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Practice and Procedure Relating to

Proof of Documents

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 birth 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 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 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 two basic aspects, one the
existence of the document and 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 purpose. The court after being satisfied of
this i.e. that the 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.
 * * *
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 what is
stated in the document is correct. That can only be 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 court in Narbada Devi
Gupta v. Birendra Kumar Jaiswal[11] has held: (SCC p. 751)
“16…. 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”…”
(emphasis supplied)
One of the best and most instructive cases on proof of documents is that of Madholal
Sindhu v. Asian Assurance Co. Ltd.[12] It is therein held that it is not sufficient to merely
prove that somebody signed a document and the witness could prove or identify the
signature, what is required is to prove that the person who signed the document was aware
of the document and its contents and the transaction. In that case it was held as follows: (SCC
Online paras 4-6, 8 & 9)
“4. Mr. Somjee argued that under the provisions of the Evidence Act all facts except the contents
of documents could be proved by oral evidence, that so far as the contents of documents are
concerned, they could be proved either by primary or secondary evidence, that the primary
evidence of the documents meant the documents themselves produced before the court, and
that if the documents were 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 was in that person’s
handwriting need be proved to be in his handwriting. He, therefore, urged that the said various
documents which he sought to prove before the court need only be proved to be in the
handwriting of the persons making the same and if he succeeded in doing so by calling the
evidence of persons acquainted with the handwriting of the persons who signed or wrote out
the said several documents, he was entitled to put them in and argued that the contents of the
said documents were also proved by him.
5. This proposition sounded to me a novel one. I had in fact never heard any such argument before.
Section 67, Evidence Act only permitted the proof of the signature or handwriting of the person
signing or writing the document to be given and considered it to be sufficient in those cases
 where the issue between the parties was whether a document was signed or written wholly or
in part by that person. It did not go so far as to say that even if it was proved that the signature
or the handwriting of so much 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 or handwriting of the said various documents could have established that those
documents were signed or written in the handwriting of Deshpande, Paranjape or Jamnadas;
but the matter could rest there and would carry the plaintiff no further.
6. It certainly could not prove that the contents of those various documents which were thus
proved to have been signed or written by Deshpande, Paranjape or Jamnadas were correct, and
unless the plaintiff succeeded in proving the correctness of the contents of those various
documents, he would not advance any step towards proving his case. Mr. Taraporewalla for the
bank and Jamnadas supported Mr. Somjee in his submission. He submitted that once the
signatures were proved the letters as a whole were proved, though the Court might say that the
contents thereof were not proved in the sense that they were true. He submitted that the Court
could admit those documents in evidence with that reservation, a reservation which to my mind
went to the root of the whole matter and deprived the documents of all value whatsoever even
if they might be admitted by the Court in evidence.
* * *
8. Mr. Setalvad on the strength of this authority urged that the documents which were sought to
be tendered by Mr. Somjee through this witness Balkrishna Bhagwan Deshmukh could not be
admitted in evidence without calling the signatory or the writer thereof who could be the only
persons competent to depose to the truth of contents of the said various documents. Mr. Somjee
replied urging that the usual mode of proving documents was by calling the writer or by the
testimony of the persons who were acquainted with the handwriting of the persons in question,
and he was thus entitled to prove the various documents which he sought to tender in evidence
through this witness Balkrishna Bhagwan Deshmukh who was acquainted with the signatures
or handwriting of the persons who signed or wrote the said various documents.
9. As I have already observed it was futile for Mr. Somjee to merely prove the signatures or the
handwriting of the persons who signed or wrote the various documents without calling the said
persons who were the only persons who could depose to the correctness of the contents of those
various documents. Whether Deshpande, Paranjape or Jamnadas signed or wrote the various
documents, was not the only issue before me. It that had been the only issue, the proof of the
signatures or the handwriting of Deshpande Paranjape or Jamnadas would have been enough.
What was in issue, however, before me was apart from Deshpande, Paranjape or Jamnadas
having signed or written those documents, whether the contents of those various documents
were correct. This certainly could not be proved by Balkrishna Bhagwan Deshmukh who had
no personal knowledge whatever about the contents of those various documents. It would have
served no purpose whatever to admit those documents in evidence with the reservation as
suggested by Mr. Taraporewalla. I was supported in this conclusion of mine by the remarks of
the appeal Court in — ‘11 Bom HCR 242 [13] at p. 246 (A)’, and I accordingly declined to admit
in evidence the said various documents in spite of Balkrishna Bhagwan Deshmukh deposing
before me that the said various documents were signed by or were in the handwriting of
Deshpande, Paranjape or Jamnadas. (The rest of the judgment is not material to the report.)”
The principles in Madholal case[14] stand the test of time even today and this judgement has
even been referred to in a later judgement of the Bombay High Court Sir Mohammed
Yusuf v. D[15] where it is quoted with approval. The following passages are relevant:
“13. Mr. Peerbhoy contended that the entire document (Ext. 28) could not be admitted in
evidence inasmuch as D had only proved the signature below the document. The Tribunal
gave a ruling stating that in their opinion proof of the signature was not proof of the contents
of the document, which bears the signature. They added that “it would be open to Mr.
Peerbhoy to contend that despite the admission of the document on record what was proved
was that the document bore the signature of Abreo and not that their contents were true”. In
their report, the tribunal have stated that proof of the signature does not amount to proof of
the contents of Ext. 28. Nor did it mean that even if Abreo had received that copy letter, he
showed it to Abdul Rahman at any time. According to the Bar Council Tribunal, the
evidentiary value of Ext. 28, even if it is held proved, was almost nil. As pointed out above,
the mode of proving Ext. 28 that was initially undertaken by D was to identify the signature
of Abreo as a person who was acquainted with Abreo’s handwriting (vide Section 47 of the
Evidence Act). The ruling given by the tribunal may hold good so far as the question of the
proof of the contents of Ext. 28 is concerned, (we will discuss this question presently at some
length), if the only mode of proof adopted by D was to identify the signature of Abreo. It
certainly does not apply to the second mode of proof which D sought to adopt, for the first
time, in his further examination-in-chief before the Bar Council Tribunal by saying that
Abreo put his signature below Ext. 28 in his presence, for this amounts to proof of the
execution of the document. We are not, however, disposed to accept the improved version of
D, when he tried to say, for the first time before the Tribunal, that he had seen Abreo putting
his signature below Ext. 28. The mode of proof that D adopted in the first instance fell within
the purview of Section 47 of the Evidence Act, that is to say, it amounted to his opinion about
the signature of Abreo on the basis of his acquaintance with the latter’s hand-writing. The
Bar Council Tribunal had probably in their mind the decision of Bhagwati, J. (as he then was)
in Madholal Sindhu v. Asian Assurance Co.[16] The Advocate General has strongly relied
upon this judgment and contended that proof of the signature below the document does not
amount to proof of the contents of the document. In that case an attempt was made to prove
through the sub-accountant in the head office of the Bank several documents consisting of
letters and documents executed by Jamnadas in favour of the bank and also the resolutions
of the executive committee of the bank and the letters addressed by the bank to Nissim by
proving the handwriting in which all the documents purported to have been written.
Bhagwati, J. characterised this attempt “as an attempt to prove the handwriting of these
various documents without calling in evidence the persons who had written the same or who
were acquainted with the contents thereof so that they might not be subjected to cross-
examination at the hands of the counsel for the official Assignee. The witnesses who could
have proved those documents and the contents thereof would have been Deshpande, the
managing director of the bank. Paranjape the Secretary of the bank, Jamnadas and Nissim”.
Bhagwati, J. referred to Section 67 of the Evidence Act and observed:
“Section 67 of the Evidence Act only permits the proof of the signature or handwriting of the
person signing or writing the document to be given and considers it to be sufficient in those
cases where the issue between the parties is whether a document was signed or written
wholly or in part by that person. The section does not go so far as to say that even if it was
proved that the signature or the handwriting of so much 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 with that
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 appellant (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 they shown to have such intimate
acquaintance with 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:
“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 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 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, 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 instance would be severely diminished.
PROOF OF A DOCUMENTS THE ORIGINALS OF WHICH ARE LOST OR UNTRACEABLE OR
IN POSSESSION OF AN ADVERSE PARTY
Here the first thing which needs to be established is that the document is lost and despite
diligent search the same is not available. This will have to be proved and specifically averred
in evidence. Secondary evidence cannot be allowed in absence of this proof of loss of the
document. The Supreme Court in Benga Behera v. Braja Kishore Nanda[22] held that: (SCC
pp. 737-38)
“29. Another vital aspect of the matter cannot also be ignored. Respondent 1 in his evidence
accepted that he had obtained the registered will from the office of the Sub-Registrar upon
presenting “the ticket” on 30-1-1982. After receipt of the will, he had shown it to Sarajumani
Dasi. He did not say how the will was lost, particularly when he had not only shown the original
will to the testatrix but also had consulted a lawyer in relation thereto. No information was
lodged about the missing of the document before any authority. Even the approximate point of
time the will was lost, was not stated. In his cross-examination, he stated, “I cannot say where
and how the original will was lost.”
30. Loss of the original will was, thus, not satisfactorily proved.
31. A document upon which a title is based is required to be proved by primary evidence, and
secondary evidence may be given under Section 65(c) of the Evidence Act. The said clause of
Section 65 provides as under:
“65. (c) when the original has been destroyed or lost, or when the party offering evidence of its
contents cannot, for any other reason not arising from his own default or neglect, produce it in
reasonable time;”
Loss of the original, therefore, was required to be proved.
32. In a case of this nature, it was obligatory on the part of the first respondent to establish the loss
of the original will beyond all reasonable doubt. His testimony in that behalf remained
uncorroborated.”
In case a document is in possession of the opposing party the proper practice to be followed
will be to give a notice to produce the document to such party in possession of the document
and only after the party refuses to provide/produce the document can secondary evidence
be resorted to[23].
Thereafter the mode of proof will be the same as for other disputed documents. Additionally
appropriate evidence about how the copy which is secondary evidence was obtained and
made from the original will also have to be led. In other words evidence of the manner in
which the copy is made will have to be led in accordance with the manner set out in Section
63 of the Act. As an example if a letter sought to be proved is lost evidence would have to be
given first of the efforts made to locate the same unsuccessfully and then of the manner in
which the copy now relied upon in the compilation was obtained or made and the process
by which it was made e.g. photocopy. The necessary averment of the witness apart from the
factum of his failure despite diligent search to locate the original will have to be to the effect
that at the relevant time the original document was available and a copy was made from the
original and the copy in the compilation was compared by him with the original and found
to be an accurate reproduction of the original document.
The next stage is for the witness deposing to be able to withstand cross-examination by
answering relevant questions relating to document. Take the following example (in a dispute
on electricity consumption) and assume there is an electric bill, a disputed document
exhibited since the public authority has produced it from its record maintained by it in the
normal course of business. Since there is a dispute about consumption of units even though
the bill itself in original is produced all that is proved by production is that such a bill was
made by the public authority and such and such number of units were consumed as stated
therein. However what needs to be seen is whether there is a correct recording of the
consumption of units in the public document that is the bill. Mere production of the
document is not enough what is needed in such a case further is for some person to give
evidence of the public document to the extent that the document is substantiated with
supporting documents such as meter reading cards and supporting data maintained in the
office of the authority. In such a case if the witnesses states that the bill was prepared by him
on the basis of data cards maintained showing the consumption from month to month and
he had verified the consumption from month to month then in that case if the data cards
showing the consumption are also produced the contents of the bill will stand proved, of
course subject to cross-examination not dislodging the correctness of the consumption
shown in the document. Therefore what is needed apart from successful exhibition of the
document is for a witness to stand the test of stringent cross-examination. It is not merely
somebody stepping into the box and saying the contents are true and correct that person
must withstand cross-examination. It is only after that person has withstood the test of
cross-examination that the document will be deemed to be accepted by the court sufficient
to sign a judgement in favour of the party claiming under the document. Mere exhibition of
a document does not dispense with the proof of the truth of its contents. The Supreme Court
in Narbada Devi Gupta v. Birendra Kumar Jaiswal[24]held: (SCC p. 751)
“16. Reliance is heavily placed on behalf of the appellant on Ramji Dayawala & Sons (P)
Ltd.[25] 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”. The situation is, however, different where the documents are
produced, they are admitted by the opposite party, signatures on them are also admitted and
they are marked thereafter as exhibits by the court.”
DOCUMENTS 30 YEARS’ OLD
There are also documents which are of such old vintage that it is very difficult and
sometimes impossible to produce the maker of the document and in this case the provisions
of Section 90 of the Act come to the rescue when the document is more than 30 years’ old.
However, this rule considering the fact that most cases coming up for trial are 30 years after
the transactions cannot be the sole basis for admitting documents and in such cases the court
would look at the surrounding circumstances before exhibiting the document. This means
the court would look as if there, is for example, any correspondence contemporaneously that
supports what is stated in the document sought to be proved. If the document is a letter, has
there been any response to it disputing the contents of the letter, the court may also take into
consideration what is stated about the letter in the plaint or in a written statement.
Exhibition of such documents which do not have persons who can depose to them is
extremely difficult and even if they are exhibited (rarely) the evidentiary value is limited
unless its contents are admitted in some other parallel documents. The section does not
dispense with proof of the contents. The judgement of the Supreme Court in Gangamma v.
Shivalingaiah[26] elucidates the position: (SCC p. 360)
“6. We agree with the learned counsel. The purported substantial question of law was
formulated by the High Court on a wrong premise. Section 90 of the Evidence Act has been
misconstrued and misinterpreted by the High Court. Section 90 of the Evidence Act reads as
under:
“90. Presumption as to documents thirty years old.—Where any document, purporting or
proved to be thirty years old, is produced from any custody which the court in the particular
case considers proper, the court may presume that the signature and every other part of such
document, which purports to be in the handwriting of any particular person, is in that person’s
handwriting, and, in the case of a document executed or attested, that it was duly executed and
attested by the persons by whom it purports to be executed and attested.”
7. A bare perusal of the aforementioned provision would clearly go to show that in terms thereof
merely a presumption is raised to the effect that signature and every other part of such
document, which purports to be in the handwriting of any particular person, is in that person’s
handwriting and in case a document is executed or attested, the same was executed and
attested by the persons by whom it purports to be executed and attested.
8. Section 90 of the Evidence Act nowhere provides that in terms thereof the authenticity of the
recitals contained in any document is presumed to be correct. The High Court, therefore,
committed a manifest error of law in interpreting the provision of Section 90 of the Evidence
Act and, thus, fell into an error in formulating the substantial question of law. As the purported
substantial question of law was formulated on a wrong reading of Section 90 of the Evidence
Act, the impugned judgment cannot be sustained. We may furthermore notice that even if a
formal execution of a document is proved, the same by itself cannot lead to a presumption that
the recitals contained therein are also correct. The mere execution of a document, in other
words, does not lead to the conclusion that the recitals made therein are correct, and subject to
the statutory provisions contained in Sections 91 and 92 of the Evidence Act, it is open to the
parties to raise a plea contra thereto.”
It is also to be noted that the presumption of Section 90 of the Act does not apply to copies
of documents as held in Tilak Chand Kureel v. Bhim Raj[27]. The relevant passage is as under:
“4. On behalf of the appellant it was contended that Exts. 2, 18 and 19 were not admissible in
evidence and the High Court was wrong in relying upon these documents. It was said that
the presumption under Section 90 of the Evidence Act was not applicable as copies were
produced and not the 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.