Saji Koduvath, Advocate, Kottayam.

Abstract

1. What are the presumptions that arise from a Registered deed?

• 1. It is VALIDLY EXECUTED.
• 2. Its contents are GENUINENE/TRUE.

2. There is Presumption on a Registered Document – “It is VALIDLY EXECUTED“

• Section 35 in the Registration Act, 1908 says that the Registrar allows registration of a document (i) if only he is satisfied as to the identity of the person who executes the document, and (ii) if the executant admits the execution of the document.
• Presumptions can be invoked in view of the Sec. 58 and 59 Sec. 60 (certificate) of the Registration Act. The presumption of regularity of official acts in Illustration (e) of Section 114 of the Evidence is also attached to a registered deed.
• The certificate endorsed on a registered deed by the registering officer is a relevant piece of evidence for proving its execution – Piara v. Fatnu, AIR 1929 Lah 711.
• There is a presumption – registered document is validly executed –
  • Prem Singh v. Birbal, AIR 2006 SC 3608;
  • Abdul Rahim v. Abdul Zabar, AIR 2010 SC 211
  • Jamila Begum v. Shami Mohd., AIR 2019 SC 72;
  • Manik Majumder v. Dipak Kumar Saha, AIR  2023 SC 506.
• A registered document carries with it a presumption that it was executed in accordance with law – Bellachi v. Pakeeran, AIR 2009 SC 3293.

3. GENUINENESS can also be drawn on Registered Deeds, Invoking Presumption

• Besides the presumption on a registered document that it is validly executed, there is also a presumption that the “transaction is a genuine one” (Vimal Chand Ghevarchand Jain v. Ramakant Eknath Jajoo, 2009- 5 SCC 713.)
• The onus of proof, thus, would be on a person who questions the same.

PART I

Whether Presumptions as to VALID EXECUTION  & CORRECTNESS  Import  TRUTH

Two views exist.

• 1. Burden Shifts. The party in whom the ‘burden of proof’ rests can rely on ‘registration certificate’ as proof and truth of the contents of the deed.
  • The certificate endorsed on a registered deed by the registering officer is a relevant piece of evidence for proving its execution – Piara v. Fatnu, AIR 1929 Lah 711.
• It being presumed to be VALID & CORRECT, it further gives a presumption as to truth of the contents also, under Sec. 114 Evid. Act (regard being had to the common course of natural events, human conduct etc.).
• There being presumption as to ‘VALID EXECUTION  & CORRECTNESS’ and thereby presumption as to truth of the contents also, the onus of proof is shifted upon the party who challenges the presumption as to truth of the contents.
• 2. No Question of Shifting Burden. But, the above proposition is not an invariable rule. If it comes out from the pleadings, documents or issues that there is burden upon a person to prove ‘truth‘ of the contents of the registered document, the presumed presumption as to ‘VALID EXECUTION  & CORRECTNESS’ will not help him, much.
  • For example – The executant of the registered deed would not have executed such a deed, in all probabilities (regard being had to the common course of natural events, human conduct etc.) as revealed from the pleadings or documents produced; or, its untrue nature can be (prima facie) ‘noticed’ by the court.

Read Blogs:

• Proof on ‘Truth of Contents’ of Documents, in Indian Evidence Act
• Burden of Proof – Initial Burden and Shifting Onus of Proof

Sec. 114 Evid. Act

Sec. 114 Evid. Act reads as under:

• “114. Court may presume existence of certain facts —The Court may presume the existence of any fact which it thinks likely to have happened, regard being had to the common course of natural events, human conduct and public and private business, in their relation to the facts of the particular case. Illustrations ……”

Presumption under Sec. 79 to 90A and 114 of the Indian Evidence Act

Sec. 114 of the Evidence Act allows the Court to presume the existence of any fact which it thinks likely to have happened, regard being had to the common course of natural events, human conduct and public and private business, in their relation to the facts of the particular case.

Presumption under Sec. 114 of the Evidence Act is rebuttable. It can be shown that what is presumed is incorrect. The burden to show the same is upon the party against whom the presumption is invoked.

Besides the general provision as to presumption under Sec. 114 of the Evidence Act, presumptions can be invoked by the courts also under the (specific) instances given in Sec. 79 to 90A.

‘Presumption’, in Law & Truth of a Fact Alleged

Presumption is an inference as to the existence of one fact from the existence of some other facts. Meaning of the word ‘presumption’ is explored, with reference to various dictionaries, in State of Maharashtra v. Som Nath Thapa, AIR 1996 SC 1744 and stated as under:

• “In Black’s Law Dictionary it has been defined to mean “to believe or accept upon probable evidence”. In Shorter Oxford English Dictionary it has been mentioned that in law “presume” means “to take as proved until evidence to the contrary is forthcoming” , Stroud’s Legal Dictionary has quoted in this context a certain judgement according to which “A presumption is a probable consequence drawn from facts (either certain or proved by direct testimony) as to the truth of a fact alleged.” In Law Lexicon by P. Ramanath Aiyer the same quotation finds place at page 1007 of 1987 edition.”
•  (See also: Ramachandran v. State of Kerala, 2009 Cr.LJ 168.)

In State of West Bengal Vs. Mir Mohammad Omar, AIR 2000 SC 2988, it is held by our Apex Court as under:

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

‘Regularity’ in Illus. (e) is not exactly presumption as to ‘truth‘ of Contents

Illustration (e) of Sec. 114, Evd. Act, demonstrates that presumption as to ‘regularity’ can be invoked on Judicial and official acts, in proper cases. ‘Regularity’ in Illustration (e) is not exactly the presumption as to ‘correctness or truth‘.

For presumption on truth, we have to resort main section, Sec. 114

For such presumption, we have to resort the main section, Sec. 114 – that is, ‘common course of natural events’, ‘human conduct’, etc..

Presumption in Evid. Act can also be ‘Presumption as to Truth of Contents‘?

Under Sec. 114 of the Evidence Act, court can presume the existence of any fact.

The Indian Evidence Act does not specifically correlate “Truth of Contents“ or “correctness” with ‘presumption’. But, ‘any fact’ stated in Sec. 114 of the Evidence Act (Court may presume the existence of any fact) includes ‘Truth of Contents‘. As shown above, it is clear from the Stroud’s Legal Dictionary that presumption is a probable consequence drawn from facts as to the truth of a fact alleged. It is clear that, in presumption, the existence or truth of a fact, otherwise doubtful, is inferred from certain other proved facts. Here, the Court exercises a process of reasoning and reach a logical conclusion as the most probable position (See: St. of West Bengal Vs. Mir Mohammad Omar, AIR 2000 SC 2988).

In proper cases, the court can infer ‘truth’ (over and above) presumption as to VALID EXECUTION. Presumption as to VALID EXECUTION  & CORRECTNESS to registration, need not always lead to further presumption as to ‘truth’ of contents.

In Vimal Chand Ghevarchand Jain v. Ramakant Eknath Jajoo, (2009) 5 SCC 713 (SB Sinha,J.), it is held that the registered deed carries a presumption that the transaction was a genuine one.

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

It is observed in Izhar Ahmad Khan v. Union of India, AIR 1962 SC 1052, that the term ‘presumption’ in its largest and most comprehensive signification, may be defined to bear inference, affirmative or disaffirmative of the truth or falsehood of a doubtful fact or proposition drawn by a process of probable reasoning from something proved or taken for granted. Our courts usually draw presumptions as to truth or correctness in documents covered by Sec. 35 Evd. Act and Registered deeds, as detailed below.

Read Blog: Presumptions on Documents and Truth of its Contents

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”.

Effect of Marking Documents Without Objection

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

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

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

Presumptions on Documents:

The law expressly allows to take presumption on certain kind of documents, such as:

1. Presumption on documents made in the course of business.
2. Presumption on Regularity of official and judicial acts.
3. Presumption on statements of dead person or who is not found etc.
4. Presumption on 90 years old documents.
5. Presumption on undue influence

PART II

PROOF OF DOCUMENTS INVOKING PRESUMPTION

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

S. 35 Evid. Act and Presumption of Truth of Contents u/s. 114, Evid. Act

Sec. 35 of the Evidence Act reads as under:

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

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

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

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

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

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

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

In Grasim Industries Ltd. v. Agarwal Steel, 2010-1 SCC 83, it is held as under:

• “In our opinion, when a person signs a document, there is a presumption, unless there is proof of force or fraud, that he has read the document properly and understood it and only then he has affixed his signatures thereon, otherwise no signature on a document can ever be accepted. In particular, businessmen, being careful people (since their money is involved) would have ordinarily read and understood a document before signing it. Hence the presumption would be even stronger in their case.”

Proof INVOKING PRESUMPTION – Registered Deed

Section 35 in the Registration Act, 1908

Sec. 35 reads as under:

• “35. Procedure on admission and denial of execution respectively—(1) (a) If all the persons executing the document appear personally before the registering officer and are personally known to him, or if he be otherwise satisfied that they are the person they represent themselves to be, and if they all admit the execution of the document, or ….”

In Kunhamina Umma v. Special Tahsildar, AIR 1977 Ker 41, the Kerala High Court observed that the facts required to be proved under Section 67 Evid. Act could be proved by any kind of evidence, and there was nothing in the section to indicate that the evidence furnished by the registration certificate by virtue of Sub-section (2) of Section 60 of the Registration Act and by the presumption in Illustration (e) of Section 114 of the Evidence Act, was to be excluded. It is held as under:

• “The Privy Council said in Gangamoy Debi v. Troilukhya Nath  (1906) 33 Ind App 60 = ILR 33 Cal 537 (PC)–‘The registration is a solemn act, to be performed in the presence of a competent official appointed to act as registrar, whose duty it is to attend the parties during the registration and see that the proper persons are present and are competent to act, and are identified to his satisfaction; and all things done before him in his official capacity and verified by his signature will be presumed to be duly and in order‘.
• 15. On the strength of this observation of the Privy Council and on a consideration of Section 60 of the Registration Act, the Lahore High Court held in Piara v. Fatnu (AIR 1929 Lah 711) that the certificate endorsed on a registered deed by the registering officer is a relevant piece of evidence for proving its execution. … …..
• 19. The question has been considered in depth by Justice Raman Nair (as he then was) in Sumathi Amma v. Kunjuleskhmi Amma (1964 Ker LT 945). The learned Judge observed (at pages 946 and 947) :
  • “…  It (Section 67 Evidence Act) only says that facts have to be proved, and, unlike Section 68, does not prescribe any particular mode of proof. The facts required to be proved under Section 67 can be proved by any kind of evidence, and there is nothing in the section to indicate that the evidence furnished by the registration certificate by virtue of Sub-section (2) of Section 60 of the Registration Act and by the presumption in Illustration (e) of Section 114 of the Evidence Act, is to be excluded.’
• We have no hesitation in endorsing the view of the learned Judge as laying down the correct law on the question if we may say so with respect.”

Registered deed: Presumption – Validly Executed & also genuineness of transaction

It is held in Prem Singh v. Birbal, AIR 2006 SC 3608 (SB Sinha,J.), as under:

• “52. It is well-settled law that there is a presumption of a registered document being validly executed. A registered document would, therefore, prima facie, be valid in law. The onus of proof, thus, would be on a person who questions the same.”
• Prem Singh v. Birbal is followed in
  • Manik Majumder v. Dipak Kumar Saha, AIR  2023 SC 506;
  • Rattan Singh v. Nirmal Gill, AIR  2021 SC 899;
  • Jamila Begum v. Shami Mohd., AIR  2019 SC 72;
  • Jamila Begum v. Shami Mohd., AIR  2019 SC 72;
  • Vishwanath Bapurao Sabale v. Shalinibai Nagappa Sabale, (2009) 12 SCC 101.

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

• “13. The deed of sale dated 29.6.1978 was a registered one. It, therefore, carries a presumption that the transaction was a genuine one…..
• 15…. The deed of sale being a registered one and apparently containing stipulations of transfer of right, title and interest by the vendor in favour of the vendee, the onus of proof was upon the defendant to show that the said deed was, in fact, not executed or otherwise does not reflect the true nature of transaction..”

In Abdul Rahim v. Abdul Zabar, AIR 2010 SC 211 (SB Sinha,J.), it is held as under:

• “14. … A registered document carries with it a presumption that it was validly executed. It is for the party questioning the genuineness of the transaction to show that in law the transaction was not valid.”

In Bellachi v. Pakeeran, AIR 2009 SC 3293 (SB Sinha,J.), it is a observed that a registered document carries with it a presumption that it was executed in accordance with law.

The Apex Court observed in Jamila Begum v. Shami Mohd., AIR 2019 SC 72, as under: 

• “A registered document carries with it a presumption that it was validly executed. It is for the party challenging the genuineness of the transaction to show that the transaction is not valid in law. In Prem Singh and others v. Birbel and others (2006) 5 SCC 353, it was held as under:
  • “27. There is a presumption that a registered document is validly executed. A registered document, therefore, prima facie would be valid in law. The onus of proof, thus, would be on a person who leads evidence to rebut the presumption. In the instant case, Respondent 1 has not been able to rebut the said presumption.” “

In Ishwar Dass Jain v. Sohan Lal, (2000) 1 SCC 434, it is held that a registered document is presumed to be valid unless the presumption thereof is rebutted by strong evidence to the contrary.

Presumption of regularity of official acts would be extended to registration of a document by a sub-registrar as held in Jugraj Singh v. Jaswant Singh, 1970 (2) SCC 386. The sub-registrar would proceed with the registration only on satisfying himself as to the fact that the person who was executing the document was the proper person.

In Vishwanath Bapurao Sabale v. Shalinibai Nagappa Sabale . (2009) 12 SCC 101, it was held as under:

• “27. There is a presumption that a registered document is validly executed. A registered document, therefore, prima facie would be valid in law. The onus of proof, thus, would be on a person who leads evidence to rebut the presumption. In the instant case, Respondent 1 has not been able to rebut the said presumption.”

Presumption of Correctness Attached to a Registered Deed

In the split-verdict in Majumder v. Dipak Kumar Saha, AIR 2023 SC 506, BV Nagaratna, J., held as under:

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

BV Nagaratna, J. referred the following decisions-

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

Endorsements Under Sec. 58 of the Registration Act

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

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. A presumption by reference to Section 114 [Illustration (e)] of the Evidence Act shall arise to the effect that the events contained in the endorsement of registration, were regularly and duly performed and are correctly recorded. … [See: Kunwar Surendra Bahadur Singh v. Thakur Behari Singh, AIR 1989 PC 117].

Presumption of correctness to the certificate of Registration

In Sulender Singh v. Pritam, 2013-3 HLR 1443, it is held by the Himachal Pradesh High Court that there was a presumption of correctness to the endorsement/ certificate issued by the Sub-Registrar at the time or registration of gift deed (Rewat Ram Sharma versus Munshi Ram, Latest HLJ 2002 (HP) 165) and that the onus to rebut the presumption on a registered deed was heavily on the plaintiff.

Read Blog: Is Certified Copy of Registered Deed a Public Document? Is it Admissible in Evidence?

Document required to be proved under Sec. 68 of the Evid. Act

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

PART III

Error of the Registering Officer will not invalidate Registration

In Satya Pal Anand v. State of Madhya Pradesh, (2016) 10 SCC 761, it is observed – if the document is required to be compulsorily registered, but while doing so some irregularity creeps in, that, by itself, cannot result in a fraudulent action of the State Authority. Non- presence of the other party to the Extinguishment Deed presented by the Society before the Registering Officer by no standard can be said to be a fraudulent action per se. The Apex Court held as under:

• “36. If the document is required to be compulsorily registered, but while doing so some irregularity creeps in, that, by itself, cannot result in a fraudulent action of the State Authority. Non-presence of the other party to the extinguishment deed presented by the Society before the Registering Officer by no standard can be said to be a fraudulent action per se. The fact whether that was done deceitfully to cause loss and harm to the other party to the Deed, is a question of fact which must be pleaded and proved by the party making such allegation. That fact cannot be presumed. Suffice it to observe that since the provisions in the Act of 1908 enables the Registering Officer to register the documents presented for registration by one party and execution thereof to be admitted or denied by the other party thereafter, it is unfathomable as to how the registration of the document by following procedure specified in the Act of 1908 can be said to be fraudulent. As aforementioned, some irregularity in the procedure committed during the registration process would not lead to a fraudulent execution and registration of the document, but a case of mere irregularity. In either case, the party aggrieved by such registration of document is free to challenge its validity before the Civil Court.”

It is further pointed out as under:

• “The error of the Registering Officer, if any, must be regarded as error of procedure. Section 87 of the Act of 1908 postulates that nothing done in good faith by the Registering Officer pursuant to the Act, shall be deemed invalid merely by reason of any defect in the procedure.”

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

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

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

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

When execution is challenged, registration by itself is no proof of execution

In Damodhar v. Tejrao Bajirao Mhaske (C.T. Ravikumar & M.R. Shah., JJ.), AIR 2023 SC 3319, it is  held as under:

• “Section 54 of the Transfer of Property Act, 1882, read with Section 17 of the Indian Registration Act, is primarily to give certainty to title. When execution is challenged, registration by itself is no proof of execution and proof of complying with Section 67 of the Evidence Act is necessary.”

Vendor asserting non-passing of Consideration has to to Prove it

It is further held in Damodhar v. Tejrao Bajirao Mhaske (C.T. Ravikumar & M.R. Shah., JJ.), AIR 2023 SC 3319, as under:

• “There can be no reason to disbelieve a recital contained in a registered sale deed regarding payment of consideration, executed by the vendor. Hence, if it is said to have already been paid, going by the registered sale deed, certainly it is for the vendor asserting non-passing of consideration to prove the said asserted fact.”

Presumption on Registered Will -Not drawn, under S. 68 & 69, Evi. Act

On account of registration of a document, including a will or codicil, a presumption as to correctness or regularity of attestation cannot be drawn, under Sec. 68 and 69 of the Evidence Act (But, it is possible under Sec. 71).

Read Blog: How to Prove a Will, in Court?

Where, in the facts and circumstances of a given case, the Registrar of Deeds satisfies the requirement of an attesting witness, he must be called in the witness box to depose the fact as to the attestation. His evidence would be liable to be appreciated and evaluated like the testimony of any other attesting witness.

The Apex Court observed in Bhagat Ram v. Suresh, AIR 2004 SC 43 (R.C. Lahoti, J.) as under:

• “The certificate of registration under Section 60 of the Registration Act, 1908 raises a presumption under Section 114 illustration (e) of the Evidence Act that he had regularly performed his duty and therefore the facts spelled out by the endorsements made under Sections 58 and 59 of the Registration Act may be presumed to be 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. ……. …

The Kerala High Court held in Mariyadas v. Benjamin, ILR 2014-4 Ker 471, as under:

• “If a Will has been registered, that is a circumstance which may, having regard to the circumstances, prove its genuineness. But the mere fact that a Will is registered Will it will not by itself be sufficient to dispel all suspicion regarding it where suspicion exists, without submitting the evidence of registration to a close examination. The bald fact of registration is insufficient, when there are other circumstances creating suspicion on the execution of the document.”

Non-Examination of Registrar

No doubt, there is a presumption on registration. Therefore, the best evidence rule requires examination of Registrar when one seeks to rebut or displace the presumption. In Muruga Udayar v. Thirumalai Enterpreses, 2011 3 LW 513, the Madras High Court took it seriously that despite the the party who raised dispute as to the execution of the agreement did not chose to examine the Sub-Registrar for proving his case that he did not appear before the Sub-Registrar and put his signature towards registration.

Court can order to prove a document otherwise than ‘on admission’

The principle that ‘when a document is marked without objection its contents stand proved’ is derived from Section 58 of Evidence Act, 1872. 

Section 58 reads as under:

• “58.  Facts admitted, need not be proved -No fact need be proved in any proceeding which the parties thereto or their agents agree to admit at the hearing, or which, before the hearing, they agree to admit by any writing under their hands, or which by any rule of pleading in force at the time they are deemed to have admitted by their pleadings: 
• Provided that the Court may, in its discretion, require the facts admitted to be proved otherwise than by such admissions”.

The principles in the proviso apply to category of documents that require specific evidence as to proof of its contents (other than the mere statements in the document).

[See: Kaliya Vs. State of MP: 2013 10 SCC 758; Rakesh Mohindra Vs. Anita Beri: 2015 AIR-SCW- 6271]

Order XII, Rule 2A Proviso of the CPC authorises the court to order to prove a document otherwise than ‘on admission’. Sec. 294 of the CrPC also confers such authority to court.

In most cases when a document is admitted in evidence and marked as an Exhibit, proof of its contents stand admitted; so also Truth of Contents.  But, if it is evident that it is admitted for mere identification it cannot be taken as proved, even if no objection is raised as to marking by the opposite side.

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

Unregd. Partition Deed Admissible to see Severance & No Suit for Partition lie

In Chinnapareddigari Pedda Muthyalareddy v. Chinnappareddigari Venkatareddy,AIR 1969 AP 242, unregistered partition lists were drawn up showing the properties allotted to the respective sharers. The lists were construed as partition deeds and were held by the trial Court to be inadmissible in evidence for proving division by metes and bounds. No oral evidence was held to be admissible under section 91 of the Evidence Act to prove the factum of partition or the nature of possession. In appeal the Andhra Pradesh High Court (FB-Jaganmohan Reddy, C.J.) held that the unregistered partition deed was admissible not for proving terms of the partition or as the source of title, but for the purpose of showing that there was a disruption (division/severance) in status and that no suit for partition would lie on the basis that the properties were still joint family properties. This decision is relied on in Booraswami v. Rajakannu, 1978-1 MLJ 248; and held further, relying on K. Kanna Reddy v. K. Venkata Reddy, AIR 1965 AP 274, that for determining status and the nature of the possession oral evidence was also admissible (for proving the factum of partition).

Presumption as to 30 Years Old Documents under Sec. 90 Evidence Act

Sec. 90 Evidence Act can be analysed as under:

• Sec. 90 CPC speaks about two things, as regards 30-year-documents:
  • 1. A document purports to be in the handwriting of any particular person is presumed to be in his handwriting.
  • 2. A document purports to be executed or attested is presumed to be duly executed and attested.
• Under Sec. 90, Not Truth of Contents, but, only presumption of Genuineness of a document (i.e., existence or handwriting), is drawn. Therefore, besides Genuineness, the Truth of Contents of the documents also have to be proved by cogent evidence.
  • But, if the document is a public document an “added presumption” (as to correctness) under Section 114(e) is available -KalitaIqbal Basith and others v. N Subbalakshmi, (2021) 2 SCC 718.
• No doubt, under Sec. 114, Truth of Contents can be presumed, directly, in proper cases, in their peculiar ensuring facts (regard being had to the common course of natural events, human conduct and public and private business, in their relation to the facts of the particular case) – without invoking “added presumption” stated above.

In Lakhi Baruah v. Padma Kanta Kalita, (1996) 8 SCC 357, with regard to admissibility in evidence of thirty years old documents produced from proper custody, it was observed as under:

• “15. Section 90 of the Evidence Act, 1872 is founded on necessity and convenience because it is extremely difficult and sometimes not possible to lead evidence to prove handwriting, signature  or execution of old documents after lapse of thirty years. In order to obviate such difficulties or improbabilities to prove execution of an old document, Section 90 has been incorporated in the Evidence Act, 1872 which does away with the strict rule of proof of private documents. Presumption of genuineness may be raised if the documents in question is produced from proper custody. It is, however, the discretion of the court to accept the presumption flowing from Section 90. There is, however, no manner of doubt that judicial discretion under Section 90 should not be exercised arbitrarily and not being informed by reasons.”

Quoting Lakhi Baruah v. Padma Kanta, it is held in KalitaIqbal Basith and others v. N Subbalakshmi, (2021) 2 SCC 718, as under:

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

The correct view in on Sec. 30 had been expressed in Kunhamina Umma v. Special Tahsildar, AIR 1977 Ker 41, wherein it was observed that this was a matter with the discretion of the court. It also referred to Sec. 114 of the Evidence act. It is held as under:

• “10. The true scope of Sec. 90 of the Evidence Act is that the section does away with the strict rules of proof which are enforced in the case of private documents, by giving rise to a presumption of genuineness with regard to documents reaching a certain age. If private documents not less than thirty years old are produced from proper custody, and are on their face free from suspicion, the court may presume that they have been signed or written by the person whose signatures they bear or in whose handwriting they purport to be, and that they have been duly attested and executed, if they purport so to be. In other words, documents thirty years old prove themselves–see Sirkar on Evidence 12th Edn. page 727.
• The section deals with the admissibility of such old documents without proof in the usual manner, but the credit to be given to them depends on the discretion of the court exercised in a judicial manner and the particular circumstances of each case. No doubt, the presumption is permissive and according to the circumstances of each case the court may or may not raise it. It has also been held in certain cases that a sound disposing mind can be presumed under Sec. 90, This is so ‘because of the expression ‘duly executed’ in the section. The word duly has to be taken to mean execution by a person legally competent to execute the document–see (1) Kottayya v. Karancheti– AIR 1930 Mad 744 (2) Munnalal v. Kshibai — AIR 1947 PC 15; (3) Venkatarama v Bhaskar Rao — AIR 1962 Andh Pra 29.
• This presumption is fortified by Sec. 114 Evidence Act. Again it may be made clear that it is in the discretion of the court to draw the presumption or not.”

No Presumption to 30 Years Old Will -Not drawn, under S. 68 & 69, Evi. Act

The presumption, under Sec. 90, Evidence Act, as to regularity for documents having more than 30 years of age does not apply to Wills, under S. 68 & 69, Evidence Act (But, it is possible under Sec. 71).

• Wills have to be proved in terms of Sections 63(c) of the Succession Act, 1925 (the will shall be attested by two or more witnesses), and Section 68 of the Evidence Act, 1872 (one attesting witness at least has been called for the purpose of proving its execution, if there be an attesting witness alive). Section 69 of the Evidence Act directs – if no such attesting witness can be found – to prove (i) the attestation of one attesting witness at least is in his handwriting and also (ii) the signature of the testator. Section 71 permits – if the attesting witness denies or does not recollect the execution of the document – to prove the execution of the will by other evidence.

In M.B. Ramesh v. K.M. Veeraje Urs, (2013) 7 SCC 490, it is held as under:

• “.. . As held by this Court in Bharpur Singh v. Shamsher Singh reported in 2009 (3) SCC 687, a presumption regarding documents 30 years old does not apply to a will. A will has to be proved in terms of Section 63(c) of the Succession Act read with Section 68 of the Evidence Act. That takes us to the crucial issue involved in the present case, viz. with respect to the validity and proving of the concerned will. A Will, has to be executed in the manner required by Section 63 of the Succession Act. Section 68 of the Evidence Act requires the will to be proved by examining at least one attesting witness. Section 71 of the Evidence Act is another connected section “which is permissive and an enabling section permitting a party to lead other evidence in certain circumstances”, as observed by this Court in paragraph 11 of Janki Narayan Bhoir v. Narayan Namdeo Kadam reported in 2003 (2) SCC 91 and in a way reduces the rigour of the mandatory provision of Section 68. As held in that judgment Section 71 is meant to lend assistance and come to the rescue of a party who had done his best, but would otherwise be let down if other means of proving due execution by other evidence are not permitted.” Quoted in: Ashutosh Samanta v. S M. Ranjan Bala Dasi, 2023 SCC OnLine SC 255.

PART IV

Collateral Purpose

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

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

In a claim of adverse possession, it was held in Lachhmi Narain v. Kalyan, AIR 1960 Raj 1, as under:

• “By virtue of Clause (c), it cannot be received as evidence of the mortgage, or for any other purpose affecting the immovable property; It has been held by their Lordships of the Privy Council in AIR 1919 PC 44, that the unregistered document can be availed of for the purpose of showing the character and nature of the possession if the possession is transferred under the document. This Privy Council case has been invariably followed by all the High Courts in India. A person in possession under an unregistered mortgage deed may be in a position to show apart from the deed the nature of his adverse possession and the quantum of interest which he claims in the property. Section 49 does not in any way militate against the admissibility of such evidence. Section 91 of the Evidence Act also does not exclude such evidence.”

The Apex Court, in K.B. Saha and Sons Private Limited v. M/S Development Consultant Ltd, 2008-8 SCC 564; 2008 AIR SCW 4829, has laid down the principle in respect of the collateral purpose as under:

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

PART V

Does Registration of a Document give Notice to the Whole World?

It is so held by our Apex Court in Suraj Lamp & Industries Pvt. Ltd. v. State of Haryana (2009) 7 SCC 363. See: Sec. 3 (Explanation 1), TP Act. It lays down – Registration of document is only a constructive notice; and, it applies only to those who subsequently acquired that property or fraction of interest thereof. (R. Ravichandran v. The State of Tamil Nadu, 2002-2-LW 590)

Read Blog: Presumptions on Registered Documents & Truth of Contents

Does it apply with full vigor in suits on ‘Adverse Possession’ or in a Criminal Case?

No.

It is observed in Suraj Lamp & Industries Pvt. Ltd. v. State of Haryana (2009) 7 SCC 363 as under:

• “Registration of a document gives notice to the world that such a document has been executed. Registration provides safety and security to transactions relating to immovable property, even if the document is lost or destroyed. It gives publicity and public exposure to documents thereby preventing forgeries and frauds in regard to transactions and execution of documents. Registration provides information to people who may deal with a property, as to the nature and extent of the rights which persons may have, affecting that property. In other words, it enables people to find out whether any particular property with which they are concerned, has been subjected to any legal obligation or liability and who is or are the person(s) presently having right, title, and interest in the property. It gives solemnity of form and perpetuate documents which are of legal importance or relevance by recording them, where people may see the record and enquire and ascertain what the particulars are and as far as land is concerned what obligations exist with regard to them. It ensures that every person dealing with immovable property can rely with confidence upon the statements contained in the registers (maintained under the said Act) as a full and complete account of all transactions by which the title to the property may be affected and secure extracts/copies duly certified.”

Only Constructive Notice; That too to one Subsequently Acquired the Property

In Manna Singh Allah Singh v. Wasti Ram Saraf,  AIR 1960 P&H  296, it was held as under:

• It is conceded that the plaintiff has not been able to establish actual notice of the charge to the transferee. The learned counsel restricted his argument to constructive notice. According to him, the transferee would be deemed to have notice of the charge from the fact that (a) plaintiff was in possession of the shops and not the judgment-debtor; and (b) that in the sale deed in favour of the judgment-debtor it is stated that part of the sale price (Rs. 9000/-) was unpaid, for under the law registration of a document is notice to the entire world of the contents of the same.

It is explained vividly by the Madras High Court in Arabia Bibi vs Sarbunnisa (2011) R. Subbiah, J., as under:

• 29. On going through the dictum laid down in the above judgments relied on either side, I am of the opinion that the registration of document is only a constructive notice to a person, who subsequently acquired that property or interest or any part thereof or interest or fraction of interest thereof. In this regard, it would be proper to refer Explanation I of Sec. 3 of the Transfer of Property Act, which reads as follows:
  • “Where any transaction relating to immovable property is required by law to be and has been effected by a registered instrument, any person acquiring such property or any part of, or share or interest in, such property shall be deemed to have notice of such instrument as from the date of registration or, …..”
• Thus, it is clear that the registration is only a constructive notice to the person who has subsequently acquired such property. If the submission of the learned counsel for defendants 1, 3, 5 and 7 that the registration is a notice to the entire world is accepted, it would defeat the legitimate right of the co-sharers when the property was sold without their knowledge. Further, I find that the subject property was sold only within the family members and therefore, as contended by the learned counsel for the plaintiff, she might have been in a position to know about the same only at a later point of time. Moreover, the judgments relied upon by the appellants deal with the alienation of the property to the strangers. Further, I do not find any evidence in this case with regard to open assertion of hostile title, coupled with exclusive possession and enjoyment by one of them to the knowledge of other co-owner, namely, the plaintiff in this case so as to constitute ouster. Therefore, in my considered opinion, the principle of ouster cannot be applied in this case. The courts below have correctly appreciated the evidence and the documents adduced by the parties. The concurrent findings of the courts below reflect the evidence on record.

In KS Natraj v. NIL, 2020 2 KarLJ 356 (B.V.Nagarathna, Suraj Govindaraj, JJ.) it is observed as under:

• “20. The most important purpose of registration is to secure that persons dealing with the property, where such dealings require registration, may rely upon the statements contained in the register of the Registrar of Assurances with confidence that the full and complete account of all transactions relating to or affecting the property is covered in such register.”

Explanation to Section 3 TP Act in Criminal Matters

In a criminal matter, in Kuldip Singh v. State, AIR 1954 P&H 31, it was observed as under:

• “(I)t was contended that the registration of a document which must under law be registered is constructive notice to the whole world and, therefore, Moti Parshad must be deemed to have had notice of the previous mortgages, and, therefore, it could not be said that Moti Parshad had been cheated since, in law, he already knew the factum of the previous charges.
• My brother Soni thought that this point was of some importance and should be considered by a larger Bench and we have, therefore, heard arguments of counsel on this point and also the other points arising in the case.
• 3. The argument of Mr. Sibal who appeared on behalf of the petitioner is based on the wording of Sections 3 and 55, T. P. Act.
• Explanation I to Section 3 reads as follows :
  • “Where any transaction relating to immoveable property is required by law to be and has been effected by a registered instrument, any person acquiring such property or any part of, or share or interest in, such property shall be deemed to have notice of such instrument as from the date of registration.”
• Section 55(1)(a) is in the following terms :
  • “The seller is bound to disclose to the buyer any material defect in the property or in the sellers title thereto of which the seller is, and the buyer is not, aware, and which the buyer could not with ordinary care discover.”
• Mr. Sibal contends that the previous, mortgages were effected by means of registered deeds and, therefore, by virtue of the explanation to Section 3, Moti Parshad must be deemed to have had notice of these mortgages. Further Moti Parshad could by exercising ordinary care have discovered that the property which he was purchasing formed part of a much larger estate which was already under mortgage. Therefore, Kuldip Singh was not bound to disclose to him the previous charges and Moti Parshad must be deemed in law to be aware of them, and, that being so, Moti Parshad was not cheated, for no representation was made to him.
• 4. The Transfer of Property Act deals with the rights of individuals in the property which is the subject-matter of any transaction. It is not concerned with whether a person has been cheated or not. The object of the explanation to Section 3 is to safeguard the interests of a third party who has acquired a good title under a previous registered instrument but it does not in any way alter or modify the criminal liability of a person who deliberately suppresses certain facts or misstates certain facts. If A has sold some property to B by a registered deed and he then sells it again to C, C cannot acquire a good title in the property because he must be deemed to have had notice of the previous registered sale deed in favour of B but nevertheless he was made to part with money on a misrepresentation made by A and therefore A is guilty of the offence of cheating. This is the case which is mentioned in illst. (i) to Section 415, Penal Code. The doctrine of constructive notice cannot be imported into criminal law for the purpose of determining whether a person is guilty of the offence of cheating or not.”