WORK SHOP –I

IN
VIZIANAGARAM
UNIT ON
16.09.2023
 WORK SHOP- I
IN VIZIANAGARAM
UNIT
ON 16.09.2023

Ex-Officio Chair Person of Work

Shop
Hon’ble Sri Justice
G.Ramakrishna
Prasad
Administrative Judge
***
 INDEX

Session-1: Documentary Evidence in Civil Cases

1. Classification of documents basing on the transactions eg: Sale, gift,
mortgage, bill, pronote, lease, adoptions, agreements etc.
2. Relevant laws defining and explaining the different transactions.
3. Method of Interpretation of correct nature of documents .
Kum.B.Kanakalakshmi,
1. Junior Civil Judge, Gajapathinagaram 1-15
1. Smt M.Sarojanamma
2. Principal Junior Civil Judge - cum - 16-26
Judicial Magistrate of First Class, Bobbili
Session-2 : Relevancy and Admissibility of documents in evidence
1.Relevancy of documents with reference to the provisions of Indian
Evidence Act.
rd
(Ex: Recitals in the 3 party documents, public documents etc)
2.Admissibility of documents with reference to provisions of Stamp Act,
Registration Act and other relevant laws.
Kum.S.Vani,
1. Junior Civil Judge, Srungavarapukota. 27-52

Sri G.Yagna Narayana

2. 2. Senior Civil Judge, Parvathipuram 53-60

Smt Mohideen Zamruth Begum Kamaluddin

Special Judicial First Class Magistrate (Mobile)
3. 61-71
for trial of Cases under PCR Act - cum -
II Additional Junior Civil Judge, Vizianagaram
Session-3 :

1.Primary evidence and Secondary evidence

2.Mode of proof of documents
3.Competency of witness to prove documents
Smt. B. Ramya,
Additional Junior Civil Judge, Vizianagaram. 72-85
1.
Sri T.Vasudevan
Senior Civil Judge, Bobbili 86-116
2.
Smt J.Sowmya Joshphine
3. 3. I Additional Junior Civil Judge - cum - 117-132
I Additional Judicial Magistrate of First Class, Bobbili
Smt D.Soujanya
4. I Additional Junior Civil Judge - cum - 133-147
I Additional Judicial Magistrate of First Class, Parvathipuram
Sri.S.Vijay Chandar
5. Junior Civil Judge - cum - Judicial Magistrate 148-150
of First Class, Kothavalasa
Session-4 :

1.Exclusion of oral evidence by documents

2.Presumptions relating to documents
Sri A.Ramesh 151-162
Principal Junior Civil Judge - cum -
1.
Judicial Magistrate of First Class, Parvathipuram
4.
163-182
Sri. S.Damodar Rao
2.
II Additional District and Sessions Judge, Parvathipuram
Smt B.H.V.Lakshmi Kumari
3. Senior Civil Judge,Vizianagaram. 183-189

Kum M Vijaya Rameswari

4. Junior Civil Judge - cum - Judicial Magistrate of First Class, 190-203
Cheepurupalli.
PAPER PRESENTATION ON DOCUMENTARY EVIDENCE
IN CIVIL CASES
Presented By Ms B.Kanaka Lakshmi,
Junior Civil Judge, Gajapathinagaram.

1. Classification of documents basing on the transactions eg: Sale, Gift ,

Mortgage, bill, promissory note , lease, adoptions, agreements etc.

2. Relevant laws defining and explaining the different transactions.

3. Method of interpretation of correct nature of documents.

1. Introduction :

The civil standard of proof is proof on a balance of probabilities. It

means that if something is said to be proven on a balance of probabilities, it is
more likely than not to have occurred. In other words, the likelihood of that
thing or fact is more than of its non-happening. The normal rule which
governs civil proceedings for the evidentiary standard is that a fact is said to
be established if it is proved by a preponderance of probabilities.

The foundation of any fact is judged by the rule of ‘Preponderance of

Probability’. It will also be important to look at section 3 of the Indian
Evidence Act, 1872 which states that a fact is said to be proved when the
court either believes it to exist or considers its existence so probable that a
prudent man ought under the circumstances of the actual case, to act upon
the supposition that it exists. Therefore, the court in any particular test applies
this rule or test of preponderance of probability to find whether the fact in
issue can be said to be proved.
 As per Indian evidence Act 1872, Evidence means and includes Oral
and Documentary evidence. All statements which the Court permits or
requires to be made before it by witnesses, in relation to matters of fact under
inquiry (oral evidence) and all documents including electronic records
produced for the inspection of the Court (documentary evidence).

2. Documentary evidence :

A document as per the evidence act means any matter expressed or

described upon any substance by means of letters, figures, or marks, or by
more than one of those means intended to be used, or which may be used,
for the purpose of recording that matter. Documents are further divided into
public documents section 74 and private documents section 75.

Documentary evidence thus is defined under the evidence act to mean,

‘all documents including electronic records produced for the inspection of the
court.’ An example of the same could be a contract produced before the court
in case of a dispute for ascertaining the terms of the clause for its specific
enforcement; or presentation of a sale deed as proof for the ownership of a
property in a suit involving a title dispute.

Classification of documents basing on the transactions

eg: Sale, Gift , Mortgage, bill, promissory note , lease,
adoptions, agreements etc and Relevant laws defining and
explaining the different transactions:

There are different kinds of transactions. There are various laws

defining and explaining the transactions between the parties. The following
are some of the laws that define and explain the said transactions:
1. The Transfer of property Act 1882.
2. The Negotiable instrument Act 1881.
 3. The Specific Relief Act 1963.
4. The Indian contract Act 1872.
5. The Hindu Adoption and maintenance Act 1956.
6. the Hindu succession Act 1956.
7. the Indian Succession Act 1925.
The above said laws are linked with Indian stamp Act 1899 and
Registration Act 1908 etc.

For every transaction that purports any transfer of rights, creation of

rights, etc., there must be a contract in writing, and that is the foundation for
every transaction. The said writings will be called documents, and let us
understand the same as here.

Section 2(14) of Indian Stamp Act 1899 defines “Instrument” includes

every document by which any right or liability is, or purports to be, created,
transferred, limited, extended, extinguished or record.

Deed means : A deed is an instrument written, signed and handed over by

one person, known as the grantor (seller), that transfers ownership of the real
property to another person, known as the grantee (buyer). In other words, a
deed is a signed legal document that grants the guarantee of certain rights
over an object, allowing them to own it.

A deed is any written legal instrument that confirms and transfers an

interest, right or property from one person to another. Simply speaking, a
deed is a form of legal instrument that consists of a legally binding
commitment to accomplish something. The most common application of
deeds is to transfer property ownership: movable or immovable, between two
parties.
Section 2(e) of Indian Contract Act defines agreement :Every promise and
every set of promises, forming the consideration for each other, is an
agreement;

Section 2(h) of Indian Contract Act defines Contract : An agreement

enforceable by law is a contract;

SALE

Section 54 to 57 of Transfer of property Act deals with sales of

Immovable property:-

Sale : -Section 54 of T.P Act 1882 defines SALE. ‘‘Sale” is a transfer of

ownership in exchange for a price paid or promised or part-paid and part-
promised.

Sale how made.—Such transfer, in the case of tangible immovable property

of the value of one hundred rupees and upwards, or in the case of a reversion
or other intangible thing, can be made only by a registered instrument. 1In the
case of tangible immovable property of a value less than one hundred
rupees, such transfer may be made either by a registered instrument or by
delivery of the property. Delivery of tangible immovable property takes place
when the seller places the buyer, or such person as he directs, in possession
of the property.

Contract for sale.—A contract for the sale of immovable property is a

contract that a sale of such property shall take place on terms settled
between the parties. It does not, of itself, create any interest in or charge on
such property.

Sale deed :-A seller transfers ownership, title, and other property rights to a
buyer in a sale deed. It is the most crucial document because it officially
documents the proof for both the buyer and the seller. The buyer and seller
must sign a sale deed before the property purchase or sale is legally
completed. Both parties must be satisfied with the terms and conditions
before a sale deed can be signed.

Mortgage

section 58 to 104 of Transfer of Property Act deals with Mortgages of

Immovable property:-

Section 58 of Transfer of Property Act : “Mortgage”, “mortgagor”,

“mortgagee”, “mortgage-money” and “mortgage-deed” defined.— A
mortgage is the transfer of an interest in specific immovable property for the
purpose of securing the payment of money advanced or to be advanced by
way of loan, an existing or future debt, or the performance of an engagement
which may give rise to a pecuniary liability. The transferor is called a
mortgagor, the transferee a mortgagee; the principal money and interest of
which payment is secured for the time being are called the mortgage-money,
and the instrument (if any) by which the transfer is effected is called a
mortgage-deed.

Mortgage deed : A mortgage deed is a legal instrument that provides all

relevant information about the loan, such as the parties involved, the property
held as collateral, the amount of loan taken, the interest rate, and so on. The
deed explains everything there is to know about the property’s interest and
title. It aids in the identification of the true owner of the mortgaged property.

LEASE

section 105 to 117 of Transfer of Property Act deals with leases of

Immovable property:-

Section 105 of Transfer of Property Act defined lease .—A lease of

immovable property is a transfer of a right to enjoy such property, made for a
certain time, express or implied, or in perpetuity, in consideration of a price
paid or promised, or of money, a share of crops, service or any other thing of
value, to be rendered periodically or on specified occasions to the transferor
by the transferee, who accepts the transfer on such terms. Lessor, lessee,
premium and rent defined.—The transferor is called the lessor, the transferee
is called the lessee, the price is called the premium, and the money, share,
service or other thing to be so rendered is called the rent.

Lease deed : A lease deed is a legal document or instrument required for the
performance of a lease. Essentially, it certifies the lessee’s ownership rights
and interests in the leased property.

Gift

section 122 to 129 of Transfer of Property Act deals with Gifts:-

Section 122 of Transfer of Property Act 1882 defined “Gift” —“Gift” is the
transfer of certain existing movable or immovable property made voluntarily
and without consideration, by one person, called the donor, to another, called
the donee, and accepted by or on behalf of the donee. Acceptance when to
be made.—Such acceptance must be made during the lifetime of the donor
and while he is still capable of giving. If the donee dies before acceptance,
the gift is void.

Gift deed A gift deed is a legal document that reflects the transfer of a gift.
Under section 122 of the Transfer of Property Act, 1822, the donor can freely
transfer an existing movable or immovable property to the donee through the
use of a gift deed. It is legal only if given out of natural love and affection,
without expecting anything in return, by a family member or friend to another
family member/friend.

ADOPTION

Section 7 and 8 of the Hindu Adoption and Maintenance Act, 1956

deals with Capacity of a male and female Hindu to take in adoption:
section 7 :Any male Hindu, having a sound mind, a major, and is eligible for
adopting a child can adopt a child. If the male Hindu is married and wants to
adopt a child he has to take the consent of his wife as well before adoption,
and the consent should be free.
Section 8:Any Female Hindu, having a sound mind, a major, and is eligible
for adopting a child can adopt a child. If the Female Hindu is married and
wants to adopt a child she has to take the consent of her husband as well
before adoption, and the consent should be free.

Adoption Deed: Adoption is the process of establishing a parent-child bond

between people who are not biologically related. The adoptive family bestows
the adopted kid the rights, privileges, and responsibilities of a child and heir. It
is a legal document in which all biological parents or parents’ rights & duties
and filiation are transferred to adoptive parents.

NEGOTIABLE INSTRUMENT
Section 4 of Negotiable instrument Act defines Promissory Note : .—A
“promissory note” is an instrument in writing (not being a bank-note or a
currency-note) containing an unconditional undertaking signed by the maker,
to pay a certain sum of money only to, or to the order of, a certain person, or
to the bearer of the instrument. Example : “I promise to pay B or order Rs.
500.”
Section 5 of Negotiable instrument Act deals with Bill of Exchange :A
“bill of exchange” is an instrument in writing containing an unconditional order,
signed by the maker, directing a certain person to pay a certain sum of money
only to, or to the order of, a certain person or to the bearer of the instrument.

WILL

Section 2(h) of Indian Succession Act 1925 defines Will :“Will” means the
legal declaration of the intention of a testator with respect to his property
which he desires to be carried into effect after his death.

Will : A Will is a legal document that grants ownership of tangible assets to

the testator's (the person who creates the will) heirs upon the testator's
passing. To prevent future legal problems between the heirs, it includes rules
for the division and disposal of property and assets. However, the testator has
the right to modify or revoke it at any moment.

The creation of rights by virtue of the above-mentioned documents will

be subject to the provisions of the Registration Act and the Indian Stamp Act.

REGISTRATION ACT 1908

Section 17 of Registration Act 1908 deals with Documents of which
registration is compulsory:
(I) The following documents shall be registered, if the property to which
they relate is situate in a district in which, and if they have been executed on
or after the date on which, Act XVI of 1864, or the Indian Registration Act,
1866, or the Indian Registration Act, 1871, or the Indian Registration Act,
1877, or this Act came or comes into force,namely,-
(a) Instruments of gift of immovable property;
(b) other non-testamentary instruments which purport or operate to create,
declare, assign, limit or extinguish, whether in present or in future, any right,
title or interest, whether vested or contingent, of the value of one hundred
rupees andupwards, to or in immovable property;
(c) non-testamentary instruments which acknowledge the receipt or payment
of any consideration on account of the creation, declaration, assignment,
limitation or extinction of any such right, title or interest; and
(d) Leases of immovable property from year to year, or for any term
exceeding one year, or reserving a yearly rent;
( e )non-testamentary instruments transferring or assigning any decree or
order of a Court or any award when such decree or order oraward purports or
operates to create, declare, assign, limit or extinguish, whether in present or
in future, any right, title or interest, whether vested or contingent, of the value
of one hundred rupees and upwards, to or in immovable property:]
Provided that the [State Government] may, by order published inthe
[Official Gazette], exempt from the operation of this sub-section any leases
executed in any district, or part of a district, the terms granted by which do not
exceed five years and the annual rents reserved by which do .not exceed fifty
rupees.
(I-A) The documents containing contracts to transfer for consideration,
any immovable property for the purpose of section 53-A of the Transfer of
Property Act, 1882, shall be registered if they have been executed on or after
the commencement of the Registration and Other Related Laws
(Amendment) Act, 2001, and if such documents are not registered on or after
such commencement then, they shall have no effect for the purposes of the
said section 53-A.]
(2) Nothing in clauses (b) and (c) of sub-section (1) applies to---
(i) any composition deed; or
(ii) any instrument relating to shares in a joint stock company, notwithstanding
that the assets of such company consist in whole or in part of immovable
property; or
(iii) any debenture issued by any such company and not creating, declaring,
assigning, limiting or extinguishing any right, title or interest, to or in
immovable property except insofar as it entitles the holder to the security
afforded by a registered instrument whereby the company has mortgaged,
conveyed or otherwise transferred the whole or part of its immovable property
or any interest therein to trustees upon trust for the benefit of the holders of
such debentures; or
(iv) any endorsement upon or transfer of any debenture issued by any such
company; or (v) any document other than the documents specified in sub-
section (I-A)] not itself creating, declaring, assigning, limiting or extinguishing
any right, title or interest of the value of one hundred rupees and upwards to
or in immovable property, but merely creating a right to obtain another
document which will, when executed, create, declare, assign, limit or
extinguish any such right, title or interest; or
(vi) any decree or order of a Court except a decree or order expressed to be
made on a compromise and comprising immovable property other than that
which is the subject-matter of the suit or proceeding]; or
(vii) any grant of immovable property by the [Government]; or
(viii) any instrument of partition made by a Revenue Officer; or
(ix) any order granting a loan or instrument of collateral security granted
under the Land Improvement Act, 1871, or the Land Improvement Loans Act,
1883; or
(x) any order granting a loan under the Agriculturists' Loans Act, 1884, or
instrument for securing the repayment of a loan made under that Act; or
[(x-a) any order made under the Charitable Endowments Act, 1890, vesting
any. property in a Treasurer of Charitable Endowments or divesting any such
Treasurer of any property; or]
(xi) any endorsement on a mortgage-deed acknowledging the payment of the
whole or any part of the mortgage-money, and any other receipt for payment
of money due under a mortgage when the receipt does not purport to
extinguish the mortgage; or
(xii) any certificate of sale granted to the purchaser of any property sold by
public auction by a Civil or Revenue Officer.
Explanation.-A document purporting or operating to effect a contract for
the sale of immovable property shall not be. deemed to require or ever to
have required registration by reason only of the fact that such document
contains a recital of the payment of any earnest money or of the whole or any
part of the purchase money.]
(3) Authorities to adopt a son, executed after the first day of January, 1872,
and not conferred by a will, shall also be registered.

Section 49 of registration Act deals with Effect of non-registration

of documents required to be registered.- No document required by section
17 or by any provision of the Transfer of Property Act, 1882 to be registered
shall
(a) affect any immovable property comprised therein, or
(b) confer any power to adopt, or
c) be received as evidence of any transaction affecting such property or
conferring such power, unless it has been registered:
PROVIDED that an unregistered document affecting immovable
property and required by this Act or the Transfer of Property Act, 1882, to be
registered may be received as evidence of a contract in a suit for specific
performance under Chapter II of the Specific Relief Act, 1877, or as evidence
of part performance of a contract for the purposes of section 53A of the
Transfer of Property Act, 1882, or as evidence of any collateral transaction
not required to be effected by registered instrument.

INDIAN STAMP ACT :

Section 35of Indian Stamp Act deals with the Instruments not duly
stamped inadmissible in evidence, etc. — No instrument chargeable with
duty shall be admitted in evidence for any purpose by any person having by
law or consent of parties authority to receive evidence, or shall be acted
upon, registered or authenticated by any such person or by any public officer,
unless such instrument is duly stamped :
Provided that—
(a) any such instrument [shall] be admitted in evidence on payment of the
duty with which the same is chargeable, or, in the case of any instrument
insufficiently stamped, of the amount required to make up such duty, together
with a penalty of five rupees, or, when ten times the amount of the proper
duty or deficient portion thereof exceeds five rupees, of a sum equal to ten
times such duty or portion;
(b) where any person from whom a stamped receipt could have been
demanded, has given an unstamped receipt and such receipt, if stamped,
would be admissible in evidence against him, then such receipt shall be
admitted in evidence against him on payment of a penalty of one rupee by the
person tendering it;
(c) Where a contract or agreement of any kind is effected by correspondence
consisting of two or more letters and any one of the letters bears the proper
stamp, the contract or agreement shall be deemed to be duly stamped;
(d) nothing herein contained shall prevent the admission of any instrument in
evidence in proceeding in a Criminal Court, other than a proceeding under
Chapter XII or Chapter XXXVI of the Code of Criminal Procedure 1898 (V of
1898);
(e) nothing herein contained shall prevent the admission of any instrument in
any Court when such instrument has been executed by or on behalf of the
Government, or where it bears the certificate of the Collector as provided by
section 32 or any other provision of this Act.

3. Method Of Interpretation Of Correct Nature Of Documents:

It is the duty of the Court to interpret a document of contract as was

understood between the parties and the prime purpose of interpretation of a
document is to ascertain the intention of the parties manifested at the time
when the document was executed.

A document has to be read as a whole and the spirit of it should be

taken note of and not to be carried away by the mere letters found therein.
Anyone who tries to rely on mere wordings but without keeping in mind the
object and spirit of the document would be considered as a person who has
thrown the baby along with the bath water. J. Chandrasekaran Vs. V.D.
Kesavan (Madras High Court) AIR 2013 (NOC) 316 (Mad.)
 Rule of interpretation of documents/ agreements:

First and foremost principle is that whenever a document is couched in

a language which is clear and definite and no doubt arises in its application to
the facts, there is no need to resort to the rules of interpretation. Rules of
interpretation of deeds are intended to ascertain, to the extent possible, the
exact meaning of a document which is not clear and definite.
To ascertain the intention of the parties, the document must be
considered as a whole. It is from the whole of the document, coupled with the
surrounding circumstances, that the general intention of the party or parties is
to be ascertained. Attempt must be made to gather the intention of the parties
from the exact words used in the deed.

When the words used in a deed are in their literal meaning

unambiguous and when such meaning is not excluded from the context and
is sensible with respect to the parties at the time of executing the deed, such
literal meaning must be taken. Where, the words used in a deed, if taken in its
literal sense lead to absurdity and inconsistency, then an interpretation to
avoid that absurdity and inconsistency should be made.

It is also a settled principle that when the intention of the maker or

makers of a deed cannot be given effect to in its full extent, effect is to be
given to it as far as possible. Where the intentions are sufficiently clear from
the deed itself, mis-recital in some part of the deed cannot vitiate it. Anything
expressly mentioned in the deed excludes another view impliedly possible.
As far as possible, effect is to be given to all words used in a document.
This is yet another important principle in the interpretation of deeds. A
document should be construed in its entirety. Further, if possible, it should be
construed so as to give effect to every word employed therein.
 The court is not at liberty to discard a word, if some meaning can be
ascribed to it. Normally, the words employed in a deed should be taken in its
ordinary sense, unless there are indications to do otherwise. It is also an
important rule that plain words should be given plain meaning.
The Supreme Court in Sant Ram v. Rajinder Lal and others (AIR
1978 SC 1601) enunciated certain principles regarding the interpretation of a
lease deed. His Lordship V.R.Krishna Iyer, J., speaking for the three Judges
bench, quoting with approval from “ Lux Gentium Lex – Then and Now, 1799”
held as follows:-
“Two rules must be remembered while interpreting deeds and statutes.
The first one is:- “in drafting it is not enough to gain a degree of precision
which a person reading in good faith can understand, but it is necessary to
attain if possible to a degree to precision which a person reading in bad faith
cannot misunderstand.”
The second one is more important for the Third World countries.
Statutory construction, so long as law is at the service of life, cannot be
divorced from the social setting.”

Further the Apex Court in Provash Chandra Dalui v. Biswanath

Banerjee (1989 Supp (1) SCC 487) laid down the following proposition:-
“’Ex praecedentibus et consequentibus optima fit interpretatio‘. The best
interpretation is made from the context. Every contract is to be construed with
reference to its object and the whole of its terms. The whole context must be
considered to ascertain the intention of the parties.
It is an accepted principle of construction that the sense and meaning of
the parties in any particular part of instrument may be collected ‘ex
antecedentibuset consequentibus;’ every part of it may be brought into action
in order to collect from the whole one uniform and consistent sense, if that is
possible.
 Conclusion

Thus, every document will not create any right, title, or obligation on the
parties unless it satisfies the provisions enumerated under various laws, and
if any right is created, the courts have to interpret the same by considering all
the contents of the document coupled with the fulfillment of all procedures
such as registration, payment of requisite stamp duty, etc and it is also settled
principal 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”…”

--------------------o---------------------------
 1

TOPIC OF DOCUMENTARY EVIDNECE

IN PARTITION SUITS,

PREPARED AND SUBMITTED BY

SMT. M.SAROJANAMMA,

PRINICIPAL JUNIOR CIVIL JUDGE, BOBBILI,

AT WORKSHOP-I TO BE HELD ON 16-09-2023,

AT VIZIANAGARAM DISTRICT.
 2

PROOF OF CERTAIN DOCUMENTS IN PARTITION SUITS

 A partition between coparceners or co-owners partakes the character of a release and

conveyance, and it cannot be said to be either a sale or an exchange. No writing would,
therefore, be necessary for a partition. Ref. AIR 1962 Mad 153

Introduction:-
A partition is a word used in legal sense of property to describe an act, by a court judgment or
otherwise, for division of property into separate portions representing the proportionate interests of the
owners of the property. It is often termed as ‘force sale’. In recent times, in sub-ordinate courts, most of
the old matters are only partition suits. To solve and settle partition suits speedily, judicial officers and
advocates need the relevant upto date case law and principles of law relating to suit for partition. This
article would be more useful and impactful with a couple of end-end examples and relevant case-laws
that demonstrate some important principles working together in this short piece of writing. Every
judicial officer and practicing lawyer are aware of the fact that while dealing with a partition suit,
certain documents with nomenclature such as ‘partition deed’, ‘partition list’, ‘family arrangement list,
‘family settlement deed’ etc would be a big question for marking as other party strongly objects to
mark such documents raising one or other reason. It is illustrious that under the Evidence Act marking
of a document is one thing. Proving the contents of a document is a different thing.

 To partition of properties, registration is necessary?

The Transfer of Property Act, which requires a registered instrument in the case of transfer of
immoveable properties, does not require that a release, surrender, or partition of immoveable properties
should be effected by a registered instrument, or even by a writing although in one sense each of them
involves a transfer of property. A partition between coparceners or co-owners partakes the character of
a release and conveyance, and it cannot be said to be either a sale or an exchange. No writing would,
therefore, be necessary for a partition. If however the parties to a release, surrender or partition embody
the transaction in writing, the question of registerability would arise under the provisions of Sec. 17 of
the Registration Act. Ref: Velusami And Anr. vs Velusami Konar And Ors., AIR 1962 Mad 153.

Significantly enough, it was observed in A. Sarojamma vs A. Parvath Reddy (Died) per LR, the nature
of rights that accrue to individuals, in a partition, cannot be equated to transfer.

Before going to discuss admissibility of certain documents relating to partition suit, it is very important
to know some fundamentals marking of documents in light of Stamp Act, Registration Act and Civil
Procedure Code,1908.

‘Document’ means:-

”In Rex V. Daye (1908) 2 King Bench at page 333, ti is held that a document is any writing or printing
capable of being made evidence, no matter on what material it may be inscribed.”
 3

”Nomenclature” is not the deciding factor:-

” That the document as a whole has to be considered for the purpose of deciding the nature of the
document. Mere nomenclature is not the deciding factor for determining the true nature of a document.
Court has to look into the entire text of the document and must come to a definite finding about the
admissibility of an unregistered family arrangement.” See. K.Veerabadran and another V. K.Venugopal
and 4 others, 2010 (3) CTC 761, at page 762.

The conventional plea in law is that an objection must be raised before the document is admitted during
the course of the trial. Howbeit, if a document which cannot be admitted into evidence because of the
impediment in law but the same is admitted into evidence without objection, always it is open to a
Court of Law to arrive at a finding that the said document is legally inadmissible one.

Section 3 of the Indian Evidence Act, 1872 mentions that ‘Document’ means any matter expressed or
described upon any substance by means of letters, figures or marks, or by more than one of those
means intended to be used, or which may be used, for the purpose of recording that matter.
Also,Section 29 of the Indian Penal Code speaks of the term ‘Document’ in a similar fashion, by
satisfying the explanation 1 and 2 therein.

Have a look at Order 13 Rule 3 CPC:-

An objection that the mode of proof is irregular or initial should be taken before the document is
admitted. When a document is exhibited before the trial Court, a party against whom it is being brought
on record is entitled to question it on the ground of its inadmissibility if after the admission of a
particular document it is later on found to be an irrelevant or inadmissible one, in the eye of law, it may
be rejected at any stage of the suit as per Order 13 Rule 3 of Civil Procedure Code.

It is the duty of a Court of Law to exclude all irrelevant or inadmissible evidence even if no objection
has been taken by the opposite side.

A question as to the admissibility of a document:-

“Where a question as to the admissibility of a document is raised on the ground that it has not been
stamped or has not been properly stamped, the party challenging the admissibility of the document has
to be alert to see that the document is not admitted in evidence by the Court. The Court has to judicially
determine the matter as soon as the document is tendered in evidence and before it is marked as an
exhibit in the case.
 4

What does Section 35 of the Indian Stamp Act say?

As per Section 35 of the Indian Stamp Act dealing with instruments not duly stamped inadmissible in
evidence etc., a Court of Law has an independent liability to decide the question of stamp duty, even if
the parties fail to take up the point as was pointed out in Gita Devi Shah Vs. Chandra Moni Karnani,
AIR 1993 Calcutta 280, 284. In Vasudevan Mullan V. Krishna Ramnath ILR (1953) Trav-Co 739 :
1953 Ker LT 533, it is held that the jurisdiction of the Court to decide the question of stamp duty under
section 35 is only incidental to the reception of the document in evidence.

Once a document has been marked as an exhibit, Section 36 of the Stamp Act comes into
operation.
Once a document has been marked as an exhibit in the case and has been used by the parties in
examination and cross-examination of their witnesses, Section 36 comes into operation. Once a
document has been admitted in evidence, as aforesaid, it is not open either to the Trial Court itself or to
a Court of Appeal or Revision to go behind that order. Such an order is not one of those judicial orders
which are liable to be reviewed or revised by the same court or a court of superior jurisdiction. AIR
1957 Raj 47, Reversed.” See. Javer Chand and Ors. Vs. Pukhraj Surana, AIR 1961 Supreme Court
1655. As a matter of fact, only when a document is formally proved and admitted in evidence be
marked as an exhibit Section 36 of the Indian Stamp Act comes into operative play which enjoins that
such an admission shall not be called into question at any stage as was held in Kuppammal Vs.
Pethanna, AIR 1956 Madras 250.

1. Mahadeo Ghose Vs. Antariyani Das, 37 Cut LT 839 : 1971 (2) CWR 191, it is held that ‘once a
document has been marked as an exhibit in the case and the trial has proceeded all along on the basis
that the document was an exhibit in the case and has been used by the parties in examination and cross-
examination of their witness, section 36 of the Stamp Act comes into operation.’

2. Is there any exception to section 36 of Stamp Act?

The bar contemplated by section 36 of the Indian Stamp Act is not applicable where an instrument has
been rejected as an inadmissible in evidence on account of a wrong order of the Court. Indeed, section
36 of the Indian Stamp Act cannot be construed in such a fashion as to override the ingredients of
Section 105 of the Civil Procedure Code, as per decision Mannalal V. Sitambernath, 1961 Jab LJ 851 :
1961 MPLJ 169.
 5

A document is already exhibited. How could the mode of proof be questioned? What is the legal
position?
Order 13 Rule 1 and 3 of Civil Procedure Code does not debar a Court from reopening the question of
admissibility of the document already exhibited and further that the mode of proof could not be
questioned. See. Prabhu Dayal Vs. Suwa Lal and Anr, AIR 1994 Rajesthan 149.

‘Objection is mode of proof of document shall be taken when it is exhibited by trial Court and not in
appeal for the first time.’ This was held in Dhruba Sahu (dead) and after him Nalumoni Sahu and Anr
Vs. V.Paramananda Sahu, AIR 1983 Orissa 24 at page 25.

If after admission of a document which is subsequently found to be irrelevant or otherwise

inadmissibility, what is its effect?

In Kissen Vs. Ram, 12 WR at page 13, it is held that ‘if after admission of a document which is
subsequently found to be irrelevant or otherwise inadmissibility, it may be rejected at any time under
the rule.’ Even an erroneous omission to object to an inadmissible evidence does not make it
admissible, if the evidence per se is inadmissible under the Indian Evidence Act .See.Miller V. Madho
23 IA 106.

Endorsements on documents. (O.13, rule 4):-

Order 13 Rule 4 speaks of endorsements on documents admitted in evidence which ought to be strictly
complied with, as opined by this Court. However, it is to be noted that the ingredients of Order 13 Rule
4 has nothing to do with the question whether a particular document has been admitted in evidence to
admit a document in evidence, the endorsement as per Order 13 Rule 4 is quite sufficient and no
express order as per Section 61 (1) of the Indian Stamp Act is not necessary as per decision Jageshar V.
Collr, AIR 1966 A 392 FB.

In law, the marking of a document as an exhibit on the side of one party does not dispense with its
proof as per decision Sait Tarajee Vs. V.Yelamarti, AIR 1971 SC 1865. Even the unproved documents
cannot be regarded as proved merely because an endorsement has been made by stamp as per decision
Firoz V. Nawabkhan, A 1928 L 342. A mere omission to make the formal endorsement does not render
a document duly proved and exhibited the inadmissible as per decision Gopal Vs. Sri Thakurji, 1943
PC 83.
 6

Document sought to be marked. No difficulty to come to the conclusion:-

In Vincent Lourdhenathan Dominique and another Vs. Josephine Syla Dominique, 2008 (1) CTC 308
wherein it is held as follows:

“As per the guidelines given by the Division Bench, by applying the same to the facts of this case and
contents of the document which is sought to be marked, there is absolutely no difficulty to come to the
conclusion that this agreement is purported to create, declare, assign, limit and extinguish right, title
and interest over the immovable properties and therefore, the document is required to be properly
stamped and duly registered under the Indian Stamp Act and the Indian Registration Act.”

Document is neither stamped nor registered. (Sec. 35 Stamp Act) In R.Deivanai Ammal (deceased by
Labour Court) and Anr Vs. G.Mennakshi Ammal and Ors, AIR 2004 Madras 529, it is held that
‘Athakshi, a document of family arrangement reduced to writing relinquishing plaintiff’s right, interest
and share in immovable properties of her father by accepting cash and jewels. The said document
which is neither stamped nor registered cannot be relied upon in view of the specific bar under Section
35 of the Indian Stamp Act.’

Unregistered document viz., Receipt etc.

In P.Shanmugasamy Vs. Kausalya alias Krishnaveni, 2004 (4) CTC 324, it is held that ‘Unregistered
document viz., Receipt for a sum of Rs.3,000/- cannot be received as evidence as it is not registered.’

Decide objection first:

In M.Chinnappan Vs. M.Ranganathan and anr, AIR 2005 Madras 105, it is held that ‘when an objection
has been taken by the other party that a document is insufficiently stamped, then, it is incumbent on
part of Court to decide objection first and then to proceed further’.

Objections regarding admissibility. How to deal?

The Hon’ble Supreme Court of India gave certain guidelines in Bipin Shantilal Pachal Vs. State of
Gujarat and another, AIR 2001 SC 1158 which are useful to deal with such situations whenever any
objection is raised regarding admissibility of any material in evidence.

1. “It is an archaic practice that during the evidence collecting stage, whenever any objection is raised
regarding admissibility of any material in evidence the court does not proceed further without passing
order on such objection.
 7

2. But the fall out of the above practice is this: Suppose the trial court, in a case, upholds a particular
objection and excludes the material from being admitted in evidence and then proceeds with the trial
and disposes of the case finally.

3. If the appellate or revisional court, when the same question is re-canvassed, could take a different
view on the admissibility of that material in such cases the appellate court would be deprived of the
benefit of that evidence, because that was not put on record by the trial court.

4. In such a situation the higher court may have to send the case back to the trial court for recording
that evidence and then to dispose of the case afresh.

5. Why should the trial prolong like that unnecessarily on account of practices created by ourselves.
Such practices, when realised through the course of long period to be hindrances which impede steady
and swift progress of trial proceedings, must be recast or re-moulded to give way for better substitutes
which would help acceleration of trial proceedings.

I till now explained the relevant provisions for marking a document in the light of provisions of
registration Act, Stamp Act and the Code of Civil Procedure,1908. Now, I will now show some
important rulings to as documents relating to suit for partition.

An instrument of partition:-

In Roshan Singh & Ors vs Zile Singh & Ors, AIR 1988 SC 881. the Supreme Court while considering
the necessity to effect registration of an instrument of partition held in paragraph 9:
“Two propositions must therefore flow:

(1) A partition may be effected orally; but if it is subsequently reduced into a form of a document and
that document purports by itself to effect a division and embodies all the terms of bargain, it will be
necessary to register it. If it be not registered Section 49 of the Act will prevent its being admitted in
evidence. Secondly evidence of the factum of partition will not be admissible by reason of Section 91
of the Evidence Act, 1872. Partition lists which are mere records of a previously completed partition
between the parties, will be admitted in evidence even though they are unregistered, to prove the fact of
partition.

(2) Partition lists which are mere records of a previously completed partition between the parties, will
be admitted in evidence even though they are unregistered, to prove the fact of partition”
 8

Unregistered partition deed:-

Non-registration of a document which is required to be registered under Sec. 17(1) (b) of the
Registered Act makes the document inadmissible in evidence under Cl. (cf) of Sec. 49 of the
Registration Act, even though such a document can be used for a collateral purpose and that oral
evidence can be adduced to establish that there was as disruption in status of the joint family.See.
Chinnappareddigari Pedda vs Chinnappareddigari, AIR 1969 AP 242. In this case, it was further
observed that it has been held in a series of decisions that an unregistered partition deed can be looked
into for the purpose of finding out whether there has been severance in status. It is unnecessary to refer
to all of them in view of the categorical pronouncement of the Supreme Court in Naini Bai Vs. GIta
Bai.

Effect of unregistered partition deed:-

The effect of unregistered partition deed and held that an unregistered partition deed is inadmissible in
evidence and cannot be looked into for the terms of partition but can be looked into for the purpose of
establishing a severance in status. See. Chinnappareddigari Pedda Muthyalareddy vs
Chinnappareddigari Venkata Reddy, AIR 1969 AP 242. Latest ruling of 2017, Moghal Sardar Hussain
Baig vs Syed Farveej Begum, CRP.No. 1115 of 2017,dated 1207-2017.

Family arrangement: How to prove it?

1. If the family arrangement is reduced to writing and it purports to create, declare, assign, limit or
extinguish any right, title or interest of any immovable property, it must be properly stamped and duly
registered as per the Indian Stamp Act and Indian Registration Act.

2. If the family arrangement is stamped, but not registered, it can be looked into for collateral purposes.
A person cannot claim a right or title to a property under the said document, which is being looked into
only for collateral purpose.

3. A family arrangement which is not stamped and not registered, cannot be looked into for any
purpose, in view of the specific bar in Section 35 of the Indian Stamp Act. A document must be read as
a whole.

4. As to the nature of transaction under the document, it cannot be decided by merely seeing the
nomenclature. Mere usage of past tense in the document should not be taken indicative of a prior
arrangement.
 9

The expression collateral purposes is vague one:

The expression collateral purposes is no doubt a very vague one and the Court must decide in each case
whether the parties who seek to use the unregistered document for a purpose which is really a collateral
one or as is to establish the title to the immovable property conveyed by the document. But by the
simple devise of calling it collateral purpose, a party cannot use the unregistered document in any legal
proceeding to bring about indirectly the effect which it would have had, if it is registered.

When the parties reduce the family arrangement in writing with the purpose of using that writing as
proof of what they had arranged and where the arrangement is brought about by the document as such,
that the document would require registration as it is, then that it would be a document of title declaring
for future what rights in what properties the parties possess.”

Family arrangement:-

A family arrangement can be arrived at orally. The terms in the family arrangement may be recorded in
writing as a memorandum of what has been agreed between the parties. The memorandum need not be
prepared for the purpose of being used as a document on which future title of the parties be founded. It
is usually prepared as a record of what has been agreed upon so that there be no hazy notions about it in
the near future. It is only when the parties reduce the family arrangement in writing with an object of
using that writing as proof of what they have arranged and, where the arrangement has been brought
about by the document as such, that the document would require registration as it is then that it will be
a document of title declaring for future what rights in what properties the parties possess.

A document is a record of a family arrangement:

In A.C.Lakshmipathy Vs. A.M.Chakrapani Reddiar, (2001) 1 MLJ 1 at page 7, it is held that where the
document is nothing but a memorandum of what had taken place and as such, it is not a document
requires compulsory registration as per Section 17 of the Registration Act. In Audesh Singh V. Sirtaji
kuar AIR 1937 Oudh 347 at page 349, it is held that where a document is a record of a family
arrangement, it is not liable to compulsory registration because it is based upon the recognition of a
pre-existing right.

A family settlement:-

In Mahadei kunwar V. Padarath Chaube AIR 1937 All. 578 at page 579, 580, it is observed that there
may be a family settlement in which there is some transfer of property as well along with the settlement
of dispute, which to the extent of such transfer would stand on a different footing. By and large, a
document styled as family arrangement is not immune from registration, in the considered opinion of
this Court. However, it is a question of fact where a family arrangement requires compulsory
registration or not, to be determined in each case based on the contents and interpretation of the
document and the surrounding circumstances of the case, by taking into consideration whether the
document in question itself creates title or it only acknowledges antecedent title to the property. If the
 10

family arrangement involved a declaration of right, then, it requires registration. See. Chandreshwar
Singh Vs. Ramchandra Singh, AIR 1973 Pat. 215 at p.223.

”A transfer of property or deed of partition”

The essential requirements of the Indian Stamp Act, Indian Registration Act, 1908 and the Transfer of
Property Act have to be complied with, where the transaction is intended to operate as a transfer. These
Acts cannot be evaded by the parties merely describing the document as a family settlement or
arrangement when, in truth and substance it is either a transfer of property or deed of partition as was
observed in Raghubir Datt Pandey Vs. Narain Datt Pandey, AIR 1930 All. 498 (2).

A memo of partial partition:-

In Kalaivani @ Devasena and another V. J.Ramu and 8 others, 2010 (1) CTC 27, it was observed as
follows:
“In a partition Suit, plaintiff sought to mark a document styled as a memo of partial partition. Objection
to the marking of the said document was raised on the ground that rights were created under the same
and therefore it is inadmissible in evidence. The Trial Court accepted the objection and rejected the
document. However High Court held that though the document is unregistered and unstamped, it can
be looked into for collateral purposes, provided the deficit stamp duty along with penalty is paid upto
date.”

Partition List:-

In Bapayya Vs. Ramakrishnayya, 1938-1 Mad L J 582, AIR 1938 Mad 568, it was held that where
unregistered partition list were sought to be put in evidence for the purpose of providing a partition
between the parties, the question to be decided was whether the documents constituted the bargain
between the parties, or they were merely the record of an already completed transaction, the question
being whether there was a sufficient dissociation of the transaction. See also. Roshan Singh & Ors vs
Zile Singh & Ors, AIR 1988 SC 881. Ambati Durgamma And Ors. vs Pericherla Jagapathiraju, 2005 (1)
ALD 607, 2005 (1) ALT 357.

Partition lists containing a list of the properties:

In Gnanamuthu Nadan v. Velukanda Nadathi, 19 Mad LW 494: (AIR 1924 Mad 542), the partition lists
containing a list of the properties which fell to the share of a sharer in a partition, though they were
signed by the co-sharers and duly attested, were held not to require registration when they contained no
words which could be construed as creating partition of status. In that case the heading of that
document gave the name of the particular sharer and set out various items as his share. The list was
signed and attested, and it bore a date. It was found in evidence that the lists were drawn by lots in the
names of individuals, to whose share the items fell. The learned Judges held that the written deed could
be treated only as minutes of agreement and not a completed partition and that, though unregistered,
could be admitted in evidence.
 11

Whether a document is a partition deed or it is only a memorandum of partition/family settlement, the

recitals as well as the surrounding circumstances of the document are to be looked into. A Court of law
is expected to dissect the transaction, scrutinise its legal implications and the legal consequences which
follow. Please see ruling of His Lordship Hon’ble Sri Justice M.Venu Gopal, Madras High Court in
Manickam vs Chinnasamy, C.R.P.PD.No.58 of 2010 and M.P.No.1 of 2010 decided on 28 July, 2011

Where the settlement is clearly of a nature which purports or operates neither to create, to assign or
extinguish any title or interest, in present or future, in immovable property, nor does it ‘declare’ any
such right, title or interest, it need not be registered. The nature of such a document is described as an
acknowledgement of an antecedent title, as per decision of Privy Council, Khunnilal V. Govind Krishna
Narain (1911) M.W.N. 432: 21 M.L.J. 645 (P.C).

Recognition of a pre-existing right:

Where a document is a record of a family arrangement, it is not liable to compulsory registration

because it is based upon the recognition of a pre-existing right. Held in 1937, Audesh Singh Vs. Sirtaji
Kaur, AIR 1937 Oudh 347:

In Smt. R. Seethamma @ Seetha vs M. Thimma Reddy, Appeal Suit No.349 of 2016, Judgment dt.27-
04-2017, it was observed that the expression instrument of partition, as originally defined in section 2
(15) of the Indian Stamp Act, 1899 did not include a Memorandum recording past partition. This is
despite the fact that a memorandum would also come within the definition of the word instrument.
Realizing that this created a loophole in the law relating to Stamp Duty, the State of Andhra Pradesh
made an amendment to the Indian Stamp Act, 1899 by A.P. (Amendment) Act 17 of 1986, w.e.f.,
16.08.1986. By this amendment, the words and a memorandum regarding past partition was inserted in
the definition of the expression instrument of partition under Section 2 (15) of the Indian Stamp Act,
1899.

Conclusion:-
The essential requirements of the Indian Stamp Act, Indian Registration Act, 1908 and the Transfer of
Property Act have to be complied with, where the transaction is intended to operate as a transfer. These
Acts cannot be evaded by the parties merely describing the document as a family settlement or
arrangement when, in truth and substance it is either a transfer of property or deed of partition It is
generally to be decided by a Court of Law then and there when an issue crops up before it as to the
admissibility of a document whether it requires compulsory registration or not under the Indian
Registration Act or whether it has not been stamped or has not been properly stamped as per Indian
Stamp Act. Indeed, the admissibility or otherwise of a document is to be decided when the same is
ushered in evidence during the conduct of trial of the suit.

A Court of law is expected to dissect the transaction, scrutinise its legal implications and the legal
consequences which follow.
 WORKSHOP­I

Paper Presentation on
RELEVANCY AND
ADMISSIBILITY OF
DOCUMENTS IN
EVIDENCE
 By
Sabbavarapu Vani
Junior Civil Judge
Srungavarapukota, Vizianagaram

Topics
1. Relevancy of documents with reference to the
provisions of Indian Evidence Act.

(Ex. Recitals in the 3rd party documents,

public documents etc.,)

2. Admissibility of documents with reference to

provisions of Stamp At, Registration Act and

other relevant laws.

Introduction:

The expressions ‘relevancy’ and ‘admissibility’ are

often taken to be synonymous. But they are not the

same. Their legal implications are different. All

admissible evidence is relevant but all relevant evidence

is not admissible. Relevancy is the genus of which

admissibility is the species. Parties rely upon various

documents in their pleadings and/or enlist such

documents in support of their pleadings or contentions.

These documents can be taken on record by the court

and read in evidence only if relied upon, produced, and

exhibited in accordance with rules and settled

principles laid down by the courts. This is a matter of

vital importance often treated casually and overlooked.

What is documentary evidence?

Documentary evidence means and includes all

documents including electronic records produced for

the inspection of the Court.

Document means any matter expressed or

described upon any substance by means of letters,

figures or marks, or by more than one of those means,

intended to be used, or which may be used for the

purpose of recording that matter.

In order to prove the documents original

document is to be produced. Contents of it are to be

proved so also signature on the same have to be proved.

When document appeals to the conscious of the Court

that it is genuine, contents of the same need not be

proved (AIR 2001 SC 318 “M. Narsinga Rao vs. State

of Andhra Pradesh”).

Proof of contents of document:

Mere marking of a document cannot be said to

be the proof of said document. The document has to be

proved in accordance with law and the same has to be

appreciated in order to ascertain the genuineness of the

document with other materials available on record. In

that context, both the parties would get ample

opportunity to counter those documents as well to

submit their arguments with reference to the evidence

already recorded by the court. S.Ravichandra vs. M/s.

Elements Development Consultants, Bengaluru,

2018 Cri. LJ 4314 (Kar).

Normally, any party who wants to prove the

content of the document is required to lead evidence by

production of the original document before the court

through its author. Under Section 61, the original

document can be presented before the Court through

the author, who created the document and it can be

proved. G. Subbaraman vs. State, 2018 Cri. LJ 2377

(Mad).

The legal position is not in dispute that mere

production and making 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’ Birendra

Kumar Jaiswal, 2003 (8) SCC 745: AIR 2004 SC 175;

see also, Alamelu vs. State represented by Inspector

of Police, 2011 (2) SCC 385: AIR 2011 SC 715.

 A document is required to be produced and

proved according to law to be called evidence. Whether

such evidence is relevant, irrelevant, admissible or

inadmissible, is a matter of trial. Hardeep Singh vs.

State of Punjab, 2014 (3) SCC 92: 2014 Cri. LJ 1118:

2014 (1) Crimes 133: AIR 2014 SC 1400: 2014 (1)

Scale 241: JT5 2014 (1) SC 412: 2014 (1) Ker. LT

336: 2014 (2) ALD (Cri) 152 (SC).

Recitals in documents:

The recitals in the document do not become a

part of the evidence. They are assertions by a person

who is alive and who might have been brought before

the Court if either of the parties to the suit had so

desired. This distinction is frequently overlooked and

when a document has been admitted in evidence as

evidence of a transaction the parties are often apt to

refer to the recitals therein as relevant evidence. Nihar

Bera vs. Kadar Bux Mohammed, AIR 1923 Cal 290.

Admissibility of carbon copy of documents:

Since the carbon copy was made by one uniform

process the same was primary evidence within the

meaning of Explanation 2 to Section 62 of the Evidence

Act. Therefore, the medical certificate was clearly

admissible in evidence. That apart, there is strong,

reliable and dependable evidence of the prosecution

witness which clearly proves that the prosecutrix was

raped by the appellant. Prithi Chand vs. State of

Himachal Pradesh, 1989 (1) SCC 432: 1989 Cri. LJ

841 (SC).

The post­mortem report is to be prepared in

triplicate by pen­carbon and in the instant case also,

the post­mortem report was prepared by pen­carbon in

one uniform process and as such, in view of the

provisions of Section 62 of the Evidence Act, such

carbon copy is primary evidence. Md. Yakub Ali vs.

State of Tripura, 2004 Cri. LJ 3315 (Guj).

Admissibility of counterpart originals:

Section 62 of Evidence Act deals with Primary

evidence. Explanation 2 says that where a number of

documents are made by one uniform process, each is

primary evidence of the contents of the rest. Under

Explanation 2, all the documents must be taken at a

time under one uniform process in which case, each of

such documents is a primary evidence of the contents

of the rest. Printing, cyclostyle, lithography are some

mechanisms which are recognized under law through

which documents can be obtained under a uniform

process. Thus, documents prepared under the uniform

process of either printing or cyclostyle or lithography

cannot be mere copies in strict legal sense of the term,

in fact, they are all counterpart originals and each of

such documents is a primary evidence of its contents

under Sections 45 and 47 of the Evidence Act. Surinder

Dogra vs. State, 2019 Cri. LJ 3580 (J&k).

Admissibility of certified copies obtained under RTI

Act.

The documents obtained under RTI Act can be

admitted as secondary evidence, as they are obtained

under a particular enactment, which fall within ambit

of by “any other law in force in India”

Section 65­B ­Admissibility of electronic evidence:

The applicability of procedural requirement under

Section 65­B(4) of the Evidence Act of furnishing

certificate is to be applied only when such electronic

evidence is produced by a person who is in a position to

produce such certificate being in control of the said

device and not of the opposite party. In a case where

electronic evidence is produced by a party who is not in

possession of a device, applicability of Sections 63 and

65 of the Evidence Act cannot be held to be excluded. In

such case, procedure under the said sections can

certainly be invoked. If this is not so permitted, it will

be denial of justice to the person who is in possession of

authentic evidence/witness but on account of manner

of proving, such document is kept out of consideration

by the court in absence of certificate under Section 65­

B(4) of the Evidence act, which party producing cannot

possibly secure. Thus, requirement of certificate under

Section 65­B(4) is not always mandatory. Accordingly,

the legal position was clarified on the subject on the

admissibility of the electronic evidence, especially by a

party who is not in possession of device from which the

document is produced. Such party cannot be required

to produce certificate under Section 65­B(4) of the

Evidence Act. The applicability of requirement of

certificate being procedural can be relaxed by the Court

wherever interest of justice so justifies. Shafhi

Mohammad vs. State of Himachal Pradesh, 2018

Cri. LJ 1714 : 2018 (1) Crimes 125: 2018 (2) Scale

235: AIR 2018 SC (Cri) 417 : 2018 (3) All Rent Cas

702 : (2018) 2 SCC 807: AIR 2018 SC 714.; see also,

Sonu @ Amar vs. State of Haryana, 2017 Cri. LJ

4352 : 2017 (8) Scale 45 : (2017) 3 SCC (cri) 663:

(2017) 8 SCC 570 : 2017 (3) Crimes 234.; Kishin T.

Punjabi vs. Suresh Kothari, 2020 (5) KCCR SN 53.

Necessity of certificate:
 An electronic record is not admissible unless it is

accompanied by a certificate as contemplated under

Section 65­B(4) of the Indian Evidence Act. Sonu @

Amar vs. State of Haryana, 2017 Cri. LJ 4352 : 2017

(8) Scale 45: (2017) 3 SCC (Cri) 663: (2017) 8 SCC

570: 2017 (3) Crimes 234.

For the purposes of taking cognizance, the

Magistrate can look into in electronic evidence which is

not accompanied by a certificate. B.S. Yediyurappa vs.

State of Karnataka, 2020 (4) KCCR 2649.

Need for production of certificate:

The High Court erred in coming to the conclusion

that the failure to produce a certificate under Section

65­B(4) of the Evidence Act at the stage when the

charge­sheet was filed was fatal to the prosecution. The

need for production of such a certificate would arise

when the electronic record is sought to be produced in

evidence at the trial. It is at that stage that the

necessity of the production of the certificate would

arise. State by Karnataka Lokayukta Police Station,

Bengaluru vs. M.R. Hiremath, 2019 Cri. LJ 3255 :

(2019) 7 SCC 515: 2019 (5) Scale 26: 2019 (4) KCCR

3641: 2019 (3) AKR 337: 2019 (5) Kant LJ 401:

2019 (2) Mad LJ (Cri) 676: AIR 2019 SC 2377: AIR

Online 2019 SC 310.

Non­production of certificate:
The Court emphasised that non­production of a

certificate under Section 65B on an earlier occasion is a

curable defect. Union of India vs. Ravindra V. Desai,

(2018) 16 SCC 272: AIR 2018 SC 2754.

The crucial test is whether the defect could have

been cured at the stage of marking the document.

Applying this test to the present case, if an objection

was taken to the CDRs being marked without a

certificate, the Court could have given the prosecution

an opportunity to rectify the deficiency. Sonu @ Amar

vs. State of Haryana, (2017) 8 SCC 570: AIR 2017

SC 3441: (2017) 3 SCC (Cri) 663.

Whether tape recorded statement is admissible in

evidence?

Yes. The person who speaks must identify that it is his

voice. Accuracy of the recording must be proved. Such

statement must be free from tampering. Subject matter

of statement must be relevant (AIR 1968 SC 147

“Yusufalli Esmail Nagree vs. State of Maharashtra”.

Court should guard against Bentri Loquism i.e.

imitation of voice. Reference may be made to latest

decision reported in AIR 2010 SC 965 Tukaram S.

Dighole vs. Manikrao Shivaji Kokate.

Whether video conferencing is permissible?

Yes: So, far as video conferencing is concerned it

is a latest technological invention. It enables the Court

to record the evidence without bringing the accused to

Court. Evidence recorded through video conferencing is

admissible in evidence (AIR 2003 SC 2053 “State of

Maharashtra vs. Praful B. Desai” Headonte D).

Whether call records of mobile phone received from

the operator is admissible in evidence?

Yes: It is admissible. Refer the decision reported

in AIR 2005 SC 3820P State (N.C.T. of Delhi) vs. Navjot

Sandhu", wherein, at, it is held at para nos. 15,18,19

that:

“The call records relating to cellular phones are

admissible and reliable and rightly made use of by the

prosecution. In the instant case the computer, at the

first instance, instead of recording the IMEI number of

the mobile instrument, had recorded the IMEI and cell

ID (location) of the person calling/called by the

subscriber. The computer rectified this obvious error

immediately and modified the record to show the

correct details viz., the IMEI and the cell ID of the

subscriber only. The document is self­explanatory of the

error. A perusal of both the call records with reference

to the call at 11 : 19 : 14 hours exchanged between

9811489429 (Shaukat's) and 9811573506 (Afzal's)

shows that the said call was recorded twice in the call

records. The fact that the same call has been recorded

twice in the call records of the calling and called party

simultaneously demonstrates beyond doubt that the

correctness or genuineness of the call is beyond doubt.

Further, on a comparative perusal of the two call

records, the details of Cell I.D. and IMEI of the two

numbers are also recorded. Thus, same call has been

recorded two times, first with the cell ID and IMEI

number of the calling number (9811489429). The same

explanation holds good for the call at 11 : 32 : 40

hours. Far from supporting the contention of the

defence, the above facts, evident from the perusal of the

call records, would clearly show that the system was

working satisfactorily and it promptly checked and

rectified the mistake that occurred. It was not

suggested nor could it be suggested that there was any

manipulation or material deficiency in the computer on

account of these two errors. Above all, the printouts

pertaining to the call details exhibited by the

prosecution are of such regularity and continuity that it

would be legitimate to draw a presumption that the

system was functional and the output was produced by

the computer in regular use, whether this fact was

specifically deposed to by the witness or not.”

Insufficiently Stamped Documents – Effect of

MarkingWithout Objection

Insufficiency of Stamp: Sec. 35 of the Indian Stamp Act

reads as under:

 “35. Instruments not duly stamped inadmissible

in evidence, etc.­ No instrument chargeable with
duty shall be admitted in evidence for any
purpose by any person having by law or consent
of parties authority to receive evidence, or shall
be acted upon, registered or authenticated by any
such person or by any public officer, unless such
instrument is duly stamped:
 Provided that any such instrument shall be
admitted in evidence on payment of the duty with
which the same is chargeable or, in the case of an
instrument insufficiently stamped, of the amount
required to make up such duty, together with a
penalty of five rupees, or, when ten times the
amount of the proper duty or deficient portion
thereof exceeds five rupees, of a sum equal to ten
times such duty or portion; … ….. ….”

Privy Council in Ram Rattan v. Parma Nath,AIR

1946 PC 51, held that section 35 of the Stamp Act

prohibited the unstamped (or inadequately stamped)

document from being looked at even for any collateral

purpose, as it enacts that no instrument chargeable

with duty shall be admitted in evidence ‘for any

purpose’. The unstamped (or inadequately stamped)

document becomes admissible on payment of penalty

under Stamp Act or on payment of the stamp duty after

impounding.

The Apex Court held in Javer Chand v. Pukhraj

Surana, AIR 1961 SC 1655, as under:

 “Where a question as to the admissibility of a

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

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

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

 “From a plain reading of the aforesaid provision

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

The Apex Court upheld the observation of the MP

High Court in Writ Petition No. 6464 of 2008, overruling

the impugned judgment (Laxminarayan v. Omprakash

2008 (2) MPLJ 416). The High Court observed in Writ

Petition as under:

 “8. A document would be admissible on basis of

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

Impounding of Documents – When Produced or

When Exhibited

In Yogesh Kumar Sikka v. Monika (2019) the P &

H High Court held as under:

 “12. Court cannot say that it would impound the

document only when the document is tendered in
evidence for marking. There may be instances
where duty and penalty payable may be very high
and the party may not choose to rely upon such
insufficiently stamped document in order to avoid
stamp duty and penalty. In such circumstances,
it would result in loss of revenue to the
exchequer. The power of impounding a document
is to collect stamp duty and penalty whenever
there is an escape of duty. Therefore, when it is
brought to the notice of the Court that a
document is insufficiently stamped, the Court
exercising its power under S. 33 of the Act has to
pass an order at the first instance for impounding
 the document. Though there is a discretion vested
in the Court to exercise powers under S. 33 and
34 of the Act, no Court can hold that it would
wait till the document is tendered in evidence. In
such circumstances, there may be chances of loss
of revenue to the exchequer.”

Should the court sit silent and question after

marking unstamped document unopposed

Karnataka High Court pointed out in Nanda Behera v.

Akhsaya Kumar Behera, 2017 AIR (CC) 1893, that

once the Court, rightly or wrongly, decides to admit the

documents in evidence, so far as the parties are

concerned, the matter is closed. As stated earlier, this

principle is followed in the following cases, with respect

to insufficiently stamped document:

 Pankajakshan Nair v. Shylaja: ILR 2017­1 Ker

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

Our Apex Court held in Javer Chand v. Pukhraj

Surana, AIR 1961 SC 1655, as under:

 “Once a document has been marked as an exhibit

in the case and has been used by the parties in
 examination and cross examination of their
witnesses, Section 36 of the Stamp Act will come
into operation. Once a document has been
admitted in evidence, it is not open either to the
Trial Court itself or to a Court of Appeal or
Revision to go behind that order. Such an order is
not one of those judicial orders which are liable to
be reviewed or revised by the same court or a
court of superior jurisdiction.”
The Karnataka High Court held in Smt.

Savithramma R.C v. M/s. Vijaya Bank, AIR 2015 Kar

175, as under:

 “6. From the aforesaid statutory provisions and

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

and incongruent.

1. There is a duty upon every Judge not to admit a

document that is not duly stamped even if no

objection to mark it.
2. The court should not exclude an insufficiently

stamped (or unstamped) deed once marked

without objection.

Though Smt. Savithramma R.C v. M/s. Vijaya

Bank, AIR 2015 Kar 175, discussed the position with

great clarity, still, it is not definite whether the court

should sit silent and mark the document if it is not

opposed; and to raise its eye­brows after marking it

unopposed. It is yet to be solved after considering all

relevant aspects.

Unregistered Documents – Effect of Marking

Without Objection

Under section 49 of the Registration Act, if a

document required to be registered is not registered, it

is not admissible in evidence; and such unregistered

document can only be used as an evidence of collateral

purpose.

With respect to Unregistered (Necessarily

Registrable) Documents it is held by the Apex Court in

K.B. Saha and Sons Private Limited v. Development

Consultant Ltd, (2008) 8 SCC 564: AIR 2008 SC

(Supp) 850, as under:

 “34. From the principles laid down in the various

decisions of this Court and the High Courts, as
referred to here­in­above, it is evident that :
 A document required to be registered is not
admissible into evidence under section 49 of the
Registration Act.
 Such unregistered document can however be
used as an evidence of collateral purpose as
provided in the Proviso to section 49 of the
Registration Act. ….”

In the light of the Supreme Court decision in K.B.

Saha and Sons Private Limited, it appears that the

observation of the Karnataka High Court in Nanda

Behera v. Akhsaya Kumar Behera, 2017AIR (CC)

1893, that once the Court, rightly or wrongly, decides

to admit the documents in evidence, so far as the

parties are concerned, the matter is closed, is not

applicable to unregistered (compulsorily registrable)

documents.

However, the Calcutta High Court in Dipak

Kumar Singh v. Park Street Properties (P) Limited,

AIR 2014 Cal 167, distinguished K.B. Saha & Sons

Private Limited, (2008) 8 SCC 564, and other

decisions saying that ‘the question of admissibility of a

document, which had been admitted in evidence, was

not taken up for consideration’ in those decisions. The

High Court relied on Javer Chand v. Pukhraj Surana,

AIR 1961 SC 1655 (question as to admissibility on the

ground that it has not been stamped), which held that

once a document had been marked as an exhibit in a

case and the trial had proceeded all along on the footing

that the document was an exhibit in the case and had

been used by the parties in examination and cross­

examination of their witnesses, it was not open either to

the trial court itself or to a court of appeal or revision to

go behind that order.

The other decisions referred to and distinguished

in Dipak Kumar Singh v. Park Street Properties (P)

Limited are the following: Ram Kumar Das v. Jagdish

Chandra Deo, Dhabal Deb: AIR 1952 SC 23, Satish

Chand Makhan v. Govardhan Das Byas: (1984) 1 SCC

369, Anthony v. K.C. Ittoop: (2000) 6 SCC 394,

Surya Kumar Manji v. Trilochan Nath: AIR 1955 Cal

495, Kunju Kesavan v. M.M. Philip: AIR 1964 SC

164, Prasanta Ghosh v. Pushkar Kumar Ash: 2006

(2) CHN 277.

Unregistered Partition Deed Admissible to see
Severance & No Suit for Partition lie

In Chinnapareddigari Pedda Muthyalareddy v.

Chinnappareddigari Venkatareddy,AIR 1969 AP 242,

unregistered partition lists were drawn up showing the

properties allotted to the respective sharers. The lists

were construed as partition deeds and were held by the

trial Court to be inadmissible in evidence for proving

division by metes and bounds. No oral evidence was

held to be admissible under section 91 of the Evidence

Act to prove the factum of partition or the nature of

possession. In appeal the Andhra Pradesh High Court

(FB­Jaganmohan Reddy, C.J.) held that the

unregistered partition deed was admissible not for

proving terms of the partition or as the source of title,

but for the purpose of showing that there was a

disruption (division/severance) in status and that no

suit for partition would lie on the basis that the

properties were still joint family properties. This

decision is relied on in Booraswami v. Rajakannu,

1978­1 MLJ 248; and held further, relying on K. Kanna

Reddy v. K. Venkata Reddy, AIR 1965 AP 274, that for

determining status and the nature of the possession

oral evidence was also admissible (for proving the

factum of partition).
Collateral Purpose

Section 49 of the Registration Act expressly states

admissibility of unregistered documents in evidence for

collateral purposes. The word ‘collateral’ signifies

something beyond or parallel. According to Law Lexicon

it means “that which is by the side, and not the direct

line; that which is additional to or beyond a thing”

(Amit Khanna. Vs Suchi Khanna, 2008­10 ADJ 426;

2009­75 AllLR 34; 2009­1 AWC 929).

The Supreme Court observed in Sri Venkoba Rao

Pawar v. Sri S. Chandrashekar, AIR 2008 SCW 4829,

that the collateral purpose/transaction must be

independent of, or divisible from the transaction which

requires registration. In Yellapu Uma Maheswari v.

Buddha Jagadheeswararao, (2015) 16 SCC 787, the

Apex Court held that in the suit for declaration of title,

an unregistered document can be relied upon for

collateral purposes i.e. to prove his possession,

payment of sale consideration and nature of possession;

but not for primary purpose i.e. sale between the

plaintiff and defendant or its terms.

The Apex Court in K.B. Saha and Sons

Private Limited, 2008 AIR SCW 4829, has laid down

the principle in respect of the collateral purpose.

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

1. A document required to be registered is not

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

Conclusion

From the above, it is definite that the correct legal

position emerges is the following:

(i) Even when a document is technically admitted

in court, the probative value thereof will always be a
matter for the court and it is depended upon the nature
of each case.

(ii) Whenever the court considers:

 (a) mere marking of a document on admission

will not amount to proof, or evidence of the

contents of the document or its truth; or
 (b) the probative value of a document ‘marked

without objection’ is low or nil, for want of proper

proof; or
 (c) there is a formal defect to the document for it
is a secondary evidence because it is produced
without adducing ‘foundational evidence’; then,
before taking an adverse stance as to proof in this
count, the court should give an opportunity to the
party who relies on the document to cure the
deficiency.
 PAPER PRESENTATION
ON THE TOPIC OF
Relevancy of documents with reference to the provisions
of Indian Evidence Act. (Ex: Recitals in the 3rd party
documents, Public documents etc)
Admissibility of documents with reference to provisions of
Stamp Act, registration Act and other relevant laws.
FOR WORK SHOP SESSIONS- III,
VIZIANAGARAM DISTRICT.
BY
G. YAGNA NARAYANA,
SENIOR CIVIL JUDGE,
PARVATHIPURAM.

Relevancy of documents with reference to the provisions of Indian

Evidence Act.

Admissibility of documents with reference to provisions of Stamp

Act, Registration Act and other relevant laws.

WHAT IS DOCUMENT?

As per the definition in Section 3 ‘document’ – “means any matter

expressed or described on any substance by means of letters, figures or
marks, or by more than one of those means, intended to be used, or which
may be used, for the purpose of recording that matter”. The definition of
‘document’ in Indian Penal Code Section 29. “Under the term document are
included all material substances on which the thoughts of men are
represented by writing or any other species of conventional mark or symbol.
Thus the wooden score on which bakers, milkmen indicate by notches the
number of loaves of bread or quarts of milk supplied to their customers are
documents as much as the most elaborate deeds”.

CLASSIFICATION OF DOCUMENTS

1. Public documents (Section 74 of Evidence Act).

2. Private Documents (Section 75 of Evidence Act.)
3. Electronic Record (Information Technology Act. 2000.)
 -2-

Admissibility of documents with reference to provisions of Stamp

Act, Registration Act and other relevant laws.

There is a difference in consequences between an

unregistered document and an unstamped document. In the case of an
unregistered document though it is inadmissible in evidence, as per the
proviso to Section 49 of Registration Act, 1908, it is admissible for certain
limited purposes including a collateral purpose. A collateral purpose can
broadly be stated to be a purpose other than enforcing the terms of the
unregistered deed. In the case of an unstamped document it is inadmissible in
evidence as per Section 35 of Stamp Act “for any purpose”. If the instrument
is not a pronote or other document mentioned in Section 35 and if it is
unstamped or under stamped and is filed into court, the court can do one or
two things. It can impound the document under Section 33 of Stamp Act,
except in a criminal proceeding [other than a proceeding under Chapter XII or
Chapter XXXVI of Criminal Procedure Code, 1973]. As to how the impounded
document should be dealt with is mentioned in Section 38 of Stamp Act. The
other thing the court can do is to collect the penalty under Section 33 of
Stamp Act and then receive it in evidence When once the document is
inadmissible the terms also cannot be proved by oral evidence under Section
91 and Section 92 and Section 92 of Evidence Act [Ballam Venkataiah v.
Venumudda Venkata Ramana Reddy, AIR 1985 AP 26], unless the defect of
stamp is cured.

SCOPE AND PRINCIPLE:

Documents requiring registration are enumerated or listed out in

Section 17 of
the Registration Act, 1908. The provision regarding registration is also
contained in other Acts like:

Indian Contract Act, 1872 – Section 25.

Indian Easements Act, 1882 – Section 47.
Indian Limitation Act, 1963 – Article 55 (compensation under a
registered deed). Indian Trusts Act, 1882 – Section 5.
Specific Relief Act, 1963 – Section 31.
Stamp Act, 1899.

Transfer of Property Act 1882 – Sections 3,4,5,6,54,58, 59-A,

100,105,106,117,118,122 & 125.

Section 49 Registration Act, 1908 is a disabling Section because it disables

certain documents from being given effect to in case the document is not
registered. Section 49 consists of two parts.

(1) The first part says that no document required to be registered under
Section 17 of Registration Act or any of the provisions of Transfer of
Property Act, 1882 shall affect any immovable property comprised
therein.
 (2) The second part prohibits the unregistered document being used in
evidence except for the purpose mentioned in the proviso.

-3-

Proviso to Section 49.

Under the proviso the unregistered deed which requires registration

either under Registration Act, 1908 or Transfer of Property Act, 1882
can be used as, ------

(1) A contract for specific performance.

(2) For a plea of part performance under Section 53-A of Transfer

of Property Act (except in Andhra State).

(3) For Proof of any collateral transaction that does not require
registration.

Act 48 of 2001.

Under Act 48 of 2001, the use of unregistered deed for purpose of

Section 53-A is taken away. Amendments is made to Section 49 omitting the
operation of 53-A and amendment is made to Section 17 of Registration Act
also stating that contracts of immovable property of Rs.100/- of upwards
[A.P.Act 4 of 1999] and contracts contemplated under Section 53A of Transfer
of Property Act also require registration [Act 48 of 2001].

UNSTAMPED DOCUMENTS:

Under Section 35 of Stamp Act, if a document requiring stamp but is

unstamped or under stamped, the document is totally inadmissible in
evidence for “any purpose”. In this sense the provision is more rigorous than
in the case of an unregistered document which can be used for a collateral
purpose.

As per Section 35 itself except in the case of a promissory note and

a few other instruments in all other cases after paying penalty the document
can be admitted in evidence. An unstamped or under stamped document
can be admitted in evidence. An unstamped or under stamped document
can be filed before the collector for adjudication as to proper stamp under
Section 31 of Stamp Act. The Collector after collecting the stamp duty issues
a certificate under Section 32 and endorses the same on the instrument. This
is called certificate by collector and the document becomes admissible. But if
the document is filed in court without curing the defect of stamp, the court
may impound the same under Section 33 or collect penalty. After payment of
penalty only the document becomes admissible in evidence.

ILLUSTRATIVE CASES:

Unstamped pronote:
 In L. Sambasiva Rao v. T Bala Kotayya, AIR 1973 AP 342, a seven
Judge bench of A.P. High Court held that if the instrument does not embody
all the terms of the contract and if there is an allegation to that effect in
plaint and proof in evidence, suit is maintainable on the original cause of
action of lending and borrowing. Otherwise,

-4-

the pronote is not admissible. Oral evidence is prohibited under Sections 91

and 92 of Evidence Act and one cannot rely on Section 70, Contract Act as
compensation for money had and received and the suit is liable to be
dismissed. In case it is executed as a collateral security it was held the suit is
maintainable on the original loan. As per Sambasiva Rao J (one of the 7
Judges) if the pronote is admitted in evidence without objection, no objection
can be raised under Section 36 of Stamp Act at a subsequent stage of the
suit or in appeal. Vupudi v. Pulavarthi, AIR 1971 SC 1070 is followed; Sec
also, B. Venkataiah v. V. Venkataramana Reddy, AIR 1985 AP 26; Kunduru
Seethamma v. Namana. Nageswararao, 1998 (4) ALD 375: 1997 (6) ALT 9].

In Dokka Joganna v. Upadrasta Chayadevi, 1997 (6) ALD 224: 1997

(3) APLJ 191 (HC): 1997 (5) ALT 628, defendant sent a letter to plaintiff
acknowledging receipt of money and agreeing to repay the same on
demand. The Court held that though the letter contained the ingredients of a
pronote, it is not a pronote as the parties did not intend it to be a pronote.

Certificate by collector cannot be questioned under Section 35 (e) of

Stamp Act. [Sunkari Malakondiah v. Sreekaram Malkondiah, 1998 AIHC 2873:
1998 (2) ALD 129: 1998 (1) APLJ 205: 1998 (1) LS 248: 1998 (2) ALT 41]. Suit
on pronote insufficiently stamped marked as an exhibit without objection.
The proposition that once it is marked no objection can be raised under
Section 36 of Stamp Act may be true in respect of other documents but not a
pronote. Suit is not maintainable. [Kunduru Seethamma v. Namana.
Nageswararao, 1998 (4) ALD 375: 1997 (6) ALT 9].

Document other than pronote. Court is competent to impound and

impose penalty. It is up to the party to pay penalty and get the document
admitted in evidence. Sections 35 and 38 of Stamp Act are referred to.
[Chintalapudi Annapurnamma v. A. Punnayya Sastry, 2000 (3) ALD 649: 2000
(2) APLJ 290: 2000 (3) ALT 159 (DB)].

Document is a bond. It was admitted in evidence without objection.

Subsequently it can not be questioned on the ground of insufficient stamp
under Section 36 of Stamp Act. [Montari Industries v. Sri thirumala
Venkateswara Agencies, 2000 (1) ALD 504 (DB)].

Suit on pronote – Marked without objection – Defendant cannot

subsequently raise objection. [Palevela Suryanarayana v. Mosa Kamaraju,
1998 (5) ALD 1998 (5) ALT 1].

This ruling is contra to the view taken in Kunduru Seethamma v.

Namana Nageswara Rao, 1997 (6) ALT 9: 1997 (3) APLJ 306: 1998 (4) ALD
375, quoted earlier. Both are verdicts of learned single Judges of the High
Court of A.P. The observation of Lord Macaulay who as president headed the
first Indian Law Commission constituted in 1834 and drafted the Indian Penal
Code are appropriate. Regarding the guidelines for drafting the Indian Penal
Code Macaulay observed,

-5-

“Our principle is simply this; uniformity when you can have it; Diversity
when you must have it; but in all cases certainty” – unquote [Ratanlal’s
Indian Penal Code – 27th Edition – Page. IV – Introduction].

Divergence of Judicial opinion is not uncommon. But subsequent

certainty in law is necessary for progress.

Section 35 Stamp Act.

Document insufficiently stamped is inadmissible “for any purpose”.

The meaning of the expression “for any purpose” was explained in Sanjeeva
Reddy v. Johanputra Reddy, 1972 (1) ALT 232 in which it was held,

“No part of a document be it a single sentence, a word or signature

which is chargeable with duty can be received in evidence, even if that
document is sought to be admitted for a collateral purpose”.

The above ruling is followed by a single Judge of the A.P. High Court
in Rachakonda Ramakoteswara Rao v. M/s. Manohar Fuel Centre, 2002 (3) LS
159: 2002 (2) An.WR 725.

In Nuvvuru Venkata Subba Reddy v. Sk. Md. Hussain, 2002 Supple

(1) ALD 610: 2002 (1) An.WR 393 dealing with Sections 33,35 and 38 of
Stamp Act, the A.P. High Court held that if the party files an application
before the matter is ripe for hearing to send the document to collector for
levy of stamp duty, court cannot refuse to do so and purport to levy penalty.

ADMISSIBILITY OF UNREGISTERED DOCUMENT

As per Section 49 of Registration Act, 1908, a document requiring

registration under Section 17 of Registration Act, 1908 or by any of the
provisions of Transfer of Property Act, 1882,

(a) Affect any immovable property comprised therein,

(b) Confer any power to adopt, or
(c) Be received as evidence of any transaction affecting such
property or conferring such power unless it has been registered.

Proviso to Section 49
There is a proviso to Section 49 of Registration Act, 1908 which
says that an unregistered document requiring registration under Registration
Act or Transfer of Property Act may be received as:-----
 (1)Evidence of a contract in a suit for specific performance under
Chapter II of Specific Relief Act, 1877.
The provision enabling the use of unregistered deed under
Section 53-A is taken away by Act 48 of 2001, S.6.

-6-

(2)As evidence of any collateral transaction not required to be

effected by registered instrument.
Illustrative Cases

Sections 49 and 17 of Registration Act - Unregistered document

cannot be received in evidence. If it is received party opposing can
plead that it is inadmissible in evidence [P. Sadananda Reddy v. C.
Venkata Ratnam, 2000 (3) ALD 385: 2000 (3) ALT 229].

Section 49 Proviso of Registration Act – Sections 33, 35 and

37 of Indian Stamp Act, 1899 – Suit for specific performance –
Unregistered sale deed – Can be impounded under Section 33 of Stamp
Act and admitted in evidence under Section 37 of Stamp Act as a
contract. Rejection of the document by lower Court as inadmissible in
evidence is unsustainable. Direction is given to lower court to follow the
procedure prescribed for impounding the document under Stamp Act.
[Ummadi Subramanyam v. Ukka Dhanamma, 1999 (5) ALD 26: 1999 (4)
ALT 706: 1999 (2) LS 326].

Registration Act, 1908, Section 49 – Evidence Act, Section 91 –

Transfer of Property Act, Section 59 – Mortgage by deposit of title deeds
– How effected? – C.P. Mutyala Reddy v. C. Venkata Reddy, 1969 (1) APLJ
1 (FB) – Unregistered partition deed – Document is not admissible to
prove the terms – The document though unregistered can be looked into
for the purpose of proving a severance in status. The severance will
affect the nature of possession. [AIR 1916 PC 104 and IRaghavamma v.
Chenchemma, AIR 1964 SC 136 are referred]. Observation of Subba Rao
J. (as he then was) consisting of one sentence in Rukhama Bai v. Laxmi
Narayana, AIR 1960 SC 335 at 338 – “Doubtless an unregistered
document can effect separation in status” is followed: When the
document is not admissible, oral evidence is prohibited under Section
91 and Section 92 of Evidence Act, only to prove the terms and not the
existence of a fact as a contract. Mortgage by deposit of title deeds is
effected orally or by a deed. Deposit of title deeds forms an inextricable
part of the transaction whether it is done under the oral contract or by
deed. The Full Bench in the present case [C.P. Mutyala Reddy v. C.
Venkata Reddy, 1969 (1) APLJ 1 (FB)] consisting of 5 Judges was formed
to resolve the conflict between two other Full Benches.

Unregistered partition deed is inadmissible in evidence to

prove the terms of the deed or in other words to prove which property
fell to whose share. However it is admissible to prove the collateral
purpose of proving the factum of partition and nature of the possession.
 [(Smt.) Kaheeda Moin v. Md. Iqbal Ali 1998 (5) ALD 663: 1998 (5) ALT
704].

Mortgage by deposit of Title Deeds – pronote was executed

on 30-5-1983. Title deeds also were deposited on same day.
Subsequently memorandum in question was executed on 2-6-1983 .
Held: It amounts to creating a mortgage by deposit of title deeds. For
want of registration the document cannot be admitted in evidence.
[Thota Venkata Narasamma v. S.V.M. Srinivasan, 1996 (3) ALT 605: 1996
(3) ALD 887].

-7-

Amount borrowed under pronote and title deeds were deposited with
promisee. Subsequently memorandum was executed evidencing earlier
deposit of title deeds. Need not be registered and it is admissible.
[Padmavatamma v. B. Pardhasaradhi, 1996 (4) ALD 1146].

Unregistered lease deed requiring registration can be admitted

as proof of part performance under Section 53-A of Transfer of Property
Act as held by Supreme Court in aneklal v. Hormusji, AIR 1950 SC 1:
1950 SCR 75, [St. Mary Edu. Society v. Qutubuddin, 2002 (3) CCC 360
(AP): 2002 (4) ALT 221].

In this case the lease deeds are dated 11.8.1986 and 2.10.1987 prior
to the
amendment of the proviso to Section 49 of Registration Act (Act 48 of
2001).Under this amendment even the contract to plead part performance
requires registration. Hence, after the above Act 48 of 2001 unregistered
contract of sale of immovable property cannot be admitted as evidence of even
part performance.

Section 49 and proviso of Registration Act 1908 – Proving

quantum of rent is not a collateral purpose. [S.K. Agarwal
v. Dr. M. Venkateswarlu, 2002 (3) ALD 186: 2002 (2) An.WR
639 (AP)].

Gift of immovable property made to the bride at the time

of marriage (called in Andhra State as ‘Pasupu Kunkuma’ gift)
requires registration under Section 17 of Registration Act and
Sections 122 and 123 of Transfer of Property Act. [G. Jayaram
Reddy v. M. Padmavathamma, 2001 (5) ALT 130 (FB) –
Muchayalareddy v. V. Venkatareddy, AIR 1980 AP 139: 1979 (2)
ALT 6 is overruled; P. Buchireddy v. A. Sudhakar, 1999 (2) ALD
327: AIR 1999 AP 188: 1999 (2) ALT 192 is also overruled].
 In Veeramreddy Chandrarao v. State, 2002 (2) An. WR
69 the same question arose whether a gift of immovable property
to daughter at the time of marriage towards ‘Pasupu Kunkuma’
requires registration or not. The learned single Judge held whether
the Full Bench ruling mentioned above G. Jayaram Reddy v. M.
Padmavathamma, 2001 (5) ALT 130 (FB) is binding authority or
not has to be decided in view of Guramma v. Mallappa, AIR 1964
SC 510 and ordered that the matter may be referred to an
appropriate Bench.

Lease deed for 11 months – Does not require registration. [K.

Rachamma v. Bimal Bai, 1996 (2) ALD 379: 1996 (2) ALT 111].

-8-

[Section 49 of the Registration Act]

Section 49: Registration Act, 1908.

“Effect of non registration of documents required to be registered:-

No document required by Section 17 or by any provision of the Transfer of
Property Act, 1882, to be registered shall—

(a) effect any immovable property comprised therein,

(b) confer any power to adopt, or
© be received as evidence of any transaction affecting such property or
conferring
such power,

unless it has been registered:

Provided that an unregistered document affecting immovable property

and required by this Act, or Transfer of Property Act, 1882, to be registered
may be received as evidence of a contract in a suit for specific performance
under Chapter II of Specific Relief Act, 1877, or as evidence of any collateral
transaction not required to be effected by registered instrument”.

Place: Parvathipuram Submitted By

Date: 19.08.2023. SENIOR CIVIL JUDGE,
PARVATHIPURAM
 Relevency and admissibility of Documents in Evidence

Document means any matter expressed or described upon any

substance by means of letters, figures or marks, or by more than one of
those means, intended to be used, or which may be used for the purpose
of recording that matter.
In order to prove the documents, original document is to be
produced.
Contents of it are to be proved so also signature on the same have to be
proved.

1. Proof of contents of document: Mere marking of a

document cannot be said to be the proof of said document. The
document has to be proved in accordance with law and the same has
to be appreciated in order to ascertain the genuineness of the
document with other materials available on record. In that context,
both the parties would get ample opportunity to counter those
documents as well to submit their arguments with reference to the
evidence already recorded by the court. (S. Ravichandra vs. M/s.
Elements Development Consultants, Bengaluru, 2018 Cri. LJ 4314
(Kar)).
2. Normally, any party who wants to prove the content of the
document is required to lead evidence by production of the original
document before the court through its author. Under Section 61, the
original document can be presented before the Court through the
author, who created the document and it can be proved. (G.Subbaraman
vs. State, 2018 Cri. LJ 2377 (Mad).)
3. The legal position is not in dispute that mere production and
making 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. (Narbada Devi Gupta Vs. Birendra
Kumar Jaiswal and Alamelu vs. State represented by Inspector of
Police, 2011 (2) SCC 385: AIR 2011 SC 715).
4. A document is required to be produced and proved according to
law to be called evidence. Whether such evidence is relevant, irrelevant,
admissible or inadmissible, is a matter of trial. (Hardeep Singh vs.
State of Punjab, 2014 (3)
SCC 92: 2014 Cri. LJ 1118: 2014 (1) Crimes 133: AIR 2014 SC
1400: 2014
(1) Scale 241: JT5 2014 (1) SC 412: 2014 (1) Ker. LT 336: 2014 (2)
ALD (Cri)
152 (SC)).
5. When document appeals to the conscious of the Court that it is
genuine, contents of the same need not be proved (AIR 2001 SC 318
“M. Narsinga Rao vs. State of Andhra Pradesh”).
6. The recitals in the document do not become a part of the
evidence. Unless the person recited is brought before court when such
person is alive . (Nihar Bera vs. Kadar Bux Mohammed, AIR 1923 Cal
290).
7. Admissibility of carbon copy of documents. Since the carbon copy
was made by one uniform process the same was primary evidence within
the meaning of Explanation 2 to Section 62 of the Evidence Act. (Prithi
Chand vs. State of Himachal Pradesh, 1989 (1) SCC 432: 1989 Cri. LJ
841(SC)).
The postmortem report is to be prepared in triplicate by pen-carbonand in
the instant case also, the postmortem report was 6 prepared by pen-
carbon in one uniform process and as such, in view of the provisions of
Section 62 of the Evidence Act, such carbon copy is primary evidence. Md.
Yakub Ali vs. State of Tripura, 2004 Cri. LJ 3315 (Guj).
8. Proof of execution of documents:
1. Proof of handwriting: Except when judicial notice is taken of
official signatures, the handwriting or signature of unattested
documents must be proved. If a document is alleged to be signed or
to have been written wholly or in part by any person, the signature
or the handwriting of so much of the document as is alleged to be in
that person’s handwriting must be proved to be in his handwriting.
This can be done in the following ways:
a) By calling the writer;
b) by an expert;
c) by a witness who is familiar with the handwriting of the writer;
(AIR 1983 SC 684 “State of Bihar vs. Radha Krishna Singh”)
d) by comparison of the disputed writing, signature or seal with
some other admitted or proven writing, signature or seal of the
person; or
e) by admission of the party against whom the document is
tendered. Proof of sealing:

2. The sealing of a document can be the subject of judicial notice,

proof or presumption. When the seal of a foreign notary is put on a
document, a presumption regarding the genuineness of the seal of
the notary can be raised.
3. Proof of attestation: If a document is required to be attested by
law, it must not be used as evidence until one attesting witness at
least has been called for the purpose of proving its execution, if such
a witness is alive and subject to the process of the Court and
capable of giving evidence. (AIR 1959 SC 443 “H. Venkatachala
Iyengar vs. B.N. Thimmajamma”) If there is no denial of execution of
document, then it is not necessary to call a witness for the purpose of
proving the same. For the purpose of valid attestation of a Will under
Sec. 63, it is absolutely necessary that the attesting should either sign
or affix thumb impression or mark himself, as the Section does not
permit an attesting witness to delegate that function to another. In
the decision reported in 2010 AIR SCW 3935 A – S.R.Srinivasa &
others vs. S. Padmavathamma, it is held that mere signature of
scribe cannot be taken as proof of attestation without evidence
regarding other witnesses to Will. The party who sees the Will
executed, is in fact a witness to it; if he subscribes as a witness, he
is then an attesting witness. The scribe or writer of a document may
perform a dual role; he may be an attesting witness as well as the
writer.
4. Sub-Registrar and Identifying Witnesses: A Will is not required by
law to be registered Sec. 63 of Indian Succession Act, merely
requires that the Will should be attested by two or more
witnesses,. Each of whom, has either seen the testator sign, or affix
his mark to the Will, or has received a personal acknowledgment of
his signature from the testator, and each of the witnesses should
sign the Will in the presence of the testator- no matter when, but
before the Will had come into operation; where before it was
presented for registration, it bore the signature of only one
attesting witness, the signature of sub-registrar and of another
person who are proved to have signed the Will in the presence of
the testator, though as registering authority or an identifying
witness, after its execution had been admitted before them by the
testator must be regarded as sufficient compliance with Sec. 63
Succession Act. Reference may be made to the decision reported in
AIR 2005 SC 4362 Pentakota Satyanarayana vs.Pentakota Seetharatnam.
Summary: i) An attested document not required by law to be
attested may be proved as if it was unattested.
ii) The Court shall presume that every document called
for and not produced after notice to produce, was
 attested in the manner prescribed by law.
Iii) There is a presumption of due attestation in the case
of document thirty years old. The Court may in such
cases dispense with proof of attestation.
iv) Where a document is required by law to be attested,
and there is an attesting witness available, then,
subject to the proviso, at least one attesting witness
must be called.
v) If there be no attesting witness available, or if the
document purports to have been executed in a foreign
country, it must be proved by other evidence that the
attestation of one attesting witness at least in his
handwriting, and that the signature of the person
executing the document is in his handwriting of that
person.
vi) The admission of a party to an attested document of
its execution will, so far as such party is concerned,
supersede the necessity of either calling the attesting
witnesses or of giving any other evidence.
Vii) If the attesting witness available denies or does not
recollect the execution of the document, its execution
may be proved by other evidence. But where he fails to
prove the
execution of the document, the document is not legally
proved.
Viii)Attesting witness need not be called. a)when the
document
b) When there is no attesting witness available.

c) When a party to the document against whom, it is

sought to be used, admits its execution. d)When the
document is not required by law to be attested.

e) When the document is thirty years old and there is a

presumption of due attestation.

f) When document is called for and not produced.

5. Burden to dispel suspicious circumstances regarding execution

of will When there are suspicious circumstances regarding the
execution of will, the onus is also on the propounder to explain
them to the satisfaction of the Court and only when such
responsibility is discharged, the Court would accept the Will as
genuine. (Banerjee vs. Chandraraja Kadamba (1973) 3 SCC 291 =
AIR 1972 SC 2492, K.Lakshmanan vs. Thekkayil Padmini (2009) 1
SCC 354 =AIR 2009 SC 951, Mahesh Kumar vs. Vinod Kumar
(2012) 4 SCC 387.12
6. Effect of Registration of Will: Registration of Will is a piece of
Evidence confirming its genuineness and can confirm it a higher
degree of sanctity. (S.R. Sreenivasa vs. S. Padmavathamma (2010)
5 SCC 274.
7. Guidelines as to genuineness of Will and testator’s mind summed
up in the case of Navneeth Lal @ Rangi vs.Gokul, AIR 1976 SC
794.
(a) In construing a document whether in English or in vernacular the
fundamental rule is to ascertain the intention from the words used;
the surrounding circumstances being considered to find out the
intended meaning of such words employed therein. [927F-G]
(b) In construing the language of the Will the court is entitled to put
itself into the testator's armchair and is bound to bear in mind also
other matters than merely the words used like the surrounding
circumstances, the position of the testator, his family relationship,
the probability that he would use words in a particular sense-all as
an aid to arriving at a right construction of the Will, and to ascertain
the meaning of its language when used by that particular testator
in that document.
(c) The true intention of the testator has to be gathered not by
attaching importance to isolated expressions but by reading the Will
as a whole with all its provisions and ignoring none of them as
redundant or contradictory.
(d) The court must accept, if possible, such construction as would
give to every expression some effect rather than that which would
render any of the expression inoperative. The court will look at the
circumstances under which the testator makes his Will, such as the
state of his property, of his family and the like. Where apparently
conflicting dispositions can be reconciled by giving full effect to
every word used in a document, such a construction should be
accepted instead of a construction which would have the effect of
cutting down the clear meaning of the words used by the testator. Further,
where one of the two reasonable constructions would lead to intestacy,
that should be discarded in favour of a construction which does not create
and such hiatus.
(e) It is one of the cardinal principles of construction of Wills that
to the extent that it is legally possible effect should be given to
every disposition contained in the Will unless the law prevents
effect being given to it. Of course, if there are two repugnant
provisions conferring successive interests, if the first interest
created is valid the subsequent interest cannot take effect but a
court of construction will be proceed to the farthest extent to avoid
repugnancy, so that effect could be given as far as possible to every
testamentary intention contained in the Will.
8. Secondary evidence of the contents of private documents is
admissible only if the original document is not in existence or not
available. Therefore, it is usually necessary to account for the
absence of the original and for this purpose, proof of primary
evidence is not available may be required. What is secondary
evidence?
They are;
1. Certified copies of documents;
2. copies made from the original by a mechanical process which
ensures the accuracy of the copy, and copies compared with such
copies;
3. copies made from or compared with the original
4. counterparts of documents as against the parties who did not
execute them; and
5. oral accounts of the contents of a document given by some
person who has himself seen it.17
9. The contents of documents cannot be proved by oral evidence.
However, the contents must be proved by admissible evidence. If
the truth of the facts stated in the documents itself is in issue,
then, proof of execution of the document should not be equated
with the proof of facts stated in the document. In this regard, the
decision of the Apex Court reported in AIR 1985 SC 955 “Hawaldar
Singh vs. State of U.P.” may be relied upon. In the decision reported
in 2010 AIR SCW 6362 M.Chandra vs. M.Thangamuthu, it is held
that: “It is true that a party who wishes to rely upon the contents of
a document must adduce primary evidence of the contents, and only in
the exceptional cases will secondary evidence be admissible. However, if
secondary evidence is admissible, it may be adduced in any form in which
lit may be available, whether by production of a copy, duplicate copy of a
copy, by oral evidence of the contents or in another form. The
secondary evidence must be authenticated by foundational evidence
that the alleged copy is in fact a true copy of the original. It should be
emphasized that the exceptions to the rule requiring primary evidence are
designed to provide relief in a case where party is genuinely unable to
produce the original through no fault of that party”
10. Secondary evidence can be acceptedby the Court for the
existence, condition or contents of a document if the original has
been lost or destroyed. In this regard, the decision reported in
AIR 1979 SC 1567 “Aher Rama Gova vs. State of Gujarat” may
be relied upon. The loss of original must be proved. In this regard,
the decision reported in [(1962) 1 SCR 827] in the case of State of
Bihar vs. Karam Chand Thapar may be relied upon.
11. If a document is written by hand by the executant himself and
produced before the Court, such document is called as Holograph/
Autograph. If it is written by a scribe and relied upon, such
document is called “Onmatic” document.
12. Admissibility of certified copies obtained under RTI Act. The
documents obtained under RTI Act can be admitted as secondary
evidence, as they are obtained under a particular enactment,
which fall within ambit of by “any other law in force in India”
13. Proof of Call Records: The information contain in the call
records is stored in huge servers which cannot be easily moved and
produced in the Court. Hence, printout taken from the
computers/servers by mechanical process and certified by a
responsible official of the service-providing company can be led in
evidence through a witness who can identify the signatures of the
certifying officer or otherwise speak of the facts based on his
personal knowledge. Irrespective of the compliance with the
requirements of Section65-B, which is a provision dealing with
admissibility of electronic records, there is no bar to adducing
secondary evidence under the other provisions of the Evidence Act,
namely, Sections 63 and 65. It may be that the certificate containing
the details in sub- section (4) of Section 65-B is not filed in the instant
case, but that does not mean that secondary evidence cannot be given
even if the law permits such evidence to be given in the circumstances
mentioned in the relevant provisions, namely, Sections 63 and 65 of the
Act. State (NCT of Delhi) vs. Navjot Sandhu @ Afsan Guru, (2005) 11
SCC 600: 2005 SCC (Cri) 1715: AIR2005 SC 3820: 2005 Cri. LJ 3950:
(2005) 122 DLT 194 (SC); overruled in Anvar P.V. vs. P.K. Basheer, (2014)
10 SCC 473: AIR 2015 SC 180.
14. Admissibility of electronic evidence: The applicability of
procedural requirement under Section 65-B(4) of the Evidence Act
of furnishing certificate is to be applied only when such electronic
evidence is produced by a person who is in a position to produce
such certificate being in control of the said device and not of the
opposite party. In a case where electronic evidence is produced by a
party who is not in possession of a device, applicability of Sections
63 and 65 of the Evidence Act cannot be held to be excluded. In
such case, procedure under the said sections can certainly be
invoked. If this is not so permitted, it will be denial of justice to the
person who is in possession of authentic evidence/witness but on
account of manner of proving, such document is kept out of
consideration by the court in absence of certificate under Section 65-
B(4) of the Evidence act, which party producing cannot possibly
secure. Thus, requirement of certificate under Section 65-B(4) is not
always mandatory. Accordingly, the legal position was clarified on
the subject on the admissibility of the electronic evidence, especially
by a party who is not in possession of device from which the
document is produced. Such party cannot be required to produce
certificate under Section 65-B(4) of the Evidence Act. The
applicability of requirement of certificate being procedural can be
relaxed by the Court wherever interest of justice so justifies. Shafhi
Mohammad vs. State of Himachal Pradesh, 2018 Cri. LJ 1714 :
2018 (1) Crimes 125: 2018 (2) Scale 235: AIR 2018 SC (Cri) 417 :
2018 (3) All Rent Cas 702 : (2018) 2 SCC 807: AIR 2018 SC 714.;see
also, Sonu @ Amar vs. State of Haryana, 2017 Cri. LJ 4352 : 2017
(8) Scale 45 : (2017) 3 SCC (cri) 663: (2017) 8
SCC 570 : 2017 (3) Crimes 234.; Kishin T. Punjabi vs. Suresh Kothari,
2020 (5) KCCR SN 53.

15. Non-production of certificate: The Court emphasised that non-

production of a certificate under Section 65B on an earlier occasion
is a curable defect. Union of India vs. Ravindra V. Desai, (2018) 16
SCC 272: AIR 2018 SC 2754.
16. Whether revenue record is document of title? No, In this
regard, the decision of Apex Court reported in AIR 2008 SC 901
“Gurunath Manohar Pavaskar vs. Nagesh Siddappa Navalgund” is
relevant, wherein it is held that: “A revenue record is not a
document of title. It merely raises a presumption in regard to
possession. Presumption of possession and/ or continuity thereof
both forward and backward can also be raised under Section 110 of
the Indian Evidence Act. The Courts below, were, therefore,
required to appreciate the evidence keeping in view the correct
legal principles in mind.”
17. Whether certificate of posting is sufficient to raise
presumption of service? No, Relevant decision is reported in AIR
2006 SC 825 “State of Maharashtra vs. Rashid Babubhai Mulani”,
wherein it is held that: “Certificate of posting obtained by a sender
is not comparable to a receipt for sending a communication by
registered post. When a letter is sent by registered post, a receipt
with serial number is issued and a record is maintained by the Post
Office. But when a mere certificate of posting is sought, no record
is maintained by the Post Office either about the receipt of the letter
or the certificate issued. The ease with which such certificates can
be procured by affixing ante-dated seal with the connivance of
any employee of the Post Office is a matter of concern. The
Department of Posts may have to evolve some procedure whereby a
record in regard to the issuance of certificates is regularly
maintained showing a serial number, date, sender's name and
addressee's name to avoid misuse. In the absence of such a record,
a certificate of posting may be of very little assistance, where the
dispatch of such communications is disputed or denied”.
18. Thumb Impression: Document executed by illiterate person.
Such person who has put the thumb impression need not say that it
is his thumb impression. Suffice to say that this is the document
on which he put thumb impression. Marking of thumb impression as
exhibit is wrong (AIR 1963 Rajasthan 84 –Bheek Chand vs. Parbhuji).
Execution of a document by pardhanashin woman. Pardanashin lady has to
admit the contents of the document. In India pardahnashin ladies have
been given a special protection in view of the social conditions of the
times; they are presumed to have an imperfect knowledge of the world, as
a result by the pardah system they are practically excluded from social
intercourse and communion with the outside world. AIR 1925 PC 204, AIR
1963 SC 1203 “Kharbuja Kuer vs. Jangbahadur Rai”.
19. How to prove the Photographs? By producing both
photographs and their negatives. By examining the photographer,
a person who has developed the photographs. If other side admits
the contents of the photographs, then negatives need not be
produced. In case of digital photographs, necessary. Production of
photos and CD are to be produced. If the photograph confronted is
admitted, then it can be said that photograph has been proved.
possibility of tricking the photograph. Court has to be more
cautious.
20. Xerox/Photo Copies: Unless the original is perused, a Xerox copy
with signature cannot be marked (AIR 1994 SC 591 –Government
of Andhra Pradesh vs. Karri Chinna Venkata Reddy and others). In
the decision reported in AIR 2011 S C 1492 –H.Siddiqui vs. A.
Ramalingam, it is held that:“In a case where original documents
are not produced at any time, nor, any factual foundation has been
led for giving secondary evidence, it is not permissible for the Court
to allow a party to adduce secondary evidence. Thus, secondary
evidence relating to the contents of a document is inadmissible,
until the non-production of the original is accounted for, so as to
bring it within one or other of the cases provided for in S. 65. The
secondary evidence must be authenticated by foundational
evidence that the alleged copy is in fact a true copy of the original.
Mere admission of a document in evidence does not amount to its
proof. Therefore, the documentary evidence is required to be proved
in accordance with law. The Court has an obligation to decide the
question of admissibility of a document in secondary evidence
before making endorsement thereon.

21. Tape Recorder Statement: Whether tape recorded statement is

admissible in evidence? Yes. The person who speaks must identify
that it is his voice. Accuracy of the recording must be proved. must
be free from tampering. Such statement Subject matter of statement
must be relevant (AIR 1968 SC 147 “Yusufalli Esmail Nagree vs.
State of Maharashtra”.
22. News Paper Items: So, far as the news paper items are
concerned it is neither primary nor secondary evidence but it is
second hand secondary evidence. Therefore, the news paper items
cannot be admitted in evidence unless the original manuscript is
produced (AIR 1994 SC 1733 “Quamarul Islam vs. S. K.Kanta”,
wherein at head note D it is held that: “Newspaper reports by
themselves are not evidence of the contents thereof. Those reports
are only hearsay evidence. These have to be proved and the manner
of proving a newspaper report is well settled. Newspaper, is at the
best secondary evidence of its contents and is not admissible in
evidence without proper proof of the contents under the Evidence
Act. Where the speech alleged to be delivered by the returned
candidate during election campaign was published in a newspaper
but neither the reporter who heard the speech and sent the report
was examined nor even his reports produced, the production of the
newspaper by the Editor and Publisher by itself cannot amount to
the contents of the newspaper reports. Though the advertisement or
message published in a newspaper contained in appeal on ground
of religion, when the original manuscript of the advertisements or
the messages was not produced at the trial and no witness came
forward to prove the receipt of the manuscript of any of the
advertisements or the messages or the publication of the same in
accordance with the manuscript, and there was no satisfactory
and reliable evidence on the record to even establish that the
same were actually issued by or at the instance of the returned
 candidate, the evidence of the election petitioner himself or of the
Editor and Publisher of the Newspaper to prove the contents of the
messages and advertisements in the newspaper could not be
admitted and relied upon as evidence of the contents of the
statement contained therein and could not be used against the
returned candidate”.

The Court cannot take judicial notice of the facts stated in a news item
being in the nature of hearsay secondary evidence, unless proved by
evidence aliunde. A Report in a news paper is only hearsay evidence.
23. How To Prove Telegram: Anybody can send the telegram. If
the telegram is challenged it is the duty of the parties asserting it
to produce the confirmation letter for having sent the telegram and
its contents. For example, the corporate sector takes more
precaution while sending the telegrams. When a telegram is sent
it should be followed by a letter who has sent the telegram. Care is
taken in corporate sector to send a copy of the letter followed by
telegram. The absence of such letter, no evidentiary value can be
attached to the telegram. Letter of confirmation of sending
telegram and its contents is must (AIR 1993 SC 2633).
24. Deposition in earlier proceedings: To prove the statement of a
witness in earlier proceedings with regard the admission true copy
cannot be confronted. Certified copy of the deposition can be
confronted. If such deposition is admitted it has evidentiary value
(AIR 1974 SC 117 "Biswanath Prasad vs. Dwarka Prasad"). However,
if the witness in earlier proceedings has deposed that he is the
owner of Vidhana Soudha and if such deposition is produced in
subsequent proceeding it cannot be relied upon (AIR 1974 SC 280
"Krishnawati vs. Hans Raj").
24. unregistered sale deed: Sale deeds are required to be
registered compulsory. If an unregistered sale deed is produced for
collateral purpose (purpose other than the enforcing) it can be received
on record (AIR 1936 Calcutta 130). This decision still holds good. In case
of sale deeds, if there is a change in date of execution and date of
registration. The date of execution is to be taken into consideration as it to
relates back to the date of execution (AIR 1998 Patna 1), (AIR 1961 SC
1747 – Ram Saran Lall vs. Domini Kuer).
 1

Paper presentation on 1) Primary Evidence and Secondary Evidence. 2) Modes of Proof

of documents and 3) Competency of witness to prove documents

Presented by
Smt. B. Ramya,
Additional Junior civil Judge-cum-
I Additional Judicial Magistrate of First Class,
Vizianagaram.

Primary Evidence

Primary evidence, also known as best evidence, refers to the actual documents produced for

the court’s inspection. According to Section 62, it is considered the highest class of evidence

and must be presented before the court. It is admissible without prior notice and takes

precedence over secondary evidence. Secondary evidence can only be introduced if primary

evidence is not available and the reason for its absence must be explained.

* Primary evidence is the most reliable proof of the existence of an object since it is the

original document itself. It is distinct from secondary evidence, which is a copy or substitute

of the original. If a party has access to primary evidence, they must present it as evidence.

However, if primary evidence is unavailable due to circumstances beyond the party’s control,

such as loss or destruction, a reliable substitute can be presented after establishing its

unavailability.

Secondary Evidence

Secondary evidence refers to evidence that is presented in the absence of primary evidence.

It is considered a substitute for the original or primary evidence. Secondary evidence can

include copies, duplicates or any other form of evidence that is not the original document or

object. It is generally considered to be of lower evidentiary value compared to primary

evidence.

However, if primary evidence is unavailable and the reason for its absence is explained,

secondary evidence may be admitted in court. It is important to note that secondary evidence

can only be introduced if there is a valid justification for the unavailability of primary

evidence.
 2

Difference Between Primary and Secondary Evidence

Here’s a table comparing primary evidence and secondary evidence:

Point of
Primary Evidence Secondary Evidence
Difference
Defined under Section 62
Definition Defined under Section 63 of the Evidence Act
of the Evidence Act
Considered the highest Considered of lower quality compared to primary
Quality
quality of evidence evidence
Original document or
Copies or duplicates of the original document/work
Nature work presented for
mentioned in Section 63
inspection in court
Can be presented without Permission from the court is required to present
Prior Notice
prior notice secondary evidence
Holds high evidentiary
Evidentiary Has lower evidentiary value as an alternative source of
value as the main source
Value evidence
of evidence
Copy of the 10th mark sheet with Date of Birth or
Birth Certificate issued by
Example identification proofs like Voter Card or Aadhar Card as
the MCD
secondary evidence for a lost birth certificate

Judicial Pronouncements on Primary and Secondary Evidence

Over the years, various judicial pronouncements have provided clarity on the significance of

primary evidence and the admissibility of secondary evidence in its absence. In the case of J.

Yashoda v. Smt. K. Shobha Rani (2007), the Hon’ble Supreme Court held that secondary

evidence can only be admitted when primary evidence is unavailable. If the party fails to

establish the validity of the original document, they cannot introduce secondary evidence

regarding its contents.

Similarly, in H. Siddiqui (dead) by LRs Vs. A. Ramalingam (2011), the Apex Court

reiterated that without providing a rational reason and factual foundation for the non-

production of the originals, the court cannot allow the introduction of secondary evidence.

In Rakesh Mohindra v. Anita Beri and Ors. (2016), the Supreme Court stated that before

presenting secondary evidence, it is necessary to establish the plausible reason for the non-

production of primary evidence. Secondary evidence can only be accepted if it is proven that

the original documents are lost, destroyed or deliberately withheld by the opposing party.

Furthermore, in Chandra v. M. Thangamuthu (2010), the Hon’ble Apex Court emphasised

that the secondary evidence must be authenticated by foundational evidence, proving that the

alleged copy is a true replica of the original. Exceptions to the rule requiring primary
 3

evidence are intended to provide relief when a party genuinely cannot produce the original

document due to circumstances beyond their control.

2. Modes of Proof of Documents – Admission, Direct Evidence, Expert

evidence, Presumption etc.
Documents produced in court have to pass through two steps. They are:
1. Admission and exhibition (if relevant)
2. Proof (or truth of contents, veracity, reliability, etc.).
The question of proof comes for consideration only if the first step (admission and

exhibition, as relevant) is successfully covered. In Anvar P.V. v. P.K. Basheer, AIR 2015 SC

180, our Apex Court held as under:

 “Genuineness, veracity or reliability of the evidence is seen by the court only after the

stage of relevancy and admissibility.”

Proof is of Two Types:

First, Formal Proof, or Proof as to existence of the document. The modes of proof of

documents are governed under Sec. 64 to 73A of the Evd. Act.

Second, Substantive Proof or Proof as to truth. Besides the formal proof, in most cases

(excepting a few cases where signature, hand-writing etc. alone are considered), the

court acts upon a document, only when ‘truth’ of the contents of the document is established.

 Proof as to truth is to be established-

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

Modes of Proof of Documents

Documents can be proved (both, ‘formal proof’ and ‘truth of the contents’) in the following
ways:
 Admission of the person who wrote or signed the document (Sec. 17, 21, 58, 67, 70).
 Evidence of a person in whose presence the document was signed or written – ocular
evidence (Sec. 59).
 An attesting witness (Sec. 59).
 4

 Opinion of a person who is acquainted with the writing of the person who signed or
wrote (Sec. 47).
 Admission made by the person who signed or wrote the document made in judicial
proceedings (Sec. 32, 33).
 Evidence of a handwriting expert-opinion evidence/scientific evidence (Sec.45).
 Evidence of a person who in routine has been receiving the document; or a document
signed by such a person in the ordinary course of his business or official duty, though
he may have never seen the author signing the document (Sec. 32, 34, 35 or 114).
 Public documents – Sec. 74 – 77.
 Invoking (specific) presumptions under Sec. 79 to 90A.
 Presumptions (general) under Sec. 114.
 Circumstantial evidence: on probability or inferences (Sec. 114).
 Court-comparison (Sec. 73).
 Facts judicially noticeable (Sec. 56 and 57).
Modes of Proof of Documents ‘Required By Law To Be Attested’

 Section 68 of the Evd. Act provides that the documents required by law to be attested

shall not be used in evidence until at least one attesting witness has been examined, if there

be (i) an attesting witness alive, (ii) he is subject to the process of court and (iii) he is capable

of giving evidence. But, the proviso lays down that if its execution is not specifically denied

by the person by whom it purports to have been executed, it shall not be necessary to call an

attesting witness in proof of the execution of any document not being a Will if such

document is registered in accordance with the provisions of Indian Registration Act, 1908.

That is, for the purpose of proving the Will, the examination of the attesting witness is

necessary.

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

witnesses.
1. Will: section 63 of the Succession Act.
2. Mortgage deed: section 59 of the T P Act.
3. Gift deed: section 123 of the T P Act.
4. Bond: 2(5) of the Indian Stamp Act, 1899.
Admission Cannot be Proved by the Person who Makes them
 According to Sec. 21 of the Evidence Act, an admission cannot be proved by, or on

the behalf of, the person who makes them because a person will always naturally make

statements that are favourable to him. Sec. 32, 33, 34 etc. of the Evidence Act lays down
 5

exceptions to this rule. However, for comparison of hand writings and signatures, ante

litem motam documents would have probative force (G. Govindaraj v. Smt. Saroja

Ramakrishnan, 2013 (4) MLJ 164).

Presumption & Circumstantial Evidence

State of West Bengal Vs. Mir Mohammad Omar (AIR 2000 SC 2988) it is held by our Apex

Court as under:

 “Presumption of fact is an inference as to the existence of one fact from the existence

of some other facts, unless the truth of such inference is disproved. Presumption of

fact is a rule in law of evidence that a fact otherwise doubtful may be inferred from

certain other proved facts. When inferring the existence of a fact from other set of

proved facts, the Court exercises a process of reasoning and reach a logical conclusion

as the most probable position. The above principle has gained legislative recognition

in India when Section 114 is incorporated in the Evidence Act. It empowers the Court

to presume the existence of any fact which it thinks likely to have happened. In that

process Court shall have regard to the common course of natural events, human

conduct etc. in relation to the facts of the case.”

It is held as under in Mobarik Ali Ahmed Vs. State of Bombay (AIR 1957 SC 857) as under:
“The proof of the genuineness of a document is proof of the authorship of the document and

is proof of a fact like that of any other fact. The evidence relating thereto may be direct or

circumstantial. It may consist of direct evidence of a person who saw the document being

written or the signature being affixed. It may be proof of the handwriting of the contents, or

of the signature, by one of the modes provided in Ss. 45 and 47 of the Indian Evidence Act. It

may also be proved by internal evidence afforded by the contents of the document. This last

mode of proof by the contents may be of considerable value where the disputed document

purports to be a link in a chain of correspondence, some links in which are proved to the

satisfaction of the Court. In such a situation the person who is the recipient of the document,

be it either a letter or a telegram, would be in a reasonably good position both with reference
 6

to his prior knowledge of the writing or the signature of the alleged sender limited though it

may be, as also his knowledge of the subject-matter of the chain of correspondence, to speak

to its authorship.”

Proof must be by persons who can vouchsafe for the truth

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

 “Reliance is heavily placed on behalf of the appellant on Ramji Dayawala Vs. Invest

Import: AIR 1981 SC 2085. The legal position is not in dispute that mere

production and marking of a document as exhibit by the court cannot be held to be a

due proof of its contents. Its execution has to be proved by admissible evidence, that

is, by the “evidence of those persons who can vouchsafe for the truth of the facts in

issue”.

Is it necessary to file an application for ‘permission’ to lead secondary evidence

It is observed by the Bombay High Court (2017) in Shri. Karthik Gangadhar Bhat v. Smt.

Nirmala Namdeo Wagh (indiankanoon) that the insistence on filing an application for

‘permission’ to lead secondary evidence is ‘simply wrong‘. The court referred to an earlier

decision, Indian Overseas Bank v. Triokal Textile Industries, AIR 2007 Bom 24 where it was

held that it was always open to the party to lead secondary evidence before the Trial Court

recording evidence or hearing the matter ‘without having to file such an application’.

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

Sec. 35 Evidence Act speaks on ‘an entry in any public or other official book, register or

record or an electronic record’. Sec. 35 Evidence Act speaks as to presumption.

Besides direct evidence, or admission, the contents of a document can also be proved

by circumstantial evidence or by invoking presumption. ‘Common course of natural events’,

‘human conduct’ etc. under S. 114, can be used to prove the existence and genuineness/truth

of a document.

Sec. 35 of the Evidence Act reads as under:

 7

 “35. Relevancy of entry in public record or an electronic record made in performance

of duty: An entry in any public or other official book, register or record or an

electronic record, stating a fact in issue or relevant fact, and made by a public

servant in the discharge of his official duty, or by any other person in performance of

a duty specially enjoined by the law of the country in which such book, register, or

record or an electronic record is kept, is itself a relevant fact.

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

 “The principle is that an official record, kept by a person, upon whom there is a public

duty to make entries in it only after satisfying himself of the truth of those entries,

is presumed to be correct. Such a document itself is evidence of the truth of its

contents unless and until its falsity can be demonstrated by any of the various

methods by which the evidentiary value of any public book, register or document may

be attacked.”

Presumption of Correctness Attached to a Registered Deed

In the split-verdict in Majumder v. Dipak Kumar Saha, 2023 SCC OnLine SC 37, BV

Nagaratna, J., held as under:

“ The presumption of correctness attached to endorsement made by the Sub-

Registrar is in view of the provisions of Sections 58, 59 and 60 of the Registration

Act. This presumption can be rebutted only by strong evidence to the contrary.” a

registered deed has to be proved in accordance with Section 67 of the Evidence

Act, 1872. Section 67 states that if a document is alleged to be signed or to have

been written wholly or in part by any person, the signature or the handwriting of

so much of the document as is alleged to be in that person’s handwriting must be

proved to be in his handwriting. Section 67 states that proof of signature and the

genuineness of document proved by the proof of handwriting is proof of

execution. Execution of a document means signing a document by consenting on

it by a party. Section 67 does not prescribe any particular mode of proof. Mere

registration of a document is not self-sufficient proof of its execution. It is only a

prima facie proof of its execution particularly when no other evidence is

 8

available. Registration of a document is evidence of its execution by its

executor. Certificate by registering officer under Section 60 of the Registration

Act, 1908 is relevant for proving its execution. Proof by evidence afforded by the

contents of the documents is of considerable value. In the instant case, what is

sought to be proved is title by the sale deed and not the power of attorney as it is

the sale deed which conveys title and the sale deed has been executed in

accordance with the provisions of Registration Act, 1908, and proved in

accordance with Section 67 of Evidence Act. It cannot be held that the sale made

on behalf of the seller (original owner of the suit land) to the buyer through the

power of attorney is vitiated as the power of attorney was not produced before the

Court. This is because even in the absence of the production of the power of

attorney, the contents of the sale deed and the execution of the power of attorney

as well as the sale deed have been established by proving the sale deed in

accordance with the law.”

Courts to admit documents Without Proof

Section 163 of the Evidence Act, reads as under:
 163. Giving, as evidence, of document called for and produced on notice: When a

party calls for a document which he has given the other party notice to produce, and

such document is produced and inspected by the party calling for its production, he is

bound to give it as evidence if the party producing it requires him to do so.

It is observed in Government of Bengal v. Santiram Mondal, AIR 1930 Cal 370, with respect

to a document used under Sec. 163, as under:

 “The further contention is that if they are to be admitted, they cannot be put in or at

any rate used without proof. But the section itself says that the party calling for it is

bound to give it as evidence if required to do so, and that certainly means that it goes

in as a record of the particular proceeding and that it can be looked at to see what it

includes or omits.”

It is noteworthy that Order XI rule 15 and Order XII rule 8 are the provisions in the CPC to

give notice to the other party to produce documents (for ‘inspection’ and ‘show court’,
 9

respectively). In Government of Bengal v. Santiram Mondal, AIR 1930 Cal 370, and R v.

Makhan, AIR 1940 Cal 167 it was observed that Section 163 of the Evidence Act applies to

Criminal Proceedings also.

Oral Evidence on contents of Documents – No Use, Unless Secondary Evidence Entitled

Sec. 22, 22A and 144 of the Evidence Act postulate that the oral admissions or assertions as

to contents of documents are not relevant, unless and until the party proposing to prove them

shows that he is entitled to give secondary evidence of the contents of such document under

Sec. 65, or unless the genuineness of a document produced is in question.

Sec. 22 emphasises that oral evidence as to contents of documents , even if adduced, will be

of no use, as it will be ‘irrelevant’. By virtue of Sec. 144 of the Evidence Act, the adverse

party may object to giving oral evidence as to contents of the same until such document itself

is produced, or until facts have been proved which entitle the party who called the witness to

give secondary evidence of it.

Sec. 22 and 22A of the Evidence Act reads as under:

Sec.22: When oral admissions as to contents of documents are relevant: Oral

admissions as to the contents of a document are not relevant, unless and until the

party proposing to prove them shows that he is entitled to give secondary

evidence of the contents of such document under the rules hereinafter contained,

or unless the genuineness of a document produced is in question.

Sec.22A: When oral admissions as to contents of electronic records are

relevant: Oral admissions as to the contents of electronic records are not

relevant, unless the genuineness of the electronic record produced is in question.

Sec. 144 of the Evidence Act reads as under:

 144. Evidence as to matters in writing.—Any witness may be asked, whilst under

examination, whether any contract, grant or other disposition of property, as to

which he is giving evidence, was not contained in a document, and if he says that

it was, or if he is about to make any statement as to the contents of any document,

which, in the opinion of the Court, ought to be produced, the adverse party may

object to such evidence being given until such document is produced, or until
 10

facts have been proved which entitle the party who called the witness to give

secondary evidence of it.

Sec. 59 of the Evidence Act lays down that contents of documents (or electronic records) are

to be proved by oral evidence. Sec. 62 defines primary evidence to mean ‘the document

itself’ produced for the inspection of the Court. Sec. 64 of the Act requires that that the

documents to be proved primarily by ‘primary evidence’, except in cases where secondary

evidence is provided under Sec. 65.

Sections 22, 59, 61, 62 and 64 of the Evidence Act project the ‘rule of best evidence’ and it

directs that the contents of the document are to be proved by the original document itself,

unless secondary evidence is provided.

Sec. 91 and 92 provides that when terms of a contract, or of a grant, or of any other

disposition of property, have been reduced to the form of a document, and in all cases in

which any matter is required by law to be reduced to the form of a document, their terms

alone are taken to be the sources of what the parties wished to state; and oral evidence to the

contrary, are excluded. Both these provisions are based on “best evidence rule”.

The Supreme Court held in Roop Kumar v. Mohan Thedani: AIR 2003 SC 2418, as under:

“The grounds of exclusion of extrinsic evidence are (i) to admit inferior evidence when law

requires superior would amount to nullifying the law, (ii) when parties have deliberately put

their agreement into writing, it is conclusively presumed, between themselves and their

parties, that they intended the writing to form a full and final statement of their intentions,

and one which should be placed beyond the reach of future controversy and bad faith.

In Perumal Chettiar VS Kamakshi Ammal, AIR 1938 Mad 785; ILR 1938 Mad 933, it is held

as under:

“Section 22 of the Indian Evidence Act adopted the stricter view and relegated oral

admissions as to the contents of a document to the category of ‘secondary evidence’. The

result, in India, is that if by reason of the document being unstamped, no evidence of its

contents whether primary or secondary is admissible, evidence of admissions by the

defendant is equally inadmissible. The position may be different where admissions are made

in the pleadings themselves.

 11

Specific Presumptions in Evidence Act, as to Electronic Records

 Sec. 81A. Presumption as to Gazettes in electronic forms
 Sec. 85A. Presumption as to electronic agreements
 Sec. 85B. Presumption as to electronic records and electronic signatures
 Sec. 85C.Presumption as to Electronic Signature Certificates
 Sec. 88A. Presumption as to electronic messages

81A. Presumption as to Gazettes in electronic forms

The Court shall presume the genuineness of every electronic record purporting to be the

Official Gazette or purporting to be electronic record directed by any law to be kept by any

person, if such electronic record is kept substantially in the form required by law and is

produced from proper custody

85A Presumption as to electronic agreements

The Court shall presume that every electronic record purporting to be an agreement

containing the electronic signature of the parties was so concluded by affixing the electronic

signature of the parties.

85B Presumption as to electronic records and electronic signatures

(1) In any proceedings involving a secure electronic record, the Court shall presume unless

contrary is proved, that the secure electronic record has not been altered since the specific

point of time to which the secure status relates.

(2) In any proceedings, involving secure electronic signature, the Court shall presume unless

the contrary is proved that—

(a) the secure electronic signature is affixed by subscriber with the intention of signing or

approving the electronic record;

(b) except in the case of a secure electronic record or a secure electronic signature, nothing in

this section shall create any presumption, relating to authenticity and integrity of the

electronic record or any electronic signature.

85C Presumption as to Electronic Signature Certificates

 12

The Court shall presume, unless contrary is proved, that the information listed in a Electronic

Signature Certificate is correct, except for information specified as subscriber information

which has not been verified, if the certificate was accepted by the subscriber.

88A. Presumption as to electronic messages

The Court may presume that an electronic message, forwarded by the originator through an

electronic mail server to the addressee to whom the message purports to be addressed

corresponds with the message as fed into his computer for transmission; but the Court shall

not make any presumption as to the person by whom such message was sent.

“Explanation: For the purposes of this section, the expressions “addressee” and “originator”

shall have the same meanings respectively assigned to them in clauses (b) and (za) of sub-

section (1) of section 2 of the Information Technology Act, 2000.

3. Competency of witness to prove document:

The documents canbe 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.

Meaning and competency of witness :

Witnesses and documents are the main sources of evidence. A witness (Testis) is a person

who gives evidence before any court. As per Bentham, witnesses are the eyes and ears of

justice. Witnesses can be the person who gives valuable input for the case. It is through

witnesses and documents that evidence is placed before the court. So, the law has to be very

clear with regards to certain issues like who are a competent witness and how can the

credibility of the witness be tested. Section 118 of Indian Evidence Act, 1872 explains who

may testify i.e. competency of witness.

Who are competent witnesses (who may testify)- Section 118

Section 118 of the Evidence Act states that "All persons shall be competent to testify unless

the court considers that they are prevented from understanding the questions put to them, or

from giving rational answers to those questions, by tender years, extreme old age, disease

whether of body or mind, or any other cause of the same kind.

 13

Explanation:-- A lunatic is not incompetent to testify, unless he is prevented by his lunacy

from understanding the questions put to him and giving rational answers to them".

Under Section 118 of the Evidence Act all persons are competent to testify, unless they are,

in the opinion of the Court

(a) unable to understand the question just to them, or

(b) to give rational answers to those questions, owing to

(i) tender years (ii) extreme old age (iii) disease of mind or body, or (iv) any other such

cause.

Even a lunatic, if he is capable of understanding the questions put to him and giving rational

answers, is a competent witness.

2 Competency is to be distinguished from compellability

To compel' means to force, to oblige, to necessitate. Compellability is the opposite to

voluntarily answer. Compellability of witness means using not merely by physical threats but

by psychic torture, atmospheric pressure, environmental coercion, tiring, interrogative

prolixity overhearing and intimidatory methods and the like to give evidence. A person may

be competent to testify, but in certain circumstances he may not be compelled to give

evidence. A witness may have a privilege that is, a right to refuse. A witness is said to be

competent when there is nothing in law to prevent him from being sworn and examined if he

wishes to give evidence. Though the general rule is that a witness who is competent is also

compellable, yet there are cases where a witness is competent but not compellable to give

evidence, as for example, sovereigns and ambassadors of foreign states.

Competency of child witness:

With respect to children, a child may be allowed to testify, if the court is satisfied that the

child is capable of understanding the question put to him and give rational answers to the

court. No absolute age is fixed by law within which they are exempted from giving evidence

on the ground that they have not sufficient understanding. Actually it is not possible to lay

down any specific rule regarding the degree of intelligence and knowledge which will render
 14

a child a competent or credible witness. So it is the discretion of the court to judge whether

the child is capable of understanding the question put to him and give rational answers to the

court. Before examining a child as a witness the court should test his intellectual capacity.

Competence of Husband or Wife of a person under Criminal Trial. S.120

Section 120 of the Evidence Act states that-
"In all civil proceedings the parties to the suit, and the husband or wife of any party to the s

shall be competent witnesses. In criminal proceedings against any person the husband or

wife of such person, respectively, shall be a competent witness"

According to Section 120, wife and husband are competent witnesses for and against the

other. If a wife files a maintenance case, she can give evidence against her husband.

Similarly, where a husband files a case for the restitution of conjugal rights, he can give

evidence against his wife. If a husband files a suit for recovery of money, if his wife happens

to be one of the witnesses of the promissory note, she can give evidence in favour of her

husband. If a gift deed executor by wife, husband can attest it and give evidence in favour of

such gift, when his evidence is required.

C. Judges and magistrates-Section 121

Section 121- “No Judge or Magistrate shall, except upon the special order of some Court of

which he is subordinate, be compelled to answer any questions as to his own conduct in

Court as such Judge or Magistrate, or as to anything which came to his knowledge in Court

as such Judge or Magistrate but he may be examined as to other matters which occurred in

his presence whilst he was so acting.” The privilege given by Section 121 is the privilege of

the witness, if he waives such privilege, none else can raise an objection. Thus, if a

Magistrate is summoned to depose about his conduct in respect of a case and he is ready to

appear, nobody else can raise an objection.

SCJ..BOBBILI 1 OF 31 02.09.2023

PAPER PRESENTATION

ON THE TOPIC OF

PRIMARY AND SECONDARY EVIDENCE,

MODE OF PROOF OF DOCUMENTS AND
COMPETENCY OF WITNESS TO PROVE DOCUMENTS.

FOR WORKSHOP SESSION – III,

VIZIANAGARAM DISTRICT.

BY T. VASUDEVAN,
SENIOR CIVIL JUDGE, BOBBILI.
SCJ..BOBBILI 2 OF 31 02.09.2023

PRIMARY AND SECONDARY EVIDENCE,

MODE OF PROOF OF DOCUMENTS AND
COMPETENCY OF WITNESS TO PROVE DOCUMENTS.

"Evidence in its broadest sense includes

everything that is used to determine or
demonstrate the truth of an assertion. Giving
or procuring evidence is the process of using
those things that are either (a) presumed to be
true, or (b) which were proved by evidence, to
demonstrate an assertion's truth. Evidence is
the currency by which one fulfills the burden of
proof."

In Law, the production and presentation of evidence depends

first on establishing on whom the burden of proof lays. Admissible evidence
is that which a court receives and considers for the purposes of deciding a
particular case. Two primary burden-of-proof considerations exist in law.
The first is on whom the burden rests. In many, especially Western, courts,
the burden of proof is placed on the prosecution. The second consideration
is the degree of certitude proof must reach, depending on both the quantity
and quality of evidence. These degrees are different for criminal and civil
cases, the former requiring evidence beyond reasonable, the latter
considering only which side has the preponderance of evidence, or whether
the proposition is more likely true or false. The decision maker, often a jury,
but sometimes a judge, decides whether the burden of proof has been
fulfilled. After deciding who will carry the burden of proof, evidence is first
gathered and then presented before the court.

2. ORIGION
The word ‘Evidence’ has been derived from the Latin word
‘evidere’ which implies to show distinctly, to make clear to view or sight, to
discover clearly, to make plainly certain, to certain, to ascertain, to prove.

3. HISTORY OF THE LAW OF EVIDENCE

Today we have two basic of evidence upon which rules are
formulated. One rule is that only the facts bearing importance to the matter
SCJ..BOBBILI 3 OF 31 02.09.2023

being heard should be looked into by the courts and second that all facts
that will help the court to reach a decision are admissible unless otherwise
excluded like a client confessing to his legal counsel.
Among others from ancient Hindu Period, Vasistha recognized 3 kinds of
evidence:

1. Lekhya (Documentary Evidence)

2. Sakshi ( Witnesses)
3. Bukhti ( Possession)

Though the concept of justice in Islam is that it is a divine

disposition, the Mohammedan law givers have dealt with evidence in
various forms as indicated by the table below:

1. Oral that may be Direct or Hearsay

2. Documentary (Less preferred than oral)

4. THE MODERN LAW AS IT PREVAILS

The concrete evidence of the ‘law of evidence’ comes from the
times of the Britishers. In 1837, an Act was a passed whereby even a
convicted person was allowed to give evidence. Subsequently, parties to
litigation could be witnesses for their respective sides. Charles Dickens
ridiculed this law and questioned the honesty of such witnesses. After all,
who will testify against himself or to his disadvantage? Between 1835 and
1855, there are eleven Acts that touch upon the subject of law of evidence.
And these were consolidated.

In 1856, Sir Henry Summer Maine, the then law member of the
Governor General’s Council was asked to prepare and Indian Evidence Act.
His draft was found unsuitable for the Indian conditions. So it fell to Sir
James Fitzjames Stephan who became the law member in 1871 to
come up with the Indian Evidence Act. His draft bill was approved
and came into being as the Indian Evidence Act, 1872 and came into
force from 1st September 1872. Before independence, many states had
already accepted this law as the law in their respective state. After
independence, the Indian evidence Act was held to be the law for all Indian
courts.
SCJ..BOBBILI 4 OF 31 02.09.2023

5. INDIAN EVIDENCE ACT 1872

This Indian Evidence Act, 1872 is largely based on the English
law of Evidence. The Act does not claim to be exhaustive. Courts may look
at the relevant English Common Law for interpretation as long as it is not
inconsistent with the Act. This Act consolidates, defines and amends the
laws of evidence. It is a special law and hence, will not be affected by any
other enactment containing provisions on matter of evidence unless and
until it is expressly stated in such enactment or it has been repealed or
annulled by another statute. Hence, the evidence excluded by the Act will
be inadmissible even if essential to ascertain the truth.

6. THE LAW OF EVIDENCE IS THE LEX FORI

Law of evidence is part of the law of procedure. That why it is
called the lex fori or the law of the court or forum. It means that Indian
courts know and apply only the Indian law of evidence. Thus, the
competency of a witness, whether a fact is proved or not is determined by
the law of the country where the question arose, where the remedy is
sought to be enforced and where the court sits to enforce it.

7. EVIDENCE MEANS AND INCLUDES

Section 3 of The Indian Evidence Act, defines evidence in
the following words- Evidence means and includes-

1. All the statements which the court permits or requires to be

made before it by witnesses, in relation to matters of fact under
enquiry; such statements are called Oral evidence;

2. All the documents including electronic records produced

for the inspection of the court; such documents are called
documentary evidence;
The definition of Evidence given in this Act is very narrow
because in this evidence comes before the court by two means only-

1. The statement of witnesses.

2. Documents including electronic records.

8. BASIC PRINCIPLES OF EVIDENCE

The Act deals with Relevancy of Facts, Mode of Proof and

Production and Effect of Evidence. The following principles are called
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the basic principles and The exceptions to the above principles, the exact
application has been set out very clearly in the Act:
1. Evidence must be confined to the matters in issue.
2. Hearsay evidence may not be admitted.
3. The best evidence must be given in all cases.
4. All facts having rational probative value are admissible in
evidence,unless excluded by a positive rule of paramount importance.

9. BASIC DIFFERENCES BETWEEN ORAL AND DOCUMENTARY

EVIDENCE.

Oral Evidence Documentary Evidence

All statements which the Court permits

All documents including electronic
or requires to be made before it by
records produced for the inspection
witnesses, in relation to matters of fact
of the Court, such documents are
under inquiry, such statements are called
called documentary evidence
oral evidence

It is a statement in the document.

It is a statement by a witness.
In documentary evidence, the
In oral evidence, the witness tells about
facts are recorded in writing.
the facts by speaking or with gestures.
Documentary evidence is provided
Oral evidence is provided under Section
under Section 61 to 66 of the Indian
59 and 60 of the Indian Evidence Act,
Evidence Act, 1872.
1872.

A. KINDS OF DOCUMENTARY EVIDENCE

1. PRIMARY EVIDENCE
Primary evidence means the document itself produced for the
inspection of the Court. The expression “primary evidence” of a document is
defined in section 62. This section defines primary evidence as the
document itself produced for the inspection of the court. Primary evidence
is evidence which the law requires to be given first. The general rule
requiring primary evidence to be given of the litigated documents is based
on the best evidence rule. An original document is the first permanent
record of a transaction. It is first-hand evidence and presumptively the most
reliable. Besides, documents are often interlined or altered. Therefore it is
desirable to have the original to see if alterations are part of the document
or are made subsequently. The following four are included in the expression
“primary evidence”:
SCJ..BOBBILI 6 OF 31 02.09.2023

1. The original document itself produced for the inspection of the court.(
C.P.Agarwal v. P.O., Labour court, (1996) 11 S.C.C. 393)

2. Where a document is executed in several parts, each part is primary

evidence of the document.(Shiv Kant Pandey v. Ishwari Singh, AIR
1997 Raj 155)

3. Where a document is executed in counterparts, each counterpart in

primary evidence against the party signing it.

In Kamla Rajamanikham v. Sushila Thakur das , AIR

1983 All. 90. it was held that where a number of documents are all made
by one uniform process, for example, by printing, lithography or
photography, each is primary evidence of the contents of the document.
Where a document is executed in several parts, each part is primary
evidence of the document.

2. SECONDARY EVIDENCE
63. Secondary evidence means and includes…….
1. Certified copies given under the provisions hereinafter contained;
2. Copies made from the original by mechanical processes which in
themselves insure the accuracy of the copy and copies compared with
such copies;
3. Copies made from or compared with the original;
4. Counterparts of documents as against the parties who did not execute
them;
5. Oral accounts of the contents of a document given by some person who
has himself seen it.

The most remarkable among the types of secondary evidence by

the section is the oral or parol evidence of the contents of a document.
Thus, it follows the oral evidence of the contents of a document can be
given. There are two conditions of a relevancy of such evidence. Firstly,
party offering oral evidence must be entitled to give secondary evidence of
such document. The circumstances in which secondary evidence can be
given are listed in section 65 should exist so as to enable, the party to give
secondary evidence of a document in question. The second condition is that
the oral account of the contents of a document must be that of a person who
SCJ..BOBBILI 7 OF 31 02.09.2023

has himself seen it. Once these conditions are satisfied, the party can give
oral evidence of the contents of the document even if he has attested copy
in his possession.

3. DIFFERENCE BETWEEN PRIMARY EVIDENCE

AND SECONDARY EVIDENCE

Primary Evidence Secondary Evidence

1. Primary evidence is original 1. Secondary evidence is the document

document. Which is presented to which is not original document but those
the court for its inspection. documents which are mentioned in
section 68.
2. Primary evidence is the best 2. Secondary evidence is not best
evidence in all circumstances. evidence but is evidence of secondary
nature and is admitted in exceptional
circumstances mentioned in section 63.

3. Giving primary evidence is 3. Giving secondary evidence is exception

general rule. to the general rule.

4. No notice is required before 4. Notice is required to be given before

giving primary evidence giving secondary evidence.

5. The value of primary evidence is 5. The value of secondary evidence is

highest. not as that of primary evidence.

4. CASES IN WHICH SECONDARY EVIDENCE RELATING

TO DOCUMENTS MAY BE GIVEN

S. 65 deal with these kinds of cases and it reads as-: Secondary

evidence may be given of the existence, condition or contents of a document
in the following cases:

(a) When the original is shown or appears to be in the possession or power

of the person against whom the document is sought to be proved,
or
of any person out of reach of, or not subject to, the process of the
Court, or of any person legally bound to produce it, and when, after
the notice mentioned in Section 66, such person does not produce
it;
SCJ..BOBBILI 8 OF 31 02.09.2023

(b) When the existence, condition or contents of the original have been
proved to be admitted in writing by the person against whom it is
proved or by his representative in interest;

(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;

(d) When the original is of such a nature as not to be easily movable;

(e) When the original is a public document within the meaning of

Section 74;

(f) When the original is a document of which a certified copy is

permitted by this Act, or by any other law in force in India to be given in
evidence;

(g) When the originals consist of numerous accounts or other

documents which cannot conveniently be examined in Court and the fact
to be proved is the general result of the whole collections.

In cases (a), (c) and (d), any secondary evidence of the

contents of the documents is admissible.

In case (b), the written admission is admissible.

In case (e) or (f), a certified copy of the document, but no

other kind of secondary evidence, is admissible.

In case (g), evidence may be given as to the general result of

the documents by any person who has examined them, and who is skilled in
the examination of such documents.

5. OTHER KINDS OF DOCUMENTS

A. PUBLIC DOCUMENTS
SCJ..BOBBILI 9 OF 31 02.09.2023

S.74 deals with the public documents which reads as -:

The following documents are Public documents-
1. Documents forming the acts or records of the acts
a) Of the sovereign authority,
b) Of Official bodies and Tribunals, and
c) Of public officers, legislative, judicial and executive, of any part of India
or of the Commonwealth, or of a foreign country.

2. Public records kept in any State of private documents.

Documents forming the acts or records of the act of the

sovereign authority, namely, the parliament and the legislative assemblies,
or of the official bodies and tribunals, and of public officers, legislative,
judicial and executive, of any pert of India or of the commonwealth, or of a
foreign country, are public documents (Octavious Steel Co. v. Endoram
Tea Co., AIR 1980 Cal. 83)
Private documents which are registered in the public
offices also become public documents.

B. PRIVATE DOCUMENTS
Section 75 of the Act deals with the Private Documents
and lay down that all other documents are private

C. DIFFERENCE BETWEEN PUBLIC DOCUMENT

AND PRIVATE DOCUMENT

Public Document Private Document

1. Public document is prepared by 1. Private document are those

public servants in discharge of documents which are prepared
his public duties. by a person for his private
interest under his private right.
2. Public documents are available 2. Public documents are kept in
for inspection to the public in custody of the person to whom it
public office during appointed belongs and is not available for
time after payment of fixed fee. general inspection to the public.

3. The secondary copy of public 3. Before proving one of conditions

document is to be admitted in laid down under section 65 the
judicial proceedings. secondary evidence of original
document is not to be admitted
SCJ..BOBBILI 10 OF 31 02.09.2023

in judicial proceedings.

4. As general rule the public 4. As general rule the private

document is proved by document is to be proved by
secondary evidence. original i.e. by primary evidence.

5. The court is bound to presume 5. No presumption is made about

the genuineness of public genuineness of original
document from their duly document from secondary
certified secondary copy. evidence of private document
except in some exceptional
circumstances.

6. PROOF OF PUBLIC DOCUMENTS

The rule relating to proof of public documents is that they can
be proved by producing certified copies. It means that public documents
are always provable by secondary evidence. This first provision which deals
with this is section 76 which says about the Certified copies of public
documents-: Every public officer having the custody of a public document,
which any person has a right to inspect, shall give that person on demand a
copy of it on payment of the legal fees therefor, together with a certificate
written at the foot of such copy that it is a true copy of such document or
part thereof, as the case may be, and such certificate shall be dated and
subscribed by such officers with his name and his official title, and shall be
sealed whenever such officer is authorized by law to make use of a seal, and
such copies so certified shall be called certified copies.
Explanation - Any officer who, by the ordinary course of official
duty, is authorized to deliver such copies, shall be deemed to have the
custody of such documents within the meaning of this section.

7. ELECTRONIC EVIDENCE / DIGITAL EVIDENCE

The Information Technology Act, 2000 and its amendment
is based on the United Nations Commission on International Trade Law
(UNCITRAL) model Law on Electronic Commerce. The Information
Technology (IT) Act 2000, was amended to allow for the admissibility of
digital evidence. An amendment to the Indian Evidence Act 1872, the Indian
Penal Code 1860 and the Banker's Book Evidence Act 1891 provides the
legislative framework for transactions in electronic world. Digital evidence
or electronic evidence is any probative information stored or transmitted in
digital form that a party to a court case may use at trial. Before accepting
digital evidence it is vital that the determination of its relevance, veracity
and authenticity be ascertained by the court and to establish if the fact is
SCJ..BOBBILI 11 OF 31 02.09.2023

hearsay or a copy is preferred to the original. Digital Evidence is

“information of probative value that is stored or transmitted in binary
form”. Evidence is not only limited to that found on computers but may also
extend to include evidence on digital devices such as telecommunication or
electronic multimedia devices. The e-EVIDENCE can be found in e-mails,
digital photographs, ATM transaction logs, word processing, documents,
instant message histories, files saved from accounting programs,
spreadsheets, internet browser histories databases, Contents of computer
memory, Computer backups, Computer printouts, Global Positioning System
tracks, Logs from a hotel’s electronic door locks, Digital video or audio files.
Digital Evidence tends to be more voluminous, more difficult to destroy,
easily modified, easily duplicated, potentially more expressive and more
readily available.

The definition of 'evidence' under Section 3 of the Evidence

Act, 1872 has been amended to include electronic records. The
definition of 'documentary evidence' has been amended to include all
documents, including electronic records produced for inspection by the
court.

The term 'electronic records' has been given the same

meaning as that assigned to it under the IT Act. IT Act provides for "data,
record or data generated, image or sound stored, received or sent in
an electronic form or microfilm or computer-generated microfiche".
The definition of 'admission' (Section 17 of the Evidence Act) has been
changed to include a statement in oral, documentary or electronic form
which suggests an inference to any fact at issue or of relevance. New
Section 22-A has been inserted into Evidence Act, to provide for the
relevancy of oral evidence regarding the contents of electronic records. It
provides that oral admissions regarding the contents of electronic records
are not relevant unless the genuineness of the electronic records produced
is in question. The definition of 'evidence' has been amended to include
electronic records. The definition of 'documentary evidence' has been
amended to include all documents, including electronic records produced
for inspection by the court. New sections 65-A and 65-B are introduced to
the Evidence Act, under the Second Schedule to the IT Act.

Section 65-A provides that the contents of electronic records

may be proved in accordance with the provisions of Section 65-B. Section
65-B provides that notwithstanding anything contained in the
Evidence Act, any information contained in an electronic, is deemed
to be a document and is admissible in evidence without further proof
SCJ..BOBBILI 12 OF 31 02.09.2023

of the original's production, provided that the conditions set out in

Section 65-B are satisfied. The conditions specified in Section 65-B
(2) are:

1. Firstly, the computer output containing the information should have

been produced by the computer during the period over which the
computer was used regularly to store or process information for the
purpose of any activities regularly carried on over that period by the
person having lawful control over the use of the computer.

2. The second requirement is that it must be shown that during the said
period the information of the kind contained in electronic record or of
the kind from which the information contained is derived was
'regularly fed into the computer in the ordinary course of the said
activity'.

3. A third requirement is that during the material part of the said

period, the computer was operating properly and that even if it was
not operating properly for some time that break did not affect either
the record or the accuracy of its contents.

4. The fourth requirement is that the information contained in the

record should be a reproduction or derived from the information fed
into the computer in the ordinary course of the said activity.

Under Section 65-B(4) the certificate which identifies the

electronic record containing the statement and describes the manner in
which it was produced giving the particulars of the device involved in the
production of that record and deals with the conditions mentioned in
Section 65-B(2) and is signed by a person occupying a responsible official
position in relation to the operation of the relevant device 'shall be evidence
of any matter stated in the certificate’.

Section 65-B(1) states that if any information contained in an

electronic record produced from a computer (known as computer output)
has been copied on to a optical or magnetic media, then such electronic
record that has been copied 'shall be deemed to be also a document' subject
to conditions set out in Section 65-B(2) being satisfied. Both in relation to
the information as well as the computer in question such document 'shall be
admissible in any proceedings when further proof or production of the
original as evidence of any contents of the original or of any fact stated
therein of which direct evidence would be admissible.'
SCJ..BOBBILI 13 OF 31 02.09.2023

CASE LAW'S

1. Amitabh Bagchi Vs. Ena Bagchi (AIR 2005 Cal 11)

[Sections 65-A and 65-B of Evidence Act, 1872 were analyzed.] The court
held that the physical presence of person in Court may not be required for
purpose of adducing evidence and the same can be done through medium
like video conferencing. Sections 65-A and 65-B provide provisions for
evidences relating to electronic records and admissibility of electronic
records, and that definition of electronic records includes video
conferencing.

2. State of Maharashtra vs. Dr Praful B Desai (AIR 2003 SC

2053) [The question involved whether a witness can be examined by means
of a video conference.] The Supreme Court observed that video
conferencing is an advancement of science and technology which
permits seeing, hearing and talking with someone who is not physically
present with the same facility and ease as if they were physically present.
The legal requirement for the presence of the witness does not mean actual
physical presence. The court allowed the examination of a witness through
video conferencing and concluded that there is no reason why the
examination of a witness by video conferencing should not be an essential
part of electronic evidence.

3. BODALA MURALI KRISHNA VS. SMT. BODALA PRATHIMA

(2007 (2) ALD 72) The court held that, “…the amendments carried to the
Evidence Act by introduction of Sections 65-A and 65-B are in relation to
the electronic record. Sections 67-A and 73-A were introduced as regards
proof and verification of digital signatures. As regards presumption to be
drawn about such records, Sections 85-A, 85-B, 85-C, 88-A and 90-A were
added. These provisions are referred only to demonstrate that the
emphasis, at present, is to recognize the electronic records and digital
signatures, as admissible pieces of evidence.”

4. DHARAMBIR Vs. CENTRAL BUREAU OF INVESTIGATION

(148 (2008) DLT 289).The court arrived at the conclusion that when
Section 65-B talks of an electronic record produced by a computer referred
to as the computer output) it would also include a hard disc in which
information was stored or was earlier stored or continues to be stored. It
distinguished as there being two levels of an electronic record. One is the
SCJ..BOBBILI 14 OF 31 02.09.2023

hard disc which once used itself becomes an electronic record in relation to
the information regarding the changes the hard disc has been subject to
and which information is retrievable from the hard disc by using a software
program. The other level of electronic record is the active accessible
information recorded in the hard disc in the form of a text file, or sound file
or a video file etc. Such information that is accessible can be converted or
copied as such to another magnetic or electronic device like a CD, pen
drive etc. Even a blank hard disc which contains no information but was
once used for recording information can also be copied by
producing a cloned or a mirror image.

5. In STATE (NCT OF DELHI) Vs. NAVJOT SANDHU (AIR

2005 SC 3820) ( overruled with regard to certificate under Section
65-B(4) of the Evidence Act only ) it was an appeal against conviction
following the attack on Parliament on December 13 2001. This case dealt
with the proof and admissibility of mobile telephone call records. While
considering the appeal against the accused for attacking Parliament, a
submission was made on behalf of the accused that no reliance could be
placed on the mobile telephone call records, because the prosecution had
failed to produce the relevant certificate under Section 65-B(4) of the
Evidence Act. The Supreme Court concluded that a cross-examination of the
competent witness acquainted with the functioning of the computer during
the relevant time and the manner in which the printouts of the call records
were taken was sufficient to prove the call records. Their lordship ruled
as follows:
“The call records relating to cellular phones
are admissible and reliable and rightly made
use of by the prosecution. In the instant case the
computer, at the first instance, instead of recording
the IMEI number of the mobile instrument, had
recorded the IMEI and cell ID (location) of the
person calling/called by the subscriber. The
computer rectified this obvious error immediately
and modified the record to show the correct details
viz., the IMEI and the cell ID of the subscriber only.
The document is self-explanatory of the error. A
perusal of both the call records with reference to
the call at 11 : 19 : 14 hours exchanged between
9811489429 (Shaukat's) and 9811573506 (Afzal's)
shows that the said call was recorded twice in the
call records. The fact that the same call has been
recorded twice in the call records of the calling and
called party simultaneously demonstrates beyond
SCJ..BOBBILI 15 OF 31 02.09.2023

doubt that the correctness or genuineness of the

call is beyond doubt. Further, on a comparative
perusal of the two call records, the details of Cell
I.D. and IMEI of the two numbers are also recorded.
Thus, same call has been recorded two times, first
with the cell ID and IMEI number of the calling
number (9811489429). The same explanation holds
good for the call at 11 : 32 : 40 hours. Far from
supporting the contention of the defence, the above
facts, evident from the perusal of the call records,
would clearly show that the system was working
satisfactorily and it promptly checked and rectified
the mistake that occurred. It was not suggested nor
could it be suggested that there was any
manipulation or material deficiency in the computer
on account of these two errors. Above all, the
printouts pertaining to the call details exhibited by
the prosecution are of such regularity and
continuity that it would be legitimate to draw a
presumption that the system was functional and the
output was produced by the computer in regular
use, whether this fact was specifically deposed to
by the witness or not.”

6. JAGJIT SINGH Vs. STATE OF HARYANA ((2006) 11 SCC 1)

The speaker of the Legislative Assembly of the State of Haryana
disqualified a member for defection. When hearing the matter, the Supreme
Court considered the digital evidence in the form of interview transcripts
from the Zee News television channel, the Aaj Tak television channel and
the Haryana News of Punjab Today television channel. The court
determined that the electronic evidence placed on record was admissible
and upheld the reliance placed by the speaker on the recorded interview
when reaching the conclusion that the voices recorded on the CD were
those of the persons taking action. The Supreme Court found no
infirmity in the speaker's reliance on the digital evidence and the
conclusions reached by him. The comments in this case indicate a trend
emerging in Indian courts: judges are beginning to recognize and
appreciate the importance of digital evidence in legal proceedings.

7. TWENTIETH CENTURY FOX FILM CORPORATION Vs. NRI

FILM PRODUCTION ASSOCIATES (P) LTD. (AIR 2003 KANT 148) In
this case certain conditions have been laid down for video-recording of
evidence:
SCJ..BOBBILI 16 OF 31 02.09.2023

 Before a witness is examined in terms of the Audio-Video Link, witness

is to file an affidavit or an undertaking duly verified before a notary or a
Judge that the person who is shown as the witness is the same person as
who is going to depose on the screen. A copy is to be made available to the
other side. (Identification Affidavit).

 The person who examines the witness on the screen is also to file an
affidavit/undertaking before examining the witness with a copy to the other
side with regard to identification.

 The witness has to be examined during working hours of Indian

Courts. Oath is to be administered through the media.

 The witness should not plead any inconvenience on account of time

different between India and USA.

 Before examination of the witness, a set of plaint, written statement

and other documents must be sent to the witness so that the witness has
acquaintance with the documents and an acknowledgement is to be filed
before the Court in this regard.

 Learned Judge is to record such remarks as is material regarding

the demur of the witness while on the screen.

 Learned Judge must note the objections raised during recording

of witness and to decide the same at th at the time of visual conference and
notary is to certificate to this effect.

 The learned Judge is to fix time of arguments.

 After recording the evidence, the same is to be sent to the

witness and his signature is to be obtained in the presence of a
Notary Public and thereafter it forms part of the record of the suit
proceedings.

 The visual is to be recorded and the record would be at both

ends. The witness also is to be alone may also impose such other conditions
as are necessary in a given set of facts.

 The expenses and the arrangements are to be borne by the applicant

who wants this facility.

8. The Hon'ble Supreme Court in ANVAR P.V. VERSUS, P.K.

SCJ..BOBBILI 17 OF 31 02.09.2023

BASHEER AND OTHERS, in CIVIL APPEAL NO. 4226 OF 2012 decided on

Sept., 18, 2014, That Computer Output is not admissible without
Compliance of 65B,EA overrules the judgment laid down in the State
(NCT of Delhi) v. Navjot Sandhu alias Afzal Guru[(2005) 11 SCC 600
by the two judge Bench of the Supreme Court. The court specifically
observed that the Judgment of Navjot Sandhu supra, to the extent, the
statement of the law on admissibility of electronic evidence pertaining to
electronic record of this court, does not lay down correct position and is
required to be overruled. This judgment has put to rest the controversies
arising from the various conflicting judgments and thereby provided a
guideline regarding the practices being followed in the various High Courts
and the Trial Court as to the admissibility of the Electronic Evidences. The
legal interpretation by the court of the following Sections 22A, 45A, 59, 65A
& 65B of the Evidence Act has confirmed that the stored data in
CD/DVD/Pen Drive is not admissible without a certificate u/s 65 B(4) of
Evidence Act and further clarified that in absence of such a certificate, the
oral evidence to prove existence of such electronic evidence and the expert
view under section 45A Evidence Act cannot be availed to prove
authenticity thereof.

In the Judgment, the Hon’ble Supreme Court has held that

Section 65B of the Evidence Act being a ‘none obstante clause’ would
override the general law on secondary evidence under Section 63 and 65 of
the Evidence Act. The section 63 and section 65 of the Evidence Act
have no application to the secondary evidence of the electronic
evidence and same shall be wholly governed by the Section 65A and
65B of the Evidence Act.

The only alternative to prove the electronic

record/evidence is by producing the original electronic media as
Primary Evidence to the court or it’s copy by way secondary evidence
u/s 65A/65B of Evidence Act. Thus, in the case of CD, VCD, chip, etc., the
same shall be accompanied by the certificate in terms of Section 65B
obtained at the time of taking the document, without which, the secondary
evidence pertaining to that electronic record, is inadmissible. In the present
case, the court observed that:
“The appellant admittedly has not produced
any certificate in terms of Section 65B in respect
of the CDs, Exhibits-P4, P8, P9, P10, P12, P13,
P15, P20 and P22. Therefore, the same cannot be
admitted in evidence. Thus, the whole case set up
regarding the corrupt practice using songs,
announcements and speeches fall to the ground.”
SCJ..BOBBILI 18 OF 31 02.09.2023

This judgment will have severe implications in all the cases

where the parties relies heavily on the electronic data specially those cases
where the audio-video recordings are produced in the form of CD/DVD
before the court. It has been specified in the judgment that Genuineness,
Veracity or Reliability of the evidence is looked into by the court
subsequently only after the relevance and admissibility is fulfilled. The
requirement to ensure the source and authenticity, pertaining to electronic
records is because it is more vulnerable to tampering, alteration,
transposition, excision, etc. without such safeguards, the whole trial based
on proof of electronic records can lead to injustice.

MODE OF PROOF OF DOCUMENTS

In order to prove the documents original document is to be

produced. Contents of it are to be proved so also signature on the same
have to be proved. When document appeals to the conscious of the Court
that it is genuine, contents of the same need not be proved (AIR 2001 SC
318 “M. Narsinga Rao vs. State of Andhra Pradesh”). Mere marking of
a document cannot be said to be the proof of said document. The document
has to be proved in accordance with law and the same has to be appreciated
in order to ascertain the genuineness of the document with other materials
available on record. In that context, both the parties would get ample
opportunity to counter those documents as well to submit their arguments
with reference to the evidence already recorded by the court. S.
Ravichandra vs. M/s. Elements Development Consultants, Bengaluru,
2018 Cri. LJ 4314 (Kar).

1. PROOF OF CONTENTS OF DOCUMENTS:

Normally, any party who wants to prove the content of the
document is required to lead evidence by production of the original
document before the court through its author. Under Section 61, the
original document can be presented before the Court through the author,
who created the document and it can be proved. G. Subbaraman vs.
State, 2018 Cri. LJ 2377 (Mad).The legal position is not in dispute that
mere production and making 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.
Birendra Kumar Jaiswal, 2003 (8) SCC 745: AIR 2004 SC 175; Alamelu vs.
State represented by Inspector of Police, 2011 (2) SCC 385: AIR 2011 SC
715. A document is required to be produced and proved according to law to
SCJ..BOBBILI 19 OF 31 02.09.2023

be called evidence. Whether such evidence is relevant, irrelevant,

admissible or inadmissible, is a matter of trial. Hardeep Singh vs. State of
Punjab, 2014 (3) SCC 92.

The recitals in the document do not become a part of the

evidence. They are assertions by a person who is alive and who might have
been brought before the Court if either of the parties to the suit had so
desired. This distinction is frequently overlooked and when a document has
been admitted in evidence as evidence of a transaction the parties are often
apt to refer to the recitals therein as relevant evidence. Nihar Bera vs.
Kadar Bux Mohammed, AIR 1923 Cal 290.

2. ADMISSIBILITY OF CARBON COPY OF DOCUMENTS:

Since the carbon copy was made by one uniform process the
same was primary evidence within the meaning of Explanation 2 to
Section 62 of the Evidence Act. Therefore, the medical certificate was
clearly admissible in evidence. Prithi Chand vs. State of Himachal Pradesh,
1989 (1) SCC 432: 1989 Cri. LJ 841 (SC).

3. ADMISSIBILITY OF COUNTERPART ORIGINALS:

Section 62 of Evidence Act deals with Primary evidence.
Explanation no. 2 says that where a number of documents are made by one
uniform process, each is primary evidence of the contents of the rest.
Under Explanation 2, all the documents must be taken at a time under one
uniform process in which case, each of such documents is a primary
evidence of the contents of the rest. Printing, cyclostyle, lithography are
some mechanisms which are recognized under law through which
documents can be obtained under a uniform process. Thus, documents
prepared under the uniform process of either printing or cyclostyle or
lithography cannot be mere copies in strict legal sense of the term, in fact,
they are all counterpart originals and each of such documents is a primary
evidence of its contents under Sections 45 and 47 of the Evidence Act.
Surinder Dogra vs.State, 2019 Cri. LJ 3580 (J&k).

4. PROOF OF EXECUTION OF DOCUMENTS:

A. PROOF OF HANDWRITING:
Except when judicial notice is taken of official signatures, the
handwriting or signature of unattested documents must be proved. If a
document is alleged to be signed or to have been written wholly or in part
by any person, the signature or the handwriting of so much of the document
SCJ..BOBBILI 20 OF 31 02.09.2023

as is alleged to be in that person’s handwriting must be proved to be in his

handwriting. This can be done in the following ways:
1. By calling the writer;
2. by an expert;
3. by a witness who is familiar with the handwriting of the writer; (AIR
1983 SC 684 “State of Bihar vs. Radha Krishna Singh”)
4. by comparison of the disputed writing, signature or seal with some
other admitted or proven writing, signature or seal of the person; or
5. by admission of the party against whom the document is tendered.

B. PROOF OF ATTESTATION:
If a document is required to be attested by law, it must not be
used as evidence until one attesting witness at least has been called for the
purpose of proving its execution, if such a witness is alive and subject to the
process of the Court and capable of giving evidence. (“H. Venkatachala
Iyengar vs. B.N. Thimmajamma” AIR 1959 SC 443 ) If there is no
denial of execution of document, then it is not necessary to call a witness
for the purpose of proving the same.

For the purpose of valid attestation of a Will under Sec. 63, it is

absolutely necessary that the attesting should either sign or affix thumb
impression or mark himself, as the Section does not permit an attesting
witness to delegate that function to another. In 2010 AIR SCW 3935
S.R.Srinivasa & others vs. S. Padmavathamma, it is held that mere
signature of scribe cannot be taken as proof of attestation without
evidence regarding other witnesses to Will.

C. STATUS OF SCRIBE:
The party who sees the Will executed, is in fact a witness to it; if he
subscribes as a witness, he is then an attesting witness. The scribe or writer
of a document may perform a dual role; he may be an attesting witness as
well as the writer.

D. SUB-REGISTRAR AND IDENTIFYING WITNESSES:

A Will is not required by law to be registered Sec. 63 of Indian
Succession Act, merely requires that the Will should be attested by two or
more witnesses,. Each of whom, has either seen the testator sign, or affix
his mark to the Will, or has received a personal acknowledgment of his
SCJ..BOBBILI 21 OF 31 02.09.2023

signature from the testator, and each of the witnesses should sign the Will
in the presence of the testator- no matter when, but before the Will had
come into operation; where before it was presented for registration, it bore
the signature of only one attesting witness, the signature of sub-registrar
and of another person who are proved to have signed the Will in the
presence of the testator, though as registering authority or an identifying
witness, after its execution had been admitted before them by the testator
must be regarded as sufficient compliance with Sec. 63 Succession Act.
(AIR 2005 SC 4362 Pentakota Satyanarayana vs. Pentakota
Seetharatnam.)

SUMMARY:
Subject to the proviso, the rules regarding may be thus summarized:
i) An attested document not required by law to be attested may be proved
as if it was unattested.

ii) The Court shall presume that every document called for and not
produced after notice to produce, was attested in the manner
prescribed by law.

iii) There is a presumption of due attestation in the case of document thirty

years old. The Court may in such cases dispense with proof of
attestation.

iv) Where a document is required by law to be attested, and there is an

attesting witness available, then, subject to the proviso, at least one
attesting witness must be called.

v) If there be no attesting witness available, or if the document purports to

have been executed in a foreign country, it must be proved by other
evidence that the attestation of one attesting witness at least in his
handwriting, and that the signature of the person executing the
document is in his handwriting of that person.

vi) The admission of a party to an attested document of its execution will, so

far as such party is concerned, supersede the necessity of either
calling the attesting witnesses or of giving any other evidence.
SCJ..BOBBILI 22 OF 31 02.09.2023

vii) If the attesting witness available denies or does not recollect the
execution of the document, its execution may be proved by other
evidence. But where he fails to prove the execution of the
document, the document is not legally proved.

E. WHEN ATTESTING WITNESS NEED NOT BE CALLED.

i) when the document is a registered one and its execution is not specifically
denied.

ii) Even though the execution of a Will is admitted, attesting witness has to
be examined. {2008 (3) KCCR 1484 (23 and 31)}

iii) When there is no attesting witness available.

iv) When a party to the document against whom, it is sought to be used,

admits its execution.

v) When the document is not required by law to be attested.

vi) When the document is thirty years old and there is a presumption of due
attestation.

vii) When document is called for and not produced.

viii) When the document is a Will admitted to probate in India, in which case
it may by the probate.

Burden to repel suspicious circumstances regarding

execution of will When there are suspicious circumstances regarding the
execution of will, the onus is also on the propounder to explain them to
the satisfaction of the Court and only when such responsibility is
discharged, the Court would accept the Will as genuine. ( Shashi Kumar
Banerjee vs. Chandraraja Kadamba (1973) 3 SCC 291 = AIR 1972 SC 2492,
K. Lakshmanan vs. Thekkayil Padmini (2009) 1 SCC 354 = AIR 2009 SC
951, Mahesh Kumar vs. Vinod Kumar (2012) 4 SCC 387.)

F. EFFECT OF REGISTRATION OF WILL:

Registration of Will is a piece of Evidence confirming its
genuineness and can confirm it a higher degree of sanctity. However the
SCJ..BOBBILI 23 OF 31 02.09.2023

proof is as stated above. ( S.R. Sreenivasa vs. S. Padmavathamma (2010) 5

SCC 274.)

GUIDELINES AS TO GENUINENESS OF WILL:

Guidelines as to genuineness of will and testator’s mind had been
provided in Navneeth lal @ rangi vs. Gokul, AIR 1976 SC 794 as follows.

(a) In construing a document whether in English or in vernacular the

fundamental rule is to ascertain the intention from the words used;
the surrounding circumstances being considered to find out the
intended meaning of such words employed therein.
(b) In construing the language of the Will the court is entitled to put itself
into the testator's armchair and is bound to bear in mind also other
matters than merely the words used like the surrounding
circumstances, the position of the testator, his family relationship,
the probability that he would use words in a particular sense-all as an
aid to arriving at a right construction of the Will, and to ascertain
the meaning of its language when used by that particular testator in
that document.

(c) The true intention of the testator has to be gathered not by attaching
importance to isolated expressions but by reading the Will as a whole
with all its provisions and ignoring none of them as redundant or
contradictory.

(d) The court must accept, if possible, such construction as would give to
every expression some effect rather than that which would render any
of the expression inoperative. The court will look at the
circumstances under which the testator makes his Will, such as the
state of his property, of his family and the like. Where apparently
conflicting dispositions can be reconciled by giving full effect to every
word used in a document, such a construction should be accepted
instead of a construction which would have the effect of cutting
down the clear meaning of the words used by the testator. Further,
where one of the two reasonable constructions would lead to
intestacy, that should be discarded in favour of a construction which
does not create and such hiatus.

(e) It is one of the cardinal principles of construction of Wills that to the

extent that it is legally possible effect should be given to every
SCJ..BOBBILI 24 OF 31 02.09.2023

disposition contained in the Will unless the law prevents effect being
given to it. Of course, if there are two repugnant provisions
conferring successive interests, if the first interest created is valid
the subsequent interest cannot take effect but a court of construction
will proceed to the farthest extent to avoid repugnancy, so that effect
could be given as far as possible to every testamentary intention
contained in the Will.

G. PROOF WHERE NO ATTESTING WITNESS FOUND: (Sec. 69)

The words ‘can be found’ in the Section are not very appropriate
and must be interpreted to include not only cases where the witness cannot
be produced because he cannot be traced but also cases where the witness
for reasons of physical or mental disability, or for other reasons, when the
Court considers sufficient, is no longer a competent witness for the purpose,
as is provided in Sec. 68 of the Act. If no attesting witness is available, it
must be proved that attestation of one attesting witness is in his own
handwriting and that the signature of the executants is in his handwriting.

H. CERTIFIED COPY OF 30 YEARS OLD :

Mere production of a certified copy of a document more than 30
years old, is not sufficient to raise a presumption under Sec. 90 of
Evidence Act, regarding the genuineness or execution, although, the
certified copy may be used to prove the contents of the document. Mere
production of a certified copy of the registered document would not amount
to proving the original deed by way of secondary evidence. ( AIR 1935 PC
132 – Basant Singh vs. Brij Raj Saran and AIR 1956 SC 305 – Harihar
Prasad vs. Deo Narain. AIR 2007 SC 2577 – Ramchandra Sakharam
Mahajan vs. Damodar Trimbak Tanksale.)

I. PROOF OF LOST OR DESTROYED DOCUMENTS:

Secondary evidence can be accepted by the Court for the
existence, condition or contents of a document if the original has been lost
or destroyed. In this regard, the decision reported in AIR 1979 SC 1567
“Aher Rama Gova vs. State of Gujarat” may be relied upon. The loss of
original must be proved. ( (1962) 1 SCR 827 State of Bihar vs. Karam
Chand Thapar )
SCJ..BOBBILI 25 OF 31 02.09.2023

J. ADMISSIBILITY OF COPIES OBTAINED UNDER RTI ACT.

The documents obtained under RTI Act can be admitted as
secondary evidence, as they are obtained under a particular enactment,
which fall within ambit of by “any other law in force in India”

However, information relating to how a judge has come to

conclusion in a particular case can not be sought under Right to
Information Act. In Khanapuram Gandaiah vs. Administrative Officer AIR
2010 SC 615 , it was held in Paras 6 and 7 that:
“Definition of 'information' u/S. 2 (f) shows that an
applicant under Section 6 of the RTI Act can get any
information which is already in existence and
accessible to the public authority under law. Of course,
under the RTI Act an applicant is entitled to get copy
of the opinions, advices, circulars, orders, etc., but he
cannot ask for any information as to why such
opinions, advices circulars, orders, etc. have been
passed, especially in matters pertaining to judicial
decisions. A judge speaks through his judgments or
orders passed by him. If any party feels aggrieved by
the order/judgment passed by a judge, the remedy
available to such a party is either to challenge the
same by way of appeal or by revision or any other
legally permissible mode. No litigant can be allowed to
seek information as to why and for what reasons the
judge had come to a particular decision or conclusion.
A judge is not bound to explain later on for what
reasons he had come to such a conclusion. Moreover,
in the instant case, the petitioner submitted his
application under Section 6 of the RTI Act before the
Administrative Officer-cum-Assistant State Public
Information Officer seeking information in respect of
the questions raised in his application. However, the
Public Information Officer is not supposed to have any
material which is not before him; or any information
he could have obtained under law. Under section 6 of
the RTI Act, an applicant is entitled to get only such
information which can be accessed by the "Public
authority" under any other law for the time being in
force. The answers sought by the petitioner in the
application could not have been with the public
authority nor could he have had access to this
information. A judge cannot be expected to give
SCJ..BOBBILI 26 OF 31 02.09.2023

reasons other than those that have been enumerated

in the judgment or order. Application before public
authority seeking such information is therefore
per se illegal, unwarranted.
A judicial officer is entitled to get protection
and the object of the same is not to protect malicious
or corrupt judges, but to protect the public from the
dangers to which the administration of justice would
be exposed if the concerned judicial officers were
subject to inquiry as to malice, or to litigation with
those whom their decisions might offend. If anything
is done contrary to this, it would certainly affect the
independence of the judiciary. A judge should be
free to make independent decisions”

H. ADMISSIBILITY OF ELECTRONIC EVIDENCE : SECTION 65-B

The applicability of procedural requirement under Section 65-
B(4) of the Evidence Act of furnishing certificate is to be applied only when
such electronic evidence is produced by a person who is in a position to
produce such certificate being in control of the said device and not of the
opposite party. In a case where electronic evidence is produced by a party
who is not in possession of a device, applicability of Sections 63 and 65 of
the Evidence Act cannot be held to be excluded. In such case, procedure
under the said sections can certainly be invoked. If this is not so permitted,
it will be denial of justice to the person who is in possession of authentic
evidence/witness but on account of manner of proving, such document is
kept out of consideration by the court in absence of certificate under
Section 65-B(4) of the Evidence act, which party producing cannot possibly
secure. Thus, requirement of certificate under Section 65-B(4) is not
always mandatory. Accordingly, the legal position was clarified on the
subject on the admissibility of the electronic evidence, especially by a party
who is not in possession of device from which the document is produced.
Such party cannot be required to produce certificate under Section 65-B(4)
of the Evidence Act. The applicability of requirement of certificate being
procedural can be relaxed by the Court wherever interest of justice so
justifies. Shafhi Mohammad vs. State of Himachal Pradesh, 2018 Cri. LJ
1714 : 2018 (1) Crimes 125: (2018) 2 SCC 807: AIR 2018 SC 714.; Sonu @
Amar vs. State of Haryana, 2017 Cri. LJ 4352 :(2017) 8 SCC 570 and
Kishin T. Punjabi vs. Suresh Kothari, 2020 (5) KCCR SN 53.
SCJ..BOBBILI 27 OF 31 02.09.2023

I. EFFECT OF NON-PRODUCTION OF CERTIFICATE:

The Court emphasised that non-production of a certificate under
Section 65B on an earlier occasion is a curable defect. Union of India vs.
Ravindra V. Desai, (2018) 16 SCC 272: AIR 2018 SC 2754.

5. PRESUMPTIONS AS TO DOCUMENTS
There are two types of Presumptions. One is Presumption of Law
and another is Presumption of Fact. To have a better understanding of the
same, one must read Secs.8, 86, 87, 88, 88(A), 90, 90(A), 113(A) and 114 of
Evidence Act. So, far as presumption of law is concerned there are two
types of presumption of law -one is rebuttable i.e. Compelling Presumption
and another is irrebuttable Presumption i.e. Conclusive Presumption. ( AIR
1979 SC 1848) .

6. WHETHER REVENUE RECORD IS DOCUMENT OF TITLE:

In AIR 2008 SC 901 “Gurunath Manohar Pavaskar vs. Nagesh
Siddappa Navalgund” is relevant, wherein it is held that:
“A revenue record is not a document of title. It merely
raises a presumption in regard to possession.
Presumption of possession and/ or continuity thereof
both forward and backward can also be raised under
Section 110 of the Indian Evidence Act. The Courts
below, were, therefore, required to appreciate the
evidence keeping in view the correct legal principles in
mind.”

7. EXECUTION OF A DOCUMENT BY PARDHANASHIN WOMAN.

Pardanashin lady has to admit the contents of the document. In
India pardahnashin ladies have been given a special protection in view of
the social conditions of the times; they are presumed to have an imperfect
knowledge of the world, as a result by the pardah system they are
practically excluded from social intercourse and communion with the
outside world. (AIR 1925 PC 204, AIR 1963 SC 1203 “Kharbuja Kuer vs.
Jangbahadur Rai”.)
SCJ..BOBBILI 28 OF 31 02.09.2023

8. HOW TO PROVE THE PHOTOGRAPHS:

By producing both photographs and their negatives. By
examining the photographer, a person who has developed the photographs.
If other side admits the contents of the photographs, then negatives need
not be produced. In case of digital photographs, production of photos and
CD is necessary.

If the photograph confronted is admitted, then it can be said that

photograph has been proved. There may be possibility of tricking the
photograph. To avoid the tricking Court has to be more cautious. (1991
Cr.L.J. 978, AIR 1968 SC 938,).

9. VALUE OF XEROX COPIES:

Unless the original is perused, a Xerox copy with signature
cannot be marked (AIR 1994 SC 591 –Government of Andhra Pradesh vs.
Karri Chinna Venkata Reddy and others)

Whenever Xerox copy is produced, the duty of the Court is to be

much more cautious than when a copy is produced under other mechanical
process.(1990 (2) ALT 171 – K. Neelamma vs. B. Suryanarayana,)

Secondary evidence and Admissibility - Documents in question were

admittedly photo copies - There was no possibility of said documents being
compared with original as same were with another person - Conditions in S.
65(a) had not been satisfied - Documents cannot be therefore, accepted as
secondary evidence.” (AIR 2007 SC 1721 :J. Yashoda vs. K. Shobha Rani”)

In a case where original documents are not produced at any time, nor,
any factual foundation has been led for giving secondary evidence, it is not
permissible for the Court to allow a party to adduce secondary evidence.
Thus, secondary evidence relating to the contents of a document is
inadmissible, until the non-production of the original is accounted for, so as
to bring it within one or other of the cases provided for in S. 65. The
secondary evidence must be authenticated by foundational evidence that
the alleged copy is in fact a true copy of the original. Mere admission of a
document in evidence does not amount to its proof. Therefore, the
documentary evidence is required to be proved in accordance with
law. The Court has an obligation to decide the question of admissibility of a
document in secondary evidence before making endorsement thereon.
Where the respondent had merely admitted his signature on the photocopy
SCJ..BOBBILI 29 OF 31 02.09.2023

of the power of attorney and did not admit the contents thereof and the
trial Court without examining whether contents thereof had probative
value decreed the suit for specific performance, the approach of trial Court
was held to be improper. ( AIR 2011 S C 1492 – H.Siddiqui vs. A.
Ramalingam )

10. STATUS OF POWER OF ATTORNEY :

As far as Section 85 is concerned, summary of position as to who
should give evidence in regard to power of attorney is very well stated in
the case of Mrs. Saradamani Kandappan vs. Mrs. S. Rajalakshmi – (2011)
12 SCC 18 = AIR 2011 SC 3234. The following observations are made,
they are:
(a) An attorney-holder who has signed the plaint and instituted the suit, but
has no personal knowledge of the transaction can only give
formal evidence about the validity of the power of attorney and the
filing of the suit.
(b) If the attorney-holder has done any act or handled any transactions,
in pursuance of the power of attorney granted by the principal, he
may be examined as a witness to prove those acts or
transactions. If the attorney holder alone has personal knowledge
of such acts and transactions and not the principal, the attorney-
holder shall be examined, if those acts and transactions have to be
proved.
(c) The attorney-holder cannot depose or give evidence in place of his
principal for the acts done by the principal or transactions or
dealings of the principal, of which principal alone has personal
knowledge.
(d) Where the principal at no point of time had personally handled or dealt
with or participated in the transaction and has no personal knowledge
of the transaction, and where the entire transaction has been
handled by an attorney-holder, necessarily the attorney-
holder alone can give evidence in regard to the transaction.
This frequently happens in case of principals carrying on
business through authorized managers/attorney- holders or
persons residing abroad managing their affairs through their
attorney-holders.
(e) Where the entire transaction has been conducted through a
particular attorney-holder, the principal has to examine that
SCJ..BOBBILI 30 OF 31 02.09.2023

attorney-holder to prove the transaction, and not a different

or subsequent attorney holder.
(f) Where different attorney-holder had dealt with the matter at
different stages of the transaction, if evidence has to be led as to
what transpired at those different stages, all the attorney-holders
will have to be examined.

Section 85 of the Indian Evidence Act provides that the could

shall presume that every document purporting to be a power of
attorney, and to have been executed before, and authenticated by, a
Notary Public or any Court, Judge, Magistrate, Indian Consul or Vice
Consul or the representative of the Central Government was so executed
and authenticated. Section 85 cannot be read in isolation to the specific
provision as contained under Section 14 of the Notaries Act.

11. VALUE OF TAPE RECORDED STATEMENT

Tape recorded statement is admissible in evidence. The
person who speaks must identify that it is his voice. However, Court should
guard against Bentri Loquism i.e. imitation of voice. ( AIR 2010 SC 965
Tukaram S. Dighole vs. Manikrao Shivaji Kokate.)

12. VALUE OF NEWS PAPER ITEMS:

“Newspaper reports by themselves are not evidence
of the contents thereof. Those reports are only hearsay evidence.
These have to be proved and the manner of proving a newspaper report is
well settled. Newspaper, is at the best secondary evidence of its contents
and is not admissible in evidence without proper proof of the contents
under the Evidence Act. (AIR 1994 SC 1733 “Quamarul Islam vs. S. K.
Kanta”,)

The Court cannot take judicial notice of the facts stated in

a news item being in the nature of hearsay secondary evidence, unless
proved by evidence aliunde. A Report in a news paper is only hearsay
evidence. A news papers not one of the documents referred to in Section
78(2) of Evidence Act.( Laxmi Raj Shetty vs. State of T.N. (1988) 3 SCC
319=AIR 1988 SC 1274.)
SCJ..BOBBILI 31 OF 31 02.09.2023

13. HOW TO PROVE TELEGRAM:

In anybody can send the telegram. If the telegram is challenged it is
the duty of the parties asserting it to produce the confirmation letter for
having sent the telegram and its contents. For example, the corporate
sector takes more precaution while sending the telegrams. When a
telegram is sent it should be followed by a letter who has sent the
telegram. Care is taken in corporate sector to send a copy of the letter
followed by telegram. The absence of such letter, no evidential value
can be attached to the telegram. Letter of confirmation of sending
telegram and its contents is must (AIR 1993 SC 2633).

14. EVIDENTIAL VALUE OF VOTERS LIST:

Voters list is a public document. Certified copy of the same
can be received and marked. (AIR 1991 Orissa 166, AIR 1980 Allahabad
174). But No evidentiary value can be attached with regard to the
date of birth mentioned in the identity cards as it is a self serving
statement (AIR 2004 SC 230 "Sushil Kumar vs. Rakesh Kumar")

15. VALUE OF DEPOSITIONS IN EARLIER PROCEEDINGS:

To prove the statement of a witness in earlier proceedings with
regard the admission true copy cannot be confronted. Certified copy of
the deposition can be confronted. If such deposition is admitted it
has evidentiary value (AIR 1974 SC 117 "Biswanath Prasad vs. Dwarka
Prasad"). However, if the witness in earlier proceedings has deposed that
he is the owner of Vidhana Soudha and if such deposition is produced in
subsequent proceeding it cannot be relied upon (AIR 1974 SC 280
"Krishnawati vs. Hans Raj").

16. WHETHER REGISTRATION OF A DOCUMENT DISPENSES THE

PROOF: The answer would be no (AIR 2004 SC 436 "Bhagat Ram vs.
Suresh")

BY T. VASUDEVAN,
SENIOR CIVIL JUDGE, BOBBILI.

------@@@@@@@@@@@@@--------
 1

PAPER PRESENTATION ON PRIMARY EVIDENCE AND

SECONDARY EVIDENCE

Presented By Smt. J. Sowmya Josphine,

Additional Junior Civil Judge,Bobbili.

1. Primary Evidence and Secondary Evidence.

2. Mode of Proof of Documents.

3. Competency of Witness to prove documents.

Introduction:

What is evidence?

The word ‘evidence’ has been derived from the Latin

expression ‘evidens evidere’ which translates to “to show clearly; to

make plain, certain or to prove.” Whenever a case is presented before

the court, it has to go through a lot of facts and information given by

the contesting parties. A court of law is expected to examine the truth

of those facts and deliver justice. This is where the role of ‘evidence’

comes into the picture. Evidence is that support provided to the facts

presented that prove the genuineness of those facts. It is all about

giving proof of something before the court.

As per Section 3 of the Indian Evidence Act,1872, evidence means and

includes:

1. Oral Evidence- It includes all the statements that are allowed or

need to be presented before the court by the witnesses in relation

to the matters of fact under inquiry.

 2

2. Documentary Evidence – Thisincludes such documents,

including any electronic records that are presented before the

court for examination.

1. Oral Evidence

Oral evidence basically implies words of mouth that are credible

enough to be adequate to prove a particular fact without the support of

any documentary evidence. According to Section 60 of the Indian

Evidence Act, 1872, oral evidence must have the following requisites:

1. It must be personally seen or heard by the witness.

2. If it is gathered from the perception of any other sense, then it

must be proved by the witness who claims to have perceived it

from that sense.

3. If it refers to an opinion or the grounds on which the opinion is

held, then it must be given by the person holding that opinion or

the grounds of that opinion.

4. If it refers to the existence of material other than a document,

then the court can also order the presentation of that material

for inspection.

Though hearsay evidence is not acceptable in a court of

law, Section 32 of the Indian Evidence Act, which talks about the cases

in which a statement of relevant fact by a person who is dead or cannot

be found, etc. is relevant, and Section 33 of the same Act which covers

relevancy of certain evidence for proving, in the truth of facts that are

presented, form the exceptions of this rule.

 3

2. Documentary Evidence

Whenever any evidence is presented to prove certain facts that

contain the matter expressed or described upon any material by way of

letters, marks, figures, or by more than one such method by which such

expression can be made materially, it is called documentary evidence.

Thus, it refers to evidence in physical or tangible form. Now as

per Section 61 of the Indian Evidence Act, documentary evidence could

either be primary or secondary.

The first part of theSection 91 of IEA does not deal with all kinds of

documents but only those which are dispositive in nature, i.e., which are

(a) bilateral and (b) involve transfer of rights from one party to another.

It refers to three kinds of dispositions, namely, a contract, grant, or

other disposition of property. Illustration (b) attached to Section 91

exemplifies the first part of the Section. It says, if a contract is

contained in a bill of exchange, the bill of exchange must be proved.

The second part of Section 91 of IEA refers to those cases in which

any matter is required by law to be reduced to the form of a document.

The second part has wider scope. According to this part the documents

may or may not be dispositive or bilateral in nature. Those documents

which are required by the law to be in writing are:

• Under Sections 54 and 118 of the Transfer of Property Act,

1882, sales and exchanges where the value of property is

more than Rs. 100 or more can be made only by registered

instrument.

• Under Section 59 of the Transfer of Property Act, 1882,

mortgages can be affected only by registered instruments

 4

signed by the mortgagor and attested by at least two

witnesses.

• Under Section 107 of the Transfer of Property Act, 1882 and

Section 17(1)(d) of the Registration act, 1908, lease of

immovable property from year to year, or any term

exceeding one year, or reserving a yearly rent can be made

only by registered instrument.

• Under Section 123 of the Transfer of Property Act, 1882 and

Section 17(1)(a) of the Registration act, 1908, gifts of

immovable property must be affected by a registered

instrument signed by or on behalf of the donor and attested

by at least two witnesses.

• Under Section 130 of the Transfer of Property Act, 1882,

actionable claims with or without consideration shall be

affected only by execution of an instrument in writing signed

by the transferor or his duly authorized agent.

• Wills made under Section 64 of the Indian Succession act,

1925 are required to be attested by at least two witnesses.

• According to Order XX of the Code of Civil Procedure, 1908,

all judgments and decrees in Civil.

• Judgments in criminal cases under Section 354 of the Code

of Criminal Procedure, 1973.

• Under Section 25(1) of the Indian Contract Act, 1872,

agreement without consideration made on account of natural

love and affection between parties standing in near relation

 5

to each other is valid provided it is expressed in writing and

registered under the law.

• Confession made by an accused or dying declaration are not

required by law in writing if they are made to person other

than a Magistrate. But Confession made by an accused

under Section 164 of Cr.P.C or dying declaration to a

Magistrate must be recorded.

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Topic 01: PRIMARY AND SECONDARY EVIDENCE

According to Section 3 of the Indian Evidence Act, a document

refers to “any matter expressed or described upon any substance by

means of letters, figures or marks, or by more than one of those means,

intended to be used, or which may be used, for the purpose of recording

that matter.” Now, this may include printed, lithographed, or

photographed words, a map or plan, a caricature, or even an inscription

on a metal plate or stone.

 Section 61 of the Indian Evidence Act, 1872 mentions that the

contents of the documents may be proved either by primary or by

secondary evidence. Here, the obvious question emerges what

primary and secondary evidence is?

 Section 62 of the Act defines Primary Evidence. It posits that the

document itself produced for the inspection of the court is called

Primary Evidence. The two explanations appended with the

section further elaborate the concept.

 Section 63 of the Act characterizes Secondary Evidence which in

wide terms implies Certified copies, photocopy made by a

mechanical cycle which in themselves guarantees the exactness

of the copy, copies produced using or contrasted and the first,

partners of documents as against the parties who didn't execute

them and ultimately oral accounts of the substance of a report

given by some individual who has himself seen it.

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 Section 64 of the Act specifies the documents should be

demonstrated by essential evidence besides in cases referenced

in Section 65 of the Act.

Primary Evidence:

Primary evidence means the documents itself produced for the

inspection of the Court.

As per Section 62, primary evidence is viewed as the highest class

of evidence. Such evidence is an original document that should be

submitted before the court for inspection. Besides, it is admissible with

no earlier notification. Such evidence should be introduced before the

court before the secondary evidence. Also, secondary evidence can be

introduced distinctly in the absence of primary evidence by clarifying

the justification for the absence of such evidence.

Primary evidence, all the more ordinarily known as best evidence,

is the best accessible validation of the presence of an object since it is

the genuine thing. It contrasts from secondary evidence, which is a

duplicate of, or substitute for, the original. If primary evidence is

accessible to a party, that individual should offer it as evidence. When,

in any case, primary evidence is inaccessiblefor instance, through

misfortune or obliterationthrough no issue of the party, the individual in

question may introduce a dependable substitute for it, when its

inaccessibility is sufficiently established.

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SecondaryEvidence:

It is generally presented in the absence of primary evidence and is

not the best form of evidence. Secondary evidence is covered

under Section 63 of the Evidence Act.

As indicated by Section 63, secondary evidence is viewed as a

sub-par sort of evidence. It suggests that even after creating secondary

evidence one necessary to deliver primary evidence to fill in the holes.

Such evidence can be presented in the absence of the primary

evidence, nonetheless, the notice of the equivalent is to be given. In

any case, if the secondary evidence is accepted with no objection inside

a reasonable time then the parties don't reserve the privilege to argue

that the fact was demonstrated with the assistance of secondary

evidence and not primary evidence.

On bare perusing, secondary evidence implies and incorporates:

1. Certified copies given under the provisions hereinafter contained.

2. Copies made from the original by mechanical processes which in

themselves insure the accuracy of the copy, and copies compared

with such copies.

3. Copies made from or compared with the original.

4. Counterparts of documents as against the parties who did not

execute them.

5. Oral accounts of the contents of a document given by some

person who has himself seen it.

Types of Secondary Evidence

 9

Under section 76 the certified copies are defined. The correctness

of certified copies will be presumed under section 79, but that of other

copies will have to be proved. This proof might be managed by calling a

witness who can swear that he had contrasted the copy offered in

evidence and the original, or with some other person read as the

contents of the original and that such is right. Copies are arranged by a

mechanical process.

The copies arranged by mechanical process and copies contrasted

and such copies as referenced in clause 2 of this section. In the previous

case, as the duplicate is produced using the original it guarantees

precision. To this classification have place copies by photography,

lithography, cyclostyle, and carbon copies. Section 62 (2) expresses

that, where some of the document is made by one uniform process, as

on account of printing, lithography, or photography, each is primary

evidence of the substance of the rest, yet where they are on the whole

copies of a typical original, they are not primary evidence of the

substance of the original.

Circumstances in which secondary evidence is admissible in place of

primary Evidence

Section 65 of the Indian Evidence Act enlists the circumstances

under which secondary evidence is admissible in place of primary

evidence. They are as follows:

A. In the instance where the original document is shown or appears to

be in the possession of or power of-

1. The person against whom the document is sought to be proved;

 10

2. The person who is out of reach or not subject to the process of

the court; and

3. The person who is legally bound to produce it but has not done

so despite a notice being served under Section 66.

B. In the case where the contents, existence, or contents of the

original document have already been proved to be admitted in writing

by the person against whom it is proved or his representative interest.

C. In a situation wherein the original has been lost or destroyed, or the

party who is presenting the evidence cannot present it in reasonable

time due to any reason other than his default or neglect.

D. In case where the original document is not of such nature that it is

not movable so as to be presented before the court for inspection;

E. In an instance where the original document is a public document

within the meaning of Section 74;

F. In a situation where the original is a certified copy that is permitted

by this Act or any other law in force in India to be given in evidence;

G. In the case where the original consists of numerous accounts or

documents which cannot be conveniently all examined by the court, or

the fact which is to be proved is the general result of the whole

collection.

In cases ‘A’, ‘C’, and ‘D’, secondary evidence of the contents of

the document is admissible. In the case of ‘B’, only the written evidence

is admissible. In the case of ‘E’ or ‘F’, only the certified copy of the

document shall be admissible as secondary evidence. Lastly, in the

case of ‘G’, evidence to be presented as the general result of the

 11

documents collectively must be given by a person who has examined

them and is skilled in the examination of such documents.

Topic 02: MODE OF PROOF OF DOCUMENTS

The documents are mainly of two types: private

document and public document. According to Section 3 of the

Indian Evidence Act, document means any matter expressed or

described upon any substance and it can be in various means of

letters, figures or marks, or by more than one of those means,

intended to be used, or which may be used, for the purpose of

recording particular information or matter. There are various

examples given for documents in the act like map, plan, caricature

and letters. Any words which are printed and lithographed are

considered to be documents according to the Indian Evidence Act.

The Section 74 of the Indian evidence Act explain about the

term Public document. According to this Section, the following

documents are considered public documents:

a) The documents forming the acts or records of acts of

sovereign authority;

b) The documents forming the acts or records of acts of

official bodies and tribunals;

c) The documents forming the acts or records of acts of

various officers like publicofficers, legislative, judicial officers and

executive working in any part of India;

 12

d) The public records which are kept in the state of private

documents also comeunder this category.

Every other document which does not come under section 74

is considered as private document according to Section 75 of the

Indian Evidence Act. Section 76 of the Indian Evidence Act

provides the power to public officers to provide certified copies of

public documents when it is necessary and when the person has

the right to demand copies and ask for the copy of the document,

on payment of prescribed fee thereon.

Section 81 According to this section the court presumes the

following documents to be genuine, the document professed to be

the London Gazette, or any Official Gazette, or the Government

Gazette of any colony; the documents which are a dependency of

possession of the British Crown; Newspaper or journal; Copy of a

private Act of Parliament of the United Kingdom which is printed by

the Queen’s Printer.

The said documents must be kept in the substantial form

mentioned in the law and alsoit must be produced from proper

custody. The Court also presumes the Official gazettes kept in the

electronic form is genuine if it is kept in the substantial form

mentioned in the law.

Topic 03: COMPETENCY OF WITNESSES:

A witness is “a man whose life and faith are so completely one

that when the challenge comes to step out and testify for his faith, he

does so, disregarding all risks, accepting all consequences.” Witness in

 13

a trial is a person who has some relevant knowledge of the dispute and

gives evidence thereof.

Under the Indian Evidence Law, every person is competent to

testify as a witness as long as he understands the questions put by the

court and gives rational answers thereof. Religion caste, sex, age play

no role at all in deciding he competency of a witness. Once a court is

satisfied that the person has the mentally capability to answer the

questions rationally, he is allowed to give his testimony and help in

completing the story involved in the case.

All persons shall be competent to testify unless the Court

considers that they are prevented from understanding the questions put

to them, or from giving rational answers to those questions, by tender

years, extreme old age, disease, whether of body or mind, or any other

cause of the same kind.

Therefore, the disqualifications as provided in the act are:

1. Tender age

2. Extreme old age

3. Disease of mind or body which renders the person incompetent

to understand the questions and answer rationally.

4. Any other cause for instance unconsciousness, drunkenness,

extreme bodily pain etc.

In legal proceedings, the competency of a witness to prove

documents refers to whether a person is qualified and allowed by law to

testify about the authenticity, contents, or other relevant information

regarding a particular document. The rules for determining the

competency of a witness to prove documents can vary by jurisdiction,

 14

but there are some common principles that apply in many legal

systems. Here are some key considerations:

Personal Knowledge: Generally, a witness must have personal

knowledge of the document or its contents to be competent to testify

about it. This means that they should have direct, firsthand information

about the document and its creation.

Authenticity: A competent witness may be required to establish

the authenticity of the document they are testifying about. They may

need to confirm that the document is what it purports to be and that it

has not been altered or tampered with.

Expertise: In some cases, a witness with specialized knowledge or

expertise may be called upon to testify about the authenticity or

contents of a document. For example, a forensic expert may be

qualified to testify about the authenticity of a signature on a document.

Custodian of Records: Often, the custodian of records for a

business or organization is considered competent to testify about the

documents kept in the ordinary course of business. This person can

provide information about how records are maintained, and the

procedures used to create and store documents.

Hearsay: In many legal systems, hearsay evidence (statements

made by someone who is not testifying in court) is generally not

admissible to prove the contents of a document. There are exceptions

to this rule, but they can be complex and vary by jurisdiction.

Expert Witnesses: When a document is complex or requires

specialized knowledge to interpret, an expert witness may be called

upon to testify about its contents. For example, a financial expert may
 15

be asked to explain the financial statements contained in a business

document.

Authentication: To establish the authenticity of a document,

witnesses may need to provide evidence such as witness testimony,

notarization, or other corroborating evidence.

Privilege: Certain documents may be protected by attorney-client

privilege or other legal privileges, which can restrict who can testify

about their contents.

It's important to note that the rules regarding the competency of

witnesses to prove documents can be quite complex and may vary

depending on the nature of the case and the jurisdiction in which the

legal proceedings are taking place. Legal professionals, such as

attorneys and judges, are responsible for applying these rules and

determining whether a witness is competent to testify about a particular

document in a given case.

CONCLUSION:-

Evidence is a basic piece of each case, regardless of whether it is

a criminal case or a civil suit as it approves a fact. The facts can be

utilized in evidence for choosing just as proving the disputed facts.

Evidence appends weight to the facts cited as evidence. In this way,

different kinds of evidence can be utilized for proving and disproving

facts. Besides, evidence helps in checking down the time devoted to a

specific case. In this manner, it tends to be presumed that the evidence

is for judicial conduct like the reasoning for logic.

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Primary and secondary evidence play crucial roles in the legal

system when establishing facts and proving claims. Primary evidence

considered the highest quality of evidence, consists of original

documents or works that are presented directly to the court for

inspection. It holds significant evidentiary value as the main source of

evidence.

On the other hand, secondary evidence serves as a substitute for

primary evidence when it is unavailable. Although of lower quality,

secondary evidence can be admitted if the party provides a valid

justification for the non-production of primary evidence. However, the

court requires a rational reason and factual foundation for the

introduction of secondary evidence.

Judicial Pronouncements have shed light on the importance of

primary evidence and the strict criteria for admitting secondary

evidence. These pronouncements emphasis that secondary evidence

can only be accepted when primary evidence cannot be produced due

to circumstances beyond the control of the party. Authentication and

establishing the genuineness of the secondary evidence are also vital

requirements.

Addl. Junior Civil Judge,

Bobbili
 1

PRESENTATION

(FOR THE WORKSHOP TO BE HELD ON 02.09.2023)

1) Primary evidence and Secondary Evidence.

2) Mode of proof of documents

3) Competency of witness to prove documents.

BY

Smt.D.Soujanya,
Addl.Junior Civil Judge cum
Addl.Judicial Magistrate of I Class,
Parvatipuram.
 2

1) Primary evidence and Secondary evidence :

Document : Means any matter expressed or described upon any

substance by means of letters, figures or marks, or by more than one of those

means intended to be used, or which may be used, for the purpose of recording

that matter. A writing, printing, lithograph, photograph, map, a plan, an

inscription on a metal plate or a stone, a plaque, a caricature etc. are

documents.

Chapter V of Indian Evidence Act deal with documentary evidence. It further

classifies the documentary evidence into two parts, namely-

i) Primary evidence.

ii) Documentary evidence.

The original document must be produced before the court to prove it as

provided under Section- 64 of Indian Evidence Act. The contents of document

can be proved by primary or secondary evidence.

a) Primary Evidence [Sec.62] : means the document itself produced for the

inspection of the Court.

Explanation 1 : Where a document is executed in several parts, each part is

primary evidence of the document. Where a document is executed in

counterpart, each counterpart being executed by one or some of the parties

only, each counterpart is primary evidence as against the parties executing it.

Explanation 2 : Where a number of documents are all made by one uniform

process, as in the case of painting, lithography or photography, each is primary

evidence of the contents of the rest, but where they are all copies of a common

original they are not primary evidence of the contents of the original.

b) Secondary evidence [Sec.63] : means and includes-

1. certified copies ;

2. copies made from the original by mechanical processes, and

3. copies compared with such copies;

4. copies made from or compared with the original;

 3

5. counterparts of documents as against the parties who did not

execute them;

6. oral accounts of the contents of a document by a person who has

seen it.

The correctness of certified copies will be presumed under section

79; but the correctness of other copies will have to be proved. This proof may

be afforded by calling a witness who can swear that he has compared the copy

tendered in evidence with the original or with what some other person read as

the contents of the original and that such is correct.

Types of Secondary Evidence : There are different types of secondary

evidence. Main types of secondary evidence which are as follows :

1.Certified copies.

2. Copies prepared by mechanical process.

3.Counter foils.

4.Photographs.

5.Xerox copy.

6.Photostat copy.

7.Carbon copy.

8.Types copy.3

9.Tape records.

10.Copies made from or compared with original copy.

11.Counterparts.

12.Oral accounts.

13.Registration copy.

14.Un probated will.

15.Age certificate.

16.Voters list.

17.Newspaper report.
 4

2) Mode of proof of documents :

The contents, the genuineness and the truth of the documents can be

established under the following sections:

1) The Contents of the private documents can be proved either by primary or

secondary evidence in view of Sections 61 to 66 of Indian Evidence Act

2) The genuineness of the documents can be established by adducing evidence

as per Sections 67 to 73 of Indian Evidence Act

3) The truth of the contents of the documents are ordinarily established by

means of independent, direct or circumstantial evidence of Indian Evidence Act

A duly proved document can only be considered at the final hearing of a

proceeding. Onus to prove a document is upon the party intending to rely on it.

The genuineness or the truthfulness of the contents of a document is to be

proved by the oral evidence and the contents thereof are to be proved either by

adducing primary evidence or the secondary evidence.

A document is said to be proved if following conditions are satisfied:

(a) Firstly, the execution of a document, i.e., the handwriting or signature on the

document if any is proved.

(b) Secondly, contents of a document, and

(c) Thirdly, truthfulness of the contents of a document.

(A) Execution : The process of proving the signature or handwriting in a

document goes to the 'genuineness' of the document.

The party who seeks to prove a particular document must get the

handwriting or signature of the author identified by the author himself under

Section 67 of the Act or any third person acquainted with the handwriting in

question under Section 47 of the Act or by a person in whose presence the

document was signed or executed under Section 67 and 68 of the Act or by an

expert witness under Section 45 of the Act.

 5

In some cases the signatory may himself admit that he has signed or

executed a document which dispenses with the proof under Section 58 of the

Act. Further, the court itself is enabled under Section 73 of the Act to compare

the handwriting or the signature in question with the one admitted or proved to

the satisfaction of the court. Under certain circumstances enumerated at

sections 79 to 90A of the Evidence Act, a court is entitled to presume that the

signature on a document and the document itself is genuine. Thus, under

Section 79 the courts may presume that certified copies are genuine.

(B) Contents :

The contents of a document must ordinarily be proved by 'primary

evidence'. However, where the party is not able to produce the primary

evidence itself due to the reasons enumerated under Section 65 of the Act, the

party is at liberty to produce the secondary evidence to prove the contents of

the document.

(C) Truthfulness of the Contents :

Section 67 prescribes that truthfulness of the contents has to be

proved by the personal knowledge. Ordinarily, the witness who has been called

by the party intending to rely on a document must have personal knowledge of

the document. In other words, such witness should be the author of the

document. Hence, it can be said that truth of the contents of a document must

be proved either by the author or by 'the person who knows and understands

the contents', that is persons having personal knowledge of a document. This is

rule against hearsay. It is necessary to note that, in some cases, it will not be

necessary to call the author or the writer of the document in order to prove the

truthfulness of its contents.

Exceptions to the Rule against Hearsay :

i.) When the truth of contents is not material to be proved or is not in fact in

issue.
 6

ii.) When the witnesses themselves are not available. Such contingency is

covered by the Section 32 of the Evidence Act which states that where the

author of a document cannot be called as a witness either because he is dead,

cannot be found, has become incapable of giving evidence, or his attendance

cannot be procured without unreasonable delay, then the author of the

document need not be called in order to depose the contents of the document

under any of the circumstances enumerated in the section itself.

iii.) Public Documents.

iv). Summaries of voluminous documents. Under Section 65(g) of the Evidence

Act, if original documents are voluminous then the summary thereof can be

prepared and admitted in evidence by a person who is not the author of the

documents.

As per Section 58 of the Evidence Act a document which has been

admitted or not specifically denied by the opposite party need not be proved.

This is merely a rule of prudence and is subject to the satisfaction of the court.

It was held by the he Hon'ble Apex Court held in a catena of decisions

that “Secondary evidence as a general rule is admissible only in the absence of

primary evidence. If the original itself is found to be inadmissible through failure

of the party, who files it to prove it to be valid the same party is not entitled to

introduce secondary evidence of its contents. Essentially the secondary

evidence is an evidence which may be given in the absence of that better

evidence which law requires to be given first, when a proper explanation of its

absence is given.

Section 65 deals with the proof of the contents of the documents

tendered in evidence. In order to enable a party to produce secondary evidence

it is necessary for the party to prove existence and execution of the original

document. Secondary evidence of the contents of a document cannot be

admitted without non production of the original being first accounted for in such

a manner as to bring it within one or other of the cases.”

The secondary evidence must be authenticated by foundational

evidence that alleged copy is in fact a true copy of the original. Mere admission
 7

of a document in evidence does not amount to its proof. Therefore, it is the

obligation of the Court to decide the question of admissibility of a document in

secondary evidence before making endorsement thereon.

The secondary evidence can be adduced in the following cases:

1] Where the original is in possession of adversary or out of reach.

[2] When the existence, condition or contents of the original is admitted in

writing by the person against whom it has to be proved.

[3] When the original had been lost or destroyed.

[4] When the original is not easily movable. Example bulky documents.

[5] When the original is a public document within the meaning of Section 74

of the Evidence Act.

[6] When the original consists of numerous accounts or other documents.

[7] Where the original is a document of which the evidence Act permits

certified copies to be given in evidence.

Only if a case falls within any one of the spheres of Section 65,

secondary evidence is not admissible. When the primary evidence is not

available then only the secondary evidence is allowed and secondary evidence

may be given when the original is in the possession of the opposite party or

with a person who is out of reach of or not subject to the process of the court or

of any person legally bound to produce it and when such person does not

produce it after notice to produce. When the existence condition or contents of

the original have been proved to be admitted in writing by the person against

whom it is proved or by his representatives in interest the secondary evidence is

allowed.

Proof of Electronic Records :

Section 4 of Information Technology Act 2000 related with the legal

recognition of electronic records. If any information or matter is rendered or

made available in an electronic form and accessible so as to the usable for a

subsequent reference shall be deemed to have satisfied the requirement of the

 8

law which provides that information or any other matter shall be in writing or in

the typewritten form.

The Information Technology Act, 2000 was amended to allow for

admissibility of digital evidence. Before accepting digital evidence it is vital that

the determination of its relevance veracity and authenticity be ascertained by

the Court and to establish if the fact is hearsay or copy is preferred to the

original. Digital evidence is information of probative value that is stored or

transmitted in binary form. Section (2) clause (t) of the Information Technology

Act 2000 defines the terms electronic records. It means "data, record or data

generated, image or sound stored, received or sent in a electronic form micro

film or computer generated micro fiche".

The main objective to introduce the special provision has its origin to

the technical nature of the evidence particularly as the evidence in the

electronic form cannot be produced in the court of law owing to the size of

computer/server, residing in the machine language and thus, requiring the

interpreter to read the same. Section 65B of the Evidence Act makes the

secondary copy in the form of computer output comprising of printout or the

data copied on electronic/magnetic media.

Section 65A : provides that contents of electronic records may be proved in

accordance with the provisions of section 65B.

Admissibility of Electronic Records- Section 65B of Indian

Evidence Act :–

Sec. 65B(1) : Notwithstanding anything contained in this Act, any

information contained in an electronic record which is printed on a paper, stored,

recorded or copied in optical or magnetic media produced by a computer shall

be deemed to be also a document, if the conditions mentioned in this section

are satisfied in relation to the information and computer in question and shall be

admissible in any proceedings without further proof or production of the original,

 9

as evidence of any contents of the original or of any fact stated therein of which

direct evidence would be admissible.

Sec. 65B(2) : The computer from which the record is generated was

regularly used to store or process information in respect of activity regularly

carried on by a person having lawful control over the period, and relates to the

period over which the computer was regularly used; Information was fed in

computer in the ordinary course of the activities of the person having lawful

control over the computer; The computer was operating properly, and if not, was

not such as to affect the electronic record or its accuracy; Information

reproduced is such as is fed into computer in the ordinary course of activity.

Sec. 65B(4) Certificate : Regarding the person who can issue the

certificate and contents of certificate, it provides the certificate doing any of the

following things: identifying the electronic record containing the statement and

describing the manner in which it was produced; giving the particulars of device

dealing with any of the matters to which the conditions mentioned in subsection

(2) relate and purporting to be signed by a person occupying a responsible

official position in relation to the operation of the relevant device or the

management of the relevant activities (whichever is appropriate) shall be

evidence of any matter stated in the certificate; and for the purposes of this

subsection it shall be sufficient for a matter to be stated to the best of the

knowledge and belief of the person stating it.

Mode of proving Electronic records :-

For the Admissibility of electronic evidence, it must satisfy the same rules

as required for traditional documentary evidence to be admitted into evidence

as laid down by Indian Evidence Act. How to prove email : Section 88, 88A,

114(f) of the Evidence Act with section 26 of the General Clause Act are relevant

sections for sending and receipt of email and its proof. To admit emails into

evidence, the proponent must show the origin and integrity of emails. He must
 10

show who or what originated the email and whether the content is complete in

the form intended, free from error or fabrication. In discovery, the proponent

needs to prove that the hard copy of the email evidence is consistent with the

one in the computer and includes all the information held in the electronic

document.

Next stage follows that, before admissibility the document has to

meet the requirements of authentication or identification. This is a process of

verification that establishes that the document is what it purports to be. i.e. that

the email was made by the author indicated therein and is unaltered except for

the change in the document generated automatically such as adding the date

and time in case of email and address. The burden is on the person adducing

the data message to prove its authenticity by adducing relevant evidence

therefore that the document is what it purports to be. Where best evidence is

the evidence required, the rule of best evidence is fulfilled upon proof of the

authenticity of the electronic records system in or by which the data was

recorded or stored. The authenticity of the electronic records system such as a

computer is presumed in the absence of any evidence to the contrary where

there is evidence that the system was operating properly.

Recently in case of Anvar vs. Bashir (Civil Appeal No. 4226/2012

decided on 18.09.14) the Hon'ble Supreme Court deliberated upon the

procedure for proof of electronic evidence and concluded, “ An electronic record

by way of secondary evidence shall not be admitted in evidence unless the

requirements under Section 65B are satisfied. Thus, in the case of CD, VCD,

chip, etc., the same shall be accompanied by the certificate in terms of Section

65B obtained at the time of taking the document, without which, the secondary

evidence pertaining to that electronic record, is inadmissible”.

 11

3) COMPETENCY OF WITNESS TO PROVE DOCUMENTS:

Documentary evidence in the Indian Evidence Act refers to any

material object that is presented to a court or tribunal as proof of a fact. It may

include physical objects such as contracts, invoices, receipts, photographs, videos,

audio recordings, emails, text messages and other types of written or recorded

material. The purpose of documentary evidence in the Indian Evidence Act is to

prove objective and reliable proof of the existence of facts that are relevant to a

legal proceeding. Documentary evidence is a crucial part or presenting evidence in

court in India. It is defined in Section 3 of the Indian Evidence Act and is

generally considered to be more trusthworthy than oral evidence.

In case of disputed documents, the first step is producing the original

or primary direct evidence and then leading the evidence of the person who has

made the original unless ofcourse 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 being party to its information. In case, the document is available in

original with the party proposing to prove it, 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 Indian

Evidence Act.

The document can 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. 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. A

reading of the evidence must show that the witness has personal knowledge of

what the contents of the letter or agreement speaks about and must depose

sufficiently thereon.
 12

The documents may be proved under section 45 and 47 of the Indian

Evidence Act, 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.

Who are competent witnesses (who may testify)­ Section 118 of Indian Evidence

Act­

Section 118 of the Evidence Act states that "All persons shall be

competent to testify unless the court considers that they are prevented from

understanding the questions put to them, or from giving rational answers to those

questions, by tender years, extreme old age, disease whether of body or mind, or

any other cause of the same kind.

Explanation:­­ A lunatic is not incompetent to testify, unless he is prevented by his

lunacy from understanding the questions put to him and giving rational answers

to them".

Under Section 118 of the Evidence Act all persons are competent to testify, unless

they are, in the opinion of the Court

(a) unable to understand the question just to them, or

(b) to give rational answers to those questions, owing to

(i) tender years (ii) extreme old age (iii) disease of mind or body, or (iv) any other

such cause.

Even a lunatic, if he is capable of understanding the questions put to him and

giving rational answers, is a competent witness. A witness is said to be competent

when there is nothing in law to prevent him from being sworn and examined if he

wishes to give evidence. Though the general rule is that a witness who is

competent is also compellable, yet there are cases where a witness is competent

but not compellable to give evidence, as for example, sovereigns and ambassadors

of foreign states.
 13

Competency of child witness­

A child may be allowed to testify, if the court is satisfied that the child is

capable of understanding the question put to him and give rational answers to the

court. No absolute age is fixed by law within which they are exempted from giving

evidence on the ground that they have not sufficient understanding. Actually it is

not possible to lay down any specific rule regarding the degree of intelligence and

knowledge which will render a child a competent or credible witness. So it is the

discretion of the court to judge whether the child is capable of understanding the

question put to him and give rational answers to the court.

Before examining a child as a witness the court should test his intellectual

capacity by putting a few simple and ordinary questions to him and should also

record a brief proceeding of the inquiry so that the appellate court may feel

satisfied as to the capacity of the child to give evidence. If the court is not satisfied

as to the child’s capacity to depose it should decline to examine him, but if it is

satisfied as to this matter, it should administer oath to the witness and examine

him in the ordinary way unless he is under twelve years of age and does not

understand the nature of an oath or affirmation. It is desirable that judges or

magistrates should always record their opinion that the witness understands the

duty of speaking the truth and state why they think that; otherwise the credibility

of the witness may be seriously affected, so much so, that in some cases it may be

necessary to reject the evidence altogether. Competency of the child witness can be

ascertained by questioning him/her to find out intelligence to understand the

occurrence witnessed and duty to speak the truth before the court and thereby

his/her statement inspiring confidence can be relieved upon even without

corroboration.

The evidence of a child witness is to be taken with great caution.

Normally evidence of a child witness should not be accepted as it is not obviously

dangerous unless immediately available and unless narrated before every

possibility of coaching is eliminated. There should be close scrutiny of the evidence

of the child witness before the same is accepted by a court of law. There is always
 14

danger in accepting the evidence of a child witness of about 12 years as the

witness might have been coached by persons, who may have influence on the

child.

Competency of Lunatics­

The explanation given under Section 118 says that a lunatic is not

incompetent to testify unless he is prevented by his lunacy from understanding

the questions put to him and giving rational answers to them. Lunacy means

imbecility of mind, a weakness of mind between the limits of absolute idiocy on the

one hand and of perfect capacity on the other. Lunatic is who had understanding

but, by disease, grief, or other accident, has lost the use of his reason. A lunatic is

properly one that hath lucid intervals, sometimes enjoying his senses and

sometimes not and that frequently depending on the change of the moon.

A lunatic is one who has had understanding but, by disease, grief or

other accident, has lost the use of his reason. He has lucid intervals, sometimes

enjoying his senses and sometimes not. He is a person suffering from

unsoundness of mind or insanity, which may be either intermittent or permanent.

It is the duty of the court to first examine such a lunatic witness at lucid intervals

and it must satisfy that he possesses the requisite amount of intelligence and that

he understand the nature of an oath and the questions asked and that he can give

rational answers to them. If it is required under the circumstances the court may

seek the doctors opinion with regard to the competency of the lunatic. Section 118

of Indian Evidence Act says there is basically no reason for not being able to testify

when they can understand the questions asked.

B. Competency of Parties to Civil Suit, and their wives or husbands and

Competence of Husband or Wife of a person under Criminal Trial. S.120­

Section 120 of the Evidence Act states that­

"In all civil proceedings the parties to the suit, the husband or wife of

any party to the sam shall be competent witnesses. In criminal proceedings

against any person the husband or wife of such person, respectively, shall be a
 15

competent witness" In olden days it was an established concept that husband and

wife were one person in law.

Consequently when one of the spouse was a party to a judicial

proceeding the other was supposed to be a party and therefore he or she was not

allowed to appear as a witness for or against such party. Section 120 of the

Evidence Act removes to such bar and the husband and wife of a party in civil and

criminal proceedings are competent witnesses for and against the other as they are

the best witnesses because they are fully concerned with the events of which they

speak and by cross examination and looking for corroboration, even if they are

interested witnesses the court has a better chance of arriving at the truth than by

classing them as incompetent. In criminal cases our accused is not a competent

witness.

According to Section 120, the wife and husband are competent

witnesses for and against the other. If a wife files a maintenance case she can give

evidence against her husband. Similarly, where a husband files a case for the

restitution of conjugal rights, he can give evidence against his wife.

­00­
 Dr. S. Vijaya Chandar

Junior Civil Judge, Kothavalasa

Session-3

1.Primary evidence and secondary evidence (Section 61 to 65 of Indian Evidence Act)

Introduction
Primary evidence – primary evidence means the document itself produced for the inspection of the court .
As per section 62, primary evidence is viewed as the highest class of evidence. Such evidence is an original
document that should be submitted before the court for inspection …….Section 62 Indian Evidence Act

Secondary evidence –Secondary evidence means and includes

1. Certified copies given under the provisions hereinafter contained
2. copies made from the original by mechanical processes which in themselves ensure the accuracy of the
copy,and copies compared with such copies ,
3. Copies made from or compared with the original.
4. counterparts of documents as against the parties who did not execute them. ….63 Indian Evidence Act

Primaryevidenceandsecondaryevidence. (Sec 61-65 Indian Evidence Act)

The contents of documents may be proved either by primary evidence or secondary
evidence(sec61).Primaryevidencemeansdocumentsinitsoriginalformproducedbeforetheinspection
oftheCourt (sec62).
This is based on the best evidence rule that original document must be produced before thecourt
because in its original form it is first hand and most reliable. For example if A executesa sale
deed in favour of B for rupees 1000/- B files a suit for the possession of the property onthe basis
of sale deed. A denies the execution of sale deed. B produces the very sale deedbefore the Court.
This would be the best evidence and is a primary evidence. Any
otherevidencesuchascopyofthesaledeed,somepersonwhoreadthesaledeedandmakesanoralstatemen
taboutitscontentsorthewitnesswhosignedithavealwaysprovidesapossibility of some addition or
omission to the original. That is why original copy of thedocumentisabest evidence.
Explanation 1 and 2 ofthesec61 provides thescopeof theprimaryevidence.

Whenadocumentexecutedintheseveralparts,eachpartisprimaryevidenceofthedocument. For
example, if a partition deed is executed and registeredin the favour of theparties who has shares
in the property. Each of such parties wants the deed specifying hisdistinct share.All the copies of
the deed for all such parties are prepared and is the primarydocumentforthem. 1

Further when a document is executed in counter parts, each part is primary document againstthe
executing parties and his privies, but for the non-executing party andhis privies it issecondary
document. For example, Patta is executed and signed by the lessor for the leaseand qabuliat is
executed and signed by the lessee. Thus Patta is primary document for thelessor and secondary
document for the lessee and qabuliat is primary document for the
lesseeandsecondarydocumentforthelessor.
Explanation 2 provides that printed lithographic, photographic, and other reproduction of
thedocuments throughtheoneuniform process are primary evidence of each other but iforiginal is
not the reproduction but the document from which the reproduction was
made,reproductionwouldbemerelyasecondaryevidenceoftheoriginal.Forexample onespecimen of
a newspaper is not a copy of the another specimen of the newspaper of the samedate. They all are
originals, all are the primary document for the contents mentioned in it.Similarly carbon copies
which are made by uniform process are originals of each other andsecondaryofthecommon
content.
Secondaryevidence (sec63 Indian Evidence Act)
Secondaryevidenceisanevidencewhichcanbegivenundercertaincircumstancesinabsenceoftheprima
ryevidence.Section63providesthedefinitionofthesecondaryevidenceswhichcanbeproducedinplace
ofprimaryevidenceunder circumstances mentioned in the sec 65. There is five clause in the sec
63, out of which firstthree deals with certified copies of the documents, fourth one is concerned
with the counterpartsofthedocumentsand fifth oneistheoralstatement about
thecontentsofdocuments.

1. Certified copies of the originaldocumentas certified by the public officer under sec76 of
the Act. Sec 76 lays down that every public officer having custody of a publicdocument
shall give to a person, on demand of, and on payment of legal fees, a copyof it(public
document). A public officer after preparing the copy form the originalwill affix the
certificate at the foot of such copy, that it is true copy of the
documentandmentionedthedateonit.Thenameofthepublicofficerinwhosecustodydocument
was and thesealofsuch officeris alsoaffixed onthecopy.
If the copy of such public document with above mentioned certificate submitted to
theCourt,it is admissibleas secondaryevidence.
The secondary evidence as a certified copy of the primary evidenceunder this clauseis
presumed to be genuine under sec 77 of the Act. For example, Khatauni is
thesecondaryevidenceofthecollect raterecord.
2. Copiesmadefromtheoriginalthroughmechanicalprocess
Documents which are prepared by the uniform mechanical process such as
printing,lithography, or photocopy which in themselvesassure the accuracy of the copy
andthecopiescomparedwithsuchcopies.Onlycertifiedcopiesofthesecondaryevidence is
admissible as an evidence under this clause when it is proved that originalisin
thepossession oftheotherparty.
Copy of a Copy is not admissible as secondary evidence only copies prepared by
themechanical process and copies of a copy compared with the original is
secondaryevidence.
3. Copiesmadefromcomparedwiththeoriginal.Ifacopyispreparedwordtowordfromtheoriginal
it is secondaryevidence.
4. Counterpartofthedocumentagainstthepartywhodidnotexecuteitissecondaryevidence.
(Seetheexampleexplanation1 sec61, mentioned above)
5. Oralaccountof the contentsof a documentgivenbya personwhohashimself
seenorreadthedocument.

Whensecondaryevidencecanbegiveninplaceof primaryevidencesec 65 Indian Evidence Act

Sec 64 provides the rule that documents must be proved with the primary evidenceexcept
2
in the cases provided under sec 65 of the Act. Sec 65 provides seven
circumstanceswheresecondaryevidenceis admissible.But twocondition is required
(1) Itmustbeprovedthat documentcanbeplacedassecondaryevidenceis inexistence.
(2) Thecircumstancesmustbejustifiedwhichleadstotheproductionofsecondaryevidence.
Forexample,whenapartywishedtoprovethecontentsofdocumentshastobythesecondaryevid
enceonthelossofprimaryevidence.Theymustprovetheloss of document. See the illustration
b of the sec 104 of the Indian Evidence Act.Where
thereisnofoundationislaidforthereceptionofsecondaryevidence,thecourtmayexcludesuch
evidence(Setal dasv sant ramAIR 1954SC 404). Thesecondaryevidence can be
givenunderfollowingcircumstances
 1. Whenthedocumentis in thepossession of
i. Thepersonagainst whomitis tobeproved, or
ii. Anypersonoutofthereachof,ornotsubjectto,thepersonoftheCourt,or
iii. Any person who is legally bound to produce it but does not produce it
afternoticeto producethesameis given.
2. Whentheexistenceorthecontentsoftheoriginalhavebeenprovedasanadmissionin writing by
the person against whom it is to be provedby the or his representative.Readwith sec22
oftheIndian EvidenceAc.
3. When the original has been destroyed, or lost, or the party offering evidence of
itscontents cannot for any other reason, not arising from his own negligence or default
,produceit in reasonabletime.
4. Whentheoriginalis ofsuchnatureandnot beeasilymovable
5. Whenoriginalis apublicdocumentorwhose certified copyis legallypermitted
6. Original consistingofseveralaccountsorcan’tconvenientlybeexamined

Admissibilityofdocumentassecondaryevidence
Production of document as a secondary evidence is permissible only in case when
originaldocument(primary)isnotavailableunderanycircumstancementionedinthesec65.Therefore
secondary evidence relating to the contents of a document is inadmissible,until thenon-
production of the original is accounted for, so as to bring it with one or other of the
caseprovidedforintheSection.Thecourthasanobligationtodecidethequestionofadmissibility of a
document in secondary evidence before making an endorsement thereon.(H. Siddiqui v. A.
Ramalingam, (2011) 4 SCC 240). The application seeking permission toproduce secondary
evidence must give full details necessary to attract the provisions and besupported by a proper
affidavit. (State of Rajasthan v. Khemraj, AIR 2000 SC 1759 (paras
2and3).Nonproductionofprimary documenthastobeprovedfirstbeforeadducingsecondary
document as an evidence.For example,A sale deed cannot be considered as asource of title in
favour of the person in absence of any explanation about the original saledeed and need
ofproducingsecondaryevidenceasacertifiedcopyofthat saledeed.
An order allowing secondary evidence of the contents of the document without
compliancewiththeprovisionsofSection65isillegal.( LaxmiNarainv.Parmanand,1978Raj LW 411).
Secondary evidence under section 65 is only to prove the existence, condition and contents
ofadocument nothingelse.

In State of Maharashtra v Prafulla B. Desai 2003 1 SCW 1885), it was held where a
certainwitness is necessary for the ends of justice and the attendance of such witness cannot
beprocured without delay, expense or inconvenience, theCourt may issue the commission
forexaminationofwitness.

Dr. S. Vijaya Chandar

Junior Civil Judge, Kothavalasa

3
 1

Sri.A.Ramesh

Principal Junior Civil Judge,

Parvathipuram.

Vizianagaram Unit,

TOPIC-1 Work shop on 16.09.2023

The Exclusion of Oral by Documentary Evidence.

The Indian Evidence Act 1872 defines the term “Evidence” as follows:
Evidence means and includes-
1. all statements which the Court permits or requires to be made before it by witnesses, in
relation to matters of fact under inquiry, such statements are called oral evidence;
2. all documents including electronic records produced for the inspection of the Court,
such documents are called documentary evidence.
Meaning of Document:- Section 3 of the Indian Evidence Act, 1872, defines the term
“Document” as follows:
“Document”means any matter expressed or described upon any substance by means of letters,
figures or marks, or by more than one of those means, intended to be used, or which may be
used, for the purpose of recording that matter.
Meaning of Oral Evidence:
Section 59 of Evidence Act says that it considers all facts as oral evidence except electronic
evidence and documentary evidence.
Section. 91 to 100 of the Evidence Act deals with exclusion of oral evidence
by documentary evidence-
Section 91 of IEA deals with the exclusion of oral evidence by documentary evidence. This
Section lays down the best evidence rule, but it does not prohibit any other evidence where
writing is capable of being construed differently and which shows how the parties understood
the document.
Section 91 of Indian Evidence Act runs as follows-
When the terms of a contract, or of a grant, or of any other disposition of property have been
reduced to the form of a document, and in all cases in which any matter is required by law to
be reduced to the form of a document, no evidence shall be given in proof of the terms of
such contract, grant or other disposition of property, or of such matter, except the document
itself, or secondary evidence of its contents in cases in which secondary evidence is
admissible under the provisions hereinbefore contained.
In Tulsi v. Chandrika Prasad, AIR 2006 SC 3359, the Hob’ble Apex Court held
that Section 91 of the Evidence Act mainly forbids proving of the contents of a writing
otherwise than by writing itself and merely lays down the ‘best evidence rule’. It, however,
does not prohibit the parties to adduce evidence, in a case, the deed is capable of being
construed differently to show how they understood the same.
 2

In Ramaswamy Vs. M.Loo, JT (2001) Supp 1 SC 25, it is held that Sale deed
being a registered document no oral evidence can be adduced to show that no title was passed.
In Gurubasappa And Ors. Vs. Gurulingappa, AIR 1962 Kant 246, it is held that
the language of the document i.e., the sale deed exhibit A-1 in the instant case is clear, specific
and unambiguous and it is not disputed by the evidenced therein is an absolute sale. If the
meaning of the words are clear route unequivocal and the intention of the parties is easily
deducible therefrom, it is not permissible to lead parol evidence of the acts and the conduct of
the parties or the surrounding circumstances to show that the document was not really it
purported to be.
In Paruppa Vs Periathambi, 30 M 397, it is held that the general rule laid down in
section 91 is subject to the important execeptions contained in sections 95 and 97 of the Act.
Where land with certain boundaries is sold and is wronly described as containing a certain area,
the area is regarded as a mere misdescription and does not vitiate the deed. The maxim falsa
demonstratio non nocet applies.
In Sardar Vs Iqbal, 80 IC 57, it is held that a receipt for payment of money is not
a contract, or grant or disposition of property and oral evidence of its contents is admissible.
In Jayalakshmi Trading Co. v. Krishnamurthy, AIR 2006 SC 179 (188) ,
wherein the Hon’ble Court observed that: “It is relevant to note that Section 91 of the Indian
Evidence Act prohibits oral evidence only regarding the terms of the contract or other evidence
relating to the terms of the contract. Section 91 of the Indian Evidence Act does not prohibit the
parties to lead oral evidence in respect of the nature of the contract as well as the oral
agreement entered into between the parties simultaneously along with the document. It is well
settled that if there is ambiguity in the language employed and the recitals thereon, the intention
of the parties may be ascertained by adducing extrinsic evidence.”
Thus, the first part of provision refers to transactions voluntarily reduced to
writing. The second part refers to those cases in which any matter is required by law to be
reduced to the form of a document, e.g., under the Transfer of Property Act, a sale of
immovable property of the value of Rs.100 and upwards, mortgage for an amount exceeding
Rs. 100, a lease of immovable property for a year at least, a trust of immovable property, a gift
of immovable property, etc.
The first part of the Section 91 of IEA does not deal with all kinds of documents
but only those which are dispositive in nature, i.e., which are (a) bilateral and (b) involve
transfer of rights from one party to another. It refers to three kinds of dispositions, namely, a
contract, grant or other disposition of property. Illustration (b) attached to Section 91 exemplify
the first part of the Section. It says, if a contract is contained in a bill of exchange, the bill of
exchange must be proved.
In Pushpalata v. Padma, AIR 2010 Kant 124, the Hon’ble Court held that the
word “disposition” means giving away or giving up by a person of something which was his
own and it is not term of law.
In Taburi Sahai v. Jhunjhunwala, AIR 1967 SC 106, the Hon’ble Apex Curt
held that a deed of the adoption of child is not a contract within the meaning of Section 91 of
IEA and, therefore, the fact of adoption can be proved by any evidence apart from the deed.
In Bhaskar Waman Joshi v. Narayan Rambilas, (1960) 2 SCR 117, the
Hon’ble Apex Court held that the question in each case is one of determination of the real
character of the transaction to be ascertained from the provisions of the deed, viewed in the
 3

light of the surrounding circumstances. If the words are plain and unambiguous, they must, in
the light of the evidence of surrounding circumstances, be given their true legal effect. If there
is ambiguity in the language employed, the intention may be ascertained from the contents of
the deed with such extrinsic evidence as may be, by law, be permitted to be adduced to show
in what manner the language of the deed was related to existing facts.
In State of Madras v. Ramalingam & Co., AIR 1956 Mad 695 (701), the
Hon’ble Court held that if the parties intended only to reduce to writing a portion of the terms
of the contract, then they are entitled to give a oral evidence of the terms which they did not
intend to reduce to writing.
Second part of Section 91 of IEA refers to those cases in which any matter is
required by law to be reduced to the form of a document. Second part has wider scope.
According to this part the documents may or may not be dispositive or bilateral in nature.
Those documents which are required by the law to be in writing are:

 Under Sections 54 and 118 of the Transfer of Property Act, 1882, sales and exchanges
where the value of property is more than Rs. 100 or more can be made only by
registered instrument.

 Under Section 59 of the Transfer of Property Act, 1882, mortgages can be affected only
by registered instrument signed by the mortgagor and attested by at least two witnesses.

 Under Section 107 of the Transfer of Property Act, 1882 and Section 17(1)(d) of the
Registration act, 1908, lease of immovable property from year to year, or any term
exceeding one year, or reserving a yearly rent can be made only by registered
instrument.

 Under Section 123 of the Transfer of Property Act, 1882 and Section 17(1)(a) of the
Registration act, 1908, gifts of immovable property must be effected by a registered
instrument signed by or on behalf of the donor, and attested by at least two witnesses.

 Under Section 130 of the Transfer of Property Act, 1882, actionable claims with or
without consideration shall be affected only by execution of an instrument in writing
signed by the transferor or his duly authorized agent.

 Wills made under Section 64 of the Indian Succession act, 1925 are required to be
attested by at least two witnesses.

 According to Order XX of the Code of Civil Procedure, 1908, all judgments and decrees
in Civil.

 Judgments in criminal cases under Section 354 of the Code of Criminal Procedure, 1973.
 Under Section 25(1) of the Indian Contract Act, 1872, agreement without consideration
made on account of natural love and affection between parties standing in near relation
to each other is valid provided it is expressed in writing and registered under the law.

 Confession made by an accused or dying declaration are not required by law in writing if
they are made to person other than a Magistrate. But Confession made by an accused
under Section 164 of Cr.P.C or dying declaration to a Magistrate must be recorded.
 4

Exceptions to Section 91 of IEA:

Exception 1:
When a public officer is required by law to be appointed in writing, and when it is
shown that any particular person had acted as such officer, the writing by which he is appointed
need not be proved.
This exception is partly based on the maxim ‘omnia praesumuntur rite esse acta’
It is a general principle, that a person’s acting in a public capacity is prima facie
evidence of his having been duly authorised so to do; and even though the office be one the
appointment to which must have been in writing, it is not, at least in the first instance,
necessary to produce the document, or account for non production. The fact that a person is
working in the due capacity of his office is also evidence of that person’s appointment in the
office.
In Ram Sahai v. Gajja, ILR (1959) 9 Raj 389, the Hon’ble Court held that
under exception (1) of Section 91 of the Evidence Act, it is enough for petitioner to prove that
the successful candidate in an election acted as a patel, an office of profit under the
Government and therefore was disqualified for standing as a candidate for election. It is not
necessary to produce the order of appointment.
Exception 2:
Wills admitted to probate in India may be proved by the probate.
A Will is neither a contract, nor a grant, nor a disposition of property. The death
of the testator makes it operative. Hence, this Section does not apply to Wills. When on the
basis of will probate has been obtained and if later, the question arises on the existence of that
will, the original will is not required to be produced before the court. This exception requires to
prove the contents of the will by which the probate is granted. According to section 2(f) of the
Indian succession Act, 1925, the term “probate” stands for the copy of a certificate with the seal
of the court granting administration to the estate of the testator. The probate copy of the will is
secondary evidence of the contents of the original will in a strict sense, but it is ranked as
primary evidence. Explanations of Section 91 of IEA:
Explanation 1:
This section applies equally to cases in which the contracts, grants or dispositions of property
referred to are contained in one document, and to cases in which they are contained in more
documents than one.
For example, a contract may be entered into through a series of letters exchanged between the
parties and correspondence put together might constitute a single contract. Illustration (a)
exemplifies the meaning of this explanation. It says if a contract is contained in several letters,
all the letters in which it is contained must be proved.
Explanation 2:
Where there are more originals than one, one original only need be proved.
Illustration (c) exemplifies the meaning of this explanation. It says, if a bill of exchange is
drawn in a set of three, one only need be proved.
Explanation 3:
The statement, in any document whatever of a fact other than the facts referred to
in this section, shall not preclude the admission of oral evidence as to the same fact.
Illustrations (d) and (e) exemplify this explanation. Illustration (d) says, A contracts, in writing
 5

with B, for the delivery of indigo upon certain terms. The contract mentions the fact that B had
paid A the price of other indigo contracted for verbally on another occasion. Oral evidence is
offered that no payment was made for the other indigo. The evidence is admissible.
Illustration (e) says, A give B a receipt for money paid by B. Oral evidence is
offered for the payment. The evidence is admissible.
2. SECTION 92:-EXCLUSION OF EVIDENCE OF ORAL AGREEMENT.

As per it when a transaction has been reduced into writing, either by requirement
of law, or agreement of the parties, the writing becomes the exclusive memorial thereof and no
extrinsic evidence is admissible either to prove independently the transaction, or to contradict,
vary, add to, or subtract from, the terms of the document, though the contents of such document
may be proved by either primary or secondary evidence.
In Krishi Utpadan Mandi Samiti, Sahaswan, District Badaun through its Secretary
V/s. Bipin Kumar and Another, [(2004) 2 SCC 283], the Hon'ble Supreme Court held that,
''Section 92 of the Act precludes a party from leading evidence contrary to the terms of a
written document. To permit a party to so urge would be to give a premium to dishonesty".
The legal principle under this section is based on the difference in quality of both oral and
documentary evidence. The oral evidence in such cases will be evidence of inferior quality,
when compared with superior quality of documentary evidence.
In this regard, the law is laid down in Tamil Nadu Electricity Board and another
Vs. N. Raju Reddiar and another ( AIR 1996 SC 2025) is as under:-

“Under Section 92 of the Evidence Act where the written instrument appears to contain the
whole terms of the contract then parties to the contract are not entitled to lead any oral evidence
to ascertain the terms of the contract. It is only when the written contract does not contain the
whole of the agreement between the parties and there is any ambiguity then oral evidence is
permissible to prove the other conditions which also must not be inconsistent with the written
contract...”
The bar of this section applies only when it is sought to be proved that the terms
of the transaction were different and not that the transaction itself was different than what it
purported to be. The words "as between the parties to any such instrument" used in this section
refer to bilateral instruments only and not to unilateral instruments, such as wills and power of
attorney. This section operates only as between, the parties to a deed or their representatives in
interest. It has no application to strangers and does not therefore prevent a stranger from
showing that a transaction which on the face of it purports to be one thing was in fact never
intended by the parties to be that but was effected for some collateral purpose and that the real
transaction between them was something different. But such a case must be pleaded and
proved.
In the case of Ram Janaki Raman v. State (AIR 2006 SC 1106), it is held by the
Hon'ble Supreme Court that the bar laid down by section 92 of the Act was not applicable
under the Criminal proceeding.

EXCEPTIONS TO SECTION 92 :-

There are six exceptions to this section -

(a) The facts which invalidate the document.
Any fact which would (i) invalidate any document, or (ii) entitle any person to any decree or
order relating thereto may be proved, such as fraud, intimidation, illegality, failure of
consideration, mistake in fact or law.
(b) Separate oral agreement.
Any separate oral agreement (i) as to any matter on
which the document is silent, and (ii) which is not inconsistent with its terms, may be proved.
(c) Separate oral agreement as a condition precedent.
Any separate oral agreement, constituting a condition
 6

precedent to the attacking of any obligation under the document, may be proved.
In the case of Chhaganlal Kalyandas V. Jagjiwandas Gulabdas AIR 1940 Bom 54,
Hon’ble Bombay High Court held that “Section 92, proviso 3, speaks of the existence of a
separate oral agreement, constituting a condition precedent to the attaching of any obligation
under any such contract, grant or disposition of property which may be allowed to be proved.
Hon'ble Orissa High Court held in the case of Bal Ram Vs. Ramesh Chandra
(AIR 1973 Ori 13), the requirements of this proviso are:
1. On the matter on which the document is silent, a separate oral agreement should be related to
it.
2. Such oral agreement should not be inconsistent with the terms of the document.
(d) Distinct oral agreement made subsequently to renew or modify the contract :
Any subsequent oral agreement to rescind or modify any such contract, grant, or
disposition of property, may be proved, except when such contract of grant (i) is required to be
in writing, or (ii) has been registered.

(e) Any usage or customs by which incidents not mentioned in any contract are usually annexed
to contract Any usage or custom by which incidents not expressly mentioned in any contract
are usually annexed to such contracts, may be proved if they are not repugnant to, or
inconsistent with, its express terms.
(f) Extrinsic evidence of surrounding circumstances.
Any fact which shows in what manner the language of
the document is related to existing facts, may be proved.
3. SECTION 93 :- EXCLUSION OF EVIDENCE TO EXPLAIN OR AMEND AMBIGUOUS
DOCUMENT:
There are two kinds of ambiguities of words - the one is ambiguities patens and
other latens.
Section 93 of Evidence Act deals with patent ambiguities. If the language of a deed is, on its
face, ambiguous or defective, no evidence can be given to make it certain.
Illustration:- An agreement is made between A and B that A will sell his crops for Rs. 1000 or
2000, evidence cannot be given that which price was to be given.
This section has reference to documents the language of which is so vague or
defective on their face as to convey no meaning or so inherently ambiguous as to render the
meaning uncertain. When the person or the subject matter in the document cannot be
ascertained from the language used and it is on its face unintelligible, extrinsic evidence of
intention cannot be given. The Court has to interpret documents, but it cannot apply intention
of the writer or import words in a documents which are incapable of meaning for want of
adequate expression.
In Keshavlal Lallubhai Patel Vs. Lalbhai Trikumlal Mills Ltd [AIR 1958 SC 512]
Hon’ble Supreme Court held that “ If, on a fair construction, the condition mentioned in the
document is held to be vague or uncertain, no evidence can be admitted to remove the said
vagueness or uncertainty. The provisions of S. 93 of the Evidence Act are clear on this point. It
is the language of the document alone that will decide the question. It would not be open to the
parties or to the court to attempt to remove the defect of vagueness or uncertainty by relying
upon any extrinsic evidence. Such an attempt would really mean the making of a new contract
between the parties...”

4. SECTION 94: EXCLUSION OF EVIDENCE AGAINST APPLICATION OF DOCUMENT

TO EXISTING FACTS :
The words of a written instrument must be construed according to their natural
meaning, and no amount of acting by the parties can alter or qualify words which are plain and
unambiguous. When the words used in it are plain in themselves, perfectly clear, free from
ambiguity, and there is no doubt for difficulty as to the proper application of the words to
existing facts, oral evidence is not admissible to show that parties intended to mean other than
what they have said.
 7

In Smt. Kamala Devi Vs Seth Takhatmal And Another [AIR 1964 SC 859],
hon’ble Supreme Court held that “Section 94 of the Evidence Act lays down a rule of
interpretation of the language of a document when it is plain and applies accurately to existing
facts. It says that evidence may be given to show that it was not meant to apply to such facts.
When a court is asked to interpret a document it looks at its language. If the language is clear
and unambiguous and applies accurately to existing facts, it shall accept the ordinary meaning,
for the duty of the Court is not to delve deep into the intricacies of the human mind to ascertain
one's undisclosed intention, but only to take the meaning of the words used by him, that is to
say his expressed intentions. Sometimes when it is said that a Court should look into all the
circumstances to find an author's intention, it is only for the purpose of finding out whether the
words apply accurately to existing facts. But if the words are clear in the context of the
surrounding circumstances, the Court cannot rely on them to attribute to the author an intention
contrary to the plain meaning of the words used in the document.”
5. SECTION 95: EVIDENCE AS TO DOCUMENT UNMEANING IN REFERENCE TO
EXISTING FACTS :
Where the language of a document is plain in itself but is unmeaning in reference
to existing facts, evidence may be given to show that it was used in a peculiar sense. It is based
upon the maxim falsa demonstratio non necet (a false description does not vitiate the
document). Where a sale deed describes the land sold by wrong survey numbers, extrinsic
evidence is admissible to show that the lands intended to be sold and actually sold and
delivered were lands bearing different survey numbers.
In Bharmu Nagappa Naik vs Manianath Das Desai And Anr [ AIR 1959 Kant
165], Hon’ble Court held that the terms of the surety bonds were unmeaning with reference to
the orders, in pursuance of which they had been executed. It is under these circumstancs that
the learned Judge of the trial Court thought it fit and proper to construe the terms of these two
surety bonds in the light of the orders pursuant to which these two bonds have been executed.
6. SECTION 96 : EVIDENCE AS TO APPLICATION OF LANGUAGE WHICH CAN
APPLY TO ONE ONLY OF SEVERAL PERSONS :

Where the description in the document applies equally to any one of two or more
subjects, evidence to explain its language is admissible. Where the language of a document,
though intended to apply to one person or thing only, applies equally to two or more, and it is
impossible to gather from the context which was intended, an equivocation arises. This section
also deals with latent ambiguity. It modifies the rule laid down in Section 94 by providing that
where the language of a document correctly describes two sets of circumstances but could not
have been intended to apply to both, evidence may be given to show to which set it was
intended to apply. Here the language is certain. The doubt as to which of similar persons or
things the language applies has been introduced by extrinsic evidence. In cases under section
94 and 96, the language is certain and intelligible, but in the document contemplated in section
96 ambiguity is introduced on account of words being applicable to two or more persons or
things, while it was intended to apply to one. Oral evidence is admissible in cases of
equivocation, because it is meant to explain document and not to contradict and vary it.
7. SECTION 97: EVIDENCE AS TO APPLICATION OF LANGUAGE TO ONE OF TWO
SETS OF FACTS, TO NEITHER OF WHICH THE WHOLE CORRECTLY APPLIES.
This section is based upon the maxim falsa demonstratio non necet. It is only an
extension of the provision of section 95. Sections 95, 96 and 97 all deal with latent ambiguity.
Where in a written instrument the description of the person or thing intended is applicable with
legal certainty to each of several subjects, extrinsic evidence, including proof of declarations of
intention, is admissible to establish which of such subjects was intended by the author. The rule
rejecting erroneous description not substantially important is applicable only where there is
enough to show the intention clearly.
The illustration to this section shows that if A agrees to sell to B "my land at X in
the occupation of Y", and A has land at X but not in the occupation of Y, and has land in the
occupation of Y but it is not at X, evidence may be given to show which was intended to be
sold. Another common case is where land within certain boundaries is sold and is wrongly
 8

described as containing a certain area, the error in area is regarded as a mere misdescription and
does not vitiate the deed. The maxim falsa demonstratio non necet applies.
8. SECTION 98 : EVIDENCE AS TO MEANING OF ILLEGIBLE CHARACTERS , ETC
Evidence as to the meaning of illegible characters or of foreign obsolete, technical, local and
provincial expressions and of words used in a peculiar sense may be given. In such cases the
evidence cannot properly be said to vary the written instrument; it only explains the meaning of
expressions used. Mercantile usage has given special meanings to many ordinary words.
Evidence of the meaning which these words bear in mercantile transactions can be given under
this section.
Unity Co Vs. Diamond Sugar Mills A 1971 C18, the Hon’ble Court held that to
find out intended meaning of the word ‘forfeit’ and ‘forfeiture’ in resolution of company as
well as declaration by Directors in relation to some transaction extrinsic evidence becomes
permissible.
In Laxminarayan Vs. Returning Officer [(1974) 3 SCC 425], Hon’ble Supreme
Court held that “It could not be said that merely because the notes of speeches were in
shorthand they would not be admissible in evidence and that they should have been recorded in
a language which could be understood by the adverse party. According to Section 98 of the
Evidence Act, evidence may be given to show the meaning of illegible or not commonly
intelligible characters or of abbreviations etc. Notes in shorthand may be said to in 'not
commonly intelligible characters' and 'abbreviations.”

9. SECTION 99 : WHO MAY GIVE EVIDENCE OF AGREEMENT VARYING TERMS OF

DOCUMENT
Section 92 forbids the admission of evidence of an oral agreement for the purpose
of contradicting, varying, adding to, or subtracting from, the terms of a written document as
between the parties to such document or their representatives in interest. The rule of exclusion
laid down in the section does not apply to the case of a third party who is not a party to the
document. On the contrary, this section distinctly provides that persons who are not parties to a
document may give evidence tending to show a contemporaneous agreement varying the terms
of the document.

In Bageshri Dayal V/s. Pancho, [(1906) 28 Allahabad 473], Hon’ble Court held
that, 'in section 92, oral evidence by the parties to a contract is prohibited but the principle
given therein does not apply to third parties. Oral evidence by third parties is thus made
applicable by Section 99''.
In Hiradevi V/s. Official Assignee, Bombay, [AIR 1958 SC 448], it is held by
Hon’ble Supreme Court held that “Section 99 provides that " persons who are not parties to a
document or their representatives in interest may give evidence of any facts tending to show a
contemporaneous agreement varying the terms of the document." Though it is only variation
which is specifically mentioned in Section 99 , there can be no doubt that the third party's right
to lead evidence which is recognized by Section 99 would include, a right to lead evidence not
only to vary the terms of the document, but to contradict the said terms or to add to or subtract
from them.”

10. SECTION 100 : SAVING OF PROVISIONS OF INDIAN SUCCESSION ACT

RELATING TO WILLS.
This section clarifies that nothing contained in this Chapter shall be taken to affect any of the
provisions of the Indian Succession Act (10 of 1865) as to the construction of wills.

Conclusion:
In short, Sections 91 and 92 define the cases in which documents are exclusive
evidence of the transactions which they embody. Sections 93–99 deal with the interpretation of
documents by oral evidence.
 9

The best evidence rule does not demand the greatest amount of evidence which
can possibly be given of any fact, but its desire is to prevent the introduction of any evidence
than the document itself. It is adopted for the prevention of fraud. Documents once reduced into
writing are considered to be the best evidence. It is on the higher footing than oral vidence. The
very object for which writing is used is to perpetuate the memory of what is written down, and
so to furnish permanent proof of it. In order to give effect to this, the document itself must be
produced.

TOPIC No.2
1. Introduction
The Indian Evidence Act accepts two forms of evidence, documentary evidence
and oral evidence. According to the Indian Evidence Act, the documents which are produced
for the inspection of the court are called documentary evidence.
The documents are mainly of two types: private document and public document.
According to Section 3 of the Indian Evidence Act, document means any matter expressed or
described upon any substance and it can be in various means of letters, figures or marks, or by
more than one of those means, intended to be used, or which may be used, for the purpose of
recording particular information or matter. There are various examples given for documents in
the act like map, plan, caricature and letters. Any words which are printed and lithographed are
considered to be documents according to the Indian Evidence Act.
The Section 74 of the Indian evidence Act explain about the term Public
document. According to this Section, the following documents are considered public
documents:
a) The documents forming the acts or records of acts of sovereign authority;
b) The documents forming the acts or records of acts of official bodies and tribunals;
c) The documents forming the acts or records of acts of various officers like public
officers, legislative, judicial officers and executive working in any part of India;
d) The public records which are kept in the state of private documents also come
under this category.
Every other document which does not come under section 74 is considered as
private document according to Section 75 of the Indian Evidence Act. Section 76 of the Indian
Evidence Act provides the power to public officers to provide certified copies of public
documents when it is necessary and when the person has the right to demand copies and ask for
the copy of the document, on payment of prescribed fee thereon.
Section 79 to Section 90 of Indian Evidence Act deals with presumptions as to documets:-
According to the Indian Evidence Act, the presumption is of two types. There are certain cases
in which the Court “shall presume” and in certain cases, it “may presume” as envisaged under
Section 4 of the IEA.
2) Section 79 of the Indian Evidence Act provides the presumption as to the
genuineness of certified copies. According to this Section, the court presumes the certified
copy to be genuine when it comes with a valid certificate. The court also presumes that the
 10

officer who has signed the documents holds the official character of the designation mentioned
in the certificate. The certified copy of the public document must contain a certificate which is
provided by the authorized officer that has to mention that it is the true copy of the document
and the officer has to sign the certificate with their name and they also have to mention the date
and designation. The certificate should also be sealed whenever it is necessary by the
authorized officer.
In Bishnath Vs. R, A 1947 0 1, wherein it is held that this section applies only to
ertificates, certified copies or other documents cerfied by proper officer or by officers duly
authorised. In Mohmedbhai Rasulbhai Malik Vs. Amirbhai Rahimbhai Malik, AIR 2001 Guj
37 (42), it is held that cerified copies of judgments was not bearing signature of judge and final
portion of judgment was missing. Date of pronouncement was not mentioned. Hence document
is inadmissible in evidence being incomplete.
In Kata Sreevalli Vs. Seetharamaiah AIR 2005 AP (523), wherein it is held that
inference as to proof of filing of documents without examining single witness is not valid.
3) Presumption as to Documents produced as Records of Evidence. As per section
80 of the Indian Evidence, the Court presumes that the documents which are produced for
inspection are genuine. The court also presumes that any statements as to the circumstances
under which it was taken, considered to be made by the person signing it, are true and that such
evidence, statement or confession was duly taken by following all the procedures. The
documents provided for inspection can be a record or memorandum of the evidence that is
provided by a witness during the judicial proceeding before the officer authorized by law to
take evidence or it can be a statement or confession that is provided by any prisoner or person
who is accused, which taken in accordance with the law and the confession must be signed by
the magistrate or any other officer authorized by law.
4) Section 81 According to this section the court presumes the following documents
to be genuine, the document professed to be the London Gazette, or any Official Gazette, or the
Government Gazette of any colony; the documents which are a dependency of possession of
the British Crown; Newspaper or journal; Copy of a private Act of Parliament of the United
Kingdom which is printed by the Queen’s Printer.
The said documents must be kept in the substantial form mentioned in the law
and also it must be produced from proper custody. The Court also presumes the Official
gazettes kept in the electronic form is genuine if it is kept in the substantial form mentioned in
the law.
In Laxmi Raj Shetty And Anr vs State Of Tamil Nadu, AIR 1988 SC 1274 : it is
held that “A report in a newspapers is only hearsay evidence. A newspaper is not one of the
documents referred to in s. 78(2) of the Evidence Act, 1872 by which an allegation of fact can
be proved. The presumption of genuineness attached under s. 81 of the Evidence Act to a
newspapers report cannot be treated as proved of the facts reported therein. It is now well-
settled that a statement of fact contained in a newspapers is merely hearsay and therefore
inadmissible in evidence in the absence of the maker of the statement appearing in Court and
deposing to have perceived the fact reported.“

5) Presumption as to Maps and Plans made by Government authorities.

Section 83 of the Indian Evidence Act provides the various presumptions
regarding maps and plans made by the authorities of the government. According to this Section,
 11

the maps and plans are presumed to be genuine and accurate if it is made by the authority of the
Central or State government.
6) Presumption as to a Collection of Laws and Reports – Section 84
According to this Section, the court presumes every book which contains laws
and reports of the decisions of the Courts of the country to be genuine if the book is printed or
published by the authority of the government.

7) Presumption as to the Power-of-Attorney- Section 85

According to this Section, the court shall presume that every document that is
considered to be the power of attorney, and that is executed before the authorized officer or
Notary Public or any court or before any Magistrate is executed and authenticated.

8) Presumption as to Books, Maps and Charts- Section 87

The Court presumes that any book which contains any information which contains
matters of public or general interest, or any published chart that are in relation with the case or
any statements that contain relevant facts which are produced for inspection is written and
published by the person mentioned in the book. The court also presumes that the time and place
of publication which is mentioned in the book or chart to be true.
9) Presumption as to Telegraphic Messages-Section 88.
According to the Section, the court presumes “that telegraphic messages to be that
a message, which is forwarded from a telegraph office to the person to whom such message
which claims to be addressed, is in relation with a message that is delivered for transmission at
the office from which the message purports to be sent”. The Section also mentions that the
Court does not make any presumption regarding the person by whom such a message was
delivered for transmission. The Section is not of any use now as the telegraph services have
been stopped by the Indian Government.
10) Presumption as to Electronic Messages- Section 88A.
According to this Section, the Court presumes that an electronic message, which
is forwarded by the originator by means of an electronic mail server to the addressee to whom
the message claims to be addressed corresponds with the message as fed into his computer for
transmission.
11) Presumption as to due Execution of Documents not Produced- Section 89.
The Court presumes that every document that is called for inspection and the
documents are not produced even after the notice period, it is presumed that the documents are
attested, stamped and executed in the manner which is prescribed by law.
12) Presumption as to Documents Thirty years old- Section 90.
The Court presumes that any document which is produced for investigation is
from proper custody and the signature corresponds to the signature of the person whose
custody the document was in. The Court also presumes that any handwriting in the document is
the and writing of the person who has the custody of the document. It is also presumed by the
Court that in case if the document attested or executed, that it was duly executed and attested
by the persons by whom it professes to be executed and attested. The term proper custody
means that the document is with the care of the person and in a place where it would naturally
be. For example, ‘A’ has been in possession of a certain property for a long time. He produces
from his custody deeds the various documents relating to the land showing his titles to it and
the custody is held to be proper.
 12

13) Presumption as to the Electronic Record of Five years old- Section-90A

As per this Section, the Court presumes when any electronic record is produced
of five years old and it is procured from the proper custody for investigation. It is presumed
that the digital signature corresponds to the particular person whose custody the record is or the
signature belongs to the person who has authorized it. It is also mentioned in the Section that
no custody is improper if it is proved that the custody is of legitimate origin in the particular
case to render such origin probable.
May presume:- In Narendra Akash Maharaj petkar Vs. Shahji Baburao petkar, AIR
2009 Bom 165(169), the Hob’ble Court held that the presumption to be drawn under section 90
of the Evidence Act is not a mandatory presumption the word used in the section are ‘ Court
may presume’ even if all the pre-condition require by section 90 are satisfied, the court does not
necessarily have to draw the presumption, if it is satisfied otherwise.
In A. Anthony Vs. Rev. Mother Superior, 2009 (79) AIC 518 (523) (Mad) , it is
held that if any document is thirty years old, the court can very well draw a presumption as to
its execution and also attestation.

14) Conclusion
The documents have a lot of evidentiary value and it is important to investigate
them properly and also save the Court’s valuable time at the same time. Thus the presumptions
regarding the documents is a very essential part of the Indian Evidence Act.
Note- Source of material: Gathered from different books and internet source.

Principal Junior Civil Judge,

Parvathipuram.
 Sri S.Damodar Rao

II Additional District and Session Judge,

Parvathipuram.

A.P.Judiciary VIZIANAGARAM UNIT

Work shop on 16-09-2023.

1. Exclusion of oral evidence by documents. 2. presumptions relating

to documents.

Sections 91 to 100 of evidence Act deal with the question of exclusion of

oral evidence by documentary evidence. The contents of any document
whether dis­positive or non­dispositive have to be proved by production of
the original document itself except in cases where secondary evidence is
permitted. This is the mandate of evidence act under sections 61 to 65 of
Indian evidence Act.

Dis­positive document means a document under which an obligation

is created as in the case of contract.

Non­dispositive document means a document which creates no

obligation but merely contains a narration of fact or facts as in the case of
an ordinary letter.

Concept of Section 91 & 92 is where the document is exclusive

evidence of the transaction it embodies and prevents any change by
permitting oral evidence.

Sections 93 to 100 I.E.Act, deals with interpretation of documents

by oral evidence. The two sets of provisions operate in two distinct and
separate areas.

The permissible extrinsic evidence, in­respect of documents referred in

section 92 and sections 93 to 100 falls into two categories. One is existence
of surrounding surrounding circumstances. The second is usage which
means an unwritten code of conduct invariably followed, by persons
entering into the transaction.

Section 91 I.E.Act, gets attracted in either of the two circumstances

[I] when the terms of contract or of grant or of any other disposition of
property have been reduced to the form of document or

[ii] In all cases in which any matter is required by law to be reduced to the
form of a document.

In the above both cases, the terms of document can not be proved except by
producing the document it self or by furnishing secondary evidence where
such secondary evidence is permissible under law. The principal behind the
section is “ Best evidence rule” it is a cardinal or important rule of evidence,
not one of technicality but of substance, that when written documents exist
they alone should be produced as being the best evidence.

Section 92 I.E.Act, deals with the conclusiveness of documentary evidence

and prevents the party from adducing oral evidence contra to the terms of
document.

Section 64 of Indian evidence Act says that documents must be proved

primary evidence, except in the cases where secondary evidence is
permissible as mentioned under section 65 of Evidence Act.

Under section 62 of Indian Evidence Act primary evidence means

production of the document itself for the inspection of the court.

Under section 63 of indian evidence act secondary evidence means and

includes. [I] certified copies [ii] copies made from original by mechanicle
process [iii] copies made from or compared with original [iv] counter parts
of documents as against the parties who did not execute them. [v] oral
accounts of the contents of a document given by some person who has
himself seen it.
Section 91 of I.E. Act Section 92 of I.E. Act.

No such limitation are imposed under The legislature prevented the Oral
section 91 of Indian Evidence Act. evidence being adduced for the
purpose of varing the contract as
between the parties to the contract

Apply only when the document on the Apply only when the document on the
face of it contains or appears to face of it contains or appears to
contain all the terms of the contact. contain all the terms of the contact.

Solely with the mode of proof of the
document which limitation imposed
by section 92 relates only to the
parties to the document.
If after the document has been
produced to prove its terms under
section 91, provisions of the section
92 come in to operation for the
purpose of the excluding the evidence
of any oral agreement or statement for
the purpose of contradicting, varing
adding substracing from its terms.

Section 91 Would in­operative without Similarly section 92 would be

the aid of the section 92. in­operative without the aid of the
section 91.

Applies to all documents, whether It applies to document which can be

they purport to dispose of rights or described as dispoitive
not.

Applies to the documents which are Unlights section 92 the application of

both bilateral and unilater which is confined only to blateral
document.

Section 91 is complementary to Section 92 supplementary to section

Section 92 91.

Section 91 mandates that the Section 92 comes in to play after the

document alone should be produced document is produced.

The documents attracted by section 91 is two types of the documents

(i) Where the terms of the contract or of a grant or of any other disposition
of property have been reduced to the form of a document; or

(ii) In all cases in which any matter is required by law to be reduced to the
form of the document.

(I) is dis­positive in nature, (ii) is may not be dispositive in character.

Exceptions to the section 91.:

(i) when public officer is required by law to be appointed in writing and when
it is shown that a persons has acted as officer, the writing under which he
is appointed need not be produced.

Under section 79 of Indian Evidence Act also the public officer issued
a certified copy is presumed.

(ii) Wills admitted in probate [Sec.2(f) of Indian succession Act, 1925] A copy
of will certified by a court competent jurisdiction with grant of
Administration for the estate of testator, which are usually called letter of
administration. Though a probate copy of will is technically secondary
evidence under exception 2 of section 91 says that instead of the original
will, the probate copy can be filed.

(iii) Under section 5 of NI Act with regard to a bill of exchange there is a

presumption that a person suing on it gave consideration or is hold in due
course.

(iv) The statement in any document whatever other than the facts referred
in this section may be proved by the oral evidence. The explanation says
that in any document, if there are some collateral or informal facts not
related to terms of the contract, grant or other disposition of the property,
oral evidence is admissible in proof or dis­proof of the same.

(v) Under section 91, “All cases in which any matter is required to the
reduced to the form of the document”. A question may arise as to what are
the instances where law requires a matter to be reduced in writing in the
form of the document. Some of the instances are:­

(i)Judgment and Decree of Civil Courts under order XX and Order XLI of
CPC. Depositions of witness recorded by the court. They are non dispositive
documents, since a court of law does not create a non existing right. It only
enforces an existing right.
(ii) A contract does not required that the contents should be reduced in
writing. But if it is a contract without consideration executed in favour of
near relations under section 25 of contract Act it must be in writing in
registered. This is dispositive document, since an enforceable right is
created in favour of contractee.

(iii) Gift of immovable property irrespective of its value requires wriging and
registration under section 123 of Trasfer property Act.

(iv) Wills under section 63 of Indian Succession Act must be reduced to

writing, as also under section 68 of Indian Evidence Act.

(v)”Consent in writing” Under section 399(3) of Companies Act, 1956 is

another example.

(vi) Lease of Immovable Property for a year or for terms exceeding one year
requires writing under section 107 of Transfer of Property Act and also
Registration under section 17 of Registration Act.

(vii) Acknowledgment by writing or by payment under section 18 and 19 of

Limitation Act.

(viii) All documents required Registration as per Registration Act, 1908

because there can be no registration without any written document.

Section 92:­The method of proof of the terms is by the production of the

document itself or furnishing secondary evidence where such secondary
evidence is admissible under section 65 of the Indian Evidence Act.

Section 92 enacts that no oral evidence shall be admitted to

contradict, vary, add to or substract from its terms. It is a principal of
Justice and fair play ie., enacted under section 92 to prevent an
unscrupulous man from residing or going back on his earlier agreed
commitment reduced to writing.

Section 92 states that when the document referred to Section 91 is

proved , no oral evidence shall be admitted between the parties or their
representative for the purpose contradicting, varing, adding to or
substracting from its terms.

Oral evidence is admissible to show that a document executed by a

person was never intended to operate as an agreement, but was brought in
to existence solely for the purpose creating the evidence of some other
transactions.

Under section 91 and 94 the recital of document can not be

contravened by oral evidence.

Section 93 exclusion of evidence to explain or amend ambiguous

documents. When the language used in a document is, on its face,
ambiguous or defective, evidence may not be given of fact, which would
show its meaning or supply its defects.

The section 93 and 94 to 98 deals with the rules relating to

interpretations of the documents which also known as construction of the
documents. There are some people who do not understand what they write.
Even if they do, some do not know how to express their intention in writing.
A document in such cases may fail for want of adequate expression.

Ambiguities in document:­ Some times a document may be full of

ambiguities may arise because of the lake of perception or understanding on
the part of the executant to write what he intended to convey. If said
ambiguity terms when crucial, operative words are missing, then to bring
into the light of intention of the author, the oral evidence is permissible.

Ambiguities in document are two types.

One is Patent ambiguity and other is latent ambiguity.

A Patent ambiguity arises because of the incapacity of the writer to

comprehend and understand exactly what he wants to convey.
 A latent ambiguity arises in a case where the executant knowing what
he want to convey is unable to say or do so because of his inability to
express himself correctly.

In case of Patent ambiguity the confusion is in the mind, In case of

latent ambiguity the confusion is not in the mind, but only in the
expression.

Section 93 deals with patent ambiguity, Section 95 to 97 relates to

latent ambiguities.

Section 94:­ The section lays out the rule of interpretation, when
the words employed in the document are playing and fit in accurately to
existing facts.

Section 94 consists of two incongruence one is the language used in

the document must be plain in itself, the another one is it must apply
accurate to existing facts.

If both ingredients are present no evidence, either oral or otherwise

can be permitted to show that meaning of the document was not intended to
that facts mentioned in the document.

The reason for the rule is that the court must construe a deed
according to the plaint and ordinary meaning of its terms.

Section 95:­ When language used in a document is plain in

itself, but is unmeaning in reference to existing facts evidence may be given
to show that it was used in peculiar sense. This section is an instance of
latent ambiguity extrinsic evidence is permissible. The doctrine under
section 95 is based on latin maxin ­ “ Falsa Demonstratio Non Nocel” ­ which
means a false description does not vitiate the document. For example where
there is conflit between area and boundary, description of boundaries will
prevailed.
 Section 96:­ Evidence has to application of language which can
apply to one only of several persons.

When the facts are such that the language used might have been
meant to apply to anyone , and could not have been meant to apply to more
than one, of several persons or things, evidence may be given of facts which
show which of the persons or things it was intended to apply.

This section deals with one more variety of latent ambiguities and
extrisic evidence is permitted to interpret such document. This section is
considered as a modification of the rule in section 94 and in both cases the
language employed is plain and intelligible are understandable, but in
document covered by section 96 the ambiguity arises because of the words
become applicable two or more persons.

Example: A agrees to accompany B to Hyderabad. Evidence may be

given of fact showing whether Hyderabad in Deccan or Hyderabad in Sind
was meant. Here in this provision equivocation arises when the language of
the document is perfectly clear, but it may equally apply to two or more
persons or things although the authors intension is that it should apply to
one particular person or thing.

Section 97:­ Evidence has to application of language to one of

two sets of facts, two neither of which the whole correctly applies

“When the language used applies partly to one set of existing facts and
partly to another set of existing fact, but the whole of it does not apply
correctly to either, evidence may be given to show to which of the two, it was
meant to apply.”

This section deals with another latent ambiguity

(i) The language employed in the document must apply partly to one set of
the existing fact and partly to another set of existing fact.
(ii) The whole of the recitals in the documents should not apply correctly to
either of the set of existing facts.

(iii) if the above conditions are fulfilled then extrinsic evidence out side the
recitals in the document can be adduced and such evidence must be
confined to clear the ambiguity as to which of the two sets of facts the
document relates.

(iv) The Laten Maxin “Falsa Demonstratio Non Nocet Cum Decorpore
Constant” it means a false description does not vitiate the document. In
other words an instrument does not failed or become in­operative because
it contains an in accurate or false description. This rule applicable only in
suits in between the parties to the instruments and their representatives.
The Principal is that third persons should not be prejudice by writing
between strangers containing the of the recitals contrary to truth or made
out ignorance or with ulterior motive.

Exclusion of oral evidence(Section 94 to 97):­

(i) wherein written instrument, the description of a person or thing is

applicable with legal certainty to each of several subjects, then extrinsic
evidence including the declaration of intention by the author is admissible
to clear the ambiguity and establish which of such subject is intended by
the author (This laid down in the section 96)

(ii) If the description person or thing in the document is partly applicable

and partly in applicable, then extrinsic evidence including declarations by
the author is admissible to show to which person or thing the language
applies. (This laid down in the section 97)

(iii) If the description is partly correct and partly incorrect, and the correct
part be sufficient of itself, to identify the subject intended and the incorrect
part inappropriate to in any subject, exstrisic oral evidence is admissible. In
such cases the instrument will be rendered operative by rejecting the
erroneous part. This principal is laid in section 95. in the same case
declarations are made admissible under section 97 of Evidence Act.

(iv) If the description is wholly in capable to the subject intended, extrinsic

evidence can not be received at all (This laid down in the section 94)

(v) If the language of the document when pretended according to primary

meaning is insensible,but become sensible when the meaning of the words
are understood in secondary sense, then extrinsic evidence is admissible to
arrive at the intension of the author. (This rule correspondent with section 95)

The wills concerned similar rules of interpretation are also found in

sections 76 to 81 of Indian Succession Act.

Section 98:­ Evidence has to meaning illegible characters etc.,

Evidence may be given to show the meaning of illegible or not

commonly intelligible characters, or foreign, obsolete, technical, local and
provincial expressions of abbreviation and of words used in peculiar sense.

This section deal with two types of latent ambiguities, Firstly a

document may written in a way not understandable to ordinary persons for
instance where the writing is in short hand or in ciphar or in gimbals. Only
persons with knowledge of shorthand or Ciphar code can unraval their
meaning or decipher the same. Secondly the document may also be no
understandable to a common man because it may contain the technical
words or legal terms etc., which can not be understood except by trained
men or experts.

In the guise of interpreting the technical or other expressions

mentioned in the section one cannot be permitted to contradict or vary the
same. There is a doctrine called “Conatemporonea Exposita” means
interpretation of ancient document of aparent ambiguity. In case of
document in foreign language, the court requires a translation by competent
translator.
 Section 99:­ Whom may give evidence of agreement varying
terms of the document

The persons who are not a parties to a document, or their

representatives are in interest, no give evidence of any facts tender in show a
contemporaneous agreement varying the terms of the document. In other
words the stranger to the document may furnish evidence to vary the terms
of written instrument under section 99 of Evidence Act. Contra to that the
oral evidence to vary the terms of the document is prohibited under section
92 of Evidence Act.

Ex: In a mortgage suit third parties can question the mortgagor’s title
to the property.

Section 100:­ Saving of provisions of Indian Succession Act relating

to wills.

Nothing in the Chapter contain shall be taken to effect any of the

provisions of Indian Succession Act as to the construction of wills.

Sections 91 to 100 have no application in interpreting the wills and

codicils. Codicil in define in section 2(b) of Indian Succession Act as in
instrument made in relation to a will explaining, altering and adding to the
dispositions and shall be deemed to farm the part of the will.

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

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

Besides direct evidence, or admission, the contents of a document can

also be proved by circumstantial evidence or by invoking presumption.
‘Common course of natural events’, ‘human conduct’ etc. under S. 114, can
be used to prove the existence and genuineness/truth of a document.
 Sec. 35 of the Evidence Act says: Relevancy of entry in public record
or an electronic record made in performance of duty: An entry in any public
or other official book, register or record or an electronic record, stating a fact
in issue or relevant fact, and made by a public servant in the discharge of
his official duty, or by any other person in performance of a duty specially
enjoined by the law of the country in which such book, register, or record or
an electronic record is kept, is itself a relevant fact.

Illustration (e) of Sec. 114, Evidence Act, demonstrates that presumption as

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

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

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

under:

“The principle is that an official record, kept by a person, upon whom

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

In Shiv Ram v. Shiv Charan Singh, AIR 1964 Raj 126, it is observed as
under
 “Where Sec. 35 properly comes into play, an entry made by a public
servant in any public or official book in the discharge of his official duty
becomes relevant by itself, and no other proof of such entry is required as
a matter of law by our Evidence Act, but this, does not exclude the
possibility that such an entry may become admissible otherwise if it is
properly proved to have been made by a person ordinarily competent to
make it.” (Quoted in Mayadhar Nayak vs Sub­Divisional Officer, Jajpur,
AIR 1982 Ori 221).

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

Presumption of Correctness Attached to a Registered Deed

In the split­verdict in Majumder v. Dipak Kumar Saha, 2023 SCC OnLine

SC 37 held as under:

“18. … The Presumption of correctness attached to endorsement made

by the Sub­Registrar is in view of the provisions of Sections 58, 59 and
60 of the Registration Act. This presumption can be rebutted only by
strong evidence to the contrary.”
In Prem Singh v. Birbal, (2006) 5 SCC 353 (when such a presumption
arises, the onus would be on a person who challenges such presumption, to
successfully rebut it).

Production of Power of Attorney Not Essential for Proving Regd. Sale

Deed Executed through PoA

InManik Majumder v. Dipak Kumar Saha, AIR 2023 SC 506, the sale of
property under consideration was made on behalf of the seller to the buyer
through the power of attorney. The power of attorney was not produced
before the Court. The High Court observed that the sale was not proved as
the Power of Attorney was not produced. Refuting the observation of the
High Court, the Hon’ble apex court in the split­verdict, held as under:

“18. … However, a registered deed has to be proved in accordance with

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

Courts to admit documents Without Proof

Section 163 of the Evidence Act, Giving, as evidence, of document called

for and produced on notice: When a party calls for a document which he has
given the other party notice to produce, and such document is produced and
inspected by the party calling for its production, he is bound to give it as
evidence if the party producing it requires him to do so.

It is observed in Government of Bengal v. Santiram Mondal, AIR 1930

Cal 370, with respect to a document used under Sec. 163, as under:

“The further contention is that if they are to be admitted, they cannot be

put in or at any rate used without proof. But the section itself says that
the party calling for it is bound to give it as evidence if required to do so,
and that certainly means that it goes in as a record of the particular
proceeding and that it can be looked at to see what it includes or omits.”

It is note worthy that Order XI rule 15 and Order XII rule 8 are the
provisions in the CPC to give notice to the other party to produce documents
(for ‘inspection’ and ‘show court’, respectively). In Government of Bengal v.
Santiram Mondal, AIR 1930 Cal 370, and R v. Makhan, AIR 1940 Cal 167 it
was observed that Section 163 of the Evidence Act applies to Criminal
Proceedings also.
Oral Evidence on contents of Documents – No Use, Unless Secondary
Evidence Entitled

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

Sec. 22 emphasises that oral evidence as to contents of documents , even if

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

Sec. 22 and 22A of the Evidence Act reads as under:

22. When oral admissions as to contents of documents are relevant:

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

Sec. 144 of the Evidence Act reads as under: Evidence as to matters in

writing.—Any witness may be asked, whilst under examination, whether any
contract, grant or other disposition of property, as to which he is giving
evidence, was not contained in a document, and if he says that it was, or if
he is about to make any statement as to the contents of any document,
which, in the opinion of the Court, ought to be produced, the adverse party
may object to such evidence being given until such document is produced,
or until facts have been proved which entitle the party who called the
witness to give secondary evidence of it.

Explanation.—A witness may give oral evidence of statements made by

other persons about the contents of documents if such statements are in
themselves relevant facts.
Illustration. The question is, whether A assaulted B. C deposes that he
heard A say to D—”B wrote a letter accusing me of theft, and I will be
revenged on him”. This statement is relevant as showing A’s motive for the
assault, and evidence may be given of it, though no other evidence is given
about the letter.

Sec. 59 of the Evidence Act lays down that contents of documents (or
electronic records) are to be proved by oral evidence. Sec. 62 defines
primary evidence to mean ‘the document itself’ produced for the inspection
of the Court. Sec. 64 of the Act requires that that the documents to be
proved primarily by ‘primary evidence’, except in cases where secondary
evidence is provided under Sec. 65.

Sections 22, 59, 61, 62 and 64 of the Evidence Act project the ‘rule of best
evidence’ and it directs that the contents of the document are to be proved
by the original document itself, unless secondary evidence is provided under
Sec. 65.

Sec. 91 and 92 provides that when terms of a contract, or of a grant, or of

any other disposition of property, have been reduced to the form of a
document, and in all cases in which any matter is required by law to be
reduced to the form of a document, their terms alone are taken to be the
sources of what the parties wished to state; and oral evidence to the
contrary, are excluded. Both these provisions are based on “best evidence
rule”. (Roop Kumar v. Mohan Thadani AIR 2003 SC. 2418: 2003­6 SCC 595;
S. Saktivel v. M. Venugopal Pillai 2007­7 SCC 104; Mumbai International
Airport v. Golden Chariot Airport, (2012) 10 SCC 422.

The Supreme Court held in Roop Kumar v. Mohan Thedani: AIR 2003 SC
2418, as under:

“The grounds of exclusion of extrinsic evidence are (i) to admit inferior

evidence when law requires superior would amount to nullifying the law,
(ii) when parties have deliberately put their agreement into writing, it is
conclusively presumed, between themselves and their privies, that they
intended the writing to form a full and final statement of their intentions,
and one which should be placed beyond the reach of future controversy,
bad faith and treacherous memory.”

However, oral evidence can be given on a matter (adoption) which is not

required by law to be in writing and it is not barred for the mere reason it
was contained in a document (Taburi Sahai v. Jhunjhunwala, AIR 1967 SC
106).

In Perumal Chettiar VS Kamakshi Ammal, AIR 1938 Mad 785; ILR 1938
Mad 933, it is held as under:

“Section 22 of the Indian Evidence Act adopted the stricter view and
relegated oral admissions as to the contents of a document to the
category of ‘secondary evidence’. The result, in India, is that if by reason
of the document being unstamped, no evidence of its contents whether
primary or secondary is admissible, evidence of admissions by the
defendant is equally inadmissible. The position may be different where
admissions are made in the pleadings themselves, because by reason of
Section 58 of the Evidence Act, it may not be necessary to prove admitted
facts and the objection under Section 91 will not arise unless the plaintiff
is called upon to go into evidence. In Chenbasappa v. Lakshman
Ramchandra I.L.R.(1893) 18 Bom. 369 where it was suggested that in a
 suit on an unstamped promissory note, even an admission in the written
statement may not avail the plaintiff, as the Court when giving a decree
on such admission may be “acting on” the document within the meaning
of Section 35 of the Stamp Act.

Specific Presumptions in Evidence Act, as to Electronic Records

Sec. 81A. Presumption as to Gazettes in electronic forms

Sec. 85A. Presumption as to electronic agreements
Sec. 85B. Presumption as to electronic records and electronic signatures
Sec. 85C.Presumption as to Electronic Signature Certificates
Sec. 88A. Presumption as to electronic messages

81A. Presumption as to Gazettes in electronic forms

The Court shall presume the genuineness of every electronic record

purporting to be the Official Gazette or purporting to be electronic record
directed by any law to be kept by any person, if such electronic record is
kept substantially in the form required by law and is produced from proper
custody.

85A Presumption as to electronic agreements

The Court shall presume that every electronic record purporting to be an

agreement containing the electronic signature of the parties was so
concluded by affixing the electronic signature of the parties.

85B Presumption as to electronic records and electronic signatures

(1) In any proceedings involving a secure electronic record, the Court shall
presume unless contrary is proved, that the secure electronic record has not
been altered since the specific point of time to which the secure status
relates.
(2) In any proceedings, involving secure electronic signature, the Court shall
presume unless the contrary is proved that—

(a) the secure electronic signature is affixed by subscriber with the intention
of signing or approving the electronic record;

(b) except in the case of a secure electronic record or a secure electronic

signature, nothing in this section shall create any presumption, relating to
authenticity and integrity of the electronic record or any electronic
signature.

85CPresumption as to Electronic Signature Certificates

The Court shall presume, unless contrary is proved, that the information
listed in a Electronic Signature Certificate is correct, except for information
specified as subscriber information which has not been verified, if the
certificate was accepted by the subscriber.

88A.Presumption as to electronic messages

The Court may presume that an electronic message, forwarded by the

originator through an electronic mail server to the addressee to whom the
message purports to be addressed corresponds with the message as fed into
his computer for transmission; but the Court shall not make any
presumption as to the person by whom such message was sent.

“Explanation: For the purposes of this section, the expressions “addressee”

and “originator” shall have the same meanings respectively assigned to them
in clauses (b) and (za) of sub­section (1) of section 2 of the Information
Technology Act, 2000.

Sd/­S.Damodararao.

II Addl.District Judge,

Parvathipuram.
Extracted from Text book and internet

Sources.
 1

EXCLUSION OF ORAL EVIDENCE BY DOCUMENTS:

The term ‘evidence’ comes from the Latin Word “evident” which

means “to show clearly” to prove. Eevidence is the testimony, which may be

legally received in order to prove or disprove some facts in dispute. Though

there are many types of evidence like, direct evidence, circumstantial

evidence, expert evidence, hearsay evidence, primary evidence, secondary

evidence, positive and negative evidence, substantive and non-substantive

evidence, primary and conclusive evidence, digital evidence, electronic

evidence, all of them comes under the purview of either oral evidence or

documentary evidence.

All the statements if the Court permits or requires to be made

before it by witness in relation to maters of fact under inquiry, such

statements are called oral evidence, whereas all documents including

electronic records produced for the inspection of the Courts, such documents

are called documentary evidence. The best evidence rule does not demand

the greatest amount of evidence which can possibly be given of any fact, but

it desires to prevent the introduction of any evidence than the document

itself. Sections 91 to 100 of the Indian Evidence Act covered under Chapter-

VI is the best evidence Rule. The Chapter-VI of the Indian Evidence Act

exclusively deals with exclusion of oral evidence by documentary evidence.

Documents once reduced into writing are considered to be the best evidence.

Sections 91 and 92 of the Indian Evidence Act defines the cases in which the

documents are exclusive evidence of transaction which they embody and oral

evidence cannot be used to superceed, contrary, contradict, vary, add or

substract from the terms of the document. Whereas, Sections 93 to 100 deal

with the interpretation of documents by oral evidence.

 2

Documents once reduced into writing are considered to be the

best evidence and it is on the higher side than the oral evidence.

In Roop Kumar vs. Mohan Thedani, reported in 2003 (6) SCC

595, their Lordships had observed that :

“Section 91 relates to evidence of terms of contract, grants and

other disposition of properties reduced to form of document. This
section merely forbids proving the contents of a writing otherwise than
by writing itself; it is covered by the ordinary rule of law of evidence,
applicable not merely to solemn writings of the sort named but to
others known some times as the "best evidence rule".
When an agreement is reduced in writing, it is for the express

purpose of getting route of any indefiniteness and to put their ideas in such

shares and that there can be no misunderstanding when so often occurs

when reliance is placed upon oral statements.

In R. Janaki Raman vs. State of Tamilnadu, reported in 2006

(3) SCJ 226, their Lordships have held that :

“Oral evidence can always be led to show that a transaction

under a particular document or set of documents is sham or fictitious
or nominal, not intended to be acted upon and Section 92 of Indian
Evidence Act is not a bar”.
In Beemaneni Maha Lakshmi vs Gangumalla Appa Rao

reported in 2006 (6) ALT (Telangana), 401, in which their Lordships have

held that :

“What is mandate by Section 91 of the Indian Evidence Act is that

contents of the documents should be proved only by the primary
evidence except in cases in which secondary evidence is admissible
and as Section 92 of Evidence Act deals with exclusion of extransic
evidence to contradict vary add to or substract from the forms of such
document. The second proviso to Section 92 of the Evidence Act
clearly laids down that separate agreements to any matter on which a
document is silent, which is not inconsistent with its terms can be
proved”.
 3

In Venkataramana Reddy & Others, vs Gandluri Govinda

Reddy and another, reported in 2013 (2) ALT 550, in which their

Lordships held that :

“Any poral evidence contradicting contents of a written

document is inadmissible in evidence U/s.92(4) of the Evidence Act

(Para-16)”.

In S. Narasimha Reddy (died) per L.Rs. & Others, Vs. Smt.

G. Vijayamma, reported in 2023 (2) ALD 788 (S.B.), in which their

Lordships held that :

“In a partition suit, a title without therebeing any

documentary evidence to prove about the right over the property, the

Court below cannot pass decree”.

The principle states that when the terms of any such document

has been proved by the primaryor secondary evidence of the document, no

oral agreement or statement of evidence shall be accepted. As the Law

always needs the best evidence, the value of documentary evidence is higher

than that of the oral evidence. The oral evidence is rebutted to verbal

expression. The original evidence is more reliable and the best evidence is

considered by the Court. In the absence of primary evidence, secondary

evidence is provided to witnesses based on his own point of view. In some

cases the main evidence is the best evidence in all cases. There is

documentary evidence that excludes oral evidence and the oral evidence

shall prevail when the evidence is submitted as the Court witness.

* * *
 4

PRESUMPTIONS RELATING TO DOCUMENTS

The term presumption can be defined to be an inference

affirmative or dis-affirmative of the true or falcity of a doubtful fact

proportion, drawn to be a process of proportion reasoning from something

proved or taken for granted.

The inference may be one which the Court is bound to make, so

that the fact is taken has proved until it is disproved. It is said that the Court

“shall presume” or the inference may be one which the court is at particular

to make, which means the Court is at liberty either to act the fact has proved

until disproved or call for proof of it in such first instance and it is said thaet

the Court “may presume”.

The presumptions are particularly classified into three groups.

Presumption of fact or natural presumption, presumption of Law or artificial

presumption (rebuttal and irrebuttal or conclusive) and mixed presumption

(presumption of fact and law). Sections 79 to 90 (A) of the Indian Evidence

Act, 1872 are the provisions relating to the Presumption as to documents. In

specific Sections 79 to 85 deal with presumptions of Law, whereas Sections

86 to 88 and 90 deals with the presumptions of the fact.

Under the Indian Evidence Act, the Court shall presume that a

certified copy of a document or any document duly certified by any Officer of

the Central Government or of a State Government, who is duly authorized to

be genuine. Whenever any document is produced before any Court

purporting to be a record on memorandum of evidence or of any part of the

evidence given by a witness in a Judicial Proceeding or before any Officer

authorized by Law to take such evidence or confession by any person or

accused person taken in accordance with Law and purporting to be signed by

a Judge or magistrate, the Court shall presume that the document is genuine.
 5

The genuineness of any Officer Gazette or a Newspaper or a

Journal or every document purporting to be a document directed by any Law

to be kept by any person and the same is produced from proper custody, the

said documents are presumed to be genuine as per Section 82 of the

Evidence Act.

Every electronic record purporting to be an electronic record or

directed by any Law to be kept by any person as required by Law is produced

from proper custody, the Court presumes that the said document is genuine

as per Section 81-A of Indian Evidence Act. As per Section 90 of the Indian

Evidence Act, when any document purporting are proved to be 30 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 the

document, which purports to be in the handwriting of any particular person if

in that person’s handwriting and in the case of the document executed or

attested that it was duly executed and attested by the person by whom it

purports to be executed as attested.

Unless the contrary is proved, the Court shall presume that the

secure electronic signature affixed by the subscriber with the intention of

signing or approving the electronic record, but nothing in this Section shall

create any presumption relating to authenticity and integrity of the electronic

record or any electronic signature as per Section 85-B.

Section 95-A speaks that any electronic record purporting are

proved to be five years old is produced before the court from proper custody,

the Court may presume that the electronic signature of any particular person

was so affixed by him or any person authorized by him in this behalf. Section

82 to Section 89 of the Indian Evidence Act speaks about the presumption of

the documents like Map, Plans made by authority of Government, collection

 6

Law and Reports and decisions powers of Attorney, certified copies of foreign

Judicial Records, Telegraphis Messages, electronic messages.

In Union of India Vs. Ibrahim Uddin and another, reported in

2012 (6) SCJ, 432, wherein their Lordships held that :

“Presumption is in respect of genuineness of a document as

regards signature, execution and attestation but not as regards

correctness of its contents”

In G. Shashikala and others, Vs. G. Kalawati Bai (died) per

LRs and others, reported in 2018 (6) ALT 427, wherein their Lordships

held that :

“There is a presumption of correctness that a registered

document comes in its favur but when the same is called into question
the registered deed must be proved like any other document”.
In B. Ravi Yadav Vs. Cherukula Uday Kumar and others,

reported in 2013 x(2) ALT 245, wherein their Lordships held that :

“Court can draw a presumption from a fact or facts. That would

remain until such presumption or inference is either disproved or
dispelled. As was held in Khandavalli Amith Kumar Vs. State of
A.P. 2012 (3) ALT (CRI) 263, where there is no independent or direct
evidence, presumption must be taken aid by the Court where there is
no independent or direct evidence, presumption must be taken aid by
the court”.

All that the law that is to allow the Court to dispense with

evidence if it should think fit to do so, of in certain cases to require it to do

so. But proof to the contrary is not ruled out by the Sections with which we

are concerned that is Sections 79 to 90 of Indian Evidence Act.

* * *
 Presented by
M. Vijaya Rameswari,
Junior Civil Judge,
cheepurupalli.

Exclusion of oral evidence by

documentary evidence
Evidence reduced in the form of document
Section 91 of the Indian Evidence Act, 1872 lays down the provision that when evidence related to
contracts, grants and other depositions of the property is reduced as a document, then no evidence
is required to be given for proof of those matters except the document itself. In the cases where the
secondary evidence is admissible then such secondary evidence is admissible.

There are certain kinds of contracts, grants and other depositions which can be created orally and
they do not require any document.

Illustration

A sells his Dog for Rs. 100 to B: In this case no written deed is compulsory.

B wants to mortgage the dog for Rs. 100 to C: No written deed is mandatory.

B pays Rs. 100 to C and takes back the possession of the dog.

All of the above-mentioned transaction will be valid even without a written deed.

But, there are many documents and matters of the court which are considered mandatory by the law to
be in writing and registered e.g., judgement and decrees, the deposition of witnesses, when an
accused person is examinedetc.

Orally, many contracts, grants and other depositions can be affected but reducing the terms of the
contract on which the party agrees in a document isconsidered to be the best evidence for the terms
of that contract. When reduced to documents, it acts as the best evidence. Even if the document is
lost or in adversary possession secondary evidence as described under section 65 can be
produced before the court.
The principle behind section 91
Section 91 of the Evidence Act, lays down the provision for the situation when the terms of the
contract, grant or depositions of properties have been reduced in the document even though it is
required under law to be reduced into the document. In this condition, if the proof is required, the
document itself is required to be produced or if the secondary evidence is admissible then the
secondary evidence can be used.

Rules to be followed for the exclusion of oral evidence by

documentary evidence
The admission of the oral evidence for proving the contents of a document is excluded under section
91 except where the secondary evidence is considered admissible. The oral evidence is also
excluded under section 92 for contradicting the terms of a contract where the deed is proved. So,
the rules laid down by these sections can be considered as an exclusive rule as held in the case of
Raja Ram Jaiswal v. Ganesh Prasad.

According to the rule laid down under section 91 of the Indian Evidence Act, no evidence can be
produced before the court to prove the statement when the terms of a contract are reduced in
writing except the document itself and under certain circumstances, the secondary evidence.

The oral evidence excluded under section 91 in case of a deed only when the deed contains the terms of
a contract or some property is disposed of through it or the law binds the contents of the document
to be in writing. As held in the case of Tahuri Shal v. Jhunjhunwala, a law does not make the adoption
to be in writing mandatory. The deed of adoption is just a record of the fact adoption has taken
place. No rights are created by it. It is no more than a piece of evidence and when a party fails to
produce it, the law does not bar him from producing oral evidence.

Any matter required to be in writing by law

When a particular matter is required to be in writing by law then it cannot be substituted by oral
evidence. Some of the examples of the documents that are required to be in writing by law are
judgements, an examination of witnesses in civil as well as criminal cases, deeds of conveyance of
land, deed for partition, a will and many more.

Exceptions to Section 91

Exception 1: Appointment of a public officer by the way ofwriting

As per the general rule, to prove the content of a writing, the writing itself is required to be produced
before the court and in case of its absence, secondary evidence may be given. But, there is an

exception to this rule. When a public officer is appointed and the appointment is required to be made

in writing and if it is shown before the court that some person has acted as the officer by whom the

person has been appointed, then the writing by which hehas been appointed needs not to be proved.

Illustration
A question arises whether A is a judge of the High Court, then the warrant of appointment is not
required to be proved. The fact that he is working as a judge of the High Court will be proved.

The fact that a person is working in the due capacity of his office is also evidence of that person’s
appointment in the office.

Exception 2: When probate has been obtained on the basis of a

will
Another exception of the general rule of the writing to be produced itself is that when on the basis of
will probate has been obtained and if later, the question arises on the existence of that will, the
original will is not required tobe produced before the court.

This exception requires to prove the contents of the will by which the probate is granted. The term
“probate” stands for the copy of a certificate with the seal of the court granting administration to the
estate of the testator.

The probate copy of the will is secondary evidence of the contents of the original will in a strict sense
but it is ranked as primary evidence

Explanations under Section 91

The explanations of section 91 state that it is not necessary for a written document to be comprised
in a single document. A contract or grant which is executed can be in a single document or can be
comprised of several documents. Section 91 applies in both conditions i.e., whether the contracts
are comprised of a single document or in several documents.

Another explanation laid down under section 91 is that when there is more than one original
document, then only one of them is required to be presented before the court.

Evidence of oral agreement excluded

Section 92 of the Indian Evidence Act lays down the provision that when as laid down under section
91 the documents which are required to be in writingsuch as the terms of the contract, grant or other
deposition of property or any other matter required by the law in writing then the court cannot allow
being lead by oral evidence to the party contract or legal representative for the purpose of
contradicting, varying, addition or subtraction from the contract.

Section 92 comes into operation when the documents have been submitted under section 91 for the

purpose of contradicting, varying, addition or any modification from its terms.

Section 92 of the Act clarifies itself that only such oral arguments are excluded which contradicts
the terms of contract, deposition or any other matter required to be in writing. If such a document is
not a contract, grant or deposition of property, then the oral evidence can be included to vary its
content.
Section 92 is applicable only to the parties to the instrument and not to the person
who is a stranger to the instrument. In the case of Ram Janaki Raman
v. State, it was held by the court that the bar laid down by section 92 of the Act was
not applicable under the Criminal proceeding.

Proviso(1): The facts which invalidate the document

If a fact will invalidate the contact then no man is debarred from proving that fact. According to the
laws of contract, any contract which is created by fraud or undue influence, it is not enforceable and
considered invalid. So, such facts are easy to prove in the circumstances when the contract has been
reducedinto written form.

Proviso(2): Separate oral arguments

The term separate oral arguments in this context refer to the oral agreements made before entering
into the documents. The contemporaneous or prior oral agreements are referred to under Proviso (2)
of section 92. When there is a prior oral agreement on a matter about which the document is silent,
then it can be proved only when such terms of oral agreements are notin contradiction with the terms
of the contract.

So, as held in the case of Bal Ram v. Ramesh Chandra, the requirements of this
proviso are:

1. On the matter on which the document is silent, a separate oral agreementshould be related to it.

2. Such oral agreement should not be inconsistent with the terms of thedocument.

Proviso (3): Separate Oral Argument as a condition

precedent
The situation when an oral agreement is to the effect that it will not be effective or will not be
enforced unless a condition precedent is fulfilled or unless a certain event takes place, the oral
agreements are admissible in this case to show that as such condition has not been performed, the
contract was not enforceable.

Proviso (4): Distinct oral agreement made subsequently to renew or

modify the contract
To prove any subsequent oral agreement leading to alteration of terms of all the written contracts
except to the contracts which are required to be in writing by law evidence can be given.

When a transaction is reduced to writing which is not required by law to be in writing but the
agreement is made for the convenience of parties then an oral agreement made subsequently to
modify it is admissible.

Proviso (5): Any usage or customs by which incidents not

mentioned in any contract are usually annexed to contract
Parol evidence of usage and customs are always admissible. When the object is to make intelligible
before the court about the meaning in which the parties have used a parol evidence may be given to
prove any local custom of the general application, so that it may be applied to the subject matter of
the contract and bind the parties to the written contract unless such usage or custom is inconsistent
with the writing.

Proviso(6): Extrinsic evidence of surrounding

circumstances
Whenever a document is required to be proved before the court, its object is to endeavour and
ascertain its real meaning and the extrinsic evidence are necessary for this purpose. The object of
admissibility of the evidence of the surrounding circumstances is to ascertain the real evidence of the
parties but from the language of the document, the intentions of parties must be gathered as
explained by extrinsic evidence.

Inter-relation between section 91 and 92

Section 91 and 92 are supplementary to each other. Both sections support and complete each
other. When the terms of the contract, deposition of a property or any matter required to be in writing
under the law if proved by thedocument then the oral evidence is not required to contradict it.

After a document has been produced to prove its terms under section 91, then the provisions of section
92 play for excluding evidence of any oral agreement or statement for the purpose of contradicting,
varying, addition or subtractionfrom its terms.

Even though the two sections are supplementary to each other, both sectionsdiffer about some of the
opinions in particular. Section 91 deals with the documents whether or not they are having the
purpose to dispose off the rights or not but section 92 is applicable to the documents which are
dispositive in nature.

Section 91 applies to the document which is both bilateral and unilateral documents but section 92
applies only to the document which is of bilateral nature.

Latent and Patent Ambiguity The rule about admission or exclusion of extrinsic
evidence has been laid down under section 93 to 98 of the Indian Evidence
Act. Such exclusion or admission of extrinsic evidence is in connection with
the facts contained in a document which either a contract or not.

The ambiguity in the language of a document can be divided into twocategories:

1. Patent ambiguity

2. Latent ambiguity

A patent ambiguity is when the language of the document or deed is uncertain. The
latent ambiguity is an ambiguity which is not present in the deed but it arises due to
extrinsic factors.

Test of difference
The test to find the difference that whether the ambiguity is a patent ambiguity or a latent ambiguity
is to put the document in the hands of an ordinary intelligent educated person.

1. If on reading the document the ambiguity can be detected and no definite meaning can be
understood then such ambiguity is patent ambiguity.

2. If on perusal of document no ambiguity can be found by him and the meaning is definite but that
document is applied with the instrument of facts, the ambiguity arises and its meaning becomes
indefinite, then the ambiguity is the latent ambiguity.

The distinction between Patent Ambiguity and Latent

Ambiguity
S.No. Patent Ambiguity Latent Ambiguity

When the language of the When the language of a document is

1.
document is so uncertain and certain and meaningful but the document
effective that no meaning can be makes no relevance in the present
granted to the document then it is circumstance then it islatent ambiguity.
called as Patent Ambiguity.

The patent ambiguity is personal The latent ambiguity is of objective

in nature and it is related to the nature and it is related to the subject
2.
person executing the document. matter and object of the document.

Oral evidence is not allowed for the

To remove latent ambiguity, oral evidence
3. removal of patent ambiguity.
is allowed.

The rule on which the patent Giving oral evidence in case of latent
ambiguity is based is that the patent ambiguity is based on the principle the
4.
ambiguity makes the document latent ambiguity does not make a
useless. document useless.

Latent ambiguity is not evident from

A patent ambiguity is on the face of
the document and is evident from
5.
inspection of the document itself.
prima facie inspection of the document
but it becomes apparent when the
language of a document is applied to
existing circumstances

Extrinsic Evidence to explain Ambiguity in a

document
Indian Evidence Act lays down the provision for including extrinsic evidence in order to explain
ambiguity in a document.
When extrinsic evidence cannot be given
Section 93: Exclusion of evidence while explaining or amendment of an ambiguous document

Section 93 of the Indian Evidence Act, deals with the patent ambiguity and no oral
evidence is given to remove the patent ambiguity.

According to section 93 when the language of the document is ambiguous or defective on its face,
the evidence which can show its meaning or supply its effects may not be given.

Illustration

An agreement is made between A and B that A will sell his crops for Rs. 1000 or 2000. The evidence
cannot be given that which price was to be given.

In the case of Keshav Lal v. Lal Bhai T. Mills Ltd., it was held by the Supreme Court that it would not
be open for the parties or the court to remove the ambiguity or vagueness by relying upon the
extrinsic evidence.

Section 94: In the application of document to existing facts, the

application against it to be excluded
According to section 94, when the language in the document is simple and plain itself and it applies
accurately to the existing facts, the evidence to show that it was not meant to apply to such facts may
not be given.

When there is neither a patent ambiguity nor a latent ambiguity then the evidence cannot be given
to contradict this.

In the case of General Court Marshal v. Col. Anil Tej Singh Dhaliwal it was held by the Supreme
Court that section 94 applies only when the execution of the document is admitted before the court
and there are no vitiating circumstances against it.

When extrinsic evidence can be given

Section 95: Evidence allowed to be given when the document is plain

in itself
Section 95 of the Indian Evidence Act deals with latent ambiguity and oral evidence can be given
for removing latent ambiguity. When the language which has been used in the document is simple
and plain but it is not in the meaning to existing facts due to the mistakes in the descriptive evidence
andsuch mistake can be shown that it was used in a peculiar sense.

Illustration

A sold his house to B stating in the deed as “my house in Lucknow”.

But, A has no house in Lucknow but he has a house in Kanpur in which B is living since the deed was
executed. Then the evidence can be used to prove the fact the deed was related to the house in
Kanpur.
Section 96: Evidence allowed when the application of the language
which is meant to apply on only one, applies to several persons
When the language of the facts is such that, which is meant to apply on only one person applies on
several persons, then the evidence may be given under section 96 of the Indian Evidence Act to clarify
that which of those persons or things, that fact is intended to apply on.

Illustration

A agrees to sell his white cow to B for Rs. 2000 and in the deed he has mentioned “my white cow”.
A has two white cows. Evidence can be given to prove that which white cow he meant in that deed.

Section 97: When on the application of the language of two or more

facts neither of them applies correctly, then evidence to be admitted
According to section 97 of the Indian Evidence Act, when the language used in a fact applies to one
set existing fact partly and partly to another set of existing fact, but if applied as a whole, it does not
apply to either correctly then the evidence can be presented before the court to clarify that which of
the facts was actually intended.

Illustration

X sells his land to Y stating “My land at A in the occupation of B”. X had land at A but it is not in
occupation of B and X has land which is in the occupation of B but it is not at A. Then X can present
evidence before the court that whichland he actually wants to sell.

Section 98: Evidence given to show the meaning of illegible

characters
To show the meaning of illegible characters or characters which are not commonly intelligible
character such as characters of foreign, obsolete, technical, local or provincial expressions of words
or abbreviations which is used in a peculiar sense, evidence can be presented before the court
undersection 98 of the Indian Evidence Act.

Illustration

A sells his artwork to B stating “all my mods”. Here, what A meant by the term “mods” can be clarified
by the way of admission of evidence.

Who may give evidence of agreement varying terms

of the document
Under section 99 of the Indian Evidence Act, those persons also can give evidence who are not parties
to a document or representative-in-interest regarding any fact which shows a contemporaneous
agreement varying the terms of the document. As section 92 of the Act excludes the party to the
contract from producing the document but it does not exclude those who are the parties to contract.
So, under this section i.e., section 99 the same provision is being repeated.
In the case of Bai Hira Devi v. O�cial Assignee of Bombay section 92 deals only with the matter
related to contracts, grants and other depositions of the property but section 99 deals with all types
of document, whether it is a contract or not. Section 99 speaks only about varying the terms of a
document.

Provisions of Indian Succession Acts

related to wills to be excluded
According to section 100 of the Indian Evidence Act, the provisions laid down under Chapter VI of the
Indian Evidence Act are to be taken into effect on any of the provisions regarding the construction of
will under the Indian Succession Act,1865.

Conclusion
Chapter VI of the Indian Evidence Act deals with the provisions related to the exclusion of oral
evidence by documentary evidence. There are certain circumstances when the oral evidence
cannot be admitted before the court for the support of documentary and there are also instances
when the oral evidence is admissible. All the provisions have to be dealt with according to this
chapter. The provisions related to the will under the Indian Succession Act is excluded from these
provisions.
 Presented by
M. Vijaya Rameswari,
Junior Civil Judge,
cheepurupalli.

Presumption as to Documents
Section 79 to Section 90 of the Indian Evidence Act provides various presumptions as to the
documents. There are certain presumptions regarding the documentary evidence in this act.
According to the Indian Evidence Act, the presumption is of two types. There are certain cases in
which the Court “shall presume” and in certain cases, it “may presume”. The terms are defined in
Section 4 of the IEA. According to this Section,

3. “May presume” means whenever it is mentioned by this Act that the Court may presume a fact,
it may either consider such fact as proved, unless anduntil it is disproved or may call for proof of it.

4. “Shall presume” means whenever it is mentioned in this Act that the Courtshall presume a fact,
it shall consider such fact as proved, unless and untilit is disproved.

Presumption as to the Genuineness of

Certified Copies
The certified copies are the copies of public documents that are provided by the authorized officer
when it is necessary for inspection. Section 79 of the Indian Evidence Act provides the presumption
as to the genuineness of these certified copies. According to this Section, the court presumes the
certified copy to be genuine when it comes with a valid certificate. The court also presumes that the
officer who has signed the documents holds the official character of the designation mentioned in the
certificate. The certified copy of the public document must contain a certificate which is provided by
the authorized officer that has to mention that it is the true copy of the document and the officer has
to sign the certificate with their name and they also have to mention the date and designation. The
certificate should also be sealed whenever it is necessary by the authorized officer.

Presumption as to Documents produced as

Records of Evidence
Section 80 of the Indian Evidence Act provides the various presumptions regarding the
documents which are provided as evidence. The Court presumes that the documents which are
produced for inspection are genuine. The court also presumes that any statements as to the
circumstances under which it was taken, considered to be made by the person signing it, are true
and that such evidence, statement or confession was duly taken by following all the procedures. The
documents provided for inspection can be a record or memorandum of the evidence that is provided

by a witness during the judicial proceeding before the officer authorized by law to take evidence or it
can be a statement or confession that is provided by any prisoner or person who is accused, which
taken in accordance with the law and the confession must be signed by the magistrate or any other

officer authorized by law.

Presumption as to Gazettes, Newspapers,

Private Acts of the Parliament and other
Documents
Section 81 of the Indian Evidence Act deals with the presumption regarding Gazettes, newspapers,
private Acts of the Parliament. The court presumes the following documents to be genuine, according
to this Section:

5. The document professed to be the London Gazette, or any Official Gazette, or the Government
Gazette of any colony;

6. The documents which are a dependency of possession of the BritishCrown;

7. Newspaper or journal;

8. Copy of a private Act of Parliament of the United Kingdom which is printed by the Queen’s
Printer.

The documents must be kept in the substantial form mentioned in the law and also it must be
produced from proper custody. The Court also presumes the Official gazettes kept in the electronic
form is genuine if it is kept in the substantial form mentioned in the law.

Presumption as to Maps and Plans made by

Government authorities
The maps and plans are also a recognized type of documentary evidence. Section 83 of the Indian
Evidence Act provides the various presumptions regarding maps and plans made by the
authorities of the government. According to this Section, the maps and plans are presumed to be
genuine and accurate if it is made by the authority of the Central or State government.

Presumption as to a Collection of Laws and

Reports
Section 84 of the Indian Evidence Act provides various presumptions regarding the laws and
reports. According to this Section, the court presumes every book which contains laws and reports of
the decisions of the Courts of the country to be genuine if the book is printed or published by the
authority ofthe government.
Presumption as to the Power-of-Attorney
Section 85 of the Evidence Act provides various presumptions regarding the power of attorney.
According to this Section, the court shall presume that every document that is considered to be the
power of attorney, and that is executed before the authorized officer or Notary Public or any court or
beforeany Magistrate is executed and authenticated.

Section 85A in The Indian Evidence Act, 1872

85A Presumption as to electronic agreement.

The Court shall presume that every electronic record purporting to be an agreement containing the
[electronic signature] of the parties was so concluded by affixing the [electronic signature] of the
parties.]

Presumption as to electronic records and electronic signatures

85B. Presumption as to electronic records and 5[electronic signatures] 1) In any proceedings
involving a secure electronic record, the Court shall presume unless contrary is proved, that the secure
electronic record has not been altered since the specific point of time to which the secure status relates.

(2) In any proceedings, involving secure digital signature, the Court shall presume unless the contrary
is proved that --
(a) the secure 1[electronic signature] is affixed by subscriber with the intention of signing or approving
the electronic record;
(b) except in the case of a secure electronic record or a secure 1[electronic signature], nothing in this
section shall create any presumption, relating to authenticity and integrity of the electronic record or any
1[electronic signature].

Presumption as to Electronic Signature Certificates

85C. Presumption as to [Electronic Signature Certificates]. The Court shall presume, unless
contrary is proved, that the information listed in a [Electronic Signature Certificate] is correct, except for
information specified as subscriber information which has not been verified, if the certificate was
accepted by the subscriber.]

Presumption as to certified copies of foreign judicial

records.
The Court may presume that any document purporting to be a certified copy of any judicial record of

2[3* * * any country not forming part of India or] of Her Majesty's Dominions is genuine and accurate, if

the document purports to be certified in any manner which is certified by any representative of 4* * *

the 1[Central Government]5[in or for] 6[such country] to be the manner commonly in use in 7[that

country ]for the certification of copies of judicial records.

8[An officer who, with respect to 9*** any territory or place not forming part of 10[India or] Her Majesty's

Dominions, is a Political Agent there for, as defined in section 3, 11[clause (43)], of the General Clauses Act,

1897 (10 of 1897), shall, for the purposes of this section, be deemed to be a representative of the 12[Central

Government ]13[ in and for the country ]comprising that territory or place.]
Presumption as to Books, Maps and Charts
Section 87 of the Indian Evidence Act provides various presumptions regarding the books, maps
and charts. The Court presumes that any book which contains any information which contains
matters of public or general interest, or any published chart that are in relation with the case or any
statements that contain relevant facts which are produced for inspection is written and published by
the person mentioned in the book. The court also presumes that the time and place of publication
which is mentioned in the book or chart to be true.

Presumption as to Telegraphic Messages

Section 88 provides various presumptions regarding the telegraphic messages. According to the
Section, the court presumes “that telegraphic messages to be that a message, which is forwarded
from a telegraph office to the person to whom such message which claims to be addressed, is
in relation with a message that is delivered for transmission at the office from which the message
purports to be sent”. The Section also mentions that the Court does not make any presumption
regarding the person by whom such amessage was delivered for transmission. The Section is not of
any use now as the telegraph services have been stopped by the Indian Government

Presumption as to Electronic Messages

This is a very important Section as a lot of information are transferred in the electronic form in the
modern days. Section 88A of the Indian Evidence Act provides various presumptions regarding
electronic messages. According to this Section, the Court presumes that an electronic message,
which isforwarded by the originator by means of an electronic mail server to the addressee to whom
the message claims to be addressed corresponds with the message as fed into his computer for
transmission. According to the Section, the terms “addressee” and “originator” has the same
meaning as mentioned in the clauses (b) and (za) of sub-section (1) of Section 2 Information
Technology Act,2000”.

Presumption as to due Execution of Documents

not Produced
Section 89 of the Indian Evidence Act provides various presumptions regarding the due execution of
documents not produced. The Court presumes that every document that is called for inspection and
the documents are not produced even after the notice period, it is presumed that the documents are
attested, stamped and executed in the manner which is prescribed by law.

Presumption as to Documents Thirty yearsold

Section 90 of the Indian Evidence Act deals with the presumption as to documents that are thirty
years old. The Court presumes that any document which is produced for investigation is from proper
custody and the signature corresponds to the signature of the person whose custody the document
was in. The Court also presumes that any handwriting in the document is the handwriting of the
person who has the custody of the document. It is also presumed by the Court that in case if the
document attested or executed, that it was duly executed and attested by the persons by whom it
professes to beexecuted and attested. The term proper custody means that the document is with the
care of the person and in a place where it would naturally be. For example, ‘A’ has been in
possession of a certain property for a long time. He produces from his custody deeds the various
documents relating to the landshowing his titles to it and the custody is held to be proper.

Presumption as to the Electronic Record of Five

years old
Section 90A of the Indian Evidence Act provides the various presumptions regarding electronic
records of five years old. According to this Section, the Court presumes that when any electronic
record that is above five years oldand it is procured from the proper custody for investigation. It is
presumed that the digital signature corresponds to the particular person whose custody the record is
or the signature belongs to the person who has authorized it. The term proper custody means that
the electronic record is with the care of the person and in a place where it would naturally be. It is
also mentioned in the Section that no custody is improper if it is proved that the custody is of
legitimate origin in the particular case to render such origin possible.

Conclusion
The Sections regarding presumptions is a very important part of the Indian Evidence Act as they
help in the investigation. The presumptions make the investigation easier and fast. The Court has to
follow all the presumptions and it can only change its notion on presumptions only when it is
necessary. The documents have a lot of evidentiary value and it is important to investigate them
properly and also save the Court’s valuable time at the same time. Thus the presumptions regarding
the documents is a very essential partof the Indian Evidence Act.