7/11/2020 Practice and Procedure Relating to Proof of Documents | SCC Blog 7/11/2020 Practice and Procedure Relating to Proof
7/11/2020 Practice and Procedure Relating to Proof of Documents | SCC Blog
The matter is called out, you walk into court confidently
thinking all your documents will be marked because you have
them neatly arranged in a compilation…15–20 minutes later
you wonder why the documents are marked for identification
and half your documents are not admitted. That senior who
appeared just before me got his documents admitted….what
happened to me?
Well most of us have faced this at least in our junior days at
the bar. Why did that happen?
The answer lies in the realm of sufficiency of proof of the
document sought to be marked.
I’m going to discuss how to get over this as best as possible
given the documents you have in hand in a given case.
First we need to understand that evidence consists of
“documentary evidence” and “oral evidence”
This article restricts itself to proof of documentary evidence.
Documentary evidence under the Evidence Act, 1872 (the
Act) is of various types:
Broadly and most often we deal with “private documents”[1].
Documents such as letters, agreements, emails, etc.
exchanged between contesting parties to a litigation are
private documents.
The next set of documents which one deals with are “public
documents”[2] for example documents such as a
certificate, marriage certificate, a bill of a public water utility or
electric company or an FIR filed before the police station. In
these cases the record of the authority or a certified copy[3]
or an extract is issued by an officer of a public authority
discharging functions delegated to him – these are public
documents. A public document is one which is basically a
reproduction of an entry contained in some kind of public
register, book or record relating to relevant facts or a certified
copy issued by the authority as for example a birth certificate
providing details such as date of birth, place where the birth
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took place the name of the mother, etc. Generally speaking,
courts do accept public documents more readily than private
documents as there is a presumption that the risk of
tampering with public documents is far less as it has come
from a reliable source such is the public record or register
duly maintained in an official capacity. The Courts also
consider the entries in such records maintained by public
authorities to be relevant facts[4]. Courts generally lean in
favor of accepting or admitting the contents of public
documents since these documents have as their genesis
some reliable source and can be traced back to that reliable
source for verification if necessary. However even a public
document still doesn’t stand proved by the mere fact of its
production. It must be proved in the normal manner of proof
as discussed hereafter when an objection to it is taken.
Sometimes you also deal with what are known as ancient
documents or documents which are more than 30 years
old[5]. Section 90 of the Act provides a presumption with
regard to these documents.
There is also a category of documents which we come across
which could be public or private documents but they are not
documents in original. Proof of such documents poses a
further complication when it comes to proving the same. To
prove such documents we need to lead what we all know as
secondary evidence[6].
We also come across cases where something is said by one
person to another and that is not recorded in writing between
the two persons. In that case only “oral evidence” would have
to be given as opposed to “documentary evidence”.
For all these cases what is needed to be proved is the truth of
the facts stated in the documents be it an original document
or a carbon copy or xerox copy or a public document.
The question which really requires to be answered is how is
that done and what is the correct mode and manner of doing
so.
Under the Act, the court usually accepts a fact is proved
birth when after considering the document and the evidence before
it, it comes to the conclusion that what is stated in the
document is believable based on what the document on the
face of it states along with what a witness to the document
states about the contents and the manner in which the
document was prepared/authored. This is the heart of the
matter and it is when the court believes not only in the
existence but also truth of contents that the document would
be exhibited by the court.
At the stage of exhibition of the documents the court looks at
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secondly the proof of contents being sufficiently deposed to
by a witness having requisite knowledge of the contents
thereof. On being satisfied of both these criteria the document
in question will be exhibited. At the stage of marking or
exhibiting documents the truth of what is stated in the
document is not considered and is left open to final evaluation
at the trial after cross-examination is conducted and the entire
testimony of the witness on the document is weighed. It is
then that the court concludes the document speaks the truth
or not and decides what weightage is to be given to it for
arriving at a final decision in the matter.
Objections to exhibition of documents are of two basic types
and are indicated in the admission and denial statement
exchanged between parties once a compilation is tendered to
the opposite party. There can be an objection/denial of the
very existence of the document and secondly an
objection/denial of the truth of contents of the documents.
Depending on the objection taken the mode of proof is
required to be tailored.
PROOF OF A DOCUMENT WHEN THE CONTENTS ARE
NOT DISPUTED BUT THE OBJECTION IS TO THE FACT
THAT IT IS NOT AN ORIGINAL
Where the document is not disputed in terms of its existence
or contents but the objection taken is that the document in the
compilation is a xerox copy and not the original (since it may
be lost or not traceable), the mode of proof would be in the
case of a private document to lead secondary evidence which
is discussed later. However this is only necessary if the court
so insists as once the existence and contents is accepted or
not denied even a copy would be exhibited as there is no real
objection and what the court has to consider is the truth of
contents. Similarly in the case of a public document (if the
court so insists) the mode of proving such a public document
is to have as required either the actual public document
produced by issuing a witness summons through court or
alternately having a certified copy or extract of the
document[7] produced as proof of the contents of the public
document. Here in such a case a witness is asked by way of
a witness summons to merely produce a document in position
of the public authority. The procedure followed usually by the
courts is that the original document is taken possession of
from the public authority (who attends court at a time fixed),
and exhibited after he/she confirms it forms part of the official
records maintained by the authority. It is important that this
fact i.e. that the document produced is shown to form part of
the official record maintained by the authority which is
producing it is clearly stated by the witness summoned for the
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being satisfied of this i.e. that the
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documents are produced from the authentic records of the
public authority would then exhibit the documents. This is how
a public document can be proved in case there is no contest
to the existence of the public document but the objection is
about it not being an authenticated document.
PROOF OF A DOCUMENT WHEN THE CONTENTS AND
EXISTENCE ARE BOTH DENIED
In case of a private or public document where there is a
denial of the existence and contents then in that case it would
be necessary to prove such document by way of the ordinary
method of proof of documents and their contents. It matters
not that the document is a public document. The Bombay
High Court has in Om Prakash Berlia v. Unit Trust of India
[8] held that even a public document requires proof in the
ordinary course and it is not that a public document is proved
by its mere production by a public authority where the
contents are disputed. In that case it was held: (SCC Online
paras 13, 14 and 26)
“13. It will have been noticed that the production of certified
copies under the provisions of Section 63 is a means of
leading secondary evidence. Secondary evidence can,
obviously, be led only of what the document states not as to
whether what the document states is true. Under Section
65(e), secondary evidence may be given when the original is
a public document within the meaning of Section 74 and only
a certified copy of the public document is admissible.
Secondary evidence of a public document so led only proves
what the document states, no more. In other words, he who
seeks to prove a public document is relieved of the obligation
to produce the original. He can produce instead a certified
copy. All other requirements he must still comply with.
14. In this context this Court’s judgment in C.H. Shah
v. S.S. Malpathak [9] must be noted. The Court was
concerned with deciding whether the original of a
public document has to be proved in the same manner
as any other document. A consideration of the relevant
provisions of the Evidence Act clearly showed the
Court that the only difference which the Act made
between public and private documents was in regard
to the form of secondary evidence which is admissible
viz. a certified copy, and in regard to the presumption
of the genuineness of the certified copy; in all other
respects no distinction was drawn by the Act between
public and private documents.
*
* *
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26. In the result, I hold that the said copy and extract
(Exhibits 17 and 18) do not establish, even prima
facie, the truth or accuracy or correctness of the
contents of their originals. They prove only what the
contents of their originals are.”
(emphasis supplied)
In case of disputed documents the first step is producing the
original or primary direct evidence[10] and then leading the
evidence of the person who has made the original unless of
course that person is no longer available. In such a case the
first step is producing the original and annexing it with the
compilation of documents and then leading the evidence of
the person who has made the document or been party to its
formation. In case the document is available in original with
the party proposing to prove it as for example an agreement
retained in original by him, there appears no difficulty.
However, in case the document is lost then the only way is to
lead secondary evidence of the same through a copy made in
accordance with Sections 63 and 65 of the Act. However in
the case for example of a letter which is written by Mr. A to
Mr. B which is sought to be proved by Mr. A, first that letter in
original will have to be produced. This can be done by Mr. A
issuing a notice to produce to Mr. B because obviously having
written the letter to Mr. B the letter would not remain with him.
In response if Mr. B disputes that the letter was even received
by him one would have to prove that the letter was duly
received by Mr. B by giving evidence of proof of delivery by
registered post AD or evidence of the fact that Mr. B had
responded to the letter or had referred to that letter in some
other later of correspondence or it was hand delivered. In
such a case then appropriate secondary evidence would have
to be led while annexing to the compilation instead of an
original a copy which conforms with the requirements of
Section 63 of the Act. In both the above cases what is
achieved is only the first stage of obtaining the requisite
document and making it a part of the compilation relied on. In
both cases the only thing proved by the above process is the
existence of the document.
However for exhibition of the document it is necessary to
depose to the truth of contents of the document i.e. what is
said in the agreement or what was written in the letter is true
and correct.
In both the cases what would be necessary is to prove the
contents of the document because what is important is not
that something is really stated in the document but whether
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what is stated in the document is correct. That can only be
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proved by somebody who knows about the document itself or
who was a party to making the document or had verified the
document or approved it or signed it with knowledge of its
contents. This is because evidence must be direct primary
evidence under Sections 60 to 62 of the Act.
The next step after the production of the document in original
or as a copy (secondary evidence) in the compilation of
documents is to lead appropriate evidence of the truth of the
contents of the document sought to be proved. That needs to
be done in the aforesaid example by the evidence of a person
(who was a party to or had been intricately involved with or
drafted/gave instructions to make the agreement or letter)
stating so in the witness box or in an affidavit of examination-
in- chief about these facts. It is not enough to only depose
that the letter or agreement is signed by the witness, he must
also depose to some particulars of the letter or agreement
showing he is personally aware about what is mentioned
therein. As an example if Mr. A only deposes that he signed
the letter but that it was written by somebody else and he had
not verified its contents then the letter doesn’t stand proved
because all that Mr A is able to do and say is that he signed
such a letter. This only proves his signature and at best the
existence of the same. What is crucial is the contents of the
letter and that can only be proved by the person who
authored the letter on the basis of knowing the facts stated in
the letter. Therefore what is examined by the court and what
must be shown if the document is sought to be proved
sufficiently for exhibition is to give direct evidence under
Section 60 of the Act by the person who is aware of the facts
of the case. The person who gives evidence must not only
give direct evidence but he must also have the necessary
knowledge about what is stated in the document which he is
trying to prove. This is because what is necessary is that
evidence cannot be hearsay evidence. I will shortly deal with
this. To prove the contents of a document what is needed is to
prove by direct evidence of the person concerned with the
transaction (for public and private documents) the actual facts
stated in the document. A reading of the evidence must show
that the witness has personal knowledge of what the contents
of the letter or agreement talk of and can depose sufficiently
thereon. In case the evidence shows the witness attempting
to prove the document is not aware of the contents and
another person is aware of it the document will not be
exhibited till that other person has deposed on the contents of
the document. It is only once this is done that the document
can be stated to be proved sufficiently for exhibition. Care
must be taken to see that someone who can vouchsafe for
the contents must depose to the documents. The Supreme
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court in Narbada Devi Gupta v. Birendra Kumar Jaiswal[11] prove the contents of that document. No doubt the
has held: (SCC p. 751) proof insofar as it was sought to be given in the
“16…. The legal position is not in dispute that mere production evidence of Balkrishna Bhagwan Deshmukh of the
and marking of a document as exhibit by the court cannot be signature or handwriting of the said various documents
held to be a due proof of its contents. Its execution has to be could have established that those documents were
proved by admissible evidence, that is, by the “evidence of signed or written in the handwriting of Deshpande,
those persons who can vouchsafe for the truth of the facts in Paranjape or Jamnadas; but the matter could rest
issue”…” there and would carry the plaintiff no further.
6. It certainly could not prove that the contents of those
(emphasis supplied)
various documents which were thus proved to have
One of the best and most instructive cases on proof of
been signed or written by Deshpande, Paranjape or
documents is that of Madholal Sindhu v. Asian Assurance
Jamnadas were correct, and unless the plaintiff
Co. Ltd.[12] It is therein held that it is not sufficient to merely
succeeded in proving the correctness of the contents
prove that somebody signed a document and the witness
of those various documents, he would not advance
could prove or identify the signature, what is required is to
any step towards proving his case. Mr. Taraporewalla
prove that the person who signed the document was aware of
for the bank and Jamnadas supported Mr. Somjee in
the document and its contents and the transaction. In that
his submission. He submitted that once the signatures
case it was held as follows: (SCC Online paras 4-6, 8 & 9)
were proved the letters as a whole were proved,
“4. Mr. Somjee argued that under the provisions of the though the Court might say that the contents thereof
Evidence Act all facts except the contents of documents could were not proved in the sense that they were true. He
be proved by oral evidence, that so far as the contents of submitted that the Court could admit those documents
documents are concerned, they could be proved either by in evidence with that reservation, a reservation which
primary or secondary evidence, that the primary evidence of to my mind went to the root of the whole matter and
the documents meant the documents themselves produced deprived the documents of all value whatsoever even
before the court, and that if the documents were alleged to be if they might be admitted by the Court in evidence.
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 was in that person’s handwriting need be proved
8. Mr. Setalvad on the strength of this authority urged
to be in his handwriting. He, therefore, urged that the said
that the documents which were sought to be tendered
various documents which he sought to prove before the court
by Mr. Somjee through this witness Balkrishna
need only be proved to be in the handwriting of the persons
Bhagwan Deshmukh could not be admitted in
making the same and if he succeeded in doing so by calling
evidence without calling the signatory or the writer
the evidence of persons acquainted with the handwriting of
thereof who could be the only persons competent to
the persons who signed or wrote out the said several
depose to the truth of contents of the said various
documents, he was entitled to put them in and argued that the
documents. Mr. Somjee replied urging that the usual
contents of the said documents were also proved by him.
mode of proving documents was by calling the writer
5. This proposition sounded to me a novel one. I had in or by the testimony of the persons who were
fact never heard any such argument before. Section acquainted with the handwriting of the persons in
67, Evidence Act only permitted the proof of the question, and he was thus entitled to prove the various
signature or handwriting of the person signing or documents which he sought to tender in evidence
writing the document to be given and considered it to through this witness Balkrishna Bhagwan Deshmukh
be sufficient in those cases where the issue between who was acquainted with the signatures or handwriting
the parties was whether a document was signed or of the persons who signed or wrote the said various
written wholly or in part by that person. It did not go so documents.
far as to say that even if it was proved that the 9. As I have already observed it was futile for Mr. Somjee
signature or the handwriting of so much of the to merely prove the signatures or the handwriting of
document as was alleged to be in the handwriting of the persons who signed or wrote the various
the person, was in his handwriting, it would go to documents without calling the said persons who were
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the only persons who could depose to the correctness acquainted with Abreo’s handwriting (vide Section 47 of the
of the contents of those various documents. Whether Evidence Act). The ruling given by the tribunal may hold good
Deshpande, Paranjape or Jamnadas signed or wrote so far as the question of the proof of the contents of Ext. 28 is
the various documents, was not the only issue before concerned, (we will discuss this question presently at some
me. It that had been the only issue, the proof of the length), if the only mode of proof adopted by D was to identify
signatures or the handwriting of Deshpande Paranjape the signature of Abreo. It certainly does not apply to the
or Jamnadas would have been enough. What was in second mode of proof which D sought to adopt, for the first
issue, however, before me was apart from Deshpande, time, in his further examination-in-chief before the Bar Council
Paranjape or Jamnadas having signed or written those Tribunal by saying that Abreo put his signature below Ext. 28
documents, whether the contents of those various in his presence, for this amounts to proof of the execution of
documents were correct. This certainly could not be the document. We are not, however, disposed to accept the
proved by Balkrishna Bhagwan Deshmukh who had improved version of D, when he tried to say, for the first time
no personal knowledge whatever about the contents of before the Tribunal, that he had seen Abreo putting his
those various documents. It would have served no signature below Ext. 28. The mode of proof that D adopted in
purpose whatever to admit those documents in the first instance fell within the purview of Section 47 of the
evidence with the reservation as suggested by Mr. Evidence Act, that is to say, it amounted to his opinion about
Taraporewalla. I was supported in this conclusion of the signature of Abreo on the basis of his acquaintance with
mine by the remarks of the appeal Court in — ‘11 Bom the latter’s hand-writing. The Bar Council Tribunal had
HCR 242 [13] at p. 246 (A)’, and I accordingly probably in their mind the decision of Bhagwati, J. (as he then
declined to admit in evidence the said various was) in Madholal Sindhu v. Asian Assurance Co.[16] The
documents in spite of Balkrishna Bhagwan Deshmukh Advocate General has strongly relied upon this judgment and
deposing before me that the said various documents contended that proof of the signature below the document
were signed by or were in the handwriting of does not amount to proof of the contents of the document. In
Deshpande, Paranjape or Jamnadas. (The rest of the that case an attempt was made to prove through the sub-
judgment is not material to the report.)” accountant in the head office of the Bank several documents
consisting of letters and documents executed by Jamnadas in
The principles in Madholal case[14] stand the test of time favour of the bank and also the resolutions of the executive
even today and this judgement has even been referred to in a committee of the bank and the letters addressed by the bank
later judgement of the Bombay High Court Sir Mohammed to Nissim by proving the handwriting in which all the
Yusuf v. D[15] where it is quoted with approval. The following documents purported to have been written. Bhagwati, J.
passages are relevant: characterised this attempt “as an attempt to prove the
“13. Mr. Peerbhoy contended that the entire document (Ext. handwriting of these various documents without calling in
28) could not be admitted in evidence inasmuch as D had evidence the persons who had written the same or who were
only proved the signature below the document. The Tribunal acquainted with the contents thereof so that they might not be
gave a ruling stating that in their opinion proof of the signature subjected to cross-examination at the hands of the counsel
was not proof of the contents of the document, which bears for the official Assignee. The witnesses who could have
the signature. They added that “it would be open to Mr. proved those documents and the contents thereof would have
Peerbhoy to contend that despite the admission of the been Deshpande, the managing director of the bank.
document on record what was proved was that the document Paranjape the Secretary of the bank, Jamnadas and Nissim”.
bore the signature of Abreo and not that their contents were Bhagwati, J. referred to Section 67 of the Evidence Act and
true”. In their report, the tribunal have stated that proof of the observed:
signature does not amount to proof of the contents of Ext. 28. “Section 67 of the Evidence Act only permits the proof of the
Nor did it mean that even if Abreo had received that copy signature or handwriting of the person signing or writing the
letter, he showed it to Abdul Rahman at any time. According document to be given and considers it to be sufficient in those
to the Bar Council Tribunal, the evidentiary value of Ext. 28, cases where the issue between the parties is whether a
even if it is held proved, was almost nil. As pointed out above, document was signed or written wholly or in part by that
the mode of proving Ext. 28 that was initially undertaken by D person. The section does not go so far as to say that even if it
was to identify the signature of Abreo as a person who was
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of the document as was alleged to be in the handwriting of the
person, was in his handwriting, it would go to prove the
contents of that document. No doubt the proof insofar as it
was sought to be given in the evidence of Balkrishna
Bhagwan Deshmukh of the signature of handwriting of the
said various documents could have established that those
documents were signed or writen in the handwriting of
Deshpande, Paranjape or Jamnadas; but the matter could
rest there and would carry the plaintiff no further.”
14. From the facts as they appear from the judgment, it
appears to us that the evidence given by Deshmukh in
that case amounted to proving the handwriting of the
persons concerned under Section 47 of the Evidence
Act. We are inclined to the view that the proof offered
by the evidence of Deshmukh was proof of the
handwriting by a person acquainted
handwriting and, therefore, amounted to opinion
evidence under Section 47 of the Evidence Act. What
is important to note is that Bhagwati, J. has gone to
the length of holding that proof of the signature or the
handwriting under Section 67 of the Evidence Act
does not amount to proof of the contents of that
document.
* *
17. Section 67 does not prescribe any particular mode of
proof. It lays down no new rule whatever as to the kind
of proof that must be given. The section merely states
with reference to the deeds what is the universal rule
in all cases viz. that a person who makes an allegation
must prove it. The question that arose before the
Supreme Court in Mobarik Ali case[17] was, whether
the authorship of the document can be proved without
adducing evidence in proof of the signature of the
person concerned. In that case, the prosecution relied
upon a number of letters and these letters fell under
two categories; (1) Letters from the
(accused) either to Jessawala or to the complainant
and (2) Letters to the appellant from Jassawalla or the
complainant. Most of the letters from the appellant
relied upon bore what purported to be his signatures.
A few of them were admitted by the appellant. There
were also a few letters without signatures. The
complainant and Jassawalla spoke to the signatures
on the other letters. The objection raised on behalf of
the appellant was that neither of them had actually
seen the appellant writing any of the letters nor were
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they shown to have such intimate acquaintance with
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his correspondence as to enable them to speak to the
genuineness of these signatures. The trial Judges as
well as the learned Judges of the High Court had
found, that there were sufficient number of admitted or
proved letters which might well enable Jassawalla and
the complainant to identify the signature of the
appellant, in the disputed letters. They also laid stress
substantially on the contents of the various letters, in
the context of the other letters and telegrams to which
they purported to be replies and which formed the
chain of correspondence as indicating the
genuineness of the disputed letters. The learned
counsel objected to this approach on a question of
proof. Their Lordships of the Supreme Court observed:
with that “We are, however, unable to see any objection. 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 Sections 45 and 47 of the
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, also his
knowledge of the subject-matter of the chain of
correspondence, to speak to its authorship. In an appropriate
case, the Court may also be in a position to judge whether the
document constitutes a genuine link in the chain of
appellant
correspondence and thus to determine its authorship. We are
unable, therefore, to say that the approach adopted by the
Courts below in arriving at the conclusion that the letters are
genuine is open to any serious legal objection. The question,
if any, can only be as to the adequacy of the material on
which the conclusion as to the genuineness of the letters is
arrived at. That, however, is a matter which we cannot permit
to be canvassed before us”.
18. We are unable to understand how the above
observations in any way amount to modification of the
view taken by Bhagwati, J. in Madholal case[18]nor do
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we appreciate how they help Mr. Gupte in the
argument that he is advancing. Mr. Gupte in particular,
relied upon the following sentences occurring in the
above passage:
“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 Sections 45
and 47 of the Evidence Act. It may also be proved by internal
evidence afforded by the contents of the document…”
19. The issue under consideration in that case was
whether the internal evidence afforded by the contents
of the document amounted to the proof of the
authorship of the document and, therefore, their
Lordships held that the evidence of the recipient of the
document would be material to establish the
authorship of the document. This was the real decision
that was given by the Supreme Court in Mobarik Ali
case[19]. Even the general observations viz. “It (proof)
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 Sections 45 and 47 of the Evidence Act”
are not of much help to Mr. Gupte. As pointed out
above, at the initial stage D tried to resort to the mode
of proving spoken of in Section 47 of the Evidence Act
but at a latter stage, shifted the ground and tried to
give direct evidence of the execution of the document.
It is true that proof of the signature or of the
handwriting by one acquainted with the handwriting is
a recognised mode of proof under Section 47 of the
Evidence Act. Therefore, insofar as D says that he
recognised the signature of Abreo, the letter’s
signature can be taken to have been proved under
Section 47 of the Act. But the proof of the signature on
the basis of opinion evidence, however, is not proof of
the handwriting of the document. Mr. Gupte pointed
out that the body of the document as Ex. 28 is
typewritten. Therefore, there is no question of proving
the writing of that document. At the same time, it must
not be forgotten that the figure and letters ‘1st’ are
written in hand and in pencil. D has not attempted to
identify the figure and letters. The whole document,
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therefore, cannot be said to have been even formally
proved. Apart from this aspect of the matter, it is clear
to us that the decision in Mobarik Ali case[20] does
not affect the decision given by Bhagwati, J. viz., that
the proof of the document does not amount to proof of
the contents thereof. The only question that arose
in Mobarik Ali case related to the formal proof of the
document and, therefore, Their Lordships of the
Supreme Court held that the letters and telegrams
could be said to have been formally proved by reason
of internal evidence provided by the documents and
the positive evidence given by the recipient of those
documents. Once the letters and telegrams were held
proved, the further question about the proof of the
contents did not arise in Mobarik Ali case[21],
because the author of the documents was accused
himself and the statements contained therein would
amount to his admissions. In our view, therefore, the
decision of Bhagwati, J. is still good law.
20. The reason on which the decision of Bhagwati, J. is
based is not far to seek. The evidence of the contents
contained in the document is hearsay evidence unless
the writer thereof is examined before the Court. We,
therefore, hold that the attempt to prove the contents
of the document by proving the signature or the
handwriting of the author thereof is to set at nought the
well recognised rule that hearsay evidence cannot be
admitted.
(emphasis supplied)
It is therefore necessary in the case of disputed documents to
therefore prove the contents of the documents through the
evidence of persons/witnesses who have authored the
documents or are parties to it or are aware of the facts
personally stated therein.
Another reason for following the practice of having a witness
with sufficient personal knowledge deposing about the
documents sought to be proved is that even if the documents
are exhibited the task is not yet done. This is because the
person deposing will also be subject to cross-examination and
in case it is found during the cross-examination that the
person giving evidence about the document knows nothing
about how it was made, where the details provided in the
document are obtained from, what are the back up or
supporting documents etc. then in that case the weightage to
be given to such document even though exhibited in the first
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PROOF OF A DOCUMENTS THE ORIGINALS OF WHICH how the copy which is secondary evidence was obtained and
ARE LOST OR UNTRACEABLE OR IN POSSESSION OF made from the original will also have to be led. In other words
AN ADVERSE PARTY evidence of the manner in which the copy is made will have to
Here the first thing which needs to be established is that the be led in accordance with the manner set out in Section 63 of
document is lost and despite diligent search the same is not the Act. As an example if a letter sought to be proved is lost
available. This will have to be proved and specifically averred evidence would have to be given first of the efforts made to
in evidence. Secondary evidence cannot be allowed in locate the same unsuccessfully and then of the manner in
absence of this proof of loss of the document. The Supreme which the copy now relied upon in the compilation was
Court in Benga Behera v. Braja Kishore Nanda[22] held obtained or made and the process by which it was made e.g.
that: (SCC pp. 737-38) photocopy. The necessary averment of the witness apart from
the factum of his failure despite diligent search to locate the
“29. Another vital aspect of the matter cannot also be ignored.
original will have to be to the effect that at the relevant time
Respondent 1 in his evidence accepted that he had obtained
the original document was available and a copy was made
the registered will from the office of the Sub-Registrar upon
from the original and the copy in the compilation was
presenting “the ticket” on 30-1-1982. After receipt of the will,
compared by him with the original and found to be an
he had shown it to Sarajumani Dasi. He did not say how the
accurate reproduction of the original document.
will was lost, particularly when he had not only shown the
original will to the testatrix but also had consulted a lawyer in The next stage is for the witness deposing to be able to
relation thereto. No information was lodged about the missing withstand cross-examination by answering relevant questions
of the document before any authority. Even the approximate relating to document. Take the following example (in a dispute
point of time the will was lost, was not stated. In his cross- on electricity consumption) and assume there is an electric
examination, he stated, “I cannot say where and how the bill, a disputed document exhibited since the public authority
original will was lost.” has produced it from its record maintained by it in the normal
course of business. Since there is a dispute about
30. Loss of the original will was, thus, not satisfactorily
consumption of units even though the bill itself in original is
proved.
produced all that is proved by production is that such a bill
31. A document upon which a title is based is required to
was made by the public authority and such and such number
be proved by primary evidence, and secondary
of units were consumed as stated therein. However what
evidence may be given under Section 65(c) of the
needs to be seen is whether there is a correct recording of the
Evidence Act. The said clause of Section 65 provides
consumption of units in the public document that is the bill.
as under:
Mere production of the document is not enough what is
needed in such a case further is for some person to give
“65. (c) when the original has been destroyed or lost, or when
evidence of the public document to the extent that the
the party offering evidence of its contents cannot, for any
document is substantiated with supporting documents such
other reason not arising from his own default or neglect,
as meter reading cards and supporting data maintained in the
produce it in reasonable time;”
office of the authority. In such a case if the witnesses states
Loss of the original, therefore, was required to be proved.
that the bill was prepared by him on the basis of data cards
32. In a case of this nature, it was obligatory on the part of maintained showing the consumption from month to month
the first respondent to establish the loss of the original and he had verified the consumption from month to month
will beyond all reasonable doubt. His testimony in that then in that case if the data cards showing the consumption
behalf remained uncorroborated.” are also produced the contents of the bill will stand proved, of
course subject to cross-examination not dislodging the
In case a document is in possession of the opposing party the correctness of the consumption shown in the document.
proper practice to be followed will be to give a notice to Therefore what is needed apart from successful exhibition of
produce the document to such party in possession of the the document is for a witness to stand the test of stringent
document and only after the party refuses to provide/produce cross-examination. It is not merely somebody stepping into
the document can secondary evidence be resorted to[23]. the box and saying the contents are true and correct that
Thereafter the mode of proof will be the same as for other person must withstand cross-examination. It is only after that
disputed documents. Additionally
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document will be deemed to be accepted by the court “90. Presumption as to documents thirty years old.—Where
sufficient to sign a judgement in favour of the party claiming any document, purporting or proved to be thirty years old, is
under the document. Mere exhibition of a document does not produced from any custody which the court in the particular
dispense with the proof of the truth of its contents. The case considers proper, the court may presume that the
Supreme Court in Narbada Devi Gupta v. Birendra Kumar signature and every other part of such document, which
Jaiswal[24]held: (SCC p. 751) purports to be in the handwriting of any particular person, is in
“16. Reliance is heavily placed on behalf of the appellant on that person’s handwriting, and, in the case of a document
Ramji Dayawala & Sons (P) Ltd.[25] The legal position is not executed or attested, that it was duly executed and attested
in dispute that mere production and marking of a document as by the persons by whom it purports to be executed and
exhibit by the court cannot be held to be a due proof of its attested.”
contents. Its execution has to be proved by admissible 7. A bare perusal of the aforementioned provision would
evidence, that is, by the “evidence of those persons who can clearly go to show that in terms thereof merely a
vouchsafe for the truth of the facts in issue”. The situation is, presumption is raised to the effect that signature and
however, different where the documents are produced, they every other part of such document, which purports to
are admitted by the opposite party, signatures on them are be in the handwriting of any particular person, is in that
also admitted and they are marked thereafter as exhibits by person’s handwriting and in case a document is
the court.” executed or attested, the same was executed and
DOCUMENTS 30 YEARS’ OLD attested by the persons by whom it purports to be
executed and attested.
There are also documents which are of such old vintage that
8. Section 90 of the Evidence Act nowhere provides that
it is very difficult and sometimes impossible to produce the
in terms thereof the authenticity of the recitals
maker of the document and in this case the provisions of
contained in any document is presumed to be correct.
Section 90 of the Act come to the rescue when the document
The High Court, therefore, committed a manifest error
is more than 30 years’ old. However, this rule considering the
of law in interpreting the provision of Section 90 of the
fact that most cases coming up for trial are 30 years after the
Evidence Act and, thus, fell into an error in formulating
transactions cannot be the sole basis for admitting documents
the substantial question of law. As the purported
and in such cases the court would look at the surrounding
substantial question of law was formulated on a wrong
circumstances before exhibiting the document. This means
reading of Section 90 of the Evidence Act, the
the court would look as if there, is for example, any
impugned judgment cannot be sustained. We may
correspondence contemporaneously that supports what is
furthermore notice that even if a formal execution of a
stated in the document sought to be proved. If the document
document is proved, the same by itself cannot lead to
is a letter, has there been any response to it disputing the
a presumption that the recitals contained therein are
contents of the letter, the court may also take into
also correct. The mere execution of a document, in
consideration what is stated about the letter in the plaint or in
other words, does not lead to the conclusion that the
a written statement. Exhibition of such documents which do
recitals made therein are correct, and subject to the
not have persons who can depose to them is extremely
statutory provisions contained in Sections 91 and 92 of
difficult and even if they are exhibited (rarely) the evidentiary
the Evidence Act, it is open to the parties to raise a
value is limited unless its contents are admitted in some other
plea contra thereto.”
parallel documents. The section does not dispense with proof
of the contents. The judgement of the Supreme Court in
It is also to be noted that the presumption of Section 90 of
Gangamma v. Shivalingaiah[26] elucidates the position: (SCC
the Act does not apply to copies of documents as held in Tilak
p. 360)
Chand Kureel v. Bhim Raj[27]. The relevant passage is as
“6. We agree with the learned counsel. The purported
under:
substantial question of law was formulated by the High Court
“4. On behalf of the appellant it was contended that Exts. 2,
on a wrong premise. Section 90 of the Evidence Act has been
18 and 19 were not admissible in evidence and the High
misconstrued and misinterpreted by the High Court. Section
Court was wrong in relying upon these documents. It was said
90 of the Evidence Act reads as under:
that the presumption under Section 90 of the Evidence Act
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original documents. In our opinion this argument is well-

founded. In Basant v. Brijraj[28] it was held by the Privy
Council that the presumption enacted in Section 90 of the
Evidence Act can be applied only with regard to original
documents and not copies thereof. The same view was taken
by this Court in Harihar Prasad Singh v. Mst of Munshi Nath
Prasada. [29] In view of the legal position it is manifest that
the High Court ought not to have taken into consideration
Exts. 2, 18 and 19.”
PERSONAL KNOWLEDGE
The last issue which needs to be addressed to prove
documents contents through a witness pertains to the witness
having direct knowledge and giving direct evidence rather
than a witness relying upon something which he claims he
heard. The rule of inadmissibility of hearsay evidence kicks in.
Evidence needs to be evidence of the person who is involved
in and familiar with the transaction. In this behalf a recent
judgement considering the law on the issue was delivered by
the Bombay High Court (G. S. Patel, J.) in Harish Loyalka v.
Dileep Nevatia[30]. It is inter alia held therein that the
provisions of Order 18 Rule 4 of the Code of Civil Procedure,
1908 (“CPC”) require that the “examination-in-chief” shall be
on affidavit. This means that the affidavit in lieu of
examination-in-chief can contain, and contain only, such
material as is properly admissible in examination-in-chief, in a
manner no different than if the witness was in the witness box
and his direct evidence was being taken by his advocate. An
affidavit that contains arguments and submissions is neither
an affidavit within the meaning of Order 19 Rule 3 CPC, nor
an affidavit in lieu of examination-in-chief within the meaning
of CPC Order 18 Rule 4.
In that judgment it was also held:
“13. As Mr. Joshi points out, under Section 5 of the Evidence
Act, evidence may be given in a suit of every fact in issue or
of a relevant fact, and of no other. That section is specific and
unambiguous. Material that is ex facie entirely irrelevant,
hearsay, and certainly material that is in the nature of
submissions and arguments must be excluded.”
To sum up the aforesaid are some of the important principles
and aspects of law to bear in mind when preparing for a
hearing for exhibiting and proving documents.

*Advocate, High Court, Bombay. Assisted by Sheetal

Parkash, Arjun Prabhu and Mayur Agarwal
[1] Sections 74 & 75, Evidence Act
[2] Defined in Section 74 of Evidence Act
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