Dr. Y. Srinivasa Rao,
The author has done his B.A (Economics, Politics, & History)., B.Ed (Social Studies & English Lang.)., B.L., LL.M (Labour Laws)., and Ph.D in Law from Andhra University , Visakhapatnam, Andhra Pradesh.
TABLE OF CONTENTS
2. Classification of documents basing on the transactions
3. Relevant Laws defining and explaining the different transactions
4. Method of interpretation of current nature of documents
5. Relevancy and Admissibility of documents in evidence: i) Relevancy of documents with reference to the provisions of Indian Evidence Act. (Ex. Recitals in the 3rd party documents, public documents etc)
ii). Admissibility of documents with reference to Stamp, Registration Act
and other relevant laws
6. Primary evidence and secondary evidence
7. Mode of proof of documents
8. Competency of a witness to prove documents
9. Exclusion of oral evidence by documents
10. Presumptions relating to documents
A flaw does not either invalidates a document or suspends its operation till the defect is rectified or the ambiguity clarified.
‘Document’ means any manner expressed or described upon any substance by mans of letters, figures or marks, or by more than one of those means, intended to be used, or which may be used for the purpose of recording that matter. All documents including electronic records produced for the inspection of the Court, such documents are called documentary evidence. See. Sec. 3 of Evidence Act. The cardinal rule again is that, clear and unambiguous words prevail over the intention. But if the words used are not clear or ambiguous, intention will prevail. After the dicta the Privy Council in Shamu Pattar Vs. Abdul Qadir, 35 Mad 607 (PC) : 39 LA. 218, the Transfer of Property (Amendment) Act 27 of 1926 inserted the definition of “attested” in Sec. 3 of the Transfer of Property Act in terms of the definition of the Indian Succession Act. In general sense, ‘attestation of a document’ is a common formality. In India, few documents are required by law to be attested. Wills made after 1st January 1866 by persons other than Hindus, Muslims or Buddhists, Wills made by Hindus, Buddhists, Sikhs and Jainas on or after 1st September 1870 in the territories subject to the Lieutenant Governor of Bengal or in the towns of Madras and Bombay or relating to immovable property situate within those limits and wills made by any Hindu, Buddhist, Sikh or Jaina on or alter 1st January 1927 must be attested under Sec. 63 of the Indian Succession Act 1925.
Documents may contain either unilateral or bilateral dispositions or even with reciprocal. Further, testamentary or non-testamentary. Further, transfer of rights or division and separation of existing or joint rights. Further, any dispositions, transfer of rights or creating rights may be either present or future. Furthermore, it affects the rights of even non parties to the documents at times like in boundary recitals Generally in construing instruments, Court must have regard not only to the presumed intention of the parties but also to the meaning of the words which they have used-vide- V.S.Talwar v. Premchandra (70) AIR 1984 SC 664.Every instrument has to be so interpreted as to accord with the intention of its maker having regard to the language used; though one cannot ignore actual words used and go after the supposed intention of maker, since that would amount to entering the arena of speculation, but all the same said principle is unexceptionable-vide-Hind Plastics v. Collector of Customs (71) (1994) 5 SCC 167 at para-17.
Under Sec. 59 of the Transfer of Property Act, 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. Under Sec. 124 of the Transfer of Property Act, a gift of immovable property of whatever value can be made only by a registered instrument attested by at least two witnesses. This rule does not apply to gifts made by Muslims. No other deed or document requires to be attested. An instrument creating a charge does not require to be attested and proved in the same way as a mortgage., Ramaswamy Iyengar v. Kuppuswamy Iyer, AIR 1921 Mad 514. Under Sec. 54 of the Transfer of Property Act, a deed of sale of tangible immovable property of value of one hundred rupees and upwards or of a reversion or of other intangible thing can be made only by a registered instrument and it requires no attestation. It is curious to note that In respect of Bonds, nevertheless for the purpose of Stamp Act, it may be necessary for a bond to be attested, it is not a document required by law to be attested within the meaning of Sec. 68 of the Indian Evidence Act. An agreement for sale is a document which does not require to be attested by any law. An instrument creating a charge does not require to be attested and proved in the same way as a mortgage. [Ramaswamy Iyengar v. Kuppuswamy Iyer, AIR 1921 Mad 514.
Three rules must be kept in mind while interpreting a document:
(c) The third rule deals with the admission of extraneous facts in aid of the interpretation of documents.
2. CLASSIFICATION OF DOCUMENTS BASING ON THE TRANSACTIONS: (SALE – GIFT – MORTGAGE – WILL – PRONOTE – LEASE – ADOPTIONS – AGREEMENTS ETC.)
Section 67 and 68 of Indian Evidence Act, 1872 are very importance for consideration to know the difference between proof of document not required by law to be attested and proof of document required by law to be attested. Curiously enough, as was held in Karuppaiyan Vs. Muthukaruppan, AIR 1975 Mad 221, an attested document which is not required by law to be attested may be proved by any of the modes indicated in Sec. 67 of the Indian Evidence Act without examining the attesting witnesses.
According to Section 123 of the Transfer of Property Act gift-deed is required to be attested at least by two witnesses. A conjoint reading of Section 122 and 123 of the Act makes it abundantly clear that “transfer of possession” of the property covered by the registered instrument of the gift duly signed by the donor and attested as required is not a sine qua non for the making of a valid gift under the provisions of Transfer of Property Act, 1882.
ii) Mortgage deed
One of the essentials of mortgage deed is that each of the attesting witnesses must have signed the document in the presence of the executant. If the provisions of Sections 58 and 59 of the Registration Act and Sections 3 and 59 of the Transfer of Property Act are read together, there was no escape from the conclusion that a mortgage deed was required to be proved by producing it least one of the attesting witnesses. (Registration of mortgage deed is compulsory except in case of mortgage by deposit of title deeds).
Section 68 of the Evidence Act deals with proof of the execution of documents required by law to be attested. It provides that such documents shall not be used as evidence until at least one attesting witness has been called to prove the execution if there be an attesting witness alive and subject to the process of the Court and capable of giving evidence. Since by Section 63 of the Succession Act, 1925 a will has to be attested by two or more witnesses, Section 68 of of the Evidence Act would come into play and therefore it was incumbent on the prepounder of the Will to examine the attesting witness to prove due prosecution of the will.
iv) Sale deed
A sale deed is required to be properly stamped and registered before it can convey title to the vendee. However, legal position is clear law that a document like unregistered sale deed, though not admissible in evidence, can be looked into for collateral purposes. Section 35 of the Stamp Act, does not contain a proviso like Section 49 of the Registration Act enabling the instrument to be used to establish a collateral transaction.As per Section 54 of the Act, the title in immovable property valued at more than Rs. 100/- can be conveyed only by executing a registered sale deed. Section 54 specifically provides that a contract for sale of immovable property is a contract evidencing the fact that the sale of such property shall take place on the terms settled between the parties, but does not, of itself, create any interest in or charge on such property.
v) Promissory note.
Promissory note is not compulsorily attestable document.Stamp duty on Promissory note is an instrument in writing (not being a bank-note or a currency-note) containing an unconditional undertaking, signed by the maker, to pay a certain sum of money only to or to the order of, a certain person or to the bearer of the instrument, Section 4, Negotiable Instruments Act, 1881.
vi) Lease deed
In Anthony v, K.C. Ittoop and Sons, 2001 (1) MLJ 12, the Supreme Court found that there are three interdictions to claim that an instrument can create a valid lease in law. The first inhibition is that it should be in accordance with the provisions of Section 107 of the Transfer of Property Act. The second inhibition, as pointed out by the Supreme Court, is Section 17(1)(d) of the Registration Act, which states that where a lease of immovable property from year to year or for any term exceeding one year or reserving an yearly rent, such document should be compulsorily registered. The third inhibition, as noted by the Supreme Court, is Section 49 of the Registration Act relating to the consequence of non-compliance of Section 17. Section 49(c) contemplates that no document required by Section 17 or by any provision of the Transfer of Property Act to be registered shall be received as evidence of any transaction affecting such property or conferring such power, unless it has been registered.
vii) Partition deed.
In Bapayya Vs. Ramakrishnayya, 1938-1 Mad L J 582, AIR 1938 Mad 568, it was held that where unregistered partition list were sought to be put in evidence for the purpose of providing a partition between the parties, the question to be decided was whether the documents constituted the bargain between the parties, or they were merely the record of an already completed transaction, the question being whether there was a sufficient dissociation of the transaction. See also. Roshan Singh & Ors vs Zile Singh & Ors, AIR 1988 SC 881. Ambati Durgamma And Ors. vs Pericherla Jagapathiraju, 2005 (1) ALD 607, 2005 (1) ALT 357.
Effect of unregistered partition deed:- The effect of unregistered partition deed and held that an unregistered partition deed is inadmissible in evidence and cannot be looked into for the terms of partition but can be looked into for the purpose of establishing a severance in status. See. Chinnappareddigari Pedda Muthyalareddy vs Chinnappareddigari Venkata Reddy, AIR 1969 AP 242. Latest ruling of 2017, Moghal Sardar Hussain Baig vs Syed Farveej Begum, CRP.No. 1115 of 2017,dated 1207-2017.
Unregistered partition deed:-
Non-registration of a document which is required to be registered under Sec. 17(1) (b) of the Registered Act makes the document inadmissible in evidence under Cl. (cf) of Sec. 49 of the Registration Act, even though such a document can be used for a collateral purpose and that oral evidence can be adduced to establish that there was as disruption in status of the joint family.See. Chinnappareddigari Pedda vs Chinnappareddigari, AIR 1969 AP 242. In this case, it was further observed that it has been held in a series of decisions that an unregistered partition deed can be looked into for the purpose of finding out whether there has been severance in status. It is unnecessary to refer to all of them in view of the categorical pronouncement of the Supreme Court in Naini Bai Vs. GIta Bai.
1. If the family arrangement is reduced to writing and it purports to create, declare, assign, limit or extinguish any right, title or interest of any immovable property, it must be properly stamped and duly registered as per the Indian Stamp Act and Indian Registration Act.
2. If the family arrangement is stamped, but not registered, it can be looked into for collateral purposes. A person cannot claim a right or title to a property under the said document, which is being looked into only for collateral purpose.
3. A family arrangement which is not stamped and not registered, cannot be looked into for any purpose, in view of the specific bar in Section 35 of the Indian Stamp Act. A document must be read as a whole.
4. As to the nature of transaction under the document, it cannot be decided by merely seeing the nomenclature. Mere usage of past tense in the document should not be taken indicative of a prior arrangement.
Coming to controversy as to in the absence of proof of due execution and attestation, some of the contents of the document if not in dispute whether can be looked for collateral purpose; the law in this regard culled out to settle the controversy is the following:
In Shib Chandra v. Gour Chandra Paul (138) AIR 1922 Calcutta 160- it was at Page 162, referring to Section 68 of the Indian Evidence Act, on admissibility for a collateral purpose or not of a compulsory attestable document even denied execution and attestation, not proved under Section 68 of the Evidence Act, it was held that Section 68 of the Evidence Act applies not only to cases where document is admitted to be enforced to prove the legal right or relation it creates, but in case where such document is sought to be proved for a collateral purpose. The view is also supported by the impetrative wording of Section 68, which does not permit the admissibility of the instrument as evidence for any purpose, what so ever unless and until, it is proved in strict compliance with the provisions of the Section. The rigor of the English Law, on which the present Section is founded, has been to a certain extent lessened by the proviso as contained in Section 70 of the Evidence Act. The enactment of this proviso clearly indicates that the Indian legislature intended to provide only one exception to this inflexible rule and no other. Later also in Awadhu Ram v. Mahbub Khan (139) AIR 1924 Oudh 255, the division bench of the Oudh High Court held at page 259 referring to Section 68 of the Evidence Act that, there is no distinction between documents which are the basis of a suit and those whose production is required for a collateral purpose, so far as their admissibility in evidence is in question. The direction in Section 68 of the Evidence Act is mandatory and draws no such distinction. In Pt. Shyam Lal v. Lakshmi Narain and others (140) AIR 1939 All 269 (DB), it was held by the Allahabad High Court that Section 68 of the Evidence Act does not apply to a document, which is merely to be proved for admission of contentions in it. Further in Mahadio Prasad v. Gulam Mohd (141) AIR 1947 Alahabad 161 (DB) referring to Section 68 of the Evidence Act, it was held by the division bench of the Allahabad High Court that Section 68, applies only if document is relied upon as requiring attestation-for example a Will. Non-compliance with the provisions of Section 68 of the Evidence Act, however, does not prevent the document from being used in evidence under Section 72 for any other or collateral purpose and to that conclusion they placed reliance upon the earlier expressions of the Allahabad High Court of 1915, 1918 and Pt. Shyam Lal (140 supra) of 1939, in saying use of the document for collateral purpose is not a bar, from the bar under Section 68 of the Evidence Act; as Section 68 applies only if a document is relied upon as one requiring attestation to comply. However, in the later judgment reported in Paranru Radhakrishnan v. Bharathan (142) AIR 1990 Kerala 146, by referring Section 68 and 69 of the Evidence Act and also referring to the above expressions of the Calcutta, Ough and Allahabad High Courts, the Kerala High Court held that from reading of Section 68 of the Evidence Act, it is evident that a document which is required by law to be attested, shall not be used at all as evidence, until one of the attesting witnesses at least has been examined to prove its execution. The imperative wording of Section 68 of the Evidence Act makes it clear that it does not permit the utilisation of a document , which is required by law to be attested as evidence until it is proved strictly in accordance with the provisions of the Section. From a reading of Section 68 of the Evidence Act and its proviso, it is not possible to hold that the rigor of the section can be watered down in case of a Will, which is required by law be attested to prove it to use the same in evidence even for collateral purposes. Thus, where the production of Will was for the purpose of establishing right in the property and not relationship between the parties and the testator, strict compliance of Section 68 of the Evidence Act is mandatory and without adhering to the provisions, it cannot be used even for any collateral purpose.
It is in this background, it is important to refer the recommendations of the Law Commission of India, suggesting an amendment to be made to the Indian Evidence Act for various sections covered by 185th report and though at pages 185.179 to 185.183, it was dealt with the above propositions also in suggesting amendment for admissibility to the collateral purpose, without need of proving the due execution and attestation for admissibility to the main purpose. It speaks from the 69th report, among the amendments suggested include amendments to Section 68 of the Evidence Act and under Sections 57, 58 and 63 of the Indian Succession Act and Sections 59 and 123 of the Transfer of Properties Act. The Law Commission 69th report recommendations also stated the opinion of Sarkar, the Author on the Evidence Act that Section 68 of the Evidence Act should not apply, if the Will is more than 30 years old under Section 90 of the Evidence Act or was not produced in spite of notice to produce under the Evidence Act ; which proposals are broadly in conformity with the English Law as it stands after the UK Evidence Act, 1938.which accept even in case of Wills for other situations where witness is kept out of way. Sarkar on Evidence (15th edition-1999) at page 1124, Wigmour on Evidence at Para 1288, speak that the theory that parties must be deemed to have agreed that the attestor will be a person, who should speak about the circumstances of the execution, is not correct and there is no such agreement can be implied, particularly, when attestation is required by law. As per Sarkar, Page 1124 the attestor is in practice, not usually a person who knows anything about the circumstances preceding the document execution and also on the aspect, the words shall not be used in evidence mean that the document can be used for collateral purposes. Several Jurists in America relaxed the rule for the purpose of collateral or incidental use (Wigmore Section 129 quoted by Sarkar Page 1129) as relaxed the rule in admission of a mortgage bond in AIR 1939 Allahabad 366, AIR 1915 Allahabad 254. The Law Commission thus proposed that the inadmissibility must be confined to the testamentary disposition and not for collateral purpose and recommended that Section 68 of the Evidence Act must be confined only to Wills and required to be re-drafted and the exceptions added and referred to in the 69th report required. It clearly speaks even from the Law Commission 69th Report, so far as a Will is concerned the admissibility cannot be without examining at least one of the attestors in proof of due execution even to read any of the contents that what practically laid down by the Kerala High Court referring to the earlier expressions of Allahabad, Haryana and Calcutta High Courts. The Apex Court in Kashibai and another v. Parwatibai (118 supra) held at paras 10 and 11 that Section 68 of the Indian Evidence Act shows that the attestation and execution are the two different acts one following the other. There can be no valid execution of a document which is required by law to be attested without the proof of its due attestation and if due attestation is also not proved; the fact of execution of the Will is of no avail-See also several expressions referred and discussed in the previous paras supra and in particular of the Karri Nukaraju, Dr. M. Ratna and Janki Narayan Bhoir (131, 68 and 123 supra)- with reference to Section 3 of the Transfer of Property Act, Sections 68-71 of the Indian Evidence Act and Section 63 of the Succession Act, with regard to the execution of unprivileged Wills the word attested has been defined as in Section 3 of the Transfer of Property Act. In the case on hand, as found by the trial Court, none of the witness to the Will had deposed that the deceased-attestor had signed the Will before them and that they had attested it and in the absence of such evidence, it is difficult to accept that the execution of the Will was proved in accordance with law, but held that Will has not been proved. In Babu Singh (132supra) held referring to Section 68 of the Evidence Act , Section 63 of the Indian Succession Act and Section 3 of the Transfer of Property Act that to prove due execution of Will, at least one attesting witness required to be examined as attestor must be in conformity with Section 3 of the Transfer of Property Act and with the requirement of Section 63 of the Indian Succession Act , that must be complied with.
In re Daddapaneni Narayanappa (72 supra), it was held that recital in a document of neighboring land, referring one of its boundary as suit land and it belongs to a particular person, for the person to rely on it, is not legal evidence and the same is not even admissible under Section 32(2) of the Evidence Act. The decision while saying neighboring owners document referring boundary recital of suit land not legal evidence to the lis, held therefrom as not even admissible under Section 32(2) of the Evidence Act. It no way says the recital wont come under Section 32(2) of the Evidence Act.
It was also held in Karupaanna Konar v. Rangaswami Konar (73 supra) at page 106 that, a mere statement of boundary cannot be classed with any of the verbs in Section 13 of the Evidence Act of created, modified, recognised, asserted or denied and is therefore not admissible; the same is not even admissible under Section 32(3) of the Evidence Act as it is a statement and not the document containing the statement that must be against the proprietary interest of the person making it. It is to say, if it is the statement in a document it comes within the purview of Section 13 and 32(3) of the Evidence Act.
The other decision in Siripalli Venkata Rayagopala Raju v. Hota Narsaiah (144) Madras High Court Volume 26 Indian Cases page 747 of the year 1914 D.B, it was held that a document mentioned as sale deed executed by widow of the family asserting the property belongs to their husband were admissible under Section 13(1) of the Evidence Act as transaction so also written statement filed by them in suits which they are parties and in which they had made recitals. Whereas a document in which there is a recital between third persons in describing the boundary of property sold, as the suit property as that of particular family is not admissible under Section 13 of the Evidence Act as a transaction or even under Section 32 of the Evidence Act as an admission against interest.
In Karpanna Kumar (73 supra), it was held further in dealing with Section 32 and 13 of the Evidence Act that under Section 32(3), it is the statement and not the document containing the statement which must be against the proprietary person making of interest and under Section 13 of mere statement of boundary cannot be classed with any of the verbs in Section 13 created, modified, recognized, ascertained or denied as is therefore not admissible under Section 13 (a) of the Evidence Act.
In fact as laid down by the Madras High Court later to the above in the year, 1956 in Rangayyan v. Inasimutthu (75 supra), recitals of the boundaries in a document inter-parties is admissible as a joint statement of the parties executed it to act as admission, where as recitals of a document between a party and stranger is relevant against the party as an admission but is not admissible in his favour unless the fact recited is deposed by executants of the document in Court to act as a corroborative evidence under Section 157 of the Evidence Act or to contradict under Sections 145 and 155(3) of the Evidence Act; whereas recitals as to boundaries in the document between third parties, it is not ordinarily admissible to prove possession or title as against a person, who is not party to the document, but for at best to corroborate or to contract. The probative value to be attached to such recitals in the documents even admitted in evidence is depending upon the facts and circumstances of each case right from to clinching evidence as the case may be from material on record of the respective cases.
The other decision in Jayan v. Jayala Laxman (145 supra), which is a division bench expression of this Court of the year, 2008 that placed reliance by both sides regarding the scope of Section 32(7) read with 13(1) of the Evidence Act, holding that a deed executed by deceased Karta of joint family, the recitals can only be as between parties as to continuous and those claim under them, but by itself is not sufficient evidence to establish that suit property is self acquired property of deceased and admissibility of such recital under Section 32(7) read with 13(a) of the Evidence Act does not affect. At Para 28 to 33 of the judgment, it was observed that the recitals in the document in question in admissible under Section 32(7) and 13(a) of the Evidence Act, executed by late Muni Subbaiah by itself is not sufficient evidence to establish that suit property is self acquired. Recitals in deeds can only be the evidence as between parties to the continuous and those who claim under them at any rate a recital can be assertion of fact contained by the recital. Some other evidence must be available to substantiate the same. It is true that where alienation is questioned allowing after transaction took place, a recital in the document which is constrained with the probable and the circumstances of the case assumes greater importance, since the original parties to the transaction those who can have given efforts at the relevant point of time being grown old was passed away. However, such recital by itself does not constitute sufficient evidence to establish the extents of a fact.
The controversy is in fact set at rest by the Apex Court in the year, 2003 in its expression in RVEV Gounder v. A.V. and V.P. Temple (43 supra), holding that Section 34 of the Evidence Act declares as relevant, entries in books of account regularly kept in the course of business, whenever they refer to a matter into which the Court has to enquire. When such entries are shown to have been made in the hands of a maker who is dead, the applicability of Section 32(2) of the Evidence Act is attracted; and according to which statement made by the dead person in the ordinary course of business and in particular when it constrains of entry or memorandum made by him in books kept in the ordinary course of business is out way is by itself relevant. The maker of the entry is not obviously available to depose in corroboration of the entry. In a given case, depending on the facts and circumstances brought on record, the Court of facts may still refuse to act on the entry in the absence of some corroboration. Therefore, this expression in RVEV Gounder (43 supra) crystalised that the relevancy of book of accounts under Section 34 of the Act no way lost its value for admissibility and relevancy from non-examination of the maker of the entries for such person when died.
3. RELEVANT LAWS DEFINING AND EXPLAINING THE DIFFERENT TRANSACTIONS
Sale and Agreement to sell — Essential feature that distinguishes contract of sale from agreement to sell, is that in contract of sale, property in goods is transferred from seller to buyer immediately, whereas in agreement to sell, property is transferred on a future date/dates. Agreement to sell becomes sale on fulfilment of conditions provided therein or when time provided in agreement elapses, State of Uttaranchalv. Khurana Bros., (2010) 14 SCC 334. 2.If transfer of property is in praesenti, it is called “sale”; but if transfer is to take place at a future time and subject to some conditions to be fulfilled subsequently, it is “agreement to sell”. “Agreement to sell” becomes effective when seller agrees to transfer property in goods to buyer for a price and such contract may either be absolute or conditional. When time in the agreement to sell lapses or conditions therein subject to which property in goods is to be transferred are fulfilled, said “agreement to sell” becomes a “sale”, Hyderabad Engg. Industriesv. State of A.P., (2011) 4 SCC 705.
Gift. Is the transfer of certain existing moveable or immoveable property made voluntarily and without consideration, by one person, called the donor, to another, called the donee and accepted by or on behalf of the donee, Sec. 122 T.P. Act, 1882. A gift, though a transfer, is a gratuity and an act of generosity and does not contain any element of consideration in any shape or form. Complete absence of monetary consideration is the main hallmark which distinguishes a gift from a grant or for that matter other transactions which may be for valuable or adequate consideration. Where there is any equivalent or benefit measured in terms of money in respect of a gift the transaction ceases to be a gift and assumes a different colour, Sonia Bhatia v. State of U.P., (1981) 2 SCC 585. The old text-writers made a gift (donatio) a distinct species of deed and describe it as a conveyance applicable to the creation of an estate-tail; while a feoffment they strictly confine to the creation of a fee simple estate. The operative verb in ‘give’, which no longer implies any covenant in Law (Real Property Act, 1845, 8 & 9 Vict. c. 106, Section 4) and the deed requires livery of seisin. A gift is not presumed and a Court of Equity will not assist a donee, but rather relieve a donor by setting aside the gift on the ground of undue influence (see that title) or a fiduciary relationship of the donee to the donor. Huguenin v. Baseley, (1807) 14 Ves 273: 33 ER 226; Morley v. Loughan, (1893) 1 Ch 736, 757; Lyon v. Home, (1868) LR 6 Eq 655. Under Mohammedan law, gift is a donation conferring right of property without exchange. The gift is in the nature of contract where there must be a tender of property, acceptance of the property by the donee and delivery of possession of the property. It is only when these three ingredients are satisfied a gift is completed, Gulamhussain Kutubuddin Maner v. Abdulrashid Abdulrajak Maner, (2000) 8 SCC 507, 509.
Onerous Gift — Where a gift is in the form of a single transfer to the same person of several things of which one is and the others are not burdened by an obligation, the donee can take nothing by the gift unless he accepts it fully. Where a gift is in the form of two or more separate and independent transfers to the same person of several things, the donee is at liberty to accept one of them and refuse the others, although the former may be beneficial and the latter onerous, Sec. 127 of T.P.Act, 1882.
Mortgage. It is the transfer of an interest in specific immoveable property for the purpose of securing the payment of money advanced or to be advanced by way of loan, an existing or future debt or the performance of an engagement which may give rise to a pecuniary liability, Section 58 (a) of the Transfer of Property Act, 1882. A dead pledge; a thing put into the hands of a creditor. A mortgage is the creation of an interest in property, defeasible (i.e., annullable) upon performing the condition of paying a given sum of money, with interest thereon, at a certain time. This conditional assurance is resorted to when a debt has been incurred or a loan of money or credit effected, in order to secure either the repayment of the one or the liquidation of the other. The debtor or borrower, is then the mortgagor, who has charged or transferred his property in favour of or to the creditor or lender, who thus becomes the mortgagee. If the mortgagor pay the debt or loan and interest within the time mentioned in a clause technically called the proviso for redemption, he will be entitled to have his property again free from the mortgagee’s claim.
Anomalous Mortgage — A mortgage which is not a simple mortgage, a mortgage by conditional sale, an usufructuary mortgage, an English mortgage or a mortgage by deposit of title-deeds within the meaning of this section is called an anomalous mortgage, Section 58 (g) of the Transfer of Property Act, 1882.
English mortgage — Where the mortgagor binds himself to repay the mortgage-money on a certain date and transfers the mortgaged property absolutely to the mortgagee, but subject to a proviso that he will re-transfer it to the mortgagor upon payment of the mortgage-money as agreed, the transaction is called an English mortgage, Section 58 (e) of the Transfer of Property Act, 1882.
2. Where the mortgager binds himself to repay the mortgage money on a certain date and transfers the mortgaged property absolutely to the mortgagee, but subject to a proviso that he will transfer it to the mortgager upon payment of the mortgage money as agreed, the transaction is called an English mortgage, Narandas Karsondas v. S.A. Kamtam, (1977) 3 SCC 247.
Equitable mortgage —The requisites of an equitable mortgage are: (i) a debt; (ii) a deposit of title deeds; and (iii) an intention that the deeds shall be security for the debt, Syndicate Bank v. APIIC Ltd., (2007) 8 SCC 361. 2. The following mortgages are equitable — (1) Where the subject of a mortgage is trust property, which security is effected either by a formal deed of a written memorandum, notice being given to the trustees in order to preserve the priority. (2) Where it is an equity of redemption, which is merely a right to bring an action in the Chancery Division to redeem the estate. (3) Where there is a written agreement only to make a mortgage, which creates an equitable lien on the land. (4) Where a debtor deposits the title-deeds of his state with his creditor or some person on his behalf, without even a verbal cmmunication. The deposit itself is deemed evidence of an executed agreement or contract for a mortgage for such estate. This transaction, which appears to be a judicial repeal of the Statute of Frauds, 29 Car. 2, c. 3, Section 4, is estansively resorted to and is known in practice as an equitable mortgage by deposit of title-deeds. An equitable mortgage being a contract for a mortgage, the mortgagee might file a bill or claim in Equity, either for a legal mortgage, a foreclosure and conveyance or a sale.
Mortgage By Conditional Sale — Where, the mortgagor ostensibly sells the mortgaged property on condition that on default of payment of the mortgage-money on a certain date the sale shall become absolute or on condition that on such payment being made the sale shall become void or on condition that on such payment being made the buyer shall transfer the property to the seller, the transaction is called a mortgage by conditional sale and the mortgagee a mortgagee by conditional sale, Section 58 (c) Transfer of Property Act, 1882.
Mortgage By Deposit Of Title-Deeds — Where a person in any of the following towns,namely, the towns of Calcutta, Madras and Bombay and in any other town which the State Government concerned may, by notification in the Official Gazette, specify in this behalf, delivers to a creditor or his agent documents of title to immoveable property, with intent to create a security thereon, the transaction is called a mortgage by deposit of title-deeds, Section 58 (f) of Transfer Property Act, 1882.
Simple Mortgage — Where, without delivering possession of the mortgaged property, the mortgagor binds himself personally to pay the mortgage-money and agrees, expressly or impliedly, that, in the event of his failing to pay according to his contract, the mortgagee shall have a right to cause the mortgaged property to be sold and the proceeds of sale to be applied, so far as may be necessary, in payment of the mortgage-money, the transaction is called a simple mortgage and the mortgagee a simple mortgagee, Section 58 (b) of Trasnfer of Property Act,1882.
Usufructuary Mortgage — Where the mortgagor delivers possession or expressly or by implication binds himself to deliver possession of the mortgaged property to the mortgagee and authorizes him to retain such possession until payment of the mortgage-money and to receive the rents and profits accruing from the property or any part of such rents and profits and to appropriate the same in lieu of interest or in payment of the mortgage-money or partly in lieu of interest or partly in payment of the mortgage-money, the transaction is called an usufructuary mortgage and the mortgagee an usufructuary mortgagee, Section 58 (d) Transfer of Property Act, 1882.
“Will” shall include a codicil and every writing making a voluntary posthumous disposition of property, Section 3(64), General Clauses Act, 1897. A will is an instrument whereunder a person makes a disposition of his properties to take effect after his death and which is in its own nature ambulatory and revocable during his lifetime. A will has three essentials i.e. (i) it must be a legal declaration of the testator’s intention; (ii) that declaration must be with respect to his property; and (iii) the desire of the testator that the said declaration should be effectuated after his death. The essential quality of a testamentary disposition is ambulatoriness of revocability during the executant’s lifetime. The basic and fundamental difference between a will/testamentary disposition and a settlement/gift is that in the case of a will, the crucial circumstance is the existence of a provision disposing of or distributing the property of the testator to take effect on his death, whereas in the case of a gift, the provision becomes operative immediately and a transfer in praesenti is intended and comes into effect. A will is, therefore, revocable because no interest is intended to pass during the lifetime of the owner of the property. In the case of gift, it comes into operation immediately. Further, a gift takes effect by a registered instrument signed by or on behalf of the donor and attested by at least two witnesses. On the other hand, a “will” need not necessarily be registered. But the mere fact of registration of a “will” will not render the document a settlement. In other words, the real and the only reliable test for the purpose of finding out whether the document constitutes a will or a gift is to find out as to what exactly is the disposition which the document has made, whether it has transferred any interest in praesenti in favour of the settlees or it intended to transfer interest in favour of the settlees only on the death of the settlors, Mathai Samuel v. Eapen Eapen, (2012) 13 SCC 80.
Pronote. If there is a clear promise to repay hand loan, it must follow that the instrument falls in the definition of promissory note, Mohanlal v. Sk. Bashir, (2008) 2 Mah LJ 258. Pronote defined in the Bills of Exchange Act, 1882, 45 & 46 Vict. c. 61, S. 83, as ‘an unconditional promise in writing, made by one person to another, signed by the maker, engaging to pay on demand or at a fixed or determinable future time, a sum certain in money to or to the order of a specified person or to bearer.’ The note can require payment at a particular place (Josolyne v. Roberts, (1908) 2 KB 349). Pronote is an instrument in writing (not being a bank-note or a currency-note) containing an unconditional undertaking, signed by the maker, to pay a certain sum of money only to or to the order of, a certain person or to the bearer of the instrument, [ Section 4 of Negotiable Instruments Act, 1881. Pronote includes a treasury bill, [Sec. 2 (h) Government Securities Act, 2006. Pronote means any instrument whereby the maker engages absolutely to pay a specified sum of money to another at a time therein limited or on demand or at sight, Sec. 2 (k) of Limitation Act, 1963.
Lease and Licence — A lease is a transfer of an interest in land. The interest transferred is called the leasehold interest. The lessor parts with his right to enjoy the property during the term of the lease and it follows from it that the lessee gets that right to the exclusion of the lessor, Associated Hotels of India Ltd. v. R.N. Kapoor, AIR 1959 SC 1262, 1268: (1960) 1 SCR 368. A licence is normally created where a person is granted the right to use premises without becoming entitled to exclusive possession thereof or the circumstances and conduct of the parties show that all that was intended was that the grantee should be granted a personal privilege with no interest in the land. If the agreement is merely for the use of the property in a certain way and on certain terms while the property remains in the possession and control of the owner, the agreement will operate as a licence, even though the agreement may employ words appropriate to a lease. (Halsbury’s Laws of England), Qudrat Ullah v. Municipal Board, Bareilly, (1974) 1 SCC 202, 208-209. The difference between a “lease” and “licence” is to be determined by finding out the real intention of the parties as decipherable from a complete reading of the document, if any, executed between the parties and the surrounding circumstances. Only a right to use the property in a particular way or under certain terms given to the occupant while the owner retains the control or possession over the premises results in a licence being created; for the owner retains legal possession while all that the licensee gets is a permission to use the premises for a particular purpose or in a particular manner and but for the permission so given the occupation would have been unlawful, C.M. Beena v. P.N. Ramachandra Rao, (2004) 3 SCC 595. A lease is the transfer of a right to enjoy the premises; whereas a licence is a privilege to do something on the premises which otherwise would be unlawful. The transaction is a lease if it grants an interest in the land; it is a licence if it gives a personal privilege with no interest in the land, B.M. Lall v. Dunlop Rubber Co. (India) Ltd., AIR 1968 SC 175, 177, 178: (1968) 1 SCR 23.
Adoption. As per Mayne’s Hindu Law the giving and receiving are absolutely necessary to the validity of an adoption; they are the operative part of the ceremony, being that part of it which transfers the boy from one family to another; but the Hindu Law does not require that there shall be any particular form so far as giving and acceptance are concerned; for a valid adoption all that the law requires is that the natural father shall be asked by the adoptive parent to give his son in adoption and that the boy shall be handed over and taken for this purpose, L. Debi Prasad v. Tribeni Devi, (1970) 1 SCC 677, 681. An act by which a person appoints as his heir the child of another. In English Law any renunciation by parents of their legal rights and liabilities in favour of an adopter is a mere empty form, however desirable an adoption may be and however solemnly consented to by the parents, may be cancelled by them and the adopted children restored to the parents, unless they be legally unfit to have the custody of the children. A contract between the mother of even an illegitimate child and another person for the transfer to that person of the rights and liabilities of the mother in respect of the child was held invalid by the Court of Appeal in Humphreys v. Polak, (1901) 2 KB 385.
4. METHOD OF INTERPRETATION OF CURRENT NATURE OF DOCUMENTS.
The cardinal rule again is that, clear and unambiguous words prevail over the intention. But if the words used are not clear or ambiguous, intention will prevail.
The Supreme Court in Delhi Development Authority vs. Durga Chand, has also noticed Odgers Rules and quoted them with approval and as the observation of the Supreme Court have the force of law of the land, it may be taken Odgers Rules (known as golden rules of interpretation) have been judicially recognized and may be adopted as Rules for interpretation of the documents in India. These Rules are listed hereunder:
7. Therefore the deed is to be construed as a whole. Apart from the said seven rules listed by Odger, it would be convenient to list the following rules for the sake of convenience are called additional rules and given number in continuation:
9. Harmonious construction must be placed on the contract as far as possible. However, in case of conflict between earlier or later clauses in a contract, later clauses are to be preferred to the earlier; while in a will, earlier clause is to be preferred to the later.
10. Contra Proferendum Rule-If two interpretations are possible, the one favourable to the party who has drafted the contract and the other against him, the interpretation against that party has to be preferred.
12. In case of conflict between printed clauses and typed clauses, type clauses are to be preferred. Similarly, in conflict between printed and hand written clauses, hand written clauses are to be preferred and in the event of conflict between typed and hand written clauses, the hand written calluses are to be preferred
From the Rules stated above, when the language used in a document is unambiguous conveying clear meaning, the Court has to interpret the document or any condition therein taking into consideration of the literal meaning of the words in the document. When there is ambiguity, the intention of the parties has to be looked into. Ordinarily the parties use apt words to express their intention but often they do not. The cardinal rule again is that, clear and unambiguous words prevail over the intention. But if the words used are not clear or ambiguous, intention will prevail. The most essential thing is to collect the intention of the parties from the expressions they have used in the deed itself. What if, the intention is so collected will not secure with the words used. The answer is the intention prevails. Therefore, if the language used in the document is unambiguous, the words used in the document itself will prevail but not the intention. See. P.Madhusudhan Rao vs Lt.Col.Ravi Manan, And Another (2015).
it was held thus : “The real intention of the parties has to be gathered not merely from what ex facie is set out in the document in question but also from extrinsic evidence of user, that is to say, the evidence as to how much was taken delivery of by the auction purchaser, how much was in his actual possession and enjoyment and how much, if any was in the possession of the original owner against whom the decree-holders sought to levy execution.”
“But it has also been ruled by the Courts that in the matter of interpretation of documents, Section 95 and 97 of the Indian Evidence Act embody important exceptions to the general rule laid down in Section 91 of the Indian Evidence Act that when the terms of a contract have been reduced to writing, no evidence shall be given in proof of the terms of the contract except the document itself (or secondary evidence of its contents in certain case). The illustration to Section 95 shows that if A sells to B “my house in Calcutta” and if A has no house in Calcutta but has a house in Howrah, of which B has been in possession since the execution of the deed, these facts may be proved to show that the deed related to the house in Howrah. So the illustration to Section 97 shows that if A agrees to sell to B “my land at X in the occupation of Y” and A has land at X but not in the occupation of Y but it is not at X, evidence may be given to show which was intended to be sold. ……….. That is to say, the real intention of the parties has to be gathered not merely from what ex facie is set out in the document in question but also from extrinsic evidence of user, that is to say, the evidence as to how much was taken delivery of by the auction purchaser, how much was in his actual possession and enjoyment and how much, if any was in the possession of the original owner against whom the decree-holders sought to levy execution.
Chapter VI of the Indian Evidence Act, 1872, as amended (the Evidence Act) prescribes the principles of admissibility of extrinsic evidence, which also guide the interpretation of contracts with the aid of extrinsic evidence. Under Section 91 of the Evidence Act, a written contract must be proved by producing the co ntract itself (or by permissible secondary evidence) to prove the terms of such contract. Further, under Section 92 of the Evidence Act, no evidence of any oral agreement or statement is admitted in evidence for the purpose of contradicting, varying, adding to or subtracting from the terms of such written contract, subject to certain exceptions as enumerated under the section itself. Proviso (6) of Section 92 of the Evidence Act admits oral evidence in cases of latent ambiguity in the contract.
According to Section 94 of the Evidence Act, when the language used in a document is plain in itself, and when it applies accurately to existing facts, evidence cannot be given to show what facts it was meant to apply to. Also, under Section 93 of the Evidence Act, evidence cannot be given of facts to supply the defects in the language used in a document when it is, on its face, defective or patently ambiguous. However, under Sections 95, 96 and 97 of the Evidence Act, when the language used in a document is latently ambiguous, with reference to the existing facts or one of several persons or one of several set of facts, evidence may be given to show that it was used in a peculiar sense; or to which person or which set of facts it was meant to apply to. Therefore, under the Evidence Act, extrinsic evidence can be given or considered only in certain cases of a latent ambiguity in a document. The legal position in India in this regard has been well summarised by the Andhra Pradesh High Court in Pradeep Kumar v. Mahaveer Pershad1 as follows:
From the above discussion what emerges is that:
(1) where the language used is on its face ambiguous or defective so as to render the meaning unintelligible or where the language though
intelligible creates an obvious uncertainty of the meaning, extrinsic evidence is wholly inadmissible because it is a patent ambiguity;
(2) where the language used is quite plain and intelligible but some difficulty arises in applying them to existing facts, for example, when a description is partly correct and partly incorrect, parole evidence is admissible to identify the subject-matter;
(4) where the language used is plain and intelligible and applies equally to two or more persons or two or more things and it is necessary to ascertain to which person or thing the words were intended to apply, parole evidence is admissible;
Categories (2), (3) and (4) pertain to latent ambiguity.
(5) in construing the document, the intention must be gathered from the document itself. However, if there is ambiguity in the language used in the document, it is permissible to look to surrounding circumstances to gather the intention, such as user or possession and enjoyment.
When there is latent ambiguity in the language of a contract, courts in India can also rely upon a subsequent interpreting statement in which both parties have concurred or upon the conduct of both parties, for the purpose of interpreting a contract.
In Godhra Electricity Co. Ltd. v. State of Gujarat, the Supreme Court of India (the Supreme Court), held that extrinsic evidence to determine the effect of an instrument is permissible when there is a doubt as to the true meaning of a contract. In such a situation, evidence of acts done under the contract are a guide to the intention of the parties, particularly when the acts are done shortly after the date of the contract. This principle was recently reiterated by the Supreme Court in Mukul Sharma v. Orion India (P) Ltd.
Ambiguity – Effect on operation of documents:-
The Apex Court opines that such a flaw either invalidates a document or suspends its operation till the defect is rectified or the ambiguity clarified. The substituted agreement gave a new cause of action and obliterated the earlier ones and if there was a valid defence against the enforcement of the new contract in whole or in part, the party affected must take the consequences. In the Union Of India vs Kishorilal Gupta And Bros, AIR 1959 SC 1362, In ” Russel on Arbitration “, 16th Edn., p. 63, the following test is laid down to ascertain whether an arbitration clause survives after the contract is determined:
” The test in such cases has been said to be whether the contract is determined by something outside itself, in which case the arbitration clause is determined with it, or by something arising out of the contract, in which case the arbitration clause. remains effective and can be enforced.”
INTERPRETATION OF AGREEMENTS: The principles governing interpretation of agreements under Indian law can be summarised as infra:
(b) As a general rule, while interpreting a contract, courts in India primarily look at the words used in the contract itself, reading it as a whole. The intention of the parties is gathered from the language used in the contract by adopting a harmonious construction of all its provisions and relying upon the natural and ordinary meaning of the language, unless the meaning leads to absurdity.
(c) Indian courts also apply a “common sense” approach for the purpose of interpretation of commercial contracts and try to give a meaningful interpretation to the terms of such contracts, consistent with the economic and commercial reality.
(d) In case of latent ambiguity in the contract, courts in India will look at surrounding circumstances (including sometimes, antecedent and pre-contractual documents and correspondence, for the purpose of ascertaining such surrounding circumstances), subsequent interpreting statement in which both parties have concurred or conduct of both parties for the purpose of interpretation, particularly when the acts are done shortly after the formation of the contract.
(f) Indian courts normally read contracts according to their express terms, and would imply a term in a contract only if there is a strict necessity of doing so, based upon the “five condition test”, also referred to as the “penta test” by the Supreme Court.
(g) Specifically, with respect to interpretation of commercial contracts by an Arbitral Tribunal, Indian courts do not insist on a hyper-technical approach to interpretation of contracts by the Arbitral Tribunal and are generally reluctant to interfere with the wide powers of an Arbitral Tribunal as to the admissibility, relevance, materiality and weight of any evidence produced before it.
Whether a transaction is an out and out sale or mortgage?
The real test is the intention of the parties. In order to constitute a “sale”, the parties must intend to transfer the ownership of the property and they must also intend that the price would be paid either in presenti or in future. The intention is to be gathered from the recital in the sale deed, conduct of the parties and the evidence on record.
“From the date on which possession has been delivered“- Interpretation.
It was on the recommendation of the Special Committee that the words “from the date on which possession has been delivered” were inserted into this clause by Section 17 of the Transfer of Property (Amendment) Act, 1929 (XX of 1929).
This clause obviously applies to a situation where the ownership in the property has passed to the buyer before the whole of the purch ase money was paid to the seller or the vendor. What is contained in this clause is based on the English Doctrine of Equitable Lien as propounded by Baron Rolfe in Goode and Anr. v. Burton (1847) 74 RR 633 : 1 Ex. 189. This clause confers statutory recognition on the English Doctrine of Equitable Lien. As pointed out by the Privy Council in Webb and Anr. v. Macpherson 30 Indian Appeals 238, the statutory charge under this paragraph is inflexible. The charge does not entitle the seller to retain possession of the property as against the buyer but it positively gives him a right to enforce the charge by suit. (See: Venkataperumal NAIDU V. Rathnasabhapathi Chettair; Shobhalal Shyamlal Kunni v. Sidhelal Halkelal Bania AIR (1939) Nagpur 210 and Basalingayya Revanshiddappa v. Chinnaya Karibasappa, AIR (1932) Bombay 247).
The basic principle is that the form of transaction is not the final test and the true test is the intention of the parties in entering into the transaction. If the intention of the parties was that the transfer was by way of security, it would be a mortgage. The Privy Council as early as in Balkishen Das and Ors. v. Legge, 27 Indian Appeals 58, had laid down that, as between the parties to the document, the intention to treat the transaction as an out and out sale or as a mortgage has to be found out on a consideration of the contents of document in the light of surrounding circumstances. The decision of this Court in Bhaskar Woman Joshi v. Shrinarayan Rambilas Agarwal and P.L. Bapuswami v. N. Pattay Gounder are also to the same effect. See also. Vidhyadhar vs Manikrao & Anr. , 1999 (2) SCALE 93.
In N. Pattaya Gounder v. P.L. Bappusamy Gounder (supra) , wherein it was observed that the period fixed in the document is a condition precedent for the performance and after the expiry of the period, the right reserved itself is at an end. The period fixed for the deed is not the period of limitation prescribed to any suit.
Important points to remember:-
- Article 131 of Limitation Act is applicable to agreement of sale. K. Simrathmull v. Nanjalingaiah, AIR 1963 SC 1182.
- An agreement for repurchase differs an Agreement of sale . See also. AIR-1950 FC 38.
- In fact, no period of Limitation is fixed under the Limitation Act in respect of an agreement for repurchase.
- Agreement for repurchase is nothing but a concession or an option to contract.
5. RELEVANCY AND ADMISSIBILITY OF DOCUMENTS IN EVIDENCE
i) Relevancy of documents with reference to the provisions of Indian Evidence Act. (Ex. Recitals in the 3rd party documents, public documents etc):-
Coming to the admissibility and relevancy and probative value of recitals of the boundaries etc., in documents: Recital in a document of neighboring land, referring one of its boundary as suit land and it belongs to a particular person, for the person to rely on it, is not legal evidence and the same is not even admissible under Section 32(2) of the Evidence Act -vide in re Daddapaneni Narayanappa (72) 1910 Indian Cases page-286 (Madras). It was held in Karupaanna Konar v. Rangaswami Konar (73) AIR 1928 Madras 105(2) at page-106 that, a mere statement of boundary cannot be classed with any of the verbs in Section 13 of the Evidence Act of created, modified, recognised, asserted or denied and is therefore not admissible; the same is not even admissible under Section 32(3) of the Evidence Act as it is a statement and not the document containing the statement that must be against the proprietary interest of the person making it. It was held further that the lower court influenced by the idea of the document is an ancient one and the recitals obviously not intentionally false and are therefore presumably true; having overlooked the fact that parties making statements which are not material to their interests have no occasion to be accurate. In Ramacharandas v. Girijachanddevi (74) AIR 1966 SC 323 it was held that the recitals in a document would operate as an estoppel against the author of the document. The only restriction in this regard is that, an estoppel is confined to the transaction covered by the document and the recital cannot be treated as an estoppel in a collateral transaction. Even this principle has several ramifications- For Example: if the deed is fairly old, the recitals cannot be altogether discarded and such recitals gain sufficient weight with the passage of time even as regards collateral transactions. This however depends upon the facts and circumstances of each case. An important area of interpretation of documents is the realm of the nature of the document. Ascertainment of nature of document including from the contents and attending circumstances, intention of the executant (unilateral) and parties to it (bilateral) assumes importance as law prescribes different patterns and procedures for different types of transactions covered by the documents and its execution and proof. It was laid down in Rangayyan v. Inasimutthu (75) AIR 1956 Madras 226 that, recitals of the boundaries in a document inter-parties is admissible as a joint statement of the parties executed it to act as admission, where as recitals of a document between a party and stranger is relevant against the party as an admission but is not admissible in his favour unless the fact recited is deposed by executants of the document in Court to act as a corroborative evidence under Section 157 of the Evidence Act or to contradict under Sections 145 and 155(3) of the Evidence Act; whereas recitals as to boundaries in the document between third parties, it is not ordinarily admissible to prove possession or title as against a person, who is not party to the document, but for at best to corroborate or to contract. The probative value to be attached to such recitals in the documents even admitted in evidence is depending upon the facts and circumstances of each case right from to clinching evidence as the case may be from material on record of the respective cases-See also Umarapartvathy v. Bhagvathy Amma (76) AIR 1972 Madras 151.
Documents executed ante-(pre-liti), pendenti and post-litem motam: In Harihar Prasad Singh v. Deonarayan Prasad (77) AIR 1956 SC 305 – it was held in para-5 that recitals in the documents executed ante (pre-liti) litem motam and inter parties held of considerable importance and their probative value as against them is high from the recital of private lands of the proprietor (which includes de facto/dejure) in assertion of their title and for its admissibility under Section 13 of the Indian Evidence Act. It was however, observed that the respondents are right in contending that the recitals cannot be considered as admissions by the mortgagees as they were executed by the mortgagors. It is also held in Rangayyan v. Inasimutthu (75 supra) that depending upon the recitals in the documents executed ante-pre, pendenti and post-litem motam and from nature of recitals and other circumstances of between inter parties or third parties; the probative value to be attached to such recitals in the documents even admitted in evidence is depending upon the facts and circumstances of each case right from to clinching evidence as the case may be from material on record of the respective cases. In Dolgobinda Paricha v. Nimai Charan Misra (78) AIR 1959 SC 914-it was held that-it is also well settled that statements or declarations before persons of competent knowledge made ante litem motam are receivable to prove ancient rights of a public or general nature. The admissibility of such declarations is, however, considerably weakened if it pertains not to public rights but to purely private rights. It is equally well settled that declarations or statements made post litem motam would not be admissible because in cases or proceedings taken or declarations made ante litem motam, the element of bias and concoction is eliminated. Before, however, the statements of the nature mentioned above can be admissible as being ante litem motam they must not only be before the actual existence of any controversy.
M.B. Ramesh (D) By LRs. Vs. K.M. Veeraje Urs (D) By LRs. and others, 2013 (4) SCJ 358 (DB), Construction of a document of title or an instrument being foundational to rights of parties, necessarily raises a question of law.
Nawab Mir Barkat Ali Khan Waleshan Bahadur, Prince Mukkaram Jah Bahadur, H.E.H. The Nizam VIII of Hyderabad rep. by his Special Power of Attorney Holder Mir Hasan Ali Vs. Princess Manolya Jah, Dulkadir Sokak, Istanbul, Turkey and another, 2018 (3) ALT 691 (DB),
The discretion is vested with the Family court to receive any evidence, any report, any relevant statement, documents, information etc., which is necessary for its assistance to deal effectually with a dispute We are of the considered view that since the provisions of Evidence Act have no application, the Family Court can receive documents Exs.A5 to A8 and the question of admissibility of Stamp Duty, registration and relevancy does not arise and the Court can receive those documents to adjudicate the dispute between parties. (Paras 38, 68, 69, 86 and 90).
John Santiyago and others Vs. Clement Dass and others, 2014 (3) ALT 83, Order 7 Rule 14 (3), CPC confers discretionary power on the Court to grant leave and receive documents at the hearing of the suit or at the end of trial if sufficient cause is shown to advance cause of substantial justice, more particularly when the documents sought to be filed are relevant and have bearing on the determination of real controversy involved in the suit. (Para 6 (d)).
ii) Admissibility of documents with reference to Stamp, Registration Act and other relevant laws :-
When absolute rights are conferred by a document in immovable property, it is required to be properly stamped and registered under Section 17 (1) of Registration Act, 1908. (Para 7), Madala Jyothi and another Vs. Karanam Tirupalaiah and others, 2015 (5) ALT 472. Even an agreement for execution of registered settlement deed/gift deed, executed without consideration is void under Section 25 (1) of Contract Act, 1872 unless it is registered.
When an objection is raised at the stage of marking of a document as to its inadmissibility in evidence on the ground of deficiency of stamp dutyof the document, the Court has to decide the said objection immediately before proceeding further without postponing the decision on it to the final stage of judgment. (Paras 16 and 19), Sheikh Qutubuddin and another Vs. Goli Vishwanatham and others , 2014 (2) ALT 275. A document required to be registered compulsorily is not admissible in evidence even if the requisite stam duty and penalty are paid as per the provision of Stamp Act and the decision as to admissibility of such a document in evidence need not be postponed to the final stage of delivery of judgment.(Paras 12 and 17), Golla Dharmanna Vs. Sakari Poshetty and others, 2013 (6) ALT 205.
Sale deed affidavit sought to be marked in evidence is inadmissible in evidence under Section 35 of Stamp Act as it contains all terms of original white parper sale deed which is unstamped unless deficit stamp duty is paid as a conveyance as payable under the original document together with penalty.(Para 4), Uppula Ramesh Vs. Elagandula Harinath and others, 2014 (1) ALT 700.
Section 35 of the Act prohibits receipt of any document in evidence, if it is not duly stamped, P.N. Varalakshmi (died) and others Vs. K. Chandra and another, 2023 (1) ALT 415. Merely because the document is assigned an exhibit number, it cannot be treated as an admission of the same in evidence, as required under Section 36 of the Act. Malkapurapu Venkateswarlu and others Vs. M. Nageswara Rao and others, 2019 (5) ALT 82, a document, which is required to be stamped and which is not stamped or insufficiently stamped, is not admissible in evidence even for collateral purpose unless stamp duty deficit stamp duty and penalty payable thereon are paid.
All leases of immovable property irrespective of their duration executed after 1-4-1999 are compulsorily registerable after the amendment of Registration Act by A.P. Act No.4 of 1999 with effect from 1-4-1999. (Para 29) , Kiran Bansal Vs. T. Chandra Kala and another, 2015 (6) ALT 670. Though a document (original) inadequately stamped can be validated under Section 35 of Stamp Act,1899 by paying deficiency and penalty, a photo copy of such document cannot be validated under that provision. (Paras 32 and 33).
Though unregistered sale deed is inadmissible in proving title, it can be referred to as explaining the nature and character of possession thereof held by the party and from the transfer effected in violation of the law the transferee would be deemed to be in adverse possession ever since the date of transfer. (Para 43), G. Narayan Reddy Vs. P. Narayana Reddy, 2016 (3) ALT 12.
When a document not duly stamped is presented before Court, Court has to impound the document under Section 33 of the stamp Act and collect the proper stamp duty and penalty under the relevant provisions of the Stamp Act without going into the relevancy of the document as to its admittedly is evidence, at that stage. (See. Para 9), Trinadha Patro Vs. Lingaraj Rana, 2016 (1) alt 174.
P. Venkayamma Vs. Bhimavarapu Bhimeswara Prasad and another, 2022 (5) ALT 760, it was held that When a document is not duly stamped, but it is tendered for evidence, the first duty of the Court is to act in accordance with Section 33 of the Indian Stamp Act, 1899, which mandates that the Court shall impound the document. ‘Impound’ means to keep in custody of the law (vide Suresh Nanda v. CBI (1) 2008 (2) ALT (Crl.) 344 (SC) = (2008) 3 SCC 674).
Sirigiri Obulesu Vs. Duggineni Venkateswarlu, 2022 (4) ALT 612, the documents of agreement of sale executed before 01.04.1995. They do not require stamp duty on par with sale deed, but they can be received in evidence, if they are executed on stamp paper worth ` 100/-. No instrument chargeable with duty shall be admitted in evidence for any purpose by any person having by law or consent of parties authority to receive in evidence, or shall be acted upon, registered or authenticated by any such person or by any public officer, unless such instrument is duly stamped.
Where possession of property is delivered on receipt of full sale consideration pursuant to agreement of sale after its execution, the agreement be stamped as a sale as per Explanation-I of Article 47-A of the Stamp Act, even if there is no mention as to delivery of possession in the document. (Paras 22 and 25), Vanapalli Jayalaxmi @ Venkata Jayalaxmi Vs. A. Kondalarao and others, 2014 (1) ALT 356.
P. Srinivas Reddy Vs. P. Madhav Yadav and others, 2021 (1) ALT 70, it was held that in fact, the suit itself is filed for specific performance of supplementary agreement of sale dated 17.04.2003, in which delivery of possession was recorded, but the said document is not properly stamped as per the explanation to Article 47-A under Schedule I-A of the Act. Explanation–I to Article 47-A under Schedule I-A of the Act, is extracted as under for ready reference:
“An agreement to sell followed by or evidencing delivery of possession of the property agreed to be sold shall be chargeable as a “Sale” under this Article.”
As far as the registration of the said document is concerned, it is compulsorily registrable under Section 17 of the Registration Act, 1908 and unless the same is registered, it cannot be admitted in evidence. But, in the present case, the suit is filed for specific performance based on Ex.A-3 unregistered supplementary agreement of sale. As per the proviso to Section 49 of the Registration Act, the said document can be received as evidence of a contract in a suit for specific performance. The said provision is extracted as under for ready reference:
49. Effect of non-registration of documents required to be registered:
. . .
Provided that an unregistered document affecting immovable property and required by this Act, or the Transfer of Property Act, 1882 to be registered may be received as evidence of a contract in a suit for specific performance under Chapter II of the Specific Relief Act, 1877, or as evidence of any collateral transaction not required to be effected by registered instrument.
A. Archana Vs. D. Uma Maheswara Reddy , 2019 (5) ALT 299, – Marking of Unregistered Mortgage Deed In the course of trial when the petitioner wanted to exhibit the unregistered mortgage deed dated, an objection was taken by the trial Court that it is not admissible for want of registration, though required stamp duty and penalty was paid thereon The learned trial Judge considered the recital as the main purpose and object of the document in question and not being an instance of collateral purpose The observations of the trial Court cannot stand and necessarily they have to be set aside In the result, the civil revision petition is allowed setting aside the order of the Court Trial Judge is directed to permit the petitioner to exhibit unregistered mortgage deed dated 27.08.2011, for collateral purpose on her behalf in the course of trial.
A document, though refers to a past transaction, is compulsorily registrable if it refers to present transaction of relinquishment of rights in a property.(Para 7), Laxminarsamma and others Vs. N.Venkatreddy and others, 2013 (4) ALT 303.
Promissory note executed in State of A.P. on impressed stamp paper purchased in another State is admissible in evidence. (Paras 13, 15 and 21), V. Giridhar Kumar Vs. Miss Sellammal (died) per Lrs, 2013 (1) ALT 82.
Article 6-B of Schedule I-A of Stamp Act is not applicable to a simple agreement to sell one of the flats proposed to be constructed by a builder-developer in terms of development agreement entered into by him with owners of land. (Para 8), K. Sudhakar Reddy Vs. M/s. Sudha Constructions, rep. by its Managing Partner, V. Srinivasa Rao and others, 2012 (2) ALT 93.
Revenue Divisional Officers were competent to impound a document under Stamp Act on payment of necessary stamp duty and penalty and make an endorsement to that effect on the document prior to 27-2-2008 when his powers of such impounding were withdrawn by Gazette Notification and the document so impounded is admissible in evidence as duly stamped, (Para 10), Devarakonda Shankara Murthy and another Vs. Vemula Rajakmallu, 2012 (1) ALT 807.
Application to send a document for impounding under Stamp Act for adjudicating proper stamp duty and penalty cannot be denied dismissing it only on the mere ground that it is unregistered and therefore not admissible in evidence.(Para 12), Alwanpally Ashanna v. K. Narasimha Chary, 2011 (2) alt 344.
Application to send a document for impounding under Stamp Act for adjudicating proper stamp duty and penalty cannot be denied dismissing it only on the mere ground that it is unregistered and therefore not admissible in evidence.(Para 12), Alwanpally Ashanna v. K. Narasimha Chary, 2011 (2) ALT 344.
In Kanamathareddi Kanna Reddi v. Kanamatha Reddy Venakata Reddy, of the judgment, it is held that non-registration of a document which is required to be registered under Section 17 (b) of the Registration Act, 1908 will not avail to create, declare, assign, limit or extinguish any right, title or interest in or to the immovable property comprised in the document. In short, the document will be ineffectual to achieve the purpose for which it was brought into being. The effect of Section 49 (a) does not go further than this. The circumstance that the earlier partition was evidenced by an unregistered partition deed will not render proof of the factum of that partition by other evidence inadmissible under Section 91 of Evidence Act, because this section excludes oral evidence only in proof of the terms and not of the existence as a fact of a contract, grant or other disposition of property. (Ref. Meva Devi And Ors. Etc. vs Omprakash Jagannath Agrawal, AIR 2008 Chh 13).
P. Venkata Subba Rao Vs. J. Kesavarao, 1968 (1) ALT 14, “The contents of a document which is required to be executed on a stamp, if not stamped, cannot be proved by secondary evidence. Section 36, Stamp Act, is applicable only when an unstamped or insufficiently stamped instrument has to be admitted in evidence, but where the instrument itself is not produced, the section has no application to the secondary evidence. (Ref. Moolchand v. Lachman ,a. I. R. 1958 Raj. 72.)”. Section 36 applies only in the case of original document. Hence, where the original document has been lost and a copy of the original has been admitted as secondary evidence by the trial court, the Appellate Court is entitled to consider on appeal whether the secodary evidence has or has not been properly admitted. I must notice two other decisions, which similarly take a contrary view. Mauno Po Htoo v. Ma Ma Gyi, A. I. R. 1927 Rang. 109 held that section 35 of the Stamp Act, read with the provisions of the Evidence Act, excludes both the original instrument itself and secondary evidence of its contents. Similarly, under section 36, when either the original instrument itself or secondary evidence of its contents has in fact been admitted, that admission may not be called in question in the same suit, on the ground that the instrument was not duly stamped. In that case, Raja of Bobbili v. Inuganti China Sitaramaswami Garu, I. L. R. (1900) 23 Mad. 49 : (1899) L. R 26 I. A. 262 (P. C.). was sought to be explained. It is difficult to agree with this view obviously because if the oral evidence is permitted to go on record as secondary evidence, it would amount to acting upon a document which is insufficiently stamped and on which no penalty can be levied because the original document is not before the Court.
Herbert Francis v. Mohammed Akbar, A. I. R. 1928 Pat. 134 can easily be distinguished on facts of that case. In that case, an unstamped mortgage deed relating to property in British India was executed in England and sent for registration to India. The deed was lost before registration. The mortgagee thereupon brought a suit to recover the money and tried to adduce secondary evidence of the deed treating it as a bond. The question raised before the High Court was whether in the circumstances the document can be and was proved by the secondary evidence. The Madras decisions noticed by me above earlier were cited before the High Court Their Lordships clearly observed that ?the true answer to this contention is that as the bond was executed in England there was no necessity to stamp the document under section 2 of the Act of 1899, and under section 3 the payment of stamp duty is excluded for such a document. “It was therefore held that there was no necessity to stamp the document as a bond although if it had been registered as a mortgage bond it would have attracted duty, at is only in passing that their Lordships observed :
” There is a further answer to this question of admissibility, and that is contained in section 36, Stamp Act, which provides that an instrument having once been admitted in evidence, such admission shall not, except as provided by section 61 be called in question at any stage of the same suit or proceeding. This document was received by the Court below. Section 61 referred to in section 36, deals with cases where the Court is exercising its civil or revenue jurisdiction and has no connection with the present case. (However, these rulings are distinguished in P. Venkata Subba Rao vs. J. Kesavarao, 1968 (1) ALT 14).
M/s. National Insurance Co. Ltd. Vs. Anugula Munaswamy Naidu and another, 2015 (1) An.W.R. (A.P) 561, While marking documents, courts shall check their relevancy and admissibility and confirm whether the same contain necessary details touching the pleas.
Laxminarsamma and others Vs. N.Venkatreddy and others, 2013 (4) alt 303, A document, though refers to a past transaction, is compulsorily registrable if it refers to present transaction of relinquishment of rights in a property.(Para 7).
Satish Vs. Smt. A. Parijatham, 2012 (2) ALT 227, Mere receipt of documents in a suit cannot be said to be acceptance of the same as evidence Objections, if any, can be raised at the time of their marking in evidence. (Para 5)
6. Primary evidence and Secondary evidence:-
Primary evidence means the document itself produced for the inspection of the Court. Explanation 1 to sec. 62 of Evidence Act says that where a document is executed in several parts, each part is primary evidence for the document. Where a document is executed in counterpart, each counterpart being executed by one or some of the parties only, each counterpart is primary evidence as against the parties executing it. Explanation 2 to sec. 62 of Evidence Act says that where a number of documents are all made by one uniform process, as in the case of printing, lithography, or photography, each is primary evidence of the contents of the rest; but , where they are all copies of a common original, they are not primary evidence of the contents of the original. Section 63 of the Evidence Act explains ‘Secondary evidence’.
Documents can be proved either by primary evidence or secondary evidence.
Primary evidence means the document itself. Secondary evidence means certified copies of the documents, copies made from the original by mechanical process,, copies compared with such copies and/or copies made from or compared with the original (Sections 61, 62 and 63 of the Act). All documents as far as possible must be proved by primary evidence and secondary evidence may be given of the existence or the conditions or contents of the document, in the circumstances as defined under Section 65, of the Act, if the original is shown or appears to be in the possession of a person against whom the document is sought to be proved and after issuing notice to the person in possession of original document (Sections 65(a) and 66 of the Act). Requirement of law is to give a notice to the possessor of the original document and in case he fails to produce original, secondary evidence can be offered. It may also be noticed that merely because secondary evidence is received the same does not amount to be proof. Even while secondary evidence is produced and permitted, document has to be proved in accordance with principles of evidence. See. N.S. Prakash Rao’s case (infra).
Secondary evidence is admissible in the absence of primary evidence in certain circumstances contemplated in Section 65 of evidence Act, 1872. Secondary evidence, as a general rule, is admissible in the absence of primary evidence in certain circumstances enumerated in Section 65 of the Act, 1872. Under Section 65(c) of the Act, 1872, 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 a reasonable time, Secondary evidence may be given of the existence. Section 65(c) comes into play where the original has been destroyed or lost, and when the party has made diligent search for it and exhausted all the sources and means available for its production, Secondary evidence is admissible. The word “loss’ signifies merely that it cannot be discovered. But, the party who wanted to place reliance on the Secondary evidence, made a search with such diligence as was reasonable upon the facts of the case. The evidence of a document being lost, upon which Secondary evidence may be given of its contents, may vary much according to the nature of the document, the custody it is in, and indeed the surrounding circumstances of the particular matter before the Court. In order to admit Secondary evidence, it is important to bear in mind the nature of the document, the enquiries made about the original, and the evidence about the search and loss. If an instrument be lost, the party seeking to give Secondary evidence of its contents, must give some evidence that the original existed once and must then establish its loss by proof that a search has been unsuccessfully made for it, in the place or places where it was most likely to be found and of persons likely to have possession of the same. So, the party must show that, in good faith, he has exhausted reasonable source of information and means of discovery which the nature of the case would naturally suggest. Loss can never be proved absolutely and evidence regarding loss of the document by the person in whose custody the document ought to be, is yet to be established during trial. But, at this stage, a bare statement of person required to file document on affidavit that the document was lost, would be sufficient to permit to lead Secondary evidence. (Ref. )
In Smt. J.Yashoda v. Smt. K.Shobha Rani (1) AIR 2007 SC 1721, it was held that It is a decision where Photostat copies of the document were sought to be marked as Secondary evidence. In those circumstances, it is held that a document can be received as evidence under the head of Secondary evidence only when the copies made from or compared with the original or certified copies or such other documents as enumerated in the above section. Since the document in question in this case is an attested copy of the original, the above decision has no application to the facts of the present case.
In Ram Suresh Singh v. Prabhat Singh alias Chhotu Singh and another, 2009 (3) ALT (Crl.) 105 (SC) = 2009 (5) SCJ 750 = (2009) 6 SCC 681 wherein it is held that, we may not consider the certificate granted by the Principal of the latter school as only a Xerox copy thereof was filed inasmuch as the original having not been produced, the same was inadmissible in evidence. That is a case where Xerox copy of the age certificate was sought to be marked.
Carbon copy as primary evidence – How far admissible.:- Gutta Sriramulu Naidu and another Vs. The State, 1962 (1) ALT 57, In Sarkar on Evidence (Volume I-Tenth Edition) at page 553, it ii mentioned as follows :
” Carbon copies produced by type-writers may for all practical purposes be regarded as equivalent, though the impressions on (be lower sheets are likely to be imperfect. They are produced by the same stroke which makes the surface impression- In Federal U. S. Co. v. Indiana L. &. M. Co., (170 Ind. 328), in the case of a machine carbon copy in triplicate, each one was held an original.”
Explanation 2 to Section 62 of the Evidence Act runs as follows : ” Where a number of documents are all made by one uniform process, as in the case of printing, lithography, or photography, each is primary evidence of the contents of the rest; but, where they are all copies of a common original, they arc not primary evidence of the contents of the original.”
In Badrunnisa Begum v. Mohamooda Begum, 2001 (3) ALT 243 = AIR 2001 AP 394, wherein it is held thus:
“Therefore, Section 63 of the evidence Act lays down what can be termed a Secondary evidence and Section 65 lays down in which situations Secondary evidence can be led. Section 65(a) does not in any way make a copy of a copy admissible in evidence as it is barred under Section 63.
In Kalyan Singh v. Smt. Chhoti and others, AIR 1990 SC 396, wherein it is held thus: (para 25)
“The High Court said, and in our opinion very rightly, that Ex. 3 could not be regarded as Secondary evidence. Section 63 of the Evidence Act mentions five kinds of Secondary evidence. Clauses (1), (2) and (3) refer to copies of documents; clause (4) refers to counter-parts of documents and clause (5) refers to oral accounts of the contents of documents. Correctness of certified copies referred to in clause (1) is presumed under. Section 79; but that of other copies must be proved by proper evidence. A certified copy of a registered sale deed may be produced a Secondary evidence in the absence of the original. ’’
“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.” – The Apex Court in Smt. J.Yashoda v. Smt. K.Shobha Rani (1) AIR 2007 SC 1721.
Syed Ali Moosvi Vs. Zainulabeddin Moosvi @ Taqi and another, 2013 (3) ALT 419, In the absence of any other document which can be taken as original, the document written as a draft itself can be taken as original and primary evidence. Execution or preparation of a document can be decided sometimes even without there being signature of executant.
M. Chandra Vs. M. Thangamuthu and another, 2010 (8) SCJ 98 (DB), Secondary evidence must be authenticated by foundational evidence that the duplicate copy is in fact a true copy of the original Exceptions to the rule requiring primary evidence are designed to provide relief.
Katike Bheem Shankar Vs. Mrs. T. Laxmi @ Punyavathi and others, 2022 (3) ALT 384:-
Secondary evidence in relation to a document can be given by producing copies of the documents which were made from the original However, the requirements of Section 65 of the Act, 1872 have to be satisfied in cases of giving Secondary evidence of documents. Certified copies of public documents obtained under the RTI Act, 2005 are directly admissible as evidence. Certified copies of register of sale of non-judicial stamp papers maintained at a sub-registrars office and issued by a Public Information Officer under the RTI Act, 2005 fall within the definition of a public document under Section 74 of the Act, 1872.
TMS Prakash Vs. State of A.P., rep. by its Special Public Prosecutor for ACB 2017 (2) ALT (CRI) (AP) 269, The Certificate u/s.65-B(4) need not be filed with Secondary evidence produced in Court, but can be later even, to validate and sanctify the Secondary evidence.
Datti Kameswari Vs. Marrapu Lakshmunaidu and others, 2016 (1) ALT 700, true copies of public documents certified by the designated Public Information Officer under the Right to Information Act, 2005, can be taken as certified copies of public documents and no formal proof of the same is required to mark them in evidence. True copies of private documents such as registered sale deeds obtained under the Right to Information Act, 2005, can be marked as secondary evidence if the party seeking to mark those documents fulfills the conditions prescribed under Section 65 (a) to (c) of evidence Act. See. Katike Bheem Shankar (supra).
Rakesh Mohindra Vs. Anita Beri and others, 2016 (1) ALT (D.N) (SC) 38.1 (DB), The pre-conditions for leading secondary evidence are that such original documents could not be produced by the party relied upon such documents in spite of best efforts, unable to produce the same which is beyond their control.
The party sought to produce secondary evidence must establish for the non-production of primary evidence If a party wishes to lead secondary evidence, the court is obliged to examine the probative value of the document produced in the court or their contents and decide the question of admissibility of a document in secondary evidence.
Neither mere admission of document in evidence amounts to its proof nor mere making of an exhibit of a document dispense with its proof, which is otherwise required to be done in accordance with law.
Sattamma and others v. Ch. Bhikshapati Goud @ Ch. Bhupal Goud and others, 2010 (5) ALT 118, In order to claim the benefits of Section 65 of the Indian Evidence Act, there should be credible evidence of the loss of the original. As pointed out by one of us in Ananta Raghuram v. Rajah Bommadevara, AIR 1958 Andh Pra 418 at p. 421 “there must be sufficient proof of the search for the original to render secondary evidence admissible. It must be established that the party has exhausted all the sources and means in the search of the document which were available to him.
Tukaram S. Dighole Vs. Manikrao Shivaji Kokate, 2010 (4) SCJ 401 (DB), Public document and private document secondary evidence is not admissible until the non-production of the primary evidence is satisfactorily proved When the original is a public document, secondary evidence is admissible even though the original is still in existence and available. Certified copy of a document issued by the Election Commission is a public document.
Syed Haji Pasha v. Syed Ahmed, 2010 (3) ALT 338, Section 65 of the Evidence Act provides for secondary evidence being given relating to documents and enumerates the instances where such secondary evidence may be given of the existence, condition or contents of a document. When the original is shown or appears to be shown in the possession or power of any person legally bound to produce it and when after a notice as mentioned in Section 66 of the Evidenc Act such person does not produce it, secondary evidence may be given. Similarly, when the original has been destroyed or lost or cannot be produced in a reasonable time without any default on the part of the party offering a secondary evidence, secondary evidence may be given. In either instance among those enumerated in Section 65, secondary evidence of the contents of the document is admissible according to Section 65 of the Evidence Act.
N.S. Prakash Rao v. Bala Krishna and another, 2007 (5) ALT 398, Even if secondary evidence is permitted, document has to be proved in accordance with principles of evidence.
“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.” – The Apex Court in Smt. J.Yashoda v. Smt. K.Shobha Rani (1) AIR 2007 SC 1721.
7. Mode of proof of documents:–
The propositions laid down in Venkatachala Iyengar (supra) have been followed and explained in another judgment of a bench of three Judges in Smt. Jaswant Kaur v. Smt Amrit Kaur, reported in AIR 1977 SC 74, wherein the law has been crystallized by Y.V. Chandrachud J (as he then was), into the following propositions:-
10. There is a long line of decisions bearing on the nature and standard of evidence required to prove a will. Those decisions have been reviewed in an elaborate judgment of this Court in R. Venkatachala Iyengar v. B.N. Thirnmajamma and others  Su. 1 S.C.R. 426. The Court, speaking through Gajendragadkar J., laid down in that case the following propositions :-
1. Stated generally, a will has to be proved like any other document, the test to be applied being the usual test of the satisfaction of the prudent mind in such matters. As in the case of proof of other documents , so in the case of proof of wills, one cannot insist on proof with mathematical certainty.
2. Since Section 63 of the Succession Act requires a will to be attested, it cannot be used as evidence until, as required by Section 63 of the Evidence Act, 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.
3. Unlike other documents, the will speaks from the death of the testator and therefore the maker of the will is never available for deposing as to the circumstances in which the will came to be executed. This aspect introduces an element of solemnity in the decision of the question whether the document propounded is proved to be the last will and testament of the testator. Normally, the onus which lies on the propounder can be taken to be discharged on proof of the essential facts which go into the making of the will.
4. Cases in which the execution of the will is surrounded by suspicious circumstances stand on a different footing. A shaky signature, a feeble mind, an unfair and unjust disposition of property, the propounder himself taking a leading part in the making of the will under which he receives a substantial benefit and such other circumstances raise suspicion about the execution of the will. That suspicion cannot be removed by the mere assertion of the propounder that the will bears the signature of the testator or that the testator was in a sound and disposing state of mind and memory at the time when the will was made, or that those like the wife and children of the testator who would normally receive their due share in his estate were disinherited because the testator might have had his own reasons for excluding them. The presence of suspicious circumstances makes the initial onus heavier and therefore, in cases where the circumstances attendant upon the execution of the will excite the suspicion of the court, the propounder must remove all legitimate suspicions before the document can be accepted as the last will of the testator.
5. It is in connection with wills, the execution of which is surrounded by suspicious circumstance that the test of satisfaction of the judicial conscience has been evolved. That test emphasises that in determining the question as to whether an instrument produced before the court is the last will of the testator, the court is called upon to decide a solemn question and by reason of suspicious circumstances the court has to be satisfied fully that the will has been validly executed by the testator.
6. If a caveator alleges fraud, undue influence, coercion etc. in regard to the execution of the will, such pleas have to be proved by him, but even in the absence of such pleas, the very circumstances surrounding the execution of the will may raise a doubt as to whether the testator was acting of his own free will. And then it is a part of the initial onus of the propounder to remove all reasonable doubts in the matter. See also. M.B. Ramesh (D) By Lrs Vs. K.M. Veeraje Urs (D) By LRs. and others, 2013 7 SCC 490.
In Janki Narayan Bhoir’s, the Apex Court has explained the inter-relation between Section 63 (c) of the Succession Act, 1925 and Section 68 and 71 of the Evidence Act, 1872. In that matter only one attesting witness to the will was examined to prove the will, but he had not stated in his deposition that the other attesting witness had attested the will in his presence. The other attesting witness, though alive and available, was not examined. The Court noted the relevant facts in para 5 of the judgment (as reported in SCC) as follows:-
‘Prabhakar Sinkar, the attesting witness, in his deposition stated that he did not know whether the other attesting witness Ramkrishna Wagle was present in the house of the respondent at the time of execution of the will. He also stated that he did not remember as to whether himself and Raikar were present when he put his signature. He did not see the witness Wagle at that time; he did not identify the person who had put the thumb impression on the will. The scribe Raikar in his evidence stated that he wrote the will and he also stated that he signed on the will deed as a scribe. He further stated that the attesting witnesses, namely, Wagle and Prabhakar Sinkar are alive.’
In Cheedella Padmavathi (died) per LRs and others Vs. Cheedella Lakshminarasimha Rao (died) per LRs and others, 2015 (5) ALT 634, Coming to the law on proof of docuemnts and contents vis-a-vis interpretation and construction of deeds and documents -in particular testamentary, proof of due execution, attestation and contents, relevancy and admissibility-including for collateral purposes, probative value and presumptions: Interpretation is in fact a matter of communication of what wants to know and understand from what is said, in giving the meaning to the words of the document from mind of the person who has executed/written it, by reading of the document as a whole and not from nomenclature or pick and choose sentences-see also State of Orissa v. Titaghur Paper Mills Ltd., (63) AIR 1985 SC 1293. Interpretation is ascertaining the meaning and Construction is ascertaining the spirit.
Coming to the proof: Once a document is properly admitted, the contents of those documents are also admitted in evidence, though those contents may not be treated as conclusive evidence – vide – P.C. Purushothama Reddiar v. Perumal (64) AIR 1972 608. It is the settled law that the question of mode of proof is a question of procedure and is capable of being waived. It is to say when original not produced but copy of it for no objection raised after admissibility, the objection cannot later be raised being deemed waived; whereas proof of contents of the document is being substantive, the non-raising of objection is not a waiver vide R.V.E. Venkatachala Gounder v. A.V. and V.P.Temple (65) AIR 2003 SC 4548 = (2003) 8 SCC 752 = 2004 (1) ALT 26.4, 26.2 (DN SC). Following the above, it was also held in Dayamathi Bai v. K.M.Shaffi (66) 2004 (6) ALT 16 (SC) = AIR 2004 SC 4082 = (2004) 7 SCC 107 that 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 when 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 latter 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 hereinabove, in the latter 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 a superior court. Further, like an inadmissible evidence oral or documentary by consent cannot be made admissible by mere consent or no-objection while marking; what is not relevant under the Evidence Act, cannot in proceedings to which the Evidence Act applies, be made relevant by consent of parties. Thus, only admissible and relevant evidence can be brought on the record for consideration of the court without following the regular mode if parties agree. The reason behind this rule is that it would be unfair to ask any party to prove a particular fact when the other party has already admitted that the way it had been brought before the court has sufficiently proved it. Where, therefore, a party not only raised no objection to certain evidence being brought on record but indeed appeared to have invited the adjudicating authority to act on such evidence, it cannot be allowed later on to object to such evidence having been considered by such authority merely because the decision has gone against it-vide-Kalyan Peoples Co-operative Bank Ltd. v. Dulhanbibi (67) AIR 1966 SC 1072. Whereas in the case of Will unless it is proved of due execution by attestation as part of execution contemplated by Section 63 of the Indian Succession Act, of the requirement of testator must sign the Will in the presence of attestors or should personally acknowledge his signature in the presence of attestors, a Will is inadmissible and mere marking is not enough to admit even no objection raised vide Dr.M.Ratna v. Kottiboyina Navaneetham (68) 1993 (2) ALT 459 = AIR 1994 AP 96. It is also held that without the statutory requirements of due execution of Will, it cannot be admitted vide Yumnum O.T.I.Devi v. Yumnum J.K. Singh (69) (2009) 4 SCC 780.
Attestation of a document and mode of proof: Section 3 of the Transfer of Property Act, defines attestation in relation to an instrument (to mean non-testamentary-though same analogy applies to testamentary with reference to Section 63 of the Indian Succession Act), means and shall be deemed always to have meant, attested by two or more witnesses each of whom has seen 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 executants a person 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. As per the Apex Court’s expression in Abdul Jabbar v. Venkata Shastry (87) AIR 1969 SC 1147- to attest is to bear witness to a fact. The essential conditions of a valid attestation are that two or more witnesses have seen the executant sign or affix his mark to the instrument, or have seen some other person sign the instrument in the presence and by the direction of the executant, or has received from the executants a person 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 executants to bear the witness to this fact, it is essential that the attesting witness has put his signature animus attestandi that is for the purpose of attesting the signature of the executant. See the discussion supra of mere attestation is not suffice to attribute knowledge of contents.
As per Section 68 among Sections 68 to 71 of the Indian Evidence Act, regarding of the proof of an attested instrument(other than Will), it is unnecessary to call any attesting witness in the case of compulsory attestable deed, unless execution of the deed is specifically denied by the person by whom it purports to have been executed. If the execution is specifically denied one attesting witness must be called upon to prove the deed-if there be one alive and subject to the process of the Court. If the attesting witnesses are dead their signature can be proved by other evidence of person acquainted with or opinion from comparison with signature/handwriting/thumb impression as the case may be (under Sections 47 and 67 and or Sections 45 r/w.51 and or Section 73 of the Evidence Act).
A composite document which is severable and in part clearly testamentary, such part may take effect as a Will and other part if it has the characteristics of a settlement and that part will take effect in that way. A document which operates to dispose of properly in praesenti in respect of few items of the properties is a settlement and in future in respect of few other items after the deeds of the executants, it is a testamentary disposition. That one part of the document has effect during the life time of the executant i.e. the gift and the other part disposing the property after the death of the executant is a Will and in such case stamp and registration are compulsory-vide Rev. Fr. M.S. Poulose v. Varghese and others (88) (1995) Supp 2 SCC 294.
In the interpretation of Wills in India, regard must be had mainly to the rules of law and construction contained in Part VI of the Indian Succession Act and particularly Section 88 of the Indian Succession Act and not the rules of the Interpretation of Statutes-vide – Mathai Samuel v. Eapen Eapen (dead) by Lrs (89) 2013 (1) ALT 1 (SC) = 2012 (8) SCJ 516.
In Narendra Gopal v. Rajat Vidhyardhi (90) (2009) 3 SCC 287 at para-32(cl.3) it was held that, in appreciating the documents of unilateral dispositions and testamentary dispositions like Wills, the true intention of the testator (executant) has to be gathered, not by attaching importance to isolated expressions but by reading the document as a whole.
The nomenclature given by the parties to the transaction in question is not decisive, but the contents and the intention of the executant, which must be found in the words used in the document. The question is not what may be supposed to have been intended, but what has been said. One need to carry on the exercise of construction or interpretation of the document only if the document is ambiguous, or its meaning is uncertain. The real and the only reliable test for the purpose of finding out whether the document constitutes a Will or a gift/settlement is to find out as to what exactly is the disposition which the document has made, whether it has transferred any interest in praesenti in favour of the beneficiaries or it intended to transfer interest in favour of the beneficiaries only on the death of the executant.
Will as defined in Section 2(h) of the Indian Succession Act – means the legal declaration of the intention of a testator with respect to his property which he desires to be carried into effect after his death. Will is derived from the Latin word Voluntas to mean expression of intention of a testator generally in a document. Testament is derived from the Latin word Testatio-mentis to mean testifies the determination of the mind. Thus, it is a legal declaration of a person`s intention to take effect after death of that person. According to Schoulder`s – law of Wills, a Will is the aggregate of man`s testamentary intention so far as the same is manifested in writing and duly executed according to the Statutes.
15(b)(v). Lord Wilmot, C.J. in Doe Long v. Laming (2 Burr. at pp.11-12) described the intention of the testator as the pole star and is also described as the nectar-of the instrument.
Will has the four essentialities- (i) It must be a legal declaration of testator’s intention, (ii) That declaration must be with respect to his property, (iii) The desire of the testator that the declaration should be effected after death of testator and (iv) The other Essential quality of testamentary disposition is ambulatoriness of revocability during executants lifetime. Such a document is dependent upon executants death for its vigour and effect. A Will need not be stamped under the Indian stamp Act and need not be necessarily registered being optional under Section 18 of the Indian Registration Act. It is different to Gift or Settlement or other disposition by transfer of rights in immovable property worth above ` 100/-which necessarily be registered under Section 17 of the Indian Registration Act, besides duly stamped, though when stamped or impounded and even unregistered can be admitted for collateral purpose under Section 49 of the Indian Registration Act. So far as Will concerned when it its required to be proved as contemplated by Sections 68-71 Indian Evidence Act and Section 63 Indian Succession Act, till then it cannot be used even for collateral purpose (for the reasons stated with reference to the existing law of the land in the earlier paras). In Paranru Radhakrishnan v. Bharathan (91) AIR 1990 Kerala 146 it was held that the imperative and clear straight wording of Section 68 Evidence Act makes it clear that it does not permit the use of a Document which is required by law to be attested as evidence until it is proved strictly in accordance with the provisions of the Section.
Though registration is optional and not compulsory and non registration is by itself not a ground to doubt, registration is one of the positive circumstances to infer in favour of due execution, unless evidence on record shows otherwise. Registration of Will being optional, mere registration does not dispense with the proof of execution and attestation, but for to serve only a piece of evidence of the execution. That It is also of the reason that Will operates after the death of the testator and in his life time he can alter or cancel the bequeaths by codicil or fresh Will any number of times as facts and circumstances shown permitted and thereby also the last disposition prevails over the earlier even in same document for same property in case of inconsistent bequeaths. In Shivdev Kour v. R.S.Grewal (92) 2013 (3) ALT 1(SC) para-12 = 2013 (2) SCJ 854 and in Balwant Kour v. Chanan Singh (93) AIR 2000 SC 1908 = 2000 (6) ALT 12.1 (DN SC) it was held that all the clauses of the Will must be read together to find out the intention of the testator. This is obviously on the principle that the last clause represents the latest intention of the testator (See also Section 88 of the Indian Succession Act).
Will as can be said speaks from the grave of the testator as executant of the Will cannot be called upon to admit or deny execution, much less to explain any circumstances surrounding the execution and testamentary capacity and condition with reference to sound and disposing state of mind and thus for appreciating the evidence of due execution and genuineness of bequeaths, the court Will put itself in to the armchair of the executant/testator. The intention of the testator in this regard must be ascertained not only from the words used, but also from surrounding circumstances with reference to the unimpeachable evidence regarding genuineness and authenticity as well as probabilities and improbabilities and unnatural or unfair bequeaths with reference to the direct or indirect beneficiaries of the bequeaths in the Will/testament known as pronouncer/s influence and role as to not a free Will and volition of the testator in making the bequeaths and reasons or circumstances in relation to natural heirs and their relation with the testator for ignoring and making bequeaths to other than natural heirs or preferring among the natural heirs or preferring other than natural heirs also as the legates. If in relation to the above or otherwise, there are any suspicious circumstances or cloud shrouded around the execution and in the bequeaths, the propounder has to discharge of the burden lies on him to prove and dispel the suspicious circumstances to clear the cloud and probablises the genuineness of execution and the bequeaths as per free will and volition of testator as mere ignoring the natural heirs or preferring among them or preferring other than natural heirs also by itself not a ground to doubt genuineness for the reason that the testamentary dispositions by Will itself is to interfere or alter or divert the natural line and of flow from the intestate succession and survivorship by reducing or depriving the share of natural heirs if any at the discretion and Will of the testator. Apart from it, it is it is absolutely necessary of execution of the Will under Section 63 of the Indian Succession Act to prove that the Will was attested by the two attesting witnesses at least who saw the testator sign the Will or the testator must personally acknowledge the signature on the Will that of him in the presence of the two attesting witnesses and they themselves signed the same in the presence of the testator. Without attestation, execution of the deed of Will is not valid. When no witness deposed of the alleged Will was signed by the deceased in his presence or that he had attested the document , execution of the very Will can be held as not proved. A reading of even Section 68 of the Evidence Act shows that attestation and execution are the two different acts one following the other. Where the Will is registered and there are signatures of registering officer and of identifying witnesses affixed to registration endorsement, endorsement by sub-registrar that executant has acknowledged execution before him amounts to attestation and when all they deposed the same of due execution and attestation, it is a compliance of Section 63 Indian Succession Act. It is for the Court to appreciate from the above, including intention of the testator with reference to contents, other attending facts and surrounding circumstances like considerations in making bequeaths instead of allowing the estate by intestacy to claim legal heirs equally, motive of the testator in the recitals even by making dispositions to the natural heirs who otherwise even succeed, propounder influence if any, needless to say propounder of the Will has to dispel with the suspicious circumstances shrouded around the Will and its execution and manner of dispositions, the position of the testator, his family relationship and preference of some among the family members or preference of some other than the family members and among the legal heirs remote to the nearest and other considerations in making bequeaths, propounder influence-(irrespective of not direct beneficiary). There are no set parameters to judge all these aspects but for within these broad guidelines to appreciate the evidence on record of the case on hand within the ordinary and reasonable prudence to arrive at a just conclusion, for each case depends on its own facts- vide decisions in Raghunath Prasad Singh v. Deputy Commissioner AIR 1929 PC 283, Mokshada Ranjan v. Surendra Bijos (95) AIR 1939 Calcutta 40, Dasarath Gayan v. Satyanarayana Ghosh (96) AIR 1963 Calcutta 325.
Coming to the proof of WILL (testamentary instrument execution which includes attestation and its proof). Apart from the other expressions supra, the Constitutional Bench expression in Shashi Kumar Benarji (108 supra) held at page-531, para-3 that the mode of proving a Will does not ordinarily differ from that of proving any other document except as to the special requirement of attestation prescribed in the case of a Will by Section 63 of the Indian Succession Act, 1925, which says the testator shall sign or affix his or her mark to the Will or it shall be signed by some other person in the presence and by his direction and the Will shall be attested by two or more witnesses each of whom has seen the testator signing or affixing his or her mark to the Will or as seen some other person signed the Will in the presence and by the direction of the testator and each of the witnesses shall sign the Will in the presence of the testator and Section 68 of the Indian Evidence Act mandates in the case of denial or not of execution, examination of one attesting witness atleast in proof of the Will whether registered or not. In the absence of suspicious circumstances, it is suffice to prove testamentary capacity and due execution with attestation and where there are suspicious circumstances, the onus is heavy on the propounder to dispel the same for the court acceptance as genuine and last Will and testament. Attestation of a Will means testifying the signature of the executant. It is equally important that for a Will to be valid and enforceable shall be attested by two or more witnesses, each of whom has seen testator sign or affix his mark to the Will or the testator should personally acknowledge his signature or affixture of his mark to the Will in the presence of the attestors and without that acknowledgement, it cannot be inferred and further each of the witnesses has signed said Will in presence of testator and said provision is not a mere formality, but mandatory. Proof of attestation of the Will is also mandatory Dr. M.Ratna v. Kottaboina Navaneetham (68 supra), Yumnam O.T.I.Devi (69 supra) and A.Poline DSouza v. John DSouza (129) 2007 (5) ALT 46 (SC) = 2007 (5) SCJ 273 = (2007) 7 SCC 225. However, Court cannot disregard evidence of attending circumstances on record if those must satisfy itself as to compliance on the totality, like giving evidence by one attesting witness and there is no dispute about presence of other attesting witness at the time of execution of the Will from the other contesting party from the other attestors name finds place in the Will even the witness examined did not speak by mere non-recollection of said fact from lapse of time to the date of evidence from date of document and its execution vide decision M.B.Ramesh v. K.M. Veerajeurs (130) 2013 (5) ALT 40 (SC) = 2013 (4) SCJ 358 = (2013) 7 SCC 490. Such circumstances are in fact rare and as such, the attesting witness examined otherwise must also speak the presence and attestation of other witness also as part of proof. Thus, in view of Section 63(1)(c) of the Indian Succession Act r/w Sections 68 and 71 of the Indian Evidence Act, it is sufficient even one attestor is examined, but that attestor should speak not only about the testators signature or affixing his mark to the Will or somebody else signing it in his presence and by his direction or that he had attested the Will after taking acknowledgement from the testator of the signature or mark, but he must also should speak that each of the witnesses had signed the Will in the presence of the testator. It is irrespective of non-denial of its execution, one attesting witness at least as a concession out of minimum two persons to attest as required, must be called upon to prove the deed, if there be even one alive and subject to the process of the Court. But what is significant is that said attesting witness examined must be able to speak to the attestation by the other attestor also. Section 71 Evidence Act has no application if the attesting witness only one examined (of the two or more attestors) has failed to prove the execution of the Will and the other attesting witness/s even available not summoned and examined. It is clear from the language of Section 71 Evidence Act, that if an attesting witness examined denies or does not recollect execution of the document, its execution, may be proved by other evidence(under Sections 47 and 67 and or Sections 45 r/w.51 and or Section 73 of the Evidence Act). Sections 71 when cannot be resorted to from said one attesting witness fails to prove the will and the other attesting witness if alive and available without his examination to prove by other evidence, it cannot be said the execution is proved as per law as Section 71 of the Evidence Act is only a permissive provision and enabling section to permit a party to lead other evidence only in certain circumstances-which are the above as it is meant to lend assistance and come to the rescue of a party who had done his best, but driven to a state of helplessness and such impossibility cannot be let down without any other means of proving due execution by other evidence as well. Section 68 of the Evidence Act is not merely an enabling section as it lays down the necessary requirements, which the Court has to observe before holding that a document is proved. Thus, Section 71 of the Evidence Act cannot be read so as to absolve a party of his obligation under Section 68 of the Evidence Act read with Section 63 of the Indian Succession Act to liberally allow him, at his choice to make available or not a necessary witness otherwise available and amenable to the jurisdiction of the Court concerned and confer a premium upon his omission or lapse, to enable him to give a go-bye to the mandate of law relating to the proof of execution of a Will. Where the attesting witness called upon to prove execution, is not in a position to prove the attestation of the Will by second witness, the evidence of the witness falls short of the mandatory requirements of Section 68 of the Evidence Act read with Section 63 of the Indian Succession Act and Section 71 of the Evidencce Act can only be invoked in such case and proved no other attesting witness available including by attempt to summon for securing- See – Janaki Narayan Bhogir (123 supra), Karri Nukaraju v. Putra Venkatrao (131) AIR 1974 AP 13 and Babu Singh v. Ram Shahi@ram Singh (132) 2009 (1) SCJ 577 = (2008) 14 SCC 754 = 2009 (6) ALT 32.2 (DN SC). Further, Section 69 of the Evidence Act, applies in the absence of attesting witness and only when party moves the Court for summons under Order 16 Rule 10 CPC and the witness fails to obey the summons to prove the Will in the manner prescribed by Section 68 of the Evideecne Act – vide Babu Singh (132 supra). If the attesting witnesses are dead their signature can be proved by other evidence of person acquainted with or opinion from comparison with signature/ handwriting/ thumb impression as the case may be (under Section 47 and 67 and or Section 45 r/w.51 and or Section 73 of the Indian Evidencce Act. No doubt, it was held by the division bench of our high Court in Alluri JS Lakshmi v. Kopparthi R Rao (133) 1994 (1) ALT 217(DB) that execution of Will need not be proved when it is admitted by other side and when contest is only on legal aspects as to validity of bequeathing certain properties covered by the will. For that conclusion mainly relied upon Section 58 of the Evidencce Act. In fact, without attestation when execution is not complete and without proof of execution by attestation, the disputed contents of it cannot be looked into as also laid down by the Apex Court in catena of expressions supra. Besides that, in the case on hand there is no admission of execution and attestation and also contents since all are denied and disputed. It is laid down even by the later expression of the Apex Court that without attestation, execution of the Will is not valid-vide decision Kahibai v. Parwatibai.
Where genuineness of the Will is questioned, it is the duty to prove the Will is the product of free mind of the testator and it is the duty of the propounder to dispel the surrounding suspicious circumstances, if any – vide decisions in Savithri v. Karthyayani Amma (134) 2007 (8) SCJ 125 = (2007) 11 SCC 621; Gopala Krishna Pillai v. Meenakshi Ayel (135) AIR 1967 SC 155, Venkatachala Iyangar and other decisions referred in the previous paras (supra).
8. Competency of a witness to prove documents:-
It is settled legal position that merely because an exhibit mark has been given to a document, it does not mean that the document stand proved until the same is proved as per the rules of evidence laid down under the Indian Evidence Act. A document as, is well known, does not prove itself. The contents are required to be proved by the maker thereof.
Any person who was present and witnessed the execution and whose name appears on the document is to be regarded as a witness competent for proving the execution, that view should be regarded as sound. In Ram Avadh Upadhaya vs Jamuna Pandey, AIR 1954 Pat 360, it was held that Though the language of Section 63 (c) of Indian Succession Act shows that the attesting witness should either have seen the signing or the affixing of the mark by the testator or some other person signing the will on his behalf, if the execution is complete as soon as the testator has signed or affixed his mark, the person who claims to have witnessed such execution of the deed by the testator has to be regarded as a competent attesting witness.
The term “executed” signifies the acts required of the person who makes the deed either himself or through a representative, that the term “attested” signifies the act of the witnesses who see the execution and that the same person cannot possess the two-fold capacity. If the execution is only through representative, that representative cannot be competent attesting witness. (This is observed in Ram Avadh Upadhaya vs Jamuna Pandey AIR 1954 Pat 360).
‘Attest’ means the persons shall be present and see what passes, and shall, when required, bear witness to the facts.
The execution is complete as soon as a mark is put by the executant and that if a person thereafter signs on behalf of the executant, he is to be regarded as a competent attesting witness within the meaning of the law, as was pointed out in ‘Dinamoyee Debi v. Bon Behari, 7 Cal WN 160.
The word “attest” has been the subject-matter of discussion and construction in several decisions, and in — ‘Bryan v. White’, (1850) 163 ER 1330 (B), Dr. Lushington had said that “attest” means that the persons shall be present and see what passes, and shall, when required, bear witness to the facts. This decision was referred to with approval by the Judicial Committee in –’ Shamu Patter v. Abdul Kadir’, 35 Mad 607 (C). I should like to quote the following passage from the judgment of Ameer Ali J. in this case :
“The later cases are still more direct in the interpretation of the words ‘attestation’ and ‘attested’. In — ‘(1850) 163 ER 1330 (B)’, Dr. Lushington in 1850 laid down that ‘attest’ means the persons shall be present and see what passes, and shall, when required, bear witness to the facts. In 1855, Lord Campbell, C. J., in –‘Roberts v. Phillips’, (1855) 4 El & Bl 450 (D), enunciated the same rule as regards the word ‘attested’, that the witnesses should be present as witnesses and see it signed by the testator. And the principle was given effect to in the House of Lords in — ‘Burdett v. Spilsbury’, (1842-13) 10 Cl & F 340 (E). The Lord Chancellor summed up the conclusion in these words: “The party who sees the will executed is in fact a witness to it; if he subscribes as a witness, he is then attesting witness’. The meaning of the words ‘attest’ and ‘attestation’ has also been before the Courts under the Bills of Sale Act of 1878 (41 & 42 Vict. C. 31, Section 8 & 14) and the interpretation put on them in — ‘(1855) 4 El & Bl 450 (D)’, and — ‘(1850) 163 ER 1330 (B)’, has invariably been followed.” See also. K. Seetha Ramudu and others Vs. Kistammagari Chinna Venkata Swamy, 2021 (4) ALT 622.
Proof of Will:-
Dhanpat Vs. Sheo Ram (Deceased) through Lrs. and others, 2020 (2) ALT (SC) 209 (DB), At least one of the attesting witnesses is required to be examined to prove his attestation and the attestation by another witness and the testator Once the Will has been proved then the contents of such document are part of evidence The requirement of Section 63 of the Succession Act and Section 68 of the Evidence Act stands satisfied witness is not supposed to repeat in a parrot like manner It is a question of fact in each case as to whether the witness was present at the time of execution of the Will and whether the testator and the attesting witnesses have signed in his presence The statement of the attesting witness proves the due execution of the Will apart from the evidence of the scribe and the official from the Sub-Registrars office.
Scribe of a document:
It was ruled in – ‘Govind Bhikaj v. Bhau Gopal’, AIR 1916 Bom 123, that if the scribe of a deed authenticates the mark made by the executant and thus vouches the execution by him, he is to be regarded as a competent attesting witness.
Their Lordships referred to Section 3, Clause 52, General Clauses Act, which explains the word “sign” with reference to a person who is unable to write his own name. And their Lordships further observed that it is nowhere laid down as essential that an attesting witness must be formally described as such on the face of the document. While discussing the nature of the signature made by the scribe their Lordships pointed out that when the scribe signed his own name under the description of the mark, his object in so doing presumably was to authenticate the mark, that is to say, to vouch the execution. In other words, the last signature made by the scribe was taken to be a signature made by the scribe not in the capacity of a scribe but in the capacity of an attesting witness.
An illiterate person signed a mortgage deed:-
“There, an illiterate person signed a mortgage deed by putting his mark to it, which mark was described by the scribe of the deed. The deed was attested by two independent witnesses. It was ruled that the deed had been duly executed and attested. The execution was complete when the mortgagor, unable to write his name, placed his mark thereon. The function of the scribe ended when he signed his name at the conclusion of the body of the document; he thereafter signed his own name, under the description of the mark made by the executant, with a view-to authenticate the mark, that is, to vouch the execution of the deed by the marksman, in other words, to act as an attesting witness.”
In Badha Kishan v. Fatesh Ali Ram, 20 All 532, the High Court of Allahabad held that a deed may be legally proved by the evidence of the scribe thereof who has signed his name, but not explicitly as an attesting witness, on the margin, and had been present when the deed was executed.
In ‘Dinamoyee Debi v. Bon Behari’, 7 Cal WN 160, a Division Bench of the Calcutta High Court had to deal with a case where a lady had executed a mortgage-deed by putting her finger mark to the same, and a person who had seen her put the finger mark had written her name at her request and also the words “by the pen of” preceding his name written by himself. It was ruled that the document had been executed by the lady as soon as she had put the mark and that the person who signed on her behalf at her request was to be regarded as a competent attesting witness, the expression “by the pen of” used by him being a mere surplusage.
In ‘Rambahadur Singh v. Ajodhya Singh’, AIR 1916 Pat 210, a Division Bench of this Court definitely held that a person, even if he be the scribe, if he sees a deed executed, is in fact a witness to it and that if he subscribes as a witness he is an attesting witness within the meaning of Section 68, Evidence Act.
9. Exclusion of oral evidence by documents :-
Where is contradiction in terms, the law allows a reference to antecedent circumstances – AIR 1917 PC 23.
Coming within the realm of Chapter VI dealing with the exclusion of oral by documentary evidence, while, Section 93 excludes the evidence which would show the meaning of any document or which would supply its defects in the document when the language used in the document is on its face ambiguous or defective. Section 94 says that when the language used in the document is plain in itself and applies accurately to existing facts, evidence may not be given to show that it was not meant to apply to such facts. However, while Section 95 says that when the language used in the document is plain in itself, but is unmeaning in reference to existing facts, evidence may be given to show that it was used in a peculiar sense; Section 96 reads that the language used in the transaction might have been meant to apply to any one of several persons or things, evidence may be given of facts which shows which of those persons or things it was intended to apply; and Section 97 reads that when the language used applies to partly one set of existing facts and partly to another set of existing facts but the whole of it does not apply correctly to either, evidence may be given to show to which of the twp it was meant to apply. A perusal of these provisions makes it obvious that Section 93 and 94 deal with patent ambiguity and Section 95, 96, and 97 deal with latent ambiguity. In case of patent ambiguity, no extrinsic evidence is permissible and in case of latent ambiguity extrinsic evidence may be given. See. Pradeep Kumar’s case (infra).
When a document itself is inadmissible in evidence any evidence about the terms of that document is also inadmissible. A suit on inssufficiently stamped promissory note which was not executed as a collateral security is mot maintainable. If the promissory note is taken only as a collateral security oral evidence is admissible and section 91 of Evidence Act does not apply. Oral evidence can be proved in a case of joint family property as to possession by coparceners. Factum of partition can be proved by oral and other independent evidence even though the partition deed is not admitted in evidence for want of registration and stamp duty. Section 91 of Evidence Act comes in the way to adduce oral evidence if a party seeks to prove the terms of partition deed. Section 92 of the Evidence Act excludes oral evidence for the purpose of contradicting, varying, adding to, or subtracting from the terms of a written contract; but proviso (1) to that section permits any person to prove “want or failure of consideration” so as to invalidate any document. As held in Rakkiyan v. Chinnu, it is even open to establish by evidence that the consideration was really different from the consideration recited in the deed, as it is not a term of the sale deed. (See. Akula Madhava Rao’s case, 1995 (3) ALT 61 (DB)).
Pradeep Kumar vs Mahaveer Pershad And Ors. AIR 2003 AP 107, It is apposite here to consider Section 93 to 98 of the Indian Evidence Act. They deal with the rules as to interpretation or as is also called, construction of documents with the aid of extrinsic evidence.
“Where the language of a document is plain and unambiguous and correctly applies to existing facts a party will not be permitted to say that the property referred to in that document was some other property. But where the recitals in a sale certificate though plain in themselves do not fit in with the admitted facts, viz.. the survey number, the names of the tenants and the area of the plot of land sold, and a doubt arises that either the survey number or the names of the tenants and area given must be wrong, extrinsic evidence is admissible under Section 95 and 97 of the Evidence Act.”
Yarlagadda Venkakka Choudary vs Daggubati Lakshminarayana,1996 (1) ALT 877, Since the terms of the contract between the parties have been reduced into writing as per Ex.A-3 which is also a registered document, nomally speaking, defendants 1 to 3 are debarred from producing any oral evidence contrary to the contents of Ex.A-3 in view of Section 92 of the Evidence Act. But if they are able to come within any of the provisos 1 to 6 of Section 92, then, they can be relieved of such a prohibition.
Section 91 of the Evidence Act excludes the admission of oral evidence for proving the contents of the document except in cases where secondary evidence is allowed to be led. In Law of Evidence by Sarkar (Fifteenth Edition) while considering the principles and scope of Section 91, it is mentioned that oral evidence is excluded equally when a document does exist and when the law requires the matter to be reduced to the form of a document. But where a document in writing is not a fact in issue and is merely used as evidence to prove some fact, oral evidence aliunde is admissible. In the matter of Bai Heera Devi v. Official Assignee, Bombay, it has even held that Section 91 is based on the best evidence rule. The best evidence about the contents of a document is the document itself and it is the production of the document that is required by Section 91 in proof of its contents. In a sense, the rule enunciated by Section 91 can be said to be an exclusive rule inasmuch as it excluded the admission of oral evidence for proving the contents of the document except in cases where secondary evidence is allowed to be led under the relevant provisions of the Evidence Act. (Ref. Meva Devi And Ors. Etc. vs Omprakash Jagannath Agrawal, AIR 2008 Chh 13).
Venkatraman Reddy and others Vs. Gandluri Govinda Reddy and another, 2013 (2) ALT 550, Any parol evidence contradicting contents of a written document is inadmissible in Evidence under Section 92 (4) of Evidence Act.(Para 15).
Punna Sujatha v. Smt. Musham Sakkubai and others, 2009 (3) ALT 431, There is no quarrel with the proposition that the contents of a document can be proved by filing the original thereof. Section 61 of the evidence Act is clear on this aspect. Further under Section 91 of that Act, oral evidence is excluded , vis-a-vis the contents of a document.
R.Janakiraman vs. State of Tamilnadu, 2006 (3) SCJ 226, Oral evidence can be led to show that a transaction under a [particular document is sham, fictitious or nominal, not intended to be acted upon, Section 92 of Evidence Act is not a bar.
Beemaneni Mahalakshmi v. Gangumalla Apparao, 2006 (6) ALT 401, what is mandated by Section 91 of the Evidence Act is that contents of the documents should be proved only by the primary evidence, except in cases in which secondary evidence is admissible and as Section 92 of the Evidence Act deals with exclusion of extrinsic evidence to contradict, vary, add to or subtract from the terms of such document. The second proviso to Section 92 of the evidence Act clearly lays down that separate oral agreement as to any matter on which a document is silent, and which is not inconsistent with its terms, can be proved.
10. Presumptions relating to documents.
Presumption is in respect of genuineness of a document as regards signature, execution and attestation but not as regards correctness of its contents – Union of India vs. Ibrahim Uddin and another, 2012 (6) SCJ 432.
In Harihar Prasad Singh (77 supra)-it was also held by placing reliance upon the expression in Basanth Singh v. Brijraj Sadan Singh (79) AIR 1935 PC 132 (c) – regarding presumption of thirty years old document under Section 90 of the Indian Evidence Act that, a presumption can be raised only with reference to original document and not to copies thereof. If the document happens to be signed by the agent of the person against whom the presumption is sought to be raised and there is no proof that he was an agent, Section 90 does not authorize the raising of a presumption as to the existence of authority on the part of the agent to represent that person. In Union of India v. Ibrahim Uddin (80) 2012 (6) SCJ 432 = 2013 (1) ALT 18.1 (DN SC) = Civil Appeal No.1374/2008, dt.17-07-2012.- it was held regarding presumption of thirty years old document under Section 90 of the Indian Evidence Act, that the presumption is in respect of genuineness of a document as regards signature, execution and attestation, but not as regards the correctness of the contents of the document. In T. Ramesh v. Lakshmamma (81) 1999 (2) ALT 553, it was held referring to H.Venkatachala v. B.M. Thimmajamma (82) AIR 1959 SC 443 and Dhanapala v. Govindaraju (83) AIR 1961 Madras 262 and extracts from Tailor’s Law of Evidence and Halsbury’s Law of England that, law recognizes a conclusive presumption in favour of due execution of insured deeds and Wills when those instruments are 30 years old and are unblemished by any alterations and are produced from natural custody, they are said to be proved themselves. A bare production is sufficient and the scribe and witnesses being presumed to be dead and in the absence of circumstances of suspicion to have been duly sealed, attested, delivered or published according to their purport, when those are above 30 years produced from proper custody in saying that those are by production said to be proved themselves. The proper custody is in the custody of a person, who might be reasonably and naturally be expected to have possession of them. It would be dangerous no doubt for the courts to draw presumption of due execution mechanically on the face of the documents purporting to be 30 years old; and coming from proper custody in as much as the presumption dispense with proof of due execution, thereby the Court must act with extreme caution and utmost circumspection from the language used May presume in Section 90 of the Evidence Act conferring judicial discretion to be exercised by the Court in drawing the presumption. It is within the judicial discretion of the Court having regard to facts and circumstances of each case. See also Ch.Adiseshamma v. Rama Rao (84) AIR 1973 AP 149.
Attestation of a document is when to attribute knowledge of its contents: In Pandrang Krishnaji v. N. Tukaram (85) AIR 1922 PC 20- it was held on how far mere attestation of a document is to attribute knowledge of its contents and whether to say he attested with knowledge and consented to the transfer, that the attestation of a deed by itself estops a man from denying nothing whatsoever excepting that he has witnessed the execution of the deed. It conveys, neither directly nor by implication, any knowledge of the contents of the document and it ought not to be put to word alone for the purpose of establishing that a man consented to the transaction which the document effects. Mere attestation does not affect as an estoppel, for attestation does not fix the attesting witness with knowledge of contents of the document or implying consent for the contents of the document, unless it is established by the independent evidence that to the signature was attached the express condition that it was intended to convey something more than mere witnessing to the execution and was meant as involving consent to the transaction – vide Rajyammmal v. Sabhapathi (86) AIR 1945 PC 82 and Pandrang (85 supra).
There is a presumption of correctness that a registered document carries in its favour but when the same is called into question the registered deed must be proved like any other document. G. Shashikala and others Vs. G. Kalawati Bai (died) per LRs and others, 2018 (6) ALT 427.
B. Ravi Yadav Vs. Cherkula Uday Kumar and others, 2013 (2) ALT 245, Court can draw a presumption from a fact or facts. That would remain until such presumption or inference is either disproved or dispelled. As was held in Khandavalli Amith Kumar Vs. State of A.P. 2012 (3) ALT (CRI) 263, Where there is no independent or direct evidence, presumption must be taken aid by the Court. Where there is no independent or direct evidence, presumption must be taken aid by the court.
Executive Officer, Sri Bramaramba Mallikarjuna Swamy Temple, Beeramguda, Patancheru Mandal, Medak District v. Sai Krupa Homes and others, 2010 (6) alt 699, Even if a presumption arises in favour of the plaintiffs based on the documents, the said presumption is always rebuttable and in a suit for declaration of title, the title of the plaintiffs as well as that of their vendors vis–vis the rival title claim by the defendants has to be examined by the civil court.
Pidikiti Venkatarathnam v. Dr. Ramanavarapu Sampath Kumar, 2010 (5) ALT 136, Under sec. 81 of evidence Act, for the official documents prepared in the course of officials business, due presumption exists that the entries therein have been made in due performance of official duties – They are to receive due weightage in evidence.(Para 55)1996 (2) ALT 950 (D.B.).
Kurni Banda Thiripalaiah (died) per L.Rs. v. Atmakur Nagabhushanam Chetty and another, 2008 (2) alt 383, It cannot be laid down always as a matter of rule that merely because Sub-Registrar made an endorsement on mortgage deed, necessarily it is to be inferred that it is supported by consideration. It is a rebuttable presumption.
Sajana Granites, Madras and another v. Manduva Srinivasa Rao and others, 2002 (1) ALT 466 (DB), Where truth and genuineness of a document is put in issue, burden of proving it lies on the party relying on it – No presumption can be drawn that all registered documents are true and genuine.(See. Para 30)
Kasaram Jayamma and another v. Jajala Lakshmamma and others, 2008 (3) ALT 104 (DB), A property cannot be presumed to be joint family property merely because of existence of joint family.
P.P. Raj and another vs. Sri Rama Finance Corporation and others, 1999 (6) ALT 436, Under Sec.114, Illus. (g) of Evidence Act, presumption as to existence of certain facts – Adverse inference has to drawn if documents which could be produced are not produced.
Akkiraju Saraswathi and another Vs. Mohd. Jahangir Pasha and others, 2007 (4) ALT 554, It hardly needs any emphasis that the instrument, which brings about, or evidences the transaction of sale, is the sale deed, and the reproduction of the same in the book maintained by the Registrar’s Office, is to be in the form of evidence.
Chaganti Subbarao and others Vs. Thimmaraji Satyanarayana, 2007 (3) ALT 408, Section 82 Evidence Act, Presumption as to documents obtained from Revenue and Survey and Settlement Authorities which are in the form of Maps – Carry with them strong presumption that they are valid and genuine and can be taken as depicting correct state of affairs – No corroborative evidence is necessary in support of such documents. Such presumption can be displaced only by producing cogent and reliable evidence.
Anjusi Satteyya Vs. Anjuri Appalamma, 1955 (1) ALT (NRC) 116.1, The law presumes in favour of a marriage and against concubinage. There is also a presumption of a marriage from continuous cohabitation of a man and woman for a number of years in a neighbourhood consisting of relations and castemen. The presumption of marriage results from cohabitation with habit and repute, the habit and repute that is relevant being of that particular status which, in the community or the locality is a lawful marriage. The presumption is not uniform amongst all communities or in all localities and varies from place to place and from one community to another. Among communities where concubinage is condoned or winked at or not condemned by social opinion, the presumption of a lawful marriage from the cohabitation is weak. If the fact of marriage is admitted or proved to the satisfaction of the court, then a presumption will arise that all the necessary formalities have been complied with and the marriage is a lawful marriage. Where however there is no evidence of the fact of the marriage beyond the statement of the plaintiff the recitals in documents between parties assume considerable importance. On the facts it was held that the relationship between the parties was not one of marriage
Mohd. Jamal and others Appellants (Plaintiffs). vs. Mohd. Sharfuddin (died) and others Respondents (Defendants), 1998 (5) ALT 655, Record of rights and pahanis – Not documents of title. Though presumption of correctness attaches to entries therein, they are not foundations of title but are only mere items of evidence. Presumption prevails when there is no rebutting evidence – Entries therein can be taken into consideration deciding ownership and possession in the absence of rebuttal evidence.
T. Ramesh and others vs. Laxmamma and others, 1999 (2) ALT 553, -ourt should not arbitrarily refuse to draw presumption under Section 90 in normal circumstances, i.e., production from lawful custody, likely to have been executed having regard to common course of human conduct and no suspicious circumstances.
Vavilapalli Sarojanamma and others v. Pappala Rajeswaramma, 2008 (4) alt 369, Actual execution and attestation of a Will of more than 30 years old and produced from proper custody can be presumed under Section 90 of the Act. If a document of 30 years old or more is produced from proper custody and is, on its face, free from suspicion, then the execution and attestation need not be formally proved.
Muppalla Veeraiah Vs. Chaganti Jaya Lakshmi, 2014 (5) ALT 756, Even if a document is more than 30 years old, when it is opposed by other party, the contents and other particulars of the document regarding which there is no presumption, have to be proved. When the document is not registered and when the document, in its entirety, is disputed, the fact that it came into existence more than 30 years ago must be proved to draw a presumption under Section 90 of Evidence Act. Will has to be proved by examining at least one of the attesting witnesses as mandated by Section 68 of the Evidence Act If attestors are not alive, it has to be proved as per procedure prescribed under Section 69 of the Act. In it was held Madanlal Pujari Vs. Sharad Joshi, 2012 (1) ALT 377, Document of 30 years old or more – When produced from proper custody and when it is free from suspicion on its face, Court may presume that it has been duly executed and attested.
As held by this Court in Bharpur Singh v. Shamsher Singh reported in 2009 (2) SCJ 180 = (2009) 3 SCC 687, a presumption regarding documents 30 years old does not apply to a will. A will has to be proved in terms of Section 63 (c) of the Succession Act read with Section 68 of the Evidence Act.
As to proof of a Will, the relevant provisions of these three sections read as follows:
Section 63 of the Succession Act
63. Execution of unprivileged wills.- Every testator, not being a soldier employed in an expedition or engaged in actual warfare, or an airman so employed or engaged, or a mariner at sea, shall execute his will according to the following rules:-
(c) The will shall be attested by two or more witnesses, each of whom has seen the testator sign or affix his mark to the will or has seen some other person sign the will, in the presence and by the direction of the testator, or has received from the testator a personal acknowledgement of his signature or mark, or of the signature of such other person; and each of the witnesses shall sign the will in the presence of the testator, but it shall not be necessary that more than one witness be present at the same time, and no particular form of attestation shall be necessary.
Section 68 of the Evidence Act
68. Proof of execution of document required by law to be attested.- 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…
Section 71 of the Evidence Act
71. Proof when attesting witness denies the execution.- If the attesting witness denies or does not recollect the execution of the document, its execution may be proved by other evidence.
Section 85 of the Indian Evidence Act, 1872: Presumption as to powers-of attorney.— The Court shall presume that every document purporting to be a power of- attorney, and to have been executed before, and authenticated by, a Notary Public, or any Court, Judge, Magistrate, Indian Consul or Vice-Consul, or representative of the Central Government, was so executed and authenticated. Thus it is clear that authentication is a distinct and separate step in the process of registration. The words used are “executed and authenticated”. The distinction between registration and authentication is highlighted by Rule 53 which says a registered General Power of Attorney is not valid for registration unless it is authenticated. G. Shashikala and others Vs. G. Kalawati Bai (died) per LRs and others, 2018 (6) ALT 427.
Anapalli Bhaskar and others Vs. Gudi Venkateswarlu and others, 2014 (1) ALT 67, Even under general law, a special status attaches to bank document. Section 74 of the Act of 1872 defines ‘public document’. Documents forming the acts or records of the acts of, amongst others, public officers are included in this definition. As long back as in the year 1904, a learned Judge of the Calcutta High Court in Chandi Charan Dhar v. Boistab Charan Dhar (1) (1904) ILR Cal 284 held that a loan register maintained by a bank is a public document within the meaning of Section 74 of the Act of 1872. Section 76 of the Act of 1872 provides that certified copies of such public documents can be proved by the officer having custody thereof.
M.Varthamma and others Vs. Kannappa (died) and others, 2013 (5) ALT 241, A pattadar pass book and title deeds issued to a party in respect of a land carry with them a presumption as to existence of title until those documents are set aside in appeal or revision by a Court.
Ashutosh Samanta (D) by Lrs. and others Vs. Sm. Ranjan Bala Dasi and others, 2023 (2) ALT (SC) 77 (DB), The presumption under Section 90 as to the regularity of documents more than 30 years of age is inapplicable when it comes to proof of wills, which have to be proved in terms of Sections 63(c) of the Succession Act, 1925, and Section 68 of the Evidence Act, 1872.
Evidence is the foundation of proof, with which it must not be confounded. What the best evidence is must depend upon circumstances. Original document is the best evidence; but circumstances may arise in which secondary evidence of the contents may be given.. Sec.3 of the Evidence Act defines what documentary evidence means. The contents of documents may be proved either by primary or by secondary evidence. Section 61 of Evidence Act specifies that contents of document may be proved either by primary evidence or by secondary evidence. Presumptions as to documents are discussed from sections 79 to 90A of the Evidence Act. Exclusion of oral by documentary evidence is discussed in sections 91 to 100 of the Evidence Act. When a document is tendered in evidence, the first point for consideration is whether it is required by law to be attested. If it turns out to be a document required by law to be attested and there is an attesting witness available, then subject to the proviso to Sec. 68. at least one attesting witness must be called to prove the document. An instrument creating a charge does not require to be attested and proved in the same way as a mortgage. Under Sec. 54 of the Transfer of Property Act, a deed of sale of tangible immovable property of value of one hundred rupees and upwards or of a reversion or of other intangible thing can be made only by a registered instrument and it requires no attestation. An agreement for sale is a document which does not require to be attested by any law. Sec. 67 of the Indian Evidence Act deals with proof of documents which are not required by law to be attested. Sec. 68 of the Indian Evidence Act deals with proof of execution of documents required by Jaw to be attested. There is also a category of documents which we come across which could be public or private documents but they are not documents in original. Proof of such documents poses a further complication when it comes to proving the same. To prove such documents we need to lead what we all know as secondary evidence. As per section 68 of Evidence Act, if attesting witnesses are not alive or not available, it has to be proved in accordance with section 69 of Evidence Act. Onus of proving the Will lies on the propounder. Burden lies on propounder to remove and clear off all suspicious circumstances. Proof of execution of document required by law to be attested.