction restraining defendants from conducting a liquor shop for apprehended injury of public nuisance to the residents of locality. The plaintiffs filed the suit in representative capacity under Order 1, Rule 8 of the CPC. The defendants resisted the suit on the ground that the suit was barred under Sec. 56 of Tamil Nadu Prohibition Act. In this decision the court held as under:

“Under Specific Relief Act, a suit to prevent the nuisance is maintainable under Secs.38 and 39. Plaintiff is also entitled to file a suit for perpetual prohibitory and mandatory injunction from causing any nuisance. Nuisance is an act of omission which is an interference with, disturbance of or annoyance to a person in the exercise or enjoyment of (a) a right belonging to him as a member of the public, when it is a public nuisance, or (b) his ownership or occupation of land or of some easement, quasi-easement, or other right used or enjoyed in connection with land, when it is a private nuisance.
Whether it is public or private, it is common law right and the suit to prevent the occurrence of nuisance is also a suit of civil nature. So the enforcement of such civil right can had through court.”
“Plaintiffs are not claiming any right under Tamil Nadu Prohibition Act and what want to enforce is only a common law right. I do not find any prohibition under Tamil Nadu Prohibition Act that the common law right to prevent a nuisance is taken away by any other provisions of Prohibition Act. Plaintiffs are not claiming any right by virtue of statute which creates a right for do they want enforcement of such a right created by statute. To prevent a person from committing nuisance is all along a common law right and that could be enforced de hors the enactment of Tamil Nadu Prohibition Act.

Forum for Enforcement of Right like Avoidance of Nuisance

It was held in Saraswathi v. Lachanna (1994)1 S.C.C. 611, while considering bar of suit, the court had to see where a particular act creates a right and also provides a forum for enforcement of such right and bars the jurisdiction of the civil court, then ouster of the civil court jurisdiction had to be upheld. But the situation will be different where the statute neither creates the right in question nor provides any remedy or having created any right or liability no forum for adjudication of any dispute arising out or such right or liability is provided. In such a situation, the ouster of the civil courts jurisdiction is not to be easily inferred.

‘Wrongful Acts’ in Sec. 91 CPC, inserted by 1976 Amendment of the CPC

It is clear that the purport of insertion of the words “other other wrongful act affecting, or likely to affect the public”, in 1976 amendment of the CPC, is to bring in all wrongful acts, which affect the public or that may affect in future, within the ambit of Sec. 91. It is definite that this clause stands independent from ‘nuisance‘, already contained in this Section.

In Adani Wilmar Ltd. Vs. A S Hansraj, 2018-4 Mad LJ641, the Madras High Court held as under:

“The scope of a suit filed under Section 91 CPC by the very language used in the provision gives a very wide amplitude. A plain reading of the Section would go to show that in case of a “public nuisance” or other “wrongful acts” affecting, or likely to affect the public, false within the scope of Section 91(1) CPC. The word “other” also assumes significance as it clearly drawn a distinction from the word “public nuisance”. Similarly the words “likely to affect” taken within its sweep will include any possible act in future. Thus, the overwhelming factor is that of public interest. This is once again made clear by dispensing with the personnel injury termed “special damage”. Two or more persons can file a suit on this nature with the leave of the Court even though no special damage has been caused to such persons by reason of such “public nuisance” or “other wrongful acts”. In our considered opinion, even an advertisement which is likely to affect the public at large can fall within the scope of Section 91 CPC. Taking into consideration the intention of the legislature enabling the filing of a suit by any two persons, after getting the leave of the Court, whenever any act causes “public nuisance” or “other wrongful acts” affecting or likely to affect the public and also taking into consideration the wide amplitude of the language used under Section 91 CPC, this Court cannot give a restricted meaning as sought to be projected by the learned senior counsel for the appellants. The provisions of Section 91 CPC is an important tool for remedying the grievances of a large number of individuals who cannot file independent suits. Such an important right guaranteed under the said provision cannot be defeated by giving it a restrictive interpretation.”

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Vesting of Property in Trusts

Saji Koduvath, Advocate, Kottayam.

Abstract

Generally speaking, the legal ownership of trust property vests in trustees.
But, in case of a property of a legal person, such as temple, Math, etc., the legal ownership thereof vests with that legal person.
In English Law there is ‘duel ownership’ upon a trust property; ie., the legal or trust ownership. It is not followed in India. In India the ‘eqiotable ownership’ is not accepted.
The vesting of property is subject to the basic principles of foundation laid down by the author.

Introduction

English Law asserts ‘duel ownership’ upon a trust property; ie., the legal or trust ownership[1] vested with the trustee; and real, equitable or beneficial ownership, with the beneficiaries or the cestui que trust.

Merely because the property is vested in the trustee as the legal owner, he is not the full owner of the property in the real sense of the term; because, the beneficial interest (is, ‘proprietary interest’ or interest pertaining to owner) and equitable ownership are carved out in the property. Similarly, the ‘real’ or beneficial ownership with the beneficiary is not the ‘proprietary interest’ pertaining to an owner; but, it is interest pertaining to beneficiaries.

No ‘Equitable Ownership’ With Beneficiaries under Indian Law

But, Indian Law does not recognize legal and equitable estates. [2] There is no ‘equitable/beneficial ownership’ with the beneficiaries as per the Common Law of trust predicated by courts in India and under the Indian Trusts Act, in both public and private trusts. Beneficiaries have, under Indian Law, only beneficial[3] interest.[4] It is not the interest that pertains to (true) owner.

Inasmuch as idols, and trusts like Mutts, are considered as juristic persons by virtue of legal fiction imposed by Common Law of India, exploration of actual vesting of ownership of trust property has much significance.

Property Vests in the ‘Legal Ownership’ of the Trustees

Salmond on Jurisprudence[5] reads as under:

“A trustee is the legal owner of the property, the actual owner thereof having lost title thereto by the creation of a trust.”

As per the definition of trust in the Indian Trusts Act, ‘a trust is (i) an obligation annexed to the ownership of property and (ii) arising out of a confidence accepted by the owner’. Because the obligation upon the trustee is to administer the trust property, and the obligation is ‘annexed to the ownership of property’, the administration by the trustee is, is as its (legal) owner. When the ‘beneficial interest or interest’ is defined, it is explained that the ‘beneficial interest’ or ‘interest’ of the beneficiary is his right against the trustee ‘as owner of the trust property’.

Because the obligation upon the trustee is to administer the trust property, and the obligation is ‘annexed to the ownership of property’, the administration by the trustee is, is as its (legal) owner.

Read Blog: Indian Law Does Not Accept Salmond, as to Dual Ownership

Inasmuch as the vesting of ownership of trust property with the trustee is under an obligation to manage it for the benefit of the beneficiaries, the trust property vests in the ‘legal ownership’ of the trustees;[6] and not in their absolute or actual ownership, as observed in Kansara Abdulrehman Sadruddin Vs. Trustees of the Maniar Jamat Ahmedabad.[7]. The actual owner loses his title thereto by the creation of a trust[8]. But, in case of a property of a legal person, such as temple, Math, etc., the legal ownership thereof vests with that legal person.[9]

The ingredients of trust stated in the former part of Section 6 (ie. intention, purpose, beneficiary and property), are the legal requirements for endowments also. The differentiating particularity of trust is the ‘transfer of the trust-property to the trustee’. From Sections 10 and 75 of the Indian Trust Act, 1882 it is clear that the (legal) ‘ownership’ of trust property vests with the trustee.

Sec. 10 reads as under:

10. ….. Disclaimer of trust.—Instead of accepting a trust, the intended trustee may, within a reasonable period, disclaim it, and such disclaimer shall prevent the trust property from vesting in him. A disclaimer by one of two or more co-trustees vests the trust property in the other or others and makes him or them sole trustee or trustees from the date of the creation of the trust.

Sec. 75 of the Indian Trust Act, 1882 reads:

75. Vesting of trust property in new trustees.—Whenever any new trustee is appointed under section 73 or section 74, all the trust property for the time being vested in the surviving or continuing trustees or trustee, or in the legal representative of any trustee, shall become vested in such new trustee, either solely or jointly with the surviving or continuing trustees or trustee, as the case may require.

Vesting of Property Held by Associations and Public Trusts

In law, vesting of property is of two kinds.

Vesting for management
Vesting of ownership.

Vesting for management:

Under Common-Law of trusts in India, properties of associations of people and public trust properties vest for management with the administrators known as managers, trustees, governing bodies, directors, Shebaits, Dharmakarthas, etc. The persons in management have a fiduciary duty to perform the obligations they had undertaken.

Vesting of Ownership:

There may be no difficulty, in case of a legal entity, such as an idol or a mutt, to determine the person in whom the legal ownership of property vests. But, even in such cases, a further question may arise – inasmuch as the vesting of property in a legal person is only in an ‘ideal sense’ – in whom the actual or ultimate ownership vests.

General Propositions as to Vesting of Trust Property

‘Ultimate Vesting’: No Practical Importance in Public Trust

The enquiry as to actual or ultimate vesting of ownership of a public trust property (beyond the vesting of the legal ownership) may be commented upon as superfluous, if not redundant, inasmuch as it is a basic principle that ‘once a trust is always trust’[10]; and therefore, the law does not envisage such an enquiry.

When dedication of property is for the benefit of public, either for religious purposes or for other matters, it is irrevocable. If the endowment created by the dedication is a legal person the dedicated property vests in such person. If the same is not a legal person, the terms of dedication (as revealed from the deed, if any, or other evidence) determine the person or body of persons in whom/which such property ultimately vest in.

In most cases of public trusts, the ‘ultimate vesting’ may not be a matter of practical importance; because, the endowment will be permanent and indivisible; and court takes cognizance, when practical difficulties come to carry-on the object of the trust, by applying cy-pres doctrine or by invoking its statutory/inherent jurisdiction.

It is held in Syed Mohammad Salie Labbai Vs. Mohd Hanifa[11] that once a Kabarstan has been held to be a public graveyard then it vests in the public and constitutes a wakf and it cannot be divested by nonuser but will always continue to be so whether it is used or not.

But, the nature of vesting of actual ownership of property held by Associations of persons and trusts may be risen up for consideration, while a dissention or valid claim for separation arises or if there could be a lawful winding-up or dissolution. Where the property continues to be that of the Society, change in office bearers who control of management of the Society cannot amount to creation of third party interest in or transfer of property of Society. The same does not amount to creation of any rights in the property of Society in favour of changed management inasmuch as the assets continue to be enjoyed by the Society and the new management does not acquire any personal interest in the assets.

No Trust upon the “Property Belonging to a Society”: Exceptions

A trust cannot be created upon the “property belonging to a society”. But this proposition is subject to certain qualifications.

That is, certain properties held by a Society may be that vest with the Society only for administration – E.g., (i) where a charitable association is established, after a valid ‘dedication‘ of property – for the enjoyment of the public – by a group of persons, for the administration of the dedicated property (or the trust); (ii) a society formed with the object of dedicating property for a public charitable purpose; (iii) a Society is formed by the beneficiaries for administering a charitable institution (already) established by valid ‘dedication‘ of property.

Vesting is Subject to Basic Principles of Foundation

The vesting of trust property is always subject to the basic principles of the foundation laid down by the author/founder of the trust. In proper cases, courts enquire, based on evidence, what were the true ‘basic principles of foundation’. The nature of vesting of actual ownership, and the basic principles of its foundation (beyond legal ownership which vests in the trustees, or beyond the ‘ideal ownership’ vested in a legal person), differ according to the nature of the trust.

We can take cue from the following observations of Dr. BK Mukherjea, J., on Hindu Law of Religious and Charitable Trusts:[12]

“The idol as representing and embodying the spiritual purpose of the donor is the juristic person recognized by law and in this juristic person the dedicated property vests.”[13]

It is further explained in by Dr. Mukherjea, J. as under:

“… ‘The dedication to deity’, said Sir Lawrence Jenkins in Bhupati Vs. Ramlal, ILR 37 Cal. 128, ‘is nothing but a compendious expression of the pious purpose for which the dedication is designed’. It is not only a compendious expression but a material embodiment of the pious purpose and though there is difficulty in holding that property can reside in the aim or purpose itself, it would be quite consistent with sound principles of Jurisprudence to say that a material object which represents or symbolises a particular purpose can be given the status of a legal person, and regarded as owner of the property which is dedicated to it”.[14]

Is Trust a ‘Living Person’ under S. 5 of the TP Act

Can transfer of property be made to or by Trusts/Associations

Sec. 5 of the TP Act reads as under:

5. “Transfer of property” defined: In the following sections “transfer of property” means an act by which a living person conveys property, in present or in future, to one or more other living persons, or to himself and one or more other living persons; and “to transfer property” is to perform such act.
In this section “living person” includes a company or association or body of individuals, whether incorporated or not, but nothing herein contained shall affect any law for the time being in force relating to transfer of property to or by companies, associations or bodies of individuals.

Two views are possible from the 2^nd paragraph of Sec. 5: First, all unregistered associations are ‘living persons’ by this inclusive definition. Second, by virtue of the decisive and directive clause – ‘nothing herein contained shall affect any law for the time being in force relating to transfer of property’ – juristic persons alone can be brought-in as ‘living persons’.

The accepted and authoritative view is that companies, incorporated clubs, statutory bodies etc. alone can be considered as ‘living persons’ under Sec. 5. The laws in force accept only ‘juristic persons’, other than individuals, as ‘living persons’ capable of holding/possessing and transferring properties. Therefore, unincorporated or unregistered associations of individuals cannot take benefit of this provision. It is authoritatively pointed out that the first limb of the second part of Sec. 5 –‘living person’ includes a company or association or body of individuals – cannot stand independent from the latter regulative part (‘nothing herein contained shall affect any law for the time being in force relating to transfer of property’). Usha Rani Kundu Vs. Agradut Sangha (2006) 3 Cal LT 139; 2006 (3) CHN 77, eruditely exposes this explanation.

It is now settled law that though an idol is considered by a fiction of law as a juristic person clothed for some purposes with rights of persons, it is not a living person for the purpose of the Transfer of Property Act.

Note: Order 31 rule 1 CPC also makes it clear – a trust is not a legal person. It enables to file a suit by (or be sued) a trustee concerning ‘property vested in trustees’.

“Bodies of individuals” in Sec. 5, TP Act

It may also be pointed out that, “Bodies of individuals” in Sec. 5, TP Act (transfer to – “living person” includes a company or association or body of individuals) is wide in meaning; and it stands independent. It is broad enough to take-in ‘Beneficiaries’ of a Trust.

Can ‘Law for the Time Being in Force’ Include ‘Common Law’

‘Law for the time being in force’ in Sec. 5 TP Act includes “common law”. It is a reality: the common law of our country accepts as valid the ‘transfer of property’ made to or effected by well-known institutions, organisations, and associations attached to well reputed trusts, institutions etc., though they are not juristic-persons in its strict sense. Our courts sumptuously refer to such deeds as documents executed by or in favour of such entities, when they are referred to as exhibits. For example:

Settlement deed by Ashramam–Swayam Prakash Ashramam Vs. G Anandavally Amma : AIR 2010 SC 622;
Settlement to trust – S N Mathur Vs. Board of Revenue: 2009-13 SCC 301;
Sale deed by unregistered society – Suresh s/o. Bhagwanrao Puri Vs. State of Maharashtra: 2016-3 AIR Bom R (Cri.) 603;
Gift to unregistered Association – Pullamma Vs. Valmiki Anna Satram: 1984-2 ALT 157;
Sale deed to an association – K. Kala Vs. Dist Registrar, Madurai: 2016 3 MLJ 50,
Sale deed to an association – State of Punjab Vs. Amolak Ram Kapoor: [1990] 79 STC 315; ILR1991- 2 P&H 218.
Sale deed to an association – Asst. Commr. Vs. Shivalingawwa: ILR 2003 Kar 2855;
Lease deed by trust to school – TNP Mothoo Natarajan Vs. PV Ravi: 2015-2 MLJ (Cri.) 656;
Lease deed by a firm -2014-3 ALT 46;
Settlement deed to private trust –Kolli Venkata Raja Vs. Govt. of AP: 2014-1 ALT 155;
Lease deed to a public trust –Nadigar Sangham Charitable Trust, rep. by its managing Trustee, R. Sarathkumar Vs. S. Murugan:2013-1 MLJ 433;
Sale deed to Board of Trustees – Commissioner of Income Tax Vs. Chemists and Druggists Association Building Trust: 1995-215 ITR(Mad) 741;
Mortgage deed by a College – Sonar Bangla Bank Vs. Calcutta Engineering College: AIR 1960 Cal 450.

Similarly, the registration and revenue authorities, without objection, register deeds relating to such properties in the names of such institutions, associations etc.

It was held by our Apex Court in Kamaraju Venkata Krishna Rao Vs. Sub Collector, Ongole, AIR 1969 SC 563, that, under Hindu Law, a tank can be an object of charity and when a dedication was made in favour of a tank, the same was considered as a charitable institution. Without deciding whether that institution can also be considered as a juristic person, it was held that the same had to be registered in its name (ie., in the name of the tank) in the Inam register though it had continue to be managed by its Manager.

It is also noteworthy that Salmond on Jurisprudence reads: “Legal persons, being the arbitrary creations of the law, may be of as many kinds as the law pleases.”

Read Blog: Dedication of Property in Public Trusts

Vesting of Actual Ownership of Property of an Association

Ownership of property of a club vests in its members. Salmond on Jurisprudence reads as under:[15]

“The Club property is the joint property of the members, though in fact, it is often held by trustees on behalf of the members.”

Halsbury’s Law of England lays down:[16]

“Unincorporated members’ clubs. – An unincorporated members’ club is a society of persons each of whom contributes to the funds out of which the expenses of conducting the society are paid. ……. Subject to any rule to the contrary, the property and funds of the club belong to the members of the time being jointly in equal shares. “

A society is the compendium of its members and its property is the ‘joint property’ held by the members as ‘joint tenants’ (as opposed to ‘tenants in common’, till a decision is taken for dissolution).

If objectives of foundation of a society envisioned permanency; or preservation of its property is mandated for the benefit of its future members also (and therefore encumbered with obligations attached to ‘trust’), the members of a particular time cannot deal with the property disregarding its objectives of foundation.

Gift on Trust for Future and Existing Members: Cannot Appropriate

Underhill, in his treatise ‘Law of Trusts and Trustees’, explained it thus:

“However, the crucial difference surely is that no absolutely entitled members exist if the gift is on trust for future and existing members, always being for the members of the association for the time being. The members for the time being cannot under the association rules appropriate trust property for themselves for there would then be no property held on trust as intended by the testator for those persons who some years later happened to be the members of the association for the time being.” [17]

Tudor on Charities reads:

“A gift to a parish church is construed to be a gift to the parson and parishioners of that parish and their successors forever.”[18]

Vesting of Ownership of Trust/Association Property

The following propositions can be presented as to the vesting of ownership of the trust-property and the property held by an association.

In most cases of public trusts, the ‘ultimate vesting’ may not be a matter of practical importance; because, the endowment will be permanent and indivisible; and court takes cognizance, when practical difficulties come to carry on the object of the trust, by applying cy pres doctrine or by invoking its statutory/inherent jurisdiction.
The terms of dedication (as revealed from the deed of dedication, if any, or on other substantial evidence) determine the person or body of persons in whom/which such property ultimately vest in.
If the ownership of the property of a trust vests in a legal person, such vesting is permanent (thereby it cannot be put to an end), and is subject to the purpose envisaged by the founder, as revealed from the document of foundation or byelaws, if any.
If the property is that of an association and the members thereof are ascertainable (as in the case of a society) the actual ownership of the property will be presumed to be vested with those members (from time-to-time), only as joint owners (contra-distinct to ownership under tenants-in-common).
If the property is one dedicated to public so as to form a public trust and beneficiaries are unascertainable (as in the case of a political party or a Church) the property ultimately vests with the entire members (of such Association or Church), from time to time, permanently (thereby it cannot be put to an end), subject to its objectives, as revealed from the document of foundation or byelaws, if any.
If the subject matter of a trust is one partially dedicated to public at large or a section of public (as in the case of a waiting shed or a public well)by a known person and administered and maintained by himself or another person, the property will continue to vest with the owner.
If the subject matter of the trust is dedicated to public at large or a section of public, the title of such subject matter stands separated from the owner and vests in public or a section of public who are the beneficiaries, subject to the objectives of foundation, as established by evidence or as revealed from the deed of foundation or byelaws, if any.

Two (Kinds of) “Trusts” over the Parish or Branch Property

One Property, Several Trusts Possible

Trust is a general term used in wider sense in law. Therefore –

If a property is acquired by a branch of a larger body, or a parish of a Church, the entire members of the larger body, from time to time, will be presumed to be the owners, subject to (i) the byelaws of the (entire) association or trust and (ii) the purposes or objectives ‘aimed to achieve’ by that particular property.
If the bylaws (expressly or by necessary implication) provides for special beneficial enjoyment by the members of the branch or parish, over the branch/parish properties, definitely there will be two (kinds of) “trusts” over the same property – one, trust for the beneficial enjoyment of whole body; and the other, for the members of the branch/parish.

Are Shebait, Mahant, Mutawalli etc. Trustees in ‘True Sense’?

It is trite law that dedicated property of a temple will be vested with the idol as the legal owner thereof, though such vesting is qualified to be in an ‘ideal or secondary sense’ (Bhupathi Nath v. Ramlal Maitra: ILR 37 Cal. 128) and the possession and management thereof will be with some human being identified as Shebait or Manager, though in the strict legal sense, they cannot be accepted as trustees.

In Wali Mohammed v. Rahmat Bee, (1999- 3 SCC 145), to the question whether the Mutawalli of a Wakf would be a trustee, our Apex Court observed as under:

“35. It will be seen that the main part of Sec. 10 (Limitation Act) states that no period of limitation applies for recovery of property from a trustee in whom the property is vested for a specific purpose, unless such a person is an assignee for valuable consideration. The Explanation further states that it shall be deemed that a person managing the property of a Hindu, Muslim or Buddhist religious or charitable endowment is to be deemed to be a trustee in whom such property has vested for a specific purpose. We shall explain these provisions in some detail.
36. In Vidya Varuthi Thirtha Swamigal v. Baluswami Ayyar [AIR 1922 PC 123 : ILR 44 Mad 831] the Privy Council held that property comprised in a Hindu or Mohammedan religious or charitable endowment was not property vested in trust for a specific purpose within the meaning of the said words in the main section. The reason was that according to the customary law, where property was dedicated to a Hindu idol or mutt or to a Mohammedan wakf, the property vested in the idol or the institution or God, as the case may be, directly and that the shebait, mahant, mutawalli or other person who was in charge of the institution was simply a manager on behalf of the institution. As Sec. 10 did not apply unless these persons were trustees this judgment made recovery of properties of the above trusts from donees, from these managers, rather difficult.
37. The legislature therefore intervened and amended Sec. 10 for the purpose of getting over the effect of the above judgment. The Statement of Objects and Reasons to the Bill of 1929 makes this clear. It says: “The (Civil Justice) Committee’s recommendation refers, it is understood, to the decisions of the Privy Council in Vidya Varuthi v. Baluswami [AIR 1922 PC 123 : ILR 44 Mad 831] and Abdur Rahim v. Narayan Das Aurora [(1922) 50 IA 84] which lay down that a dharmakarta, mahant or manager of a Hindu religious property or the mutawalli or sajjadanashin in whom the management of Mohammedan religious endowment is vested, are not trustees within the meaning of the words as used in Sec. 10 of the Limitation Act, for the reason that the property does not vest in them. The result is that when a suit is brought against a person, not being an assignee for valuable consideration, endowments of this nature are not protected. The Committee’s recommendation is that Sec. 10 of the Limitation Act should be amended so as to put Hindu and Mohammedan religious endowments on the same footing as other trust funds which definitely vest in a trustee.” (Quoted in: Maharashtra State Board of Wakfs v. Shaikh Yusuf Bhai Chawla, 2022-12 SCR 482).

In Maharashtra State Board of Wakfs v. Shaikh Yusuf Bhai Chawla, 2022-12 SCR 482, the Apex Court held that the Mutawalli is not a trustee in its true sense. The Supreme Court formulated a crucial question and answered it as under:

“127. Thus, the Mutawalli is treated as a trustee. But would the amendment made to Sec. 10 of the Limitation Act, 1963 make a Mutawalli a trustee generally?

Our answer is an emphatic No. This is for the reason that the change in Sec. 10 of the Limitation Act was effected to overcome the judgment of the Privy Council, when it held that a Mutawalli would not be a trustee and when in view of the requirement in Sec. 10 that the suit must be one against a person in whom the property has become vested in trust for any specific purpose and as a Mutawalli would not be a trustee in law per se, the legislature brought in the explanation. But what is striking are two features. Firstly, the change is brought by way of an Explanation. More importantly, the explanation begins with words “For the purpose of this section and proceeds to declare that “any property comprised in a Hindu, Muslim or Buddhist religious or charitable endowment shall be deemed to be properly vested in trust for a specific purpose and the manager of the property shall be deemed to be the trustee thereof.”

Vesting of Property in Various Kinds of Associations and Trusts

Club, Society, Firm and Company

*No.*	*Nature of Association.*	*Vesting of Management and Legal Ownership.*	*Vesting of actual/ ultimate ownership*	*Whether perma-nent or can it be put an end to*
1	Club	Trustees or Gov. Body, as per Byelaws	Members, subject to the byelaws and objectives of foundation.	Presumed to be not permanent.[19]
2	Unregistred. Society/ Association	-do-	-do-	Presumed to be permanent.
3	Registered Society	-do-	-do-	Permanent. SR Act governs dissolution.
4	Firm	Partners	Partners	Contract/partnership deed governs
5	Trading Company	Board of Directors	Company	Permanent. Co. Act governs winding up.
6	Charitable or Non-trading company	-do-	-do-	-do-

Trusts/Religious-Endowments:

7	Public Trust– English Law[20]	Trustees	Legal ownership in Trustees; beneficial ownership in Beneficiaries.	Permanent
8	Public Trust-Indian (common) Law	Trustees	Beneficiaries have only beneficial interest; and, no beneficial ownership. Theoretically, properties vest in public or section who are beneficiaries, subject to the objectives of foundation, as established by evidence or as revealed from the deed of founda-tion or byelaws, if any.	Permanent
9	Public School, Public Library, etc.	Trustees (called by different names).	-do-	Permanent.
10	Private religious or charitable trusts	Management on Trustees (called by different names). If the trust/ institution/ endowment is a legal person upon which legal ownership can be vested, legal ownership will be vested upon it.	Properties vest in trust/ institution/endowment itself. If it cannot be – for it is not a legal person – property vests in such persons as established by evidence or the deed of foundation or byelaws. Beneficiaries have no beneficial ownership.	Presumed to be permanent.
11	Mosque, Church, Gurudwara, etc.	Management on Trustees (by different names). If the trust/ institution/ endowment is a legal person upon which legal ownership can be vested, legal ownership will be vested upon it.	In trust/institution or endowment itself. If it cannot be – for it is not a legal person – section of public who are beneficiaries, subject to the objectives of foundation, as established by evidence or as revealed from the deed of foundation or bylaws, if any.	Permanent
12	Temple (Public)	Management on Shebaits/ Darmkarta/ Ooralen. Since Idol/deity is a legal person upon which legal ownership can be vested, legal ownership vests upon it.	Idol/deity	do-
13	Temple (private)	-do-	-do-	-do-
14	Mutt	Management on Madathipathi. Since Mutt is a legal person upon which legal ownership can be vested, legal ownership vests upon it.	Mutt	-do-
15	Private Trust (Coming under the Trusts Act	Trustees	Terms/ Deed of Trust govern.	Trusts Act governs Extinction and Revocation.[21]

Government School, University, etc.

University, Govt. Hospital, Govt. College, etc.

Administrators as provided in the statute concerned

In the institution itself, if not expressly stated to be in the Government.

Presumed to be permanent. (Permanent until decided to close by the Government.)

[1] Salmond on Jurisprudence: 12^th Edition, page 256.

[2] See: ChhatraKumari Devi Vs. Mohan Bikram Shah: AIR 1931 PC 196.

[3] See: M. R. Goda Rao Sahib Vs. State of Madras: AIR 1966 SC 653; Sree Siddhi Budhi Vinayakagar Sree Sundareswarar Vs. S V Marimuthu: AIR 1963 Mad 369.

[4] Chhatra Kumari Vs. Mohan Bikram: AIR 1931 PC 196; WO Holdsworth Vs. The State of Uttar Pradesh: AIR 1957 SC 887: 2001-9 SCC 471; Commissioner of Wealth Tax Vs. Kripashankar: AIR 1971 SC 2463; Bai Dosabai Vs. Mathurdas: AIR 1980 SC 1334; Bomi Munchershaw Mistry Vs. Kesharwani Co Op. Hosg. So.: 1993-2 BCR 301; 1993-2 BCR 32. See also: Ramabai GovindVs. Raghunath Vasudevo: AIR 1952 Bom 106; Deoki Nandan Vs. Murlidhar: AIR 1957 SC 133; Behari Lal Vs. Thakur Radha Ballabhji: AIR 1961 All 73 .

[5] Salmond on Jurisprudence: 12^th Edition, page 256

[6] Kansara Abdulrehman Sadruddin Vs. Trustees of the Maniar Jamat : AIR 1968 Guj 184.Narayani Amma Vs Eyo Poulose: AIR 1982 Ker 198; S R Varadarajulu Naidu Vs. Papanasam Labour Union: AIR1969 Mad 401; T C Chacko Vs. Annamma: AIR 1994 Ker 107.

[7] AIR 1968 Guj 184.

[8] Baba Badri Dass Vs. Dharma: AIR 1982 P&H 255

[9] See Chapter: VESTING OF PROPERTY IN HINDU ENDOWMENTS

[10] KS Varghese Vs. St. Peters and Pauls Syrian Orthodox Church: (2017) 15 SCC 333

[11] AIR 1976 SC 1569.

[12] Page 38.

[13] Quoted in Yogendra Nath Naskar Vs. Commissioner of Income Tax: AIR 1969 SC 1089.

[14] Quoted in Yogendra Nath Naskar Vs. Commissioner of Income Tax: AIR 1969 SC 1089; M Siddiq Vs. Mahanth Suresh Das (Ayodhya Case): (2019) SCC OnLine SC 1440

[15] 12^th Edition, Page 326

[16] IV Edition, Vol. 6, Para 205

[17] Quoted in: Most Rev. PMA Metropolitan Vs. Moran Mar Marthoma: AIR 1995 SC 2001.

[18] Page 208

[19] If the objectives of foundation envisage benefit to future members also, the present members and administrators are trustees for future members.

[20] Preferred name: Charities

[21] It is settled 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 (they wish): Profulla Chorone Requitte Vs. Satya Chorone Requitte: AIR 1979 SC 1682.

Read in this cluster (Click on the topic):

Civil Suits: Procedure & Principles

Evidence Act

Constitution

Contract Act

Easement

Club/Society

Trusts/Religion

Clubs and Societies, Bye Laws Fundamental

Saji Koduvath.

Synopsis

Provisions of the Societies Registration Act, 1860
Bye Laws Bind as Contract
Bye laws Must be Reasonable and in Accord with So. Rgn. Act
Bye laws – Fundamental
Bye Laws Determines Form and Formation of Govg. Body
Bye Laws Vs. Rule of Majority
Amendment of Bye Laws
Sub Rules
Churches and Canon Law
Disputes be Redressed as Provided by the Rules

1. Provisions of the Societies Registration Act, 1860:

1. Societies formed by memorandum of association and registration
- Any seven or more persons associated for any literary, scientific, or charitable purpose, or for any such purpose as is described in section 20 of this Act, may, by subscribing their names to a memorandum of association, and filing the same with Registrar of Joint-stock Companies form themselves into a society under this Act.
2. Memorandum of association
- The memorandum of association shall contain the following things, that is to say, the name of the society; the object of the society; the names, addresses, and occupations of the governors, council, directors, committee, or other governing body to whom, by the rules of the society, the management of its affairs is entrusted. A copy of the rules and regulations of the society, certified to be a correct copy by not less than three of the members of the governing body, shall be filed with the memorandum of association.
20. To what Societies Act applies
- The following societies may be registered under this Act:-
- Charitable societies, the military orphan funds or societies established at the several presidencies of India, societies established for the promotion of science, literature, or the fine arts for instruction, the diffusion of useful knowledge, [the diffusion of political education], the foundation or maintenance of libraries or reading-rooms for general use among the members or open to the public or public museums and galleries of paintings and other works of art, collections of natural history, mechanical and philosophical inventions, instruments, or designs.

2. Bye Laws Bind as Contract

The members of a club or society, both registered and unregistered, are bound by the memorandum of association and its rules and regulations. The bye laws bind its members as a contract.[1] Even the formation of a society itself is based on a contract.[2] When a person becomes a member of the society, he would have no independent rights, and lose his individuality[3] qua the society except those that are given to him by the statutes concerned and bye laws.[4] It is observed in Zoroastrian Co-op. Housing Society Ltd. Vs. District Registrar [5] that the rights of members merge in the rights of the society. In State of UP Vs. CD Chheoki Employees Co-operative Society,[6] our Apex Court explicated it with the analogy that the stream cannot rise higher than the source. It reads:

“Thus, it is settled law that no citizen has a fundamental right under Article 19(1)(c) to become a member of a Cooperative Society. His right is governed by the provisions of the statute. So, the right to become or to continue being a member of the society is a statutory right. On fulfillment of the qualifications prescribed to become a member and for being a member of the society and on admission, he becomes a member. His being a member of the society is subject to the operation of the Act, Rules and bye-laws applicable from time to time. A member of the society has no independent right qua the society and it is the society that is entitled to represent as the corporate aggregate. No individual member is entitled to assail the constitutionality of the provisions of the Act, Rules and the bye-laws as he has his right under the Act, Rules and the bye-laws and is subject to its operation. The stream cannot rise higher than the source.”

It is observed in All India Sank Employee’s Association Vs. National Industrial Tribunal (Bank Disputes)[7] as under:

“As the stream can rise no higher than the source, associations of citizens cannot lay claim to rights not open to citizens, or claim freedom from restrictions to which the citizens composing it are subject.”

If the rules of the society or club provided that the decision of a particular question must be by a majority, [8] the decision would bind all the members unless the act complained of is a fraud on the minority or is ultra vires the society or club. In all other matters about which the rules are silent, the majority does not have any right to coerce the minority[9].

Referring to the Supreme Court decision in Hira Devi Vs. District Board of Shahjahanpur[10], it is determined in Raja Himanshu Dhar Singh Vs. Additional Registrar Co-operative Societies[11] that the secretary of a society cannot perform any function which the rules do not authorise him to perform. The secretary is the creature of the rules.

Salmond reads:

“The rules of the club or society constitute the basic contract to which all the members are parties.”[12]

The civil court has jurisdiction to interfere where a club had followed a procedure not warranted by the Rules of the Club.[13]

In Supreme Court Bar Association Vs. BD Kaushik[14] it is observed that the Memorandum of Association is a contract amongst the members of the Society and that these are rules which govern internal control and management of the Society. The authority to frame, amend, vary and rescind such rules, undoubtedly, vests in the General Body of the Members of the Society. The power to amend the rules is implicit in the power to frame rules.

3. Bye laws Must be Reasonable and in Accord with So. Rgn. Act

It is trite law[15] that an unfair, unreasonable or irrational clause in a contract is unjust and amenable to Judicial Review. Bye laws of a society or a club is a contract amongst its members. Bye laws must be reasonable.[16] It is liable to be held invalid for uncertainty.[17] It should not militate against the provisions of the Societies Registration Act and Contract Act.

In ABC Laminart Pvt. Ltd. Vs. SAP Agencies, Salem[18] it is held:

“…. An agreement enforceable at law is a contract. An agreement which purports to oust the jurisdiction of the court absolutely is contrary to public policy and hence void. …”

It was held, with respect to bylaw of a public body, in Repton School Governors Vs. Repton Rural District Council[19] as under:

“I quite agree that bye laws, especially those of public bodies, should be approached from the point of view of upholding them, if possible, and should be, as it has been described, benevolently interpreted; but still they must be reasonable.”[20]

In H.C. Suman Vs. Rehabilitation Ministry Employees’ Cooperative House Building Society (AIR 1991 SC 2160) it is observed:

“In Kruse Vs. Johnson [(1898) 2 QB 91] it was held that in determining the validity of bye-laws made by public representatives bodies, such as country councils, the court ought to be slow to hold that a bye-law is void for unreasonableness. A bye-law so made ought to be supported unless it is manifestly partial and unequal in its operation between different classes or unjust, or made in bad faith, or clearly involving an unjustifiable interference with the liberty of those subject to it…”[21]

In Shanti Swarup Vs. Radhaswami Satsang Sabha, Dayal Bagh,[22] the bylaws of the society stated the terms for dissolution as under: ‘The society shall stand dissolved in case no Satsang Guru reappeared within two years of the death of the last Satsang Guru’. It was held that such bye laws were invalid and inoperative, they being militated against the provisions of Section 13 of the Societies Registration Act, 1860 (Sec 13 relates to dissolution of societies and adjustment of their affairs).

In Lingappa Police Patil Vs. Registrar of Societies[23] it is held that the Rule of the Society which declared a person would cease to be a member merely on his default to make the subscription, without even providing him an opportunity to show cause for not making the payment within a specified period appeared ‘to be very harsh’; and that ‘confiscatory and deprivatory provisions made, resulting in civil consequences, should not have been allowed’ to be incorporated in the bye laws. The Division Bench struck down the impugned Rule it being contrary to the provisions of the Act. It is also on the principle that rules of natural justice require that that no person can be condemned unheard.[24]

4. Bye laws – Fundamental

If a person voluntarily joins in a particular association, including a Church, he would be bound by the rules which have been framed for the internal discipline and for the management of its affairs.[25]

Any action taken contrary to the bye laws would be ultra vires.[26] Even the entire members of an association, altogether, cannot legally do a thing which is ultra vires; though they are at liberty to change or amend their bye laws and do the thing, provided it is not hit by the doctrine of ‘basic principles of foundation’. It is held in Inderpal Singh Vs. Avtar Singh:[27]

“Rule of Law demands and dictates that the people follow the Law. The Constitution, whether of the State or of a Society registered under the Societies Act, is paramount. As people are to follow the Law in a State, so the members of a Society are duty-bound to follow the Constitution of the Society. After all, the Constitution is the soul of the Society. The Society, therefore, cannot function in contravention of its Constitution. .… In case the action of the Sabha is contrary to the tenor and spirit of its Constitution, the said action cannot be sustained by a Court of law. The doctrine of factum valet is applicable to cure the violation of a directory provision or a mere matter of form but does not cure the violation of the fundamental principles or the essence of the transaction.”

In Sri Bhaben Chandra Pegu Vs. The State of Assam[28] the Division Bench considered the relevant statutory Rule under which meeting of the governing body of a college had to be convened and pointed out that acts in violation of the Rules would be void, unlawful and illegal and was liable to be set aside.

In Clubs, no general law applicable except the law of Fraud

In Noel Frederick Barwell v. John Jackson, AIR 1948 All 146, majority observed as under:

“In Lyttelton v. Blackburne (1875) 45 L.J. Ch. 219, which was for restoration of a member who had been expelled from the Junior Naval and Military club, which was a proprietary club, Bacon V.C., observed:
- ‘Clubs have always rules of management and there is no general law applicable to members as such except the law of fraud; they are governed by their rules, and the law must be extracted from the rules.’ “

Dissent and Disagreement be Resolved under the Party Constitution

In the ‘floor test case’ (Maharashtra Assembly), Subhash Desai v. Principal Secretary, Governor of Maharashtra (decided on May 11, 2023), the Supreme Court held as under:

“88. The political imbroglio in Maharashtra arose as a result of party differences within the Shiv Sena. However, the floor test cannot be used as a medium to resolve internal party disputes or intra party disputes. Dissent and disagreement within a political party must be resolved in accordance with the remedies prescribed under the party constitution, or through any other methods that the party chooses to opt for.”

Strict Compliance of the Bye-Laws

Strict compliance of the bye-law may not be necessary when the member of the Co-operative Sugar Factory is unable to comply with the conditions due to circumstances, over which he could have no control. Non cultivation of sugar cane crop due to paucity of the irrigation facility could be attributed to calamity which occurred in the drought prone area. It is, therefore, clear that noncompliance of the condition was due to vis-major. It is worthy to be mentioned that such bye-law is required to be construed having regard to the object of the provisions of the Maharashtra Co-operative Societies Act.[29]

Non-renewal of the registration of a society may be a bar to avail the benefits offered to registered societies, but the same by itself will not lead the inference that the society is not in existence.[30] In the event of becoming a society defunct, or failure to file documents under Sec. 4 of the So. Regn. Act, there is no bar to revive its activities and to conduct the election of the office bearers. The courts cannot set aside such elections on the sole ground that certain statutory provisions have not been complied with by it.[31]

When a question arose as to whether the provision in the Co-operative Rules that provides 15 clear days notice for moving a no-confidence motion was directory or mandatory,[32] following the Supreme Court decision in Narasimhiah Vs. Singri Gowda[33] it was held in VA Jose Vs. Joint Registrar of Co-operative Societies[34] that the provision was only directory since the legislature had not provided any consequence that was to follow if 15 clear days notice had not been given and since the petitioner did not explain in what manner he was prejudiced for not getting 15 clear days’ notice. It was also held that the petitioner being participated in the disputed meeting, he had no right to challenge the invalidity in the notice for convening the meeting.

In Supriyo BasuVs. WB Housing Board[35] it has been held by our Apex Court that it is undisputed that a Co-operative Society is constituted on agreement between members thereof who had agreed to abide by the provisions of the Co-operative Societies Act, the Rules framed thereunder or the bye-laws framed by the Society. The Society is undisputedly not a department of the State and is also not a creature of a statute but merely governed by a statute. Only if it is established that the mandatory provision of a Statute has been violated, a writ petition could be maintainable.

5. Bye Laws Determines Form and Formation of Governing Body

It is pertinent to note that the Societies Registration Act enacted in 1860 does not specifically direct ‘election’ of the governing body. The rules and regulations of the society determine the form and details as to formation of the governing body.[36]

A democratic set up in the associations or unions, subject to its bye laws, is envisioned in that right to form an association itself. Bye laws of several societies, especially religious and Government-controlled societies, provide for permanent or ex-officio Presidents.

Person who Signs Pleadings must be Authorised by the Byelaws

The Supreme Court, in P. Nazeer Vs. Salafi Trust, AIR 2022 SC 1580, held:

(i) A society registered under the Societies Registration Act is entitled to sue and be sued, only in terms of its byelaws.
(ii) The byelaws may authorise the President or Secretary or any other office bearer to institute or defend a suit for and on behalf of the society,
- since section 6 of the Societies Registration Act, provides that ‘every society registered under the Act may sue or be sued in the name of President, Chairman, or Principal Secretary, or trustees, as shall be determined by the rules and regulations of the society and,
- in default of such determination, in the name of such person as shall be appointed by the governing body for the occasion’.
(iii) Unless the plaintiff, which claims to be a society, demonstrates that it is a registered entity and that the person who signed and verified the pleadings was authorised by the byelaws to do so, the suit cannot be entertained
- The fact that the plaintiff in a suit happens to be a local unit or a Sakha unit affiliated to a registered society is of no consequence, unless the byelaws support the institution of such a suit.

6. Bye Laws Vs. Rule of Majority

Can a society be formed disregarding democratic principles?

The immediate answer may be, ‘yes’; mainly because, the So. Regn. Act,[37] enacted in 1880, does not speak as to ‘election’; and because, the members of an association are united on consensual basis whereby the members are voluntarily submitted themselves to the administration under the bye laws. Therefore, they cannot question the reasonableness of the bye laws as ‘the stream cannot rise higher than the source’.

What is in the interest of the society is primarily for the society alone to decide and it is not for an outside agency to say.[38]

Ninety Seventh Amendment of our Constitution provided constitutional status to the Co-operative Societies and it has brought out radical changes in the concept of Co-operative Societies. Democratic functioning and autonomy have now become the core constitutional values of a Co-operative Society. With respect to Co-op. Societies, it is held in Vipulbhai M. Chaudhary Vs. Gujarat Cooperative Milk Marketing Federation[39] as under:

“The Co-operative society registered under the Central or the State Act is bound to function as a democratic institution and conduct its affairs based on democratic principles. Democratic functioning on democratic principles is to be reflected in the respective Acts or Rules or Bye-laws both on the principle and procedure. If not, it is for the court to read the democratic principles into the Act or Rules or Bye-laws. If a procedure is prescribed in any Act or Rule or Bye-law regarding election of an office bearer by the Board, as defined under Article 243ZH(b) of the Constitution of India, and for removal thereof, by way of a motion of no confidence, the same procedure has to be followed. In case there is no express provision under the Act or Rules or Bye-laws for removal of an office bearer, such office bearer is liable to be removed in the event of loss of confidence by following the same procedure by which he was elected to office.”

But, it may also be equally important: an autonomous association, which is formed in a republic which considers doctrines of collective wisdom or democracy important and which is founded under the guarantees given in the ‘fundamental-rights’ of the Constitution of such a republic, it is expected to be (if not should be) a miniature replica of the republic. Therefore, though the members of an association are united on consensual basis and are voluntarily submitted themselves to the administration under the bye laws, if the provisions of its bye laws annihilate democratic principles, the same will be reckoned as illegal as opposed to public-policy.

In Ravi Yashwant Bhoir Vs. District Collector Rajgad,[40] with regard to removal of an office bearer, the Supreme Court observed:

”34. In a democratic institution, like ours, the incumbent is entitled to hold the office for the term for which he has been elected unless his election is set aside by a prescribed procedure known to law or he is removed by the procedure established under law.”

Majority of an Association Cannot Alter Fundamental Principles

The fundamental principles upon which a trust is founded cannot be varied. Therefore, the courts cannot sanction any drastic amendment to the document of trust which would destroy the basic purpose for which the trust was created. The trust properties will not be allowed to be sold even to the members of their community for whose benefit the trust is created and the properties were acquired. It is also not open for the majority of the members of an association to alter the fundamental principles upon which it is founded, unless such a power is specifically reserved. These principles laid down in Milligan Vs. Mitchel,[41]Attorney General Vs. Anderson[42] and Free Church of England Vs. Overtoun[43] is referred to in Prasanna Venkitesa Rao Vs. Srinivasa Rao.[44]

In Free Church of England Vs. Overtoun the House of Lords (by a majority of 5-2) found that the minority was entitled to the assets of the Free Church. It was observed that when men subscribe money for a particular object, and leave it behind them for the promotion of that object, their successors have no right to change the object endowed. It was held that, by adopting new standards of doctrine (and particularly by abandoning its commitment to ‘the establishment principle’, which was held to be fundamental to the Free Church), the majority had violated the conditions on which the property of the Free Church was held.

Whether the majority has an Inherent Power to Alter the Rules?

In Noel Frederick Barwell v. John Jackson, AIR 1948 All. 146, the court referred the following passage from Harington v. Sendall, (1903) 1 Ch. 921, where the raising of subscription of Oxford and Cambridge University Club was discussed. It reads as under:

“When the plaintiff became a member he thereby became entitled to the benefits and privileges of the club, and was to be taken to have declared his submission to the then rules and regulations. I say ‘the then rules and regulations’ because the words are not ‘such rules and regulations as may be made from time to time,’ but ‘the following rules and regulations.’ In other words, he agreed to be bound by the written contract that is to be found in the rules. Unfortunately, as I think, those rules did not, nor indeed, do the present rules, contain any provision for the making of amendments or alterations from time to time. …. ‘Indeed, so far as there can be said to be authority upon the subject, and, as I think, upon principle, there is no more inherent authority in the members of the club by a majority in general meeting to alter the rules against the wishes of a minority than there is in the members of any other society or association the constitution of which depends upon and is matter of contract – there being as there is here a written contract expressing the terms upon which the members associate together’.”

Fundamental Objectsof Association Cannot be Altered by Amendment

In Noel Frederick Barwell v. John Jackson, AIR 1948 All 146, while considering the right of an association to dissolve a Club by majority desolution it was stated as under:

“50. In Morgan v. Driscoll (1922) 38 T.L.R. 251, the rules of the Secular Catholic Clergy Common Fund Association, which was founded in the year 1701, provided for decision of all questions by a majority and there was a provision for repeal and alteration of the rules framed from time to time. Dealing with the question whether a particular amendment was valid or not, it was argued that the amendment was invalid as it was incompatible with the fundamental objects of the association and went to the foundation of it. Sargant J. held that the alteration complained of did not, in his view, go to the foundation of the association and was not incompatible with its fundamental objects and was, therefore, valid.
51. It has been argued by Mr. Pathak on the basis of this decision and the decision of the House of Lords in Hole v. Garnsey (1930) 1930 A.C. 472, already referred to, that the rules of every association may be divided into two classes – the rules relating to fundamentals and the ordinary rules. Learned Counsel went on to urge that the fundamental rules could not be altered even by a unanimous vote of the members, though, if the rules provided for amendments, the other rules could be amended. It is not necessary for me to go into this question as the point does not arise in this case, but if I may say so without meaning any disrespect, the cases cited above have entirely been misunderstood. All that their Lordships intended to say was that the rules of any club being framed for the purpose of carrying on the objects of the club, ordinarily any power to amend such rules must be limited to the contemplated scope of the original rules and that under the general powers of amendment the alteration should not affect the foundation of the club or should not be incompatible with its fundamental objects.
52. Dealing with this question Lord Han – worth, Master of the Bolls, in Doyle v. White City Stadium Ltd (1935) 1 K.B. 110 said:
When these rules as altered are still for the purpose of carrying out the original purpose of the society or body of persons, the altered rules are made binding on the plaintiff. If there was an attempt fundamentally to alter the purpose for which the rules had been originally drawn up, the prospective agreement to adhere to-fresh rules, or any alteration in the rules, would not apply. It is quite plain from the decision in Thelluson v. Viscount Valentia (1907) 2 Ch. 1 that if and so long as the rules are akin to the purpose for which a society exists, there is no inherent, objection to an alteration of those rules or to further rules being made for the same purpose.”

Whether the majority has an Inherent Power to Alter the Rules?

In Noel Frederick Barwell v. John Jackson, AIR 1948 All 146, the court referred the following passage from Harington v. Sendall, (1903) 1 Ch. 921, where the raising of subscription of Oxford and Cambridge University Club was discussed. It reads as under:

“When the plaintiff became a member he thereby became entitled to the benefits and privileges of the club, and was to be taken to have declared his submission to the then rules and regulations. I say ‘the then rules and regulations’ because the words are not ‘such rules and regulations as may be made from time to time,’ but ‘the following rules and regulations.’ In other words, he agreed to be bound by the written contract that is to be found in the rules. Unfortunately, as I think, those rules did not, nor indeed, do the present rules, contain any provision for the making of amendments or alterations from time to time. …. ‘Indeed, so far as there can be said to be authority upon the subject, and, as I think, upon principle, there is no more inherent authority in the members of the club by a majority in general meeting to alter the rules against the wishes of a minority than there is in the members of any other society or association the constitution of which depends upon and is matter of contract – there being as there is here a written contract expressing the terms upon which the members associate together’.”

Property Of A Club Cannot Be Transferred By The Majority

In Noel Frederick Barwell v. John Jackson, AIR 1948 All 146, it was further stated as under:

“55. For the proposition that the property of a club cannot be transferred by the majority, learned Counsel has relied on the case in Murray v. Johnstone (1896) 23 Ruttia Court of Session (Scoland) 981. In that case a silver trophy, known as the Waterlow Cup, had been presented for competition by the curliers of the County of Dumfriesshire by Sir Sydney Waterlow and as a winner for three consecutive years was to keep the cup, the Upper Annandale Club won the cup and it became its property. At a meeting of the Upper Annandale Club, by a majority of votes against the objection of the minority, it was decided that the cup should be gifted to Johnstone who was the custodier for the cup during the winning sessions 1893 and 1894. It was held that the majority had no such power and the gift was, therefore, invalid.
56. In Vick v. Toironen 12 Dominion Law Rep. 299 it was held by the Ontario Supreme Court, Appellate Division, that the property of a voluntary society could not be diverted by the majority of its members, against the wishes of the minority, from the purpose for which it was acquired by their contributions and devoted to a purpose alien to and in conflict with the fundamental principles of the society.”

7. Amendment of Bye Laws

See blog: ‘Amendment of Bye Laws’.

8. Sub Rules

The legal basis and principles for formulating the sub rules can be traced from the doctrine of ‘implied ancillary and incidental powers’. If there is no detailed rules governing an important administrative or quasi-judicial matter, such as election, selection or redressal of disputes, the concerned authority will have the legitimate right to formulate detailed sub rules in that matter. It is, mainly, to provide proclaimed ‘general standards’ in administration and to ensure ‘rule of law’.[45] Nonetheless, it must be intra vires, reasonable and conducive to the intended purpose.

Similarly, in the absence of express or implied regulations to the contrary,[46] the Domestic Tribunals including Syndicate of a University,[47] Enquiry Committees, election authorities, etc. are also free to evolve and follow their own procedure as they are ‘masters of their own procedure’;[48] but, they must ensure natural justice in their actions.[49]

With respect to the procedure to be adopted by the domestic tribunal it is held in Kurukshetra University Vs. Vinod Kumar[50] as under:

“It is not the province and the function of this Court to lay down either the time or the mode and manner in which autonomous and high-powered bodies like the Syndicate of the appellant-University are entitled to conduct their business in the meetings. They are equally masters of their own procedure and unless there is an infraction of the clear statutory rules in carrying out their duties and in conforming to the procedure prescribed by law, this Court would be ill-advised to render any gratuitous advice to them in their autonomous field in dealing and disposing of their business.”

Lord Denning, Master of Rolls, in the Court of Appeal in England observed, with respect to the doctrine, ‘masters of their own procedure’, as under, in the matter of a non-statutory domestic tribunal:[51]

“Is a party who is charged before a domestic tribunal entitled as of right to be legally represented, much depends on what the rules say about it. When the rules say nothing, then the party has no absolute right to be legally represented. It is a matter for the discretion of the tribunal. They are masters of their own procedure: and, if they, in the proper exercise of their discretion, decline to allow legal representation, the Courts will not interfere….”[52]

See Blog: Management – Powers of General Body and Governing Body

9. Churches and Canon Law

Canon-Law refers to the law internal to the church. [53] In disputes relating to spiritual or temporal affairs of a Roman Catholic Church, the parties should be presumed to be governed by the general law relating to the administration of churches, namely the Canon Law.[54]

The Catholic Community in India is governed[55] either by ‘Code of Canons of the Eastern Churches’ (CCEC) applicable to Syro Malabar & Syro Malankara Rites, or ‘Code of Canon Law’ (CIC), applicable to the Latin Rite. The Canon Law recognizes three categories of personalities; ie., the moral person, the physical person and the juridic person. The Catholic Church and the Apostolic See have the character of a moral person (CIC – 113). By baptism an individual is incorporated into the Church of Christ (CIC -208-223).

Both “parish” and the “diocese” are public juridic persons. Canon (CIC) 1256 specifically provides that under the supreme authority of the Roman Pontiff, ownership of goods belongs to that particular juridic person which has acquired them legitimately.

10. Disputes be Redressed by the Mechanism Provided by the Rules

In Kowtha Suryanarayana Rao Vs. Patibandla Subrahmanyam[56] it is held as follows:

“It is a well established principle that, provided that the acts of the management are within the powers of the society itself any dispute between individual members of the society and those responsible for its management must be decided by the machinery provided by the rules and not in a Court of law. It is only when an act is ultra vires the society that a member is entitled to come to a Civil Court and have the act of the management which is ultra vires declared to be void.”

In Supreme Court Bar Association Vs. BD Kaushik[57] it is observed that in matters of internal management of an association, the courts normally do not interfere, leaving it open to the association and its members to frame a particular bye-law, rule or regulation which may provide for eligibility and or qualification for the membership and/or providing for limitations/restrictions on the exercise of any right by and as a member of the said association.

It is further held in this decision that the Memorandum of Association is a contract amongst the members of the Society and that these are rules which govern internal control and management of the Society. The authority to frame, amend, vary and rescind such rules, undoubtedly, vests in the General Body of the Members of the Society. The power to amend the rules is implicit in the power to frame rules.

It is well settled legal proposition that once a person becomes a member of the association, such a person loses his individuality qua the association and he has no individual rights except those given to him by the rules and regulations and/or bye-laws of the association. Courts will not delve in the internal disputes of an association unless it is shown[58] that the aggrieved parties have worked out and exhausted their remedies[59] (but, failed to resolve disputes) under the bye laws, before:

(a) the machinery or body (domestic tribunals)[60], if any, provided in its bye laws,[61] or
(b) the body or authority which has to take (expressly or impliedly) cognisance of the matter, under its bye laws, or
(c) the authorities under the statute, if any, holds the field.[62]

The general principle is that when the Act and the Rules made thereunder are silent on a particular aspect, we have to look for guidance into the broad scheme of the Act and the intention of the legislature.[63] This principle applies, with full vigor, to the bye laws of voluntary associations.

In the celebrated decision, TP Daver Vs. Lodge Victoria,[64] the Supreme Court held that a member of a Masonic lodge was bound to abide by the rules of the lodge, and if the rules provide for expulsion, he should be expelled only in the manner provided by the rules;[65] and that the lodge was bound to act strictly according to the rules.[66]

[1] Board of Trustees, Ayurvedic & Unani Tibia College Vs. The State: AIR 1962 SC 458; Siddheshwar Sahkari Sakhar Karkhana Vs. Commissioner of I T: AIR 2004 SC 4716; Hyderabad Karnataka Education Society Vs. Registrar of Societies: AIR 2000 SC 301; Co- op. Central Bank Vs. Addl. Industrial Tribunal, Andhra Pradesh: AIR 1969 SC 245; Naresh Chandra Sanyal Vs. Calcutta Stock Exchange Assn Ltd. : AIR 1971 SC 422; Damyanti Naranga Vs. Union of India: AIR 1971 SC 966; Daman Singh Vs. State of Punjab AIR 1985 SC 973.

[2] Zoroastrian Co-op. Housing Society Ltd. Vs. Dist. Registrar: AIR 2005 SC 2306; State Bank of India Staff Association Vs. Mohindra Bhattacharyya: AIR 1991 Cal 378.

[3] Daman Singh Vs. State of Punjab: AIR 1985 SC 973; Damyanti Naranga Vs. Union of India: AIR 1971 SC 966.

[4] Syed Munir Hoda Vs. Bader Sayeed: TLMAD-2012-0-2262; Supreme Court Bar Association Vs. BD Kaushik: : (2011) 13 SCC 774; State of UP Vs. COD Chheoki Employees’ Coop. Society Ltd : AIR 1997 SC 1413.

[5] Zoroastrian Co-op. Housing Society Ltd. Vs. District Registrar: AIR 2005 SC 2306

[6] AIR 1997 SC 1413: Quoted in Zoroastrian Co-op. H. Society Ltd. Vs. District Registrar: AIR 2005 SC 2306; Supreme Court Bar Association Vs. BD Kaushik: (2011) 13 SCC 774; Chandigarh Housing Board Vs. Devinder Singh: AIR 2007 SC 1723.

[7] AIR 1962 SC 171

[8] Deepak R Mehtra Vs. National Sports Club of India : ILR2009-19 Dlh216

[9] Raja Himanshu Dhar Singh Vs. Additional Registrar Co-op. Societies: AIR1962 All 439

[10] AIR 1952 SC 362

[11] Raja Himanshu Dhar Singh Vs. Additional Registrar Co-Op. Societies: AIR1962 All 439

[12] Salmond on Jurisprudence: 12^th Edition, Page 326.

[13] Kalyan Kumar Dutta Gupta Vs. B.M. Verma: AIR 1995 Cal. 140 (DB). Also see: Deepak R Mehtra Vs. National Sports Club of India: ILR 2009-19 Dlh 216. See Chapter: Expulsion of Members & Officers’ Removal.

[14] (2011) 13 SCC 774

[15] LIC of India Vs. Consumer Education & Research Centre: AIR 1995 SC 1811; A C Muthiah Vs. Board of Control for Cricket in India: (2011) 6 SCC 617: CTC 2010 (2) 429; Supreme Court Bar Association Vs. BD Kaushik: (2011) 13 SCC 774.

[16] Alty Vs. Farrell (1896) 1 QB 638; Kruse Vs. Johnson, (1898) 2 QB 91, Scott Vs. Pilliner, (1904) 2 KB 855, Repton School Governors Vs. Repton Rural District Council, (1918) 2 KB 133; Chester Vs. Bateson, (1920) 1 KB 829; Attorney General Vs. Denhy, 1925 Ch 596: All referred to in: Municipal Board Vs. Rizwan Beg: AIR 1964 All 544.

[17] Nash Vs. Finlay. (1901) 85 LT 082; Attorney General Vs. Denhy, 1925 Ch. 596. Both referred to in: Municipal Board Vs. Rizwan Beg: AIR 1964 All 544.

[18] AIR 1989 SC 1239

[19] (1918) 2 KB 133

[20] It is referred to in: Municipal Board Vs. Rizwan Beg: AIR 1964 All 544.

[21] Quoted in Om Prakash Vs. State of Uttar Pradesh: AIR 2004 SC 1896.

[22] AIR 1969 All 248

[23] ILR 1997 Kar 3127.

[24] Sarbjit Singh Vs. All India Fine Arts and Crafts Society: ILR 1989-2 Del 585: AIR 1990 NOC 26(Del)

[25] Gaspari Louis Vs. Gonsalves: 35 MLJ 407; Long Vs. The Bishop of Cape Town (1863) 1 Moo. P.C.(N.S.)411) and Merriman Vs. Williams: (1882) L.R.7 A.C.484) referred to. S Robert Vs. M Kanagappan: (2003)2 MLJ 254.

[26] Lila Parulekar Vs. Sakal Papers (P) Ltd.: AIR 2005 SC 4074; Raja Himanshu Dhar Singh Vs. Additional Registrar Co-op. Societies: AIR1962 All 439.

[27] 2007-4 Raj LW 3547

[28] 1998 (1) GLR 38

[29] Yeshwant Khashaba Dubal Vs. Krishna Sahakari Sakhar Karkhana: 1991 CTJ 230

[30] Committee of Management Vs. Commr, Kanpur Region: 2008 -1 AWC 695; 2008 -1 ADJ 706; 2008-70 All LR 368.

[31] See: Nelson Vs. Kallayam Pastorate: AIR 2007 SC 1337

[32] Executive Committee of U. P. State Warehousing Corporation Vs. Chandra Kiran Tyagi. AIR 1970 SC 1244. Quoted in Palakole Co Op Sugars Ltd Vs. P N Raju: 1988-2 ALT 460, 1988-2 APLJ 433

[33] AIR 1966 SC 330

[34] ILR 2007 (1) Ker 10

[35] AIR 2005 SC 4187. Madhya Pradesh Rajya Sahakari Bank Maryadit Vs. State of MP: AIR 2007 SC 540.

[36] Sec. 2, 16 and 20 are relevant.

[37] See Sec. 2 & 16.

[38] State of Maharashtra Vs. Karvanagar Sahakari Griha: (2000) 9 SCC 295; Zoroastrian Co -operative Housing Society Vs. District Registrar: AIR 2005 SC 2306.

[39] AIR 2015 SC 1960

[40] AIR 2012 SC 1339

[41] 40 ER 852

[42] (1888) 57 LJ Ch 543

[43] (1904) AC 515:

[44] AIR 1931 Mad. 12. See also: Inderpal Singh Vs. Avtar Singh: 2007-4 Raj LW 3547; Allahabad High School Society Vs. State of UP: 2010-5 ADJ 734, 2010-82 All LR 83; P. Jayader Vs. Thiruneelakanta Nadar Chinnaneela Nadar: ILR 1966-2 Mad 92.

[45] State of U P Vs. Pawan Kumar Singh [2009-3 ADJ 166].Also see: Vidya Charan Shukla Vs. Tamil Nadu Olympic Association: AIR 1991 Mad 323; Pati Tripathi Vs. The Board of High School & Intermediate Edn, UP: AIR 1973 All 1 (FB).

[46] See: Shyam Narain Shukla Vs. State of UP: 1995-25 All LR 100; 1995-1 LBESR 174; Commissioners for the Port of Calcutta Vs. Asit Ranjan Majumder: AIR 1962 Cal 530; Balaka Co-Operative Vs. Shri Shibdas Raha: AIR 1992 Cal 122.

[47] Guru Nanak University Vs. Iqbal Kaur Sandhu: AIR 1976 P & H 69.

[48] Kurukshetra University Vs. Vinod Kumar: AIR 1977 P & H 21; State of Haryana Vs. Ram Chander: 1976 P & H 381; Sarup Singh Vs. State of Punjab: 1990-1 LLJ 285. Board of High School and Intermediate Education Vs. Ghanshyam Das Gupta: AIR 1962 SC 1110 (Local Government Board Vs. Alridge, 1915 AC 120 referred to); Ramesh Kapur Vs. Punjab University, AIR 1965 Punj 120; Triambak Pati Tripathi Vs. The Board of H S and Intermediate Edn.: AIR 1973 All 1; Bansi Lal Gera Vs. University Of Delhi: 1968-4 DLT 353; University of Madras v. Nagalingam : AIR 1965 Mad 107. See as to statutory Tribunal: Annamalai Vs. R. Doraiswamy Mudaliar: 1982 ACJ 371. Sasidharan Vs. State of Kerala: 1980 KerLT 671

[49] Ramesh Kapur Vs. Punjab University: AIR 1965 Punj 120; Rakesh Kumar Vs. J And K State Board of School Education: AIR 1992 J&K 22.

[50] AIR 1977 Pj & Hr 21

[51] Enderby Town Football Club Ltd. Vs. Football Association Ltd. (1971 Chancery Div. 591)

[52] Quoted in J K Aggarwal Vs. Haryana Seeds Development Corporation: AIR 1991 SC 1221.

[53] Most Rev. P.M.A. Metropolitan Vs. Moran Mar Marthoma: AIR 1995 SC 2001.

[54] Latin Archdiocese of Trivandrum Vs. Seline Fernandez: 2013(4) Ker LT 283; Major Arch Bishop Vs. Lalan Tharakan, 2016(2) Ker LT 791.

[55] Seline Fernandez Vs. Bernard Francis: ILR 2013-1 Ker 56.

[56] AIR 1940 Mad 902.

[57] (2011) 13 SCC 774

[58] Madras Gymkhana Club Vs. KC Sukumar: 2010-1 CTC 199.

[59] A. Venkatasubbiah Naidu Vs. S. Chellappan: 2000 (7) SCC 695: AIR 2000 SC 3032; Superintending Engineer Periyar Electricity Distribution Circle Erode Vs. Pavathal: 2002-2 CTC 544; 2002-1 Mad LJ 515. G. Bala Subrahmanyam Vs. Bar Council of AP: 2014 (2) ALD 101; 2014 (1) ALT 264; AP Arya Vysya Mahasabha Vs. Mutyapu Sudershan: 2015 (5) ALD 1: 2015 (6) ALT 227; Umesh Shivappa Ambi Vs. Angadi Shekara Basappa: (1998) 4 SCC 529: AIR 1999 SC 1566; Avtar Singh Hit Vs. Delhi Sikh Gurdwara Management Committee (2006) 8 SCC 487; Harnek Singh Vs. Charanjit Singh: AIR 2006 SC 52; Supreme Court Bar Association Vs. B.D. Kaushik: (2011) 13 SCC 774;NP Ponnuswami Vs. Returning Officer1952 SCR 218 : AIR 1952 SC 64

[60] Ujjal TalukdarVs. Netai Chand Koley: AIR 1969 Cal 224. Rashmi Bala Saxena Vs. Jiwaji University Gwalior: AIR 1989 MP 181

[61] Supreme Court Bar Association Vs. BD Kaushik: (2011) 13 SCC 774

[62] G. Bala Subrahmanyam Vs. Bar Council of AP: 2014 (2) ALD 101; 2014 (1) ALT 264; AP Arya Vysya Mahasabha Vs. Mutyapu Sudershan: 2015 (5) ALD 1: 2015 (6) ALT 227.

[63] V. Virupakshappa Vs Dangadi Hanumanthappa: AIR 1978 Kar 131

[64] AIR 1963 SC 1144.

[65] See also: Capt. DK Giri Vs. Secunderabad Club: AIR 2018 AP 48; M. Sekar Vs. The Tamil Nadu State Council of the CPI: 2015-7 MLJ 689.

[66] Board of Control for Cricket Vs. Cricket Asson. of Bihar: AIR 2015 SC 3194; D. Dwarakanantha Reddy Vs. Chaitnya Bharathi Educational Society : AIR 2007 SC 1794

Read in this cluster (Click on the topic):

Book No. 1. Handbook of a Civil Lawyer

Book No. 2: A Handbook on Constitutional Issues

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

Book No. 4: Common Law of TRUSTS in India