The learned appellate Judge says that even in his rejoinder to the

defendant's notice before suit, the plaintiff had denied execution of Ex. B-4
and therefore the proviso to Section 68 does not avail the defendant, who,
under the main Section 68, is bound to call at least one attesting witness to
prove Ex. B-4. It was contended on behalf of the learned counsel for the
defendant that u/s 70 of the Evidence Act admission of a party to an
attested document of its execution by himself shall be sufficient proof of its
execution as against him though it be a document required by law to be
attested. The defendant's counsel further contended that there was such an
admission of execution of Ex. B-4 in this case, because P. W. 1., the plaintiff,
had admitted before the trial Court as follows;

"I have signed in Exhibit B-4 sale deed and before the Sub Registrar. In the
second page of Exhibit B-4 I have signed." According to the learned counsel
for the defendant, this was an admission by the plaintiff of execution of Ex.
B-4 and therefore the defendant was relieved u/s 70 of the Evidence Act of
the obligation to call at least one attesting witness to prove its execution.
This was repelled by the counter argument of the first appellate court that
the plaintiff's admission of his signing Ex. B-4 did not really tantamount to
admission of his execution. It is, however, contended by Mr. Natarajan
before me that neither Section 68 nor Section 79 of the Evidence Act would
have any application to the facts of this case. He contends, and in my view
rightly, that Ex. B-4, the sale deed is not a document required by law to be
attested. There is nothing in the Transfer of Property Act which requires a
sale deed to be attested. Section 59 of the Transfer of Property Act says :

"Where the principal money secured is one hundred rupees or upwards a

mortgage other than a mortgage by deposit of title deeds can be effected
only by a registered instrument signed by the mortgagor and attested by at
least two witnesses."

Contrast the language of Section 59 of the Transfer of Property Act with

that of Section 54 of the same Act, which says that a transfer of ownership
in exchange for a price, in the case of tangible immovable property of the
value of one hundred rupees and upwards can be made only by a
registered instrument, There is nothing whatsoever in this section requiring
a sale deed to be attested. It would, therefore, follow that a sale, though
attested, does not depend upon attestation for its validity. It would
therefore be unnecessary to 'prove it by calling an attesting witness. As
observed in Sarkar's Law of Evidence, Ninth Edition, Page 566.

"Sale deeds, bonds, etc., do not come within the rule and they may be
proved by the evidence of any other witness who saw execution, though he
is not an attesting witness."

In fact, Section 72 of the Evidence Act says :

"An attested document not required by law to be attested may be proved as

if it was unattested."

It is true that Ex. B-4 though not required by law to be attested, has been
attested by two witnesses But then, u/s 72, it is not obligatory on the part of
the person pro-pounding the document to examine the attesting witness.
The testimony of the attesting witness is not the only evidence by which a
sale deed can be established. It can be done by other kinds of evidence. The
learned District Judge was therefore wrong in holding that Ex. B-4 is a
document required by law to be attested and that it could not be used as
evidence because the defendant hits failed to call at least one attesting
witness for the purpose of proving its execution. As I have already said,
there is ample evidence on record from which the trial Court could
justifiably hold that execution of Ex. B-4 was proved to its satisfaction.
Apart from the evidence of D. W. 1, the vendee under Ex. B-4, there was
the admission of P. W. 1 that the signature on Ex. B-4 was his and that he
had executed and registered two other sale deeds Exs. B-1 and B-2 on the
same day as Ex. B-4. I may also add that the learned District Munsif
compared the admitted signatures of the plaintiff with the signature in Ex.
B-4 and satisfied himself that the evidence relating to the execution of Ex.
B-4 was acceptable. As the entire basis of the remand order passed by the
first appellate Court is vitiated by an error of law, I set aside the remand
order, allow this appeal with costs and direct the first appellate Court to
restore A. S. No. 198 of 1969 to its file and dispose it of on the merits in the
light of the observations made in this judgment.

Sale Deed, Bond, Gift Deed etc are not mandatorily attested documents so
their proof is governed by section 72 of IEA while will mortgage deed are
mandatorily attested documents so its proof is governed by section 68 of IEA
by calling at least one of the witness to the document when it is denied by
the opponent but when the execution of mandatorily attested document is
admitted by the opponent it proof is governed by the section 70 of IEA and
not by 68 of IEA i.e there is no need to call at least one witness under
section 68 of IEA and party is relived to prove the document under section 70
of IEA.

It is settled principle of law that any allegation as to fraud, intimidation,

illegality, want of execution etc. needs to be specifically pleaded. Unless
there exists corresponding plea and an issue framed thereon, it is
impermissible to lead evidence thereon. In fact, Rule 4 of Order 6, CPC
makes this aspect clear. It reads as under :
"Particulars to be given where necessary : In all cases in which the party
pleading relies on any misrepresentation, fraud, breach of trust, wilful
default, or undue influence, and in all other cases in which particulars may
be necessary beyond such as are exemplified in the forms aforesaid,
particulars (with date and items if necessary) shall be stated in the
pleading."

In the written statement filed by the appellants, there is not even a whisper
about any of these factors, much less a plea or a detailed paragraph.
Therefore, it was impermissible for the appellants to lead any oral
evidence, in relation to the terms of Exs. A-1 and A-2.

Learned counsel for the appellants tried to maintain a distinction between

the evidence that is adduced on behalf of his clients, on the one hand, and
the so-called admissions elicited through P.Ws. 1 and 2, in the cross-
examination, on the other. According to him, the admissions extracted in
cross-examination of P.Ws. 1 and 2 does not come within the prohibition of
Sections 91 and 92 of the Evidence Act. It is difficult to accept this
proposition. The expression "oral evidence", referred to in Sections 91 and
92 of the Evidence Act, is not confined to the one to be led by the party
opposing the document referred to therein in the form of chief-examination
of a witness to be examined by him. The oral evidence includes not only
the one, adduced by examining the witnesses, on behalf of such party, but
also the cross-examination of witness by the opposite party, in relation to it.
An admission or confession of a witness constitutes oral evidence and it
makes little difference whether the witness was examined at the instance of
the plaintiff or defendant. In other words, the prohibition operates not only
in relation to the evidence of witnesses, examined by the concerned party,
in relation to documents referred to in Sections 91 and 92, but also to the
cross-examination of the witness examined on behalf of other party. What
is prohibited directly, cannot be permitted to be done indirectly. Therefore,
the distinction urged by the learned counsel for the appellants cannot be
maintained in law.

19. There is a strong reason underlying the prohibition of oral evidence to

contradict the terms of a written agreement. It is only after the terms and
conditions of the contract are crystallized between the parties that a written
contract is brought about. Law attaches certainty and sanctity to such
terms, unless they are tainted with the factors such as, fraud, undue
influence, incapacity, misrepresentation, etc. In the absence of such factors,
grant of permission to the parties, to lead evidence contrary to the terms,
would defeat the very purpose of the execution of the document and tends
to remove the element of sanctity from it.

20. The circumstances, under which the parties to a contract express their
consent, cannot be examined on the strength of external factors, or from the
point of view of third parties. In a given case, the parties to a contract may
agree on terms, which in the normal parlance, may not be tenable or
reasonable. However, as long as such terms are not prohibited by law, the
freedom of the parties to subscribe to any view, or to contract an obligation,
cannot be scuttled. A party, who derived the benefit out of such
representation, and the resultant contract cannot turn round, and attack it
at a later point of time.

21. Learned counsel for the appellants relied upon the judgement of the
Supreme Court in Central Inland Water Transport Corporation Limited v.
Brojo Nath Ganguly, AIR 1986 SC 1571 , to contend that the lessee was left
with no option, but to sign dotted lines, and the clauses in Exs. A-1 and A-2
cannot be made binding upon him. At the cost of repetition, it needs to be
observed, in this context, that the appellants did not plead any such factor,
in their written statement. Therefore, the contention cannot be accepted, At
any rate, this Court does not find any traces of oppression in the clauses
contained in those documents.

The principle is well established that if the transaction is contained in more

than one document between the same parties they must be read and
interpreted together and they have the same legal effect for all purposes as
if they are one document. In Manks v. Whiteley, 1912-1 Ch 735 at p. 754,
Moulton, L. J. stated :

Where several deeds form part of one transaction and are

contemporaneously executed they have the same effect for all purposes
such as are relevant to this case as if they were one deed. Each is executed
on the faith of all the other being executed also and is intended to speak
only as part of the one transaction, and if one is seeking to make equities
apply to the parties they must be equities arising out of the transaction as a
whole."

On behalf of respondent No. 1 Mr. Pathak stressed the argument that there
is no contract of suretyship in the present case in terms of S. 126 of the
Contract Act and the plaintiff-bank is not legally bound to treat the 3rd
defendant merely in the character of a surety. Mr. Pathak relied upon the
decision of the Madras High Court in Vyravan Chettiar v. Official Assignee
of Madras AIR 1933 Mad 39 in which it is pointed out that persons who are
jointly and severally liable on promissory notes are not sureties under S.
126 of the Contract Act, do such persons occupy a position analogous to
that of a surety strictly so called to attract the provisions of S. 141 of the
Contract Act. Reference was made, in this connection to the decision of the
House of Lords to Duncan Fox and Co. v. North & South Wales Bank
(1880) 6 AC 1 in which Lord Selbourne, L.C. distinguished between three
kinds of cases : (1) those in which there is an agreement to constitute, for a
particular purpose, the relation of principal and surety, to which agreement
to creditor thereby secured is a party; (2) those in which there is a similar
agreement between the principal and surety only, to which the creditor is a
stranger, and (3) those in which, without any such contract of suretyship,
there is a primary and a secondary liability of two persons for one and the
same debt, the debt being as between the two that of one of those persons
only, and not equally of both, so that the other if he should be compelled to
pay it, would be entitled to reimbursement from the persons by whom (as
between the two) it ought to have been paid. It is pointed out by the
learned Lord Chancellor that in all these kinds of cases the person who
discharged the liability due to the creditor, would be entitled to the benefit
of the security held by the creditor though a case of suretyship strictly
speaking would fall only under class 1, as a contract of guarantee is
confined to agreements where the surety agrees with the creditor that he
would discharge the liability of the principal debtor in cast of his default. It
is manifest that classes 2 and 3 are not cases of suretyship stricly so called.
Lord Selbourne observed that the case before him did not fall within the
first or the second class but it fell within the 3rd class in which stricly
speaking there was no contract of suretyship. But the Lord Chancell held in
that case that even in the second and third class of cases the surety has
some right to be placed in the shoes of the creditor where he paid the
amount. The argument of Mr. Pathak was that the position in Indian Law
Lord Selbourne, L.C. in (1880) 6 AC 1 did not apply to the present case. Mr.
Pathak referred, in this connection, to the illustration to S. 132 of the
Contract Act in support of his argument. We consider that the legal
proposition for which Mr. Pathak is contending, is correct, but the
argument has not much relevance in the present case. It is true that S. 126
of the Contract Act requires that the creditor must be a party to the contract
of guarantee. It is also true that under S. 132 of the Contract Act the
creditor is not bound by any contract between the co-debtors that one of
them shall be liable only on the default of the other even though the
creditor may have been aware of the existence of the contract between the
two co-debtors. In the present case, however, the legal position is different,
because the plaintiff-bank was a party to the contract of guarantee - Ex. A
which is contemporaneous with the promissory note - Ex. B. The plaintiff-
bank was also a party to the contract of hypothecation executed by
defendant No. 1 in which it is stated that the plaintiff-bank had agreed to
open a Cash Credit Account to the extent of Rs. 4 lakhs in favour of
defendant No. 1. It is manifest, therefore, in the present case that the
requirements of S. 126 of the Contract Act are satisfied and defendant No. 3
has the status of a surety and not of a co-obligant in the transaction of
overdraft account opened in the name of defendant No. 1. by the plaintiff-
bank. On behalf of the respondent No. I Mr. Pathak also referred to the
decision in Venkata Krishnayya v. Karnedan Kothari AIR 1935 Mad 643
and submitted that defendant No. 3 cannot be permitted to give evidence
in regard to a collateral transaction in view of the bar imposed by S. 92 of
the Evidence Act and his position is as a co-obligant and that the terms of
the promissory note cannot be altered by any other transaction. We are
unable to accept this argument as correct. The provisions of S. 92 of the
Evidence Act do not apply in the present case, because defendant No. 3 is
not attempting to furnish evidence of any oral agreement in derogation of
the promissory note but relying on the existence of a collateral agreement
in writing--- Exs. A and G which form parts of the same transaction as the
promissory note-Ex. B. The decision of the Madras High Court in AIR 1935
Mad 643 is, therefore, not applicable and Mr. Pathak is not able to make
good his submission on this aspect of the case.
5. It was also contended by Mr. Pathak on behalf of respondent No. 1 that
the suit is based on the promissory note--Ex. B against all the three
defendants and not on the overdraft account. We do not think there is any
substance in this argument. In this connection Mr. Pathak took us through
the various clauses of the plaint but there is no mention about the
promissory note dated December 21, 1949 that the defendant executed a
promissory note "as security for the repayment of the balance outstanding
under the overdraft". We are satisfied, on examination of the language of
the plaint, that the suit is based not upon the promissory note but upon the
balance of the overdraft account in the book of the plaintiff-bank. In para 11
of the plaint the plaintiff-bank asked for a decree against the defendants
jointly and severally "for the recover of Rs. 2,86,292/11/11 as per accounts
annexed". In the plaint it is stated that the plaintiff had given two notices to
the defendantsEx. 'O'dated January 1, 1950 and Ex. L dated April 26, 1950
but in neither of these notices has the plaintiff referred to the promissory
note executed by the defendants or that the suit was based upon the
promissory note. On the contrary, the plaintiff bank referred in Ex.'O'to the
open loan accounts and asked the defendants to pay the amounts due to
the bank under these accounts. It is therefore, not possible for us to accept
the contention of Mr. Pathak that the suit is based upon the promissory
note and not upon the amount due on the overdraft account. In this
connection, we may incidentally refer to the fact that in its statement of the
case before this Court, respondent No. I has clearly stated that the claim on
the overdraft account against the appellant was valid "because the
overdraft was treated as in favour of all the defendants . (appellant and
respondents 2 and 3 herein) and that respondent No. 2 was only authorised
to operate independently on that amount and that the limit under the
overdraft was placed at the disposal of respondent No. 2 by an express
authority given by all the defendants (the appellant and respondents 2 and
3", This shows that respondent No. 1's case is that a suit is based on an
overdraft, and since the overdraft was treated as in. favour of all the
defendants the appellant is liable for the balance due on it.

In Mudigowda V. Ramchandra reported in AIR 1969 SC 1076 , the Apex

Court held as follows:

“There is no presumption that a Hindu family merely because it is joint,

possesses any joint property. The burden of proving that any particular
property is joint family property, is, therefore, in the first instance upon the
person who claims it as coparcenary property. But if the possession of a
nucleus of the joint family property is either admitted or proved, any
acquisition made by a member of the joint family is presumed to be joint
family property. This is however subject to the limitation that the joint
family property must be such as with its aid the property in question could
have been acquired. It is only after the possession of an adequate nucleus is
shown, that the onus shifts on to the person who claims the property as
self-acquisition to affirmatively make out that the property was acquired
without any aid from the family estate.”

Again in Surendra Kumar v. Phoolchand, AIR 1996 SC 1148 , it is further

held that:

“But where it is established or admitted that the family which possessed

joint property which from its nature and relative value may have formed
sufficient nucles from which the property in question may have been
acquired, the p resumption arises that it was the joint property and the
burden shifts to the party alleging self acquisition to establish affirmatively
that the property was acquired without the aid of the joint family. Both the
Courts below have scrutinised the evidence bearing in mind the aforesaid
legal position and have rightly come to the conclusion that the property in
question is a joint family property. We see no justification for our
interference with the said concurrent findings of the two Courts below. The
appreciation of evidence has been rightly made bearing in mind the correct
legal position. The appellant thus has utterly failed to establish that the
consideration money for the property was paid out of his personal funds.
In the aforesaid circumstances agreeing with the two courts below we hold
that the property was the joint family property and therefore the
respondents have 1/3rd share each in the compensation amount. In the
aforesaid premises this appeal is devoid of merits and the same is
accordingly dismissed but in the circumstances without any order as to
costs.”

The settled law is that a finding of fact is not open to challenge even if the
appreciation of evidence is palpably erroneous, howsoever gross or
inexcusable the error may seem, and sufficiency or adequacy of evidence
to support a finding of fact is a matter for decision of court of fact.

(1) sita ram v. Ramchandra, air 1977 sc 1712; (2) special deputy collector v.
Kurra sambasiva rao, (1977) 6 scc 41 : (air 1997 sc 2625) ; and (3) meharban
v. State of u. P. , (1977) 6 scc 54 : (air 1997 sc 2664) , submitted that exs. A -
6, a - 13 and a - 14 are inadmissible in evidence and cannot relied upon. A
perusal of the said decisions shows that if the document wherein the party
has made an admission is not confronted with him and if atleast one of the
parties to the said document is not examined, the same cannot be relied on.
There is no dispute with regard to the above proposition of law. Here,
when the first defendant was examined as d. W. 1, in cross - examination
he was confronted with the particulars furnished by p. W. , secretary of the
housing society as well as the contents of exs. A - 13 and a - 14. In this
regard , he (p. W. 1) deposed thus : -
As stated earlier, the defendant was aware of all the above facts and as a
matter of fact, he was put questions regarding his application for loan with
the housing society and the amount sanctioned by them. Further, on
receipt of proper summon from the court, the secretary of housing co -
operative society, nagercoil, brought the records, namley, exs. A - 6, a - 13
and a - 14 and the same were marked through him. P. W. 3 is the
competent officer to speak about those documents. Hence the contention of
the learned counsel for the appellant that those documents are inadmissible
in evidence and the same were not put to first defendant cannot be
accepted.

appa rao v. Bala - subramania gramani, (1976) 1 mlj 96 : (air 1976 mad 70) ,
it is contended that if the amount is grossly inadequate, specific
performance cannot be granted. I have already demonstrated that there is
no material to hold that the amount mentioned in ex. A - 1 is inadequate.
By relying on a decision of this court reported in nallaya gounder v. P.
Ramaswami gounder, air 1993 mad 275, it is submitted that the relief of
specific performance cannot be granted since the plaintiff has not come
forward with clean hands. In the light of the factual position discussed
above, i am unable to accept his contention. For the very same reasons, the
decisions cited by the learned counsel for the appellant, namely, amirtham
v. Subbian, 1997 (ii) ctc 417 is also distinguishable. The learned counsel for
the appellant has also submitted that on the ground of delay, the plaintiff
has to be non suited, for which he relied on a decision reported in sriram
cotton pressing factory v. Narayanaswamy, air 1965 mad 352. For this,
relying on a decision of this court reported in namazi v. Central chinmaya
mission trust (1987) 100 lw 582 : (air 1988 mad 84) , learned counsel for the
first respondent contended that mere delay is not sufficient to deny specific
performance unless there is a waiver or abandonment. Here, as rightly
contended by mr. G. Viswanathan, there is no plea of abandonment or
waiver in the written statement of the first defendant. As rightly observed
by their lordships in the division bench decision, mere delay may not be
sufficient to deny specific performance unless there is a waiver or
abandonment. In this case, there is no waiver at all at any point of time, nor
had the plaintiff abandoned his rights. If there was nothing to suggest in
the conduct of the plaintiff implying an abandonment, the contract will
have to be enforced.

It is also contended that forms 47 and 48 of appendix a, of c. P. C. , has not

been complied with. "a perusal of forms nos. 47 and 48 shows that in a suit
for specific performance there must be averments to the effect that plaintiff
has applied to the defendant specifically to perform the agremeent on his
part,but the defendant has not done so. The plaintiff was still ready and
willing specifically to perform the agreement on his part of which the
defendant had notice. "

I have already referred to the necessary averments of the plaintiff in terms

of forms 47 and 48 in the plaint. Hence the said argument cannot stand. It is
relevant to mention that in another division bench decision reported in
muniswamy r. V. V. Pandiarajan, (1993) 1 lw 186 it has been held that
failure to adhere to forms 47 and 48 in the c. P. C. Will not affect the case of
the plaintiff. Here, in our case, i have already concluded that the plaintiff
has fulfilled and complied with the said forms as provided in appendix a.

(19) With regard to the admission of the first defendant regarding the value
of the property before the housing co - operative society, the learned
counsel for the first respondent submitted that the said admission is a
substantive evidence and the same is binding on him for which he relied
on decision of the supreme court reported in bharat singh v. Bhagirathi, air
1996 sc 405 and thiru john v. Returning officer (1977) 3 scc 540 : (air 1977 sc
1724). In the first case, namely, air 1966 sc 405 their lordships have held in
the following manner : at page 410 of air 1966 : -

"admissions have to be clear if they are to be used against the person

making them. Admissions are substantive evidence by themselves, in view
of sections 17 and 21 of the indian evidence act, though they are not
conclusive proof of the matters admitted. We are of opinion that the
admissions duly proved are admissible evidence irrespective of whether
the party making them appeared in the witness box or not and whether
that party when appearing as witness was confronted with those
statements in case it made a statement contrary to those admissions. The
purpose of contradicting the witness under s. 145 of the evidence act is
very much different from the purpose of proving the admission.
Admission is substantive evidence of the fact admitted while a previous
statement used to contradict a witness does not become substantive
evidence and merely serves the purpose of throwing doubt on the veracity
of the witness. What weight is to be attached to an admission made by a
party is a matter different from its use and admissible evidence. "

k. S. Narasimhachari v. Indo commercial bank, air 1965 mad 147 has

observed thus at page 149 : -

"proviso (1) to section 92 of the evidence act says that any fact may be
proved which would invalidate any document or which would show want
or failure of consideration. It is well recognised that under the terms of the
proviso while it will be competent to the party to a contract to adduce
evidence to prove want of consideration or failure of consideration or a
difference in kind of consideration specified in the document, it will not be
competent for him to prove a variation of the consideration recited in the
document. Consideration specified in a document will be one of the terms
of the contract evidenced by it. Thus, where consideration although
specified to be of a particular kind; e. G. Cash can and will be shown to be
for different kind or it can be shown that it is false and that there was really
no consideration. But this is different from a case where a party admits the
passing of consideration specified in the document, but attempts to show
that the consideration was either less or more than what is specified. This,
the party is not allowed to do. "

First respondent herein/plaintiff has also filed another petition c. M. P. No.

11587 of 97 seeking permission to amend the plaint as follows : -

"a decree for delivery of possession of the suit property by the defendants 1
and 2 to the plaintiff. "

Before the trial court the first respondent/plaintiff has filed a suit for
specific performance of the registered agreement dated 12 - 1 - 1982
marked as ex. A - 1 and also for injunction restraining the first defendant
from executing any sale deed in favour of 2nd defendant or any third
person other than the plaintiff. By judgment and decree dated 21 - 4 - 86,
the trial court has decreed the suit. As against the said judgment and
decree, the first defendant has filed the present appeal in this court. Since
the first defendant (respondent) has not prayed for the relief for possession
from the defendants 1 and 2 in the suit he has filed the present petition for
amendment incorporating the relief of possession from defendants 1 and 2
also. The present petition is unnecessary for the reason that it is settled law
that once a decree for specific performance of contract of sale is passed, a
sale deed will be executed in favour of the plaintiff and automatically he is
entitled to possession of the suit property by virtue of the said sale deed.
However, as per section 22 (2) of thespecific relief act, the relief of
possession shall not be granted by court unless it has been specifically
claimed. It is true that the decree in the instant case is silent with regard to
the possession of the suit property. The prayer for possession has neither
been expressly overruled nor expressly allowed. But the fact remains that
the court allowed the plaintiff's prayer for specific performance of the
contract which itself incorporates a clause for delivery of possession. When
the decree contains a direction upon the judgment - debtor to sell the suit
property to the plaintiff in terms of the agreement it necessarily embodies a
mandate to fulfil all the terms including the term for delivery of possession.
Construing the decree in the light of the judgment in the present case there
is no hesitation in accepting the contention that the court in decreeing the
suit allowed the prayer for delivery of possession. It was not necessary for
the court to direct such delivery of possession expressly because the court
was directing enforcement of the entire agreement including the agreement
to deliver possession. It is also settled view that section 22 (1) of the specific
relief act, 1963, is procedural in nature. The reliefs by way of delivery of
possession or partition and separate possession of property mentioned in
section 22 (1) (a) of the said act are ancillary or consequential to the passing
of a decree for specific performance of a contract to transfer immovable
property. Thus, possessory reliefs mentioned in clause (a) of sub - section
(1) of section 22 of the act are dependent upon and flows from passing of a
decree for specific performance of an agreement to transfer an immovable
property. I have already referred to the judicial decisions to the effect that
the court could grant such possessory relief in favour of a successful
plaintiff in a suit for specific performance as per section 22 (1) of the act. In
view of proviso to sub - section (2) of section 22 of the legislature has given
statutory recognition and power to the court to grant delivery of
possession and has also prescribed the procedure for obtaining such relief.
In the light of the specific provision, namely, section 22 of the specific relief
act and in view of the fact that the plaintiff has succeeded in getting a
decree for specific performance which is affirmed by this court, i am of the
view that once a decree for specific performance is granted there it includes
the term for delivery of possession. As stated earlier, it is unnecessary for
the court to direct such delivery of possession expressly because the court
was directing the enforcement of the entire agreement including the
agreement to deliver possession. The view of mine is supported by a
decision of the calcutta high court reported in dababrata tarafder v. Biraj
mohan bardhan (air 1983 cal 51). Further, as laid down in section 20 (1) of
the specific relief act, 1963 the jurisdiction to decree specific performance is
discretionary, and the court is not bound to grant such relief merely
because it is lawful to do so; but the discretion of the court is not arbitrary
but sound and reasonable, guided by judicial principles and capable of
correction by a court of appeal. Sub - section (4) of section 20 of the specific
relief act enjoins that the court shall not refuse to any party specific
performance of a contract merely on the ground that the contract is not
enforceable at the instance of the other party. In the light of what is stated
above, i am of the view that no separate order is required as claimed in c.
M. P. No. 11587 of 97. Accordingly the said petition is dismissed.

Mere proof of signatures on a document of a person cannot amount to

proof of contents of the document as to its correctness.

Held: Contents of or allegations in, a document cannot be relied on in a

casual manner without the affected party’s cross examination.

The respondent counsel on being asked by this Court was unable to inform
the Court as to who proved the said document as to how the said
document was exhibited. Be that as it may, the production of Sulenama is
no evidence or proof of the contents of the Sulenama. Nobody has proved
the contents of the Sulenama nor anybody has allowed himself to be cross
examined on the truth or otherwise of the contents of the Sulenama. The
Court cannot rely on certain allegations made in a document unless the
parties in the suit relying on the contents thereof allow themselves to be
cross examined by the party effected by the contents of such document. In
my opinion the contents of the said document cannot be relied upon and it
cannot be considered to be an evidence in the suit.

Sale deeds per se are not public documents. The sale deeds when
registered the contents of the sale deeds, these are entered in the book
maintained by the Sub-Registrar and there upon the contents of the said
book become public document and as such the certified copy of the said
contents of the book/register, is admissible in evidence. It is established
law that in case of loss of any primary document the same can be proved
with the help of its certified copy by calling witness from office of the Sub-
Registry to prove the contents from the book. This Court in the case of Md.
Saimuddin Sheikh Vs. Abedjuddin Sheikh reported in year 1979 Gauhati
page 14 held that when the original sale deed is lost, evidence of content of
the sale deed can be given through certified copy from the book
maintaining in Registrar Office by calling witness from the said office.

Marking a document as exhibit does not prove its contents. The contents
are to be proved individually. It is settled law that even if execution of a
document is presumed to be correct but its contents cannot be
authentically proved. The case of Joseph John Peter Sandy Vs. Veronica
Thomas Rajkumar, reported in (2013) 3 SSC 801 (Paragraph No-31) can be
referred in this regard. The previous judgments of the Hon'ble Supreme
Court in this regard have also been quoted in the said judgment.
Considering from the said stand point it is clear that merely by marking the
sale deeds as Exts. 3 & 4 and that, too, of the certified copies, the plaintiffs
have failed to discharge the burden to prove the contents of the documents
and as such the plaintiffs have not proved the said sale deeds.
Consequently, it is to be held that the plaintiffs have failed to prove
acquisition of title to the said land vide Exts. 3 & 4.
Section 60 -- Hearsay Evidence -- Contents of documents -- Till the writer
of the document is examined before the court evidentiary value of the
contents of document is a hearsay evidence.

The evidence of the contents contained in the document is hearsay

evidence unless the writer thereof is examined before the Court. An
attempt to prove the contents of the documents by proving the signature
or handwriting of the author thereof is to set at naught the well recognized
rule that hearsay evidence cannot be admitted [See Sir Mohd. Yusuf & Anr.
v. D. and Anr., AIR 1968 Bom. 112 (DB); Achuthan Pillai v. Marikar
(Motors) Ltd., AIR 1983 Ker 81 (DB)].

It was also submitted that as per Section 54 of the Evidence Act all facts
except contents of documents must be proved by oral evidence and oral
evidence has to be direct in view of Section 60 of the Evidence Act. It was
also submitted that Section 51 of the Evidence Act, whenever the opinion of
any person is relevant, the ground on which such opinion was based is also
relevant. Thus, it was incumbent upon the UOI to object all the test reports
which form ground for the alleged opinion of the officers of the UOI that
the goods were liable for rejection during the warranty period.

Substantial question Nos. 3, 5 and 6 are identical and they revolve around
the legal question of admissibility of documentary evidence and
interpretation of the provisions contained in Chapter V of the Indian
Evidence Act 1872, more specifically sections 61, 62, 63, 64 and 65 thereof.
There is no dispute at the bar that none of the documents marked as Paper
Marks A, B, C, D, E, F, G, H and I produced by the defendants in the Title
Suit No. 3(H)/1991 are original documents, rather they are copies of some
other documents, originals whereof were neither produced in any manner,
nor put up for comparison of the court with the copies available on record.
To assure myself of the actual position, I have scrutinized the lower court
records and found that documents produced by the defendants which are
marked as Paper Marks A to I are mere photocopies/typed copies of some
documents, originals of which were never exhibited before the trial court
nor brought for comparison with the copies, i.e., the Paper Marks A to I.

In the cross-examination, the said DW 1 also admits that Annexure 20 to

the written statement which is said to be a document to show that the land
in question was purchased from the Raja of Mylliem is only an
unauthenticated copy, original whereof was neither produced nor proved.
In fact, the said witness said that the said Annexure 20 has not even been
certified to be true copy by anyone. About the Paper Marked documents
the said witness says that "...............they are true copies of originals held by
us. It is not a fact that we have no original documents of these papers."
Having said so there is absolutely no explanation as to why those original
records were never produced nor exhibited before the court. The learned
trial court has quoted the following part of the cross-examination of DW1 :
-

".........I have seen the land from outside, I can say about the land only as
per the records, but I cannot say about what is in it, I have not produce or
brought any document to show that only the Government of India Defence
Ministry reserves the right for taking decision, for resumption of land,
other then Exhibit paper mark 'B', 'F' and 'H'.

Although law permits contents of documents to be proved either by

primary or secondary evidence, sections 64 and 65 of the Indian Evidence
Act, puts effective guidelines and limitations in respect of proof of
documents by secondary evidence. As a general rule, documents must be
proved by primary evidence. However, section 65 makes an exceptions
thereby allowing proof by way of secondary evidence regarding the
existence, condition or contents of documents on the following conditions :
-

(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 to 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;

(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 consists of numerous accounts or other document

which cannot conveniently be examined in court, and the fact to be proved
is the general result of the whole collection.

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

18. It is not the case of any party that originals of Paper Marks A to I is in
the possession of the plaintiff. None of these documents have been
admitted by the plaintiff against whom these are sought to be proved. It is
also not the case of the defendants that the originals had been destroyed or
lost or can not be produced for any reason enumerated in section 65(c). The
defendants also have not raised any plea that the originals are not easily
removable or they are Public Documents within the meaning of section 74
of the Indian Evidence Act. In case they were Public Documents, the copies
thereof have to be certified by a Public Officer having custody of the said
Public Documents. There is no evidence on record that these Paper Marks
conform to the test of law prescribed under sections 76, 77 and 78 of the
Indian Evidence Act. There is also no material on record to presume the
genuineness of these documents which are admittedly mere copies in the
absence of the prove that they were duly certified by an officer of the
Central Government who is duly authorized thereto by the Central
Government. In the absence of the above requisites the Paper Marks A to I
cannot be taken into consideration by any court of law. The learned trial
court in my considered view had rightly held that "It is incumbent upon
the defendants to prove their case by producing original documents which
is admissible as primary evidence." In the absence of any evidence
admissible under law the trial court rightly discarded the defendant's case.
However, the first appellate court in total disregard of the aforesaid
cardinal principles regarding documentary evidence reversed the findings
of the trial court solely relying on the contents of the Paper Mark
documents produced by the defendants in spite of the fact that none of
these documents were admissible in evidence and they were not even
exhibited or marked as Exhibits before the court. This has caused serious
infraction of the mandates of sections 64 and 65 of the Indian Evidence Act.

........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.

8. Essentially, 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. The definition in section 63 is
exhaustive as the section declares that secondary evidence "means and
includes" and then follow the five kinds of secondary evidence.

The rule which is the most universal, namely, that the best evidence the
nature of the case will admit shall be produced, decides this objection that
rule only means that, so long as the higher or superior evidence is within
your possession or may be reached by you, you shall give no inferior proof
in relation to it. 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, under section 64, documents are to be
provided by primary evidence. Section 65, however, permits secondary
evidence to be given of the existence, condition or contents of documents
under the circumstances mentioned. The conditions laid down in the said
section must be fulfilled before secondary evidence can be admitted.
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 provided for in the
section...."

Dayamathi Bai v K.M. Shaffi, (2004) 7 SCC 107 . In the case of Dayamathi
Bai (supra), the Apex Court while considering admissibility of a 30 years
old document and presumption of genuineness thereof under section 90 of
the Indian Evidence Act held that the document in question which was the
certified copy of a sale deed was put to evidence and taken on record as
well as marked as an exhibit without any objection from the contesting
side. Hence, it was not open I for the same party being appellant to
challenge the same before the Apex Court without taking the objection at
the time of admission of the document at trial stage. It is not discernible
how this judgment can advance the case of the defendant/First Appellant,
inasmuch as, evidently the Paper Marks A to I were not even accepted or
marked as Exhibits by the trial court and the objection and resistance
against the admissibility of these documents put up by the plaintiff is
apparent on the face of the cross-examination of DW 1 by the said plaintiff.

Sections 17 and 31 -- Admission of fact -- Effect of -- Distinction with

estoppel. Admission is an important piece of evidence. But it is open to
the person who made the admission to prove that those admissions are
not true. Admission is one thing, estoppel is another. Admission is a
piece of evidence but estoppel creates title.

EVIDENCE ACT, 1872--Section 115 -- Promissory estoppel -- Distinction

with admission of fact. Admission is an important piece of evidence. But
it is open to the person who made the admission to prove that those
admissions are not true. Admission is one thing, estoppel is another.
Admission is a piece of evidence but estoppel creates title.

67. Proof of signature and handwriting of person alleged to have signed or

written document produced.—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.
COMMENTS
Admissibility
Non-examination of executants of receipt, admissibility of receipts not proper;
Ramkrishna Dode v. Anand, AIR 1999 Bom 89.
Execution of documents -- Proof of -- A person executing documents may
deny contents in which case the party relying documents may be
required to prove his knowledge of contents. When the execution of a
document is denied, the party seeking to prove that document must not
only prove that the alleged executant has signed that deed, but he must
also prove that the executant had signed the same with the knowledge of
its contents. What facts and circumstances have to be established depend
on the pleas put forward. If the only plea taken is that the executant has
not signed the document and that the document is a forgery, party
seeking to prove the execution of a document need not adduce evidence
to show that the party who signed the document knew the contents of
the document. Ordinarily no one is expected to sign a document without
knowing its contents but if it is pleaded that the party who signed the
document did not know the contents of the document then it may in
certain circumstances be necessary for the party seeking to prove the
document to place material before the court to satisfy it that the party
who signed the document had the knowledge of its contents
17. Admission defined.—An admission is a statement, 1[oral or documentary or
contained in electronic form], which suggests any inference as to any fact in issue
or relevant fact, and which is made by any of the persons, and under the
circumstances, hereinafter mentioned.
COMMENT
Admissibility is substantive evidence of the fact
Admissibility is substantive evidence of the fact admitted while a previous
statement used to contradict a witness does not become substantive evidence and
merely serves the purpose of throwing doubt on the veracity of the witness;
Bishwanath Prasad v. Dwarka Prasad, AIR 1974 SC 117.

Delhi Documents Writers Licensing Rules, Rule 1986 -- Rules 3 r/w Rule 14 --
Documents writers -- Document Registration -- Absence of licence -- No
document should be accepted for registration, unless, the same is not written
by a licenced document writter or the executant or his advocate – Rules

Evidence -- Documentary proof -- If witness denies the documents, then

those documents certainly cannot be exhibited and the occasion to
exhibit those documents would only arise if the witness admits those
documents -- This is so since in cross examination, opposite party has a
right to practically pull out a document out of its pocket and confront the
witness with that document, which related to that witness.

Evidence -- Cross-examination -- Nothing precludes petitioner from

confronting witness of respondent in cross-examination with documents
not on record.

The respondent has filed a suit for possession, recovery of arrears of rent
and mesne profits in which the defence of the petitioner has been struck
off. At the stage when the cross examination of the witnesses of the
petitioner was in progress, the counsel for the petitioner sought to confront
the witness with certain documents. This was objected to by the learned
counsel for the respondent and the trial court held that in view of the fact
that the defence of the petitioner has been struck of, the witness cannot be
confronted with those documents. These documents are 14 alleged rent
receipts.

At the inception itself, it must be noticed that this Court does not sit as a
court of appeal in proceedings under Article 227 of the Constitution of
India and the object is only to ensure that a Court or a Tribunal confines
itself to its own jurisdiction. It is also trite to say that the trial court is the
master of how the evidence must be recorded and it is not the function of
this court to interfere in the progress of the evidence.

6. It is keeping the aforesaid conspectus in mind that the real grievance of

the petitioner is being analyzed which arises from a legal plea raised that in
cross examination the counsel for the petitioner must have full play within
the ambit of law and even if the defence of the petitioner has been struck
off, the petitioner cannot be precluded from confronting the witness with
documents.

Apex Court in Modula India v.Kamakshya Singh Deo; (1988) 4 SCC 619
which has discussed the scope of the right of cross examination especially
in a case where the defence has been struck off. The Apex Court has
observed that even if the defence of the tenant has been struck off, there is
nothing in law to preclude him from demonstrating to the court that the
plaintiff's witnesses are not speaking the truth or that the evidence put
forth by the plaintiff is not sufficient to fulfil the terms of the statute. The
court can look into the plaintiff's evidence and pleadings and may consider
such questions as are necessary and it has been held that in case any type of
assistance from the defendant is completely eliminated, the same would
put the court in a great handicap in discovering the truth or otherwise of
the plaintiff's statement. The right of cross examination in such a case has
been upheld subject to certain safeguards which include the aspect that the
defendant cannot be allowed to lead his own evidence. The discussion in
this behalf is contained thereafter in para 21 and 22 of the said judgment
and the conclusions are set out in para 24 of the said judgment. The said
paragraphs read as under:

“21. Secondly, there is force in the apprehension that if one permits cross
examination of the plaintiff's witnesses by the defendant whose defence is
struck off, procedural chaos may result unless great care is exercised and
that it may be very difficult to keep the cross examination within the limits
of the principles discussed earlier. Under the guise of cross examination
and purported demolition of the plaintiff's case, the defendant may attempt
to put forward pleas of his own. To perceive quickly the difference
between questions put out to elicit a reply from the plaintiff which may
derogate from his own case and questions put out to substantiate pleas in
defence which the defendant may have in mind and to restrict the cross
examination to its limits will be not an easy task. We think,however, that
this is a difficulty of procedure, rather than substance. As pointed out by
Ramendra Mohan Dutta, J. this is a matter to be sorted out in practical
application rather than by laying down a hard and fast rule of exclusion.

22. A third safeguard which we would like to impose is based on the

observations of this Court in Sangram Singh v. Election Tribunal; AIR 1955
SC 425 . As pointed out therein, the essence of the matter in all such cases is
that the latitude that may be extended by the court to the defendant in spite
of his having filed a written statement, should not cause prejudice to the
plaintiff. Where the defendant does not file a written statement or where he
does not appear to contest the case the plaintiff proceeds on the basis that
there is no real opposition and contents himself by letting in just enough
evidence to establish a prima facie case. Therefore, the court should ensure
that by permitting the defendant at a later stage either to cross examine the
witnesses or participate in the proceeding the plaintiff is not taken by
surprise or gravely prejudiced. This difficulty however can be easily
overcome in practice, because there is a wide discretion with the court and
it is always open to the court, where it believes that the plaintiff has been
misled, to exercise its discretion to shut out cross examination or to
regulate it in such a manner as to avoid any real prejudice to the interests
of the plaintiff.

. the defendant whose defense has been struck off subject to the exercise of
an appropriate discretion by the court on the facts of a particular case,
would generally be entitled : -
(a) to cross examine the plaintiff's witness; and

(b) to address argument on the basis of the plaintiff's case.

We would like to make it clear that the defendant would not be entitled to
lead any evidence of his own nor can his cross examination be permitted to
travel beyond the very limited objective of pointing out the falsity or
weaknesses of the plaintiff's case. In no circumstances, should the cross
examination be permitted to travel beyond the legitimate scope and to
convert itself virtually into a presentation of the defendant's case either
directly or in the form of suggestions put to the plaintiff's witnesses.”

under Order 7 Rule 14 of the CPC the plaintiffs are required to file with the
plaint documents on which they rely or sue; under Order 13 Rule 1 the
parties are required to produce on or before the settlement of issues all the
documents/evidence in original where the copies thereof had been filed
along with the plaint; that the plaintiffs are thus not entitled to seek
exemption from filing the original documents; that the production of the
original documents is a mandatory requirement of law not only under CPC
but under the Evidence Act as well as the Delhi High Court (Original Side)
Rules. It is further pleaded that the plaintiffs have to prove their case by
primary evidence on record and if photocopies are produced, it is not
possible for the defendants to compare those with the originals. On merits,
it is denied that the original documents are required as alleged by the
plaintiffs and it is further contended that it is open to the plaintiffs to apply
for certified copies of the documents, on the same being proved/exhibited.

Section 70 -- Transfer of Property Act, 1882, Section 3 -- Attested

Document -- Proof about attestation -- Statement by the witness that,
document was attested is sufficient -- If the opposite party did not
challenge the attestation of document in the pleadings -- And did not ask
cross examination questions on this point -- The statement of the witness
can be relied to prove proper attestation of the document.

when attestation is not specifically challenged and when a witness is not

cross - examined regarding the details of the attestation it is sufficient for
him to say that it was attested by the other witness and himself. That is
enough to prove the attestation. The law will then assume that when the
witness swears that it was attested the witness means by that 'attested
according to the forms required by law', if the other side wants to challenge
the statement", it is their duty, quite apart from raising it in the pleadings,
to cross - examine the witness along these lines. As that was not clone here
the plaintiffs were entitled to assume that the mode of attestation was not
being attacked and therefore that it was enough for their witness merely
formally to prove attestation

Question for consideration is whether ibrahimbhai can be considered to be

the person executing the document for the purpose of presenting it for
registration within the meaning of section 32 of the registration act and
whether he is also the person executing for the purpose of appearing under
section 34 and admitting the execution thereof under section 35 of the
registration act.

Section 32 of the registration act is as follows :

"except in the cases mentioned in sections 31, 38 and 39, every document to
be registered under this act, whether such registration be compulsory or
optional, shall be presented at the proper registration office. (a) by some
person executing or claiming under the same or, in the case of a copy of a
decree or order, claiming under the decree or order, or (b) by the
representative or assign of such person, or (c) by the agent of such person,
representative or assign duly authorized by power - of - attorney executed
and authenticated in manner hereinafter mentioned. "

Section 32 mentions who can be persons entitled to present documents for

registration. They are placed in three different categories. (a) those who
have executed the documents or claim under the documents which are
executed. (b) those who, are representatives and assigns of the aforesaid
persons. (c) those, who are agents of the persons executing or claiming or
of their representatives or assigns where such agents are duly authorized
by power - of - attorney being required to be executed and authenticated in
the manner laid down in section 33.

The term representative as used in section 32 has the meaning indicated in

the definition of that term in section 2 (10) which is an inclusive definition
and is not exhaustive. It will consequently mean persons who are entitled
to represent the person executing or cfaiming. Different situations can be
conceived. The person to execute may be either a minor or an idiot or a
lunatic, it may be joint hindu family. In the case of a minor or an idiot his
guardian would be a representative. In the case of lunatic, a committee or
curator of such a lunatic will be his representative. In the case of joint
hindu family the manager or karta of the family. It could also be a person
who is entitled to represent the interest of another either by the act cf the
party concerned contractual in nature or by the operation of law. Clause 'c'
deals with a third category namely the agents but the agents referred there
are not agents in general but agents specially authorized to present the
documents for registration.

Their lordships of the privy council in chottey lal v. Collector of

moradabad 49 ind app 375 : (air 192z pc 279) observed with reference to
power of attorney referred to in sub - clause (c) of section 32 of the
registration act as follows : "such power of attorney must not be general in
ita form, but must confer the special authority to present on behalf of the
principal, and even though the sub - registrar accepts the presentation
under a general power of attorney, it is open to any interested party to
show that the power of attorney was in fact imperfect. Shee jambu prasad
v. Mahammad aftab ali khan, 42 ind app 22 : (air 1914 pc 16). "

(19) Thus sub - clause (c) deals with category of persons who are different
from persons executing, or claiming or their representatives or assigns and
who are specifically authorized in accordance with the manner laid down
in sec - tion 32 to present the documents for registration. They do not cover
persons who are agents in general though not specifically authorized to
present, such as agents empowered to execute documents on behalf of and
in the name of their principals.

Section 34 provides for appearance of persons referred to section 32 before

the registering officer within the time limited by law, such appearances
being either simultaneous or at different time and for an inquiry by the
said officer as to the fact of execution and the identity of persons executing
or as to the right of any person to act as representative, assign or agent.

(21) If a person executes a document on the ground that he is duly

authorized to do so by the party whose interest he represents he can either
be the person executing in the phrase 'person executing' is taken to mean,
as their lordships of the privy council in 4 ind app 166, mohammed ewaz v.
Birj lall, say 'the person who actually executed it, or he can be the person
who is the representative of the person who on the face of the deed is a
party to the deed.

(22) As to the former meaning as being applicable to the authorized agents

there has been some difference of opinion which will be examined
hereafter on the basis of authorities, an important case bearing on this point
is muhmmed ewai's case, 4 ind app 166.

In that case (4 ind app 166) the facts were as follows. A sale - deed
purporting to be executed by the three heirs of a deceased mohomedan
owning a property in dispute was presented for registration. Actual
execution of the deed was by two sons one of whom executed the same on
behalf of himself as well as his mother musammat mobaruk jan. The
vendors were called the next day. The two sons appear - ed. They admitted
their execution but denied that of their mother. The registering officer in
spite of their unwillingness to complete the document, because of their
having sold the same property to a third party byjnath, registered the same.
Validity of such registration was in question. The trial court upheld the
registration but as there was no proof of the mother having authorized the
son who executed the document also in her name, dismissed the suit
against her, it decreed it against the two sons. On appeal the high court
held the registration to be invalid. On further aopeal to the privy council
the trial court's decision was restored. Their lordships say with reference to
section 34 (new section 35) : "there the persons described are the persons
executing the document - not those who on the face of the deed are parties
to it, or by whom it purports to have been executed, but those who have
actually executed it. "

In a subsequent decision of their lordships in 28 ind app 15 (22) ,

mujibunnissa v. Abdul rahim, the question regarding validity of
presentation of a deed by a person who held a general power - of - attorney
conferred upon him by the executant who was dead at the time of such
presentation came in for consideration. Under that deed the deceased
proprietor had created a wakf of his property. This wakf was challenged by
his daughter and in that connection the validity of the deed came to be
considered. Their lordships while considering the scope of section 32 of the
registration act in that context observed at pages 22 - 23 of the report:
"when the terms of section 32 are considered with due regard to the nature
of registration of deeds, it is clear that the power and jurisdiction of the
registrar only come into play when he is invoked by some person having a
direct relation to the deed. It is for those persons to consider whether they
will or will not give to the deed the efficacy conferred by registration. The
registrar could not be held to exercise the jurisdiction conferred on him, if,
hearing of the execution of a deed, he got possession of it and registered it;
and the same objection applies to his proceeding at the instigation of a
third party, who might be a busybody. "

In a later decision of their lordships of the privy council reported in 55 ind

app 81 : (air 1928 pc 38) , puran chand v. Monmotho nath, the question
considered was whether a document executed by an agent under a general
powerof - attorney authorising such execution can be acknowledged for
registration by another agent acting under a power - of - attorney given for
the purpose. In that context their lordships while upholding the
registration as being valid observed with reference to the term 'person
executing' as used in section 35, observed : "by section 35, registration act,
registration is directed when certain persons have appeared, have been
duly identt - fied, and have admitted the execution of the document
propounded, and the necessary persons are 'the persons executing the
document'. The appellant contends that in these words executing means
and means only 'actually signing". Their lordships cannot accept this. A
document is exscuted, when those who take benefits and obligations under
it have put or have caused to be put their names to it. Personal signature is
not required, and another person, duly authorized, may by writing the
name of the party executing, bring about his valid execution, and but him
under the obligations involved. Hence the words 'person executing' in the
act cannot be read merely as
'person signing. They mean something more, namely the person, who by a
valid execution enters into obligation under the instrument. When the
appearance referred to is for the purpose of admitting the execution
already accomplished, there is nothing to prevent the executing person
appearing either in person or by any authorized and competent authority
in order to make a valid admission. "

It was argued with reference to these decision that there is apparent

inconsistency in the observations of the privy council in 4 ind app 166 (171)
(supra) and those in the two later decisions reported in 28 ind app 15 (22)
(supra) and 55 ind app 81 (84) : (air 1928 pc 38 at p. 39) (supra) quoted
above in that whereas in the former decision 'persons executing' is taken to
mean "not those who on the face of the deed are, parties toit or by whom it
purports to have been executed but those who actually executed it", in the
later two decisions the phrase is held to mean those who have a direct
relation to the deed or in other words it means not merely persons signing
but something more namely the persons who by a valid execution enter
into obligation under the deed.

(27) In my opinion there is no inconsistency in these observations if they

are understood in their proper context.

(28) In mohammed ewaz's case, 4 ind app 166 (supra) validity of

registration was considered with reference to section 34 (section 35 new) of
the registration act in view of the non - appearance of the mother by whom
the document purported to have been executed for admitting its registra -
,tion. The point there - considered was whether the registration was invalid
even as against the two sons who had admittedly executed it on their own
behalf and had ap - peared before the sub - registrar to admit the execution.
It was in that context that their lordships interpreted the phrase 'person
executing' as being inclusive of the persons actually executing the deed.
They in my opinion, could not be taken to mean that where the person
actually executeing the document be an agent the principal authorizing
him could not appear to admit the agent's execution on nis behalf.
Whatever doubt there might have been due to omission to use the phrase
'not only' instead of 'not' and 'but also' instead of 'but' is removed by the
later observations in 55 ind app 81: (air 1928 pc 38) (supra) , where their
lordships held even the appearance of a different agent specially
authorised to admit execution than one who executed it to be valid for the
purpose of section 35. Appearance, of the principal will no doubt be
equally valid on that view. The observations in mujibunnissa's case, 28 ind
app 15 (22) , quoted above came to be made while considering the question
whether the defect of presentation of the deed by a person who was the
agent holding a power - ot - attorney from the deceased executant was a
defect of procedure. Their lordships mean that the power of the sub -
registrar to register the deed could not have been invoked in that case by
the agent of the deceased executant and that too after his death. Defect in
such a case is not one of procedure but is of substance. Jurisdiction of the
registering authority could only have been invoked by the executant
himself while he was alive or by his representatives or assigns after his
death. The point considered in purart chand's case, 55 ind app 81 (84) : (air
1928 pc 38 at p. 39) was with reference to the circumstance that the person
who was actually a party to the deed in the sense of nis having incurred
legal obligation under it, could or could not authorize presentation of the
deed to a person different from the one whom be had authorized to execute
it. Their lordships had to consider the scope of the phrase 'person
executing' for the purpose of section 35 and they held it to be sufficiently
wide to include the person who was the actual party to the deed.
Thus there is really no inconsistency in the observations if read in their
context, it is well - settled by authori - ties that observations in a case have
to be understood having regard to the context in which they were made. As
lord halsbury l. C. , has observed in quinn v. Leathern, 1901 ac 495 "every
judgment must be read as applicable to the particular facts proved. Since
generality of expressions which may be found there are not intended to be
exposition of the whole law but governed and qualified by the particular
facts of the case in which expressions are to be found. "

(30) In air 1924 all 148, aisha bibi v. Chhajju mal, it is held that once a
document has been executed by an agent under a power - of - attorney
duly authorizing him to do so, he is, so far as registration office is
concerned the act tual executant of the document and is entitled to present
it for registration under section 32 (a). This decision is of course based on
the observations of the privy council in mohammed ewaz's case 4 ind app
166.

(31) In air 1920 cal 316, gopeswar v. Hem chandra, mookerjee, acting c. J.
End fletcher and richardson, jj. , had to consider the contention regarding
invalidity of registration under the following circumstances. The mortgage
- bond there was presented for registration by the husband moni mohan
roy who had executed it on behalf of himself as well as his wife who had
authorized him to do so under a power - of - attorney. The power of
attorney however was not produced before the registering authority. It was
held that inasmuch as he was the sole executant of the document he could
properly present it for registration. Registration under the circumstances
was not invalid.

(32) In air 1925 cal 703, monmotho math v. Puran chand, sanderson, c. J. ,
and rankin, j. , had to consider the validity of registration of deed which
was executed by one person under a power - of - attorney from the
principal and was presented for registration under a different but specific
authoity from the same principal by another person. It was held that the
registration in such a case is good. It was contended before their lordships
on the basis of muhamed ewaz's case, 4 ind app 166 that the person
executing' for the purpose of section 35 is meant the person who actually
signed the deed and not the prinicpal and consequently presentation under
a power - of - attorney from the principal was invalid. It was observed by
rankin, j. , that it was erroneous to suppose that the registration act lays
stress upon the appearance and admission of the person who held the pen
for executing the document. According to him the point in muhamed
ewaz's case, 4 ind app 166 was whether you can or cannot read certain
words in section 35 so that the section can be treated distributively and it
was in that context that the observations in muhamed ewaz's case, 4 ind
app 166 relied upon before them, were made. The decision of the privy
council in 55 ind app - 81 = (air 1928 pc 38) (supra) is with reference to this
very case. The privy council has affirmed this decision.

In air 1927 bom 487 (fb) , sitaram v. Dharma - sukhram, held that a person
executing a document on behalf of himself and another under a power - of
- attorney from the latter, which power does not comply with section 33 or
the indian registration act is competent to appear before the registrar to
admit the execution of that document. The earlier decision in ilr 50 bom
628: (air 1926 bom 4/9) , balkrishna raoji v. Parashram mahadeo, was
overruled in that case. This decision was approved and relied upon by the
lahore high court in air 1939 lah 127, mul raj v. Rahim bakhsh.

(34) In a single bench decision of the andhra pradesh high court reported in
air 1958 andh pra 107, d. Sardar singh v. Pissumal h. Bankers, it was held
that where a person holding a power - of - attorney executes a sale - deed
he cannot present it for registration unless he holds a power - or - attorney
satisfying the requirements of section 33. This decision, it will be observed,
runs counter to the full bench decision of the bombay high court as well as
that of the calcutta high court referred to above. Recent decision or the
punjab high court in air 1960 punj 226, ram gopal v. Mohan lal, follows the
full bench decision of the bombay high court (air 1927 bom 487 (fb)).

(35) Mr. Chaphekar for the respondent laid stress upon the observations of
chagla c. J. , in air 1950 bom 326, rati - lal v. Rasiktal, which indicated that
the decision of their lordships of the privy council in 55 ind app 81: (air
1928 pc 38) , contained observations which were inconsistent witn those in
mohammed ewaz's case, 4 ind app 166.

(36) As already discussed there is, in my opinion, no inconsistency if we

understand the observations of the privy council in the context in which
they were made particularly when the decision of 4 ind app 166 (supra)
was neither referred to nor disapproved in 55 ind app 81: (air 1928 pc 38)
which would certainly have been done in case their lordships wanted to
modify their view.

(37) The result of the authorities thus discussed is that presentation of and
admission of execution of the mortgage - deed in suit by the husband who
had executed the same under a power - of - attorney from the wife is valid
as being by the person, who had executed it, may be as an agent and also
because it is by a representative of the person who was party to the deed. It
is also valid because the power - of - attorney granted by the wife to the
husband not only authorised execution of a deed of mortgage but also to
get it registered which meant 'to do everything that is necessary' to get it
registered including presentation or the 'deed for registration and
appearance for admission as to its execution for the purpose of section 35.
Both the mort - gage - deeds in the two suits are therefore validiy
registered.

(38) As we have held that the mortgage - deeds referable to both the suits
are not invalid either on the ground or improper attestation or of illegal
registration dismissal or the suit as against sakinabai was improper. The
suits ought to have been decreed as against her and a preliminary decree
for sale of the mortgaged property should have oeen passed. ,we would
therefore allow both the appeals.

(39) In civil first appeal no. 4 of 1958 we direct that a preliminary mortgage
- decree for sale be passed against defendant sakinabai w/o ibrahimbnai for
rs. 6407 - 8 - 0 inclusive of interest upto the date of the suit. This amount
together with future interest on rs. 5500/ - from the date of the suit i. E. 3 -
11 - 1955 till three months hence i. E. Upto 7 - 2 - 63 at 6% per annum shall
be paid on or before 7 - 2 - 63 failing which it will be competent for the
plaintiff to apply tor a final decree, for sale. The appellant will be entitled
to costs throughout as against defendant sakinabai w/o ibrahimbhai.
Preliminary decree in the usual form may be drawn up in light of what is
said above.

(40) Similarly in civil first appeal no. 3 of 1958 we direct that a preliminary
mortgage - decree for sale be passed against defendant sakinabai w/o
ibrahimbhai for rs. 8260/ - inclusive of interest upto the date of the suit.
This amount together with future interest at 6% per annum on rs. 7000/ -
from the date of the suit i. E. 11 - 1 - 1956 till three months hence i. E. Up to
7 - 2 - 63 shall be paid on or before 7 - 263 failing which it will be competent
for the plaintiff - appellant to apply for a final decree for sale. The appellant
will be entitled to costs as against defendant sakinabai w/o ibrahimbhai
throughout. Preliminary decree in usual form may be drawn up in light of
what is said above.

Section 34 of 'the registration act then lays down :

" (1) subject to the provisions contained in this part and in sections 41, 43,
45, 69, 75, 77, 88 and, 89, no document shall be registered under this act,
unless the per - sons executing such document, or their representatives,
assigns or agents authorized as aforesaid, appear before the fegistering
officer within the time allowed or presentation under sections 23, 24, 25
and 26 : provided that, if owing to urgent necessity or unavoidable accident
all such persons do not so appear, the registrar, in cases where the delay in
appearing does not exceed four months, may direct that on payment of a
fine not exceeding ten times the amount of the proper registration fee, in
addition to the fine, if any, payable under section 25, the document may be
registered. (2) appearances under sub - section (1) may be simultaneous or
at different times. (3) the registering officer shall thereupon - (a) enquire
whether or not such document was executed by the persons by whom it
purports to have been executed; (b) satisfy himself as to the identity of the
persons appearing before him and alleging that they have exscuted the
document and (c) in the case of any person appearing as a representative,
assign or agent, satisfy himself of the right of such person so to appear. (4).
(5). "

Code of Civil Procedure -- O.41 R.27

(A) Civil Procedure Code, 1908 -- O. 41 R.27 -- Additional evidence at
appellate stage -- Held;

(i) Any application for reception of additional evidence shall not

be taken independently of the disposal of the appeal.

(ii) The application is to be taken up only along with the appeal

and if the Court finds justification that the additional evidence
must be received and it requires no further oral evidence the same
may be received and considered while delivering the judgment.

(iii) If the document is relevant and cannot be received without

proof the Court will also be justified in remitting the matter to the
trial Court or take evidence at its own forum for proof of
documents. (Para 4)

(B) Civil Procedure Code, 1908 -- O. 41 R.27 -- Additional evidence

at appellate stage -- The evidence ought to be adduced were
public documents and no proof regarding genuineness of the
documents was necessary -- Application was rightly allowed --
Revision against order, dismissed. (Para 3)
(B)
(C) 2005 Legal Eagle 984
(D) IN THE M.P.HIGH COURT
(E) Equivalent Citations : 2006 AIR(MP) 107 : 2006 (2) JLJ 275 : 2006 (1)
MPLJ 103
(F) [Before :R.V.Raveendran;CJ & Shantanu Kemkar]
(G) Rekha Rana and Ors.
(H) versus
(I) Ratnashree Jain
(J) Case No. : W.P. No. 1985 of 2005
(K) Date of Decision : 17/08/2005
Property Laws -- Title Deeds -- Production of Certified copies
from the office of Sub-Registrar -- Legal Principles:- (1) Original
of the sale deed or any other conveyance is not kept in the Public
Office, but returned to the person who presented that for
Registration, thus the Original as well as the copy pasted in the
Sub-Registrar’s office’s Book-1 is Private document -- (2) Certified
copy of the documents extracted from Book-1 is Certified copy of
Public Documents -- (3) Said Certified copy can be produced as
Secondary evidence under Sections 65(3) read with 77 of Indian
Evidence Act, 1872; about the contents of what is written at those
places of Public Offices -- (4) Merely production of said Certified
copy is not the best evidence to prove the Sale deed, but unless it
is proved why the Original cannot be produced, said Certified
copy cannot be admitted as an evidence -- (5) The Execution of
Sale Deed/Conveyance to be proved separately, and mere
production of document, even if that is Registered, will not give
presumption of taking place of Sale.

Held:- Proving execution of a registered sale deed (or any other

registered document which is not required by law to be attested)
has two steps. The first step is production of the original sale
deed or lay the foundation for letting in secondary evidence of the
sale deed, by way of certified copy of the sale deed, by showing
the existence of any of the circumstances mentioned in clauses (a),
(b) and (c) of Section 65. In other words, a certified copy can be
offered as secondary evidence of the original sale deed under
clause (a) of Section 65, by establishing that the original is in the
possession or power of the person against whom the document is
sought to be proved, or in the possession or power of any person
out of reach of or not subject to the process of the Court, or in the
possession of any person who is legally bound to produce it, and
such person (of the three categories) does not produce it in spite
of notice under Section 66 of the Act. A certified copy of the sale
deed can also be offered as secondary evidence under clause (c) of
Section 65, by showing that the original is 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). Lastly a certified copy can be offered as
second evidence under clause (b) of Section 65, where the
existence, condition or contents of the (sic) has been admitted in
writing by the person against whom it is proved or by his
representative in interest, and such admission is proved.

18.1. The second step is to prove the execution of the deed

(whether what is produced in thein the original or certified copy
or other secondary evidence thereof given under clause (a), (b) or
(c) of Section 65) as required by Section 67 of the Act, where the
document is not one which is required by law to be attested or as
required by Section 68 of the Act where the document is one
which by law is required to be attested. This is because
registration is not proof of execution. A private document cannot
be used in evidence unless its execution is admitted by the party
against whom it is intended to be used, or it is established by
proof that it is duly executed. Due execution is proved by
establishing that the signature (or mark) in token of execution
was affixed to the document by the person who is stated to have
executed the document. This is normally done either (i) by
examining the executant of the document; or (ii) by examining a
person in whose presence the signature/mark was affixed to the
document; or (iii) by referring the document to a handwriting
expert and examining such expert; or (iv) by examining a person
acquainted with handwriting/signature of the person who is
supposed to have written/signed the document; or (v) by
requesting the Court to compare the signature of the executant in
the document with some admitted signature of the person shown
as executant; or (vi) by proving admission by the person who is
said to have signed the document, that he signed it.

18.2. If the person producing the certified copy of a registered

instrument, without establishing the existence of any of the
grounds under clause (a), (b) or (c) of Section 65, seeks to mark the
certified copy, then it will not be secondary evidence of the
original sale deed, but only be secondary evidence of the entries
in a public document, that is the entries in Book I in the
Registration Office which issued the certified copy. Such certified
copy marked without laying foundation for receiving secondary
evidence, though admissible for the purpose of proving the
contents of the original document, will not be proof of execution
of the original document.

18.3. Certain amount of confusion exists because a certified copy

can be produced as secondary evidence either under clauses (e)
and (f) of Section 65 or under clauses (a), (b) or (c) of Section 65.
But the difference is that a certified copy is the only mode of
secondary evidence that is permissible in cases falling under
clauses (e) or (f) of Section 65. But in the cases falling under
clauses (a), (b) or (c), the secondary evidence can be a certified
copy in the case of a registered instrument or by other modes
described in Section 63 in regard to unregistered documents. Be
that as it may.

19. We may summarize the position thus:

(i) .Production and Marking of a certified copy as secondary

evidence of a public document under Section 65(e) need not be
preceded by laying of any foundation for acceptance of secondary
evidence. This is the position even in regard to certified copies of
entries in Book I under Registration Act relation to a private
document copied therein.
(ii) Production and marking of a certified copy as secondary
evidence of a private document (either a registered document like
a sale deed or any unregistered document) is permissible only
after laying the foundation for acceptance of secondary evidence
under clause (a),(b) or (c) of Section 65.

(iii).Production and marking of an original or certified copy of a

document does not dispense with the need for proof of execution
of the document. Execution has to be proved in a manner known
to law (Section 67 and 68 and ensuing sections in chapter V of
Evidence Act). (Paras 18 and 19).

Merely because document is proved by witnesses or the scribe

would not make it a genuine document if facts and circumstances
show that same was not executed by free mind knowledge of
executant.

(A) Power of attorney - Agreement to sell - Validity of - Proof of

document - Merely because document is proved by witnesses or
the scribe would not make it a genuine document if facts and
circumstances show that same was not executed by free mind
knowledge of executant. (Para 5).

Respondent filed an application under Section 65 of the Evidence

Act, 1872 ('Act' for short) seeking permission to lead secondary
evidence in regard to the sale-deed dated 5-11-1997 executed in her
favour by the previous owners (Ramdas and others) by producing a
certified copy of the deed.

petitioners herein relied on three decisions of learned Single Judges

of this Court, Jagannath Pershad Nigam v. Visheshwar Prasad 1977
(1) MPWN Item 210, Bhagwat Saran v. Man Singh 1986 (1) MPWN
Item 59 and Gopal Sharma v. Savitri Devi Ojha 1994 (1) MPWN
Item 192 in support of their contention that a sale deed is not a
public document and when the original is not lost or destroyed, it
cannot be proved by merely tendering certified copy thereof. On the
other hand, the Respondent-landlord relied on the decision of a
learned Single Judge of this Court in Nawab Saheb v. Firoz Ahmad
2002 (5) MPLJ 438 (sic) : 2003 AIHC 544, holding that a registered
sale deed is a public document, purporting to rely on an earlier
decision of another Single Judge in Vasudev v. Tikaram 1994 (1)
MPWN Item 198. In view of the divergent views, the learned single
Judge (K. K. Lahoti, J.) has referred this petition to a Division Bench
for decision, stating that the following two questions arise for
consideration.

(i) Whether certified copy of a registered sale deed obtained from

the office of Sub-Registrar is a public document ?

(ii) Whether the aforesaid document may be received in evidence as

a public document without any proof of document by primary
evidence, as required under Section 64 of the Evidence Act ?

On the points urged by both sides and the reference by the learned
Single Judge, the following points arise for consideration:

(i) Whether a sale deed (duly registered) is a public document ?

(ii) Whether a certified copy of a sale-deed issued by the Registering

Officer is a public document ?

(iii) Whether a certified copy of a public document can be received

in evidence without any further proof ?

(iv) What is the effect and efficacy of producing and marking a

certified copy of the sale deed ?

(v) Whether the order of the trial Court requires interference ?

Re : Points (i) and (ii)

7. The answer to these two questions can be found in the Evidence

Act.

Chapter V of the Act deals with Documentary Evidence. Section 61

provides that contents of documents may be proved either by
primary or by secondary evidence. Section 62 defines primary
evidence as meaning the document itself produced for inspection of
the Court. Section 63 defines Secondary evidence as meaning and
including among others certified copies given under the provisions
of the Evidence Act. Section 64 provides that documents must be
proved by primary evidence except in the cases mentioned in the
subsequent sections.

7.2 Section 65 deals with cases in which secondary evidence relating

to documents may be given. The relevant portion of Section 65 is
extracted below:

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;
(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 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 is, to be given in
evidence....

(g) ...

Section 65 further provides that in cases (a), (c) and (d), any
secondary evidence of the contents of document is admissible; in
case (b), the written admission is admissible; in case (e) and (f), a
certified copy of the document, but no other kind of secondary
evidence, is admissible.

7.3 Section 67 relates to proof of signature/handwriting. It is

extracted below:

67. Proof of signature and handwriting of persons alleged to have

signed or written document produced : 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.

7.4 Sections 74 and 75 define public documents and private

documents respectively. They are extracted below:

74. Public documents - The following documents are public

documents -

(1) documents forming the acts or records of the acts -

(i) of the sovereign authority,

(ii) of official bodies and tribunals, and

(iii) of public officers, legislative, judicial and executive of any part

of India or of the Common Wealth or of a foreign country;

(2) public records kept in any State of private documents.

75. Private documents - All other documents are private.

8. A deed of sale is a conveyance. A deed of conveyance or other

document executed by any person is not an act nor record of an act
of any sovereign authority or of any official body or tribunal, or of
any public officer, legislative, judicial and executive. Nor is it a
public record kept in a State of any private documents. A sale deed
(or any other deed of conveyance) when presented for registration
under the Registration Act, is not retained or kept in any public
office of a State after registration, but is returned to the person who
presented such document for registration, on completion of the
process of registration, An original registered document Is not
therefore a public record kept in a state of a private document,
Consequently, a deed of sale or other registered document will not
fall under either of the two classes of documents described in
Section 74, as 'public documents'. Any document which is not a
public document is a private document. We therefore have no
hesitation in holding that a registered sale deed (or any other
registered document) is not a public document but a private
document.

This position is made abundantly clear in Gopal Das v. Shri

Thakurji AIR 1943 Privy Council 83, wherein the Privy Council
considering the question whether a registered receipt is a public
document observed thus:

It was contended by Sir Thomas Strongman for the respondents that

the receipt comes within para 2 of Section 74, Evidence Act, and was
a "public document"; hence under Section 65(e) no such foundation
is required as In cases coming within Clauses (a), (b) and (c) of that
section. Their Lordships cannot accept this argument since the
original receipt, of 1881 is not "a public record of a private
document". The original has to be returned to the party. A similar
argument would appear at one time to have had some acceptance in
India but it Involves a misconstruction of the Evidence Act and
Registration Act and later decisions have abandoned it.

(Emphasis supplied)

We may also refer to the following passage from Ratanlal's Law of

Evidence' (19th Edition page 237):

Public document, (clause (e)] - This clause is intended to protect the

originals of public records from the danger to which they would be
exposed by constant production in evidence. Secondary evidence is
admissible in the case of public documents mentioned in Section 74.
What Section 74 provides is that public records kept in any state of
private documents are public documents, but private documents of
which public records are kept are not in themselves public
documents. A registered document, therefore, does not fall under
either Clause (e) or (f). The entry in the register book is a public
document, but the original is a private document.

10. What then is a "public record, kept in any state of private

documents" referred to in Clause (2) of Section 74? The answer may
be found in the Registration Act, 1908,

10.1 When a document is presented for registration and the person

executing it appears and admits execution, Section 35 of the
Registration Act, requires the Registering Officer to register the
document as directed in Sections 58 to 61 of the said Act.

10.2 Section 51 relates to Register Books to be kept in the

registration offices. Relevant portions thereof extracted below:

51. Register-books to be kept in the several offices:

(1) The following books shall be kept in the several offices

hereinafter named, namely:

A. In all registration offices -

Book 1, "Register of non-testamentary documents relating to

immovable property".

Book 2, "Record of reasons for refusal to register".

Book 3, "Register of wills and authorities to adopt", and

Book 4, "Miscellaneous Register".

B. In the offices of Registrars -

Book 5, "Register of deposits of wills".

(2) In Book 1 shall be entered or filed all documents or memoranda

registered under Sections 17, 18 and 89 which relate to immovable
property, and are not wills.

XX XX XX XX

It is clear from Section 51 that all deeds relating to immovable

property of which registration is compulsory under Section 17 or of
which registration is optional under Section 18 (and the
orders/certificates/instruments enumerated in Section 89) are
entered or filed in Book 1 kept by the Registering Officers. The
word "entered or filed" in Book I means the verbatim copying of the
deed in the book or filing of a complete copy of the deed, with all
endorsements and certificates in, Book 1. In fact, Section 52 requires
that every document admitted to registration shall be copied in the
Book appropriated therefor.

10.3 Section 57 requires the Registering Officers to allow inspection

of Books No, 1 and 2 and indexes relating to Book No. 1 and to give
certified copies thereof. The relevant portion of the said Section is
extracted below:

(1) Subject to the previous payment of the fees payable in that

behalf, the Books Nos. 1 and 2 and the Indexes relating to Book No.
1 shall be at all time open to inspection by any person applying to
inspect the same; and, subject to the provisions of Section 62, copies
of entries in such books shall be given to all persons applying for
such copies.

XXX XXX XXX

All copies given under this section shall be signed and sealed by the
registering-Officer, and shall be admissible for the purpose of
proving the contents of the original documents.

(Emphasis supplied)

10.4 Section 60 requires the Registering Officer to endorse on the

document presented for registration, on completion of the
formalities of registration, a certificate containing the word
'registered'. Sub-section (2) of Section 60 provides thus:

60(2) Such certificate shall be signed, sealed and dated by the

registering officer, and shall then be admissible for the purpose of
proving that the document has been duly registered in manner
provided by this Act, and that the facts mentioned in the
endorsement, referred to in Section 59 have occurred as therein
mentioned.

(Emphasis supplied)

10.5 Section 61 deals with copying of endorsements and certificate

and return of document. It is extracted below:

(1) The endorsements and certificate referred to and mentioned in

Sections 59 and 60 shall thereupon be copied into the margin of the
Register Book, and the copy of the map or plan (if any) mentioned
in Section 21 shall be filed in Book No. 1.

(2) The registration of the documents shall thereupon be deemed

complete, and the document shall then be returned to the person
who presented the same for registration, or to such other person (if
any) as he has nominated in writing in that behalf on the receipt
mentioned in Section 52.
(Emphasis supplied)

11. It is clear from the above that Book 1 maintained in the

Registration Offices (a Register where all non-testamentary
documents relating to immovable property are copied, entered or
filed) is a public record kept in a State of private documents and
therefore a public document. When any person applies for the
certified copy of document registered in the office which is
entered/filed in Book 1, a certified copy of the document as
copies/filed in Book 1 is furnished to the applicant. Such certified
copy of any entries in that public record (Book 1) is a certified copy
of a public document. But such certified copy of the registered
document extracted from Book 1 is not itself a public document. It
is really a true copy of a copy (copy of original deed entered in Book
1).

12. We therefore answer points (i) and (ii) as follows:

(i) A Registered document (Deed of sale etc.) is not a public

document. It is a private document.

(ii) Book 1 kept in the Registration Offices under the Registration

Act, where the Registered documents (private documents) are
copied, entered or filed, is a public document.

(iii) A certified copy of a registered document, copied from Book 1

and issued by the Registering Officer, is neither a pubic document,
nor a certified copy of a private document, but is a certified copy of
a public document.

Re : Question (iii);

13. The next question is whether a certified copy of a public

document, issued by a registering officer, can be received in
evidence without any further proof.

14. We may refer to the relevant portions of Sections 76, 77 and 79 of

Evidence Act extracted below in this behalf:

76. 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 therefore, 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 copies so
certified shall be called certified copies.

77. Proof of documents by production of certified copies - Such

certified copies may be produced in proof of the contents of the
public documents or parts of the public documents of which they
purport to be copies.

79. Presumption as to genuineness of certified copies - The Court

shall presume to be genuine every document purporting to be a
certificate, certified copy or other document, which is by law
declared to be admissible as evidence of any particular fact and
which purports to be duly certified by any officer of the Central
Government or of a State Government....

15. We have already held that a certified copy of a registered

Instrument/document issued by the Registering Officer, by copying
from Book 1, is a certified copy of a public document. It can
therefore be produced in proof of the contents of the public
document or part of public document of which it purports to be a
copy. It can be produced as secondary evidence of the public
document (entries in Book I), under Section 65(e) read with Section
77 of the Act without anything more. No foundation need be laid
for production of certified copy of secondary evidence under
Section 65(e) or (f). But then it will only prove the contents of the
original document, and not be proof of execution of the original
document. (Vide Section 57(5) of Registration Act read with Section
77 of Evidence Act). This is because registration of a document is
proof that someone purporting to be 'X' the executant admitted
execution, but is not proof that 'X' executed the document, We will
elaborate on this aspect when dealing with Point No. (iv).

Re: Question (iv)

16. The next question is whether producing and making of a

certified copy of a sale deed, would amount to proving the sale-
deed itself. If not, what is its effect. We will first refer to the
decisions and Treatises, bearing on this aspect.

16.1. In Karuppanna Gounder v. Kolandaswami Gounder , a

Learned Single Judge of the Madras High Court (Govind Menon, J,
as he then was) held as follows:

Section 57 of the Indian Registration Act deals, among other things,

with the grant of certified copies, and Sub-section (5) lays down that
all copies given under that section shall be signed and sealed by the
registration officer and shall be admissible for the purpose of
proving the contents of the original documents. But the law is that
a certified copy of what has been copied in the books of registration
is admissible to prove the contents of the original document . only
when a case is made out for introduction of secondary evidence, i.e.
by proof of the loss of the original or where a original is withheld
by a party in whose possession it is or is presumed to be. In this
case the plaintiffs have done all they could by giving notice to
defendants 3 and 4 to produce the original which notice has not
been complied with. Therefore, the requisite essentials for the
adducing of secondary evidence have been properly complied with.
When once the case for the introduction of secondary evidence is
made out, certified copy got from the Registrar's office can be
admitted under Section 57, Sub-section (5) of the Indian
Registration Act without other proof than the Registrar's certificate
of the correctness of the copy and shall be taken as a true copy. It
seems to me that the plaintiffs have satisfied the Court that the
necessary prerequisites for the introduction of secondary evidence
as contemplated under Sections 65 and 66 of the Evidence Act have
been made out. When once it is proved that the party is entitled to
adduce secondary evidence, then the question arises. "What is the
mode of proof of the certified copy ?" As stated already under
Section 57(5) of the Indian Registration Act, a certified copy
obtained from a Registrar's office shall be admissible for the
purpose of proving the contents of the original document. That
means that the mere production of a certified copy without any
further oral evidence to support it would be enough to show what
the original document obtained. That a registration copy is the copy
of a public document contemplated under Section 74, Sub-section
(2) of the Indian Evidence Act, is indisputable and the copy of such
a document is a certified copy of a public document under Section
76 of the Indian Evidence Act.

16.2 In Padmanabhachari v. Annamraju Silapathirao 1954(2) Madras

Law Journal 75, the Andhra Pradesh High Court considered a
certified copy of mortgage bond dated 18-11-1876 (marked Ex. P/1).
In that case, before the trial commenced, the plaintiff had issued a
notice requiring defendants to admit the aforesaid mortgage deed.
On the said notice, the first defendant's counsel had made an
endorsement to the effect that the genuineness of the copy was
admitted, it was subsequently argued by the first defendant that
only the genuineness of the certified copy as a copy of the copy kept
in the Registrar's office was admitted, and that did not amount to an
admission that it was a true copy of the original and therefore the
plaintiff had to make out a case for the admission of the copy as
secondary evidence of the original. It was also contended that the
said admission did not absolve the plaintiff from proving the
execution of the mortgage deed. Considering the said submission,
K. Subba Rao, C. J. (as he then was) held as follows:

In my view, secondary evidence of the contents of Exhibit P-1 is

admissible both under Section 65(b) as well under Section 65(e). The
first defendant admitted the genuineness of the certified copy. That
is an ad mission-learned Counsel for the appellant does not dispute
this position of the existence, condition or contents of its original,
i.e. the copy of the mortgage document maintained in the
Registrar's Office. If so much was granted, Section 57(5) of the
Registration Act makes the said copy admissible for the purpose of
proving the contents of the original document itself. A combined
reading of the provisions of Section 65(b) of the Evidence Act and
Section 57(5) of the Registration Act may be put thus. By reasons of
the admission made by the first defendant of genuineness of the
certified copy within the meaning of Section 65(b) of the Evidence
Act, the certified copy became admissible in evidence as secondary
evidence under Section 65. By reason of Section 58(5) of the
Registration Act, the said copy becomes admissible for the purpose
of proving the contents of the original document itself. I would also
hold that the certified copy is also admissible under Section 65(e)
and (f) of the Evidence Act.

Secondary evidence may be given, if the original is a public

document within the meaning of Section 74. The definition of a
public document under Section 74 takes in public records kept in
any State of private documents. The Registrar's Office certainly
keeps a public record of all sale deeds registered in that office.
Section 76 enables an officer having the custody of a public
document to give a certified copy. The certified copy is therefore
admissible in evidence both under Section 65(e) and (f) of the
Evidence Act. The certified copy therefore is secondary evidence of
the public record of the mortgage deed kept in the Registrar's
Office. Again by invoking Section 57(5) the said copy becomes
admissible, for the purpose of proving the contents of the original
document itself. I would therefore hold that the certified copy is
admissible in evidence. But this will not dispense with the proof of
the execution of Exhibit P-I.

(Emphasis supplied)

16.2-3 A Division Bench of Nagpur High Court in Kashinath

Shankarappa v. The New Akot Cotton Ginning and Pressing Co.
Ltd. AIR 1951 Nagpur 255, while considering the question whether
a copy of a balance sheet sent to the Registrar of Companies after
the general meeting or the share holders of a Company is
admissible in evidence, observed thus:

Section 65, Evidence Act sets out the cases in which secondary
evidence is admissible. It was argued that this falls under Clause (e)
"when the original is a public document within the meaning of
Section 74" because Section 74 states that the following are public
documents, namely, "(2) public records kept in British India of
private documents". The argument is not well founded. Section 65
applies Section 74 only when the original is a public document. It
would, for example, be absurd to contend that a private sale deed or
mortgage can be proved by the production of a certified copy
obtained from the Sub-Registrar's office and nothing more.

(Emphasis supplied)

16.4 In Subudhi Padhan v. Raghu Bhuvan , a learned single Judge of

the Orissa High Court, held that marking of a certified copy of a
registered mortgage deed which is admissible as , secondary
evidence does not dispense with the proof of actual execution. He
observed:
Again by invoking Section 57(5) the said copy becomes admissible
for the purpose of proving the contents of the original document.
But this will not dispense with the proof of the execution of the
same...the certified copy of the mortgage-bond may be admissible in
evidence as secondary evidence but that does not dispense with the
proof of actual execution.

16.5 In Roman Catholic Mission v. State of Madras , the Supreme

Court held that -

Where the originals were not produced at any time nor was any
foundation laid for establishment of the right to give secondary
evidence, copies of the original not admissible in evidence.

16.6 Woodroffe and Ameer Ali's Law of Evidence (14th edition, Vol.
2) explains that matter thus:

Under this Clause (that is Clause (2) of Section 74), entries of the
copies of private documents in Book 1, 3 and Book 4 of the
Registration Office being public records kept of private documents
are public documents, and as such may be proved by certified
copies, that is certified copies may be offered in proof of those
entries. But neither these entries nor certified copies of these entries,
are admissible in proof on the contents of the original documents
so recorded unless secondary evidence is allowable under the
provisions of this Act. (at page 1710).

a registered deed of sale is not a document of which a certified copy

is permitted by law to be given in the first instance without having
been introduced by other evidence. Section 57 of the Registration
Act only shows that when secondary evidence has in any way been
introduced, as by proof of the loss of the original document, a copy
certified by the Registrar shall be admissible for the purpose of
proving the contents of the original; that is, it shall be admitted
without other proof than the Registrar's certificate of the correctness
of the copy, and shall be taken as a true copy, but that does not
make such a copy of a document which may be given in evidence
without other evidence to introduce it...and although such a copy
may be taken as a correct copy of some document registered in the
office, this circumstance does not make that registered document
evidence or render it operative against the persons who appear to
be affected by its terms. A document registered in and brought
from a public registry office, requires to be proved when it is
desired that it should be used as evidence against any party who
does not admit it quite as much as if it came out of private custody,
(at page 1612).

17. The position therefore is that a certified copy of a sale deed

issued by the Registration Officer under the Registration Act can be
produced and marked as secondary evidence of a public document
(that is Entries in Book 1 maintained under Section 51 of the
Registration Act containing the copy of the registered document).
Such certified copy issued by the Registration Officer in view of the
certificates copied therein and the certificate made while issuing the
certified copy will prove (i) that a document has been presented
before the Registration Officer for registration; (ii) that execution
had been admitted by the person who claimed to be the executant
of the document and (iii) that the document was thereafter
registered in the Registration Office and entered (copied) in Book 1.
It is not however proof of the fact that original sale deed was duly
executed by the actual person described as Executant. Production of
a certified copy of a public document under Section 65(e) or
production of a certified copy under Section 65(f) is completely
different from production of a certified copy as secondary evidence
of a private document (for eg, a sale deed under clauses (a), (b) and
(c) of Section 65.

18. Proving execution of a registered sale deed (or any other

registered document which is not required by law to be attested)
has two steps. The first step is production of the original sale deed
or lay the foundation for letting in secondary evidence of the sale
deed, byway of certified copy of the sale deed, by showing the
existence of any of the circumstances mentioned in clauses (a), (b)
and (c) of Section 65. In other words, a certified copy can be offered
as secondary evidence of the original sale deed under Clause (a) of
Section 65, by establishing that the original is in the possession or
power of the person against whom the document is sought to be
proved, or in the possession or power of any person out of reach of
or not subject to the process of the Court, or in the possession of any
person who is legally bound to produce it, and such person (of the
three categories) does not produce it in spite of notice under Section
66 of the Act. A certified copy of the sale deed can also be offered as
secondary evidence under Clause (c) of Section 65, by showing that
the original is 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).
Lastly a certified copy can be offered as second evidence under
Clause (b) of Section 65, where the existence, condition or contents
of the (sic) has been admitted in writing by the person against
whom it is proved or by his representative in interest, and such
admission is proved.

18.1 The second step is to prove the execution of the deed (whether
what is produced in the original or certified copy or other
secondary evidence thereof given under Clause (a), (b) or (c) of
Section 65) as required by Section 67 of the Act, where the
document is not one which is required by law to be attested or as
required by Section 68 of the Act where the document is one which
by law is required to be attested. This is because registration is not
proof of execution. A private document cannot be used in evidence
unless its execution is admitted by the party against whom it is
intended to be used, or it is established by proof that it is duly
executed. Due execution is proved by establishing that the signature
(or mark) in token of execution was affixed to the document by the
person who is stated to have executed the document. This is
normally done either (i) by examining the executant of the
document; or (ii) by examining a person in whose presence the
signature/mark was affixed to the document; or (iii) by referring the
document to a handwriting expert and examining such expert; or
(iv) by examining a person acquainted with handwriting/signature
of the person who is supposed to have written/signed the
document; or (v) by requesting the Court to compare the signature
of the executant in the document with some admitted signature of
the person shown as executant; or (vi) by proving admission by the
person who is said to have signed the document, that he signed it.

18.2 If the person producing the certified copy of a registered

instrument, without establishing the existence of any of the grounds
under Clause (a), (b) or (c) of Section 65, seeks to mark the certified
copy, then it will not be secondary evidence of the original sale
deed, but only be secondary evidence of the entries in a public
document, that is the entries in Book 1 in the Registration Office
which issued the certified copy. Such certified copy marked without
laying foundation for receiving secondary evidence, though
admissible for the purpose of proving the contents of the original
document, will not be proof of execution of the original document.

18.3 Certain amount of confusion exists because a certified copy can

be produced as secondary evidence either under clauses (e) and (f)
of Section 65 or under clauses (a), (b) or (c) of Section 65. But the
difference is that a certified copy is the only mode of secondary
evidence that is permissible in cases falling under clauses (e) or (f)
of Section 65. But in the cases falling under clauses (a), (b) or (c), the
secondary evidence can be a certified copy in the case of a
registered instrument or by other modes described in Section 63 in
regard to unregistered documents. Be that as it may.
19. We may summarize the position thus:

(i) Production and Marking of a certified copy as secondary

evidence of a public document under Section 65(e) need not be
preceded by laying of any foundation for acceptance of secondary
evidence. This is the position even in regard to certified copies of
entries in Book I under Registration Act relation to a private
document copied therein.

(ii) Production and marking of a certified copy as secondary

evidence of a private document (either a registered document like a
sale deed or any unregistered document) is permissible only after
laying the foundation for acceptance of secondary evidence under
Clause (a), (b) or (c) of Section 65.

(iii) Production and marking of an original or certified copy of a

document does not dispense with the need for proof of execution of
the document. Execution has to be proved in a manner known to
law (Section 67 and 68 and ensuing sections in chapter V of
Evidence Act).

Position regarding conflicting decisions of this Court:

20. In Jagannath Pershad Nigam (Supra) (S. A. No. 91/1970 decided

on 7-1-1977), the trial Court had held that a mortgage deed is a
public document and a certified copy of it is therefore admissible.
This Court held that the mortgage deed whether registered or
unregistered is a private document. It further held that a certified
copy of the mortgage deed cannot be admitted in proof of the
transaction or the deed, unless further evidence is given to prove
due execution and attestation of the mortgage (Note : Mortgage
deed is a document requiring attestation under Section 59 of the
Transfer of Property Act, whereas sale-deed is not a document
requiring attestation).

20.1. In Bhagwat Saran (supra), another Learned single Judge held

thus:

Merely by filing a certified copy of the sale deed though they may
be permitted, they cannot be proved unless the originals are called
for.

20.2. In Gopal Sharma (Supra), another Learned single Judge

following the decision in Jaganath Prashad Nigam held that
certified copies of private documents were not public documents
and therefore certified copies could not be accepted in secondary
evidence.

20.3. These three decisions make it clear that a registered sale deed
or mortgage deed will be a private document and not a public
document.

21. In Vasudeo's (supra), a Learned single Judge observed thus:

It is also not disputed that the sale deeds were registered

documents and certified copies thereof were filed. In AIR 1979
Gauhati 14, it was held:

A sale deed is a private document, but the record of the sale deed
kept in the office of the Sub-Registrar is a public record of that
private document and hence it falls within the category of 'Public
document'. Therefore, to prove the document, certified copy of the
deed is admissible. That apart when it is admitted without objection
Court cannot go behind that order.

I have already said earlier that the said two sale deeds were not the
basis of title or the basis of suit filed by the plaintiffs and plaintiffs
did not derive their title through those sale deeds. The result is that
the lower Court did not commit any mistake in overruling the
objection raised by the revisionists. If the documents were not the
basis of suit or the basis of the title to which the plaintiffs relied then
certainly certified copies of any sale deed could be used only for
collateral purposes and it did not require that strict proof and the
documents were not private documents.

A careful reading of the said decision shows that the Learned single
Judge did not hold that a registered sale deed is a public document.
On the other hand, he followed the judgment of the Gauhati High
Court where it is held that an original sale-deed is a private
document.

22. In Nawab Saheb 2003 AIHC 544 (supra), a learned single Judge
however proceeded on an erroneous assumption that Vasudeo had
held that a registered sale deed is a public document under Section
74 of the Evidence Act. The learned single Judge further held as
follows:

The registered sale deed was sought to be brought on record as an

additional evidence. Undoubtedly it is a certified copy of the sale
deed and, therefore, it is a public document. Hence, it can be
accepted as evidence.

The above observations make it clear that the Learned single Judge
proceeded on the basis that a registered sale-deed is a public
document. He also proceeded on the assumption that a certified
copy of a sale deed is also a public document. Both these
assumptions are erroneous and the said decision, to that extent, is
not good law.

Re. Point (v)

23. In this case, the two reasons given by the trial Court for
permitting the plaintiff in the suit to let in secondary evidence by
producing the certified copy of the sale deed are unsustainable in
law. The first is the assumption by the learned trial Court that the
original sale deed is a public document and therefore the certified
copy there of can be marked as secondary evidence under Section
65(e), as already stated above, is unsustainable in law.

24. Similarly, the ground that obtaining the original from the record
of F. A. No. 337/ 2003 may cause some delay and therefore certified
copy can be admitted is also untenable. Where the original is not
lost or misplaced and is admittedly available in the record of the FA
No. 337/2003, steps ought to have been taken to secure the
production of the original. In Gopal Sharma (Supra), a learned
single Judge of this Court rightly held that "when the original
document not only exists but also available, allowing of the prayer
only on the ground that summoning of the document would be
time consuming, cannot be held to be a valid ground for accepting
the document as secondary evidence...." The order under challenge
is therefore unsustainable.

25. In a suit for ejectment filed by the purchaser of a property

against the tenant, if the tenant admits that his landlord has
executed a sale deed in favour of a purchaser (Present landlord) in
regard to the property in his occupation, it may be sufficient for the
present landlord to merely mark the original deed or a certified
copy of the sale deed to prove the contents of the sale-deed. On the
other hand, if the tenant denies the execution of the deed of sale by
his landlord in favour of the person filing the suit for ejectment as
purchaser, mere production and marking of the original or certified
copy of the sale deed will not be sufficient to prove of the sale deed.
In that event, as noted above, it will be merely proof of the fact that
an original document was registered in the Registration Office, The
sale will have to be established by production of the original sale
 deed, or a certified copy after laying foundation for receipt of
secondary evidence under Clauses (a) or (b) or (c) of Section 65, and
then establishing the execution of the sale deed.

Conclusion

26. At this stage, learned Counsel for the respondent submitted that
it is also the case of the respondent that the petitioners/tenants had
clearly admitted in writing (in the suit filed by them for specific
performance) that a sale deed was executed by Ramdas and others
in favour of the Respondent; and that in view of this admission, the
case would fall under Clause (b) of Section 65 enabling him to let in
secondary evidence. We, however, find that the alleged written
admission (Plaint in the specific performance suit) was not
produced and there is no material to decide whether the matter
would fall under Section 65(b). Further, that is not the ground on
which the trial Court allowed the application of the respondent
herein to let in secondary evidence.

It is open to the respondent to place material to show that the case

would fall under Clause (b) in which even he may still be entitled to
give secondary evidence in regard to sale deed. Alternatively, it is
open to her to take steps to secure the original,

27. We therefore set aside the order dated 22-2-2005 of the trial
Court passed in Civil Suit No. 423-A/2002 (new No. 20-A/2004) and
remit the matter for fresh consideration of the application in
accordance with law.

IN THE PUNJAB & HARYANA HIGH COURT

Equivalent Citations : 2004 (1) CCC 170 : 2004 (1) ICC 154 : 2004 (1) LJR 851
: 2004 (1) Marr.LJ 576 : 2003 (3) PLR 840 : 2003 (4) RCR(Civil) 29
[Before :M.M.Kumar]

Ramesh Chander
versus

Budha Singh
Case No. : Regular Second Appeal No. 1201 of 2003

Date of Decision : 03/07/2003

S. 115 -- Estoppel -- There is no presumption that an attesting

witness of a document must be assumed to be aware of its
contents-However, its execution is significant and its knowledge
cannot be denied by marginal witness in case of a sale deed.

1999 Legal Eagle 53

IN THE GAUHATI HIGH COURT

Equivalent Citations : 2000 (3) GLJ 44 : 2000 (2) GLT 605

[Before :J.N.Sarma]

Laisangbam Bimol Singh

versus

Konsam Babulen Singh

Case No. : First Appeal No. 2 of 1988

Date of Decision : 11/02/1999

Advocates Appeared :
R.K.Nokulsana Singh, Ch.Komal Singh

Statutes Referred :

1. Evidence Act -- S.90

Evidence Act,1872 -- Section 90 -- Presumption as to documents 30 years

old -- If the method of proof mentioned under the provision is strictly to
be followed in such cases, a great hardship would be caused and a
number of genuine documents will remain unproved -- Section 90 of the
Evidence Act gives the power to the Court to draw presumption about
the document which is 30 years old -- No doubt, presumption of the
section 90 is rebuttable but in such a case burden will be on the
defendant -- That being the position of law and the document having
been introduced in evidence without objection the trial Court was wrong
in holding that Ext A5 was not proved -- Held, that Ext A5 the sale deed
was properly proved and I set aside the finding of the trial Court on this
point. [Para 10]

Proof of signature -- Once witness stated that he does not know

who prepared the document, even on exhibited document could
not be base for judgment.

THE INDIAN EVIDENCE ACT, 1872

34. 1[Entries in books of account including those maintained in an

electronic form] when relevant.—1[Entries in books of accounts including
those maintained in an electronic form], regularly kept in the course of business,
are relevant whenever they refer to a matter into which the Court has to inquire,
but such statements shall not alone be sufficient evidence to charge any person
with liability.
Illustration
A sues B for Rs. 1,000, and shows entries in his account-books showing B to be
indebted to him to this amount. The entries are relevant, but are not sufficient,
without other evidence, to prove the debt.
COMMENTS
Admissibility
Entries in account books regularly kept in the course of business are admissible
though they by themselves cannot create any liability; Ishwar Dass v. Sohan
Lal, AIR 2000 SC 426.
Unbound sheets of paper are not books of account and cannot be relied upon;
Dharam Chand Joshi v. Satya Narayan Bazaz, AIR 1993 Gau 35.
Books of account being only corroborative evidence must be supported by other
evidence; Dharam Chand Joshi v. Satya Narayan Bazaz, AIR 1993 Gau 35.
Section 34 -- Book of Account -- Relevant and admissible in absence of
the writer if court satisfied the presence of writer can not be secured in
the court -- But these books could not be a sole base for judgment and
required corroboration.
-------------------------
1. Subs. by Act 21 of 2000, sec. 92 and Sch. II, for “Entries in the books of
account” (w.e.f. 17-10-2000).
-------------------------

that under section 67 if a document is alleged to be signed by any

person, the signature of the said person must be proved to be in his
hand writing, and for proving such hand writing under section 5
and 47 the opinions of experts and/or person acquainted wit i the
hand writing of the person concerned are made relevant.

6. A document before exhibited must be proved in accordance with

section 67 of the Evidence Act. It can be so done by the writer of the
document or by a person acquainted with his hand writing or on
the basis of opinion of expert. in the case in hand, the documents,
more particularly the ledger, chailan and the bills were not duly
proved as P. \V. I. has clearly stated that he does not know who
prepared these documents, and as such as the judgment is based on
these documents it is not sustainable in law. Mr. Kalita, learned
counsel for respondent has urged that from the above statement
made by P.W.I in his cross-examination it can be concluded that he
did not know the hand writing of the writer. It may be mentioned
that in spite of all efforts the original records could not be produced
at the time of hearing as it is not traceable in the Courts below. The
copies of the evidence obtained by the learned counsel from the
Court below have been produced before this Court. According to
Mr. Kalita, these copies may not reflect the correct position. It may
be stated that this second appeal is pending since 1980 and as the
original record is not available 110 purpose will be served by
keeping this case pending. On perusal of the judgments of the
learned Court below I do not find any evidence to show that these
documents were proved as required under the law.

Apex Court in Chandradhar Goswami & others vs. Gauhati Bank

Ltd., AIR 1976 SC 1058 held that from a bare perusal of section ?4 it
is clear that no person can be charged with liability merely on the
basis of entries in books of accounts, even when such books of
accounts are kept in regular course of business. There has to b;
further evidence to prove payment of the money which may appear
in books of accounts in order that a person may be charged with
liability thereof unless of course the person accept the correctness of
the books of accounts. In Ram Janki Devi & another v«. M/S Juggilal
Kamlapat, AIR 1971 SC 2551 it was held that such books of accounts
may be proved even in absence of the writer en proof of his proper
maintaining and keeping and of impossibility of arranging presence
of its writer.

This Court in Suklal Dev Barman vs. Kala Ram Malakar, AIR 1976
Gauhati 103 held that though statement made by a person in his
own favour, whether oral or documentary is normally not
admissible in evidence, the entries in the books of accounts if
proved to have been regularly kept in due course of business arc
admissible under section 34. In D. Agarwalla vs. B. Devi Agarwalla,
1990 (1) GLJ 219 reiterate the law laid down by the Apex Court that
entries in the books of accounts regularly kept in course of business
are relevant. But such statement shall not alone be sufficient to
charge any person with liability and that in absence of the writer,
such books of accounts can be held to have been proved if these
books are maintained regularly.

If books of accounts of a particular business are kept in regular

course of business these are supposed to be accurate and there is
strongest improbability of untruth of any entries made in such
books of accounts. In view of the above position though statement
made by a person in his own favour is normally not admissible in
evidence, entries in the books of accounts have been made
admissible and relevant under section 34 of the Evidence Act. To get
benefit of this section 34 it must be proved that the books of
accounts were kept in the regular course of business and the books
of accounts have to be proved properly. Such books of accounts can
be held to be proved even in absence of the writer provided the
Court is satisfied that it is impossible to bring the writer of such
books of accounts. But merely on the basis of the entries of books of
account which are kept in regular course of business, a person is not
entitled to get a decree unless further evidence is adduced in
support of the transaction.

12. In the casein hand except the statement of P. W. 1 no other

evidence is available in support of the claim of the plaintiff. I have
already held that the books of accounts were not properly proved.
That apart, there is no evidence and in fact P. W. 1 has also not
stated that these books of accounts were kept in regular course of
business. I, therefore, hold that on the basis of the documents
produced before the Court the plaintiff is not entitled to get a decree
as per law and as such the impugned decree is bad in law.

In the present case, the appellant has laid the foundation for leading
the secondary evidence. Consequently, under Section 65(c) of the
 Evidence Act, if the original document has been lost, secondary
evidence of the contents of the document was admissible in
evidence. Quite apart from the aforesaid, the certified copy of the
lease deed was admissible in evidence also under Section 65(f). The
certified copy was issued by the Sub Registrar under Section 57(5)
of the Registration Act which is admissible for the purpose of
proving the contents of the original document. For facility, Section
57(5) of the Registration Act is quoted herein under:-

"57(5) All copies given under this section shall be signed and sealed
by the registering officer, and shall be admissible for the purpose of
proving the contents of the original document."

20. Consequently, the Court is of the opinion that the certified copy
of the original lease-deed, issued by the Sub Registrar, under
Section 57(5) of the Registration Act was admissible for the
purposes of proving the contents of the original document and
could be received as secondary evidence of the original document
under Section 65 of the Evidence Act.

In Kalyan Singh vs. Smt. Chhoti and others, AIR 1990(1) SC 396, the
Supreme Court held that a certified copy of a registered sale-deed
could be produced as secondary evidence in the absence of the
original sale-deed. The Supreme Court further held that the
correctness of the certified copy referred to in Clause (1) of Section
63 of the Evidence Act is presumed under Section 79 of the said Act.

ORDER VII
PLAINT

11. Rejection of plaint

The plaint shall be rejected in the following cases:—

(a) where it does not disclose a cause of action;

(b) where the relief claimed is undervalued, and the plaintiff, on being required by
the Court to correct the valuation within a time to be fixed by the Court, fails to do
so;

(c) where the relief claimed is properly valued, but the plaint is returned upon
paper insufficiently stamped, and the plaintiff, on being required by the Court to
supply the requisite stamp-paper within a time to be fixed by the Court, fails to do
so;

(d) where the suit appears from the statement in the plaint to be barred by any law;
1
[(e) where it is not filed in duplicate;
3
[(f) where the plaintiff fails to comply with the provisions of rule 9];
2
[Provided that the time fixed by the Court for the correction of the valuation or
supplying of the requisite stamp-paper shall not be extended unless the Court, for
reasons to be recorded, is satisfied that the plaintiff was prevented by any cause of
an exceptional nature from correcting the valuation or supplying the requisite
stamp-paper, as the case may be, within the time fixed by the Court and that refusal
to extend such time would cause grave injustice to the plaintiff.]

It is well settled that mere marking of a document as an exhibit

does not dispense with it's prove. No witnesses, who know the
factum of execution of sale deed, were produced or examine by the
plaintiff before the learned trial court. In the reported case of
Bhupnarayan Singh v. Piloo Mura, 1998 (4) GLT476, it was held that
when a deed is challenged as false and fictitious, the execution of
the deed must be proved as required under section 67 of the
Evidence Act. In another case Sabha Ram Das v. Makendra Das,
2000 (1) GLT 623 , the execution of the sale deed in favour of
defendant was denied by the plaintiff. It was also held that it was
necessary as required under section 67 of the Evidence Act, for the
plaintiff to prove the execution of the sale deed. Requirement of
section 67 must be satisfied in the letter and spirit by tendering
evidence for proving the execution of the document and signatures
of those who have signed it.
 11. In the case of Mobarik Ali Ahmed v. The State of Bombay, AIR
1957 SC 857 , it was held that the proof of genuineness of a
document is proof of the authorship of the document and is proof
of a fact like that of any other fact. 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
signature by one of the modes provided in sub-sections (45) and
(47) of the Evidence At. The scribe can prove the contents of the
document.

amendment that is brought to the Registration Act in 1986, whereby

even the past transaction becomes registerable

Then the next question that falls for consideration is whether

these can be used for any collateral purpose. The larger Bench of Andhra
Pradesh High Court in Chinnappa Reddy Gari Muthyala Reddy v.
Chinnappa Reddy Gari Vankat Reddy , AIR 1969 A.P. (242) has held that
the whole process of partition contemplates three phases i.e. severancy of
status, division of joint property by metes and bounds and nature of
possession of various shares. In a suit for partition, an unregistered
document can be relied upon for collateral purpose i.e. severancy of title,
nature of possession of various shares but not for the primary purpose i.e.
division of joint properties by metes and bounds. An unstamped
instrument is not admissible in evidence even for collateral purpose, until
the same is impounded. Hence, if the appellants/defendants want to mark
these documents for collateral purpose it is open for them to pay the stamp
duty together with penalty and get the document impounded and the Trial
Court is at liberty to mark Exhibits B-21 and B- 22 for collateral purpose
subject to proof and relevance.
It is well settled that the nomenclature given to the document is not
decisive factor but the nature and substance of the transaction has to be
determined with reference to the terms of the documents and that the
admissibility of a document is entirely dependent upon the recitals
contained in that document but not on the basis of the pleadings set up by
the party who seeks to introduce the document in question.

A thorough reading of both Exhibits B-21 and B-22 makes it very clear that
there is relinquishment of right in respect of immovable property through a
document which is compulsorily registerable document and if the same is
not registered, becomes an inadmissible document as envisaged under
Section 49 of the Registration Act. Hence, Exhibits B-21 and B-22 are the
documents which squarely fall within the ambit of section 17 (i) (b) of the
Registration Act and hence are compulsorily registerable documents and
the same are inadmissible in evidence for the purpose of proving the
factum of partition between the parties.

Rule of evidence -- Unstamped document -- Evidentiary value and

condition precedent qua its admissibility even for collateral purpose --
As observed,

“An unstamped instrument is not admissible in evidence even for

collateral purpose, until the same is impounded. Hence, if the
appellants/defendants want to mark these documents for collateral
purpose it is open for them to pay the stamp duty together with penalty
and get the document impounded and the Trial Court is at liberty to
mark Exhibits B-21 and B- 22 for collateral purpose subject to proof and
relevance.” [Para 18]

Registration Act, 1908 -- Sections 17(b) & 49 -- Civil Law -- Registration of

document -- Nature of document -- Relevant factors -- Well settled that,
nomenclature of the document is not decisive factor, but the nature and
substance of the transaction has to be determined with reference to the
terms of the documents -- Appellant-defendant-1 sought to Mark
Exhibits B-21 and B-22, respectively, Deed of Memorandum', purportedly
evidencing earlier partition between parties, and an Agreement between
them -- On reading of both, it is found that there is relinquishment of
right in respect of immovable property through a document which is
compulsorily registerable document and if the same is not registered,
becomes an inadmissible document as envisaged under Section 49 of
Registration Act. [Paras 15 & 17]

(C) Registration Act, 1908 -- Sections 17(b) & 49 -- Civil Trial -- Rule of
evidence -- Documentary proof -- Compulsorily registerable document --
Un-registered and un-stamped document -- Admissibility -- Section
17(1)(b) of Registration Act mandates that any document which has the
effect of creating and taking away rights in respect of an immovable
property must be registered and Section 49 of the Act imposes bar on the
admissibility of an un-registered document and deals with the
documents that are required to be registered under Section 17 of the Act -
- Well settled that, admissibility of a document is entirely dependent
upon the recitals contained in that document but nor on the basis of the
pleadings set-up by the party who seeks to introduce the document in
question -- Exhibits B-21 and B-22, are documents which squarely fall
within ambit of Section 17(1)(b) of Registration Act and hence are
compulsorily registerable documents and the same are inadmissible in
evidence for the purpose of proving the factum of partition. [Paras 15 to
17].

Secondary Evidence -- Photostat copy -- When a party seeks to produce

Photostat copy it has to lay foundational facts by proving that original
document existed and is lost or is in possession of opposite party who
failed to produce it.

Secondary Evidence -- Photostat copy -- Allowing production of

Photostat copy in evidence does not amount to its proof -- Its probative
value has to be proved and assessed independently.

Evidence Act, 1872, Section 65 -- Secondary Evidence -- Photostat copy --

Admissibility -- Held, Photostat copy of a document can be allowed to be
produced only in absence of original document -- When a party seeks to
produce Photostat copy it has to lay foundational facts by proving that
original document existed and is lost or is in possession of opposite
party who failed to produce it -- Mere assertion of party is not sufficient
to prove these foundational facts -- Accuracy of photostat copy shall be
established on oath to satisfaction of Court by person who prepared such
copy or who can speak of its accuracy. (Para 21).

21. The principles culled out from the aforesaid discussion are summarized
below:

a) Photostat copy of a document can be allowed to be produced only in

absence of original document.

b) When a party seeks to produce Photostat copy it has to lay the

foundational facts by proving that original document existed and is lost or
is in possession of opposite party who failed to produce it. Mere assertion
of the party is not sufficient to prove these foundational facts.

c) The objections as to non existence of such circumstances or non existence

of foundational facts must be taken at earliest by the opposite party after
the photostat copy is tendered in evidence.
d) When the opposite party raises objection as to authenticity of the
Photostat copy its authenticity has to be determined as every copy made
from a mechanical process may not be accurate. Both the requirements of
clause (2) of section 63 are to be satisfied.

e) Allowing production of Photostat copy in evidence does not amount to

its proof. Its probative value has to be proved and assessed independently.
It has to be shown that it was made from original at particular place and
time.

f) In cases where the Photostat copy is itself suspicious it should not be

relied upon. Unless the court is satisfied that the Photostat copy is genuine
and accurate it should not be read in evidence.

g) The accuracy of photostat copy shall be established on oath to the

satisfaction of court by the person who prepared such copy or who can
speak of its accuracy.

22. The abovesaid principles must be followed by the courts while

admitting a photostat copy as secondary evidence and assessing its
probative value.

23. In the case in hand, certified copy of the alleged Will dated 09.09.1992 is
sought to be produced by way of secondary evidence. The trial Court after
considering the explanation given by respondents regarding loss of the
alleged Will dated 09.09.1992 and appreciating material on record has
allowed the proof of same by way of secondary evidence, subject to proof
of existence and loss.
24. In view of above, there is no illegality or perversity in the impugned
order in so far as it allows respondents to lead secondary evidence in
respect of alleged Will dated 09.09.1992. Respondents would be afforded an
opportunity to prove existence and loss of the alleged Will dated 09.09.1992
and the petitioner shall also be afforded an opportunity to rebut it.
Thereafter, the trial Court shall decide as to whether the certified copy of
the alleged Will dated 09.09.1992 shall be admitted as secondary evidence.
Its probative value shall be independently assessed by the trial Court in
accordance with the settled principles of law.

It must be taken to be well settled universal rule in all civil cases that he
who makes an allegation in his plaint must prove it. The aim of proving
contents of documents are contemplated under Sections 61 to 66 of the
Evidence Act, whereas mode of proving of genuineness of documents are
provided under Sections 45, 47, 67 to 73 of the Act. Similarly the
provisions relating to burden of proof are dealt with from sections 101 to
114-A of the Act.

The aforesaid kind of oral evidence can be classified as non-expert

evidence. Non-expert oral evidence is better in comparison to the expert
evidence provided the person or persons deposing to prove genuineness
of the signature or thumb impression are above bias and suspicion.
Strength of such oral evidence varies with the degree of the persons
impartially deposing before a court of law about the genuineness of
signatures or thumb impressions especially when the execution of the
document and signatures or thumb impressions made by the alleged
makers are denied and asserted to be forged. In such cases expert
evidence is the only surest way to ascertain the truth about the signature
or thumb impression.
Art. 54 -- Suit for specific performance of contract -- Under Art. 54,
limitation for a suit for specific performance of contract begins to run
from the date fixed for performance or if no date is fixed, when the
plaintiff has noticed that performance is refused unless the parties by an
agreement extended the fixed time.

That signatures or thumb Impressions on documents can be proved by

such persons before whom signatures or thumb impressions are made.
Such witnesses are called attesting witnesses. Another mode to prove
signatures or thumb impressions or other impressions of like nature under
the aforesaid Sections is through communication by a person when another
person has received communication purported to be written by that person
in answer to documents in the ordinary course of business habitually.

The aforesaid kind of oral evidence can be classified as non-expert evidence

to establish the signature or thumb impression on a document produced in
evidence. It is true that this kind of non-expert oral evidence is better in
comparision to the expert evidence provided the person or persons
deposing to prove genuineness of the signature or thumb impression are
above bias and suspicion. I am of the view that the strength of such oral
evidence varies with the degree of the persons impartiality deposing before
a court of law about the genuineness of signatures or thumb impressions of
a person or persons on documents especially when the execution of the
document and signatures or thumb impressions made by its alleged
makers are denied and asserted to be forged. To my mind, in such cases
expert evidence is the only surest way to ascertain the truth about the
signature or thumb impression of a person or persons on a document
produced for evidence before a Court.

Proof of cheque is not proof of availability of amounts in account of buyer --

Copy of bank account not filed to prove her readiness -- No Income Tax Returns
or any other documents filed to show financial capacity --
Respondent/plaintiff/buyer had no financial capacity.

Mode of proof -- Document was exhibited -- It was not proved that

document was signed/executed by executant -- Executant never produced
in court -- Only scribed was produced -- No reliance can be placed on
that document -- Mode of proof is not dispensed with simply because a
document has been exhibited on record.

Sections 47 and 67 -- Proof of signature -- There are various methods of

proving any person’s signature.

Section 47 of the Indian Evidence Act describes the various methods of

proving the handwriting of a person and if this provision is read Along
with the Section 67 a reasonable inference can be drawn that the signatures
of a person on a document may be proved either by examining the pe:son
in whose presence the signatures were so affixed or else by examining
another person who is acquainted with the handwriting of the executant of
the document and is able to prove his signatures of his own.

Illustration
The question is, whether a given letter is in the underwriting of A, a merchant in
London.
B is a merchant in Calcutta, who has written letters addressed to A and received
letters purporting to be written by him. C is B's clerk, whose duty it was to
examine and file B's correspondence. D is B's broker, to whom B habitually
submitted the letters purporting to be written by A for the purpose of advising him
thereon.
The opinions of B, C and D on the question whether the letter is in the handwriting
of A are relevant, though neither B, C nor D ever saw A write.
Order 13 Rule 2 -- Production of documents -- Permission sought for
leading secondary evidence -- Photocopy of agreement produced by the
plaintiff -- Defendant alleges it to be fabricated -- Application dismissed
-- Held, the trial court has erred in deciding the application without
giving opportunities to the parties.
Sections 67 and 68 -- Document of transfer -- No presumption that
attesting witnesses of a document must be assumed to be aware of its
contents -- Illiterate person who puts his thumb impression as an attestor
on a document -- Unless it is established that recitals in the document
were read out and explained to the said person -- He cannot be deemed
to have assented to them -- Rule is neither a presumption of law nor an
irrebuttable presumption -- It is more in nature of presumption of fact
whose efficacy and evidentiary value depends upon the facts of the
given case. (1989) 2 SCC 630 , (1996) 7 SCC 101 and (2003) 8 SCC 745
followed.
In the case of smt. Chandrakantaben vs. Vadilal bapalal modi, (1989) 2 scc
630, it has been held by the apex court that there is no presumption that the
attesting witnesses of a document must be assumed to be aware of its
contents. In the case of badri narayan and others vs. Rajabagyathammal
and others, (1996) 7 scc 101, the apex court has held that the predecessor -
in - interest of the respondents was an illiterate person. He put his thumb
impression as an attestor on exh. A - 2. In the circumstances, the learned
single judge held that unless it is established that the recitals in the
documents were read out and explained to the said person, he cannot be
deemed to have assented to them. In case of attesting by a person having
interest in the subject - matter of the document of transfer must be deemed
to have affirmed the contents of the documents prima facie. In other
words, the rule stated is not a presumption of law nor an irrebuttable
presumption. It is more in the nature of presumption of fact, whose efficacy
and evidentiary value depends upon the facts of the given case.

Attestation -- Proof of -- Production of attesting witness in court to prove

the attestation is necessary -- No presumption in favour of attestation can
be drawn by mere signatures of witnesses at the foot of the document.
One could not presume from the mere signatures of witnesses appearing
at the foot of the endorsement of registration that they had appended
their signatures to the document as attesting witnesses or can be
construed to have done so in their capacity as attesting witnesses. Section
68, Indian Evidence Act requires an attesting witness to be called as a
witness to prove the due execution and attestation of the will. This
provision should have been complied with.

COMMENTS
Endorsement by Sub-Registrar
Endorsement by Sub-Registrar that executant had acknowledged execution before
him amounts to attestation; Pentakota Satyanarayana v. Pentakota Seetharatnam,
AIR 2005 SC 4362.
Scope
One of the requirements of due execution of will is its attestation by two or more
witnesses which is mandatory. Section 68 speaks of as to how a document required
by law to be attested can be proved. It flows from this section that if there be an
attesting witness alive capable of giving evidence and subject to the process of the
Court, has to be necessarily examined before the document required by law to be
attested can be used in an evidence; Janaki Narayan Bhoir v. Narayan Namdeo
Kadam, AIR 2003 SC 761.

Civil Procedure Code -- Order 14 -- Rule 15 -- Court after framing the

issues can recast the issues and before commencement of trial it can
again recast such recasted issue -- the Court is also within its powers to
shift the burden of proof.

Section 65 IEA
: COMMENTS
When attesting witness not necessary
In case the document is registered then except in the case of a will it is not
necessary to call an attesting witness, unless the execution has been specifically
denied by the person by whom it purports to have been executed; Ishwar Dass Jain
(dead) through L.R. v. Sohanlal (dead) by LRs, AIR 2000 SC 426.

Section 73 -- Code of Civil Procedure, 1908 -- Order 18 Rule 1 & Section

151 -- Production and proof of additional evidence -- To prove evidence
as to signature of defendant -- At the stage of final arguments, the
plaintiff moved Miscelleneous application for permission to lead
additional evidence was that since the defendant has raised controversy
about the documents Ex.PW1/2 to PW1/4, hence, the opinion of the
handwriting expert was necessary -- Trial Court rejected the application
with costs, said order is impugned in this petition -- Held, in the Written
Statement itself the defendant denied this document -- Consequently the
denial during cross examination did not cause any surprise -- Plaintiff
had closed evidence, entire trial is over and case listed for final
arguments -- No grounds to allow leading of addl evidence -- Impugned
order upheld -- The petition and the application are dismissed.

Subash Chander v. Bagwan Yadav 2010 VI AD Delhi 96 to contend that the

Court even has suo moto power to call additional evidence or expert
evidence. Once the attesting witness denies having witnessed the
documents the same cannot be proved under Section 73 of the Indian
Evidence Act, however, this proposition does not relate to a case where the
executant of the document denies the signature. The suit for specific
performance filed by the petitioner/plaintiff is based upon these
documents only and in case the same are not permitted to be proved by
leading additional evidence, serious prejudice would be caused to the
petitioner/plaintiff. The Court is even empowered to direct commission for
scientific evidence under Order XXVI Rule 10(b) CPC. Only after the
witness denies executing the documents, the petitioner/plaintiff was
required to prove the same.

Perusal of the Rule 1, 2 and 3 of Order XVIII CPC would show that the
plaintiff has a right to begin unless defendant admits the fact, hence state
his case and produce his evidence in support of the issues which he is
bound to prove. Under Rule 3 out of the several issues if the burden to
prove some issue lies on other party, then the party can begin at his option,
either produce his evidence on these issues or reserve it by way of answer
to the evidence produced by the other party and in the latter case, the party
beginning may produce the evidence. However, there is no provision in the
CPC which permits the party to lead evidence later on even on an issue
onus of which lies on it.

Surjit Singh & Ors. v. Jagtar Singh and Ors. Vol 145 2007 (1) PLR 552 held
as under:

“21. In our opinion, Order 18, Rule 3 of the CPC would not give a right to
the plaintiff to lead evidence in rebuttal on issues in which the onus of
proof is on the plaintiff. Accepting such an interpretation would be to
ignore a vital part of Order 18, Rule 3 of the CPC. The rule clearly
postulates that "the party beginning, may, at his option, either produce his
evidence on these issues or reserve it by way of answer to the evidence
produced by the other parties". No matter, how liberally a provision in the
statute is required to be interpreted, by interpretation it cannot be
amended. Whilst construing a statutory provision the court cannot
reconstruct it. The rule consciously provides the parties with an option
either to produce the evidence in support of the issues or to reserve it by
making a statement to that effect. The statement itself may well be liberally
construed to avoid any unnecessary technical obstacles. One such example
has been given by the Division Bench in the case of Smt. Jaswant Kaur
(supra). It has been held that if a statement is made by the Advocate for the
plaintiff that "the plaintiff closes its evidence in the affirmative only", the
same would be read to mean that the plaintiff had reserved its right to lead
evidence in rebuttal. We are, therefore, unable to agree with the
observations made by the learned single Judge in the case of Kashmir Kaur
(supra) that he is entitled to lead evidence in rebuttal as a matter of right. In
our opinion, this observation runs contrary to the observations of the
Division Bench in Jaswant Kaur's case (supra). The Division Bench has
even fixed the maximum time on which the plaintiff has to exercise his
option to reserve the right to lead evidence in rebuttal. It has been clearly
held that such a reservation has to be made at the time of the close of the
evidence of the plaintiff. We are also unable to agree with the observations
of the learned single Judge in the case of Punjab Steel Corporation (supra).
In that case the plaintiff sought to lead evidence in rebuttal, after the close
of the evidence of the defence. At that stage, the plaintiff cannot be
permitted to reserve the right to lead evidence in rebuttal. The observations
of the learned single Judge run contrary to the law laid down by the
Division Bench in the case of Smt. Jaswant Kaur (supra). No doubt, the
Division Bench clearly lays down that an overly strict view cannot be taken
about the modality of reserving the right of rebuttal. But at the same time,
it has been held that the last stage for exercising option to reserve the right
of rebuttal can well be before the other party begins its evidence. We are in
respectful agreement with the aforesaid observations of the Division Bench
in the case of Jaswant Kaur (supra) and R.N. Mittal, J. in National
Fertilizers Ltd. (supra).”

8. This Court in Subash Chander (supra) has held as under:

The next question which arises is that if the document is so placed on the
court file, whether it becomes / is to be treated as the document of the party
producing the same and is that party entitled to prove the said document
notwithstanding having not filed the same earlier, as required by law, or
the use of the said document is to be confined only to confront the witness
to whom it was put and it cannot be permitted to be proved by that party
in its own evidence.

11. The legislative intent behind order 7 Rule 14(4) and Order 8 Rule 1A(4)
and Order 13 Rule1(3) appears to be to permit an element of surprise,
which is very important in the cross examination of witnesses. A litigant
may well be of the opinion that if the document on the basis whereof he
seeks to demolish the case of the adversary is filed on the court record
alongwith pleadings or before framing of issues, with resultant knowledge
to the adversary, the adversary may come prepared with his replies
thereto. On the contrary, if permitted to show/produce the document
owing to element of surprise, the adversary or witness, may blurt out the
truth. Once it is held that a litigant is entitled to such right, in my view it
would be too harsh to make the same subject to the condition that the
litigant would thereafter be deprived of the right to prove the said
documents himself. Thus, if the witness to whom the document is put in
cross examination fails to admit the document, the party so putting the
document, in its own evidence would be entitled to prove the same.
However, the same should not be understood as laying down that such
party for the said reason and to prove the said document would be entitled
to lead evidence which otherwise it is not entitled to as per scheme for CPC
and evidence law. For instance, if the document is shown by the defendant
to the plaintiff’s witness and the plaintiff’s witness denies the same, the
defendant can prove the document in his own evidence. Conversely, if the
plaintiff puts the document to the defendant’s witness and the defendant’s
witness denies the same, the plaintiff if entitled to lead rebuttal evidence
would in his rebuttal evidence be entitled to prove the same. However, if
the plaintiff has no right of rebuttal evidence in a particular case, the
plaintiff would not be entitled to another chance to prove the document. In
such a case, the plaintiff has to make a choice of either relying upon the
surprise element in showing the document or to file the document along
with its pleadings and/or before the settlement of issues and to prove the
same. Similarly, if the defendant chooses to confront the document to the
plaintiff’s witness in rebuttal, merely because the witness denies the
document would not entitle the defendant to a chance to prove the
document subsequently.

12. I may however, put a line of caution over here. It is often found that a
party which has otherwise failed to file documents at the appropriate
stage, attempts to smuggle in the documents in the evidence of the witness
of the adversary by putting the documents to the witness whether relevant
to that witness or not. The court should be cautious in this regard. Only
those documents with which the witness is concerned and expected to
know or answer ought to be permitted to be put to the witness in the cross
examination. If other documents with which the witness is not concerned
are confronted only in an attempt to have the same filed and to thereafter
prove the same, the court would be justified in clarifying that the
document is taken on record only for the purpose of cross examination and
the producing party would not be entitled to otherwise prove the same,
having not filed it at the appropriate stage.”

From the pleadings and the issues settled, it is clear that onus to prove the
agreement to sell was on the petitioner/plaintiff and in this regard he
exhibited the documents i.e. receipt Ex. PW-1/2 dated 24th May, 2002, Ex.
PW-1/3 receipt dated 21st July 2002, Ex. PW 1/4 receipt dated 16th August,
2002 and carbon copy of the legal notice dated 29th August, 2006 as Ex.
PW1/5 which are the bone of contents. The documents have already been
exhibited by the petitioner. The defendant/respondent however in cross
examination on confrontation by the petitioner/plaintiff denied his
signatures. This fact was aware to the petitioner/plaintiff for the reason that
the stand of the respondent in the written statement was that the
agreement remained unconcluded as the plaintiff failed to perform her part
of the agreement and was neither ready nor willing to pay the balance of
consideration by 25th June, 2002, time being the essence of the contract.
Though the defendant admitted having been executed receipt dated 24th
May, 2002 Ex. PW 1/1 however signatures on the rest of the documents i.e.
Ex.PW1/2 to PW1/4 were denied. There is no element of surprise in the
stand of the respondent as in the written statement he clearly stated that
part sale consideration of Rs. 50,000/- was received vide receipt dated 24th
May, 2002 and the rest of the receipts, if any, were forged and fabricated.

12. In the present case the onus to prove the documents Ex.PW1/2 to
Ex.PW1/5 was on the petitioner/plaintiff, the respondent/defendant having
denied executing these documents and thus there was no element of
surprise. After the entire trial is over, the petitioner cannot be permitted to
seek expert opinion and lead additional evidence.

Section 101 to 104 - Burden of Proof-Presumption as to Consideration of

Negotiable Instrument - Where suit for recovery filed on the basis of
promissory note which was supported by the evidence of scribe who
proved execution of the document in his presence, the comparison of
signatures showing that signature on the promissory note was of the
defendant. In such circumstances the presumption under Section 118 of
Negotiable Instruments Act, 1881 would arise to the effect that
promissory note was executed for money consideration.

A perusal of ex. A1 promissory note would clearly indicate that there was
only one attesting witness to the document and admittedly he was the
father of the plaintiff and hence much weight cannot be given to the non -
examination of the said attesting witness. It is true that the said document
was not sent to the handwriting expert for the purpose of comparison of
the signature in ex. A1 document with the admitted signature of the
defendant. The trial court has stated the same as one of the main reasons
for dismissing the suit. But on comparison of ex. A1 document with the
postal acknowledgement, the trial court has come to the conclusion that the
signature found in ex. A1 document was not that of the defendant. The
document in question was not sent to the handwriting expert for the
purpose of comparison and the plaintiff has also not taken steps to do the
same. But the suit cannot be dismissed on the said ground alone. It is well
settled that the court can compare the disputed signature with the available
admitted signature and arrive at a finding. As stated above, the trial court
gave a finding that the signature found in ex. A1 promissory note was not
that of the appellant/defendant, but the first appellate court has reversed
the said finding stating that the signature found in ex. A1 was that of the
appellant/defendant. Under the stated circumstances, the court thought it
fit to compare the disputed signature under ex. A1 promissory note with
the other available admitted signature of the appellant. When the signature
found in ex. A1 promissory note is compared with the signature of the
defendant found in his original deposition as dw1, it would clearly reveal
that the signature found in ex. A1 promissory note was that of the
appellant/defendant. Thus from the available evidence as discussed above,
it has to be found that the plaintiff/respondent has proved the execution of
the promissory note by the appellant/defendant. Once the
respondent/plaintiff has discharged his burden of proving the same, then it
is for the appellant/defendant to prove the non - existence of the
consideration found under the promissory note. Once the execution of the
promissory note is either admitted or proved, the presumption under s. 118
- a of the negotiable instrument act would arise that it is supported by
consideration. It is true that such a presumption is rebuttable. The
defendant could prove the failure of consideration. Under such a situation
if the defendant discharges the initial onus of proof showing that the
existence of consideration was improbable or doubtful or the same was
illegal, the onus would shift to the plaintiff, who would be obliged to prove
it as a matter of fact. In the instant case the defendant has thoroughly failed
to discharge the initial onus of proof by showing the non - existence of the
consideration. The plaintiff must be given the benefit of presumption
under s. 118 (a) of the negotiable instruments act in his favour. The mere
denial of passing of the consideration apparently cannot constitute a valid
defence. In the instant case, it is not the defence put forth by the appellant
that though he executed the document, it was not supported by
consideration, but it was also bare denial of his signature and ex. A1
promissory note was a forged one. From the evidence of pw2 and
comparison of the disputed signature as stated above, it has to be found
that the signature found in ex. A1 document was that of the
appellant/defendand. It has to be pointed out that the appellant was unable
to show that ex. A1 promissory note was not supported by consideration.
The court is of the view that it is a fit case where the presumption under s.
118 of the negotiable instruments act that when once the signature of the
appellant is proved, the presumption that the promissory note was
supported by consideration, has to be drawn. There is nothing to interfere
in the judgment of the lower appellate court, and the second appeal is
liable to be dismissed.

The Court concluded that there was nothing in the statement of the
witness to show that both the attesting witnesses had signed in the
presence of the executant or the executant had signed before the
witnesses. Consequently, the essential ingredients of the proof of the
attestation were missing. It stated that the document executed by showed
that it was a registered document, but there was nothing about the
endorsement of the Registrar to show that he was not in a position to
sign and hence thumb impression was taken. Secondly the will was
executed on 13th but got registered on 14th. Thirdly, there was no
mention of execution of will and all the three statements gave rise to
suspicious circumstance.
Order 18 Rule 1 -- Execution of document -- Consideration -- In case
where the execution of document is admitted, a presumption was raised
in favour of the plaintiff that the said document was made for
consideration and the presumption was raised, it had the effect of
shifting the burden on to the defendant, to establish that there was no
consideration.

Admissibility and mode of proof are two different things. Objection

regarding mode of proof shall be taken at the earliest otherwise it cannot
be taken. The tenant did not take any objection at the trial stage, hence he
was not entitled to take any such objection after wards.

I have discussed this aspect in detail in Taqdirunnisa and another v. 1st

Additional District Judge, Allahbad and others, 2006 (2) ARC 444. In the
said authority, I have placed reliance upon several authorities including the
authority of the Supreme Court reported in AIR 2003 SC 4548 , R.V.E.
Venkatachala Gounder v. Arulmigu Viswesaraswami and V.P. Temple.
Para-20 of the said judgment of the Supreme Court is quoted below:

“20. The learned Counsel for the defendant-respondent has relied on the
Roman Catholic Mission v. State of Madras and another, AIR 1966 SC 1457
in support of his submission that a document not admissible in evidence,
though brought on record, has to be excluded from consideration. We do
not have any dispute with the proposition of law so laid down in the
abovesaid case. However, the present one is a case which calls for the
correct position of law being made precise. Ordinarily an objection to the
admissibility of evidence should be taken when it is tendered and not
subsequently. The objections as to admissibility of documents in evidence
may be classified into two classes: (i) an objection that the document which
is sought to be proved is itself inadmissible in evidence; and (ii) where the
objection does not dispute the admissibility of the document in evidence
but is directed towards the mode of proof alleging the same to be irregular
or insufficient. In the first case, merely because a document has been
marked as 'an exhibit,' an objection as to its admissibility is not excluded
and is available to be raised even at a later stage or even in appeal or
revision. In the latter case, the objection should be taken before the
evidence is tendered and once the document has been admitted in evidence
and marked as an exhibit, the objection that it should not have been
admitted in evidence or that the mode adopted for proving the document
is irregular cannot be allowed to be raised at any stage subsequent to the
marking of the document as an exhibit. The later proposition is a rule of
fair play. The crucial test is whether an objection, if taken at the appropriate
point of time, would have enabled the party tendering the evidence to cure
the defect and resort to such mode of proof as would be regular. The
omission to object becomes fatal because by his failure the party entitled to
object allows the party tendering the evidence to act on an assumption that
the opposite party is not serious about the mode of proof. On the other
hand, a prompt objection does not prejudice the party tendering the
evidence, for two reasons: firstly, it enables the Court to apply its mind and
pronounce its decision on the question of admissibility then and there; and
secondly, in the event of finding of the Court on the mode of proof sought
to be adopted going against the party tendering the evidence, the
opportunity of seeking indulgence of the Court for permitting a regular
mode or method of proof and thereby removing the objection raised by the
opposite party, is available to the party leading the evidence. Such practice
and procedure is fair to both the parties. Out of the two types of objections,
referred to herein-above, in the later case, failure to raise a prompt and
timely objection amounts to waiver of the necessity for insisting on formal
proof of a document, the document itself which is sought to be proved
being admissible in evidence. In the first case, acquiescence would be no
bar to raising the objection in superior Court.”
Supreme Court in Tek Bahadur v. Debi Singh, AIR 1966 SC 292 , in which
the difference between a partition-deed and a family arrangement has been
stressed. The Court held as follows :-

"Family arrangements as such can be arrived at orally. Its terms may be

recorded in writing as a memorandum of what had been agreed upon
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 had been agreed upon
so that there be no hazy notions about it in future. It is only 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 possess.

Supreme Courts judgement reported as Sahu Madho Das v. Mukand Ram,

AIR 1955 SC 481 , where the definition of a family arrangement and the
definition of a partition deed is analysed.

8. No doubt the question whether a document is a memorandum of family

arrangement or is a partition deed, sometimes becomes difficult to
ascertain because the two are somewhat similar.

Agreement to sell -- Signature of vendee -- Non-requirement of -- Held,

vandee has not signed the same is neither here nor there for the reason
that vandee has accepted liability under the document.

Additional evidence -- Order 18 Rule 3, would not give a right to the

plaintiff, to lead evidence, in rebuttal, on issues, of which, the onus of
proof was on them.

Civil Procedure Code, 1908, O.18, R.3 -- Additional evidence --

Affirmative evidence -- Specific performance -- Agreement to sell --
Onus was on the plaintiff to prove the execution of documents -- He
closed the evidence, in affirmative, with his eyes wide open --
Defendant, closed his evidence -- Case was fixed for rebuttal evidence
and arguments -- Order 18 Rule 3, would not give a right to the plaintiff,
to lead evidence, in rebuttal, on issues, of which, the onus of proof was
on them. (P.8).

The Act entails elaborate provisions relating to admissibility of documents.

‘Best Evidence Rule’ is a golden thread which runs through the provisions
relating to admissibility of evidence, and when seen in context of
documentary evidence such rule is enshrined in section 64 of the Act which
provides that documents must be proved by primary evidence. The best
evidence rule requires that if the contents of a writing are to be proved, the
document must be proved. Some documents are selfauthenticated such as
ancient documents, recorded deeds and other documents over 30 years
old. However other documents are required to be proved in accordance
with the provisions of the Act. Needless to say that in cases where the
document cannot be proved by primary evidence secondary evidence to
prove the same is permissible under the Act. While the photostat copy of a
document which is accurate reflection of original document is accepted as
secondary evidence but it has to be shown that the photostat copy is
authentic and accurate reproduction of the original. This is so because a
photostat copy may be result of manipulation as it is susceptible to
purposeful or accidental alteration or incorrect processing. The potential of
fraud exists with all photostat copies as they can be altered through
redacting information performing cut and paste job, transparency tape lift-
of method, electronic editing etc. It is in this background that issue of
admissibility of photostat copy of a document is to be determined which
can be done in better manner by analysing the paradigms of law on
secondary evidence and the laws dealing with ancillary issue like
admissibility of photostat document.

Section 63. 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 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.

Section 65; Cases in which secondary evidence relating to documents may

be given.- 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;

(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 collection.

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

H. Siddiqui (Dead) by LRs. v. A. Ramalingam, [2011(3) Law Herald (SC)

1646] : 2011 (2) RCR (Civil) 696 while dealing with Section 65 of the Act
opined that though the said provision permits the parties to adduce
secondary evidence, yet such a course is subject to a large number of
limitations. In a case where the original documents are not produced at
any time, nor has any factual foundation been laid 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 the section. The secondary evidence must be authenticated by
foundational evidence that the alleged copy is in fact a true copy of the
original. It has been further held that mere admission 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.

courts have cautioned against eager admissibility of such copies,

specifically when it is lost or destroyed by the party in whom it created an
enforceable right and who seeks to produce photostat copy of the same
whereas, on the other hand, if a photostat copy is produced by a party who
has no interest in manipulating it, it is generally admitted as secondary
evidence.

Therefore, it may be noticed that to permit secondary evidence of such a

document which has been destroyed by a person in whose possession it
was and in whose favour it created an enforceable legal right or an
obligation is normally not to be allowed as secondary evidence. The
secondary evidence of such a document may be tampered with or changed
and it would be against public policy to take a chance of running the risk of
fraud being committed. Besides, the destruction of the instrument may
make a party liable for a contract which had either not been agreed to or
had been rescinded with the destruction of document. Therefore,
secondary evidence in such circumstances where document itself has been
destroyed by the person in whom it created an enforceable legal right or an
obligation is normally not be allowed.”

These observations were made in a case where the person seeking to

produce the photostat copy could not explain that from where he got the
photostat. A doubt was, thus, created on authenticity of the photostat copy.
It was therefore observed:

“Photostat copies of documents can be prepared by manipulation and

presented as original. Therefore, it would normally be unsafe on the mere
asking to allow production of photostat copies as secondary evidence.
These are admittedly not certified copies of the original and it is not clear
as to whether these are copies of the original”

18. Thus it may be said that before being admitted as secondary evidence
being copies prepared by mechanical process, the authenticity of the
Photostat document has to be established where photostat copy of a
document is produced and there is no proof of its accuracy or of its having
been compared with or its being true reproduction of the original, it cannot
be considered as secondary evidence. In other words, photostat copy of a
document is not admissible as secondary evidence unless proved to be
genuine or is admitted by opposite party. Clause (2) of section 63 has two
requirements first - the copies should be prepared from a mechanical
process and second - the process should be such which in itself ensures
accuracy of copy. While every Photostat copy is prepared by mechanical
process however, it may or may not be accurate, therefore its admissibility
as secondary evidence in view of clause (2) of Section 63 of the Act is
subject to proof of the fact that it was a correct copy of original document.
Similar observations have been made by this Court in Prem Lata v. Dwarka
Prasad and Ors. CR No. 4913 decided on 23.08.2013 and Rajasthan Golden
Transport Company v. LRs of Amrit Lal, 1998 (3) RCR (Civil) 95. Therefore,
even when the permission to produce photostat copy of a document as
secondary evidence is granted, it is open for the parties to argue about the
probative value attached to it. When it is shown that photostat copy by
itself is a suspicious document, it cannot be relied upon. Following
observations of the Hon’ble Madhya Pradesh High Court in Kanchan
Malhotra v. Yashvir Singh 1986(1) HLR 387 are relevant in this regard:

“Now, it may be stated that the photostat copy could not just be readily
accepted as a reliable piece of secondary evidence unless there was
clinching proof that (i) this photostat copy truly represented some original
or its counter-foil, (ii) this photostat copy was prepared by mechanical
process by someone at some particular place on any particular date and at
any particular time and (iii) the original or its counter-foil from which this
photostat copy was prepared, was produced at the relevant time by any
person in custody of such document.”.

The proposition of law laid down in aforesaid judgments provides answers

to the questions raised above. Thus a Photostat copy of a document can be
produced in evidence only when it is alleged and proved that the original
was in existence and is lost or destroyed or is in possession of opposite
party who failed to produce it or in any other circumstances mentioned in
section 65 of the Act. These foundational facts, however, are to be proved
by leading cogent evidence. As regards the question whether photostat
copy of a document comes within the meaning & definition of ‘secondary
evidence’ as contained in section 63 of the Act, there cannot be absolute
answer because every photostat copy may not be accurate. For this purpose
the probative value of the Photostat copy has to be proved independently.

21. The principles culled out from the aforesaid discussion are summarized
below:

a) Photostat copy of a document can be allowed to be produced only in

absence of original document.

b) When a party seeks to produce Photostat copy it has to lay the

foundational facts by proving that original document existed and is lost or
is in possession of opposite party who failed to produce it. Mere assertion
of the party is not sufficient to prove these foundational facts.

c) The objections as to non existence of such circumstances or non existence

of foundational facts must be taken at earliest by the opposite party after
the photostat copy is tendered in evidence.

d) When the opposite party raises objection as to authenticity of the

Photostat copy its authenticity has to be determined as every copy made
from a mechanical process may not be accurate. Both the requirements of
clause (2) of section 63 are to be satisfied.

e) Allowing production of Photostat copy in evidence does not amount to

its proof. Its probative value has to be proved and assessed independently.
It has to be shown that it was made from original at particular place and
time.

f) In cases where the Photostat copy is itself suspicious it should not be

relied upon. Unless the court is satisfied that the Photostat copy is genuine
and accurate it should not be read in evidence.

g) The accuracy of photostat copy shall be established on oath to the

satisfaction of court by the person who prepared such copy or who can
speak of its accuracy.

Evidence of Nawa Kishore P.W. 4 that Pt. Bindeshwar, Prasad had put his
signatures to the document at his residence in his presence and he
recognised his signature also cannot be discarded on the ground that
Nawal Kishore did not know the language in which the document was
signed.

In Gajraj and others v. Board of Revenue, U.P. and others (1966 RD 114)
this Court held:

“That it is not necessary that the person must know the language in which
the document has been written. If he has deposed that the execution has
been made in his presence and he had seen the executants putting his
signature in his presence, it has been held that the document stands
proved.”

Section 61 - - Proof of execution of a document itself is not a proof of

truth of its contents and therefore when truth of the facts stated in the
document are denied, the same has to be proved by other evidence,
either by primary or secondary evidence under Section 62;

In his written statement the 2nd defendant has raised the contention that
even though ext. A - 6 contains his signature, It is not a document executed
by him, But fabricated by the plaintiff on a blank stamp paper got signed
by him at the time of execution of ext. A - 1. Thus, The 2nd defendant
admits his signature in ext. A - 6; but denies that it is a document executed
by him.

"undoubtedly, Mere proof of the handwriting of a document would not

tantamount to proof of all the contents or the facts stated in the document.
If the truth of the facts stated in a document is in issue mere proof of the
handwriting and execution of the document would not furnish evidence of
the truth of the facts or contents of the document. The truth or otherwise of
the facts or contents so stated would have to be proved by admissible
evidence, I. E. By the evidence of those persons who can vouchsafe for the
truth of the facts in issue"

the above passage would only show that proof of execution of a document
is not proof of the truth of the contents of the document. The truth of the
facts stated in the document if denied is to be proved by admissible
evidence. Under section 61 of the evidence act, The contents of documents
are to be proved either by primary or by secondary evidence and under
section 62 "primary evidence means the document itself produced for the
inspection of the court" even on such proof the court is not bound to accept
the contents, Unless it is satisfied about the tenth of the matter stated.

"it is true that in a case of this sort the initial onus is on the person who
alleges that the document was executed by the persons whose names
appear thereon as the executants. But where these persons admit their
endorsements and allege that they made those endorsements on blank
paper the onus is very easily shifted. "

written statement the 2nd defendant admits his signature in ext. A - 6. His
only case is that the document is fabricated on a blank stamp paper got
signed by him at the time of execution of ext. A - 1. The 2nd defendant has
not gone to the witness - box to prove his case in the mitten statement that
ext. A - 6 is a fabrication on blank stamp paper signed by him. His brother
is examined as d. W. 1. He is not in a position to delay the due execution of
ext. A - 6 by the 2nd defendant. The 2nd defendant on 9 - 12 - 1975 filed a
schedule of witnesses to be examined to the lower court. The schedule does
not contain his name as one of the witnesses to be examined on his behalf.
He filed a petition on the same day for permission to examine his brother
as a witness, On his behalf for the reason that he was suffering from
ashthma. The affidavit in support of the petition is signed and attested at
trivandrum in the office of the advocate, Who attested the affidavit. Under
these circumstances, The court below was right in not accepting the 2nd
defendant's explanation for his non - examination as a witness in court. P.
W. 1 is a senior assistant of the plaintiff - company. He has deposed that
defendants 1, 3 and 4 signed ext. A - 4 and assured the plaintiff that the 2nd
defendant would come and sign the document the next day. Since he did
not turn up a letter was despatched requiring him to come to the plaintiffs
office on 28/8/1970 and sign the undertaking ext. A - 6. Ext. A - 5 dated 22 -
8 - 1970 is the copy of the letter sent by the plaintiff to the 2nd defendant
requesting him to come on 28 - 8 - 1970 to sign the undertaking. Ext. A - 6 is
dated 28 - 8 - 1970. That refers to ext. A - 4. Even though the date of ext. A -
4 mentioned in ext. A - 6 is different, P. W. 1 has explained that it is only
due to a mistake that the date of exhibit a4 is shown as 28 - 8 - 1970 instead
of 21 - 8 - 1970. Under these circumstances, We have no hesitation to hold
that ext. A - 6 is a document duly executed by the 2nd defendant. On the
evidence adduced in the case, We are also satisfied about the truth of the
contents of ext. A - 6, Proved by the production of the document itself. The
document is proved by p. W. 1. We do not see any valid reason to discredit
his testimony. The court below was therefore perfectly right in decreeing
the suit against all the defendants. The appeal fails and is dismissed with
costs.

Sections 73 and 68 -- Proof of signature -- Proof of signature on a

document is distinct from ‘proof of its contents.

Mere proof of signatures on a document of a person cannot amount to

proof of contents of the document as to its correctness. This, therefore,
could only be hearsay evidence and I will not place any reliance on the
same particularly when the two witnesses from the department were
categorical that no arrears of rent were due from Mazru-ul-din on
22.10.1959 and they were making statements on the basis of the record
brought by them in court.

Mere exhibition of a document is not sufficient - Exhibiting a document, is not

proof of the execution itself and the Court can examine as to whether the
document was proported to be executed by the executor.

Section 3 -- Proof of documents -- Admission of documents does not

dispensed with the requirement necessity of formal proof -- Formal proof is
necessary -- Admission of documents along not sufficient.

COMMENTS

Admissibility of contemporaneous tape-record

A contemporaneous tape-record is admissible under section 8 if (i) the

conversation is relevant to the matters in issue; (ii) there is identification of the
voice; (iii) the accuracy of the tape recorded conversation is proved by eliminating
the possibility of erasing the tape record; R.M. Malkani v. State of Maharashtra,
AIR 1973 SC 157.

Court to scrutinize evidence

(i) It is the duty of court to scrutinize the evidence carefully and to see that
acceptable evidence is accepted; State of Gujarat v. Gandabhai Govindbhai, 2000
Cr LJ 92 (Guj).
(ii) Court should adopt cautious approach for basing conviction on circumstantial
evidence; State of Haryana v. Ved Prakash, 1994 Cr LJ 140 (SC).

Evidence of eye witness

(i) Having examined all the eyewitnesses even if other persons present nearby, not
examined, the evidence of eyewitness cannot be discarded , courts are concerned
with quality of evidence in a criminal trial. Conviction can be based on sole
evidence if it inspires confidence; Sheelam Ramesh v. State of Andhra Pradesh,
AIR 2000 SC 718: 2000 Cr LJ 51 (SC).

(ii) Where there are material contradictions creating reasonable doubt in a

reasonable mind, such eye witnesses cannot be relied upon to base their evidence
in the conviction of accused; Nathia v. State of Rajasthan, 1999 Cri LJ 1371 (Raj).

(iii) Evidence of an eye witness cannot be disbelieved on ground that his statement
was not recorded earlier before he was examined in motor accident claim case by
police; Fizabai v. Namichand, AIR 1993 MP 79.

(iv) Where court acquitted accused by giving benefit of doubt, it will not affect
evidence of eye witnesses being natural witnesses; Krishna Ram v. State of
Rajasthan, AIR 1993 SC 1386.

Identification by photo admissible

There is no legal provision that identification by photo is not admissible in

evidence; Umar Abdul Sakoor Sorathia v. Intelligence Officer M.C. Bureau, 1999
Cr LJ 3972 (SC).

Interested witness

(i) It has been held regarding “interested witness” that the relationship is not a
factor to affect credibility of witness; Rizan v. State of Chhattisgarh, AIR 2003 SC
976.

(ii) Testimony of injured eye witnesses cannot be rejected on ground that they were
interested witnesses; Nallamsetty Yanasaiah v. State of Andhra Pradesh, AIR 1993
SC 1175.
(iii) The mechanical rejection of evidence on sole ground that it is from interested
witness would invariably lead to failure or justice; Brathi alias Sukhdev Singh v.
State of Punjab, 1991 Cr LJ 402 (SC).

Maxim “Falsus in uno falsus in omnibus”

(i) “Falsus in uno, Falsus in Omnibus” is not a rule of evidence in criminal trail and
it is duty of the Court to engage the truth from falsehood, to shift grain from the
chaff; Triloki Nath v. State of U.P., AIR 2006 SC 321.

(ii) The maxim “falsus in uno falsus in omnibus” has not received general
acceptance nor has this maxim come to occupy the status of rule of law. The
maxim merely involves the question of weight of evidence which a court may
apply in a given set of circumstances, but it is not what may be called “a
mandatory rule of evidence“; Israr v. State of Uttar Pradesh, AIR 2005 SC 249.

Natural witness

Witnesses being close relations of deceased living opposite to house of deceased,

are natural witnesses to be believed; Om Parkash v. State of Punjab, AIR 1993 SC
138.

Testimony: when to be relied

(i) The testimony of police personnel should be treated in the same manner as
testimony of any other witness and there is no principle of law that without
corroboration by independent witnesses their testimony cannot be relied upon. The
presumption that a person acts honestly applies as much in favour of police
personnel as of other persons and it is not a proper judicial approach to distrust and
suspect them without good grounds; Karamjit Singh v. State (Delhi
Administration), AIR 2003 SC 1311.

(ii) Rejection of whole testimony of hostile witness is not proper; Ashok Kumar v.
P.M.A. Chanchal, AIR 1999 Guj 108.

(iii) Where evidence of some witnesses was found not safe for conviction, whole
of their testimony should not be rejected; Nadodi Jayaraman v. State of Tamil
Nadu, AIR 1993 SC 777.
(iv) The testimony of a single witness if it is straightforward, cogent and if
believed is sufficient to prove the prosecution case; Vahula Bhushan alias Vehuna
Krishna v. State of Tamil Nadu, 1989 Cr LJ 799: AIR 1989 SC 236.

Section 3 -- Proof of documents -- Endorsement of exhibit -- Number on

documents not enough to prove the admissibility in evidence of the
document.

Code of Civil Procedure, 1908 -- Order 13 Rule 4 -- Document --

Admission of in evidence -- Mere admission of document in evidence
does not amount to its proof.

Any document filed by either parly passes through three stages before it is
held proved or disproved. These are : First stage : when the documents arc
Filed by either party in the Court; these documents though on file, do not
become part of the judicial record; Second stage: when the documents are
tendered or produced m evidence by a party and the Court admits the
documents in evidence. A .document admitted in evidence becomes a part
of the judicial record of the case and constitutes evidenee. Third stage: the
documents which are held 'proved, not proved or disproved' when the
Court is called upon to apply its judicial mind by reference to Section 3 of
the Evidence Act. Usually this stage arrives 31 the final hearing of the suit
or proceeding.

The law laid down by the Supreme Court in Sait Taraji Khimechand VS
AIR1971SC1865 is :- 'The mere marking of an exhibit does not dispense
with the proof of docments'

(10) Two Division Benches of Lahore High Court Ferozchin VS. Nawnb
Khan Air 1928 Lah 432 and Hari Singh VS. Firm Karam Chand Air 1927
Lah 115 have clearly held that the admission of documents under Order 13
Rule 4 Civil Procedure Code does not bind the parties and unproved
documents cannot be regarded as proved nor do they become evidence in
the case without formal proof.
In Baldeo Sahai VS. Ram Chander & Ors., Air 1931 Lahore 546 it was said :-
"There are two stages relating to documents. One is the stage when all the
documents on which the parties rely are filed by them in Court. The next
stage is when the documents 'MC. proved and formally tendered in
evidence. It is at this later stage that the Court has to decide whether they
should be admitted or rejected. If they are admitted and proved then the
seal of the Court is put on them giving certain details laid down by law,
otherwise the documents are resumed to the party who produced them
with an endorsement thereon to that effect." A reading of the report shows
that it was the practice of the Court to endorse the documents soon on their
filing which practice was deprecated and hence slopped. The word
"proved" has been used by the Division Bench in the sense of 'proposed to
be proved' as is clear from its having been used Along with the word
'tendered' or "admitted" in evidence. The word proved has been loosely
used for describing the stage after fling of the documents, when the Court
would decide only whether they should be admitted or rejected. The
Division Bench cannot be read as holding that the document is not to be
endorsed with an Exhibit number unless and until proved. As staled in
para 6 hereinabove, the stages of tendering/admitting/rejecting in evidence
and holding a document proved - are two distinct and different stages, not
one. They are respectively the second and third stages.

(13) Admission of a document in evidence is not to be confused with proof

of a document.

(14) When the Court is called upon to examine the admissibility of a

document it concentrates only on the document. When called upon to form
a judicial opinion whether a document has been proved, disproved or not
proved the Court would look not at the document alone or only at the
statement of the witness standing in the box; it would take into
consideration probabilities of the case as emerging from the whole record.
It could not have been intendment of any law, rule or practice direction to
expect the Court applying its judicial mind to the entire record of the case,
each lime a document was placed before it for being exhibited and form an
opinion if it was proved before marking it as an exhibit.

The marking of a document as an exhibit, be it in any manner whatsoever

either by use of alphabets or by use of numbers, is only for the purpose of
identification. While reading the record the parties and the Court should be
able to know which was I he document before the winless when it was
deposing. Absence of putting an endorsement for the purpose of
identification no sooner a document is placed before a witness would cause
serious confusion as one would be left simply guessing or wondering while
was the document to which the witness was referring to which deposing.
Endorsement of an exhibit number on a document has no relation with its
proof. Neither the marking of an exhibit number can be postponed till the
document has been held proved; nor the document can be held to have
been proved merely because it has been marked as an exhibit.

(16) This makes the position of law clear. Any practice contrary to the
above said statement of law has no sanctity and cannot be permitted to
prevail.

COMMENTS
Endorsement by Sub-Registrar
Endorsement by Sub-Registrar that executants had acknowledged execution before
him amounts to attestation; Pentakota Satyanarayana v. Pentakota Seetharatnam,
AIR 2005 SC 4362.
Scope
One of the requirements of due execution of will is its attestation by two or more
witnesses which is mandatory. Section 68 speaks of as to how a document required
by law to be attested can be proved. It flows from this section that if there be an
attesting witness alive capable of giving evidence and subject to the process of the
Court, has to be necessarily examined before the document required by law to be
attested can be used in an evidence; Janaki Narayan Bhoir v. Narayan Namdeo
Kadam, AIR 2003 SC 761.
The learned Trial Court dismissed the suit with a finding that the
document Ex. P-2 being the sale deed executed by Shyamlal and Lallu in
favour of the plaintiff has not been proved in accordance with law as no
attesting witness to the said document has been examined by the plaintiff
and even the sale deed Ex. P-1 in favour of the Shyamlal and Lallu has also
not been proved in accordance with law as per Section 68 of the Evidence
Act, to prove any document, examination of attesting witness is a must.
However, this finding has been reversed by the Appellate Court with the
observation that as per Section 68 of the Evidence Act, to prove a
document, it is necessary that the same should be proved by examining at
least one attesting witness. However, it would not be necessary to call the
attesting witness to prove the document where the executant of the sale
deed does not dispute the execution. Placing reliance in the judgment of
the Supreme Court in the matter of Smt. Sansmji Vs. Yashoda Nand,
reported in AIR 1996 SC 761 , Appellate Court has arrived at a conclusion
that where the document is not a Will and has been registered as per
Indian Registration Act, 1908, it would not be necessary to prove the
document in accordance with Section 68 of the Evidence Act unless the
executant of the document denies the execution.

Due execution of the will cannot be presumed merely because the will is an old
document -- No perversity in the findings -- Appeal dismissed.

Sections 67, 114 - Document -- Proof of - If a document is said to be

signed or written by someone, then it is required to prove that such
person had signed or written that document - Defendants have to
examine that someone who was supposed to be present at the time of
execution of the document to depose of having seen the executor signing
the document or otherwise executing the same by giving thumb
impression or any other sign - If defendants failed to prove the same,
presumption under Sec. 114 is liable to be drawn against the defendants.

The Section 67 of the Evidence Act provides procedure to prove a

document. If a document is alleged to be signed or written by someone
then under Section 67 of the Evidence Act, it is required to be proved that
such person had signed or written that document. Applying this standard
of proof under Section 67 of the Evidence Act, it was incumbent upon the
defendants examine that someone who was supposed to be present at the
time of execution of Exhibit-Kha to depose that he had seen Momin Ali
signing the document in question or otherwise executing the same by
giving his thumb impression or any other sign. There is no doubt that
defendants did not lead any evidence either documentary or oral in terms
of Section 67 of the Evidence Act to prove execution of Exhibit-Kha. The
Defendants stopped in making attempt to prove that Momin Ali was alive
as on the date of execution of Exhibit-Kha sale deed. Once on the basis of
rival contention of the parties an issue has been framed in regard to
execution of sale deed, it requires that defendants being beneficiary of the
deed were liable to prove that the deed was so executed. This not having
been done presumption is liable to be drawn under Section 114 of the
Evidence Act against the defendants.

COMMENTS
Admission of contents
Admission of documents amounts to admission of contents but not its truth; Life
Insurance Corporation of India v. Narmada Agarwalla, AIR 1993 Ori 103.
A man may lie but a document will never lie; Afzauddin Ansary v. State of West
Bengal, (1997) 2 Crimes 53 (Cal).
Defendant No. 1 is an illiterate person he honestly believe that late
Padmanath Borgohain prepared the mortgaged deed as per his request.
Defendant No. 1 believes him that he prepared the mortgaged deed and he
executed five numbers of deeds in the Jorhat Sub-Registry Office. Though
he executed the deeds it was never read over to him and with his honest
belief he signed in the aforesaid deeds. Defendant No. 1 was never told
either by late Padmanath Brogohain or by petition written that these deeds
were sale-deeds. In fact he never sold and transferred the suit land, in the
name of the plaintiff at such a lower price."

8. From the afore quoted averments of the written statement, it appears

that the defendant No. 1 though admitted the execution of the deeds but
put forward an explanation that knowing the deeds to be the mortgage
deeds, he executed those deeds and none had read over the recitals of the
deeds to him before or at the time of registration.
In the present case, undoubtedly the scribe(s) of those documents had not
been produced and examined. The plaintiffs never put on record any
explanation as to why the scribe(s) could not be examined during trial.
From the depositions of PW-1, the attesting witness of sale deed, Exbt. I,
PW-2 another attesting witness of sale deed, Exbt-2, PW-3, another
attesting witness of sale deed, Exbt-3, it reveals that neither of the attesting
witnesses could put any light as to the fact that the scriber or anybody else
read over the recitals of the deeds to the executant. They never claimed to
have seen the executant signing the documents.

10. Of course, the execution of the sale deeds, Exbts. 1 to 5 is admitted in

the written statement, but the recitals had been denied as according to the
written statement, the executant had not been made understand as to the
recitals of the documents, but believing the same to be mortgage deeds, he
executed those deeds.

11. MrBaishya, learned counsel for the defendants submits that in view of
Section 61 of the Evidence Act, contents of the documnet must be proved.
Section 61 of the Evidence Act says "the contents of documents may be
proved either by primary or by secondary evidence."

12. Mr Choudhury, learned counsel for the plaintiffs relying upon the
provision of Section 61 of the Evidence Act submits that the documents
have been put in evidence and they speak for themselves. The recitals of
the documents being a part of the documents had been put on record and
once the execution is admitted, recitals of the documents stand proved.
None of the plaintiffs' witnesses deposed a single word that the scribe
wrote the sale deeds as per version of the executant, the original defendant
No. I, nor any of the witnesses deposed that the recitals of the sale deeds
had been read over to the executant in their presence. In the present case,
once the execution is admitted in the written statement, proof of execution
is not required afresh, but the recitals of the documents ought to have been
brought on record either by examining the scribe who wrote the same or by
any witness who was present at the time of execution of the documents,
but no such witness had been examined. While the defendant No. 1
specifically denied to have executed the deeds knowing them to be sale
deeds, rather knowing them to be the mortgage deeds, he executed the
same and further statement was there in the written statement that none
read over the contents to the executant, having regard to the aforesaid
background of the case, it was imperative on the part of the plaitniffs to
prove the recitals of the documents by adducing witnesses conversant with
the transactions, but that was not done.

14. The learned counsel for the plaintiffs referred a decision, rendered by
the Hon'ble Apex Court in "P.C. Purushothama Reddiar, appellant-Vs-
Perumal, respondent, reported in AIR 1972 SC 608 " and submits that once
a document is properly admitted, the contents of that document are also
admitted in evidence though these contents may not be conclusive
evidence.

In the case of P.C. Purushothama Reddiar (supra) the Court was called
upon to decide an election dispute and a police report was produced in
evidence and that report was tendered in evidence by Head Constable.
Since the said police report was a record maintained by a police officer
being a public servant in discahrge of his official duties and was brought
from official custody, the said document being a public document was
rightly admitted in evidence being tendered by Head Constable. The said
police report was prepared by a police officer and that police officer never
denied the correctness of the contents of his report. In other words, the
contents of that police report had never been put under challenge, but in
the present case, recitals of the purported sale deeds had been put under
challenge by the executant himself from the very beginning and in such
situation, unless it is proved to the satisfaction of the Court that the
executant knowing well the recitals of the deeds executed the same either
by reading the recitals himself/herself or the same having been read over to
him/her by the scribe or other person, the requirement of Section 61 of the
Evidence Act cannot be said to have been satisfied.

Section 68- Transfer of Property Act, 1882, Sections 122 and 123 --
Execution of registered gift-deed not denied by the executor -- Calling of
attesting witness in proof of execution not necessary -- (Gift-deed- Proof
of execution).

The proviso to the aforesaid section provides that if the document

required to be attested is a registered document, then it shall not be
necessary to call an attesting witness in proof of execution of any
document, unless its execution by the person by whom its purports to
have been executed is specifically denied. In the present case, the
execution of the gift-deed, referred to above, has not been denied by the
executor, namely, Gopal Dass and as such the proviso to Section 68 is
clearly attracted. In any case, even assuming that the gift-deed required
proof, the statement of Upendra Kumar, D.W. -- 1, referred to above, has
clearly proved the document and the courts below were in error in not
accepting the document on a presumption that the document has not
been proved. This is a clear error of law by the courts below while
dealing with a registered gift-deed, the execution whereof was not
denied by the executor. It was held that no formal proof of a registered
gift-deed was required in view of proviso to Section 68 of the Evidence
Act and in any case, the documents were, proved in accordence with law
and were admissible in evidence.

Execution of -- Proof -- Registered Will -- Presumption of truth -- Where

the Will is a registered document then the endorsement made by the Sub
Registrar that the Will had been thumb marked or signed by the
executant in his presence after it was read over to the executant has a
presumption of truth.

Succession Act 1925 -- Will -- Execution of -- Proof -- Registered Will --

Scribe categorically deposed with regard to execution of Will -- Executant
who was not having any child of his own executed Will in favour of
propounder whom he was treating his wife -- Executant died on 16.3.1998
whereas Will was executed on 11.6.1996 -- Will duly executed by
executant cannot said to be surrounded by suspicious circumstances --
No interference.

Section 67 -- Proof of execution of a document -- Agreement of sale

bearing signature of the vendor on first two sheets, however, last sheet
not bearing his signature -- It cannot be held on that ground that the
document was not duly proved.

Property law -- Mortgage -- Deed Executed through Power of Attorney,

who is husband of the property owner -- Mortgage executed and
presented for Registration by the POA -- Deed is properly executed and
presented -- Section 35 of Registration Act, 1908.

Indian Evidence Act, 1872, Section 70 -- Transfer of Property Act, 1882,

Section 3 -- Attested Document -- Proof about attestation -- Statement by
the witness that, document was attested is sufficient -- If the opposite
party did not challenge the attestation of document in the pleadings --
And did not ask cross examination questions on this point -- The
statement of the witness can be relied to prove proper attestation of the
document.

Sections 101 to 104 -- Burden of proof -- Fictitious documents -- Pleading

of -- The burden of proving such document is heavy on the plaintiff
seeking to set aside an order passed on the basis of such documents --
The burden is doubly heavier on the plaintiff seeking to set aside order
passed in execution proceedings. The burden of proof is heavy on a
plaintiff who sues for a declaration of a document solemnly executed
and registered, as a fictitious transaction. The burden becomes doubly
heavy when the plaintiff seeks to set aside the order of the civil court,
passed in execution proceedings, upholding the claim of a third party to
a property sought to be proceeded against in execution. The plaintiff,
who seeks to get rid of the effect of the adverse order against him, has to
show affirmatively that the order passed on due inquiry by the executing
court, was erroneous.
Merely because document is proved by witnesses or the scribe would not
make it a genuine document if facts and circumstances show that same
was not executed by free mind knowledge of executant.

(A) Power of attorney - Agreement to sell - Validity of - Proof of

document - Merely because document is proved by witnesses or the
scribe would not make it a genuine document if facts and circumstances
show that same was not executed by free mind knowledge of executant.
(Para 5).

Section 90 - Presumption of execution of document under Section 90,

means that the document was signed by the purported executant and in
the absence of proof to the contrary, the signatures are taken to be the
signatures of the executant.

"Where any document, purporting or proved to be thirty years old, is

produced from any custody which the Court in the particular case
considers proper, the Court may presume that the signature and every
other part of such document, which purports to be in the handwriting of
any particular person, is in that persons handwriting, and, in the case of a
document executed or attested, that it was duly executed and attested by
the persons by whom it purports to be executed and attested.

It is settled that the executor of the documents is supposed to have

executed the document after understanding the same, as a detailed
procedure is provided for registration of the document wherein the
Registration Officer is under a duty to explain the contents of documents
to be executed and verifies signatures only after ascertaining that the
executor has signed the documents after fully understanding the same.
Therefore under Section 60 of the Registration Act the correctness of the
facts mentioned in the registered document is attached and once the
document is proved in accordance with law, it is to be presumed that the
contents of the documents are correct.
Cancellation of sale-deed- -- Burden of proof that documents suffers
from fraud or misrepresentation -- Held : Burden of proof shifts on the
person -- In whose favour the document is executed where the executor is
illiterate person-- (Burden of proof -- Cancellation of document --
Executed by illiterate person- 1965 ALJ 1080-Relied ; AIR 1925 PC 204 -
AIR 1940 PC 134 ; AIR 1963 SC 103-Followed.

The' plaintiffs sought cancellation of the sale-deed on following grounds :

(1) Plaintiffs never wanted to sell the land nor they were in a position to
sell the land.

(2) The land is of value of Rs. 30,000 and they could not have imagined of
selling at Rs. 4,000.

(3) The plaintiffs never received a sum of Rs. 2,500 r as has been alleged in
the sale-deed. The plaintiffs only received Rs. 1,400 before the Registrar.
The plaintiffs never understood the contents of the sale-deed and were
only told that the mortgage deed for three years have been got executed by
them.

(4) The plaintiffs signed the document without listening the contents
thereof and without understanding the contents thereof.

(5) The plaintiffs were in active confidence of the defendant as they were in
need of money.

(6) For the aforesaid reasons the sale-deed got executed by the defendant is
void and ineffective.

The presumption under Section 60 of the Registration Act is rebuttable in

law. The presumption under Section 60 of the Registration Act is not a
conclusive presumption. The presumption stands rebutted by the denial of
the plaintiffs' statement. The trial court has also believed the plaintiffs'
witnesses for recording a finding that only Rs. 1,400 were paid to the
plaintiff.

The plaintiffs' statement that they were illiterate persons, was not
effectively disputed by the defence and merely on a ground that one of the
plaintiffs who was able to sign, was not produced in witness box, no
presumption of literacy could have' been drawn against the plaintiffs.
Likewise, the defendants failed to explain as to why no independent
witness attested the alleged document. On both the counts, the trial court
has been given cogent reasons for discrediting the document and the
appellate court by a bald reasoning has upset the finding of the trail court.
The entire approach of the appellate court is that the plaintiff has failed to
prove that the document was executed by him under undue influence of
the defendants as referred to and relied upon in Section 15 of the Contract
Act and the finding that the plaintiff has failed to prove that he executed
document under undue influence of the defendants is vitiated in law.

16. In the aforesaid background the question of law which requires

consideration in the present matter is that if an illiterate person executes a I
sale-deed in favour of a person is the burden of proving good faith is on'
the defendants.

"The burden of proof shall always rest upon the person who seeks to
sustain a transaction entered into with a Pardanashin lady to establish that
the said document was executed by her after clearly understanding the
nature of the transaction. It should be established that it was not only her
physical act but also her mental act. The. burden can be discharged not
only by proving that the document was explained to her and that she
understood it but , also by other evidence, direct and circumstantial."

22. In Farid-un-Nisa case (supra), the Privy Council made it clear that mere
declaration by the settlor subsequently made that she had not understood
what she was doing is not in itself conclusive but the entire circumstances
will have to be taken into consideration for considering the question as to
whether she had executed the document after understanding the same.
The relevant 'extract from the decision is quoted below :

"'The mere declaration by the settlor, subsequently made, that she had not
understood what she was doing, obviously is not in itself conclusive. It
must be a question whether, having regard to the proved personality of the
settlor, the nature of the settlement, the circumstances under which it was
executed, and the whole history of the parties, it is reasonably established
that the deed executed was the free and intelligent, act of the settlor or not.
If the answer is in the affirmative those relying on the deed have
discharged the onus which rests upon them."

In appropriate cases this protection can be extended to illiterate persons

who are economically dependent, who are socially and educationally
backward and who are ignorant of the intricacies of the execution of the
registered document.

28. The court takes judicial notice of the situation prevailing in the society
that despite country having been liberated from the shackles of the' foreign
rules as far back as half century, a large number of people of this country
are illiterate, ignorant, suffers from many infirmities, inefficient,
inexperienced and dependent upon others and in such cases, exception
'carved out in the aforesaid case can also be extended in the facts and
circumstances bearing out that the executer of the document can be
categorised in vast categories, which have been indicated by this court in
Parasnath Rai's case (supra).

Delhi Documents Writers Licensing Rules, Rule 1986 -- Rules 3 r/w Rule
14 -- Documents writers -- Document Registration -- Absence of licence --
No document should be accepted for registration, unless, the same is not
written by a licenced document writter or the executant or his advocate --
Rules is applicable in cases of ‘will’, as well.

Evidence Act, 1872 -- Sections 101 to 104 - Burden of Proof - - Denial of

signature on the document saying that signature were obtained on blank
paper, however evidence of the plaintiff regarding execution of
document found to be reliable, the owner will shift on the defendant to
show that he had not executed the documents. Person who signs the
blank paper may not know what are the conditions, which will be
imposed by the other side. Hence, in such circumstances, a general
proposition cannot be laid down that the burden should be on the
person who has subscribed his signature to a blank paper. The plaintiff
may give evidence regarding the execution of the document. If the fact of
thumb impression or signature is admitted, that will give more
reliability to the plaintiff's evidence. If such evidence adduced by the
plaintiff is reliable and if the plaintiff is able to discharge his burden
sufficiently, then onus will shift on the defendant to show that he had
not executed the document, the plaintiff cannot succeed in the case
without giving evidence.

Evidence Act, 1872 -- Section 114 - Presumption of Execution of

Documents - A person admitting his signatures but saying that
signatures were obtained on blank paper, no presumption can be granted
regarding execution of document. Mere putting signature does amount to
admission of the execution of the document. Ordinarily signature merely
means putting one's name or any other mark to identify a person making
the mark. But when a word 'signature' is attributed with regard to the
written document, which creates obligation on the person signing it, it
can only mean signing the document after the document is prepared and
completed. There, the signature is put to show that the person who
signed has agreed the terms and conditions of that document. The
intention with regard to the acknowledgement of the terms should be
there. When the person signs the same, then only it can be said that the
person has executed the document. Hence, when person says that he put
the signature on a blank paper that does not mean that he had admittedly
executed the document.

as we already stated, The patna high court was taking the view consistently
that mere admission that a person has signed a document does not lead to
a presumption that the execution of the document is admitted. This has
been followed by the madras high court and jammu and kashmir high
court. The other view is taken by the decisions in sahdeo mauar v. Pulesar
nonia, Air 1930 pat 598, Dalchand mulchand v. Hasanbi, W/o. Ali
razakhan, Air 1938 nag 152, Lakshmamma v. M. Jayaram, Air 1952 mys 114
and also some other decisions. Certain courts have taken the view that
when evidence was adduced, There is no question of casting the burden
that the issue should be decided on the basis of the facts and circumstances
of the case and the evidence adduced.

(8) during the discussion of this case, We found three types of cases;

(1) when defendants merely submitted that signed papers were entrusted
to a person and those papers were made use of for the purpose of
executing an agreement;

(2) the signed papers were given on the understanding that a particular
document will be made. But contrary to that assurance, A different
document was fabricated;

(3) there are third sets of cases where the defendants even though have
signed the documents, Never intended to bring it in force. The patna high
court while taking the view that presumption cannot be in favour of the
plaintiff held that presumption under section 114 of the evidence act and
the illustrations given there "are based on long experience and have been
drawn so often by judges in england as well as in this country that many of
them have come to be regarded almost as rules of law. The same however
cannot be said with regard to the presumption, Which we are asked to
draw in this case considering that it is not too uncommon in this country
for ignorant people to put their thumb impression on blank pieces of
paper".

further, It was held that section 114 is a permissive and not a mandatory
section and the court may, Having regard to the circumstances of a
particular case, Refuse to raise a presumption in that cases such a
presumption may be properly raised. On the other hand, The nagpur high
court took the view that if nothing else is known then the mere fact that a
document is proved to bear a certain signature and that it comes from
proper custody ought to be enough to raise an inference that it was signed
with the intention of execution. In our opinion, This inference arises in
india directly from section 114 of the evidence act.

(9) to sign means to affix the signature. But when it comes to the signing of
a written instrument, It implies more than the act of affixing a signature. It
implies more than the clerical act of writing the name. The intention of the
person signing is important. The person should have affixed the signature
to the instrument in token of an intention to be bound by its conditions. It
has been said that for a signing consists of both the act of writing a person's
name and the intention in doing this to execute, Authenticate or to sign as a
witness. The execution of a deed or other instrument includes the
performance of all acts which may be necessary to render it complete as a
deed or an instrument importing the intended obligation of every act
required to give the instrument validity, Or to carry it into effect or to give
it the forms required to render it valid. Thus, The signature is an
acknowledgement that the person signing has agreed to the terms of the
document. This can be achieved only if a person signs after the documents
is prepared and the terms are known to the person signing. In that view of
the matter, Mere putting of signature cannot be said to be execution of the
document.

in ramlakhan singh v. Gog singh, Air 1931 pat 219, A division bench of the
patna high court held that the onus cannot be discharged merely proving
the identity of the thumb impression. It must be further proved that the
thumb impression was given on the document after it had been written out
and completed. The fact that the defendant's thumb impression appears on
the paper is a strong piece of evidence in favour of the plaintiff and in the
majority of cases very slight evidence would be necessary to prove that the
thumb impression was given on the document after it had been written out
and completed. But the fact remains that if the evidence offered by the
plaintiff to prove that the document was duly executed or in other words,
That the thumb impression was given on the document after it had been
written out and completed is found to be unreliable, He cannot be deemed
to have discharged the onus properly. Regarding the presumption under
section 114 of the evidence act, The court held that although a certain
presumption may arise in favour of the plaintiff, Yet it may be rebutted at
the same time by circumstances brought into light in the plaintiff's own
evidence by means of cross - examination or otherwise and independently
of the evidence adduced by the defendant. Thus, The court held that the
mere admission of the thumb impression or signature does not shift the
burden from the plaintiff. In the same volume in chudhai lal dass v. Kuldip
singh, Air 1931 pat 266 - another division bench took the view that where
the defendant admits only that he had put a thumb mark or signature on a
document which was not hand - note sued upon, The admission does not
amount to admission of the execution of the hand - note and consequently
the burden of proving that the particular hand - note sued upon was duly
executed by the defendant is upon the person issuing upon the same.

the case reported in sundar chaudhari v. Lalji chaudhari, Air 1933 pat 129
was a case where after signing the document, The defendants never
allowed it to depart from them or to come into the possession of any other
person. In that context, The court held that the execution does not mean
mere signing, But it means all acts necessary to make the parties to the
contract bound thereby. If a man merely signs a contract and puts it in his
pocket and does not allow it to depart from him as his act, It is not
execution. In abdul hasan v. Mt. Wajih - un nissa, Air 1948 pat 186, It was
held that a mere signature does not necessarily and automatically render
effective and operative the document to which it is appended. The
signature of a document under a complete misapprehension as to the
nature of the transaction therein set out, That is to say, Under a mistake,
Does not render the document effective or operative. So, Also where there
is an antecedent oral agreement between the parties to a written agreement
that some or any obligation thereunder shall not arise until the fulfilment
of some condition precedent, The document although signed, Will not
become operative until the fulfilment of the condition precedent. Therefore,
The term 'execution' in relation to a written document means the placing
by the executant of his signature or other identification mark such as a
thumb - print thereon in or accompanied then or later by circumstances
which sufficiently demonstrate the intention of the executant to give effect
and operation to the instrument signed by him. The case ram pragas singh
v. Gajendra prasad singh, Air 1976 pat 92 is a judgment by a learned single
judge. There, The suit was on a handnote. The admission made by the
defendant was that the defendant gave his thumb impression on a blank
paper to a third person from whom he took certain loan. Dealing with the
contention, The court below, Considering the earlier decisions in air 1931
pat 266 and other decisions took a different view. The decision reported in
sahdeo mauar v. Pulesar nonia, Air 1930 pat 598, Was cited before the
learned single judge. In that decision, It was held that the burden of proof
was on the defence to explain how the handnote bearing the defendant's
thumb impression came into existence. The learned single judge took the
view that the decision in sahdeo mauar v. Pulesar nonia, Air 1930 pat 598
has been impliedly overruled in the decision in chulhai lal dass v. Kuldip
singh, Air 1931 pat 266. This line of reasoning has been followed by the
madras high court in the decisions reported in surayya v. Koduri
kondamma, Air 1950 mad 239, N. Ethirajulu naidu v. K. R. Chinnikrishnan
chettiar, Air 1975 mad 333, Jammu and kashmir high court in brij mohan
bakhshi v. Amar nath bakhshi, Air 1980 j and k 54 and the allahabad high
court in ch. Birbal singh v. Harphool khan, Air 1976 all 23.

as already stated, A learned judge of this court in the decision reported in

seithammarakkath mammad v. Kovom - matath mammad, 1957 ker lt 328 :
(air 1957 ker 63) considered the patna decisions, Viz., Air 1931 pat 219 and
air 1930 pat 598 and preferred the decision of the division bench in air 1931
pat 219. The learned judge held that the onus in a case of this type rests on
the plaintiff to prove both the fact of execution and the advance of
consideration. The other line of reasoning has been adopted in the decision
reported in dulchand mulchand v. Hasanbi, W/o. Ali razakhan, Air 1938
nag 152. There is also a division bench decision. There, The question arose
whether the documents of title obtained by the plaintiff are the result of
sham transaction entered into with a view to deprive two of the transferor's
sons of their inheritance. The contention was that the documents were not
meant to be acted on and were never given effect to. The court below throw
the burden of proof on the plaintiffs and held that they had not proved the
execution of these documents. The contentions of defendants 3, 4 and 5 in
the written statement were extracted in the above case, Which are as
follows :

"the recitals of the mortgage deed that their houses were assigned to
hasanbi in lieu of her mehr by registered deed of transfer dated 2nd
october 1912 and 31st august, 1920 are not true. That since before the year
1910 there was ill - feeling between khan bahadur ali raza khan and his
sons walayat ali khan and umardaras khan due to certain family affairs.
Khan bahadur ali raza khan with a view to deprive these people from
inheritance of his property executed the above two bogus assigned deeds
in favour of mt. Hasanbi which were never intended to be acted upon by
anybody. "

according to the court below, The above pleading is an admission on the

part of the defendants, Which throws the burden of proving the sham
nature of the transaction upon the defendants who assert it. Their lordships
considered the various decisions with regard to the admission of the
documents. Their lordships relied on the decision in devidas v. Mamooji,
(1924) 20 nag lr 7 : (air 1924 nag 103) wherein it was held that admission by
the defendant that a document bears his signature coupled with the
assertion that it had been placed upon a blank piece of paper upon which
the rest of the document was fraudulently scribed was not an admission of
execution and so the burden of proof lies upon the plaintiff. It seems,
Vivian bose, J., One of the parties to the decision came to the opposite
conclusion in another second appeal. The division bench at page 154 held
as follows:
"we have no quarrel with the general proposition that proof of signature is
not necessarily proof of execution and that an admission that a document
bears a man's signature is not necessarily an admission of execution. The
circumstances of the case may negative such an inference. "

thus, The division bench considered that it was a case where after signing
the document it was never acted upon and held that it would not amount
to, Not even to conditional execution. It would not create even a contingent
interest in the subject - matter of the instrument. Then the court added as
follows:

"but surely if nothing else is known then the mere fact that a document is
proved to bear a certain signature and that it comes from proper custody
ought to be enough to raise an inference that it was signed with the
intention of execution. "

then the division bench relied on section 114 of the evidence act and held
that that is not the common course of human conduct, Nor yet the common
course of either public or private business. Another decision, Sahdeo
mauar v. Pulesar nonia, Air 1930 pat 598, Says that if a person has admitted
his signature, Then the burden shifts on to him as to the circumstances
under which he put the signature. To the same effect is the decision in
svaramakrishnyya v. Kasiviswanadham, Air 1957 andh pra 584. But there,
It was a case of a letter and the division bench held that there is nothing
with regard to the execution of the letter and held that if a signature of a
person appears in a letter, Then that person has to explain that it was not
written by him. The decision reported in lakshmamma v. Jayaram, Air 1952
mys 114, Takes the view that when the signature or thumb impression is
admitted, A presumption will arise that the document was executed by
such person. The above are the important decisions taking two different
views.

(13) in seithammarakkath mammad v. Kovommatath mammad, 1957 ker lt

328 : (air 1957 ker 63) varadaraja iyengar, J. Had occasion to consider this
question. The case relates to promissory note. The defendant by his written
statement denied the execution of ext. A1 promissory note. According to
the defendant, He had sought the good services of the plaintiff to intervene
on his behalf with one mohammad kunhi for the grant of a lease of
immovable property while he was urgently entraining, For madras,
Entrusted with the plaintiff a blank half sheet of paper with his thumb
impression for being filled up as a kychit for the purpose, As the plaintiff
had desired. Mohammad kunhi refused to accept any such make shift
arrangement. So, The blank paper remained with the plaintiff, The
defendant not having claimed it back. Subsequently, The plaintiff fell out
with the defendant's elder brother to consummate his marriage with the
plaintiff's niece. The plaintiff in his enmity had taken advantage of the
existence of the blank sheet with him to fill it up as the promissory note.
The decisions in air 1931 pat 219 and air 1938 nag 152 were cited before the
learned judge. The learned judge accepted the reasoning of the patna case.
With regard to the nagpur case, The learned judge held as follows :

"but the learned judges themselves say that the presumption will arise only
if nothing else is known and further that : "the initial burden of proving
execution of a document when it is denied is upon the person alleging
execution. "

the learned judge also held that for the admission by the defendant as to
his having affixed his thumb impression as well as signature in a bank
paper without stamp cannot amount to an admission as to the execution of
the promissory note. The learned judge also relied on the decision in
rajeshwar v. Kibhun, Air 1933 oudh 394 and also the decision in pirbhu
dayal v. Tularam, (1922) 68 ic 809 : (air 1922 all 401 (2)).

(14) in the decision in santha v. Rajappan pillai, 1986 ker lt 1235, Kalliath, J.
Followed the decision in 1957 ker lt 328 : (air 1957 ker 63) putting the
burden on the plaintiff. In (1990) 1 ker lt 456, Kalliath, J. Took a different
view following the decision reported in air 1938 nag 152. The learned judge
gave importance to the observations in air 1938 nag 152 that persons do not
ordinarily sign documents without intending to execute them, That is not
the common course of human conduct, Nor yet the common course of
either public or private business. In the case reported in a. Pathu v.
Katheesa umma, 1990 (2) ker lj 115, Padmanabhan, J. Followed the views of
the decision in air 1938 nag 152 and held that the burden is on the person,
Who says that he put the signature on the blank paper. It is worth noting
that in both the above decisions, The opposite views were not considered.
Then, There are other cases where it was held that if the executant is by
pardanation lady or illiterate lady, The burden is on the person who wants
to show that the document is not executed by such person. In some cases,
It was held that when both parties had adduced evidence, The question of
burden of proof vanishes.

after considering the above decisions, We prefer to follow the decision in

seithammarakkath mammad v. Kovom - matath mammad, 1957 ker lt 328 :
(air 1957 ker 63) and the decision in ramlakshan singh v. Gog singh, Air
1931 pat 219. According to us, Mere putting of signature does not amount
to admission of the execution of the document. Ordinarily, Signature
merely means putting one's name or any other mark to identify a person
making the mark. But when a word 'signature' is attributed with regard to
the written document, Which creates obligation on the person signing it, It
can only mean signing the document after the document is prepared and
completed. There, The signature is put to show that the person who signed
has agreed the terms and conditions of that document. The intention with
regard to the acknowledgement of the term should be there. When the
person signs the same, Then only it can be said that the person has
executed the document. Hence, According to us, When a person says that
he put the signature on a blank paper that does not mean that he had
admittedly executed the document. According to us, The decision in air
1938 nag 152 does not deal with a case where the signature was put on a
blank paper. That decision related to the case where a document was
executed, But it was stated that it was not intended to be acted upon. It was
in that circumstances that the court held that when a signature appears on
a document that amounts to admission of the execution of the document
and the burden is on the person disputing that the document has not come
into effect, To prove that it has not come into effect.

(16) it was then argued that a person will not entrust a signed blank paper
to another person without any intention. It is argued that a person signing
a blank paper would have agreed that he agrees for all the terms which the
plaintiff puts in the document and that it was in token thereof that he has
put his signature and hence, The burden should be shifted to the person,
Who had signed the papers. According to us, The contingency will not shift
the burden of proof. We cannot ignore the circumstances under which
where a person may be compelled to give signed blank paper to another
person. Person who signs the paper may not know what are the conditions,
Which will be imposed by the other side. Hence, In such circumstances, A
general proposition cannot be laid down that the burden should be on the
person, Who has subscribed his signature to a blank paper. As it was stated
in air 1931 pat 219, The fact that the defendant's thumb impression appears
on the paper is a strong piece of evidence in favour of the plaintiff and in
the majority of cases very slight evidence would be necessary to prove that
the thumb impression was given on the document after it had been written
out and completed. Thus, Evidence that has to be adduced by the plaintiff
in such case will be less onerous than in cases where there is complete
denial of signature and execution. But if the plaintiff's evidence is not
sufficient or unreliable that onus cannot be said to be discharged. We may
further say that always the burden of proof is on the person, Who wants to
get relief in the suit. As always stated, Onus of proof shifts during the
pendency of the litigation depending upon the nature of the evidence given
by either side. The plaintiff may give evidence regarding the execution of
the document. If the fact of thumb impression or signature is admitted,
That will give more reliability to the plaintiff's evidence. If such evidence
adduced by the plaintiff is reliable and if the plaintiff is able to discharge
his burden sufficiently, Then onus will shift on the defendant to show that
he had not executed the document. We only say that the plaintiff cannot
succeed in the case without giving evidence. Because the defendant had
admitted his signature, He had to give some evidence to show that the
document has been properly executed. Further things depend upon the
evidence adduced and on facts and circumstances of each case. When both
sides have adduced evidence, The question of burden of proof vanishes
into the air. Hence, We are of the view that the decisions given in (1990) 1
ker lt 456 : (1990) 2 ker lj 115 putting the burden on the defendant have not
laid down the correct law.

(17) so far as the present case is concerned, The suit was filed on the basis
of ext. A6 agreement for specific performance. As per that agreement, The
defendants had agreed to sell the property described thereunder for a
consideration of rs. 85,000/ - to the plaintiff. It is stated in that document
that on the date of the document, An amount of rs. 70,000/ - was paid as
advance and that document will be executed and the plaintiff will be put in
possession of the property within one year thereof. According to the
plaintiff, He was working in gulf countries. After the execution of ext. A6,
He went back and through his power of attorney, Pw 4, He requested the
defendants to execute the document after paying the balance amount. But
they refused to execute the document. Thereafter, Ext. A7 lawyer notice
was issued to the defendant. In reply, Ext. A8 notice was issued in which
the contention taken is that they did not execute ext. A6 document. They
had borrowed an amount of rs. 15,000/ - from the plaintiff two years back
and when the plaintiff came subsequently, He wanted security for the same
and towards the security, They gave the document with regard to their
property as well as they gave signed stamp paper and also signed blank
paper. Making use of these signed papers, The plaintiff had fabricated an
agreement for sale. The plaintiff has denied these allegations in the plaint
and has stated that he was always ready and willing to perform his part of
the contract. In the written statement, The defendants specifically taken the
contention that they did not execute the agreement. They have taken the
strong contention that they had only signed the stamp paper and the blank
paper. They also set up the case of loan transaction.

(18) oral evidence was adduced. Pws 1 to 4 were examined on the side of
the plaintiff and dw 1 was examined on the side of the defendants. The
defendants also have taken the contention that both of them are illiterate.
The lower court, On the basis of the decision in air 1975 mad 333 held that
the plaintiff had not discharged his burden properly. On the side of the
defendants, The first defendant was examined as dw 1. Pws 2 and 3 are the
witness to ext. A6. It has come out in evidence that the plaintiff had earlier
purchased portions of the property belonging to the defendants. The
document with regard to that was also produced. So, It is a case where the
plaintiff had dealings with the defendants earlier. Further, Pws 2 and 3
have given evidence to show that the defendants wanted to sell their
property and the plaintiff also was particular in purchasing the property.
This may be so because, Portions of the same property was purchased by
him. It has also come in evidence that the defendants are in need of money
(of course only rs. 15,000/ - admitted by them). The document was
prepared and it was signed at the shop of the first defendant. Pws 2 and 3
speak that the defendants signed the document in front of them after it was
prepared. According to us, On going through the evidence of pws 2 and 3,
It cannot be said that their evidence cannot be accepted. The only case
made against pw 3 is that he was involved in a criminal case. Ext. B2 is an
order passed by the judicial first class magistrate, Tirur in s. T. 1448/87. The
accused was directed to pay a fine of rupees 100/ -. The offence is not stated
in the order. It is stated by pw 2 that he was fined for gambling. We don't
think, Because of this incident, Pw's evidence can be disbelieved. On going
through the evidence of pws 2 and 3, It is found that they have given the
details of the execution of the agreement. The lower court pointed out
certain infirmities showing that one witness has said that the document
was given at the time of execution of the agreement, While the other
witness has said that it was given earlier. Further, According to the court
below, Pw 3 has stated that the entire amount was given at the time of
execution of the agreement. We went through the evidence of these
witnesses. We are of the view that on the whole their evidence can be
accepted. It is not stated that the document was given at the time of
execution of the agreement. What is stated is that for the preparation of the
'karar' it was given. It does not mean that the document was given at the
time of execution of the 'karar'.
(19) dw 1 gave evidence. According to him, He borrowed an amount of
rupees 15,000/ - from the plaintiff. It is difficult to believe that at the time
when the loan was taken, He was the only person who was present and
further he stated that it was for him alone that the loan was taken. Further,
He stated that he had borrowed the amount of rs. 15,000/ - for payment to
another person, Who was going to be examined. But that person was not
examined. In the above circumstances, We are of the view that the plaintiff
has proved execution of the document. Another circumstance pointed out
against the plaintiff is that it is not stated in the 'karar' that the previous
documents were given. We are of the view that the absence of mention of
the earlier documents will not take away the validity regarding the
execution of the document. The court below then took the view that the
plaintiff has not discharged his burden and that the plaintiff has not got the
entire amount to pay at the time of the agreement. The plaintiff stated that
he sold certain articles, Which were bought from abroad and made up the
entire amount of rs. 75,000/ -. There is no case for the other side that the
plaintiff is not a person, Who will not be able to pay the amount. The
plaintiff could have produced the bank pass book before the court below.
According to us, Once we find that the execution of the document is
proved, We are of the view that the plaintiff has also paid the amount and
it was not necessary to prove further that he was in possession of money.
Hence, We accept the evidence of pws 2 and 3 and hold that the plaintiff
had necessary funds. It has also come in evidence that the plaintiff was
ready and willing to perform his part of the contract.

(20) the next question is whether specific performance should be granted to

the plaintiff. According to the defendants, The area is more than what is
mentioned in the plaint. The property mentioned in the agreement as well
as in the plaint is having an extent of 12. 25 cents, Which is comprised in r.
S. No. 285/14 and includes shop buildings. The boundaries of the property
are definite. According to the defendant, The property was not measured
and the price of the property was not fixed on the basis of centage. We are
not able to accept this argument. As already stated, The plaintiff had
purchased portions of the property. He was aware of the nature of the
property. The defendants wanted to sell the balance portion on the basis of
the previous document. The parties knew what was the total extent of the
property and what was the balance with the defendants. It is not necessary
that the property should be valued on the basis of the centage. The value
can be fixed for the entire property. Hence, According to us, We cannot
accept the contentions raised by the defendants.

(21) then the another contention raised by the defendants is that in one of
the rooms, They are conducting business in rationed articles and if it is
sold, They will be put to great hardship. We are of the view that this
contention cannot be accepted. Once it is found that the document has been
executed, Normally, The rule is that the agreement will be specifically
enforced. The mere fact that it will cause hardship to the defendants cannot
prevent this court from passing any decree for specific performance. The
defendants have not brought to our notice any circumstance, Which
necessitate non - granting of specific performance.

(22) in the above, View of the matter, We set aside the judgment and decree
of the lower court. We allow this appeal and decree the suit as follows :

the plaintiff is given a decree of specific performance of ext. A6 agreement

and is also directed to deposit the balance amount of rs. 15,000/ - within a
period of four months from today. On such deposit, The defendants shall
execute the sale deed in favour of the plaintiff with regard to the plaint
schedule property. In default of the defendants executing such document,
The plaintiff shall request the court to cause the document to be executed
in favour of the plaintiff with regard to the plaint schedule property. Both
sides are directed to suffer costs. Cross objection is dismissed. Order
accordingly.

Section 19 and 25 -- Suit for cancellation of sale deed on basis of undue

influence and fraud -- Held -- law relating to proving of document is
concerned since signatures were admitted by the plaintiff himself, as
such there was no need of further proof of the execution of document
particularly when it was a registered document -- In the case of
cancellation of sale deed, the allegations relating to undue influence or
that of fraud are required to be proved like a criminal charge.

Admittedly, the plaintiff was the owner in possession of the land in suit.
The signatures in the disputed documents i.e. agreement of sale dated 07-
08-1995 and sale deed dated 27-08-1996 are also not denied by the plaintiff-
appellant. The dispute relates as to the fact if the fraud was played by
intoxicating the plaintiff for getting signed the documents in question. The
courts cannot close its eyes to the fact that the documents were registered
documents. It is hard to believe if every time the plaintiff was intoxicated
and signed the documents on separate dates. Plaintiff should have stated
on oath before trial court that the fraud alleged was played on him. In fact,
statement of PW.1, Chandrabhan (paper No. 43-A in trial court record)
shows he did not even state what he has pleaded in plaint particularly
regarding being intoxicated or being kept in dark as to contents of
agreement. of sale or that of sale deed. As far as, question of law relating to
proving of document is concerned since signatures were admitted by the
plaintiff himself, as such there was no need of further proof of the
execution of document particularly when it was a registered document.
Learned trial court in its findings on issue NO. 2 has clearly mentioned that
PW 1, Chandrabhan has admitted the execution of the documents. It is a
settled principle of law that in the case of cancellation of sale deed, the al-
legations relating to undue influence or that of fraud are required to be
proved like a criminal charge, which the plaintiff has miserably failed to
prove before the trial court. As such, neither the trial court nor learned
lower appellate court erred in law in dismissing the suit and the appeal. In
view of admissions on record that impugned documents stood proved. the
substantial question of law is answered accordingly.

Lastly, it is argued on behalf of the appellant that no permission of con-

solidation authorities was obtained prior to the execution of the sale deed,
as such the learned courts below have erred in law by dismissing the suit
and appeal. Learned counsel failed to show me the provisions of law in UP
Consolidation of Holdings Act, 1953 by which the permission of the
consolidation authorities was necessary after the year 1991 before transfer
of the land. In fact, the bar to transfer a land during consolidation
operations was contained in sub Clause (ii) of Clause (c)'' of sub Section (1)
of Section 5 of the U.P. Consolidation of Holdings Act, 1953. However, said
provision was repealed and omitted vide U.P. Land Laws (Amendment)
Act, 1991 (UP Act 30 of 1991). Therefore, there is no substance in the
argument advanced on behalf of the appellant that the permission of the
consolidation authorities was required before transfer of land as the
impugned documents are of the year 1995 and 1996.

Registration Act -- S.67

Registration Act, 1908, Section 66 -- Registration of documents -- Validity

about contents -- When no presumption made -- The mere factum of
registration of a sale deed will not raise a presumption of valid execution
-- If the person who had been alleged to have executed the sale deed
denies it’s execution, the opposite Party is having onus to prove it’s due
execution.

Indian Evidence Act, 1872, Section 134 -- Mode of proof -- About

execution of a Registered Sale Deed -- The person who had executed had
denied it’s execution -- The mere factum of registration of a sale deed
will not raise a presumption of valid execution -- If the person who had
been alleged to have executed the sale deed denies it’s execution, the
opposite Party is having onus to prove it’s due execution

The questions, which require determination in the present appeal,

therefore, are whether the defendant Nos. 1 and 2 could prove the due
execution of the sale deed (Exhibit-3/Ka) and whether the said sale deed
was fraudulently obtained.

17. The learned First Appellate Court though has held that the sale deed
(Exhibit-3/Ka) was fraudulently obtained, it, however, has wrongly applied
the provision of section 68 of the Evidence Act, in holding that since none
of the attesting witness to the deed has been examined to prove the due
execution, the defendants failed to prove the execution of such deed. The
learned lower appellate court, however, at the same time has held that the
defendant Nos. 1 and 2 have failed to discharge the burden on proving the
due execution of such sale deed.

18. Exhibit-3/Ka being deed of sale, the same is not required to be attested
by any attesting witness under the law. Hence, section 68 of the Evidence
Act cannot be applied in the matter of proof of execution of the sale deed,
as the said document is not required by law to be attested.

19. In the case in hand, the plaintiff Nos. 1 and 2 having denied the
execution of the sale deed (Exhibit-3/Ka), the burden lies on the contesting
defendants to prove that such, sale deed was signed or the plaintiff Nos. 1
and 2 put their thumb impressions on such document, in view of section 67
of the Evidence Act. Though presumption about due execution of a deed
registered under the provisions of Registration Act, 1908 is to be drawn,
such presumption is always rebutable. The registration of the document or
the issuance of the certificate of the registration under the provisions of the
Registration Act, 1908, does not dispense with the necessity of proof of
execution when the same is denied, though the endorsement of the
registering authority may furnish some evidence about such execution but
the same is not conclusive and can always be rebutted.

20. It appears from the pleadings of the plaintiffs in the plaint as well as the
evidences adduced in support of such pleading that the execution of the
sale deed (Exhibit-3/Ka) has been denied though the said document has
been registered under the provisions of the Registration Act and an
endorsement has been made by the registering authority to that effect.
Section 67 of the Evidence Act puts the burden on the defendant Nos. 1 and
2, who assert such execution by the plaintiff Nos. 1 and 2, to prove their
thumb impressions on such documents. The defendant Nos. 1 and 2 in
order to prove such thumb impressions have examined the scribe of the
sale deed, namely the DW-5, who though in chief has stated that he took
the thumb impressions of the plaintiff Nos. 1 and 2 in the document,
during cross-examination he has stated that he does not know the plaintiff
Nos. 1 and 2 personally. The DW-5, the scribe, therefore, could not prove
that the thumb impressions which were taken by him in the said document
are of the plaintiff Nos. 1 and 2. It is also on evidence that the plaintiff No. 2
did not go to Mangaldoi on 18.4.1996 and the mother of the defendant No.
2 put the thumb impression on behalf of the plaintiff No.2. That being the
position, the thumb impression of the plaintiff No. 2 could not be proved
by the contesting defendants. Admittedly the land has not been partitioned
between the plaintiff Nos. 1 and 2 and hence, even if the plaintiff Nos. 1's
thumb impression in the said document is taken as proved, the land being
unpartitioned, both the plaintiff Nos. 1 and 2 having joint interest over the
land, no title can be passed on to the defendant Nos. 1 and 2 on the basis of
the said sale deed being Exhibit-3/Ka, the defendant Nos. 1 and 2 having
failed to prove the thumb impression of both the plaintiffs. The question
whether the sale deed was fraudulently obtained, in view of the above,
need not be gone into.

In view of the aforesaid discussion, I am of the view that the decree passed
by the learned First Appellate Court needs no interference in second
appeal, for the reasons recorded above.

22. The appeal, therefore, is dismissed being devoid of merit. Keeping in

view the facts and circumstances of this case, the parties are directed to
bear their own cost in the present appeal.

Sections 5 and 25 -- Certified copy of document -- Protative value

depends on host of factors -- Held, Proof of document is different from
the evidentiary value thereof.

While holding that a certified copy of sale deed is admissible in evidence, it

should be borne in mind that there is difference in admissibility and
probative value of documents. Admissibility of a document is one thing
and its probative value quite another. These two things cannot be
combined. A document may be admissible and yet may not carry weight.
A proof of document is something which is independent from the
evidentiary value of the document. (See AIR 1983 SC 684 , State of Bihar v.
R. K. Singh; AIR 1981 Bombay 446, Z. Sorabjee v. Mirabelle Hotel. There
may be situation where the execution of a sale deed may be denied by the
vendor, or heirs or by some- one who steps in his shoes, in such a situation
the execution must be proved as required under Section 67 of the Evidence
Act, mere production of the certified copy of sale deed will not be
sufficient."

The period of limitation is three years in respect of cancellation of sale

deeds only. So far recovery of possession is concerned, it is 12 years under
Article 64 of the Limitation Act. There is no dispute at the Bar that the
counter claim must be within limitation as held by this Court in the case of
AW Figgis and Company Pvt. Ltd. v. Barduar Tea and Timber Company
Ltd., (1992)1 Gauhati LJ 56.

Promissory estoppel -- Distinction with admission of fact. Admission is

an important piece of evidence. But it is open to the person who made
the admission to prove that those admissions are not true. Admission is
one thing, estoppel is another. Admission is a piece of evidence but
estoppel creates title.

EVIDENCE ACT, 1872-- Section 67 -- Execution of documents -- Proof of -

- A person executing documents may deny contents in which case the
party relying documents may be required to prove his knowledge of
contents. When the execution of a document is denied, the party seeking
to prove that document must not only prove that the alleged executant
has signed that deed, but he must also prove that the executant had
signed the same with the knowledge of its contents. What facts and
circumstances have to be established depend on the pleas put forward. If
the only plea taken is that the executant has not signed the document and
that the document is a forgery, party seeking to prove the execution of a
document need not adduce evidence to show that the party who signed
the document knew the contents of the document. Ordinarily no one is
expected to sign a document without knowing its contents but if it is
pleaded that the party who signed the document did not know the
contents of the document then it may in certain circumstances be
necessary for the party seeking to prove the document to place material
before the court to satisfy it that the party who signed the document had
the knowledge of its contents.

Now coming to the question whether the suit properties fell to the share of
the first defendant or the second defendant, it was pleaded in the plaint
that the second defendant had specifically admitted in a document
executed by him on January 12, 1952 that the suit properties were of the
exclusive ownership of his brother and that he had no right on the same. In
his written statement, the second defendant had pleaded that the deed in
question is a forgery and that he had not executed it. The trial court came
to the conclusion that the said deed was executed by the second defendant.
The first appellate court also did not accept the contention of the second
defendant that he did not execute that deed. On the other hand, the first
appellate court held that the same was obtained in misrepresentation. No
plea of misrepresentation was taken in the written statement. No issue as to
whether the said deed was obtained by misrepresentation was raised.
Therefore it was not open to the first appellate court to consider whether
the deed in question was invalid on the ground that it was obtained by
misrepresentation. The only plea put forward by the second defendant was
that the deed was a forgery. Both the trial court as well as the first appellate
court have rejected that plea. Mr. Sanghi, the learned Counsel for the
appellant contended that when the execution of a document is denied, the
party seeking to prove that document must not only prove that the alleged
executant has signed that deed, but he must also prove that the executant
had signed the same with the knowledge of its contents. What facts and
circumstances have to be established to prove the execution of a document
depend on the pleas put forward. If the only plea taken is that the
executant has not signed the document and that the document is a forgery,
party seeking to prove the execution of a document need not adduce
evidence to show that the party who signed the document knew the
contents of the document. Ordinarily no one is expected to sign a
document without knowing its contents but if it is pleaded that the party
who signed the document did not know the contents of the document then
it may it certain circumstances be necessary for the party seeking to prove
the document to place material before the court to satisfy it that the party
who signed the document had the knowledge of its contents.

Indian Evidence Act, 1872, Section 67 -- Documents -- Proof of

handwriting and signature of executant -- Title Suit -- Main question
which fell for decision was whether the plaintiff had sold the Suit land
to the defendant by registered sale deed -- Plaintiff had denied execution
-- Defendant examined himself and had supported his version by stating
that the sale deed was executed in his presence by the plaintiff who had
signed on the sale deed -- DW2 also had deposed that he had put his
thumb impression on the sale deed and has seen the payment of
consideration by the defendant to the plaintiff -- Held, when execution
of document in question is denied, the party relying on that documents
must prove its execution, handwriting and signature, through
indpendent evidence. (Paras 1 to 4).

Indian Evidence Act, 1872, Section 134 -- Number of Witnesses, to prove

execution of a document -- Denied by executant -- Deposition to prove,
by the proponent -- Only through independent evidence regarding
handwriting and signature the document may be proved -- Evidence
deposed by the beneficiary himself will not be relied. (Para 4).

In support of his claim of purchasing the suit land defendant set up the
registered sale deed allegedly executed in his favour by the plaintiff. The
execution of the sale deed in favour of defendant was denied by the
plaintiff. It was therefore necessary, as required under section 67 of the
Evidence Act, for the plaintiff to prove the execution of the sale deed and
signatures appearing on the registered sale deed. Admittedly b the
defendant did not adduce any evidence to prove execution of the sale deed
dated 20.3.80 by the plaintiff nor evidence was adduced by-him to prove
the signature of the plaintiff on the said sale deed.

A reading of section 67 of the Evidence Act would clearly show that where
execution of document in question is denied, the party relying on that
document must prove its execution and signature of the person who have
allegedly signed it. It is admitted position that no evidence has been
furnished to prove the execution of the document or for proving the
signature of the plaintiff on the said document. In these circumstances, it is
not possible to accept the argument of Mr. Bhowmik that the statement of
the defendant himself as DW 1 should be held to be sufficient proof of
execution of the document and signature thereupon by the plaintiff.
Requirement of section 67 must be satisfied in the i letter and spirit by
tendering evidence for proving the execution of the document and
signatures of those who have signed it.

Code of Civil Procedure -- Order 18 Rule 1 -- Execution of document --

Consideration -- In case where the execution of document is admitted, a
presumption was raised in favour of the plaintiff that the said document
was made for consideration and the presumption was raised, it had the
effect of shifting the burden on to the defendant, to establish that there
was no consideration.
Section 45 -- Expert opinion - Proof of will - Identity of signature of
attestator in a will is not relevant - So far as will is concerned, unlike
other documents, which require by law to be attested cannot be used as
evidence unless atleast one attesting witness called for the purpose of
proving its execution if there be an attesting witness alive and capable of
giving evidence.

Section 69 - Proof of will Opinion of expert as to the identity of the

signature of the testator in a will, is not a relevant fact to decide the issue,
whether will has been validly executed - - If the witness could not be
found the execution could be proved by examining a witness who could
identify the signature of attestor.

Section 71 - Section 71 is attracted when the attesting witness denies or

fails to recollect the execution of the document - In that case the
execution 'can be proved by other evidence, namely by examining the
scribe or a person who could identify the signature of the attestor.

a question immediately would arise : what is the legal position in the

matter of proof of a will? we have already seen that will is a document
which is required by law to be attested. Such documents shall not be used
as evidence until at least one attesting witness has been called for proving
its execution, If there be an attesting witness alive and subject to the
process of court and capable of giving evidence. The proviso to this section
however relaxes the rigour of this procedure in regard to proof of
execution of the documents required by law to be attested, Not being a
will provided the said documents have been registered in accordance with
the provisions of the registration act. It therefore follows that in regard to
those documents other than a will it is not necessary to call an attesting
witness to prove the execution. But it is necessary to call an attesting
witness to prove the execution of even such a registered document if its
execution by the person by whom it purports to have been executed is
specifically denied. It is thus clear from this section that, So far as a will is
concerned, The same, Unlike other documents which require by law to be
attested, Cannot be used as evidence unless at least one attesting witness is
called for the purpose of proving its execution if there be an attesting
witness alive and capable of giving evidence. Where no such attesting
witness can be found, It is not as if, The execution of such documents
cannot be proved at all. A reference in this connection to s. 69 evidence act
is relevant. This section prescribes the mode of proof of a document,
Referred to in s. 68, Where no such attesting witness can be found. The
section provides that if the attesting witness is not found it must be proved
that the attestation of one attesting witness at least, Is in his handwriting,
And that the signature of the person executing the document is in the
handwriting of that person. This is a general statement of law. But in
regard to proof of a will the expression "and that the signature of the
person executing the document is in the handwriting of that person", In
my judgment, Is not available in view of the provisions contained in s. 63
(a) which says that it is not necessary that the will for its validity, Shall
contain the signature of the testator. It therefore follows that in the case of a
will, If the attesting witness cannot be found, The execution can be proved
by examining a witness who can identify the signature of the attestor. In
other words there is no need to establish that the signature of the person
executing the will (that is, The testator) is in his handwriting as in the case
of other documents referred to in the section. Identical provision is
contained in s. 70 of the evidence act also. This section says that the
admission of a party to an attested document of its execution by himself
shall be sufficient proof of its execution as against him, Though it be a
document required by law to be attested. The admission referred to in this
section, Is the admission of a party to the document and therefore when an
executant makes an admission the exception embodied in this section is
applicable. That is why it is said that this section is an exception to general
rule contained in s. 68. Section 70 however, Is inapplicable to a will because
the executant of a will, Which will become effective only on the death of
the executant, Will not be available to admit the execution at the relevant
time. It is therefore clear that by enacting these sections, Namely ss. 68, 69
and 70, The legislature wanted to treat a will differently from the other
documents, Which like a will, Are required by law to be attested. A
reference to s. 71 of the evidence act also is relevant in this context. This
section speaks of a situation, Brought about by the attesting witness either
denying the execution or not recollecting the execution of the document.
In such cases that is, Where the attesting witness either denies or does not
recollect the execution of the document, The execution of the document
required by law to be attested, Can be proved by other evidence. Subject to
what is stated above, In my judgment, A will also requires to be proved
like any other document. Whatever that be, In order to have a will received
in evidence, The propounder must prove that the will has validly been
executed, That is, Executed in accordance with the provisions contained in
s. 63 of the evidence act.

it is in this backdrop the question whether the opinion of an expert as to the

identity of the signature of the testator in the will is relevant to decide the
issue, Whether the will in dispute has validly been executed. When would
the opinion of an expert be relevant, Is stated in s. 45 of the evidence act. It
provides that when the court has to form an opinion upon a point of
foreign law, Or of science, Or art, Or as to the identity of handwriting or
finger - impressions, The opinons upon that point, Of persons specially
skilled in such foreign law, Science or art, Or in questions as to identity of
handwriting or finger - impressions are relevant facts. The expert must
necessarily be one who has acquired certain special knowledge, Skill or
experience in any science or art or profession. The opinion of an expert
therefore is not relevant where the subject - matter of enquiry is not one
pertaining to any of the matters enumerated under the section. In other
words an expert witness may not be asked to state his opinion upon a
question of fact which is the very issue that requires decision on other
evidence, The production whereof is controlled by the other provisions of
the evidence act. For instance an expert cannot be allowed to give his
opinion upon the construction of documents because this, Being a matter
of law, Is a question solely for the court to decide. Concisely stated :

"it is only where the matter inquired of lies within the range of the peculiar
skill and experience of the witness, And is one of which the ordinary
knowledge and experience of mankind does not enable them to see, What
inference should be drawn from the facts, That the witness may supply
opinion as a guide".

kennedy v. People, 39 ny 245 that means, The opinion of experts is not

admissible in regard to matters upon which the court can form a judgment
from other evidence and circumstances.

in regard to the execution of a will, The court has to form a judgment from
the evidence, The propounder may let in following the procedure
prescribed under ss. 68, 69 and 71 of the evidence act. Even at the risk of
repetition i would in this context refer to s. 63 (a), According to which the
first stage in the execution of the will can be accomplished by signing the
will by adopting any one of the three methods namely, (1) the testator
putting his signature, (2) the testator putting his mark or some other person
putting his signature in the presence of the testator and under his direction.
That means in order to say that a will has validly been executed it is not
necessary that it should contain the signature of the testator; but on the
other hand it is enough if the testator affixes his mark or some other person
signs the document in the presence of the testator and under his direction.
And therefore, In a case where the expert opines that the signature seen on
the will is not that of the testator but at the same time the execution has
validly been proved, Can the court still hold that the will is not valid
relying on the opinion of the expert in preference to the uncontroverted
evidence proving the execution of the will? my answer is no, Because as
already noted, Under law to hold that a will is valid, It is the execution of
the will within the meaning of s. 63, Succession act that is required to be
proved unlike in the case of an ordinary document where under s. 67,
Evidence act the signature should be proved. It may in this context be
relevant to note that a propounder can possibly contend that the signature
which is opined to be not that of the testator by the expert, In fact is not his
signature but only a mark put by him within the meaning of s. 63 (a).,
Succession act. The court therefore has no need to form an opinion on the
question as to identity of the signature of the testator. This being the
position in law, In my judgment, The opinion of the expert as to the
identity of the signature of the testator in a will is not a relevant fact.

Section 68 -- Exemption from examination of attesting witnesses -- The

proviso to Section 68, comes into play if there is no denial of execution of
documents -- To consider the applicability of the proviso, there must be
clear and specific pleadings -- Where the gift dead in question,
challenged to be forged one and no attesting witnesses produced, no
inference to execution can be drawn.

Under the proviso to Section 68 the obligation to produce at least one

attesting witness stands withdrawn if the execution of any such
document, not being a will which is registered is not specifically denied.
Therefore, everything hings on the recording of this fact of such denial.
If there is no specific denial, the proviso comes into play but if there is
denial, the proviso will not apply in the present case as held there is clear
denial of the execution of such document by the plaintiff, hence the High
Court fell into error in applying the said proviso which on the facts of
this case would not apply. In view of this the very execution of the gift
deed is not proved.

1981 Legal Eagle 341

IN THE ALLAHABAD HIGH COURT

Equivalent Citations : 1982 AIR(ALD) 149 : 1982 (8) ALR 149 : 1982 AWC
126

[Before :DEOKI NANDAN, J.]

Noor Jahan Begum

versus

Abrar Ahmad Khan and another

Case No. : Second Appeal No.559 of 1976

Date of Decision : 22/12/1981

Advocates Appeared :

Section 67 - Execution and attestation of Nikahanama - - Signature and

thumb impression of the execution proved by attesting witnesses -
Handwriting of the person writing the said document was not necessary
to 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 persons handwriting must be proved
to be in his handwriting."

The section is in two parts. The first part relates to the proof of signature
and the other part relates to the proof of hand-writing. Where a document
is proved to be executed by proving the signature or thumb-impression of
the executant and proved to have been attested by witnesses by proving
their signatures or thumb impression, it is not necessary to also prove the
hand-writing of the person who has written it. Proof of execution of a
document, or where it is required to be attested, proof of attestation also,
are sufficient to make the contents of it admissible. If that were not so,
typewritten documents would be entirely in admissible in evidence. It had
been stated by the witnesses who proved the Nikahnama that the contents
of it were already written and were read out to the parties before they and
the witnesses signed it. That was sufficient proof of the execution and
attestation of the Nikahnama. It was not necessary to further prove the
handwriting of the person who had written the Nikahnama. The view of
both the courts below on this point proceeds on a wrong interpretation of
S.67 of the Indian Evidence Act. The next question which arises in this case
is whether the amount of the dower specified in the Nikahnama is
decipherable in view of the soiled condition of the document. One of the
grounds of appeal in this Court was that it is decipherable. I took the
assistance of Mr. M.A. Qadeor, Advocate, who is well acquainted with thg
Urdu language and was not a counsel for either party in this case. He
stated before me that the amount of dower specified in the Nikahnama
could be Rs. 10,000/- and it could in no case be Rs. 500/-. I have no reason to
doubt his statement and accept it to be correct.

Section 67-Attestation of sale-deed-If a person relies on a sale-deed-Not

necessary for him to prove it by producing attesting witnesses-1966
ALJ149-reliedon.

There is no provision under the Transfer of Property Act which requires

attestation of a sale-deed. If a person relies upon a sale deed it is not
necessary for him to prove it by producing the attesting witnesses. He is
required to prove the document as provided under Section 67 of the
Evidence1 Act which provides the manner of proof of a document. It
requires 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 hand
writing of so much of the document as is alleged to be of that person's
hand-writing must be proved to be in his own hand-writing. If the
person relying upon the document proves the signature or the
handwriting of the executants of the document, the document is said to
have been proved. The Judge Small Causes Court relied upon the
statement of the plaintiff that the sale deed was executed in his presence
by Nazir Khan and he had put his signature on the said document. This
statement was believed. It was not necessary under the law to produce
the attesting witness to prove the execution of the sale-deed.

Sri Ashfaq Ahmad Ansari, learned counsel for the petitioners, submitted
that the sale-deed was not proved as none of the attesting witnesses of the
sale-deed was produced to prove the execution of the sale deed. He placed
reliance upon the decision Rajammal v. Chinnathal, AIR 1976 M4; wherein
it has been held that once the execution of a document cannot be admitted
in evidence unless at least one attesting witness has been called for proving
the execution of the document, if alive, and subject to process of the Court
as provided under Section 68 of the Indian Evidence Act. In this case the
document in question was a mortgage deed. Section 68 of the Indian
Evidence Act, 1872 provides that if a document is required by law to be
attested, it shall not be used as evidence until one attesting witness at least
has been called for the purpose of proving its execution, if there be an
attesting witness alive and subject to the process of the Court and capable
of giving evidence.

5. The attesting witnesses are required to be produced to prove a document

when such a document is required by law to be attested. A will is required
to be attested under Section 63 of Indian Cessation Act. A mortgage-deed is
required to be attested under Section 59 of the Transfer of Property Act.
There is no provision under the Transfer of Property Act which requires
attestation of a sale-deed. If a person relies upon a sale-deed it is not
necessary for him to prove it by producing the attesting witnesses. He is
required to prove the document as provided under Section 67 of the
Evidence Act which provides the manner of proof of a document. It
requires 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 hand writing of so
much of the document as is alleged to be of that person's hand-writing
must be proved to be in his own hand-writing. If the person relying upon
the document proves the signature or the hand-writing of the executants of
the document, the document is said to have been proved. In Gajraj and
others v. Board of Revenue, UP., Allahabad and others, 1966 ALJ 149, it has
been held that in order to prove the writing of a person it is not necessary
that the person must know the language in which the document has been
written. If he deposes that the execution has been made in his presence and
he has seen the executant putting his signatures in his presence, the
document stands proved.
Section 68 -- Proof of Execution -- The proof of execution document,
which is required by law to be attested -- Where a registered gift deed
was sought to be produced and no objection to validity was raised either
in written or in cross examination -- There will be no necessity to call for
attesting witnesses in proof of the said document.

Sections 3 and 123 -- Attestation of Document -- Evidence Act, 1872,

Section 68 -- Execution of registered gift deed against which objections
raised and validity of gift deed challenged -- The objection cannot be
allowed to be raised for the first time in the second appeal, the question
being mixed question of law and fact -- Held, further that to prove the
gift deed, it was necessary to call attesting witnesses in the witness box.

"An attesting witness must be a person who signed the document

purporting to do so as an attesting witness. I have examined the said
document and find that this document has been only attested by one
witness namely Sobha Ram. The name of Ram Saran Dass appears in the
said document as that of a scribe and he is only an identifying witness who
has identified the execution made before the Sub-Registrar. Thus, it is
evident that the gift deed which was the basis of the suit and which alone
could confer the title of the ownership on the plaintiff has not been proved
in accordance with the provisions of Section 123 of the Transfer of Property
Act and in view of the same the trial Court was not justified in placing
reliance on this document."

Sobha Ram was not the attesting witness for the gift deed. He was only an
identifying witness before the Registrar as seen at page 2 of the original gift
deed. The lower appellate Court has totally ignored the categorical
evidence of P.W. 6 stating that he has also signed as witness. Section 3 of
the Transfer of Property Act specifically states that no particular form need
be followed in the matter of attestation. It can be at the first, as in this case,
or at last page.

The High Court, however, has rightly noticed that the gift deed was
executed by Kanwar Chander Raj Saran Singh. However, the High Court
held that the gift deed has not been duly attested as required under section
123 of the Transfer of Property Act. The High Court in the course of
judgment observed as follows :-

"From the perusal of the gift deed, it is quite evident that this was executed
by Kanwar Chander Raj Saran Singh on 18-1-1961. No one has signed as a
witness to the document. The scribe Ram Saran Dass has written "dated
18th January, 1961 Bakalam Ram Saran Dass". Later on, on 9th of February,
1961, the said document was presented for registration by one Janardhan
Sharma who claimed himself to be the Mokhtiar-a-Aam of donor Kanwar
Chander Raj Saran Singh. The necessary power of attorney in his favour
dated 18th of February, 1953 was also produced before the Sub-Registrar as
is evident from his endorsement made on 9th of February, 1961. He was
identified before the Sub-Registrar by Ram Saran Dass the scribe and one
Shabha Ram. According to the learned Counsel for the appellant, since
Janardhan Sharma, the Mukhtiar-a-Aam of the donor Kanwar Chander Raj
Saran Singh admitted the execution of the document before the Sub-
Registrar and Ram Saran Dass, the scribe and Shabha Ram attested the
same before Sub-Registrar it will amount to attestation as required under
Section 123 of the Transfer of Property Act. In support of this contention,
he relied upon Girja Datt Singh v. Gangotri Datt Singh, AIR 1955 SC 346
and Narain Singh v. Parsa Singh alias Parsu, 1971 Cur LJ 195.

After the hearing the learned Counsel for the parties at a great length, as
observed earlier, it appears that before the trial Court no such objection
was taken specifically either at the time of admission of the document
Exhibit P.W. 5/1 or at the time of the arguments. It was only at the appellate
stage that this objection was taken on behalf of the defendant that the gift
deed on the basis of which the plaintiff claimed himself to be owner of the
site in dispute, is not a valid document as it was never attested by any of
the witnesses as required under the Transfer of Property Act. This objection
prevailed with the lower appellate Court. The argument of the learned
Counsel for the appellant that the admission made by Janardhan Sharma,
Mukhtiar-a-Aam of the donor and signed by the scribe Ram Saran Dass
and Shabha Ram before the Sub-Registrar, will amount to attestation, has
no merit. The document was required to be attested at the time when it
was actually executed on 18-1-1961 by Kanwar Chander Raj Saran Singh.
Since no one attested the document at that time, the subsequent signatures
of the scribe and Shabha Ram who identified the Mukhtiar-a-Aam
Janardhan Sharma before the Sub-Registrar, could not fill up the lacuna.
Under sub-section (2) of Section 35 of the Registration Act, the registering
officer may, in order to satisfy himself that the persons appearing before
him are the persons they represent themselves to be or for any other
purpose contemplated by this Act, examine any one present in his office.
Thus Ram Saran Dass and Shabha Ram only identified the Mukhtiar-a-
Aam Janardhan Sharma in order to satisfy the registering officer. In
Timavva Dundappa Budihal v. Channava Appaya Kanasgeri, AIR 1948
Bom 322, it has been held that signatures made by the Sub-Registrar while
he made endorsement on the document admitting it to registration and the
signatures of the identifying witnesses made by them when they identified
the executant before the Sub-Registrar cannot be regarded as the signatures
of attesting witnesses. Moreover, at the time of registration, the donor
himself did not appear. It was only his Mukhtiar-a-Aam Janardhan Sharma
who presented the same for registration on his behalf. The authorities
relied upon by the learned Counsel for the appellant, are not at all
applicable to the facts of the present case and are clearly distinguishable.
Since, there was no attestation witness at the time of the execution of the
document on 18th of January, 1961, the lower appellate Court rightly came
to the conclusion that the gift deed, if is taken away as not duly executed,
the plaintiff cannot be held to be the owner of the suit land because he
claimed his title on the basis of the gift deed alone."

18. At this stage, let us extract the relevant section in Transfer of Property
Act and Evidence Act.

Transfer of Property Act :-

S. 3. In this Act, unless there is something repugnant in the subject or

context,-

"Attested" in relation to an instrument, means and shall be deemed always

to have meant attested by two or more witnesses each of whom has been
the executant sign or affix his mark to the instrument, or has seen some
other person sign the instrument in the presence and by the direction of the
executant, or has received from the executant a personal acknowledgment
of his signature or mark, or of the signature of such other person, and each
of whom has signed the instrument in the presence of the executant; but it
shall not be necessary that more than one of such witnesses shall have been
present at the same time, and no particular form of attestation shall be
necessary. [only relevant portion is set out]

"S. 123. For the purpose of making a gift of immoveable property, the
transfer must be effected by a registered instrument signed by or on behalf
of the donor, and attested by at least two witnesses.
For the purpose of making a gift of moveable property, the transfer may be
effected either by a registered instrument signed as aforesaid or by
delivery.

Such delivery may be made in the same way as goods sold may be
delivered."

The Indian Evidence Act

19. It is common ground that the defendants have not raised any objection,
leave alone specific objection as to the validity of execution/attestation of/in
gift deed. Naturally, there was no issue on this aspect. Even the witness
(P.W. 6) was not cross-examined from this angle. Hence we are unable to
sustain the contention of Mr. Verma that this being a pure question of law
can be raised at the appellate stage. This is a mixed question of fact and
law. Proviso to Section 68 of the Evidence Act dispenses with the necessity
of calling an attesting witness in proof of any document, except a Will,
which has been registered in accordance with the provisions of the Indian
Registration Act when there is no specific denial by the party against
whom the document is relied upon.

In this context, we may usefully refer to the decision cited at the bar.

21. In Venkata Reddi v. Muthu Pambulu, AIR 1920 Madras 588, a Division
Bench of the High Court had occasion to consider the scope of Section 68 of
the Evidence Act. After setting out Section 68 the Court observed as follows
:-

"I think the implication from the language of the section is that, if one
attesting witness has been called (if there be an attesting witness alive, etc.)
then the document can be accepted by the court (of Court, if it believes his
evidence) as evidencing a mortgage transaction as the necessary evidence
insisted upon by S. 68, Evidence Act, of a document required by law to be
attested has been given. In other words, the document can, on that
evidence, be treated by the court as having created the charge on
immovable property which it purports to create. S. 68 requires that only
one attesting witness (if alive) should be called for the purpose of proving
execution subject, of course, to the condition that that witness is subject to
the process of the Court and capable of giving evidence. The lower
appellate Court however, held that either two attesting witnesses should be
called when two are alive and that, even assuming that one only need be
called, he should, at least, be made to prove that another (or the other)
attesting witness besides himself also saw the execution. Hence it held that
the plaint document was not properly proved as a mortgage document as
one only of the attesting witnesses was called and he merely proved its
execution by defendant 1 and the attestation by himself (that witness) and
he was not asked about any other attestor having seen the execution."

While upsetting the above view of the lower appellate Court, the learned
Judges held as follows :

"The fact that the Evidence Act is ten years older that the Transfer of
Property Act has no relevancy in the consideration of this question. I might
add that S. 69, Evidence Act, says that, if no such attesting witness can be
found, proof that the attestation of one attesting witness at least is in the
handwriting of that witness and that the signature of the person executing
the document is in the handwriting of that person is proof which might be
accepted as sufficient by the Court. If S. 59, Transfer of Property Act, is
interpreted as we are invited to interpret it as adding another requisite
(even in the circumstances contemplated by Section 69, Evidence Act, that
is even where no attesting witness is alive or could be found), namely
direct proof that two attesting witnesses saw the execution, it would be
practically impossible in most such cases to adduce evidence of third
persons about attestation by two witnesses and many old mortgage
transactions could never be proved at all as such. Documents, say about 28
years old, where it is not at all unlikely that the two attestors and the
mortgagee have died (life not being too long in this country), cannot be
proved at all to be valid documents unless some third persons who did not
attest but merely happened to be present at the execution and attestation (a
very unlikely contingency) happened to be alive, remembered what
happened long ago of a transaction at which they were casually present
and could therefore be called to prove the attestation by two attestors. If
the argument is pushed to its logical limit, then even S. 90, Evidence Act,
which says that a document purporting to be 30 years old, can be
presumed to have been validly executed and attested, must be deemed to
have been overruled by the provisions of Section 59 of the later Transfer of
Property Act. No doubt where the provisions of Section 68, Evidence Act,
have been complied with by calling the attesting witness to prove the
execution by the mortgagor, and the attestation by himself (the witness)
and the document may therefore be accepted by the court as prima facie
sufficiently proved to be a valid mortgage, that prima facie proof can be
rebutted by proof on the other side, that the other witness or witnesses
who has or have also apparently attested the document did not really see
its execution and that the document therefore did not comply with the
requirements of Section 59, Act 4 of 1882."

In Lachman Singh v. Surendra Bahadur, AIR 1932 All 527 a Full Bench of
the High Court considered the issue and answered as follows :-

"Now let us consider the merits of the arguments, for the appellants, it is
argued that by compliance with the provisions of Ss. 68, 69 and 71,
Evidence Act, a party succeeds only in making the mortgage-deed, or any
other deed, like a deed of gift required to be attested by at least two
witnesses, admissible in evidence but in order to be able to show that the
document is a valid deed of mortgage or a valid deed of gift, he must also
prove further that it was attested by two witnesses. It is conceded on behalf
of the respondents and indeed the matter cannot be disputed that where
the validity of the deed propounded either as a deed of mortgage or as a
deed of gift is specifically in question, on the ground whether or not, the
requirements of Ss. 59 and 123, Transfer of Property Act, had been
complied with, the party relying on the deed must prove that it had been
attested by at least two attesting witnesses. But the question is where the
mere execution of a document has to be proved either because of the case
being ex parte or because of a mere denial of the execution, whether it
would still be necessary to prove that the document was attested by two
attesting witnesses."

"Where a mortgagee sues to enforce his mortgage and the execution and
attestation of the deed are not admitted, the mortgagee need prove only
this much that the mortgagor signed the document in the presence of an
attesting witness and one man attested the document provided the
document on the face of it bears the attestation of more than one person;
but if the validity of the mortgage be specifically denied, in the sense that
the document did not affect a mortgage in law then it must be proved by
the mortgagee that the mortgage deed was attested by at least two
witnesses."

24. Again in Jhillar Rai v. Rajnarain Rai, AIR 1935 All 781 the High Court
held as follows :
"There has been a subsidiary argument that the plaintiffs cannot claim to be
co-sharers, because the mortgage deed has not been proved. The argument
is based on the provisions of S. 68, Evidence Act. It appears that the
execution of the mortgage was proved, but not by the production of a
marginal witness. Under S. 68 as it now runs, it is not necessary to prove or
to produce a marginal witness unless the mortgage is specifically denied. It
is obvious that there would be no necessity to prove the deed at all if it was
admitted and consequently the section contemplates a distinction between
the position where execution is not admitted and a position where
execution is specifically denied. In the present case the plaintiffs in the first
paragraph of the plaint stated that they where mortgagees under the deed
dated 23rd September, 1929, and that they had been in possession of the
plots in question. The defendants said in their written statement that they
did not admit this paragraph. But it is clear from the additional pleas that
what they were questioning really was not the execution of the deed but
the fact of possession. No issue was framed clearly on the question of
execution. In these circumstances it cannot be held that the execution of
the mortgage was specifically denied. The mortgage was therefore
sufficiently proved."

25. We do not want to add the citation except to refer a judgment of the
Guwahati High Court in Dhiren Bailung v. Bhutuki, AIR 1972 Gauhati 44,
wherein the Court held as follows :-

"All that Section 68 demands before a document requiring attestation can

be used as evidence is that one attesting witness at least should be called
"for the purpose of proving its execution." It has been stated above that one
attesting witness was called in the present case and he testified that Sashi
and Paniram had executed the mortgage deed Ex. 1 in his presence by
placing their signatures on it and that he had attested the document.
Therefore, the requirements of Section 68 were evidently satisfied.
However, the two courts below were of the opinion that it was incumbent
upon the plaintiff to establish before he could succeed in that suit, the
attestation of the deed by two witnesses, as enjoined by Section 59 of
Transfer of Property Act, in the manner required by Section 3 thereof
where the expression "attested" is defined. I find it difficult to endorse that
opinion. AIR 1932 All 527 (FB) Lachman Singh v. Surendra Bahadur, is an
authority for the propositions that Sections 68 and 69 of the Evidence Act
"make a document which is attested admissible in evidence if the
requirements of those sections are complied with" and that "if the
documents become admissible in evidence they become admissible to
prove what they contain. That is to say, they would become admissible to
prove whether a mortgage had been executed or a gift had been made".
There seems to be no warrant for an argument the Full Bench observed that
a deed may be merely admissible and yet may be incapable of being read
as a document of the kind which it professes to be. The Full Bench clinched
the issue by stating further that to make a mortgage deed or a gift deed
admissible in evidence as a deed of mortgage or gift, as the case may be, it
is enough to comply with the provisions of Section 68 or S. 69 of the
Evidence Act. However, it was added that if the question raised is whether
the document did create a mortgage or gift or not, it must be proved that
the requirements of law as contained in Sections 59 and 123, Transfer of
Property Act, have been complied with. I respectfully agree with these
observations of the Full Bench. Therefore, the precise question that falls for
determination in the present appeal is whether, on the pleadings of the
parties, there arises a question whether the deed Ext. 1 does or does not
create a mortgage."

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . "To sum up, I hold

that the defendants had denied only the execution of the mortgage deed,
that they had not challenged its due attestation, that the legality of the
mortgage deed was assailed on the specific ground that Sashi and Paniram
had no exclusive right to mortgage the land in dispute, and that the parties
went to trial only on the specific allegations adopted by them in their
written pleadings. I hold further that in the context of the parties' pleadings
the plaintiff was called upon to prove only the execution of the mortgage
deed that the execution is proved by the testimony of Harakanta Duara, an
attesting witness, and plaintiff's father Tularam, and that the testimony of
the Harakanta Duara constitutes enough of compliance with the statutory
requirements set out in the body of Section 68; Hence the mortgage
pleaded by the plaintiff is proved beyond doubt."

26. We are of the view that the above extracts from the judgments of the
various High Courts do reflect the correct position in law. In the case on
hand P.W. 6 has categorically stated that he has signed as scribe, signed as
witness and signed as identifying witness. We also find his signatures at
three places. Nothing was elicited from this witness to disbelieve his
statement in Chief Examination. It is not denied that the deed was
registered as per the Indian Registration Act. Therefore even on merits the
appellant has established the due execution and attestation of the gift deed
according to law. We find from the original gift deed at the first page by
the side of signatures of the donor, two witnesses have subscribed their
signatures. We, therefore, hold that the lower appellate Court and the High
Court went wrong in allowing the defendants to raise the plea of non-
compliance of Section 123 of the Transfer of Property Act and in holding
that the gift deed was not proved.

27. So far as the case law cited by Mr. Verma, learned Senior Counsel for
the defendants, is concerned, we find that it may not be necessary to refer
the same so far as they related to the points that identifying witness cannot
be an attesting witness; that mere marking of exhibit does not amount to
prove and that no one except the true owner can discharge possession as
there is no dispute on these points.

28. As regards the cases cited on the issue of attestation, we find that Roda
Framroze Mody v. Kanta Varjivandas Saraiya, AIR 1946 Bom 12, and
Vishnu Ramkrishna v. Nathu Vithal, AIR 1949 Bom 266 relate to will and
as such may not be apposite to the case on hand concerning gift deed. In
Sarkar Barnard and Co. v. Alok Manjary Kuari, AIR 1925 PC 89 , Abinath
Chandra Bidyanidhi Bhattacharjee v. Dasarath Malo, AIR 1929 Cal 123 and
Sundrabai Sonba Tendulkar v. Ramabai Jayaram, AIR 1947 Bom 396 the
question of failure to raise specific denial regarding execution/attestation
and the consequences thereof did not arise and, therefore, those cases are
not quite relevant. In N. Ramaswamy Padayachi v. C. Ramaswami
Padayachi, AIR 1975 Madras 88 factually specific denial was raised and in
that context the judgment was delivered on the scope of Section 123 of
Transfer of Property Act. In Balappa Tippanna, v. Asangappa Mallappa,
AIR 1960 Mysore 234, the Court held as follows :-

"The net effect of S. 68 is that if the execution of a document of gift is

specifically denied, then an attesting witness must be called to prove it. If,
however, such execution is not specifically denied, then it would not
necessary to call an attesting witness to prove the same. But the document
all the same will have to be proved. The effect of the proviso is that the due
execution and attestation of the gift deed will have to be proved, although
it may be proved by calling a person other than an attesting witness."

29. Here again there is no quarrel on the proposition set out above.
30. Now coming to the facts, the High Court is not right in proceeding that
gift deed was not attested by any of the witnesses as required under the
Transfer of Property Act. As noticed earlier the lower appellate Court
rested its conclusion about the gift deed on the wrong assumption that the
deed itself was executed by a power of attorney and in the absence of such
power of attorney, and as only the witness attesting the deed, the
execution of gift cannot be upheld. Apart from that, we have perused the
original document and we find that two witnesses, namely, Ram Chander
Sharma and Ram Saran Dass Sharma, have signed on the first page of the
document along side the signature of Kanwar Chander Raj Saran Singh.
We do not know how this had escaped the attention of the courts below. At
this stage, it is necessary to point out that Ram Saran Das Sharma who was
examined as P.W. 6 has stated as follows. The entire deposition is given
below :-

"I know Kanwar Chander Raj Saran Singh son of Rao Brijraj Singh. I was
employed with them for fifteen years. I have seen him, reading, writing
and signing. I can identify his signatures. I am the scribe of the gift deed
(Hibbanama) Ex. P.W. 6/1. I had scribed the same correctly on the
instructions of Chander Raj Singh. I had read it over to him and after
accepting the same as correct, he had signed in my presence. I have also
signed as a witness. I know Shri Janardhan Sharma. He was manager and a
general power of attorney. He had the right to execute the sale. I also
identify the signatures of Janardhan."

(Emphasis supplied)

Cross-examination
"I cannot tell the date of the deed of the general power of attorney
(mukhtiarnama). I am not in possession of a copy now. It is incorrect to
suggest that I was not present at the time of registration. My signatures are
also there as a scribe. Gift deed (Hibbanama) was presented by Janardhan.
There has been a partition between Chander Raj Singh and his son, but I
cannot tell the year precisely, may be it took place in the year 1960-61. It
does not bear my signature."

31. It is seen from the above that Ram Charan Dass Sharma has
categorically stated that he has signed the document as a witness apart
from the fact that he has also scribed and signed as identifying witness. We
found three signatures of Ram Saran Sharma at different places in different
capacities in the original gift deed.

32. On the important point regarding attestation, there was no cross-

examination presumably this was not raised and hence was not an issue.
This being the position, we are unable to comprehend how the lower
appellate Court and the High Court gave the findings against the plaintiff
as noted above.

33. The gift deed was executed by the original owner and presented for
registration by a duly authorised power of attorney and the document was
duly attested by 2 witnesses, out of whom one was examined to prove the
deed and nothing more is required to satisfy the requirements of Section
123 of Transfer of Property Act, particularly when no specific denial was
taken to the execution or attestation of the gift deed in the written
statement or even subsequently before the trial Court.

34. In the result, we set aside the judgment of the lower appellate Court as
affirmed by the High Court and restore the decree of the trial Court. The
appeal is allowed with costs, which we quantify at Rs. 5,000/-.

Appeal allowed.

Section 67- Execution of sale deed was challenged -- The examination of

persons from Sub-Registrar's officer cannot constitute a sufficient proof
of the circumstances of execution, which is required to be proved as per
the mandate of Section 67 of Evidence Act ,when execution of a sale deed
is a matter of challenge

Deed of Settlement -- Donor -- Executant aged 106 years, illiterate, ailing

persons who is unable to comprehend the nature of document or the
contents thereof -- It should be established that there was no mere
physical act of executant involved, but the mental act -- No witness was
examined to prove execution of the deed or putting of thumb impression
-- H.C. rightly noticed that Courts below have wrongly placed onus to
prove execution of deed by executant on the plaintiffs -- Onus is cast
upon person holding the position of confidence or trust to show that
transaction is perfectly fair and reasonable, that no advantage has been
taken of his position -- Deed of settlement was held void and invalid.

Succession Act -- S.63

Will -- Proof of Execution -- Death of both attesting witnesses -- Held; If

no such attesting witness can be found, it must be proved that the
attestation of one attesting witness at least is in his handwriting, and that
the signature of the executant is in the handwriting of the executant.

(A) Succession Act, 1925, S.63 -- Will -- Proof of Execution -- Attesting

Witness -- Both the attesting witnesses of will have died -- By examining
son of attesting witness of the Will, signature of the executant is not
proved -- Held; Will not proved as per law -- Appeal dismissed --
Evidence Act, 1872, S.69. (Para 8)

(B) Succession Act, 1925, S.63 -- Will -- Proof of Execution -- Death of

both attesting witnesses -- Held; If no such attesting witness can be
found, it must be proved that the attestation of one attesting witness at
least is in his handwriting, and that the signature of the executant is in
the handwriting of the executant -- Evidence Act, 1872, S.69. (Para 8)

The contention cannot be accepted. According to Section 63 of the Indian

Succession Act, 1925, a Will is required to be attested by at least two
witnesses. According to Section 68 of the Evidence Act, 1872 (in short, ‘the
Act’) a document required by law to be attested, shall not be used as
evidence until one attesting witness at least has been called for the purpose
of proving its execution, if there be an attesting witness alive and subject to
the process of the court and capable of giving evidence. In the instant case,
both the attesting witnesses of the Will are said to have died. Section 69 of
the Act stipulates that if no such attesting witness can be found, it must be
proved that the attestation of one attesting witness at least is in his
handwriting, and that the signature of the executant is in the handwriting
of the executant. In the instant case, the plaintiff by examining son of
attesting witness of the Will has complied with first part of mandatory
provision of Section 69 of the Act as signature of one attesting witness of
the Will has been proved by his son. However, second mandatory part of
Section 69 of the Act that signature of the executant is also to be proved in
his handwriting has not been complied with. There is no evidence
whatsoever to depict that the Will has been signed by the executant i.e.
Malkiat Kaur @ Meeto. Consequently, the Will has not been proved in
accordance with law.

9. In view of the aforesaid, I find no merit in this second appeal. No

question of law, much less substantial question of law, arises for
determination in the instant second appeal. The appeal is accordingly
dismissed in limine.

Section 47 - Opinion regarding handwriting - When the Court has to

form opinion as to the person by whom the document was written or
signed, opinion of any person acquainted with handwriting of such
person would be relevant - Thus, a person who was present at the time of
execution of a document can depose about the writing or signature of the
executant - The fact neither the tenant nor the scribe of the deed was
produced, is not material.

Illustration
The question is, whether a given letter is in the underwriting of A, a merchant in
London.
B is a merchant in Calcutta, who has written letters addressed to A and received
letters purporting to be written by him. C is B's clerk, whose duty it was to
examine and file B's correspondence. D is B's broker, to whom B habitually
submitted the letters purporting to be written by A for the purpose of advising him
thereon.
The opinions of B, C and D on the question whether the letter is in the handwriting
of A are relevant, though neither B, C nor D ever saw A write.
Section 67 - Mode of proof of handwriting -- Ordinary method of
proving the handwriting is by calling a person who wrote the document
or saw it writing or who is acquainted with the handwriting or by calling
a handwriting expert.
Illustrations
(a) A photograph of an original is secondary evidence of its contents, though the two have not been compared, if it
is proved that the thing photographed was the original.
(b) A copy compared with a copy of a letter made by a copying machine is secondary evidence of the contents of
the letter, if it is shown that the copy made by the copying machine was made from the original.
(c) A copy transcribed from a copy, but afterwards compared with the original, is secondary evidence; but the copy
not so compared is not secondary evidence of the original, although the copy from which it was transcribed was
compared with the original.
(d) Neither an oral account of a copy compared with the original, nor an oral account of a photograph or machine-
copy of the original, is secondary evidence of the original.
COMMENTS
Admissibility
Application moved for permission to lead secondary evidence based on ground of loss of document. Presence of
document proved from the facts pleaded - Allowing secondary evidence not illegal; Sobha Rani v. Ravikumar, AIR
1999 P&H 21.
Tape-recorded statements are admissible in evidence; K.S. Mohan v. Sandhya Mohan, AIR 1993 Mad 59.
Certified copies of money lender’s licences are admissible in evidence;
K. Shivalingaiah v. B.V. Chandrashekara Gowda, AIR 1993 Kant 29.

Administrative Law -- Registration of documents -- Effect of -- It creates a

presumption of valid execution of the document -- Onus is placed on the
person who want to prove that, the document was not validly executed --
Held, the purchaser need not prove validity of the registered sale deed --
Onus is upon the opposite party -- Sections 17 and 18 of Registration Act,
1908 -- Section 9A of UP. Consolidation of Holdings Act, 1953 -- Section
68 of Indian Evidence Act, 1872.

Section 74 - The mere fact that the documents were forthcoming from a
Government department and bear its seal, will not dispense with its
formal proof.

Sections 67 and 68- Sale-deed- -Execution of-Not denied by executant --

Not necessary to call attesting witness in proof of execution of document
-- Document to be proved in accordance with provision of Section 67
Evidence Act.

The execution of a document is to be proved in accordance with the

provision of Section 67 of the Evidence Act which provides if a
document is alleged to have been signed or written wholly or in part by
any person the signature Or handwriting of so much of the document as
is alleged to be in that person's handwriting must be proved in his
handwriting. This can be proved by any person who recognises the
signature or the handwriting. Section 68 of the Evidence Act provides
that if a document is required by law to be attested, it shall not be used
as evidence unless one of the attesting witnesses at least has been called
for the purpose of proving its execution. The . proviso make it clear that
it shall not be necessary to call an attesting witness in the proof of
execution of a document, not being the Will, which has been registered
in accordance with the provisions of the Indian Registration Act, 1 908
unless its execution by a person to whom it purports to have been
executed is specifically denied. The person who had executed the
registered sale deed never denied the execution of the document. Even if
a document has been attested but if it is registered and not required by
law to be attested, it is not necessary to call the attesting witnesses to
prove the document. The document has to be proved only in the manner
provided under Section 67 of the Evidence Act, 1872.

Section 64 -- Documents attested by Notary public -- The copies of the

documents attested by notary, itself shows that the Notary had compared
the photocopies with the original and therefore, it will be necessary to
call and examine the Notary as a witness.

Notaries Act, 1952 -- Section 8 -- Notary attesting a document to the

photocopy or the original -- For proof of the said document, examination
of the Notary as a witness is not necessary when it was shown from the
attested copy -- It was compared with original.

(1) A notary may do all or any of the following acts by virtue of his office,
namely :-

(a) Verify, authenticate, certify or attest the execution of any instrument;"

The words "verify", "authenticate", "certify" or "attest the execution" of any

instrument are not synonymus words as provided under S. 8 referred to
above. These are separate acts to be performed by the Notary in respect of
instruments. Execution of instruments can be attested by the Notary. At the
same time the Notary can also verify the instrument or show it to be
authenticated or certify its correctness. What is done in the present case is
that he had certified that the photo-copy was true copy of the original.
Thus, it was not necessary for the defendant to produce the Notary who
had recorded certificate of attestation as witness in the case. His attestation
as aforesaid has to be taken into consideration as conclusive evidence.
Since the attestation showed that the document was true photo copy of the
original document, it is taken that Notary had compared the photocopy
produced, with the original document.

3. The question of proof of document is entirely different from its

admissibility. Admittedly, original of all these three documents were not
produced in this case. Photo copies with due attestation were produced as
above. Section 63(2) and (3) of the Evidence Act reads as under :-

Ss.61 & 104 -- Documentary evidence -- Mode of proof -- Document was

exhibited -- It was not proved that document was signed/executed by
executant -- Executant never produced in court -- Only scribed was
produced -- No reliance can be placed on that document -- Mode of proof
is not dispensed with simply because a document has been exhibited on
record.

There is an essential distinction between burden of proof and onus of

proof : burden of proof lies upon the person who has to prove a fact and it
never shifts, but the onus of proof shifts, but the onus of proof shifts. The
burden of proof in the present case undoubtedly lies upon the plaintiff to
establish the factum of adoption and that of partition. The said
circumstances do not alter the incidence of the burden of proof. Such
considerations, having regard to the circumstances of a partition. The said
circumstances do not alter the incidence of the burden of proof. Such
considerations, having regard to the circumstances of a particular case,
may shift the onus of proof. Such a shifting of onus is a continuous process
in the evaluation of evidence. The criticism levelled against the judgment,
of the lower Courts, therefore, only pertains to the domain of appreciation
of evidence. We shall, therefore, broadly consider the evidence not for the
purpose of revaluation, but to see whether the treatment of the case by the
Courts below is such that it falls in the category of exceptional cases where
this Court, in the interest of justice, should depart from its usual practice.

The said certificate was granted within the terms of Article 133(1) of
the Constitution. The material part of Article 133 (1) reads :

"An appeal shall lie to the Supreme Court from any judgment, decree or
final order ...... if the High Court certifies -

(a) that the amount or value of the subject-matter of the dispute in the
Court of first instance and still in dispute on appeal was and is not less
than twenty thousand rupees or such other sum as may be specified in that
behalf by Parliament;

(b) that the judgment, decree or final order involves directly or indirectly
some claim or question respecting property of the like amount of value; or

(c) that the case is a fit one for appeal to the Supreme Court;

and where the judgment, decree or final order appealed from affirms the
decision of the Court immediately below in any case other than a case
referred in sub-clause (c), if the High Court further certifies that the appeal
involves some substantial question of law."

Mr. Bhimasankaram contends that the conditions laid down for issuing a
certificate must also govern the scope of the appeal to the Supreme Court
for otherwise, the argument proceeds, the said conditions would become
otiose. He concedes that the Supreme Court can exercise an unrestricted
power of reviewing the judgment of the High Court in the case of a
certificate hedged in with conditions by resorting to its power under Art.
136 of the Constitution, but this is not a case where it can do so especially
having regard to the fact that the appellant did not seek to invoke that
power.

9. Under Art. 133 of the Constitution the certificate issued by the High
Court in the manner prescribed therein is a pre-condition for the
maintainability of an appeal to the Supreme Court. But the terms of the
certificate do not circumscribe the scope of the appeal that is to say, once a
proper certificate is granted, the Supreme Court has undoubtedly the
power, as a Court of appeal, to consider the correctness of the decision
appealed against from every standpoint, whether on question of fact or
law. A successful party no doubt can question the maintainability of the
appeal on the ground that the certificate was issued by the High Court in
contravention of the provisions of Art. 133 of the Constitution, but once the
certificate was good, the provisions of Art. 133 did not confine the scope of
the appeal to the certificate. We, therefore, reject this preliminary objection.

A plaintiff may rely upon different rights alternatively and there is

nothing in Civil P. C. to prevent a party from making two or more
inconsistent sets of allegations and claiming relief thereunder in
alternative - A demand of Plaintiff based on Defendants own plea cannot
possibly be regarded with surprise by latter and no question of adducing
evidence on these facts would arise when they were expressly admitted
by Defendant in his pleadings - When no injustice can possibly result to
Defendant it may not be proper to drive Plaintiff to a separate suit - No
illegality committed by court below in allowing amendment of plaint as
prayed for by Naubatlal - As a rule there is no res judicata between co-
defendants unless it is found that the point involving res judicata has to
be necessarily decided in that suit between them.

The defendants have admitted that the 1st defendant has signed the
voucher on behalf of the 2nd defendant. They have admitted that the sum
of Rs. 20,000/- was received by the 2nd defendant. In my view, the voucher
speaks for itself. It mentions that the amount was advanced by way of loan.
It is for the defendants to prove that the apparent is not the real state of
things. In my view, the burden of proving that the voucher was signed in
blank and/or that amount of Rs. 20,000/- was towards profits is on the
defendants. In my view, therefore, the plaintiff is entitled to tender the
voucher. Mr. Modys statement that he is not leading any oral evidence has
already been recorded. Objection is overruled.

8. Voucher dated 25th March, 1975 taken on record and marked Ex. A.

9. Mr. Mody states that he closes his case on Issues Nos. 1, 2 and 4 and
reserves his right to lead evidence in rebuttal on Issue No. 3.

The plaintiff filed a suit for realisation of Rs. 2,100/-. The plaintiff's case in
short, was that this advance of Rs. 2,100/- was given on execution of a
handnote by the defendant on the 21st of July, 1963 and the defendant also
agreed to pay an interest at the rate of Re. 1/- per cent. per month. The
amount not having been paid in spite of demands, the present suit was
filed.

3. The defence was that the hand-note was not executed by the defendant.
The further defence was that the loan was taken from one Ram Bilash
Singh of village Mailam and he gave his thumb impression on a blank
piece of paper at that time. Afterwards the said amount was paid back to
the said Ram Bilash Singh and the said Ram Bilash Singh gave an
impression to the defendant that the said paper had been torn by tearing
off a certain paper in his presence. The further defence was that the
defendant apprehended that the said Ram Bilash Singh tore a wrong paper
and the real one containing his thumb impression was given to the
plaintiff, who had utilized the same for the present suit. Thus it has been
alleged that the said handnote is forged and fabricated and the defendant
never executed a hand-note in favour of the plaintiff. The alleged handnote
is also said to be without consideration.

4. The trial court on a consideration of the evidence came to the finding that
the left thumb impression on the handnote was that of the defendant. It
further found that the handnote in suit is genuine and valid but no advance
was made by the plaintiff. As such, it dismissed the suit. Lower Appellate
Court held that the plaintiff failed to prove the execution of the handnote
and passing of consideration. It further found that the left thumb
impression on the handnote was not that of the defendant. With the
aforesaid finding it affirmed the judgment of the trial court and dismissed
the appeal.

".....Where the law places the onus on the plaintiff to prove that a document
is duly executed, the onus cannot be discharged by merely proving the
identity of the thumb impression, but it must be further proved that the
thumb impression was given on the document after it had been written out
and completed."

COMMENTS
Joint family property
Merely because some of properties continue to stand in the name of plaintiff that
by itself cannot lead to any conclusion that the property purchased by any one
member of the family would necessarily be a part of joint family property and
when evidence shows that the person who has purchased property had been
engaged in an independent business for a sufficient long period; Baban Girju v.
Namdeo Girju Bangar, AIR 1999 Bom 46.
Reasonable proof of ownership
In absence of any reasonable proof that defendant was the actual owner of the
property, and plaintiff was only a name given does not prove that respondent
was owner and plaint maker was only a name given to the property; Rama Kanta
Jain v. M.S. Jain, AIR 1999 Del 281.
What to be proved by prosecution
It is well settled that the prosecution can succeed by substantially proving the
very story it alleges. It must stand on its own legs. It cannot take advantage of
the weakness of the defence. Nor can the court on its own make out a new case
for the prosecution and convict the accused on that basis; Narain Singh v. State,
(1997) 2 Crimes 464 (Del).
Evidence Act, 1872 -- Sections 101 to 104 - Burden of Proof - - Denial of
signature on the document saying that signature were obtained on blank
paper, however evidence of the plaintiff regarding execution of
document found to be reliable, the owner will shift on the defendant to
show that he had not executed the documents. Person who signs the
blank paper may not know what are the conditions, which will be
imposed by the other side. Hence, in such circumstances, a general
proposition cannot be laid down that the burden should be on the
person who has subscribed his signature to a blank paper. The plaintiff
may give evidence regarding the execution of the document. If the fact of
thumb impression or signature is admitted, that will give more
reliability to the plaintiff's evidence. If such evidence adduced by the
plaintiff is reliable and if the plaintiff is able to discharge his burden
sufficiently, then onus will shift on the defendant to show that he had
not executed the document, the plaintiff cannot succeed in the case
without giving evidence.

Evidence Act, 1872 -- Section 114 - Presumption of Execution of

Documents - A person admitting his signatures but saying that
signatures were obtained on blank paper, no presumption can be granted
regarding execution of document. Mere putting signature does amount to
admission of the execution of the document. Ordinarily signature merely
means putting one's name or any other mark to identify a person making
the mark. But when a word 'signature' is attributed with regard to the
written document, which creates obligation on the person signing it, it
can only mean signing the document after the document is prepared and
completed. There, the signature is put to show that the person who
signed has agreed the terms and conditions of that document. The
intention with regard to the acknowledgement of the terms should be
there. When the person signs the same, then only it can be said that the
person has executed the document. Hence, when person says that he put
the signature on a blank paper that does not mean that he had admittedly
executed the document.

The plaintiff is a person, Who is employed in gulf countries. The suit was
filed by the power of attorney holder of the plaintiff

according to the plaintiff, The plaintiff is a person, Who is employed in gulf

countries. The suit was filed by the power of attorney holder of the
plaintiff. The balance amount was paid to the defendants. But they refused
to accept the amount and also execute the sale deed. Ext. A1 notice was
issued to the defendants to which they replied stating that they did not
execute the document. On the other hand, According to them, They had
borrowed rs. 15,000/ - from the plaintiff when he last came from abroad.
They promised to repay the amount within two years. Since this was not
paid within two years, The plaintiff wanted the document of title of the
defendants and also he got one signed stamp paper and one signed blank
paper as security for the repayment of the amount. The plaintiff had
fabricated the documents for sale. The defendants had not executed the
document.

the lower court raised relevant issues in this case and held that there is no
satisfactory evidence to prove the execution of the agreement and the
passing of the consideration. On the basis of the above, The court held that
the defendants was not entitled to specific performance and granted a
decree for rs. 15,000/ - in favour of the plaintiffs from the defendants. It is
against the above judgment and decree refusing to grant specific
performance that the present appeal has been filed by the plaintiff. The
defendants filed cross objection against the judgment granting rs. 15,000/ -
in favour of the plaintiff.

where there is a denial of the execution of the document the plaintiff has
got the obligation to discharge the burden of proof. How and in what
manner that burden of proof can be discharged is a question depending
upon the facts of each case. The court is bound to take note of the
circumstance that it is not normal human conduct to give signed papers
with other people, Particularly to persons who cannot have any occasion to
get such signed papers. It is more unusual to give signed blank stamp
papers with other persons. In such a circumstance if the defendant pleads
that he has left a signed blank stamp paper with the plaintiff he has got a
duty to explain satisfactorily before the court what prompted him to do
such an act, Which is not a normal human conduct. Consequently, If any
person wants to rely on an exceptional circumstance, If he wants to show
what in some particular instance the ordinary rules was brought abrogated
surely he must prove it and thus the burden shifts on him. The learned
judge relied on the decision of the nagpur high court, Reported in dalchand
mulchand v. Hasanbi, W/o ali razakhan, Air 1938 nag 152.

The patna high court was taking the view consistently that mere admission
that a person has signed a document does not lead to a presumption that
the execution of the document is admitted. This has been followed by the
madras high court and jammu and kashmir high court. The other view is
taken by the decisions in sahdeo mauar v. Pulesar nonia, Air 1930 pat 598,
Dalchand mulchand v. Hasanbi, W/o. Ali razakhan, Air 1938 nag 152,
Lakshmamma v. M. Jayaram, Air 1952 mys 114 and also some other
decisions. Certain courts have taken the view that when evidence was
adduced, There is no question of casting the burden that the issue should
be decided on the basis of the facts and circumstances of the case and the
evidence adduced.

(8) during the discussion of this case, We found three types of cases;

(1) when defendants merely submitted that signed papers were entrusted
to a person and those papers were made use of for the purpose of
executing an agreement;

(2) the signed papers were given on the understanding that a particular
document will be made. But contrary to that assurance, A different
document was fabricated;

(3) there are third sets of cases where the defendants even though have
signed the documents, Never intended to bring it in force. The patna high
court while taking the view that presumption cannot be in favour of the
plaintiff held that presumption under section 114 of the evidence act and
the illustrations given there "are based on long experience and have been
drawn so often by judges in england as well as in this country that many of
them have come to be regarded almost as rules of law. The same however
cannot be said with regard to the presumption, Which we are asked to
draw in this case considering that it is not too uncommon in this country
for ignorant people to put their thumb impression on blank pieces of
paper".

further, It was held that section 114 is a permissive and not a mandatory
section and the court may, Having regard to the circumstances of a
particular case, Refuse to raise a presumption in that cases such a
presumption may be properly raised. On the other hand, The nagpur high
court took the view that if nothing else is known then the mere fact that a
document is proved to bear a certain signature and that it comes from
proper custody ought to be enough to raise an inference that it was signed
with the intention of execution. In our opinion, This inference arises in
india directly from section 114 of the evidence act.

to sign means to affix the signature. But when it comes to the signing of a
written instrument, It implies more than the act of affixing a signature. It
implies more than the clerical act of writing the name. The intention of the
person signing is important. The person should have affixed the signature
to the instrument in token of an intention to be bound by its conditions. It
has been said that for a signing consists of both the act of writing a person's
name and the intention in doing this to execute, Authenticate or to sign as a
witness. The execution of a deed or other instrument includes the
performance of all acts which may be necessary to render it complete as a
deed or an instrument importing the intended obligation of every act
required to give the instrument validity, Or to carry it into effect or to give
it the forms required to render it valid. Thus, The signature is an
acknowledgement that the person signing has agreed to the terms of the
document. This can be achieved only if a person signs after the documents
is prepared and the terms are known to the person signing. In that view of
the matter, Mere putting of signature cannot be said to be execution of the
document.

(10) in ramlakhan singh v. Gog singh, Air 1931 pat 219, A division bench of
the patna high court held that the onus cannot be discharged merely
proving the identity of the thumb impression. It must be further proved
that the thumb impression was given on the document after it had been
written out and completed. The fact that the defendant's thumb impression
appears on the paper is a strong piece of evidence in favour of the plaintiff
and in the majority of cases very slight evidence would be necessary to
prove that the thumb impression was given on the document after it had
been written out and completed. But the fact remains that if the evidence
offered by the plaintiff to prove that the document was duly executed or in
other words, That the thumb impression was given on the document after
it had been written out and completed is found to be unreliable, He cannot
be deemed to have discharged the onus properly. Regarding the
presumption under section 114 of the evidence act, The court held that
although a certain presumption may arise in favour of the plaintiff, Yet it
may be rebutted at the same time by circumstances brought into light in
the plaintiff's own evidence by means of cross - examination or otherwise
and independently of the evidence adduced by the defendant. Thus, The
court held that the mere admission of the thumb impression or signature
does not shift the burden from the plaintiff. In the same volume in chudhai
lal dass v. Kuldip singh, Air 1931 pat 266 - another division bench took the
view that where the defendant admits only that he had put a thumb mark
or signature on a document which was not hand - note sued upon, The
admission does not amount to admission of the execution of the hand -
note and consequently the burden of proving that the particular hand -
note sued upon was duly executed by the defendant is upon the person
issuing upon the same.

(11) the case reported in sundar chaudhari v. Lalji chaudhari, Air 1933 pat
129 was a case where after signing the document, The defendants never
allowed it to depart from them or to come into the possession of any other
person. In that context, The court held that the execution does not mean
mere signing, But it means all acts necessary to make the parties to the
contract bound thereby. If a man merely signs a contract and puts it in his
pocket and does not allow it to depart from him as his act, It is not
execution. In abdul hasan v. Mt. Wajih - un nissa, Air 1948 pat 186, It was
held that a mere signature does not necessarily and automatically render
effective and operative the document to which it is appended. The
signature of a document under a complete misapprehension as to the
nature of the transaction therein set out, That is to say, Under a mistake,
Does not render the document effective or operative. So, Also where there
is an antecedent oral agreement between the parties to a written agreement
that some or any obligation thereunder shall not arise until the fulfilment
of some condition precedent, The document although signed, Will not
become operative until the fulfilment of the condition precedent. Therefore,
The term 'execution' in relation to a written document means the placing
by the executant of his signature or other identification mark such as a
thumb - print thereon in or accompanied then or later by circumstances
which sufficiently demonstrate the intention of the executant to give effect
and operation to the instrument signed by him. The case ram pragas singh
v. Gajendra prasad singh, Air 1976 pat 92 is a judgment by a learned single
judge. There, The suit was on a handnote. The admission made by the
defendant was that the defendant gave his thumb impression on a blank
paper to a third person from whom he took certain loan. Dealing with the
contention, The court below, Considering the earlier decisions in air 1931
pat 266 and other decisions took a different view. The decision reported in
sahdeo mauar v. Pulesar nonia, Air 1930 pat 598, Was cited before the
learned single judge. In that decision, It was held that the burden of proof
was on the defence to explain how the handnote bearing the defendant's
thumb impression came into existence. The learned single judge took the
view that the decision in sahdeo mauar v. Pulesar nonia, Air 1930 pat 598
has been impliedly overruled in the decision in chulhai lal dass v. Kuldip
singh, Air 1931 pat 266. This line of reasoning has been followed by the
madras high court in the decisions reported in surayya v. Koduri
kondamma, Air 1950 mad 239, N. Ethirajulu naidu v. K. R. Chinnikrishnan
chettiar, Air 1975 mad 333, Jammu and kashmir high court in brij mohan
bakhshi v. Amar nath bakhshi, Air 1980 j and k 54 and the allahabad high
court in ch. Birbal singh v. Harphool khan, Air 1976 all 23.

(12) as already stated, A learned judge of this court in the decision reported
in seithammarakkath mammad v. Kovom - matath mammad, 1957 ker lt
328 : (air 1957 ker 63) considered the patna decisions, Viz., Air 1931 pat 219
and air 1930 pat 598 and preferred the decision of the division bench in air
1931 pat 219. The learned judge held that the onus in a case of this type
rests on the plaintiff to prove both the fact of execution and the advance of
consideration. The other line of reasoning has been adopted in the decision
reported in dulchand mulchand v. Hasanbi, W/o. Ali razakhan, Air 1938
nag 152. There is also a division bench decision. There, The question arose
whether the documents of title obtained by the plaintiff are the result of
sham transaction entered into with a view to deprive two of the transferor's
sons of their inheritance. The contention was that the documents were not
meant to be acted on and were never given effect to. The court below throw
the burden of proof on the plaintiffs and held that they had not proved the
execution of these documents. The contentions of defendants 3, 4 and 5 in
the written statement were extracted in the above case, Which are as
follows :

"the recitals of the mortgage deed that their houses were assigned to
hasanbi in lieu of her mehr by registered deed of transfer dated 2nd
october 1912 and 31st august, 1920 are not true. That since before the year
1910 there was ill - feeling between khan bahadur ali raza khan and his
sons walayat ali khan and umardaras khan due to certain family affairs.
Khan bahadur ali raza khan with a view to deprive these people from
inheritance of his property executed the above two bogus assigned deeds
in favour of mt. Hasanbi which were never intended to be acted upon by
anybody. "

according to the court below, The above pleading is an admission on the

part of the defendants, Which throws the burden of proving the sham
nature of the transaction upon the defendants who assert it. Their lordships
considered the various decisions with regard to the admission of the
documents. Their lordships relied on the decision in devidas v. Mamooji,
(1924) 20 nag lr 7 : (air 1924 nag 103) wherein it was held that admission by
the defendant that a document bears his signature coupled with the
assertion that it had been placed upon a blank piece of paper upon which
the rest of the document was fraudulently scribed was not an admission of
execution and so the burden of proof lies upon the plaintiff. It seems,
Vivian bose, J., One of the parties to the decision came to the opposite
conclusion in another second appeal. The division bench at page 154 held
as follows:

"we have no quarrel with the general proposition that proof of signature is
not necessarily proof of execution and that an admission that a document
bears a man's signature is not necessarily an admission of execution. The
circumstances of the case may negative such an inference. "

thus, The division bench considered that it was a case where after signing
the document it was never acted upon and held that it would not amount
to, Not even to conditional execution. It would not create even a contingent
interest in the subject - matter of the instrument. Then the court added as
follows:

"but surely if nothing else is known then the mere fact that a document is
proved to bear a certain signature and that it comes from proper custody
ought to be enough to raise an inference that it was signed with the
intention of execution. "

then the division bench relied on section 114 of the evidence act and held
that that is not the common course of human conduct, Nor yet the common
course of either public or private business. Another decision, Sahdeo
mauar v. Pulesar nonia, Air 1930 pat 598, Says that if a person has admitted
his signature, Then the burden shifts on to him as to the circumstances
under which he put the signature. To the same effect is the decision in
svaramakrishnyya v. Kasiviswanadham, Air 1957 andh pra 584. But there,
It was a case of a letter and the division bench held that there is nothing
with regard to the execution of the letter and held that if a signature of a
person appears in a letter, Then that person has to explain that it was not
written by him. The decision reported in lakshmamma v. Jayaram, Air 1952
mys 114, Takes the view that when the signature or thumb impression is
admitted, A presumption will arise that the document was executed by
such person. The above are the important decisions taking two different
views.

(13) in seithammarakkath mammad v. Kovommatath mammad, 1957 ker lt

328 : (air 1957 ker 63) varadaraja iyengar, J. Had occasion to consider this
question. The case relates to promissory note. The defendant by his written
statement denied the execution of ext. A1 promissory note. According to
the defendant, He had sought the good services of the plaintiff to intervene
on his behalf with one mohammad kunhi for the grant of a lease of
immovable property while he was urgently entraining, For madras,
Entrusted with the plaintiff a blank half sheet of paper with his thumb
impression for being filled up as a kychit for the purpose, As the plaintiff
had desired. Mohammad kunhi refused to accept any such make shift
arrangement. So, The blank paper remained with the plaintiff, The
defendant not having claimed it back. Subsequently, The plaintiff fell out
with the defendant's elder brother to consummate his marriage with the
plaintiff's niece. The plaintiff in his enmity had taken advantage of the
existence of the blank sheet with him to fill it up as the promissory note.
The decisions in air 1931 pat 219 and air 1938 nag 152 were cited before the
learned judge. The learned judge accepted the reasoning of the patna case.
With regard to the nagpur case, The learned judge held as follows :

"but the learned judges themselves say that the presumption will arise only
if nothing else is known and further that : "the initial burden of proving
execution of a document when it is denied is upon the person alleging
execution. "

the learned judge also held that for the admission by the defendant as to
his having affixed his thumb impression as well as signature in a bank
paper without stamp cannot amount to an admission as to the execution of
the promissory note. The learned judge also relied on the decision in
rajeshwar v. Kibhun, Air 1933 oudh 394 and also the decision in pirbhu
dayal v. Tularam, (1922) 68 ic 809 : (air 1922 all 401 (2)).

(14) in the decision in santha v. Rajappan pillai, 1986 ker lt 1235, Kalliath, J.
Followed the decision in 1957 ker lt 328 : (air 1957 ker 63) putting the
burden on the plaintiff. In (1990) 1 ker lt 456, Kalliath, J. Took a different
view following the decision reported in air 1938 nag 152. The learned judge
gave importance to the observations in air 1938 nag 152 that persons do not
ordinarily sign documents without intending to execute them, That is not
the common course of human conduct, Nor yet the common course of
either public or private business. In the case reported in a. Pathu v.
Katheesa umma, 1990 (2) ker lj 115, Padmanabhan, J. Followed the views of
the decision in air 1938 nag 152 and held that the burden is on the person,
Who says that he put the signature on the blank paper. It is worth noting
that in both the above decisions, The opposite views were not considered.
Then, There are other cases where it was held that if the executant is by
pardanation lady or illiterate lady, The burden is on the person who wants
to show that the document is not executed by such person. In some cases, It
was held that when both parties had adduced evidence, The question of
burden of proof vanishes.

(15) after considering the above decisions, We prefer to follow the decision
in seithammarakkath mammad v. Kovom - matath mammad, 1957 ker lt
328 : (air 1957 ker 63) and the decision in ramlakshan singh v. Gog singh,
Air 1931 pat 219. According to us, Mere putting of signature does not
amount to admission of the execution of the document. Ordinarily,
Signature merely means putting one's name or any other mark to identify a
person making the mark. But when a word 'signature' is attributed with
regard to the written document, Which creates obligation on the person
signing it, It can only mean signing the document after the document is
prepared and completed. There, The signature is put to show that the
person who signed has agreed the terms and conditions of that document.
The intention with regard to the acknowledgement of the term should be
there. When the person signs the same, Then only it can be said that the
person has executed the document. Hence, According to us, When a person
says that he put the signature on a blank paper that does not mean that he
had admittedly executed the document. According to us, The decision in
air 1938 nag 152 does not deal with a case where the signature was put on a
blank paper. That decision related to the case where a document was
executed, But it was stated that it was not intended to be acted upon. It was
in that circumstances that the court held that when a signature appears on
a document that amounts to admission of the execution of the document
and the burden is on the person disputing that the document has not come
into effect, To prove that it has not come into effect.

(16) it was then argued that a person will not entrust a signed blank paper
to another person without any intention. It is argued that a person signing
a blank paper would have agreed that he agrees for all the terms which the
plaintiff puts in the document and that it was in token thereof that he has
put his signature and hence, The burden should be shifted to the person,
Who had signed the papers. According to us, The contingency will not shift
the burden of proof. We cannot ignore the circumstances under which
where a person may be compelled to give signed blank paper to another
person. Person who signs the paper may not know what are the conditions,
Which will be imposed by the other side. Hence, In such circumstances, A
general proposition cannot be laid down that the burden should be on the
person, Who has subscribed his signature to a blank paper. As it was stated
in air 1931 pat 219, The fact that the defendant's thumb impression appears
on the paper is a strong piece of evidence in favour of the plaintiff and in
the majority of cases very slight evidence would be necessary to prove that
the thumb impression was given on the document after it had been written
out and completed. Thus, Evidence that has to be adduced by the plaintiff
in such case will be less onerous than in cases where there is complete
denial of signature and execution. But if the plaintiff's evidence is not
sufficient or unreliable that onus cannot be said to be discharged. We may
further say that always the burden of proof is on the person, Who wants to
get relief in the suit. As always stated, Onus of proof shifts during the
pendency of the litigation depending upon the nature of the evidence given
by either side. The plaintiff may give evidence regarding the execution of
the document. If the fact of thumb impression or signature is admitted,
That will give more reliability to the plaintiff's evidence. If such evidence
adduced by the plaintiff is reliable and if the plaintiff is able to discharge
his burden sufficiently, Then onus will shift on the defendant to show that
he had not executed the document. We only say that the plaintiff cannot
succeed in the case without giving evidence. Because the defendant had
admitted his signature, He had to give some evidence to show that the
document has been properly executed. Further things depend upon the
evidence adduced and on facts and circumstances of each case. When both
sides have adduced evidence, The question of burden of proof vanishes
into the air. Hence, We are of the view that the decisions given in (1990) 1
ker lt 456 : (1990) 2 ker lj 115 putting the burden on the defendant have not
laid down the correct law.

(17) so far as the present case is concerned, The suit was filed on the basis
of ext. A6 agreement for specific performance. As per that agreement, The
defendants had agreed to sell the property described thereunder for a
consideration of rs. 85,000/ - to the plaintiff. It is stated in that document
that on the date of the document, An amount of rs. 70,000/ - was paid as
advance and that document will be executed and the plaintiff will be put in
possession of the property within one year thereof. According to the
plaintiff, He was working in gulf countries. After the execution of ext. A6,
He went back and through his power of attorney, Pw 4, He requested the
defendants to execute the document after paying the balance amount. But
they refused to execute the document. Thereafter, Ext. A7 lawyer notice
was issued to the defendant. In reply, Ext. A8 notice was issued in which
the contention taken is that they did not execute ext. A6 document. They
had borrowed an amount of rs. 15,000/ - from the plaintiff two years back
and when the plaintiff came subsequently, He wanted security for the same
and towards the security, They gave the document with regard to their
property as well as they gave signed stamp paper and also signed blank
paper. Making use of these signed papers, The plaintiff had fabricated an
agreement for sale. The plaintiff has denied these allegations in the plaint
and has stated that he was always ready and willing to perform his part of
the contract. In the written statement, The defendants specifically taken the
contention that they did not execute the agreement. They have taken the
strong contention that they had only signed the stamp paper and the blank
paper. They also set up the case of loan transaction.

(18) oral evidence was adduced. Pws 1 to 4 were examined on the side of
the plaintiff and dw 1 was examined on the side of the defendants. The
defendants also have taken the contention that both of them are illiterate.
The lower court, On the basis of the decision in air 1975 mad 333 held that
the plaintiff had not discharged his burden properly. On the side of the
defendants, The first defendant was examined as dw 1. Pws 2 and 3 are the
witness to ext. A6. It has come out in evidence that the plaintiff had earlier
purchased portions of the property belonging to the defendants. The
document with regard to that was also produced. So, It is a case where the
plaintiff had dealings with the defendants earlier. Further, Pws 2 and 3
have given evidence to show that the defendants wanted to sell their
property and the plaintiff also was particular in purchasing the property.
This may be so because, Portions of the same property was purchased by
him. It has also come in evidence that the defendants are in need of money
(of course only rs. 15,000/ - admitted by them). The document was
prepared and it was signed at the shop of the first defendant. Pws 2 and 3
speak that the defendants signed the document in front of them after it was
prepared. According to us, On going through the evidence of pws 2 and 3,
It cannot be said that their evidence cannot be accepted. The only case
made against pw 3 is that he was involved in a criminal case. Ext. B2 is an
order passed by the judicial first class magistrate, Tirur in s. T. 1448/87. The
accused was directed to pay a fine of rupees 100/ -. The offence is not stated
in the order. It is stated by pw 2 that he was fined for gambling. We don't
think, Because of this incident, Pw's evidence can be disbelieved. On going
through the evidence of pws 2 and 3, It is found that they have given the
details of the execution of the agreement. The lower court pointed out
certain infirmities showing that one witness has said that the document
was given at the time of execution of the agreement, While the other
witness has said that it was given earlier. Further, According to the court
below, Pw 3 has stated that the entire amount was given at the time of
execution of the agreement. We went through the evidence of these
witnesses. We are of the view that on the whole their evidence can be
accepted. It is not stated that the document was given at the time of
execution of the agreement. What is stated is that for the preparation of the
'karar' it was given. It does not mean that the document was given at the
time of execution of the 'karar'.

(19) dw 1 gave evidence. According to him, He borrowed an amount of

rupees 15,000/ - from the plaintiff. It is difficult to believe that at the time
when the loan was taken, He was the only person who was present and
further he stated that it was for him alone that the loan was taken. Further,
He stated that he had borrowed the amount of rs. 15,000/ - for payment to
another person, Who was going to be examined. But that person was not
examined. In the above circumstances, We are of the view that the plaintiff
has proved execution of the document. Another circumstance pointed out
against the plaintiff is that it is not stated in the 'karar' that the previous
documents were given. We are of the view that the absence of mention of
the earlier documents will not take away the validity regarding the
execution of the document. The court below then took the view that the
plaintiff has not discharged his burden and that the plaintiff has not got the
entire amount to pay at the time of the agreement. The plaintiff stated that
he sold certain articles, Which were bought from abroad and made up the
entire amount of rs. 75,000/ -. There is no case for the other side that the
plaintiff is not a person, Who will not be able to pay the amount. The
plaintiff could have produced the bank pass book before the court below.
According to us, Once we find that the execution of the document is
proved, We are of the view that the plaintiff has also paid the amount and
it was not necessary to prove further that he was in possession of money.
Hence, We accept the evidence of pws 2 and 3 and hold that the plaintiff
had necessary funds. It has also come in evidence that the plaintiff was
ready and willing to perform his part of the contract.

(20) the next question is whether specific performance should be granted to

the plaintiff. According to the defendants, The area is more than what is
mentioned in the plaint. The property mentioned in the agreement as well
as in the plaint is having an extent of 12. 25 cents, Which is comprised in r.
S. No. 285/14 and includes shop buildings. The boundaries of the property
are definite. According to the defendant, The property was not measured
and the price of the property was not fixed on the basis of centage. We are
not able to accept this argument. As already stated, The plaintiff had
purchased portions of the property. He was aware of the nature of the
property. The defendants wanted to sell the balance portion on the basis of
the previous document. The parties knew what was the total extent of the
property and what was the balance with the defendants. It is not necessary
that the property should be valued on the basis of the centage. The value
can be fixed for the entire property. Hence, According to us, We cannot
accept the contentions raised by the defendants.

(21) then the another contention raised by the defendants is that in one of
the rooms, They are conducting business in rationed articles and if it is
sold, They will be put to great hardship. We are of the view that this
contention cannot be accepted. Once it is found that the document has been
executed, Normally, The rule is that the agreement will be specifically
enforced. The mere fact that it will cause hardship to the defendants cannot
prevent this court from passing any decree for specific performance. The
defendants have not brought to our notice any circumstance, Which
necessitate non - granting of specific performance.

(22) in the above, View of the matter, We set aside the judgment and decree
of the lower court. We allow this appeal and decree the suit as follows :

the plaintiff is given a decree of specific performance of ext. A6 agreement

and is also directed to deposit the balance amount of rs. 15,000/ - within a
period of four months from today. On such deposit, The defendants shall
execute the sale deed in favour of the plaintiff with regard to the plaint
schedule property. In default of the defendants executing such document,
The plaintiff shall request the court to cause the document to be executed in
favour of the plaintiff with regard to the plaint schedule property. Both
sides are directed to suffer costs. Cross objection is dismissed. Order
accordingly

Burden to prove that the finding authority is based on no evidence lies on

the party who asserts it. The contention that a finding made by a competent
authority is based on no legal evidence is easy to make but very difficult to
establish. Such a contention can succeed only when it is shown that there is
really no legal evidence in support of the view taken by the appropriate
authorities. In the present case, it is impossible to accede to the assumption
that there is no legal evidence against the petitioner. His poor financial
resources, is conduct at all material times when consignments were
ordered, the suspicions attaching to the very existence of the firm Messrs
N. Jivanlal & Co. in Bombay and the prominent part played by this firm at
all stages of the transaction in regard to the consignments as well as the
reckless allegations which were made by the authorities which were found
to be untrue by the appropriate authorities, cannot be summarily dismissed
as being irrelevant or as not constituting legal evidence. At the highest it
may be said that there are some circumstances on which Shri. Umrigar
wants to rely in favour of the bona fides of client whereas there is a large
number of circumstances against him. If all the appropriate authorities, on
considering these circumstances, concurrently found against the petitioner,
that obviously is not a matter which can be legitimately agitated in the
present petition. That is why we do not propose to deal with this aspect of
the matter any further. In the result, both Petitions Nos. 42 of 1956 and 46
of 1956 fail and must be dismissed with costs.

Sections 17 and 31 -- Admission -- Effect of -- It is not conclusive proof of

the matter admitted but in certain circumstances it may operate as
estoppel.

1973 Legal Eagle 381

IN THE SUPREME COURT OF INDIA

Equivalent Citations : 1974 AIR(SC) 471 : 1974 (1) SCC 242 : 1974 (2) SCR 544

[Before :D.G.Palekar, V.R.Krishna Iyer, R.S.Sarkaria]

Nagindas Ramdas
versus

Dalpatram Ichharam Alias Brijram

Case No. : 2479 (n) of 1972

Date of Decision : 30/11/1973

Section 18 -- Admission in the pleading -- Admission in the pleadings
including plaint or written statement, can be inferred as foundation of,
rights of the parties.

There is no doubt that admission in pleadings or judicial admissions by

themselves can be made the foundation of the rights of the parties as held
by Supreme Court in the case of Nagindas Ramdas v. Dalpatram
Inccharam, AIR 1974 SC 471 in para 26 as under :

"....Admissions, if true and clear are by far the best proof of the facts
admitted. Admissions in pleadings or judicial admissions, admissible
under section 58 of the Evidence Act, made by the parties or their agents at
or before the hearing of the case, stand on a higher footing than evidentiary
admissions. The former class of admissions are fully binding on the party
that makes them and constitute a waiver of proof. They by themselves can
be made the foundation of the rights of the parties on the other hand,
evidentiary admissions which are receivable at the trial as evidence are by
themselves, not conclusive. They can be shown to be wrong."

11. To be fair to the appellant, counsel has relied upon the judgment of
Single Bench of this Court Bawa Singh and others vs. Harnam Singh and
others, [2008(4) Law Herald (P&H) 2891] : 2009(5)RCR (Civil) 183 wherein
the question before the court was whether a certified copy of the written
statement of an earlier suit is per se admissible in evidence or can be
proved in evidence by a person other than the author or scribe. The court
held that written statement or for that matter pleadings of a party does not
fall in any of the public documents as specified under Section 74 of the
Evidence Act and thus, comes within the purview of private document as
all documents other than specified in Section 74 of the Evidence Act are
private documents. Therefore, certified copy of a written statement
allegedly filed by the plaintiff in an earlier suit is not per se admissible in
evidence. In the case at hand, it is not the petition filed by Rajni Devi, the
certified copy whereof was sought to be relied by the plaintiffs/respondents
No. 1 and 2. It is the certified copy of the statement of Rajni Devi recorded
in judicial proceedings, that is admissible in evidence under Section 74 of
the Evidence Act, therefore, the appellant cannot derive any advantage to
her contentions from the judgment in Bawa Singh’s case (supra).

12. Indisputably, there cannot be any evidence better than admission of a

party on a disputed question of fact. As Rajni Devi in the earlier
proceedings admitted that Bhagwati was born out of wedlock of Tek
Chand with his earlier wife and further stated that only one daughter
namely Geeta was born out of her wedlock with Tek Chand, the appellant
who is claiming right in the suit property through Smt. Rajni cannot escape
from the admission made by Smt. Rajni Devi.

BOP lies on whom who takes the pleas of ANBANDONMENT, ABATEMENT,

ACQUIESCENCE, ADMISSION, ESTOPPEL, WAVERADOPTION TITLE,
OWNERSHIP, ADVERSE POSSESSION, AGREMENT,
ALIENATION,ARBITRATION,ASSESSMENT TO AND RECOVERY OF
TAX, ASSETS, ATTACHMENT, BAD FAITH & GOOD FAITH, BAILMENT
BENAMI, BIRTH, AGE, DEATH, CANCELLATION OF SALE DEED,
CARRIERS, CASTE, VICARIOUS LIABILITY, COMPROMISE,
CONSIDERATIION, CONSTITUNAL VALIDITY, REASOABLE
RESTRICION, CONTRACT, CUSTOM, DAMAGES, DECLARATORY SUIT,
DISCHARGE & PAYMENT, DISCIPLINARY PROCEDINGS, DOMICILE &
CITIZENSHIP, EASEMENTS, EJECTMENT, EVICTION BY TITLE
PARAMOUNT, ELECTION CASES, EXECUION OF DOCUMENTS, FINDING
OF COMPETANT AUTHORITY, SINATURE ON BLANK PAPERS, FRAUD,
MISREPRESENTATION, UNDUE INFLUENCE, COERCION, CONSPIRACY,
GRANT, HUF, JURISDICTION, LANDLORD & TENANT, LIMITATION
LEGISTIMACY, DESERTION, MAINTENANCE, INTENSION, KNOWLEDGE
& MEN EA, MALICIOUSS PROSECUTION, MORTGAGE, NEGLIGENCE,
PLEA OF FRUSTATION, NOTICE, PARTNERSHIP, SUCCESSION, TRUST &
TRUSTEE, UNAUTHORISED CONSTRUCTION, VALIDITY OF DRIVING
LIECENSE, VALIDITY OF BY LAWS, IDENTITITY OF INVOLVED
VEHICLE IN ACCIDENT, WILLSPECIFIC RELIEF ACT, COMPANIES AT,
SHM TRANSACTION, GOVERNMENT SERVENT, WORKMEN,

SECTION 103: The burden of proof as to any particular fact lies on that person
who wishes the court to belive in its existence unless it is provided by any law that
the proof of that fact shall lie on any particular person. Ex. A says that he was
somewhere else at the time in question so in this case A must prove it that he was
was not there but some where else. Or where A prosecutes B and whishes the court
to elieve that B admitted the theft to C so A musrt prove the Admission of B.

Section 104: The burden of proving any fact necessary to be provided in order to
enable any person to give evidence of any other fact is on the person who wishes to
give such evidence. Ex. A wishes to prove a dying declaration by B so A must
prove death of B or where A wishes to prove the secondary evidence the contents
of the lost document then A must prove that the document has been lost.

Section 105: Burden of proving that case of accused comes within the exception.
Ex. General exception, private defense, insanity.
Section 106: When any fact is especially within the knowledge og=f any person the
burden of proving that fact is upon him. Ex. A is charged with travelling on a
railway without a ticket the burden of proving that he had a ticket is on him. Or
When a person does an act with some intension other then that which the character
and circumstances of the act suggest the burden of proving that intension is on him.
Ex INTENSION, MENS REA, ALIBI, PROHIBITION CASE, CUSTOM,
PREVENTION OF CORRUPTIO, ESSENTIAL COMMIDITY ACT, ETC NDPS,
RAILWAY NON DELIVERY OF SHORT DELIVER OF GOODS,
NEGLIGENCE, MESNE PROFFITS, LAND LORD AND TENAN, ELECTION
LAWS, MASTER & SERVANTS, TAX LAWS, HUSBAND & WIFE,
MISCELINIOUS, FACTS WITHIN THE KNOWLEDGE OF PARTY,

SECTION 107: Burden of proving death of person known to have been alive wihin
thirty years.

Section 108: Burden of proving that a persn is alive who has not heard of for seven
years.

Section 109: When the question is whether persons are partners, land lord-tenants
or principal and agents and it has been shown that they have been acting as such
the burden of proving that they do not stand or have ceased to stand to each other
in those relationship respectively on the person who affirm it.

Section 109: When the question is whether any person is owner of anything of
which is shown to be n possession the burden of proving that he is not the owner is
on the person who affirms that he is not the owner.

Section 111: Where there is a question as 5to the good faith of a transaction
between partiesone of whom stands to the other is apposition of active confidence
the burden of proving the good faith of the transaction is on the party wh is in a
position of active confidence.

Section 118 : All persons shall be competent to testify unless the court considers
that the are prevented from understanding the questions put to them or from giving
ratial answer to those questions by tender years, extreme old age,diseases, whether
of body or mind or any other cause of same kind.

Section 119: Dumb witness

Section 122: Communication during marriage

Section `123: Evidence as to affairs of the state.

Section 124 : Official communication.

Section 125 : Information as to commission of offences.

Section 126: Professional communication.

Secton 127: Section 126 apply to interpreters, clarks & servent etc.

Section 128: Privilage not waived by volunteering evidence.

Section 129: Confidential communication with legal advisors.

Section 130: Production of title deeds of wineesses not a party

Section 131: Producion of documents or electronic record which another person

having possession could refuse to produce.

Section 132 : Witnesses not excused from answering on ground that answer will
incriminate.

Section 133: Accomplice.

Section 134: No particular no of witneeses shall in any case be requied for the
proof of any fact.

Section 135: Order of production & examination of witnesses.

Section 137 -- Cross-examination -- Statement in cross be given more

importance than chief-examination.( Where a defendant has already
transferred his right to other defendant and the transferor defendant is
not pursuing the matter properly the transferee defendant and also the
plaintiff has burdondened duty to prove their case respectively without
depending upon the transferor defendant who is not pursuing properly)
The defendant No. l had not examined himself as witness at the trial, but
he had in the written statement denied the execution of the agreement to
sell Ext. 1. His version was that his signatures had earlier been obtained on
a blank paper with revenue stamp by the plaintiff. The receipt of any
money, other than Rs. 1,000;- taken as loan when mortgage was executed
had been denied. The defendant No.2 the transferee for the defendant No. l
had contested the suit. The plaintiff therefore had to prove by reliable
evidence that the defendant No. 1 had executed the agreement Ext. l and
his version was correct. The fact that the defendant No. 1 had not
examined himself as witness at the trial, by itself therefore could not lead
to the conclusion that the plaintiff's version was correct or that the evidence
in its support was reliable.

9. The plaintiff had examined himself as PW 1 and had testified in support

of his case. Besides two other witnesses on execution of Ext. 1 had been
examined and one more witness was examined for possession of the land.
Ext. 1 said to have been executed by the defendant No. 1 however has
intrinsic feature, which as circumstance clearly established the version of
the defendant No. 1 that atleast his signature on the stamp in Ext. 1 had
been on the paper, from before when it was written. This feature is 'so
obvious that it does not require any other evidence to support the
conclusion, because the document had been written above, on the side and
below the said signature. While it is true that sometimes people affix
signature on top, side or bottom of the document, as they may please or as
may be the practice but not in the manner the signature exist on Ext. 1
which leaves no doubt that the signature on the stamp on Ext. 1 was on the
paper before it was written. This circumstance by itself besides other
evidence had also led the learned appellate Court below to take the view
that Ext. 1 was not reliable. It may be noted that PW 2 the scribe of the
document had also stated that he could not say if any other person was
present at the time the document was written by him. The learned
appellate Court below has therefore concluded that the defendant No. 1
was not present at the time the document was written. Besides PW 2 also
stated that at the time there was no money transaction which obviously
therefore belied the plaintiff's version that Rs. 1,000/-had been paid at the
time the document had been executed and this fact also was taken into
consideration by the learned appellate Court below in arriving at the
conclusion that Ext. 1 was not reliable.

The entire purpose of cross-examination is to test the veracity of the

statement made in examination in chief and it is only when the statement
made in examination in chief stands unshaken in cross-examination that it
could be accepted. The statement made by a witness in examination in
chief if shaken or shown to be inconsistent with that in cross-examination
cannot be accepted. The statement as it emerges after cross examination
may then be relied upon.

I, therefore think that the learned appellate Court below had not
committed any error in the appreciation of evidence of PW 2, the scribe. 11.
Shri T. S. Deka, learned counsel for the appellant has submitted that the
view taken in regard to the signature of the defendant No. 1 on the revenue
stamp cannot be applicable to his signature at the bottom of the text of the
document and accordingly there was no reason to disbelieve the plaintiff's
evidence in regard to execution of the document. The plaintiff's witnesses
have not testified, on that basis that while on the revenue stamp Ext. 1 the
signatures Ext. 1 (i) were in existence from before the signature Ext. 1 (2) at
the bottom was affixed at the time of the execution. Besides once the fact
that signatures Ext 1 (1) were already there was shown to be correct as
indeed it was, by the intrinsic feature already referred earlier the plaintiff's
case in regard to execution of the document could not be accepted as
reliable. 12. Shri T. S. Deka, learned counsel for the appellant argued that
the evidence of the other witnesses had not been considered by the learned
appellate Court below. The evidence of the other witnesses once the
plaintiff's version of execution of document was found unreliable was not
material, because in the nature of the case, the evidence of the other two
witnesses could not make any difference to the plaintiff's case.

13. Shri Deka, learned counsel for the appellant also argued that the
plaintiff had obtained possession of the land at the time Ext. 1 had been
executed and this fact had not been considered. As said before once the
plaintiff's version of execution of Ext. 1 was not acceptable, the further
submission on its basis about possession having been obtained also could
not be accepted.

14. As regards the submission for plaintiff's alternative relief for recovery
of money Rs. l,000/-at the time of execution of Ext. 1, Rs. 400/-and Rs. 300/-
subsequenUy was concerned, I think it could not be accepted for the
reason, that the plaintiff version of Ext. 1 was not acceptable and hence the
version of Rs. 1,000/- paid and of subsequent payment for which there was
only the plaintiff's oral evidence could not be accepted.

15. Whatever be the plaintiff's right against the defendant No.l on the basis
of the mortgage Ext. 6 executed by him in favour of the plaintiff when he
had borrowed Rs.1,003/ no relief as prayed could be granted.

Cross examination -- Specific assertions in the examination-in-chief --

Cross examination of the said witness on the said material point to
discredit him is must.

In view of the law laid down by the Supreme Court in the case of Arjun
Singh v. Mohindra Kumar, AIR 1964 SC 993 , the defendants who have
been proceeded against ex parte, have to be permitted to take part in the
further proceedings of the suit, in case the suit is not finally disposed of on
the date when the case was fixed for hearing.

151. Saving of inherent powers of Court.—Nothing in this Code shall be

deemed to limit or otherwise affect the inherent power of the Court to make
such orders as may be necessary for the ends of justice or to prevent abuse
of the process of the Court.

Comments

(i) Inherent powers cannot be exercised so as to nullify provisions of the

Code. When Court deals expressly with a particular matter, the provisions
should normally be regarded as exhaustive; National Institute of Mental
Health and Neuro-Science v. C. Parameshwara, AIR 2005 SC 242.

(ii) Recourse to inherent powers in face of or in conflict with specific

provision of statute is not permissible. Inherent power cannot be exercised
to nullify effect of any statutory provisions; Abdul Rahim Attar v. Atul
Ambalal Barot; AIR 2005 Bom 120.
Section 151 -- Invocation of -- Examination and cross-examination of
witness -- Section 151 of CPC can only be invoked if there is no express
provision dealing with a particular situation -- There being specific
provision in CPC as well as the Evidence Act regarding examination and
cross-examination of a witness -- Party cannot be permitted to fall back
upon Section 151 to re-cross examine a witness who has been already
examined and cross examined.

Code of Civil Procedure, 1908 -- Order 18, Rule 17 -- Power of court -- Re-
Cross-examination -- Order 18 Rule 17 not empower the court to call for
the witness already examined and cross-examined for the purpose of re-
cross-examination -- Court can call the witness for the purpose of re-
examination not for the purpose of re-cross-examination -- Such power of
discretionary and ought to be exercised with the greatest care and only
on most peculiar circumstances.
Evidence Act, 1872 -- Section 165 -- Power of court under -- Court can put
any questions to any witness which cannot be said to confer any right on
a party to re-cross examine a witness who has already been examined
and cross-examined two occasions.

Order 18 CPC deals with the procedure of hearing of the suit and
examination of witnesses. Chapter X of the Evidence Act deals with the
procedure of examination of witnesses. As per Section 135 of the Evidence
Act, the law and the practice shall regulate the order in which witnesses are
produced and examined for the time being relating to civil and criminal
procedure respectively, and in absence of any such law by the discretion of
the Court. Section 137 of the Evidence Act provides for examination in
chief, cross examination and re-examination. Section 138 of the Act lays
down the order in which the examination is to be made. Witnesses shall be
first examined-in-chief and thereafter cross-examined by the adverse
party, if so desires. Thereafter, the witnesses may be re examined at the
instance of the party producing him as the witness. Direction of re-
examination can be made for the explanation of matters referred to in
cross-examination, and if new matter is, by permission of the Court,
introduced in re-examination, the adverse party may further cross
examine upon that matter. As per the provisions of Section 139 of the Act, a
person summoned to produce a document does not become a witness by
the mere fact that he produces it, and cannot be cross examined unless and
until he is called as a witness.

. Section 151 of the CPC can only be invoked, if there is no express

provision dealing with a particular situation. As to the methodology and
procedure of examining, cross-examining and re-examining the witnesses,
there are specific provisions both in the CPC and the Evidence Act about
which mention has been made above. Falling back on the provisions of
Section 151 CPC, a party cannot be permitted to re-cross examine a
particular witness who has already been examined and cross-examined. It
is on record that the DW-1 was examined and re-examined and on both
the occasions, the petitioner got the opportunity to cross examine him. In
fact, he was re-examined on 10.7.2003 on which date the jurisdictional sub-
registrar produced the documents called for by the plaintift7peti-tioner. If
he was interested to cross examine the D W-1 in reference to those
documents, he could have easily done so. Instead, he had chosen not to do
so and thereafter, by his applications filed more than one year from
10.7.2003 on which date the documents were produced and the DW1 was
re- examined mad the prayer for re-cross examination of the said witness.
In the meantime, the evidence was closed and the matter was fixed for
argument

10. Order 18, Rule 17 to which a reference has been made by the learned
counsel for the petitioner is also of no help to the case of the petitioner. This
provision empowers the Court to call any witness who has already been
examined. However, such power of the court is subject to the law of
evidence and the relevant provisions of the Evidence Act have been noticed
above. Order 18, Rule 17 does not empower the Court to call for the
witness already examined and cross-examined for the purpose of re-cross
examination. The power of the Court to call for the witness is in the form
of re-examination of the witness and not for the purpose of re-cross
examination and that too at the sweet will of the party seeking such re-
cross examination. Section 165 of the Evidence Act is also of no help to the
case of the petitioner, which is again subject to the other provisions of the
Act about which a mention has been made above. Section 165 only
empowers the Court to put questions to any witness, which cannot be said
to confer any right to the plaintiffto recross examine a witness who has
already been examined and cross-examined on two occasions.

Re-examination of Witness -- There is no strict law that re-examination

can be allowed only after completion of cross-examination.

Civil Procedure Code, 1908, Order 18 Rule 4 -- Re-examination of Witness

-- There is no strict law that re-examination can be allowed only after
completion of cross-examination -- If in the midst of cross-examination,
the court comes to the conclusion that some new point has emerged and
some document though exhibited in examination-in-chief is incomplete
or has been left out inadvertently either by the witness himself or due to
lapse by the court itself, re-examination can follow even in the midst of
cross-examination of a witness. (Para 5)

Section 154 -- Cross-examination of hostile witness -- With the court’s

leave a party can cross-examine its own witness such as hostile witness.

154. Question by party to his own witness.—1[(1)] The Court may, in its
discretion, permit the person who calls a witness to put any question to him which might
be put in cross-examination by the adverse party.
2[(2) Nothing in this section shall disentitle the person so permitted under sub-section
(1), to rely on any part of the evidence of such witness.]
COMMENTS
Grounds
Mere possibility of not supporting case by person without any positive indication is no ground to invoke section
154 and permit cross-examination. More so, when said person is not yet examined as witness; Rehana Begum
v. Mirza M. Shaiulla Baig (Dead) by L.Rs., AIR 2005 Kant 446.
Cross-examination of own witness
Grant of permission by court to cross examine his own witness by a party should be judicially exercised—
deposition in opposition, permission by court to declare him hostile not proper; S. Murugesan v. S.
Pethaperumal, AIR 1999 Mad 76.
In a criminal prosecution when a witness is cross-examined and contradicted with the leave of the court, by the
party calling him, his evidence cannot, as a matter of law, be treated as washed off the record altogether. It is
for the Judge to consider the fact in each case whether as a result of such examination and contradiction, the
witness stands thoroughly discreted or can still be believed in regard to a part of his testimony. If the Judge
finds that in the process, the credit of the witness has not been completely shaken, he may, after reading and
considering the evidence of the witness, as a whole, with due caution and care, accept, in the light of the other
evidence on the record, that part of his testimony which he finds to be creditworthy and act upon it. If in a
given case, the whole of the testimony of the witness is impugned and in the process, the witness stands
squarely and totally discredited the Judge should, as a matter of prudence, discard his evidence in toto;
Pandappa Hanumappa Nanamar v. State of Karnataka, (1997) 3 Supreme Today 63.
Evidence of hostile witness
The fact that witnesses have been declared hostile does not result in automatic rejection of their evidence. Even
the evidence of a hostile witness if it finds corroboration from the facts of the case may be taken into account
while judging the guilt of an accused; Lella Srinivasa Rao v. State of Andhra Pradesh, AIR 2004 SC 1720.
Reliability of hostile witness
It is settled law that evidence of hostile witness also can be relied upon to the extent to which it supports the
prosecution version evidence of such witness cannot be treated as washed off the record. It remains admissible
in the trial and there is no legal bar to base conviction upon his testimony if corroborated by other reliable
evidence; Koti Lakshman Bhai v. State of Gujarat, AIR 2000 SC 210.
The entire evidence of a prosecution witness, who turns hostile and is cross-examined by the Public Prosecutor
with the leave of the court, is not to be discarded altogether as a matter of law; Pandappa Hanumappa
Nanamar v. State of Karnataka, (1997) 3 Supreme Today 63.
Cross-examination of a hostile witness does not completely efface his evidence. The evidence remains
admissible in the trial and there is no legal bar to base a conviction upon his testimony if corroborated by other
reliable evidence; Pandappa Hanumappa Nanamar v. State of Karnataka, (1997) 3 Supreme Today 63.

-------------------------
1. Section 154 renumbered as sub-section (1) thereof by Act 2 of 2006, sec. 9 (w.e.f. 16-4-2006).
2. Ins. by Act 2 of 2006, sec. 9 (w.e.f. 16-4-2006).
-------------------------

Hostile witness—Permission for cross-examination—The witness

suppressing the truth from the Court—Witness should be declared
hostile—Party tendering the witness is permitted to cross examine
her/him.

From the statement of RW-9 recorded by the learned Rent Controller, it

appears that this witness has withheld the truth from the Court. On a
specific question asked about the existence of sale deed, this witness admits
that the sale deed is in her possession. When she was asked to produce the
sale deed, she has responded by saying that she do not know whether she
can produce the said sale deed or not. She has further stated that she
cannot produce the sale deed. This clearly indicate that this witness is
suppressing the truth from the Court. Section 154 of the Evidence Act,
permits the Court to declare a witness as hostile and permit the party
tendering the witness to subject him/her to cross-examination.

The conditions where a witness can be declared hostile by the Court are
laid down in the case of Rabindra Kumar Dey Vs. State of Orissa, AIR 1977
Supreme Court, 170, which are as follows:

“A party will not normally be allowed to cross examine its own witness
and declare the same hostile unless the Court is satisfied that the statement
of the witness exhibits an element of hostility or that he has resiled from a
material statement which he made before an earlier authority or where the
Court is satisfied that the witness is not speaking the truth and it may be
necessary to cross-examine him to get out the truth.”

Evidence Act, 1872, Section 154—Hostile witness—Permission for cross-

examination—Existence of sale deed—The witness suppressing the truth
from the Court—Apparent element of hostility—Witness should be
declared hostile—Party tendering the witness is permitted to cross
examine her/him. (Para 2)

In this case, the plaintiff sought to examine the fingerprint expert on

commission and accordingly filed the interrogatories. The Court called
upon the defendant to file the cross interrogatories. The defendant opposed
the demand and contended that he can either cross examine the witness
orally or file cross interrogatories and, that he would decide upon what
course he should adopt only after the replies of the witness to the
interrogatories served by the plaintiff were known. For this, he relied upon
the decision of the Patna High Court in AIR 1934 Pat 60 , (Ram Singh v.
Ram Bahadur Singh). The trial Court held that the defendant was bound to
file the cross interrogatories and after the court had examined the
interrogatories, the defendant could claim the cross examination of the
witness orally and that if the Court found that such oral examination was
necessary, it could allow the same, Accordingly the Court directed the
defendant to file the cross-interrogatories for service on the witness.
Aggrieved by this order the defendant has come up in revision to this
Court.

2. In Ram Singhs case (supra), it has been held that when handwritting
expert is to be examined on commission by written interrogatories, the
party entitled to cross examine can either file written cross interrogatories,
or insist upon an opportunity being given to him to cross examine the
witness orally, and that, where the Court does not give this choice to such a
party, it acts without jurisdiction. Thus where a witness is sought to be
examined by a party on commission by written interrogatories, the other
side has a choice before it, either to file written interrogatories or to insist
upon an opportunity being given to him to cross-examine the witness
orally. Accordingly it was incumbent upon the trial Court to enquire from
the defendant whether he wanted to cross examine the witness orally or by
Written interrogatories, and if the defendant had indicated that he would
like to cross examine the witness orally, then the Court ought to have
made a direction that the Court executing the commission shall give him
an opportunity to cross examine the witness orally. On the other hand, if
the defendant had stated that he would like to cross examine the witness
through written interrogatories, then the Court ought to have allowed him
reasonable time to file the same. The trial Court has not adopted this
procedure, the reason being that it has not been able to appreciate the law
laid down in Ram Singhs case (supra) correctly. It is unthinkable and the
authority nowhere lays down that the oral cross examination of a witness
would be permissible after his examination and cross examination is
complete on written interrogatories. The view to the contrary expressed by
the trial Court is clearly erroneous. In this view, the impugned order is not
sustainable in law and must be set aside.

3. Allowing this revision, I set aside the impugned order and direct that the
trial Court shall proceed to make fresh orders in accordance with law after
keeping in view the observations made above.
Practice -- Statement of witness remained unrebutted as he was not cross
examined inspite of opportunity -- His testimony needs to be accepted.

It is settled proposition of law as laid down by this Court in the matter of

Gulla Kharagjit Carpenter v. Narsingh Nandkishore Rawat reported in AIR
1970 MP 225 , holding that if the party who know the facts pleaded, did not
enter in the witness box to prove the same and to propose himself for
cross-examination by the other side, then such circumstance is sufficient to
draw an inference against such person to hold that such party has failed to
prove his case. In the aforesaid cited-case, it was held as under:--

"When a material fact is within the knowledge of a party and he does not
go into the witness box without any plausible reason, an adverse inference
must be drawn against him. A presumption must be drawn against a party
who having knowledge of the fact in dispute does not go into the witness
box particularly when a prima facie case has been made out against him."

Order 18 Rule 17 -- Court cannot recall the witness for further re-cross
examination under order 18 Rule 17 when witnesses were examined,
cross examined and discharged -- Civil Procedure Code,1908 -- Section
151 -- Interest Powers -- Witness may be recalled for re-cross examination
when new facts came to light.

In my opinion, the Court can by exercising inherent powers U/S.151 CPC

recall a witness at any stage for the purpose of re-cross examination or re-
examination. But before passing an order for recalling a witness the Court
must be satisfied and accordingly record reasons that it is necessary to do
so for ends of justice or to prevent abuse of process of the Court. It is
difficult to lay down under what circumstances such powers can be
exercised as it will very from case to case, but in my opinion, the said
powers may be exercised in rare cases and after recording sufficient and
cogent reasons. For example, if after a witness is discharged after cross
examination new facts come to light, the witness may be recalled for re-
cross examination. This matter, in my opinion, entirely rests at the
discretion of the Court.

7. In the instant case, I do not find either in the petition filed by the
opposite party or in the impugned order, reasons for recalling the
witnesses, namely, D. Ws 1 and 2 for the purposes of re cross examination.
It appears that only ground on which the learned trial Court heavily relied
was that the petitioner would not be prejudiced if the witnesses were
recalled and, in my opinion, this reason is not sufficient The impugned
order is, therefore; bad in law. I, however, make it clear that keeping in
view the observations made herein above the trial Court will be at liberty
to exercise inherent powers to recall the witnesses if any occasion arises in
future.