Saji Koduvath, Advocate, Kottayam.

Introduction

Courts adjudicate matters on the basis of the evidence before it. Such evidence must be –

• relevant and
• admissible. 

Relevancy of Evidence

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. Documents used in a case have to pass through three steps.

They are:

• Production of documents in court
• Admittance and exhibition.
• Proof.

Evidence – Three Classes

On a broad classification, ‘evidence’ can be arrayed into following categories.

• First, oral evidence
• Second, documentary evidence including electronic records and material objects
• Third, 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.

Admissibility, Relevancy and Proof – Three Check Posts

V. Ramasubramanian. J. in his picturesque speech in Arjun Panditrao Khotkar v. Kailash Kushanrao, (2020)3 SCC 216, observed as under:

•  “2. Documentary evidence, in contrast to oral evidence, is required to pass through certain check posts, such as-
  • (i) admissibility
  • (ii) relevancy and
  • (iii) proof,
• before it is allowed entry into the sanctum. Many times, it is difficult to identify which of these check posts is required to be passed first, which to be passed next and which to be passed later. Sometimes, at least in practice, the sequence in which evidence has to go through these three check posts, changes. Generally and theoretically, admissibility depends on relevancy.
• Under Section 136 of the Evidence Act, relevancy must be established before admissibility can be dealt with.”

Admissibility Tested First; Then only, Genuineness, Veracity, etc.

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

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

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

Admissibility, Relevancy and Proof in Evidence Act

• Admissions (Evid. Act: Sec 24-30)
• Confessions (Sec 24-30)
  • Extra Judicial
  • Judicial
• Burden of Proof (Sec 101, 103, 108, 110, 113)
• Presumption (Sec 4)
  • May presume
  • Shall presume.
• Relevancy of Facts (Sec. 5 to 14)
  • Evidence may be given in any suit or proceedings of every fact in issue. S. 5 onwards.
  • Facts though not in issue but connected with a fact in issue which form part of same transaction. S. 6
  • Facts which are cause or effect of facts in issue. S. 7
  • Facts is that shows motive, preparation and previous or subsequent conduct. S. 8
  • Facts that establish identity of a thing or person or fix the time or place of a relevant fact or transaction. S. 9
  • Things said or done by conspirator in reference to common design. S. 10
  • Facts showing existence of state of mind, or of body. S. 14
• Relevancy of Admissions (S. 17)
  • Statements made by party or his agent. S. 18 .
  • Admissions can be proved against the person who makes them. S. 21 .
  • Oral admissions as to contents of documents or electronic records are not relevant. Ss. 22 & 22A.
  • No confession made under inducement and that to a police officer to be proved against accused. S. 24, S.25 & S.26 except under S. 27, S.28 & S.29.
  • Confession affecting person making it and others jointly under trial. S. 30.
• Relevancy of Facts (Sec. 32 to 44)
  • Statement of relevant fact by dead, missing person, etc. S. 32.
  • Evidence by dead or missing person in a judicial proceeding. S. 33.
  • Entries in books and official records. S. 34 & S.35.
  • Facts in maps or charts, notifications and law books under the authority of the Government. S. 36, S.37 & S.38.
  • When to be proved. S. 39.
  • Previous judgments bar a second suit or trial. S.40.
  • Any final judgment in probate or insolvency jurisdiction. S.41.
• Relevancy of Opinion (Sec. 45 to 51)
  • Opinion of an expert. S.45.
  • Opinion of any person acquainted with the handwriting of the person. S.47
  • The ground on which the opinion is based. S.51

Relevancy of Facts

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

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

What is ‘Proof’ in Evidence Act

A fact is said to be proved (Sec. 3 Evidence Act) when, after considering the matters before it, the court either believes it to exist, or consider its existence so probable that a prudent man ought, under the circumstances of the particular case, to act upon the supposition that it exists. This is the definition given for the word proved in the Evidence Act.

Probative Value of Documents

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

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

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

Admissibility of a Document is one thing, and its 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.”

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

Date of Birth – School Admn. Register has More Probative Value Than Horoscope

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

In Om Prakash v. State of Punjab, 1993(2) CLR 395, and in Jora Singh v. State of Punjab, 1984(2) Crimes 837, it has been held that an entry in the school leaving certificate regarding date of birth of a student is not a conclusive proof or high ‘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 v. C. Jayarama Reddy, AIR 2020 SC 1912; Commissioner of Central Excise And Service Tax v. M/S. Sanjivani Non-Ferrous Trading: AIR 2019 SC 203.)

Proof – No Mathematical Precision; Conclusion of a Reasonable Man is the Criterion

In M. Narsinga Rao v. State of Andhra Pradesh, AIR 2001 SC 318, it is observed that what is required is production of such materials on which the court can reasonably act to reach the supposition that a fact exists. The Apex Court then proceeds as under:

• “Proof of the fact depends upon the degree of probability of its having existed. The standard required for reaching the supposition is that of a prudent man acting in any important matter concerning him. Fletcher Moulton L.J. in Hawkins v. Powells Tillery Steam Coal Company, Ltd. [1911 (1) K.B. 988] observed like this: Proof does not mean proof to rigid mathematical demonstration, because that is impossible; it must mean such evidence as would induce a reasonable man to come to a particular conclusion”.
• The said observation has stood the test of time and can now be followed as the standard of proof. In reaching the conclusion the court can use the process of inferences to be drawn from facts produced or proved.”

Inference as to Proof – Law Gives Discretion to Court

In M. Narsinga Rao v. State of Andhra Pradesh, AIR 2001 SC 318, it is observed as regards ‘inference of proof’ by court as under:

• “Such inferences are akin to presumptions in law. Law gives absolute discretion to the court to presume the existence of any fact which it thinks likely to have happened. In that process the court may have regard to common course of natural events, human conduct, public or private business vis-à-vis the facts of the particular case. The discretion is clearly envisaged in Section 114 of the Evidence Act. Presumption is an inference of a certain fact drawn from other proved facts. While inferring the existence of a fact from another, the court is only applying a process of intelligent reasoning which the mind of a prudent man would do under similar circumstances. Presumption is not the final conclusion to be drawn from other facts. But it could as well be final if it remains undisturbed later. Presumption in Law of Evidence is a rule indicating the stage of shifting the burden of proof. From a certain fact or facts the court can draw an inference and that would remain until such inference is either disproved or dispelled. For the purpose of reaching one conclusion the court can rely on a factual presumption. Unless the presumption is disproved or dispelled or rebutted, the court can treat the presumption as tantamounting to proof. However, as a caution of prudence we have to observe that it may be unsafe to use that presumption to draw yet another discretionary presumption unless there is a statutory compulsion. This Court has indicated so in Suresh Budharmal Kalani vs. State of Maharashtra [1998 (7) SCC 337]. A presumption can be drawn only from facts – and not from other presumptions by a process of probable and logical reasoning.”

Judgments Not Inter Parties are Not Admissible under Sec. 13

Sec. 43 of the Evidence Act reads as under:

• “43. Judgments, etc., other than those mentioned in Sections 40 to 42, when relevant – Judgments, orders or decrees, other than those mentioned in Sections 40, 41 and 42, are irrelevant, unless the existence of such judgment, order or decree is a fact in issue, or is relevant under some other provision of this Act.”

In State of Bihar v. Radha Krishna Singh, 1983 (3) SCC 118, our Apex Court held as under:

• “121. Some Courts have used Section 13 to prove the admissibility of a judgment as coming under the provisions of S. 43, referred to above. We are, however, of the opinion that where there is a specific provision covering the admissibility of a document, it is not open to the court to call into aid other general provisions in order to make a particular document admissible. In other words if a judgment is not admissible as not falling within the ambit of Sections 40 to 42, it must fulfil the conditions of S. 43 otherwise it cannot be relevant under S. 13 of the Evidence Act. The words “other provisions of this Act” cannot cover S. 13 because this section does not deal with judgments at all.”

Thereafter the Court held as follows:

• “129. In Gadadhar Chowdhury vs. Sarat Chandra Chakravarty [AIR 1941 Cal 193 : (1940) 44 Cal WN 935 : 195 IC 412 : 72 Cal LJ 320] it was held that findings in judgments not inter partes are not admissible in evidence. In this connection a Division Bench of the Calcutta High Court observed as follows :
• “Though the recitals and findings in a judgment not inter partes are not admissible in evidence, such a judgment and decree are, in our opinion, admissible to prove the fact that a decree was made in a suit between certain parties and for finding out for what lands the suit had been decreed.
• 130. This, in our opinion, is the correct legal position regarding the admissibility of judgments not inter partes.”
• (Quoted in: V.  Kalyanaswamy v. L.  Bakthavatsalam, 2020-3 RCR(Civ) 404; 2020-9 Scale 367”

Documents used for Contradicting Witnesses

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:

1. Without such the writing being shown to him
2. without such (previous) writing being proved.
3. even when the writing is used to contradict the witness by the writing and his attention is called to those parts of it which are to be used for the purpose of contradicting him, it need not be shown to the counsel of the witness (or other side) for his perusal.
4. 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).
5. material ‘omissions’ (in the previous writings) may amount to contradiction.

Conditions for invoking Sec. 145:

1. The writing must be a ‘previous’ one.
2. The (previous) writing must be of that witness himself.
3. It must be relevant to matters in question
4. 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.
5. 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.
6. If the witness denies such previous statement it can be proved, subsequently (for impeaching the credit of the witness).
7. When it is to be proved, original or other admissible copy must be produced.
8. This provision being a statutory one, the courts will allow to prove it , even if the ‘right to give evidence’ of that party ‘is over’.

Important points to be noted while invoking sec. 145

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

Documents used for Corroboration

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

Section 156 of the Evidence Act reads as under:

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

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

• “21. This Court, in the celebrated case of Vadivelu Thevar v. State of Madras, (1957) SCR 981, has observed thus:

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

Substantive Evidence and Evidence used for Refreshing Memory.

Section 157 in the Evidence Act reads as under:

• “157. Former statements of witness may be proved to corroborate later testimony as to same fact.

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

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

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

• “That part of such documents which is based on the actual observation of the witness at the spot being direct evidence in the case is clearly admissible under Section 60 of the Evidence Act whereas the other part which is based on information given to the Investigating Officer or on the statement recorded by him in the course of investigation is inadmissible under Section 162 CrPC except for the limited purpose mentioned in that section.”
• [See also: Munshi Prasad Vs. State of Bihar,(2002) 1SCC 351; State of Haryana v. Ram Singh,  (2002) 2SCC 426; Vijay Paul v. State of Delhi: 2015 SC 1495; Mohanan v. State of Kerala: 2011(4) KLT 59.]

A ‘Certificate’ 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’.

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.

Expert Evidence is only Corroborative; Not Substantive

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

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

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

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

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

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

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

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

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

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

Post-Mortem Report is not a Substantive Evidence

Post-mortem Report or Wound Certificate is not a substantive evidence.

• [See: Mohan Singh v. Emperor, AIR 1925 All. 413 (DB);
• State v. Rakshpal Singh, AIR 1953 All. 520;
• Ram Pratap v. State, 1967 All.W.R. (H.C.) 395;
• Ram Balak Singh v. State, AIR 1964 Pat. 62(DB);
• Mellor v. Walnesley, 1905, 2Ch. 164 (CA);
• Hadi Kisani v. State, AIR 1966 Orissa 21;
• Gofur Sheikh v. State, 1984 Cr.L.J. 559 (Cal);
• Bhanda Gorh v. State of Assam, 1984 Cr.L.J.217 (Gau);
• Jagdeo Singh v. State, 1979 Cr.L.J.236 (All);  
• K. Pratap Reddy v. State of A.P., 1985 Cr.L.J.1446].

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

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

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

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

It is held in Nandlal Wasudeo Badwaik case as under:

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

Appreciation of Evidence is Both an Art and a Science

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

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

Formal Proof & Substantive Proof or Truth of Contents of Documents

Proof is of Two Types:

• First, Formal Proof: Proof as to existence of the document. The modes of proof of documents are governed under Sec. 64 to 73A of the Evd. Act.
• Second, Substantive Proof:  Proof as to truth of the contents document. Besides the formal proof, in most cases (excepting a few cases where signature, hand-writing etc. alone are considered), the court acts upon a document, only when ‘truth’ of the same is established. Proof as to truth is to be established (i) by oral evidence of one who can vouchsafe the same or (ii) by circumstantial evidence or (iii) by invoking ‘presumption’ or (iv) by express admission by the other side.

Modes of Proof of Documents

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

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

Presumptions on Electronic Evidence

• 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

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

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.

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

Admission cannot be proved by the person who makes them

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

Ante litem motam documents

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

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”. (Quoted in: Harendra Rai v. State of Bihar, AIR 2023  SC 4331)

If ‘truth’ is in issue, or in dispute, marking without objection by itself does not absolve the duty to prove the truth as to the contents of the documents. (Ramji Dayawala Vs. Invest Import, AIR 1981 SC 2085; Achuthan Pillai vs Marikar (Motors) Ltd., AIR 1983 Ker 81, 1976 Cr.LJ 1507; 2016 (1) Gau. LJ 88,  2012(1) CTC 53; 2013-1 KLT 293.)

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 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’.

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)

1. document which is ab initio (or inherently) ‘inadmissible’
2. 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:

1. Irrelevancy
2. Non-registration.

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.

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

Following are proper modes:

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

Objection to be raised – when document is admitted

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

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

But, the subsequent decisions in R.V.E. Venkatachala Gounder: AIR 2004 SC 4082; Smt. 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.

Public Document is Admissible per se without Formal Proof

In Shyam Lal @ Kuldeep v. Sanjeev Kumar, AIR 2009 SC 3115, 2009 -12 SCC 454, it is held as under:

• “25. The findings of the learned District Judge holding Ex.P.2 to be a public document and admitting the same without formal proof cannot be questioned by the defendants in the present appeal since no objection was raised by them when such document was tendered and received in evidence. It has been held in Dasondha Singh and Others v. Zalam Singh and Others [1997(1) P.L.R. 735] that an objection as to the admissibility and mode of proof of a document must be taken at the trial before it is received in evidence and marked as an exhibit. Even otherwise such a document falls within the ambit of Section 74, Evidence Act, and is admissible per se without formal proof.”

Document Marked in Proof Affidavit, Court Records it – Objection in Cross Exam. – Effect

Our Procedural Codes do not specifically speak about it. The general assumption 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. 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.

1. Court evaluates documents only in Final Hearing. Hence, court cannot ignore the objection of the opposite party raised in cross examination.
2. For no objection at the time of ‘recording it by court’, objection raised in cross examination stand belated.
3. 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. It is clear from our Apex Court decision in Lachhmi Narain Singh v. Sarjug Singh, AIR 2021 SC 3873, which lays down 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.”

Discovery of Documents under O. XI r. 12 CPC and Question of Inadmissibility

The decision, M. L. Sethi v. R. P. Kapur, AIR 1972 SC 2379, emphasises that it is not necessary for an applicant under Order XI rule 12 to specify in detail the documents sought to be discovered when they are in the hands of the other side; and that the claim of privilege can be considered only after discovery, when the stage of production is reached. It is also made clear that if the document is relevant for the purpose of throwing light on the matter in dispute, though it might not be admissible in evidence, it can be put to discovery under rule 12.

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.

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.”

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.
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).

First view: Court is under an obligation to exclude.

S. 65, Evidence Act enumerates the instances where a party is entitled to furnish secondary evidence.  It is a condition precedent to establish the circumstances laid down in S. 65, for letting in secondary evidence of a document.  Pointing out the right and duty of the court to prevent rushing of inadmissible and irrelevant evidence, it is held in a good number of decisions that the court is under an obligation to exclude such materials, at the threshold. [See: Yeshoda Vs. Shoba Ram:  AIR 2007 SC 1721; U. Sree  Vs.  U. Srinivas: AIR 2013 SC 415]

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

• “The court has an obligation to decide the question of admissibility of a document in secondary evidence before making endorsement thereon.”

Second view: If no objection, Court has to mark

It is beyond doubt that marking of documents lie in the realm of procedural law.  Therefore, a catena of decisions emphasize that it is a matter that falls for the opposite party to waive strict formal proof.  That is, the court should not delve to object marking of a secondary evidence, if the opposite party has no objection.  [See:  RVE Venkatachala Gounder Vs. Arulmigu Viswesaraswami: AIR 2003 SC  4548;  Narbada Devi  Vs. Birendra Kumar: 2003-8 SCC 745; Smt. Dayamathi Bai v. K.M. Shaffi Vs. K.M. Shaffi: 2004 SC 4082;  Oriental Insurance Co Vs. Premlata:  2007-8 SCC 575] Karnataka High Court pointed out in Nanda Behera v. Akhsaya Kumar Behera, 2017AIR (CC) 1893, that once the Court, rightly or wrongly, decides to admit the documents in evidence, so far as the parties are concerned, the matter is closed. This principle is followed in the following cases, with respect to insufficiently stamped document:

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

In the light of the Supreme Court decision in K.B. Saha and Sons Private Limited (that a document required to be registered is not admissible in evidence under section 49 of the Registration Act; and such unregistered document can only be used as an evidence of collateral purpose), it appears that the observation of the Karnataka High Court in Nanda Behera v. Akhsaya Kumar Behera, 2017AIR (CC) 1893, that once the Court, rightly or wrongly, decides to admit the documents in evidence, so far as the parties are concerned, the matter is closed, is not applicable to unregistered (compulsorily registrable) documents.

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.

First view	Admission of contents & it dispenses with proof.
Second View	Admission of contents – but, does not dispense with proof.
Third view	If truth is in issue, mere proof of contents, or marking without objection, is not proof of truth.
Fourth view	Admission of contents, dispenses with proof and truth; but its PROBATIVE VALUE will be a matter for appreciation by court.
Fifth view	Court should require the party producing the document to adduce proper evidence as to execution, and to cure formal defects.

1. Marked Without Objection – its ‘contents’ stand proved

(a) Proof of execution may be enough; and no separate proof needed: Admission or exhibiting of documents in evidence 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).

(b) Factual foundation to give secondary evidence must be established

1. documents in original
2. (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. [Kaliya Vs. State of MP: 2013-10 SCC 758]

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

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

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

In Sait Tarajee Khimchand v. Yelamarti Satyam, AIR 1971 SC 1865, the Supreme Court observed that mere marking of documents (day book and ledger) as exhibits do not dispense with the proof of documents. In Nandkishore Lalbhai Mehta Vs. New Era Fabrics, AIR 2015 SC 3796, it is observed that mere marking as exhibit and identification of executor’s signature by one of witnesses do not prove contents of a document.

In Narbada Devi Gupta v. Birendra Kumar Jaiswal, AIR 2004 SC 175, it is held as under:

• “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”

In Kaliya Vs. State of Madhya Pradesh (2013-10 SCC 758) it is held as under:

• “Mere admission of a document in evidence does not amount to its proof. Nor, mere marking of exhibit on a document does not dispense with its proof, which is otherwise required to be done in accordance with law. (Vide: The Roman Catholic Mission Vs. The State, AIR 1966 SC 1457; Marwari Khumhar Vs. Bhagwanpuri Guru Ganeshpuri AIR 2000 SC 2629; RVE Venkatachala Gounder Vs. Arulmigu AIR 2003 SC 4548; Smt. Dayamathi Bai Vs. K.M. Shaffi, AIR 2004 SC 4082; and LIC of India  Vs. Rampal Singh Bisen,2010-4 SCC 491).”

• [Note: Further held: “In case, an objection is not raised at that point of time, it is precluded from being raised at a belated stage.”]

Dibakar Behera v. Padmabati Behera, AIR 2008 Ori 92, it is observed [referring RVE Venkatachala Gounder Vs. Arulmigu Viswesaraswami, AIR 2003  SC  4548, Dayamati Bai Vs. K.M. Shaffi, 2004 SC 4082, Bhagyarathi Das v. Agadhu Charan Das, 62 (1986) CLT 298,  Budhi Mahal v. Gangadhar Das, 46 (1978) CLT 287 etc.] that a close reading of the above judicial pronouncements would show that whenever a document is marked as exhibit without objection, it will be presumed that a party having right of objection has waived formal proof of the document and in such situation, the entire contents of the document would be admissible in evidence. How ever, by such admission of document, the truth and correctness of the contents by it self would not be established and there must be some evidence to support the contents of such document.

Secondary evidence relating to the contents of a document is inadmissible, until the non-production of the original is accounted for. The secondary evidence must be authenticated by foundational evidence that the alleged copy is in fact a true copy of the original. Mere admission of a document in evidence does not amount to its proof. Therefore, the documentary evidence is required to be proved in accordance with law.

The court has an obligation to decide the question of admissibility of a document in secondary evidence before making endorsement thereon. [H. Siddiqui Vs. A. Ramalingam: AIR 2011 SC 1492; Nandkishore Lalbhai Mehta Vs. New Era Fabrics: AIR  2015  SC 3796]

In Rakesh Mohindra Vs. Anita Beri [2015AIR(SCW) 6271] it is held:

• “Mere admission of secondary evidence, does not amount to its proof. The genuineness, correctness and existence of the document shall have to be established during the trial and the trial court shall record the reasons before relying on those secondary evidences.”

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

IF the TRUTH is IN ISSUE mere proof of handwriting or execution not evidence of truth:   IF the TRUTH of the facts stated in a document is IN ISSUE mere proof of the hand-writing and execution of the document would not furnish evidence of the truth of the facts or contents of the document.

In Om Prakash Berlia v. Unit Trust of India, AIR 1983 Bom 1, it is held that even when the contents of a document is proved, the truth of what the document states must be separately established. It was a case where truth of contents disputed. It is clear from this decision that the proposition as to proving truth is more apposite when a contention was raised regarding the correctness of truth of the documents. It was further held in this case that annual return under the provisions of Section 164 of the Companies Act was prima facie evidence of any matters directed or authorised to be inserted therein by the Companies Act. The said extract prima facie establishes the truth of the contents of its original.

In Ramji Dayawala Vs. Invest Import: AIR 1981 SC 2085, it us held as under:

• “If the truth of the facts stated in a document is in issue mere proof of the handwriting and execution of the document would not furnish evidence of the truth of the facts or contents of the document. The truth or otherwise of the facts or contents so stated would have to be proved by admissible evidence, i.e. by the evidence of those persons who can vouchsafe for the truth of the facts in issue.”

If ‘truth’ is in issue, or in dispute, marking without objection by itself does not absolve the duty to prove the truth as to the contents of the documents. (See: Achuthan Pillai vs Marikar (Motors) Ltd., AIR 1983 Ker 81, 1976 Cr.LJ 1507; 2016 (1) Gau. LJ 88,  2012(1) CTC 53; 2013-1 KLT 293.)

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

Court examines probative value of secondary evidence: It is well settled that if a party wishes to lead secondary evidence, the Court is obliged to examine the probative value of the document produced in the Court or their contents and decide the question of admissibility of a document in secondary evidence [Rakesh Mohindra Vs. Anita Beri: 2015  AIR(SCW) 6271].

Contents of the document cannot be proved by mere filing the document in a court. Under the Law of Evidence, it is necessary that contents of documents are required to be proved either by primary or by secondary evidence. Mere marking a document as an ‘exhibit’ will not absolve the duty of to prove the documents in accordance with the provisions of the Evidence Act. At the most, marking ‘exhibit’may amount to proof of contents, but not its truth.

Documents which are not produced and marked as required under the Evidence Act cannot be relied upon by the Court. [See: LIC Vs. Ram Pal Singh Bisen: 2010-4 SCC 491 (Filing of the Inquiry Report or the evidence adduced during the domestic enquiry); M. Chandra Vs. M. Thangamuthu. Nandkishore Lalbhai Mehta Vs.New Era Fabrics: AIR 2015 SC 3796; Birad Mal SinghviVs. Anand Purohitb: 1988 (Supp) SCC 604 (date of birth)]

Even when a document is technically admitted in court, the probative value thereof will always be a matter for the court to determine. That is, it is depended upon the nature of each case. The probative value of Scene-Mahazar, Postmortem Report, photocopy of a Registered Deed etc. without supporting legal evidence may be lesser. In such cases the court can refrain from acting upon such documents until regular evidence is tendered.

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 and Anr. 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 to adduce proper evidence to prove documents

As stated in detail above, besides the powers of the court under Sec. 165 of Evidence Act, the scheme of the Procedural Acts shows that the court has jurisdiction to require the party concerned to prove that document. (Sec. 58 of Evidence Act and Order XII, Rule 2A Proviso of the CPC and Sec. 294 of the CrPC).

Inasmuch as (a) mere marking of a document on admission will not amount to proof, or evidence of the contents of the document or its truth; (b) the probative value of a document ‘marked without objection’ is low or nil, for want of proper proof; and (c) there is a formal defect to the document for it is a secondary evidence because it is produced without adducing ‘foundational evidence’, it is legitimate to say that before taking an adverse stance as to proof in this count, the court should give an opportunity to the party who relies on the document to cure the deficiency.

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

• F.A. Sapa v. Singora, (1991) 3 SCC 375;
• H.D. Revanna v. G. Puttaswamy Gowda, (1999) 2 SCC 217;
• V.S. Achuthanandan v. P.J. Francis, (1999) 3 SCC 737;
• Mahendra Pal v. Ram Dass Malanger, (2000) 1 SCC 261;
• Virender Nath Gautam v. Satpal Singh, (2007) 3 SCC 617;
• (observed that facta probanda (material facts) are to be set out in the pleadings and facta probantia (particulars or evidence) need not be set out in the pleadings);

• 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.

Insufficiently Stamped Documents – Effect of Marking Without Objection

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; … ….. ….”

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.

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.”

S. 35 of the Stamp Act (Present View):

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 High Court observed in Writ Petition 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.”

Copy of a Deed Cannot be Impounded; it cannot be Validated by Impounding

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

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

Should the court sit silent and question after marking unstamped document unopposed

Karnataka High Court pointed out in Nanda Behera v. Akhsaya Kumar Behera, 2017AIR (CC) 1893, that once the Court, rightly or wrongly, decides to admit the documents in evidence, so far as the parties are concerned, the matter is closed. As stated earlier, this principle is followed in the following cases, with respect to insufficiently stamped document:

• 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

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

• “Once a document has been marked as an exhibit in the case and has been used by the parties in examination and cross examination of their witnesses, Section 36 of the Stamp Act will come into operation. 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.”

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. 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. 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”

The following two propositions stands paradoxical and incongruent.

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

Though Smt. Savithramma R.C v. M/s. Vijaya Bank, AIR 2015 Kar 175, discussed the position with great clarity, still, it is not definite whether the court should sit silent and mark the document if it is not opposed; and to raise its eye-brows after marking it unopposed. It is yet to be solved after considering all relevant aspects.

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.

Presumptions on documents arise in the following cases (under Evidence Act)

1. Sec. 80. Presumption as to documents produced as record of evidence
2. Sec. 81. Presumption as to Gazettes, newspapers, private Acts of Parliament and other documents
3. Sec. 81A. Presumption as to Gazettes in electronic forms
4. Sec. 82. Presumption as to document admissible in England without proof of seal or signature
5. 83. Presumption as to maps or plans made by authority of Government
6. Sec. 84. Presumption as to collections of laws and reports of decisions
7. Sec. 85. Presumption as to powers-of-attorney
8. Sec. 85A Presumption as to electronic agreements
9. Sec. 85B Presumption as to electronic records and electronic signatures
10. 85C Presumption as to 86 Electronic Signature Certificates
11. Sec. 86. Presumption as to certified copies of foreign judicial records
12. Sec. 87. Presumption as to books, maps and charts
13.  Sec. 88. Presumption as to telegraphic messages
14. Sec. 88A. Presumption as to electronic messages
15. Sec. 114. Presumptions in General, including that on documents made in the course of business and official and judicial acts.
16. 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
17. Other Presumptions:
    • 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

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‘.

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).

PROOF INVOKING PRESUMPTION – Registered deed

As stated earlier, 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.

Presumption – Facts Inferred from Other Proved Facts

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).

Proof by Certificate under Regn. Act and Presumption in Evid. Act

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. ……. …

Sec. 68 of the Evid. Act requires Proof beyond that by Regn.

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.

Endorsements under Sec. 58 of the Registration Act

Under Sec. 58 of the Registration Act the Registrar shall endorse the following particulars on every document admitted to registration:

1. the date, hour and place of presentation of the document for registration :
2. 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;
3. the signature and addition of every person examined in reference to such document under any or the provisions of this Act, and
4. 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.

Presumption under Section 114 llustration (e) Evidence Act 

A presumption under Section 114 [Illustration (e)] of the Evidence Act shall be attached to such a document; and it is to the effect that the events stated in the endorsement of registration were regularly and duly performed, and that they were correctly recorded. [See: Kunwar Surendra Bahadur Singh v. Thakur Behari Singh, AIR 1989 PC 117].

The presumption under Sec. 114 Evidence Act being rebuttable, presumption as to correctness or regularity of attestation need not necessarily be drawn. Where in the facts and circumstances of a given case, the evidence of the Registrar of Deeds may be liable to be appreciated and evaluated like the testimony of any other attesting witness.

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.” “

Registered deed: Presumption  of correctness to the endorsement

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 v. Munshi Ram, Latest HLJ 2002 (HP) 165) and that the onus to rebut the presumption on a registered deed was heavily on the plaintiff.

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.”

Onus to Rebut the Presumption on a Registered Deed

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.”

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.

Oral Evidence on Contents – No Use, Unless Secondary Evidence Entitled

Sec. 22 and 144 of the Evidence Act postulate that the oral admissions or assertions as to contents of documents are not relevant, unless and until the party proposing to prove them shows that he is entitled to give secondary evidence of the contents of such document under Sec. 65, or unless the genuineness of a document produced is in question.

Sec. 22 emphasises that oral evidence as to contents of documents , even if adduced, will be of no use, as it will be ‘irrelevant’. By virtue of Sec. 144 of the Evidence Act, the adverse party may object to giving oral evidence as to contents of the same until such document itself is produced, or until facts have been proved which entitle the party who called the witness to give secondary evidence of it.

Sec. 22 of the Evidence Act reads as under:

• 22. When oral admissions as to contents of documents are relevant.—Oral admissions as to the contents of a document are not relevant, unless and until the party proposing to prove them shows that he is entitled to give secondary evidence of the contents of such document under the rules hereinafter contained, or unless the genuineness of a document produced is in question.

Sec. 22A says as to ‘when oral admissions as to contents of electronic records are relevant‘. It reads as under:

• 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, 22A, 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).

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 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.

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).

Collateral Purpose

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

The Supreme  Court observed in Sri Venkoba Rao Pawar v. Sri S. Chandrashekar, AIR 2008 SCW 4829, that the collateral purpose/transaction must be independent of, or divisible from the transaction which requires registration. In Yellapu Uma Maheswari v. Buddha Jagadheeswararao, (2015) 16 SCC 787, the Apex Court held that in the suit for declaration of title, an unregistered document can be relied upon for collateral purposes i.e. to prove his possession, payment of sale consideration and nature of possession; but not for primary purpose i.e. sale between the plaintiff and defendant or its terms.

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 :-

1.        A document required to be registered is not admissible into evidence under section 49 of the Registration Act.
2.       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.
3.        A collateral transaction must be independent of, or divisible from, the transaction to effect which the law required registration.
4.       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.
5.      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.

Conclusion

From the above, it is definite that the correct legal position emerges is the following:

(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 evidence of the contents of the document or its truth; or
• (b) 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.

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